In the days since the U.S. Supreme Court ruled that same-sex marriage is a constitutional right, gun-rights advocates have put forward an argument in response: If same-sex marriage is a fundamental right under the Constitution, why shouldn’t it apply to the concealed carry of guns?
Perhaps the courts, the thinking goes, could solve the hodgepodge of regulations and differences in laws between states on carrying a concealed weapon, just as they did with same-sex marriage last Friday. Some states, they say, are discriminating against some concealed-carry permit holders recognized in other states.
“I’ll be driving through the District of Columbia, Maryland, New Jersey, and New York in several weeks, places that until yesterday I did not have a legal right to concealed carry,” wrote Bob Owens, a blogger on bearingarms.com, after the same-sex marriage decision. “As of today, with this decision, it would seem that these states and the District must honor my concealed-carry permit, or violate my constitutional rights under the 14th and Second Amendment.”
Do the gun-rights proponents have a case? Let’s look at the facts:
What is the 14th amendment and how does it relate to the gay-marriage debate?
The 14th Amendment prohibits both state and local officials from depriving “any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It was adopted after the Civil War, when it was feared that newly freed slaves wouldn’t be granted protections under the law.
Justice Anthony M. Kennedy wrote last week in the court’s majority opinion in the same-sex marriage case, Obergefell v. Hodges, that marriage is a “fundamental” liberty and the 14th Amendment also protects “intimate choices that define personal identity and beliefs.”
Could it apply to laws that restrict carrying a concealed weapon?
Probably not. While the Supreme Court recognizes the right to bear arms under the Second Amendment, it has explicitly noted that the right comes with limitations.
In the majority opinion for the 2008 landmark case District of Columbia v. Heller, Justice Antonin Scalia references the concealed-carry debate. He makes clear that while the Heller decision decisively allows someone to own a gun for self-defense, it cannot be interpreted as an expansion of Second Amendment rights in other areas.
“Like most rights, the right secured by the Second Amendment is not unlimited,” he wrote. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”
Who is pushing the argument and are opponents worried it will gain traction?
But Jonathan Hutson, a spokesman for the Brady Campaign to Prevent Gun Violence, tells The Trace that he does not see courts looking favorably on the idea. States have a clear interest in determining laws that govern the carrying of concealed weapons, he says.
“States do not have compelling reasons to (prevent) two people in love from marrying but do have compelling reasons to restrict the carrying of concealed weapons,” he says. While the Second Amendment has been interpreted broadly to mean that people can bear arms, there is “no constitutional right to carry a concealed gun.”
[Photo: Flickr user Mark Fischer]