The 2nd Amendment's "right to keep and bear arms" is proving to be a right to keep a gun at home, but so far not a right to bear a loaded firearm in public.
The Supreme Court breathed new life into the amendment when it struck down strict handgun bans in Washington and Chicago and spoke of the "inherent right of self-defense."
But to the dismay of gun rights advocates, judges in recent months have read those decisions narrowly and rejected claims from those who said they had a constitutional right to carry a loaded gun on their person or in their car. Instead, these judges from California to Maryland have said the "core right" to a gun is limited to the home.
Now, the National Rifle Assn. is asking the high court to take up the issue this fall and "correct the widespread misapprehension that the 2nd Amendment's scope does not extend beyond the home."
Stephen Halbrook, an NRA lawyer, said "some judges have buried their heads in the sand and have refused to go one step further" than saying there is a right to have a gun at home.
The Brady Center to Prevent Gun Violence hailed the trend and called the high court's rulings a "hollow victory" for gun enthusiasts. "The gun lobby has tried to expand [the 2nd Amendment] into a broad right to carry any type of gun anywhere. And they have been almost unanimously rejected by the courts," said Jonathan Lowy, director of legal action. He conceded, however, that "this battle is far from over."
The uncertainty began with the Supreme Court itself. In 2008, Justice Antonin Scalia said the history of the 2nd Amendment shows it "guarantees the individual right to possess and carry weapons in case of confrontation." But other parts of his 5-4 opinion stressed there is no right to "carry any weapon in any manner," and that bans on "carrying concealed weapons were lawful" in the 19th century.
Since then, hundreds of lawsuits have been filed to challenge gun restrictions. In California, federal judges in San Diego and Yolo counties rejected suits from law-abiding gun owners who were denied "concealed carry" permits.
"The 2nd Amendment does not create a fundamental right to carry a concealed weapon in public," U.S. District Judge Morrison England ruled in May.
"That's the cutting-edge issue: whether the 2nd Amendment applies outside the home," said Chuck Michel, an NRA lawyer in Long Beach who has appealed the question to the U.S. 9th Circuit Court of Appeals.
State judges in Illinois, Maryland, Massachusetts and New York have also ruled recently that there is no constitutional right to carry a loaded gun for self-defense. And in Virginia, the U.S. 4th Circuit Court of Appeals upheld the federal conviction of a man who fell asleep in his car near Washington's Reagan National Airport with a loaded gun.
Despite setbacks in court, gun owners are winning on the political front. Now, 40 states grant concealed-carry permits to qualified gun owners. California, Maryland and Illinois are among the handful of states with large urban populations that deny most or all permits, except to those who show they face a specific danger.
Judges have been wary of second-guessing these restrictions. If the right to bear arms is to apply "outside the home environment, we think it is prudent to await direction from the [Supreme] Court itself," U.S. Judge J. Harvie Wilkinson, a prominent conservative on the 4th Circuit bench, wrote in March. "This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to 2nd Amendment rights."
The Supreme Court has two appeal petitions before it. In one, Charles Williams, a Maryland resident, is appealing his one-year jail term for carrying a legally registered gun in a backpack. The other involves Sean Masciandaro, the Virginia man who was convicted and fined for "carrying a loaded weapon in a motor vehicle" on national parkland.
Obama administration lawyers are expected to urge the court to steer clear of the issue. However, if the justices vote to hear it, the administration would have to argue that the right to bear arms does not extend to concealed weapons.
"We think if there is a 2nd Amendment right outside the home, it surely applies to law-abiding citizens carrying handguns for self-defense while traveling on public highways," said Antigone Peyton, a Virginia lawyer who represents Masciandaro. She said her client travels to put on exhibits of reptiles and sometimes sleeps in his car to save money.
In her petition to the high court, she said her client, "like millions of law-abiding gun owners, should be told the scope of his right to keep and bear arms in case of confrontation."