March 11, 2012

DOES THE Second Amendment protect an individual right to carry a gun outside the home?

Last week, a federal judge in Maryland concluded that it does and in the process struck down a Maryland licensing provision for carrying concealed weapons in public.

Judge Benson Everett Legg of the U.S. Court of Appeals for the District of Maryland issued a thoughtful and measured decision but one that should be reviewed by the federal appeals court.

Maryland’s laws concerning concealed-carry permits are among the country’s most restrictive. To obtain such a permit, an applicant must undergo a criminal background check and provide employment verification and medical and psychiatric history. The board that assesses requests must also take into account an “applicant’s propensity for violence or instability,” and it must determine that the applicant has a “good and substantial” reason to carry a concealed weapon. Security guards, armored-car drivers and others whose professions expose them to danger often meet this latter requirement, but permits may also be issued to those who prove that carrying a concealed weapon is “necessary as a reasonable precaution . . . against apprehended danger.”

Until 2009, Raymond Woollard was one of the roughly 47,000 individuals in possession of a Maryland concealed-carry permit. Mr. Woollard obtained the permit in 2003 after his intoxicated son-in-law broke into Mr. Woollard’s home and threatened the family. The state renewed Mr. Woollard’s permit in 2006, shortly after the son-in-law was released from prison, but it refused to do so three years later after concluding Mr. Woollard could no longer prove he needed the permit for self-protection. Mr. Woollard sued, arguing that the state’s licensing scheme stomped on his Second Amendment rights.

Judge Legg agreed, building on the 2008 Supreme Court decision that the Second Amendment protects an individual right to keep and bear arms. The court emphasized the saliency of the right especially in the home and especially for self-defense. Judge Legg concluded that the Constitution and the high court’s holding must also be read to protect an individual’s right to carry weapons outside the home. Maryland’s “good and substantial” requirement impermissibly infringed on that right, he said.

“A citizen may not be required to offer a ‘good and substantial’ reason why he should be permitted to exercise his rights,” Judge Legg concluded. “The right’s existence is all the reason he needs.”

Maryland will appeal, as it should. Judge Legg makes a serious argument that the Maryland law impermissibly burdens the individual with proving he is entitled to exercise his rights; the burden should be on the government to show why an individual should be stripped of that right.

But the state has a duty to protect public safety, and careful oversight of who can walk around with lethal weapons may be a legitimate component of that. Judge Legg too quickly dismisses as a “rationing” scheme the state’s compelling interest in maintaining order in the public arena. Second Amendment rights should be respected, but public safety need not be thrown out in the process.