The Supreme Court's opinions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. endstream endobj startxref In the early nineteenth century, states increasingly limited the carrying of concealed firearms.3 And “[m]ost states enacted laws banning the carrying of concealed weapons.”4 Kachalsky, 701 F.3d at 95; see also Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Ford. Id. As the California legislature has limited its permitting scheme to concealed carry—and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a broad challenge to the state-wide ban on open carry, is permissible.19. Bliss was clearly a judicial outlier. The exemptions for particular groups of law enforcement officers and military personnel do not protect the typical responsible, law-abiding citizen.
This advice is particularly apt when we consider the widely-varying state and local gun laws that are tailored to particular community needs. It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. Assuming, for argument's sake, that the burden placed in this case on whatever Second Amendment rights extend outside the home is substantial, then application of intermediate scrutiny is appropriate. at 407. History of the Right to Bear Arms in England. Id. Id. In the context of firearm regulations, “[t]he specific constitutional challenge thus delineates the proper form of relief and clarifies the particular Second Amendment restriction that is before us.” Peterson, 707 F.3d at 1209. 2566, 2579, 183 L.Ed.2d 450 (2012)). 356 (1833), cited in Heller, 554 U.S. at 585 n. 9.
The court agreed, concluding in part that even if the common law did not require proof of actual violence to punish persons for merely walking around with weapons, the state constitution's protection of the “right to keep and to bear arms” would trump: “[I]t would be going much too far, to impair by construction or abridgment a constitutional privilege which is so declared.” Id. Thus, the carrying of concealed weapons may be absolutely prohibited without the infringement of any constitutional right, while a statute forbidding the bearing of arms openly would be such an infringement.” Id. § 25450 (peace officers); id. Rather, the regulation at issue is a rationing system. Moore, 702 F.3d at 936 (“A right to bear arms thus implies a right to carry a loaded gun outside the home.”); see also, e.g., Drake, 724 F.3d at 431 (recognizing that the Second Amendment right “may have some application beyond the home”); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.2013) (“We ․ assume that the Heller right exists outside the home․”); Kachalsky, 701 F.3d at 89 (assuming that the Second Amendment “must have some application in the very different context of the public possession of firearms”). But whether a state restriction on both concealed and open carry overreaches is a different matter. Charles, supra, at 25–28. It thus upheld New York's regulatory scheme, emphasizing that there was “general reticence to invalidate the acts of [our] elected leaders.” Id. Heller's third and final source, Chase's American Students' Blackstone, takes a similar stance, concluding that, though the Constitution forbids the infringement of the right to bear arms, “statutes prohibiting the carrying of concealed weapons are not in conflict with [it or its state analogues], since they merely forbid the carrying of arms in a particular manner, which is likely to lead to breaches of the peace and provoke to the commission of crime, rather than contribute to public or personal defence.” Chase, supra, at 84 n. 11. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose ․ of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama's pocket before heading downstairs to start the morning's coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail. In 1594, the Queen again called for the enforcement of gun control laws because her subjects were being terrorized by the carrying of arms, including concealed “pocket Dags,” in public. 1 for the Department of South Carolina, stating in part that “[t]he constitutional rights of all loyal and well-disposed inhabitants to bear arms, will not be infringed,” though such a guarantee neither foreclosed bans on “the unlawful practice of carrying concealed weapons” nor authorized “any person to enter with arms on the premises of another against his consent.” Cong.
§ 25605 (exempting the gun owner's residence, other private property, and place of business from section 25400 and section 26350). But before turning to the cases themselves, we offer a word on methodology.
In the 1822 case of Bliss v. Commonwealth, the Kentucky high court reversed the defendant's conviction for carrying a concealed weapon (a sword in a cane). The Heller Court held only that the D.C. handgun ban was unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights” because “[f]ew laws in the history of our Nation have come close” to the severity of its restriction. Although consulting post—Civil War discussions may seem to be an unusual means for discerning the original public meaning of the right—particularly given that these discussions postdate the Second Amendment's ratification by three-quarters of a century—we hew to the Supreme Court's conclusion that they retain some significance, albeit less than earlier interpretations of the right. at 614. 18 (1842), the Arkansas Supreme Court held that the Arkansas law banning the wearing of concealed weapons was not contrary to either the Arkansas or United States Constitution. at 1211. And, in San Diego County, that option has been taken off the table. Thus, the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Despite whatever pedigree the majority claims for this alternative approach, we are bound to follow the law of our Circuit. As the Supreme Court emphasized in Heller, that issue has a much different and unique history than the Second Amendment challenge at issue in Heller, and the history of concealed carry restrictions differs from the history of open carry regulations. 571, 586 (2006) (citing Journal of the Kentucky House of Representatives 75. Legal commentator John Odronaux, also cited in Heller, understood the right clearly to include arms bearing outside the home. To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does. at 281–82.
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