One Perspective: Packing heat in church ? a constitutional right?

Scott Forsyth, The Daily Record Newswire

Four years ago, the Supreme Court held for the first time the Second Amendment protects an individual’s right to keep and bear arms free of certain government regulation. The regulation in dispute was a ban on the possession of handguns, District of Columbia v. Heller, 554 U.S. 570 (2008).

Ever since various pro-gun groups have been testing the limits of the Supreme Court’s reasoning. One such group is GeorgiaCarry.Org. It is Georgia’s “no-compromise voice for gun owners.” It “believes citizens have the right to own and carry the firearm of their choice for any reason other than to commit a crime.”

GeorgiaCarry.Org regularly litigates. Being uncompromising, it finds itself often on the wrong side of many laws. Take Georgia’s “Carry Law,” for example.

In 2010, the Georgia legislature was concerned that the carrying of weapons would present an unreasonable risk of harm to persons who assemble in public places. So it enacted a ban on the carrying of weapons in eight specific locations, such as a government building, a bar and “a place of worship.”

GeorgiaCarry.Org took exception to the last location. The group, a church and two members of the group sued the state. One member “would like to carry a handgun” in church “for the protection of his family and himself.” The other member was the pastor of the plaintiff church. He wanted to carry a handgun at work to defend “his flock, his family and himself.”

The pastor did not identify the threats to the church. It may be tough, given its location 60 miles outside Atlanta in a “peaceful, rural” town of 10,000 folks.

The plaintiffs alleged the Carry Law violated their First Amendment right to the free exercise of their religion and their Second Amendment right to bear arms.

The district court dismissed the suit and in July the Court of Appeals affirmed, GeorgiaCarry.Org, Inc., v. State of Georgia, No. 11-10387 (11th Cir. 2012).

To prevail on a free exercise claim, a plaintiff must allege and prove that (1) he holds a belief sincerely held and religious in nature and (2) the law at issue in some way impacts his ability to hold the belief or act pursuant to the belief. Personal preferences and secular beliefs are not protected.

Once a plaintiff makes this demonstration, then a court will examine the government’s interest in the law either under the rational basis test or the strict scrutiny test, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeath, 508 U.S. 520 (1993).

Unfortunately for the plaintiffs, nowhere did they allege the carrying of a firearm in church was based on a religious belief. They wanted to do so for purposes of self-defense, a “personal preference” in the opinion of the appellate court. It rejected the first claim.

The court turned next to the Second Amendment claim. It cited Heller that the amendment merely “codified a pre-existing” personal right to keep arms. This right was “most acute” in the “defense of self, family and property” at home.

But does the Second Amendment extend to private property owned by others? Put another way, does the amendment trump the right of a private property owner to exclude a person who is carrying a weapon? The plaintiffs were forced to argue yes the amendment did. The court held otherwise.

The court looked at property law, torts law and criminal law as it existed as of the passage of the Second Amendment. All three fields recognized the right of the owner of private property to control the circumstances of one’s entry onto the property. If necessary, the owner could sue to vindicate the right and invoke the assistance of the state to maintain the peace.

Blackstone put the right of private property on the same plane as the right of personal security and personal liberty. The plaintiffs would subordinate the former right to the latter two rights, “turn(ing) Heller on its head.” This the court would not do.

Since the Carry Law was constitutional in at least one large application, the plaintiffs’ facial challenge on Second Amendment grounds failed.

The loss will not deter GeorgiaCarry.Org and groups like it from challenging restrictions on the ownership, possession and use of guns. So far the courts have upheld reasonable restrictions. Hopefully, this trend will continue.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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