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Circuit Court: 'Unsettled' if 2nd Amendment Applies Outside of Home

AWR Hawkins

Aug 5, 2013

In a case over New Jersey's requirement that a citizen demonstrate "justifiable need" for a carrying a firearm before receiving a concealed carry license, the U.S. Court of Appeals for the Third Circuit ruled that such a requirement "does not burden conduct within the scope of the Second Amendment's guarantee." The court also said "it remains unsettled" whether the Second Amendment is even applicable outside one's home.

Filed on July 31, 2013, the ruling in Drake v. Filko upheld New Jersey's practice of placing the burden of proof upon the citizen. In other words, the citizen who wants to carry a gun for self-defense must demonstrate why doing so is necessary for him or her. In simple terms, the citizen must justify being free.

That runs contrary to previous rulings in other circuits, such as on March 6, 2012 when U.S. District Judge Benson Everett Legg ruled against Maryland's requirement that citizens who wanted a concealed carry permit had to demonstrate a "good and substantial reason" for getting one. Overturning this New Jersey-like requirement, Legg ruled: "A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights. The right's existence is all the reason he needs."

As for the Third Circuit's claim that "it remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home," the court said the previous decisions in District of Columbia v. Heller (200 and McDonald v. City of Chicago (2010) "made clear" that "Second Amendment guarantees are at their zenith within the home."

This is a continued attempt to frame the idea of an "individual right" to bear arms as something that was just recently postulated in 2008 via Heller. The Third Circuit's decision said as much: "In 2008, the Supreme Court explicitly recognized for the first time that the Second Amendment confers upon individuals a right to keep and bear arms for self-defense."

And because the Third Circuit views the individual aspect of the right as a recent development, it also holds that we do not yet know the extent of it. In other words, is it a right only in one's home or does it extend to the places to which one travels throughout the day as well?