Conservative Media Argue Same-Sex Marriage Ruling Creates Constitutional Right To Carry A Gun In Public

Conservative Media Argue Same-Sex Marriage Ruling Creates Constitutional Right To Carry A Gun In Public

Blog ››› ››› TIMOTHY JOHNSON

Conservative media used the Supreme Court decision affirming that marriage is a fundamental right of all Americans to argue that the Constitution also requires states to recognize concealed carry permits issued by other states. But the Supreme Court has never held that carrying a gun in public is a fundamental right.

On June 26, the Supreme Court issued a decision in Obergefell v. Hodges, holding that the Fourteenth Amendment requires that states issue marriage licenses to same sex couples.

Conservative media and the National Rifle Association (NRA) quickly seized on the decision to draw a parallel with concealed carry reciprocity, a top federal legislative priority of the NRA. Reciprocity legislation, also known as federally mandated concealed carry, would force states to recognize permits to carry concealed guns issued by other states, regardless of what the issuing state's standards are for issuing permits.

Reciprocity legislation has been introduced in both chambers of the U.S. Congress, but conservative media and the NRA view Obergefell as an opportunity to argue that the Constitution extends at least some right to reciprocal permit recognition regardless of whether Congress acts. The problem with that argument, however, is that the 2008 landmark Supreme Court case District of Columbia v. Heller limited the scope of the Second Amendment right to gun possession to people's homes.

Despite this, on the June 26 broadcast of the NRA's news show Cam & Company, host Cam Edwards made the argument that the marriage ruling "might present an additional argument to make at the legal level for extending reciprocity nationwide," remarking, "Since we're talking about licenses, a lot of gun owners are wondering, ok, does this, could this have an impact on the debate for instance over right-to-carry reciprocity?"

Prominent gun blogger Bob Owens went further, arguing that as a consequence of Obergefell, all other states and the District of Columbia "must honor" his North Carolina concealed carry permit "or violate [his] constitutional rights under the 14th and Second Amendment." 

Breitbart.com's AWR Hawkins made a similar claim, writing, "There seems no way to avoid the implication that a state ought to have to recognize a concealed carry license from another state, just as states are now required to recognize same sex marriage licenses from other states." The argument that Obergefell extends to concealed carry reciprocity also appeared at Guns.com, IJRReview, and BizPacReview.

The underlying claimed right that is essential to reciprocity -- the carrying of a concealed gun in public -- doesn't exist. In 2008, the Supreme Court struck down Washington, D.C.'s ban on keeping a handgun in the home in the case District of Columbia v. Heller. The holding from that case, however, only says that the Second Amendment encompasses the right to own a gun for use in lawful self-defense in the home.

The NRA and other gun rights groups have engaged in a multitude of litigation aimed at expanding the scope of the Second Amendment beyond the home, so far, unsuccessfully. In fact, in 2014, the Supreme Court refused to hear Drake v. Jerejian, a case that challenged on Second Amendment grounds whether New Jersey could force individuals who wished to carry a gun in public to provide a "justifiable need" to do so.

On June 8, the Supreme Court refused to hear Jackson v. San Francisco, preserving a federal appellate court's ruling that even within the home, the Second Amendment allowed regulations requiring gun owners to keep their firearms locked or on their person. Along those lines, even if the Supreme Court were to rule that carrying a gun in public is a fundamental right in the future, that doesn't mean states could not regulate that right.

Image via Flickr user Kelly Kline under a Creative Commons license.

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