I don’t know if you’ve seen the Jennings v. McCraw decision. In it, U.S. District Judge Sam Cummings punted on addressing whether the 2nd Amendment actually allows a person to Constitutionally carry a firearm outside the home. There’s been a lot of flap on the Internet about it, of course, but not all of it is factual. Here are my thoughts, if you’re interested…
For starters, I disagree with Judge Cummings. I think the language of the 2nd Amendment is quite clear, and anyone researching the issue with any degree of honesty and integrity will draw the same conclusion whether they like it or not (and by researching, I mean actually reading the materials and notes of the Founders, and the documents and philosophies that informed their decisions).
That said – I’m reading a lot of folks saying that Cummings found that the 2nd Amendment does not protect the right to carry. Not so. What Cummings decision actually notes is that the previous Supreme Court decision related to the 2nd Amendment being an individual right was too narrow to provide guidance on the Jennings situation (that’s Heller, BTW), and “[a]bsent further guidance from controlling authority”, he was unwilling to assume that the 2nd Amendment would be found to also apply to the right to carry a handgun outside the home (Heller clearly allows it inside the home).
Frankly, I think Judge Cummings is being a wimp. I don’t know if he has a history of this sort of thing, or not. He seems to be very timid about applying the (relatively) common language 2nd Amendment to this situation – and uses this as an excuse to invalidate the plaintiff’s claim outright (the question put before the Court was originally “at what age does the right to carry vest” – the plaintiffs are all between 18-20 years of age, and the State of Texas doesn’t allow a person to get a CHL until they are 21). So, let me break it down…
The dictionary definition of the word “bear” quite clearly includes “to carry, bring”. So, “…and bear arms” clearly means “to carry or bring arms” (before you try to argue this, go do the afore mentioned research, please – I’ll be happy to point you at a good resource to start out with – read Scalia’s decision in the Heller case, too, as it’s a great summary of the material). Neither the Constitution nor the supporting, historical materials mention anything about the right to bear arms only being in one’s home – nor do they assert that the natural right to self defense only applies in the home. In fact, a number of the historical documents assert quite the opposite, that a lawful citizen requires armament for defense against thieves and the like.
Perhaps Judge Cummings doesn’t want to make an interpretation that’s later overturned. Certainly, that’s understandable – one doesn’t want the reputation of the Ninth District Court of Appeals, for instance. And, perhaps he knew that he wanted to deny the plaintiff’s case, and needed a failsafe way to do it. However, Heller already noted that the 2nd Amendment did not allow “anyone to carry anything anytime anywhere” (my paraphrase). All he had to say was that this was one of those times – that is, that the State of Texas has the right to restrict lawful carry to those above the age of 21.
Either way, it should have been clear this would be appealed (and it will be, according to the NRA-ILA, who were also a plaintiff on the case). But, in my opinion, Judge Cummings should’ve showed some common sense (and some stones) and just said that he thinks Texas has that right, and not that “SCOTUS didn’t say anything about it, yet, so I can’t possibly do that either”.
I don’t want to imply that I want activist judges on the bench (even if I agree with them) – I don’t consider reading plain English and applying it in a straight forward fashion to be “activist”, though. YMMV.