(Denver, Colorado) – In yet another decision that thumbs its nose at the Supreme Court’s landmark D.C. v. Heller and McDonald v. Chicago rulings, the Tenth Circuit Court of Appeals held today that the Second Amendment does not protect gun rights outside of one’s home. The case, Bonidy v. United States Postal Service, challenged 39 C.F.R. § 232.1(l), which prohibits the storage and carriage of firearms on USPS property. The district court decision found that the law was unconstitutional as applied to its prohibition on guns in parking lots, but not the ban on carry inside government buildings.
Circuit Judge David M. Ebel–another Ronald Reagan appointee to decide against gun rights–was joined by Circuit Judge Gregory A. Phillips (appointed by Barack Obama) in the decision:
We….conclude that the regulation is constitutional as to all USPS property at issue in this case, including the Avon Post Office parking lot, because the Second Amendment right to bear arms has not been extended to “government buildings.” Government buildings, in this context, includes the government owned parking lot connected to the U.S. Post Office. Alternatively, even if we were to conclude that the parking lot did not qualify as a “government building,” we would uphold this regulation as constitutional as applied to the parking lot under independent intermediate scrutiny.
Ignoring McDonald‘s command that the Second Amendment does not protect “second-class” rights, the Tenth Circuit held that “[t]he risk inherent in firearms and other weapons distinguishes the Second Amendment right from other fundamental rights that have been held to be evaluated under a strict scrutiny test, such as the right to marry and the right to be free from viewpoint discrimination, which can be exercised without creating a direct risk to others.”
But the Supreme Court expressly rejected that argument in 2010 when it struck down the City of Chicago’s handgun ban. Justice Alito, writing for the majority, said:
The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“The exclusionary rule generates `substantial social costs,’ United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)(reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”);Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting); id., at 542, 86 S.Ct. 1602 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases . . . will return a killer, a rapist or other criminal to the streets . . . to repeat his crime”); Mapp, 367 U.S., at 659, 81 S.Ct. 1684.
According to the Tenth Circuit, however, “even assuming a right to bear firearms outside the home, and even if, contrary to our ruling above, the parking lot is not itself considered part of a ‘government building,’ we conclude that any such right Bonidy might possess was not violated here by 39 C.F.R. § 232.1(1) precluding him from possessing a firearm in the postal parking lot.”
Circuit Judge Timothy Tymkovich (appointed by George W. Bush) dissented in part, saying:
First, I would explicitly hold in this case that the Second Amendment applies outside the home instead of assuming but not deciding it does, as the majority concludes….Second, I would affirm the district court’s invalidation of the regulation as applied in the parking lot.
However, he also noted that “the list and the facts of this case ultimately lead me to concur in the judgment regarding the post office building.”
On June 8, 2015, the Supreme Court yet again denied review to a federal gun rights lawsuit where a lower court upheld a gun control law that appeared to directly conflict with the Heller decision. In an uncommon published dissent from the Court’s decision to not take up the case, Justice Clarence Thomas, who wrote a concurring opinion in McDonald, said:
“We warned in Heller that [a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”
Thomas was joined in his dissent by Justice Antonin Scalia, who authored Heller.
BOTTOM LINE: It appears that, until the nation’s highest court decides to protect the expressly enumerated Second Amendment right to keep and bear arms as strongly as it does non-enumerated rights like gay marriage and abortion, law-abiding American gun owners are simply left to watch lower courts unravel the Constitution and our fundamental, individual right to keep and bear arms in decisions like Bonidy.
- Supreme Court Deals Blow to Gun Rights While Justice Thomas Delivers a Silver Lining
The Constitutionality of Social Cost (John Blackman, 34 Harv. J.L. & Pub. Pol’y 951, 986 (2011))