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12/12/2012

Judge Posner on "Bearing Arms" outside the Home
Michael Ramsey

In yesterday's decision in Moore v. Madigan, the Seventh Circuit (Judge Posner writing for the majority) invalidated Illinois' ban on carrying loaded firearms in public.  For commentary, see here (David Kopel) and especially Eugene Kontorovich: The Seventh Circuit Keeps "Bear" in the Second Amendment:

Judge Posner held that “bearing” is a right that only makes sense in public, and thus must allow for carrying outside the home.

The right to “bear” as distinct from the right to “keep” arms is unlikely to refer to the home. To speak of “bearing” arms within one’s home would at all times have been an awkward usage. A right to bear arms thus implies a right to carry a loaded gun outside the home.

Indeed, the Second Amendment is about self-defense, and the need for that is greater outside the home, where one cannot as easily rely on passive defense mechanisms like locks and alarms. ...  The Seventh Circuit’s opinion is important for rooting a right to carry in the plain text of the Constitution, and eschewing elaborate historical or originalist inquiries. The next important question for a textualist is the scope of “arms.” But before then, this issue may be headed to the Supreme Court – the Second Circuit [ed.: in Kachalsky v. City of Westminster) upheld a similar ban, attaching no particular import to the word “bear.” (Instead, it relied heavily on 19th century state gun laws, which seem inapposite given that no one then would have thought the 2nd Amendment applied to the states.)

Professor Kontorovich's textualist take seems right to me.  I'd say that the right analysis in Heller should have rested, more than the majority made it, on the right to "keep ... arms"; it's hard to see how that phrase has meaning if it doesn't encompass a right to keep arms in the home (where else would you keep them?).  Thus Justice Stevens' dissent, focused on "bearing" arms as part of a militia, was actually beside the point: whatever "bear" means, "keep" means "have in the home."

It still might be possible, though, to argue with Justice Stevens that the right to "bear" means "bear" as part of a militia even though the right to "keep" attaches to the home.  That would produce something like the Second Circuit's result in Kachalsky (although the court didn't put it that way).  However, as Judge Posner says in Moore v. Madigan, the Supreme Court directly rejected Stevens' reading of "bear" (unnecessarily, I would add).  With the militia-based reading of "bear" unavailable, "bear" thus must mean "carry in public."  One would not speak of "bearing" arms just in one's own home.