Does Heller Protect a Right to Carry Guns Outside the Home?

Abstract

In summarizing his opinion for the Court in District of Columbia v. Heller,' Justice Scalia wrote: "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." Yet, the challenged District of Columbia law did not merely forbid handgun possession in the home; it banned possession of unlicensed handguns anywhere in the District, and because the District prohibited the registration of handguns, the effect of the handgun ban, coupled with restrictions on the storage of licensed long guns, was to forbid most law-abiding private citizens from carrying firearms of any sort anywhere in public.

After Heller, can the District enforce its firearms prohibition in public? The question is of more than theoretical interest because tough enforcement of New York City's ban on public possession of firearms may have contributed substantially to the dramatic decline in the City's violent crime rate since the early 1990s. If the right recognized in Heller cannot be limited to the home, then some of the progress New York City has made in fighting crime could be in jeopardy, and more broadly, police departments around the country could lose an important tool-assuming (as I shall for present purposes) that the Court eventually holds that the Fourteenth Amendment incorporates the Second Amendment against the states and their subdivisions.

Keywords: firearm, handgun, handgun possesion in the home, second amendment, fourteenth amendment