The Second Amendment Right Extends Outside The Home, Pt 2

The Second Amendment Right Extends Outside The Home, Pt 2

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes – plural – of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Heller is self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v. Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely on reading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean ‘self-defense… as long as you’re in your home; but nowhere else’ because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify guns for self-defense in the home only as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘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” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

 

This article was originally published on Brenner Brief. Original publish date Nov 26, 2013. Original author, Matt MacBradaigh.

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2 Comments

  1. As written in the US Constitution, the Second Amendment expresses, as all Amendments to said Constitution express, a right which is protected from infringement by governments. All governments, federal, state and local. As the law of the land it protects ALL American citizens, no matter within which state or local juristriction, from search, seizure and/or confiscation for the alleged crime of suspected or actual possession of a firearm. And no legislature, federal, state or any subsidiary thereof has constitutional authority to make “law” or “ordinance” contrary to that fact. And any police agency which adheres to policy which allows searches for, seizes or confiscation of arms under such contrary legislation, ordinance or policy have been, are and will be in violation of the constitutional rights of the person or persons affected by such illegal search, seizure and or confiscation.

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  2. Even though I completely agree with you and believe that the once they find a way to circumvent the second amendment how long will it be before they start circumventing the rest…Obama is already trying to do that now and Hilary is just going to continue his work, lets not forget what the first Clinton did while in office.

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