Does the constitutional right to armed self-defense extend outside the home? The Supreme Court didn’t address that issue when it a decade ago issued a landmark ruling affirming an individual’s right to keep firearms in the home for personal protection. Now, that question is on the front burner with a ruling by a federal appeals court that - if allowed to stand - would have alarming implications for public safety.
The decision underscores why gun-control advocates are concerned that Supreme Court nominee Brett Kavanaugh’s confirmation could mean a dramatic - and they believe dangerous - tilt against efforts to regulate gun safety.
In a case involving Hawaii and some of the country’s strictest gun laws, the U.S. Court of Appeals for the 9th Circuit recently ruled 2 to 1 that the Constitution protects the right to openly carry a gun in public.
“For better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” wrote Judge Diarmuid O’Scannlain in a 59-page opinion that hinges largely on the use of the word “bear” in the Second Amendment. By contrast, the state’s interest in limiting the public display of weapons was given short shrift.
Hawaii is likely to appeal to the larger appeals court, which has a more liberal tilt than the panel, composed of three judges named by Republican presidents. Two years ago, the court overturned a 2-to-1 opinion, also written by O’Scannlain, and found that the Second Amendment does not include a right to carry concealed guns in public. However the 9th Circuit rules on the related question of open carry, legal observers expect the matter, about which several appeals courts have disagreed, to end up at the Supreme Court.
The justices in recent years have shied away from cases involving gun restrictions. But the retirement of Justice Anthony Kennedy could usher in a new willingness to take on issues left unanswered by the 2008 District of Columbia v. Heller decision- and to strike down reasonable gun regulations. Disturbingly, Kavanaugh, breaking from two other Republican appointees in a follow-on case to Heller, adopted the extreme position - rejected by other courts that have examined the issue - that the District could not prohibit military-style assault weapons.
That’s concerning. While the lack of clarity from the court on gun issues in recent years has been frustrating, even more troubling would be an interpretation of the Constitution that backs away from the admonition that the right guaranteed by the Second Amendment, like other constitutional provisions, is not unlimited. As Justice Antonin Scalia advised in 2008, the Constitution does not provide “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Those words, along with Kavanaugh’s dissent on assault weapons, should serve as a basis for the Senate to use the nominee’s confirmation hearings to find out where he stands on open carry, as well as on other laws aimed at curtailing gun violence.