THE STATEMENT AT ISSUE:
“Barring guns from civilian patrols is a legal gray area since most U.S. citizens have the right to bear arms, said Kenneth Novak, a criminologist at the University of Missouri at Kansas City who has studied watch programs. ‘People participating in neighborhood watch enjoy all the legal protections under the Constitution, as well as state and federal law,’ he said. ‘That can include carrying a weapon.’ “
– Jonathan Kaminsky, Reuters news reporter, in a story published in The Washington Post on July 29, titled “Neighborhood patrols’ gun policies vary widely.”
WE CHECKED THE CONSTITUTION, AND…
The Second Amendment guarantees a “right to keep and bear arms” and, whatever those words meant at the time the Amendment was adopted in 1791, the Supreme Court has interpreted them to protect a personal right to have a gun for self-defense. It did that in the 2008 decision in District of Columbia v. Heller, a decision that applied only to the federal enclave of Washington, D.C. But that right was extended to the state and local level in a second decision, in the 2010 case of McDonald v. Chicago.
So far, though, one cannot say with confidence that the Supreme Court has provided constitutional protection for carrying a gun outside the home, for any purpose. Gun rights advocates strongly believe that, because the Supreme Court has said that the Second Amendment right was “fundamental” to personal liberty, that it surely extends to self-defense away from the home.
Lower courts – with one very notable exception – have been somewhat wary of that argument and have said that they would prefer to wait for further guidance from the Supreme Court. The problem is that the Supreme Court, so far, has not been willing to say anything further on the point.
As the U.S. Circuit Court of Appeals for the Seventh Circuit remarked in a ruling last December: “The Supreme Court has not yet addressed whether the Second Amendment creates a right of self-defense outside the home.” In the past three years, the Justices have had a half-dozen chances to take up that issue, but have chosen each time to deny review. They have done so without explanation.
Most recently, the Supreme Court refused to hear the case of Kachalsky v. Cacase, a Second Amendment challenge to a New York law that permits possession of a handgun outside the home only if one can show “proper cause” to do so. Upholding that law, the U.S. Court of Appeals for the Second Circuit said the scope of gun rights outside the home had not yet been settled by the Supreme Court.
The one important exception to the caution displayed by the lower courts on the constitutional scope of gun rights beyond the home was the Court of Appeals for the Seventh Circuit. Even while conceding that it was an open issue for the Supreme Court, that appeals court went ahead and extended the reading of the Second Amendment to include a right to have a concealed gun in public. Self-defense, it said, was no less important in public than in the home.
That decision came in the case of Moore v. Madigan. In response to that ruling, the Illinois legislature passed a new concealed carry law – making Illinois the last state to join the ranks of those with concealed carry statutes. The time for the state of Illinois to appeal to the Supreme Court has just expired, so that decision has become final without review by the Justices. It is not binding outside of the states in the Seventh Circuit: Illinois, Indiana and Wisconsin.
Obviously, the scope of gun rights outside the home has become a higher visibility issue in the wake of the George Zimmerman case in Florida – a case in which Zimmerman, a neighborhood watch volunteer, shot and killed black teenager Trayvon Martin during a nighttime confrontation in a gated community.
As a constitutional matter, it is unclear whether Zimmerman had a Second Amendment right to be armed. Thus, that right – for him as for any other neighborhood watch volunteer in any other state – depends upon what state or local law allows. Although all 50 states now have concealed carry laws, they vary widely in their detail.
As the Reuters story quoted above noted, the National Sheriffs’ Association has a neighborhood watch program that encourages communities to have such citizen policing efforts. According to the Association’s website, its program is called USAonWatch.
The manual for that program includes the following advice to watch groups: “Patrol members should be trained by law enforcement. It should be emphasized to members that they do not possess police powers and they shall not carry weapons or pursue vehicles. They should also be cautioned to alert police or deputies when encouraging strange activity. Members should never confront suspicious persons who could be armed and dangerous.”
The basic theory behind USAonWatch is that neighborhood watch programs should act as “eyes and ears” for local law enforcement, and not take on the job of policing by themselves.
The Association’s advice, of course, is not binding on anyone. And its manual does not represent an attempt to clarify what legal right a neighborhood volunteer has, or does not have, to carry a gun. If a particular watch program has a relationship with a local police force, those authorities no doubt can provide guidance on what the law in that jurisdiction permits.
In the meantime, the Second Amendment’s full meaning on the point will have to await further development in the courts, including – someday – the Supreme Court.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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