The Inevitability and Reluctance of Gun Litigation

A United States district court judge on Saturday ruled that the ban in the nation’s capital against concealed handguns in public is unconstitutional as it violates the Second Amendment.  To provide a brief background and overview, District Judge Frederick Scullin, who wrote Saturday’s opinion, wrote that the Supreme Court in 2008 in District of Columbia v. Heller, ruled that “‘First, Heller clarifies that the keeping and bearing of arms is, and has always been, an individual right…Second, the right is, and has always been, oriented to the end of self-defense.'”  Judge Scullin went on to say that the two leading Supreme Court precedents on the self-defense aspect of the Second Amendment do not address that right outside the home.

Saturday’s decision in Palmer et al. v. District of Columbia was focused on one’s constitutional right to bear arms outside the home for self-defense purposes.  In his decision Saturday, Judge Scullin frequently quoted a ruling from February from the Ninth Circuit in a case from California in which the 2-1 split Circuit panel validated the “right of law-abiding citizens to carry handguns for lawful protection in public.”

The case from the Ninth Circuit will not head to the Supreme Court as the city of San Diego will not appeal the decision.  That being said, where does Judge Scullin’s decision place the issue of Second Amendment applicability outside the home?  The Supreme Court denied to hear a case this past term from New Jersey called Drake v. Jerejian.  The two issues that were challenged in the Drake case were if the Second Amendment applied to carrying a concealed handgun outside the home for self-defense purposes and if it violated the Second Amendment to require those who sought to carry a concealed handgun outside their home to provide a “justifiable need” for doing so.  With the denial to hear this challenge, the Supreme Court effectively keeps intact the New Jersey law and lower court ruling, which forces individuals to provide a justifiable need to carry a weapon outside their home.  The Court also demonstrated their hesitancy to take the next step from Heller.

Judge Scullin’s ruling was inevitable in many ways as the Second Amendment rights outside the home would be the logical next litigation sought after the Supreme Court’s landmark ruling in 2008 in Heller.  It is also worth pointing out that the Palmer case had been pending since 2009 – one year after Heller – due to a backlog in the federal court system.  The Supreme Court may be warier now about taking up issues regarding the Second Amendment given its high profile and partisan charged nature (on a side note, the Court seems lately to be following a trend of narrow rulings as to not offer sweeping declarations that may affect large portions of major laws or large populations of people.)  As Adam Winkler, law professor at UCLA, described recently, the Justices failed to even mention the Second Amendment in either the majority or dissenting opinions in a case last term that ruled “straw purchases” are illegal – though the case was not a constitutional issue but rather statutory.   “One might have expected the values and concerns enshrined in the Second Amendment to at least make an appearance, if not a star turn. When the justices ignore the Second Amendment when construing a major gun control law, one suspects it isn’t merely an oversight,” wrote Winkler.

The Supreme Court will most likely have to face the issue of guns outside the home at some point.  For now, Second Amendment enthusiasts, absolutists, and interest groups are praising the district ruling as a victory for civil liberties.