Constitution Check: What does it mean that there is a right to “bear” guns?

In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’ The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”

While the NRA and its lawyers are sharply critical of the lower federal courts for failing to explicitly extend the Second Amendment beyond the confines of one’s home, there have been a couple of breakthrough decisions doing just that. For example, the Seventh U.S. Circuit Court of Appeals based in Chicago did so when it ruled unconstitutional an Illinois law banning the carrying of guns in public, at least when that was for the purpose of self-defense. That decision had seemed headed for the Supreme Court, but the state legislature chose to eliminate the ban and the appeal prospect vanished.

The lower courts that have declined to enlarge the right have seemed to be convinced that it would be a bold step to do so, and some have suggested that it should be up to the Supreme Court to make the ultimate decision on that point. The Court might be expected to step in to resolve the issue, if it were convinced that there is actually a true split on it among lower courts.

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