Second Amendment applies to carrying guns in cars

So say two of the three judges on an Ohio Court of Appeals panel, in State v. Shover (Ohio Ct. App. Feb. 5, 2014) (Carr, J., concurring in the judgment, with Hensal, J., agreeing on this score) (some paragraph breaks added) — and generally quite correctly, it seems to me:

I concur in judgment only on the basis that I would conclude that the individual right to bear arms contained in the Second Amendment extends to motor vehicles….

Because the statutes at issue in both Heller and McDonald dealt specifically with handgun restrictions within the home, the court’s central holdings in those cases “did not define the outer limits of the Second Amendment right to keep and bear arms.” However, the Heller court did undertake a careful and deliberate analysis of the meaning of both the prefatory and operative clauses of the Second Amendment, and concluded that the amendment, at its core, ensured the individual right of all Americans to have and carry weapons in case of confrontation. Heller, 554 U.S. at 579–603. While the court acknowledged that the right was not unlimited, it repeatedly emphasized that the Second Amendment secured an individual right that existed outside the context of an organized militia, and that the individual right to bear arms existed for self-defense purposes. Undoubtedly, in light of the Supreme Court’s decision in Heller, “[t]he Second Amendment … is now clearly an important individual right, which should not be given short shrift.”

As the Seventh Circuit has observed, “one doesn’t have to be an historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.” Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). It is axiomatic that the need to act in self-defense may arise outside the confines of one’s home, and specifically in a motor vehicle. The Ohio General Assembly expressly acknowledged this reality by enacting R.C. 2901.09(B), which provides that a person who is lawfully an occupant of either a “residence” or “vehicle” has “no duty to retreat before using force in self-defense or defense of another.”

Though Heller and McDonald say that “‘the need for defense of self, family, and property is most acute’ in the home,” that language does not mean that the need for defense of self, family and property never arises out of the home. Moore, 702 F.3d at 935. In fact, by using the modifier “most” in front of “acute,” the court acknowledged the need for self-defense in places other than the home. As the Second Amendment primarily ensures the right of an individual to bear arms “in case of confrontation,” surely the contours of that right would extend to situations where an individual would need to act in self-defense outside the individual’s home. Heller, 554 U.S. at 592.

Moreover, because the court identified reasonable restrictions such as “carrying [] firearms in sensitive places such as schools and government buildings,” the court clearly acknowledged that the scope of the Second Amendment reaches beyond the home. Heller, 554 U.S. at 626–627. Otherwise, such “restrictions” need not be identified or examined….

Furthermore, it is significant that the language of the Second Amendment protects the right of the people to both “keep and bear Arms.” (emphasis added). I agree with the Seventh Circuit’s observation that “The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home. To speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.” Moore, 702 F.3d at 936.

In the instant case, I would hold that the right to bear arms ensured by the Second Amendment does, in fact, extend to motor vehicles. I would further conclude that R.C. 2923.16(B) is narrowly tailored to serve a significant government interest, and that it adequately leaves open alternative means for an individual to assert his or her Second Amendment right to bear arms. [Volokh adds: In context, those "alternative means" refers to Ohio's shall-issue licensing system.]

The view that the Second Amendment protects some sort of right to carry guns outside the home remains the minority view among post-Heller appellate courts, but it’s a substantial minority, and this decision adds to that minority. The “no right to carry in public” side, more or less, includes Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); People v. Dykes, 209 P.3d 1, 49 (Cal. 2009); Little v. United States, 989 A.2d 1096 (D.C. 2010); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010); Williams v. State, 10 A.3d 1167 (Md. 2011); Commonwealth v. McCollum, 945 N.E.2d 937 (Mass. App. Ct. 2011); and People v. Perkins, 880 N.Y.S.2d 209 (App. Div. 2009). Indeed, McCollum went so far as to say that possessing a gun in someone else’s home can be punished, without regard to whether the resident has allowed or even asked the gun owner to bring the gun. (UPDATE: I say “more or less” because some of these courts assume the existence of such a right, but find that restrictions that are close to bans on the right are nonetheless constitutional, because the government interests in restricting carrying trump the right; in effect, that’s pretty much a “no right to carry in public” conclusion.)

The “right to carry in public” side — though subject to regulations, such as shall-issue licensing schemes — consists of Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); People v. Aguilar (Ill. 2013); State v. Christian, 307 P.3d 429 (Ore. 2013); People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012) (dictum); Ex parte Roque Cesar Nido Lanausse, No. KLAN201000562 (P.R. Cir. 2011) (seeming to hold this view); Hertz v. Bennett, 751 S.E.2d 90 (Ga. 2013) (Blackwell, J., concurring, for three of the seven Justices); and now this two-judge position in the Ohio Court of Appeals.

UPDATE: Many thanks to Alan Gura for reminding me about the Oregon and Georgia cases.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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