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In granting certiorari earlier this week, the Supreme Court will finally address the constitutionality of New York’s law. However, in granting review of the case, the Supreme Court narrowed the issue for review to “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” This question differed from that which the petitioners had sought review, namely “whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”
Both framings of the issue, however, squarely present the Supreme Court with the question of whether Heller and McDonald’s guarantee of an individual right to keep and bear arms is limited to the home. While several circuit courts have read Heller and McDonald as limited to the possession of guns within a home, Justice Thomas’ recent dissent (joined by Justice Kavanaugh) from the denial of certiorari in a gun case exposed the folly of such a view:
As this Court explained in Heller, at the time of the founding, as now, to bear meant to carry. When used with arms, . . . the term has a meaning that refers to carrying for a particular purpose—confrontation. Thus, the right to bear arms refers to the right 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 most natural reading of this definition encompasses public carry. Confrontations, of course, often occur outside the home. See, e.g., Moore, supra, at 937 (noting that ‘most murders occur outside the home’ in Chicago). Thus, the right to carry arms for self-defense inherently includes the right to carry in public.
This conclusion not only flows from the definition of bear Arms but also from the natural use of the language in the text. As I have stated before, it is extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. The meaning of the term bear Arms is even more evident when read in the context of the phrase “right . . . to keep and bear Arms. To speak of bearing arms solely within one’s home . . . would conflate bearing with keeping, in derogation of [Heller’s] holding that the verbs codified distinct rights. In short, it would take serious linguistic gymnastics—and a repudiation of this Court’s decision in Heller—to claim bear Arms does not extend the Second Amendment beyond the home.
Justice Thomas added to the above reasoning an analysis of “cases and treatises from England, the founding era, and the antebellum period,” all of which “confirm that the right to bear arms includes the right to carry in public.”
Of course, several justices are nonetheless likely to resort to linguistic gymnastics to avoid what they perceive as bad (or unpopular) policy. But will five justices stand firm? We will know next year.