Yesterday, a unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld a Maryland law requiring most gun owners to obtain a permit before they may carry a firearm outside of their home, business or their property. In the process, the court articulated a legal standard that could go a long way towards reining in the kind of ubiquitously armed society favored by fringe lobbying groups such as the National Rifle Association.
The Supreme Court’s decision in District of Columbia v. Heller, which held for the first time in American history that the Second Amendment protects an individual right to own a firearm, was not a particularly coherent opinion. It lists numerous limits on the right to bear arms, but also holds that the single most deadly weapon in the nation — handguns – enjoy special constitutional protection above and beyond that enjoyed by other, less deadly weapons. Nearly 8 in 10 gun murders in the United States are committed with a handgun. Similarly, although the opinion forbids an outright ban on handguns inside the home, it provides much less clarity about the scope of the Second Amendment elsewhere. Much of the opinion strongly suggests that the right to bear arms is far less robust outside of a person’s own home.
The Fourth Circuit’s opinion threads this needle by applying a two-tiered legal standard to gun laws. The court suggests that a law which directly burdens the core right to keep a gun in the home is subject to “strict scrutiny,” the highest level of skepticism judges typically apply to laws. But a law which burdens gun possession outside of the home is subject to less skeptical review — what lawyers call “intermediate scrutiny.”
The implications of this shift is that it allows judges to be far more respectful to the concerns animating the elected officials who enact gun laws when they determine whether or not those laws are consistent with the Second Amendment. The court’s opinion highlights numerous arguments justifying Maryland’s limits on carrying guns in public. Among them:
“Decreasing the availability of handguns to criminals via theft“: The court cites an explanation that “criminals in Maryland are constantly looking for ways to arm themselves with handguns, including by stealing them from others. It is not uncommon for criminals to obtain these guns during street altercations.”Preventing arguments from escalating into murders: Nearly half of all homicides occur after an argument or fight. As the court notes, reducing the number of guns in public places will decrease “the likelihood that basic confrontations between individuals would turn deadly.”Preventing fatal police errors: Contrary to the NRA’s claims that armed citizens will save lives by doling out vigilante justice to potential murders, the court notes that during a confrontation between police and a gunman “an additional person bearing a gun might cause confusion as to which side of the confrontation the person is on, which could lead to hesitation by the police officer and the potential for innocent victims, including the permit holder, innocent bystanders, and police officers.”Fostering good relationships between police and citizens: “If the number of legal handguns on the streets increased significantly, [police] officers would have no choice but to take extra precautions before engaging citizens, effectively treating encounters between police and the community that now are routine, friendly, and trusting, as high-risk stops, which demand a much more rigid protocol and a strategic approach.”Allowing police to focus their resources efficiently: “Increasing the number of people legally carrying handguns in the streets will also force [police] officers to spend more resources responding to reports about handgun sightings and engaging handgun carriers to ensure they are doing so lawfully.” Additionally, “[p]olice officers would also have a harder time identifying potential security risks if more people without good and substantial reason to carry a handgun were able to do so, making it more difficult to respond when necessary.”To be clear, the Fourth Circuit’s conclusion that gun rights are less robust outside the four walls of a gun owner’s home is far from novel. Heller itself implies such a distinction, and previous court decisions drew a similar line to the one the Fourth Circuit relied on yesterday. If this line is ultimately upheld by the Supreme Court, however, it could go a long way towards keeping dangerous guns off America’s streets.
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