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Old March 7, 2010, 09:01 PM   #39
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Also, do you believe that the court will look at public carry in the same way it looked at keeping a handgun in the home? Does the home receive special treatment that public activity might not?
Public carry is not viewed, by the population or the law, the same as keeping a handgun in the home. To some extent, the latitude that can be exercised in self-defense progresses from someone else's property, to neutral ground, to your property, and finally to your home - your "castle" or final refuge. But that is a question of the application of the right. I am more interested in the scope of the right.

McDonald presents no question about carry, so the Court would normally not address the issue. However, Stevens' theory of "core" versus non-core aspects of a right may open an unanticipated topic for the Court to consider. Stevens posed the following question during oral arguments:

I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
If Stevens writes a dissenting opinion that includes the concept that keeping a gun at home is more important, and subject to greater legal protections, than carrying a gun away from home, he will have introduced the topic of carry, or more broadly the meaning and importance of "bear." Once the topic is introduced, the majority will have the chance, and will nearly be obliged, to refute that view of the scope of the Second Amendment.

The decision in Heller covered both the "keep" and "bear" aspects of the Second Amendment:

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
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But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
The opponents of RKBA in McDonald appear to have ceded the "keep" aspect of the Second Amendment, but are testing the waters to challenge the "bear" aspects of the Amendment. If they mount that challenge in a dissenting opinion, it will present the majority with a reason to further explain the scope of "bear," which could have reasonably direct and positive implications for concealed carry.
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