Indeed Justice Ruth Bader Ginsburg, although she dissented in Heller, cited Black’s Law Dictionary to suggest in a prior opinion that the Second Amendment entails a right to “wear, bear, or carry .…. upon the person or in the clothing or in a pocket, .…. armed and ready .…. in a case of conflict with another person.” That language, says Michael O’Shea in the West Virginia Law Review, “reads like a literal description of the practice of lawful concealed carry, as engaged in by millions of Americans in the forty-eight states that authorize the carrying of concealed handguns.”
Of course, Second Amendment rights, like First Amendment rights, are not absolute. Scalia was careful to note that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Lawyers call such statements dicta — a statement not necessary to the holding and, therefore, not binding in other cases.
Nonetheless, dicta can be important. Gura, for that reason, took pains to fashion his new complaint to fit Scalia’s framework. The Palmer lawsuit acknowledges that Washington “retains the ability to regulate the manner of carrying handguns, prohibit the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns.” Restrictions on carrying are permissible, but an outright ban is not. As Gura put it, the District “may not completely ban the carrying of handguns for self-defense, deny individuals the right to carry handguns in non-sensitive places, [or] deprive individuals of the right to carry handguns in an arbitrary and capricious manner.”
Proponents of a total ban have seized on another of Scalia’s pronouncements in Heller. He pointed out that 19th-century courts considered prohibitions on carrying concealed weapons “lawful under the Second Amendment or state analogues.” That statement, too, is dicta. Perhaps more significant, open-carry rather than concealed-carry was the preferred mode of arms-bearing in the 19th century. To be sure, some states prohibited concealed-carry, but only because they allowed open-carry — an alternative that the District probably would reject. An early Georgia case, for example, upheld a concealed-carry ban but struck down an open-carry ban. Ditto for other cases cited in Heller. Essentially, the Second Amendment demands that peaceable citizens be allowed to carry defensive weapons in some manner. The right to bear arms can be limited, but it cannot be destroyed.
Prediction: The courts will (and should) invalidate Washington’s unconditional ban on carrying, as well as similar bans in Wisconsin and Illinois, the only two states to have such bans. Regulations consistent with the Heller opinion will be permitted. But the Supreme Court has affirmed that the Second Amendment secures an individual right, expressly enumerated in the Constitution. That means government has the burden of demonstrating that its proposed regulations are necessary.
