The right to carry arms (re: DC v. Heller)

[Regen]

In the Majority Opinion, Justice Scalia wrote:

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment .

Does this indicate the in general the right to open carry is protected by the Second Amendment, subject only to some "special" limitations as outlined in point 2 of the Syllabus?

 

[AirForceShooter]

Heller defined the Right to have guns.
Not a word was said about carry either, concealed or open.

AFS

 

[Regen]

AFS, have you read the majority opinion? I quoted part of the it above, which clearly does mention carry. The essence of what I am asking is does that part of the opinion carry legal weight, or is it just considered preamble.

 

[cbrgator]

Every part carries weight but, no that does nothing for open carry.

All it says is ..."and carry weapons for confrontation"

It doesn't say open carry, it doesn't say concealed carry. It also doesn't define confrontation. It could mean a criminal or it could mean a tyrannical government. The Heller ruling is only that RKBA is an individual right. The rest must be further litigated, which is already underway.

 

[Frank Ettin]

The reference to "carry" is what is know as dicta. It is not part of the actual ruling because it is not necessary under the facts of the case litigated. Dicta can be persuasive and useful in a subsequent case, but it is not binding precedent.

 

[BBQLS1]

Just a random thought:

How is a homeless person's RKBA affected?

 

[everallm]

If you go to the DC gun case site http://www.dcguncase.com/blog/ and look at the finding document, the finding is the first three pages. Everything after that is informational, analysis, background and theorizing and not binding.

The section below to answer your question and why open carry is NOT protected

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, con-
cealed weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of fire-
arms in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

The case was solely about the wholesale banning of an entire class of firearms in common use and the mandatory storage requirement for a limited self rule federal enclave (DC).

The result included what could legitimately be called "judicial activism" as it also added, unasked, a ruling that finally rammed a stake in the heart of RKBA only in the context of "militia" usage.

The case did not ask and so could not place before the SC issues such as but not exclusively

Incorporation of 2A against the states
2A in the context of 9th and 14th amendment ruling
Level of scrutiny appropriate to 2A
What is "reasonable regulation"
What is NOT a weapon in "Common usage" and how is it defined (outside of handguns)
Are restrictions on non functional grounds (magazine capacity, barrel length, bayonet lug, pistol grip etc) inherently unconstitutional


This is why the current Chicago and California suits are so important as they both build upon the ruling as well as create case law.

 

[Mello]

Heller like most Supreme Court decisions limited its ruling to the issues presented by the case and left many issues untouched.

The Court in Heller did not rule on whether open carry is protected by the 2nd Amendment.

At least the U.S. now has a precedent that clearly states the Second Amendment protects the right of The People; an individual right, to keep and bear arms unrelated to a militia.

 

[Regen]

everallm, I believe what you quoted from the Syllabus and what I refer to as point 2. The actual decision was

We affirm the judgment of the Court of Appeals.

and as fiddletown states, everything else is Dicta, which is what I was looking for.

Going back to the appeal in Parker v. DC the descision was

For the foregoing reasons, the judgment of the district court
is reversed and the case is remanded. Since there are no
material questions of fact in dispute, the district court is ordered
to grant summary judgment to Heller consistent with the prayer
for relief contained in appellants’ complaint.

As going back further to the original case of Parker v. DC decision was:

Because this Court rejects the notion that there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution.

So, since that last decision was reverse and affirmed by the SCOTUS, we could rewrite it as:
The Court accepts the notion that there is an individual right to bear arms separate and apart from service in the Militia and plaintiffs have a viable claim under the Second Amendment of the United States Constitution.

Using the Dicta of the Heller decision states that bear this context means to carry and arms include handguns, one could reasonably assume that subject to restrictions in point 2 of Syllabus handguns may be carried.

It doesn't really define where they could be carried, or whether or not they could be concealed, but it seems to imply to me that there is an argument to be made.