Though District of Columbia v. Heller is part of the fabric of our Constitution, some lower court judges are finding ways to pick it apart.

America's 1st Freedom, June 2011. More by Kopel on post-Heller cases.

By Dave Kopel

Supreme Court cases get lots of attention, but in a practical sense, most of the law that we live under is made by lower courts. While the Supreme Court decisions in Heller and McDonald were tremendous victories for civil rights, some lower court judges are already hard at work attempting to nullify the Right to Keep and Bear Arms.

Earlier this year, the Maryland Supreme Court, in Williams v. State of Maryland, ruled that there is no right to carry a firearm for lawful self-defense outside one's home. The Maryland court thus upheld the criminal conviction of Charles Francis Williams Jr., who had legally purchased a handgun in Maryland and was found with his handgun while waiting at a bus stop, taking the gun from his girlfriend's residence back to his own home.

As the Maryland court admitted, the U.S. Supreme Court in District of Columbia v. Heller had said quite a lot about the right to carry.

According to Justice Scalia's majority opinion in Heller, "At the time of the founding, as now, to 'bear' meant to 'carry.'" The majority, quoting a previous opinion, explained that to "bear arms" is to "wear, bear or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person."

The Heller Court pointed to several 19th century state court cases that explained the Right to Keep and Bear Arms: State v. Reid (Alabama, 1840), Nunn v. State (Georgia, 1846), State v. Chandler (Louisiana, 1850) and Andrews v. State(Tennessee, 1871). All of these state cases struck down comprehensive bans on carrying handguns in public while also affirming that the state could regulate the mode of carrying; for example, concealed carry could be banned as long as open carry was allowed.

Further, the Heller opinion said that not all gun controls are unconstitutional and listed some "presumptively lawful regulatory measures." According to the U.S. Supreme Court: "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

These are the exceptions that prove the rule. Under Heller, ordinary citizens (but not felons and the mentally ill) have Second Amendment rights. The Second Amendment right includes the right to carry, but not to carry in "sensitive places."

Maryland does not ban the carrying of handguns, but it does forbid carrying either openly or concealed unless one has a permit issued by the state police. Unlike most states, Maryland does not have a fair, objective system for issuing carry permits to qualified adults. Rather, Maryland is one of the eight "capricious issue" states in which the permitting officials exercise nearly unlimited discretion and make it clear that ordinary, decent citizens who simply wish to protect themselves will not be granted permits.

But Charles Williams had a big problem. He had never applied for a permit. If he had filed a formal application and been turned down for no good reason, he would have been in a good position to argue that the permitting system was being operated unconstitutionally. Williams had never applied, his lawyer instead argued that the very existence of a permitting system was unconstitutional. This argument had little possibility of success in the Maryland courts. People who aim to advance Second Amendment rights through litigation should consider the successful strategy of the NAACP. While the NAACP always believed that racial segregation in K-12 schools was wrong, the NAACP wisely did not bring such claims in the 1930s or 1940s, when they would have been rejected and set bad precedent. Instead, the NAACP concentrated on winnable cases, challenging state universities that denied blacks entrance to law schools and other graduate schools. Winning the graduate school cases helped set the foundation for the 1954 victory in Brown v. Board of Education, covering K-12 schools.

Unfortunately, Williams and his lawyer were not part of a careful litigation strategy run by experienced civil rights organizations such as NAACP or NRA. Instead, they were simply a criminal defendant and an attorney who was doing the best job he could for his particular client.

The Maryland Supreme Court could have issued a narrow ruling, simply holding that a carry licensing system could be constitutional if it operates fairly, and that Williams had presented no evidence that the system denies law-abiding applicants.

Instead, the Maryland Supreme Court reached out to crush the Right to Keep and Bear Arms.

The court pointed out that Heller and McDonald had both involved possession of handguns in the home. Therefore, according to the Maryland court, nothing that the Supreme Court said about carrying was legally binding. It was mere "dicta." Dicta is a non-binding expression of legal opinion that is not part of a court's rationale for deciding a case. So the Maryland court concluded: "If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

This is very poor reasoning. First of all, Supreme Court justices are not seventh-grade students who are trying to pad their decisions with enough words to make the paper long enough to satisfy a teacher. Everything the Supreme Court writes in an opinion is meant to instruct lower courts--especially when the Court is writing a major opinion about a subject (such as the Second Amendment) on which the Court had previously written little.

Second, courts below the U.S. Supreme Court have always had the authority to decide constitutional questions that have not yet been resolved by the Supreme Court.

Moreover, the Heller explication of the Right to Keep and Bear Arms was not dicta; it was essential to the holding of the case. The four dissenters in Heller, led by Justice Stevens, insisted the "Bear Arms" referred only to carrying guns in a militia and, therefore, the entire Second Amendment was militia-only. Thus, the Scalia majority's explanation that to "Bear Arms" meant to carry guns generally, not just while in the militia, was a necessary part of Heller's holding that the Second Amendment protects all Americans, not just the militia.

Williams is a good example of the problems that can arise when Second Amendment issues are raised by a criminal defendant--even by a defendant who has no criminal record and whose only crime is a non-violent transgression of a dubious statute. (Williams is appealing to the U.S. Supreme Court, and is now represented by Second Amendment expert Stephen Halbrook and his experienced co-counsel, Dan Peterson.)

The National Rifle Association and allied organizations are bringing strong cases as fast as their resources will allow; these cases are selected for courts that have the best chance of favorable rulings, and present plaintiffs who have not violated any law.

Unfortunately, too many bad cases on Second Amendment rights are coming before state and federal courts. Most of them involve plainly guilty criminal defendants whose defense attorneys are simply offering whatever arguments they can.

Other bad cases are brought by misguided lawyers who played no role in successful cases such as Heller or McDonald, or any other gun rights victory in any court. These attorneys who naively think they are going to win cases by declaiming "What part of 'shall not be infringed' don't you understand?" are, objectively speaking, strategic assets of the gun prohibition lobbies.

Sadly, some current judges are implacably hostile to Second Amendment rights, just as some judges in earlier generations were determined to constrict as much as possible the application of Supreme Court rulings about desegregation or freedom of speech.

Judge J. Harvie Wilkinson sits on the federal 4th Circuit Court of Appeals, which covers Maryland, Virginia, West Virginia, North Carolina and South Carolina. He is highly respected, has been mentioned as a potential Supreme Court nominee and is, by all accounts, a true gentleman. He is also utterly opposed to Second Amendment rights.

Shortly after Heller was decided, Judge Wilkinson penned a law review article contending that Heller was an example of improper "judicial activism." ("Of Guns, Abortions, and the Unraveling Rule of Law," Virginia Law Review, April 2009.)In a reply article, George Mason University law professor Nelson Lund and I argued that Wilkinson's critique of "judicial activism" was internally inconsistent, and that he tended to label decisions as "activist" based on whether or not he agreed with the result rather than based on objective criteria. ("Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson, III," Journal of Law & Politics, Winter 2009, http://ssrn.com/abstract=1309714.)

Judge Wilkinson got his chance to do something about the Second Amendment in a case decided this March, United States v. Masciandaro. The defendant had parked his car illegally in a lot at a national park in Alexandria, Va., and had gone to sleep. When he was awakened by a United States Park Police officer, the officer got Masciandaro to admit that there was a loaded handgun in the car. Masciandaro was convicted of violating a National Park Service regulation against loaded guns on park property. (That regulation was eventually overridden by a NRA-backed law enacted in 2009, which says that people may carry guns in National Parks and wildlife refuges if they comply with the carry laws of the state where the park or refuge is located.)

A three-judge panel of the 4th Circuit, including Judge Wilkinson, heard the appeal.

One judge, Paul V. Niemeyer, acknowledged that Heller protects a right to carry in public places. He upheld the conviction, however, under a test known as "intermediate scrutiny." Intermediate scrutiny was first created for cases involving sex discrimination and later extended to discrimination based on birth legitimacy, to many election law regulations and to some controls on freedom of speech (such as for regulations on the time, place and manner of speech in public places). Under intermediate scrutiny, there must be an "important" government interest. The particular regulation must be "substantially" related to furthering that government interest.

Or in a weaker formulation used by Judge Niemeyer, the regulation must be "reasonably" related to the important government interest. Judge Niemeyer wrote that the safety of people in the park was an important government interest, especially because families with children used the parking lot and that the gun ban was "reasonably" related to public safety, at least regarding that particular park.

Judge Wilkinson, joined by the third judge, took a more aggressive approach, while dressing it up in the language of judicial restraint. They wrote that courts should follow the Williams decision and refuse to recognize any right to carry.

Like Supreme Court Justice Stephen Breyer, Judge Wilkinson argued that because judges would have to make decisions about the scope of the right, the right should not be recognized: "There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation."

Actually, Heller answers most of these questions. There is a Second Amendment right beyond the home. Like almost any right, it applies on public property mainly. (You don't have to allow your neighbor any free speech rights on your front lawn.) The right does not apply "in sensitive places such as schools and government buildings."

The only uncertainty is to what other places may be "sensitive" enough for a carry ban. Lower courts will have to make decisions about sensitive places, but that's what lower courts exist for--to apply Supreme Court standards and to flesh them out. Deciding what is a "sensitive" place is not so different from the traditional First Amendment judicial work of deciding whether a speech restriction in a particular public place is "reasonable."

Like other judicial activists, Judge Wilkinson brought his own policy preferences to the decision: "We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights." He worried that "such a danger would rise exponentially as one moved the right from the home to the public square."

In other words, Judge Wilkinson is terrified that if people are allowed to carry guns in public, there is a very great possibility that they will commit acts of mayhem. The experience of Virginia, where strong carry rights have been the law since 1995, contradicts Judge Wilkinson's fears. The "unspeakably tragic act of mayhem" at Virginia Tech took place in a so-called "gun free zone" where the killer knew that none of his law-abiding victims would have the means to fight back.

Judge Wilkinson's personal policy views about firearms are extreme when it comes to allowing lawful carry, but they are oblivious to the dangers of prohibiting it. Not only in sensational crimes like the Virginia Tech murders, but also on sidewalks, in parking lots and in all sorts of other public locations, innocent victims have been murdered, raped, robbed and assaulted because they were not allowed to carry defensive arms. Years of experience in state after state, including Virginia, bring forward the stories of crime victims who have saved themselves, their families or strangers from murder or mayhem because of the right to carry.

More fundamentally, the Constitution has already made conclusive policy judgment about the risks and benefits of carrying guns and decided in favor of carry rights. That is why the Constitution guarantees the right to "Bear Arms." No American judge has the legitimate authority to ignore the constitutional text because of his own calculation of social costs and benefits.

Heller faithfully adhered to the Constitution by affirming the right to carry. As with virtually all constitutional rights, the Court construed the Second Amendment as not being absolute and unlimited, but having certain implicit exceptions, such as "sensitive places."

As Williams and Masciandaro show, some recalcitrant lower courts are refusing to recognize the right to carry; so the continuing involvement of Second Amendment activists in the political process remains of life-saving importance. Legislatures can protect rights when courts do not. The national parks carry statute is one recent example, and the continuing effort to enact national Right-to-Carry reciprocity is another.

Eventually, the Supreme Court may further address the carry issue. Then, victory or defeat could depend on whether President Obama is re-elected in 2012 and, therefore, whether he gets to appoint more anti-Second Amendment justices to the narrowly divided bench.

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