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First Circuit Court of Appeals Rule No Right to Bear Arms Outside the Home

Second Amendment


First Circuit Court of Appeals Rule No Right to Bear Arms Outside the Home

U.S.A. -(Ammoland.com)- On 2 November 2018, the First Circuit Court of Appeals held the Second Amendment effectively does not apply outside the home.  From uscourts.gov:

This case involves a constitutional challenge to the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline. All of the individual plaintiffs sought and received licenses from one of those two communities to carry firearms in public. The licenses, though, were restricted: they allowed the plaintiffs to carry firearms only in relation to certain specified activities but denied them the right to carry firearms more generally. 

The plaintiffs say that the Massachusetts firearms licensing statute, as implemented in Boston and Brookline, violates the Second Amendment. The district court disagreed, and so do we. Mindful that “the right secured by the Second Amendment is not unlimited,” District of Columbia v. Heller, 554 U.S. 570, 626 (2008), we hold that the challenged regime bears a substantial relationship to important governmental interests in promoting public safety and crime prevention without offending the plaintiffs’ Second Amendment rights. Accordingly, we affirm the district court’s entry of summary judgment for the defendants. In the last analysis, the plaintiffs simply do not have the right” to carry arms for any sort of confrontation” or “for whatever purpose” they may choose. Id. at 595, 626 (emphasis omitted). 

The Court specifically said the decision applies to both open and concealed carry of handguns. They reserved the power to infringe on concealed carry more than open carry.

Judge Selya wrote the decision for the unanimous three-judge panel. They held that allowing police to decide if a citizen has a “need” to carry a gun outside the home allows sufficient exercise of Second Amendment rights.

A right that can be arbitrarily denied by the government is no right at all. It is effectively just another activity that may be allowed by the government if a bureaucrat decides to allow it.

In the most restrictive countries, without any semblance of Constitutional rights or the Second Amendment, those favored by the government are allowed to carry firearms outside the home. They may not be given a permit, they may be issued a nominal office such as police officer or special marshal, or party member. But those favored by the Government are given the privilege of being armed.

It is hard to see how this decision differs in effect from the practice in countries without a Second Amendment.

In this decision, the Court is following the lead of other Circuit courts that have eviscerated the Second Amendment right to bear arms.

To date, the Supreme Court has been unwilling to take any of circuit cases and has allowed the Circuits to run roughshod over the exercise of Second Amendment Rights outside the home.

There is a clear split in the circuits. At present, three circuits have held there is a right to carry outside of the home. Three have ruled the opposite.

In the case of the District of Columbia, those who push for a disarmed public urged the District not to appeal the case, for fear the Supreme Court would uphold the Second Amendment.  In the Seventh Circuit case of Moore v. Madigan, the Illinois legislature passed legislation rendering the decision moot. in the Ninth Circuit, in Young v. State of Hawaii, the state has asked for an en banc hearing, which has yet to be decided.

In the Fourth Circuit, the Second Circuit, and the First Circuit, the appeals courts have held that laws allowing state governments to prevent most people from carrying weapons outside the home are Constitutional, gutting the exercise of Second Amendment rights in public, and in most private settings.

Judge Selya was appointed by President Reagan in 1986. He was born in 1934.

If Judges do not feel bound by the Constitution, the Constitution will have no force.

This case will be appealed to the Supreme Court. The question is whether the Supreme Court will grant a writ of certiorari, that is, will decide to hear the case.

President Trump has appointed two originalists and textualists to the Supreme Court. That may tip the balance. They may vote to hear the case.

President Trump has also appointed  29 appellate court judges in his first two years. That is a record for appellate court justices in the first two years of a  president’s term in office.


About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.



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32 Comments

  1. Can Trump fire judges in the appeals courts? He certainly needs to if he can. Otherwise this business of California Judges making laws will kill our country.

    1. A president can not just fire federal judges. They can be impeached but it is “tradition” that judges not be impeached for their actual decisions, only for high crimes or misdemeanors. If you actually had enough congressmen that actually believed in our Constitution (i.e. strong conservatives), this might change.

      This is why elections are so important. We did fairly well with the senate this time but anyone who has studied our founding principles and love liberty should abhor the modern liberal Democratic Party… They should be so far in the minority that they should be in danger or being replaced by a third party!

      Term limits through a constitutional amendment, via an Article 5 convention, would be one way to address this… Judges with lifetime appointments tend to rule with their personal views, instead of with what the Constitution actually says…

    2. We do not need States and public officials who do not obey the law of the land – The Constitution. These people and barely constitutated States should be punished to the fullest extant of the law provided by our Constitution. The “Founding Fathers” or “framers” of the Constitution foresaw this coming over two centuries ago, and provided the Amendments and language in the Constitution to prevent persecution and tyranny being practiced by the States and public officials against the ownership and use of firearms in this Country – and they were so very right. I obey the Constitution, and no other law. I accept the present President, and Commander – in – Chief as my leader, and will not tolerate others who disobey our Constitution.

    1. That attitude, although may be justified, may not work out to well but it could cost you dearly and remove another pro 2nd person from the rolls.

  2. This makes no sense. Take action against use of firearms in commission of a crime don’t criminalize law abiding citizens exercise of their second amendment rights

  3. That is insane! Any victim of a crime that could not defend themselves, or the families of victims that are killed, should sue the criminal AND the members of the court for wrongful death and any other charges because the court would not allow the individuals to protect themselves. The court knowing full well that law enforcement could not, and cannot be everywhere to protect citizens.

    1. Law enforcement can’t do anything ’till after the fact! Guess what, that’s usually too late! Lawmaker’s and lawyer’s usually come from the same group of liars who only want CYA and a fat wallet!

  4. I 100% concur with you on this issue. Liberal Judges are attempting to Legislate from the Bench and that violates the separation of the 3 branches of government as outlined in the U.S. Constitution. It is time to force states, counties, and cities to follow the U.S. Constitution. Federal laws should always overwrite State and local laws. It is time to put the liberals out of power. Unfortunately, the house went back to liberals because they control almost all of the big cities. This is why we have the electoral college, it assures that those who do not live in big cities have equal say in who becomes the President. That is why the founding fathers created the Senate, to ensure that all states are equal in voting rights.

  5. It is a sad day in America when judges legislate from the bench. We are not as free as we think and as long as judges are permitted to ignore the constitution we are doomed.

  6. Just ANOTHER assault on our 2A rights….. What part of “ shall not be infringed” is not understood?????
    How much longer do you think law abiding gun owners will accept this BS???
    UNCONSTITUTIONAL !!!!

    1. It is not an assault on the 2nd! It is an assault on the whole constitution as the 2nd is the only protection for the rest. It is coming closer and closer to the time that the 2nd must be upheld.

      1. Exactly, Rd. Without the 2nd Amendment the rest of the U.S. Constitution becomes totally optional. The leftist, “progressive” socialists are fully aware of this; explaining why they lie, cheat, spin and scheme constantly to undermine our God given right to bear arms. I fear they will not stop until either they succeed, or they are disbanded.

  7. The outrage is understandable, but Federal Judges, once appointed, can only be removed from office by death, voluntary retirement, or Congressional Impeachment and conviction in the Senate. Judges are immune from prosecution or civil lawsuits for the decisions they make in accordance with their office. Hopefully, SCOTUS will eventually hear one or more of these cases and reaffirm that The Right of the People to Keep AND BEAR (emphasis mine) Arms Shall Not Be Infringed.

  8. What part of shall not be infringed doesn’t the Court understand. The Tenth Amendment also states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To me that means the States have no say in the application of the Second Amendment.

  9. That court did not go by the constitution. It went by the nazi rule. Take guns away then control the people. Just how many stupid people voted for a Democrat? Parents did not do their jobs raising their children to honor America and think. America is doom with the lawless democrat party in the house.

  10. Write to your Senators. If you are NRA member call them. America is in danger of communist taking over our Justice system. Call today!

    1. There are other 2nd amendment groups that work for our legal rights. Also contact The Second Amendment Foundation, the Citizens Committee for the Right to Keep and Bear Arms, and Gun Owners of America.

  11. As long as the decision by the Supreme Court that allows states to impose, REASONABLE RESTRICTIONS, any of the anti gun states will continue to be tyrannical to gun owners. Look up the definition of REASONABLE. IT’S the wrong word put in any decision or law. Until that is changed, we can complain about these anti gun states all day long that restrict gun owners rights. They will continue to do as they please in deciding who can carry outside home and in some states like NY, one needs a LICENSE to have and carry inside the home!

  12. Too bad the founding fathers included the words “A Well Regulated Militia” in the Second Amendment!!!
    Had they omitted those words, there would be NO DOUBT that ” The Right Of The People To Keep And
    Bear Arms” meant ALL the people, and not just the National Guard!
    Instead, we have all manner of hack judges, politicians,and ‘activists’ arbitrarily interpreting
    the Second Amendment to fit their anti-gun agenda!

  13. You agree with this, WTF is wrong with you, I’m out of here, you people are traitors or this guy who wrote the article is a BLUE DOG Republican SHEEPLE! I’m out of here!

  14. I have a question, my brother was killed by a robber outside his home. I have a legally owned guns and have the right to carry. Am I to understand that I can not defend myself and family outside my home? If this is true, could I sue the robber and the judge rendering this decision. I wonder

  15. There comes a time for all citizens of good sense to ignore the unconstitutional laws and decisions of their government. I believe that time is fast approaching if it is not already here.

  16. I’m sorry, who are these “judges”? Are they in grade school and haven’t heard of the Constitution yet? This has to be THE Most asinine judgement I have ever heard of. The Second Amendment has to do with a tyrannical government and I am curious how someone is supposed to defeat a tyrannical government from inside their home? To those who think “a well regulated militia” only applies to the national guard: in the days when the 2nd Amendment was created, it was based on the Swiss rule that all men, eventually all citizens after graduating high school, had to enlist in the military for a minimum of 3 years. After their service, they are required to maintain their weapon, which is issued for life, in serviceable condition and to maintain it with enough AMMO to be effective. In other words, all citizens who are capable, are members of the militia.

  17. Strikes me that there is just one way to describe this business of “law via judicial decree”, that being as follows. Pardon me for the following rather crude prose. Re Fucking Diculous.

  18. Actually there COURT you DO NOT have the right to tell people where they can and cannot carry a firearm for self defense PERIOD. In fact NO HUMAN has that Right PERIOD. You want to think you can try and tell me otherwise, Come get some, bring your own body bag and bring a couple extras for your lapdog pigs as well.

  19. Another commie group of village idiots. Hard to maintain a militia while sitting at home. Another group of childish libs trying to rewrite our laws from the bench.

  20. This has me hot. Where do they find these A-hole judges? Will they rule that you have the right to free speech- but only inside your home? The right to assemble and petition the government- but only inside your home? The right to vote- inside your home? If anyone needs to be impeached it’s these smug elitist jackasses that will tell you they’re following the Constitution while they take away your God given rights. And they serve for life. We can fervently wish for a black robe specific plague. Or, if President Trump is made aware, maybe he could start proceedings to unseat them. If, that is, the Democrats who now have the House don’t tie him up with hundreds of partisan investigations and fake impeachment charges. We can only hope.

  21. “The right of a citizen to keep & bear arms in lawful defense of himself & the state, is absolute. He does not derive it from the state government, it is one of the “high powers” delegated directly to the citizen & is excerpted out of the general powers of government. A law cannot be passed to infringe or impair it as it is above the law & independent of law making”
    Cockrum v. State 24Tex394 1859

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