Wednesday, January 30, 2019
The Eighth Circuit ruled that the Second Amendment doesn't obviously protect the right to carry a concealed weapon in a vehicle. The ruling comes on the heels of the Supreme Court's decision to take up a case that could set the level of review for Second Amendment challenges.
The Eighth Circuit ruling came in a challenge to a federal criminal conviction for felon possession of a handgun. The defendant argued that the felon-possession ban violated the Second Amendment as applied to him. (Facial challenges have failed before, and would have failed here, under Heller, which said that a ban on felon possession is "presumptively lawful.") The court said part of the defendant's as-applied challenge necessarily included his particular circumstances--including the fact that he carried his gun on the floor board under the driver's seat of his vehicle--and that the Second Amendment protects that particular conduct. The court said that the defendant didn't argue that his particular conduct (again, including the fact that his gun was under the driver's seat of his vehicle) was protected by the Second Amendment, and therefore he forfeited his challenge.
But the court wrote that even if he preserved the challenge, he would have lost: "It is not plain or obvious that the Second Amendment protects Adam's conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle."
Judge Kelly concurred, but argued that the defendant's as-applied challenge shouldn't have hinged on the particular fact that the gun was concealed in a vehicle. Instead, it should have looked to whether the felon-possession ban met the Second Amendment standard given the defendant's "facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections."