Contributor, The Volokh Conspiracy

Federal appellate courts and state high courts are split on whether the Second Amendment secures a right for law-abiding adults to carry guns outside the home, and not just possess them in the home. Several federal appellate courts have generally held that states may, if they want to, sharply limit such carrying (e.g., by giving licenses only to people that the police view as unusually vulnerable to attack). The U.S. Court of Appeals for the 7th Circuit and the Illinois Supreme Court, though, have held that the Second Amendment does generally entitle law-abiding adults to carry guns in most public places, though the government may require licensing and training, and regulate how guns are carried. The Florida Supreme Court has stated the same, and some other courts have opined on the matter as well.

The Supreme Court, however, has refused to resolve the issue, and Monday it has done so again, by denying review in Peruta v. California. Most of the justices didn’t explain their decision, which is not a judgment on the merits of the question. (Lower court decisions going both ways still stand in their respective jurisdictions.) But Justice Clarence Thomas, joined by Justice Neil Gorsuch, argued that the Supreme Court should have heard the case, and also that it should have recognized a right to carry:

Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.

As we explained in Heller, to “bear arms” means 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. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. … “To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court[.]” …

The relevant history appears to support this understanding. The panel opinion below pointed to a wealth of cases and secondary sources from England, the founding era, the antebellum period, and Reconstruction, which together strongly suggest that the right to bear arms includes the right to bear arms in public in some manner. For example, in Nunn v. State (Ga. 1846) — a decision the Heller Court discussed extensively as illustrative of the proper understanding of the right — the Georgia Supreme Court struck down a ban on open carry although it upheld a ban on concealed carry. Other cases similarly suggest that, although some regulation of public carry is permissible, an effective ban on all forms of public carry is not. See, e.g., State v. Reid (Ala. 1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry. The Court in Heller emphasized that “self-defense” is “the central component of the [Second Amendment] right itself.” This purpose is not limited only to the home, even though the need for self-defense may be “most acute” there. “Self-defense has to take place wherever the person happens to be,” and in some circumstances a person may be more vulnerable in a public place than in his own house. …

For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.