another district court says the 2A does not stop at the front door

[ilbob]

http://volokh.com/2012/03/07/district-court-concludes-second-amendment-secures-right-to-carry-but-not-while-being-employed-for-a-felon/

While it is true that the Fourth Circuit has so far stopped short of expressly recognizing a Second Amendment right to keep and bear arms outside the home, this Court has no such hesitation. The Supreme Court itself has acknowledged a Second Amendment right to protect oneself not only from private violence, but also from public violence. See Heller, 554 U.S. at 594 (stating that, by the time of the founding, the right to have arms was "fundamental" and "understood to be an individual right protecting against both public and private violence."). The Heller Court additionally mentioned militia membership and hunting as keypurposes for the existence of the right to keep and bear arms. See id. at 598. Confining the right to the home would unduly eliminate such purposes from the scope of the Second Amendment's guarantee.

 

[Al Norris]

Despite the fact that this was a criminal case (which the defendants lost), coming on the heels of Judge Legg's decision in Woollard should merit more than one post.

Expanding upon what Ilbob wrote, above, we have these two paragraphs and their footnotes to show the legitimacy of the right to carry, outside the home.

While it is true that the Fourth Circuit has so far stopped short of expressly recognizing a Second Amendment right to keep and bear arms outside the home,[sup]5[/sup] this Court has no such hesitation. The Supreme Court itself has acknowledged a Second Amendment right to protect oneself not only from private violence, but also from public violence. See Heller, 554 U.S. at 594 (stating that, by the time of the founding, the right to have arms was “fundamental” and “understood to be an individual right protecting against both public and private violence.”). . .

. . . The Court joins in Judge Niemeyer’s conclusion and holds that the Second Amendment, as historically understood at the time of ratification, was not limited to the home.[sup]7[/sup]

[sup]5[/sup] In fact, the Fourth Circuit has expressly declined to address the first step in the Chester analysis at least four times. See Carter, 2012 WL 207067, at *4 (summarizing the Fourth Circuit’s deferral in reaching any conclusion about the scope of the Second Amendment’s protection under step one in Chester, 628 F.3d 673, Masciandaro, 638 F.3d 458, and Staten, 666 F.3d 154). Despite those declinations, this Court is in agreement with Judge Niemeyer’s statements in Masciandaro that such constitutional avoidance is inappropriate when, as here, a federal court is directly confronted with the contention that a firearm regulation violated a defendant’s Second Amendment rights. See 638 F.3d at 468 n.* (Niemeyer, J., writing separately as to Part III.B.).

[sup]7[/sup] The fact that courts may be reluctant to recognize the protection of the Second Amendment outside the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses.

Both Judge Johnston and Judge Legg use quotations from 4th Circuit Judge Niemeyer's separate analysis in Masciandaro. Note well, Judge Johnston's characterization of the other courts that have refused to actually apply the guidelines left by Heller and McDonald (footnote 7, above).

So where does that leaves us (or the many carry cases, now in progress)?

We have a persuasive opinion in Ezell (7th Circuit) that implicates carry outside the home (despite the fact that the other district courts have dismissed the implication), that is now bolstered by two district courts that have concluded that carry, outside the home, is among of the protections afforded by the second amendment.

This is going to give some pause to not only the remaining district court carry cases, but certainly to those cases now at the various circuit courts.