Here is a sensible decision by a very repsected U.S. Court of Appeals judge who ruled the Amendment does apply outside the home.
Michael MOORE, et al., and Mary E. Shepard, et al., Plaintiffs-Appellants,
v.
Lisa MADIGAN, Attorney General of Illinois, et al., Defendants-Appellees.
See also
"Our conclusion that the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense is perhaps unsurprising—other circuits faced with this question have expressly held, or at the very least have assumed, that this is so. Moore, 702 F.3d at 936 ("A right to bear arms thus implies a right to carry a loaded gun outside the home."); see also, e.g., Drake, 724 F.3d at 431 (recognizing that the Second Amendment right "may have some application beyond the home"); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir.2013) ("We ... assume that the Heller right exists outside the home...."); Kachalsky, 701 F.3d at 89 (assuming that the Second Amendment "must have some application in the very different context of the public possession of firearms").
Given this consensus, one might consider it odd that we have gone to such lengths to trace the historical scope of the Second Amendment right. But we have good reason to do so: we must fully understand the historical scope of the right before we can determine whether and to what extent the San Diego County policy burdens the right or whether it goes even further and "amounts to a destruction of the right" altogether. See Heller, 554 U.S. at 629, 128 S.Ct. 2783 (quoting Reid, 1 Ala. at 616-17). Heller instructs that text and history are our primary guides in that inquiry.
1167*1167 One of Heller's most important lessons is that the Second Amendment "codif[ies] a pre-existing right" whose contours can be understood principally through an evaluation of contemporaneous accounts by courts, legislators, legal commentators, and the like. Heller, 554 U.S. at 603, 605, 128 S.Ct. 2783; see also McDonald, 130 S.Ct. at 3056-57 (Scalia, J., concurring) ("The traditional restrictions [on the keeping and bearing of arms] go to show the scope of the right."). Tracing the scope of the right is a necessary first step in the constitutionality analysis-and sometimes it is the dispositive one. See Heller, 554 U.S. at 628-35, 128 S.Ct. 2783. "[C]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them...." Id. at 634-35, 128 S.Ct. 2783. A law that "under the pretence of regulating, amounts to a destruction of the right" would not pass constitutional muster "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Id. at 628-29, 128 S.Ct. 2783. Put simply, a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down. Id.
We thus disagree with those courts— including the district court in this case— that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. See, e.g., Drake, 724 F.3d at 431; Woollard, 712 F.3d at 876; Kachalsky, 701 F.3d at 89; cf. Masciandaro, 638 F.3d at 475. Understanding the scope of the right is not just necessary, it is key to our analysis. For if self-defense outside the home is part of the core right to "bear arms" and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County's policy. See Heller, 554 U.S. at 634, 128 S.Ct. 2783 ("The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.").
Edward PERUTA; Michelle Laxson; James Dodd; Leslie Buncher, Dr.; Mark Cleary; California Rifle and Pistol Association Foundation, Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO; William D. Gore, individually and in his capacity as Sheriff, Defendants-Appellees.
Edward PERUTA; Michelle Laxson; James Dodd; Leslie Buncher, Dr.; Mark Cleary; California Rifle and Pistol Association Foundation, Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO; William D. Gore, individually and in his capacity as Sheriff, Defendants-Appellees.
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