New Gun Rights Suit In D.C. Tests 2nd Amend Limit

(IStockPhoto)

One question left unanswered by the U.S. Supreme Court's landmark Second Amendment ruling last year is this: When do law-abiding Americans have the right to carry firearms in public for self-defense?

In a lawsuit filed against the city of Washington, D.C. on Thursday, the Second Amendment Foundation aims to find out.

The plaintiffs are four gun owners who were denied licenses to carry firearms in public on their person, which nearly all states permit. All U.S. states except Illinois and Wisconsin grant licenses for concealed carry, and 36 states require local police to issue the licenses unless there's a valid reason (such as a criminal history) not to do so.

The District of Columbia is a special case. Its city code says nobody may carry "either openly or concealed on or about their person, a pistol, without a license." But a law enacted in December 2008 appears to have curbed the ability of the police chief to grant those licenses.

"This really isn't about concealed carry," Alan Gottlieb, founder of the Second Amendment Foundation, told CBSNews.com in an interview on Thursday evening. "It's about being able to carry a gun, period. D.C. can prescribe some form or fashion or regulation or restrictions, but there's no way they can say you can't do it at all."

Part of the blame for this uncertainty -- how far does the Second Amendment extend? -- can be laid at the doors of no less an authority than the U.S. Supreme Court.

In the D.C. v. Heller case, the justices struck down the District's no-handguns-in-your-own-home ban on the grounds that it violated the Second Amendment, but they weren't terribly specific about what else might or might not cross the line.

Put another way, the text of the Second Amendment says that "the right of the people to keep and bear arms, shall not be infringed." Last year's Heller case dealt with the right to keep arms, but what about the right to bear arms?

The justices' majority opinion acknowledged that "at the time of the founding, as now, to 'bear' meant to 'carry,'" and that the phrase "'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia." Also: "We find that (the clauses) guarantee the individual right to possess and carry weapons in case of confrontation.""

Just to make things more complicated, though, the majority opinion also says: "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."

Permitting law-abiding Americans to carry loaded firearms on their person doesn't fall squarely into one of those categories, which has given gun rights groups some reason to be optimistic in the current lawsuit against Washington, D.C.

"We're not against all gun laws or forms of gun control here," Gottlieb said. "We're not saying that you can bring your gun to the Capitol building or the White House. But there are obviously places where you should be able to carry a gun for self-defense."

This is one case that's more likely than most to end up at the Supreme Court once again. Sonia Sotomayor was confirmed as an associate justice on Thursday, but few court watchers expect that to make a difference: as I wrote in May, both she and David Souter (her predecessor) appear to believe the Second Amendment does not protect an individual right to keep and bear arms.

Thursday's complaint filed against the District invokes two constitutional rights: First, it says that general bans on "carrying of handguns in public violate the Second Amendment to the United States Constitution"; and second, that the city's repeated refusals to grant permits "violate the rights to travel and equal protection secured by the Due Process Clause of the Fifth Amendment."

The only problem with that approach is that even though the Supreme Court said that a constitutional right to keep and bear arms exists, subsequent rulings by appellate courts have routinely said it's so limited that it doesn't have much meaning in practice. (One of those cases involved Sotomayor, and another involved a California anti-gun law.) If anti-gun types can convince judges to continue this approach, they may be able to win the next few rounds even though the Heller decision is technically the law of the land.

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at [e-mail].

[Tom43491]

A lot of people are missing one of the main points of the right to ear arms. The point isn't so much to have one so that you can whip yours out fast enough to shoot the criminal, but to deter the criminal from commiting the crime at all, because he knows that everyone around him is likely armed and willing to defend his or her law abiding neighbor.

As for making guns illegal, let's have a look at the drug war. Drugs are illegal. Does that stop criminals from obtaining or
using them? Not so much. Think it will be different with guns? All that the Criminalization of bearing arms is doing is making the innocent easy targets for crime.

[spdsk8a]

I am all for gun control!! I say "take all the guns" we would be much safer. But... Here is the catch. First start with all the criminals (I am talking about all the guys who don't give a hoot about buying the gun legaly and registering them in their name). I want to know that all thiefs, drug dealers, gang members and affiliates, and all other criminals are out of guns and ammo. This will mean that we need to stop all travel into the United States so no more illegal guns or ammo can enter the U.S. Then Take away all guns from our goverment (remember, "We the People" have a right to bear arms against our Goverment...The reason we came here from Europe in the first place!!) Then you can take the guns from the Police...Ahhhh, now I'm feeling safe, now the goverment can ask me and all the other "Law Obiding" citizens to hand over our weapons. Once this task is done lets do away with are Nukes, maybe Iraq, Iran, N. Korea, Afganistan and all these other NUTS will just leave us alone. We can fallow that by doing away with bows and arrows, all blunt objects, razors (no more shaveing..Yeah) and we can put rubber on all the corners in America and baby proof the United States. Get rid of all drugs and alcohol and any medication that may alter your mood or feelings. Oh, an lets let all the prisoners out, they have been punished enough....

[gunownerdan]

There is something I can't help but notice about a lot of the people who hate guns and/or hate self defense. Many of them(especially here in the cbsnews boards) constantly rely on using INSULTS, STEREOTYPES, FALSEHOODS, and FALSE ACCUSATIONS.
That kind of BS can't win an argument!
The fact is without civilian gun ownership, Japan would have much more likely to invade the American mainland during WWII not to mention the American revolution would have failed!
I thank god I have the basic human right to protect myself and my loved ones and I will fight to the death to support and defend my constitutional rights.
That's all there is to it.

[gunownerdan]

There is something I can't help but notice about a lot of the people who hate guns and/or hate self defense. Many of them(especially here in the cbsnews boards) constantly rely on using INSULTS, STEREOTYPES, FALSEHOODS, and FALSE ACCUSATIONS.
That kind of BS can't win an argument!
The fact is without civilian gun ownership, Japan would have much more likely to invade the American mainland during WWII not to mention the American revolution would have failed!
I thank god I have the basic human right to protect myself and my loved ones and I will fight to the death to support and defend my constitutional rights.
That's all there is to it.

[Tweek_in_VA]

I want to politely address what I have read so far. To clarify,
I am a gun owner.
I conceal my fire arm legally.
I follow local laws regarding carry.
I conceal my firearm since I do not wish to broadcast to all it is with me.

"Don't go where you might need it"
I'm sorry, but because of my work, I am sent o places like South DC.
I have seen a girl murdered by a derranged ex con in her own apt.
I have seen the results of a fatal car jacking in a mall parking lot.
I wish I could, but I can't predict where people are being killed over replaceable items.

"Squirrel hunt with an Uzi"
Uzi's are not against the law in certain areas. In VA if you pay the tax and meet the requirements you may legally own a fully auto fire arm. Find me one instance where a legally owned fully auto weapon has been used in a crime.

"All gun owners are paranoid"
That is sort of like saying all car drivers are lazy.
I like tinkering with mechanical stuff, and building riffles is a pretty cool hobby in my book. I can learn things and meet new people. Guns can also be used as investments. Certain gun parts skyrocketed in value under clintons ban.

The outlawing of Alcohol.
Created a boom in the unlawfull trade of it, and many criminal organizations were born and got a foothold. If all fire arms are banned, it is human nature to profit from the unlawfull trade of them.

Upstate NY and it's crime.
Since NY is a corrupt state (former resident) most of the business has left. Leaving a dwindling employment base. With fewer jobs in manufacturing more people have turned to crime. It is far easier to get a firearm in VA than in NY, but since we have a better economy and more employment, people have less free time or are so hard up they feel the need to rob people.
I was in NY Wed, I saw your state police force sleeping on the sides of highways. Why aren't they out stopping the crime in Buffalo? If you all keep voting blue, the State PD will keep collecting checks for doing absolutely nothing and all the Tom Gallisano's will move out.

A day in the life of an armed citizen.
I leave the house, with my fire arm concealed. I can go to work, the movies, the mall, bank, hospital alot of places and it stays concealed. This is all fine in VA. If I go into a place that serves alcohol, I have to openly display it. I have a good buddy that works in the ATF and always carrys his gun. Him and I are very alike, and have known each other since the 1st grade. If you met us, you could never guess one was a fed and the other not. Most of the police I see and talk to don't worry as much about armed law abiding citizens as people in DC do. They ask for your permit, check to see if you are legit and go about thier day. Just like me, and everybody whom I come in contact with that never know I am armed.

[thebob-bob]

Make sure that the public maintains the right to carry weapons into the halls of Congress. Let Congressmen put there lives where their votes are.

[Mikem400]

Always a gamble. I like playing the odds. Odds are way against me trying to pull out my gun and killing the sob before he gets me. Don't keep much cash in my wallet and why am I trying to protect the credit card companies? Now the sob comes into my house I want to cut his head off and use it as a lawn ornament.

[erasmus111]

by Questionews August 7, 2009 3:05 PM EDT
No way would they get my gun from me!
I have watched every Die Hard movie at least three times & I'm ready for that!!


Me too. Except I don't have or need a gun. : )

I think that I would be more ready than you. I've lost count of how many times I have seen Die Hard. Plus you're probably OLD and I am younger. Plus I'm a girl and can think faster.

[MikeSettles]

"A woman arguing for a gun ban, is like a chicken rooting for Col Sanders."
Great quote - wish I'd thought of it first.

And you certainly won't ever need a gun - until point in time and space when you indeed do need one. Then you will certainly agree with the logic of having while not needing, as opposed to needing and not having.

[Mikem400]

Always a gamble. I like playing the odds. Odds are way against me trying to pull out my gun and killing the sob before he gets me. Don't keep much cash in my wallet and why am I trying to protect the credit card companies? Now the sob comes into my house I want to cut his head off and use it as a lawn ornament.

[Hosheen]

No gun law will ever stop criminals from obtaining and using guns. That's a fact, folks. Here in Brazil, it's almost impossible for a private citizen to own any firearm, much less a handgun. Yet, criminals are often better armed than the police. In the USA, the two areas with the most restrictive gun laws are NYC and, until recently, Washington, D.C. Guess which areas have the most gun crime per capita? Easy question, yes?

How about instead of registering guns, we require people to have a license to own one? This is like a license to drive or fly a plane. It doesn't mean you own either, but that you have shown your qualifications to operate one. A firearm safety, handling, and use course could be a requirement for obtaining the license. Anyone currently ineligible to own a firearm would not be able to get a license and the same penalties that are already in place would apply.

This would help to ensure responsible gun ownership and reduce gun accidents such as a vice-president shooting his lawyer. BTW, is shooting a lawyer a crime? I've had police officers tell me it is not. LOL