Texas joins coalition seeking Supreme Court clarity on Second Amendment rights

By Bethany Blankley | The Center Square

Texas has joined 21 states led by the attorneys general of Louisiana, Arizona, and Montana in an amicus brief filed with the U.S. Supreme Court. The multistate coalition is asking the court to uphold Hawaiians’ Second Amendment rights to bear arms outside their homes in response to a 2020 Ninth Circuit Court of Appeals decision that upheld Hawaii’s ban on the practice.

The amicus brief also asks the Supreme Court to resolve a split among the federal circuit courts of appeal, several of which have ruled against the high court’s landmark 2008 decision in Heller, which upholds Americans’ Second Amendment rights.

“One of the highest responsibilities of a state is to safeguard the rights of its citizens,” the states argue in the brief, “including the right ‘to keep and bear arms under the Second Amendment.

“Law-abiding citizens keep firearms for self-protection – both inside and outside of their homes. Amici seek to ensure that their residents will not be deprived of their Second Amendment freedoms,” which includes using guns outside of the home, they argue.

“The plain text of the Second Amendment protects the right to bear arms, not just to keep them,” the brief states. “Yet Hawaii’s firearm carrying regulatory regime functions as an outright ban on the right to carry guns outside the home for most people. It, therefore, violates the Second Amendment.”

After the Supreme Court’s landmark decisions in District of Columbia v.Heller (2008) and McDonald v. City of Chicago (2010), “lower courts have applied inconsistent standards in Second Amendment challenges to state firearm restrictions,” the brief states. “Inconsistent decisions by the lower federal courts have left States uncertain as to the precise boundary between permissible and impermissible restrictions. These inconsistencies have also prevented citizens of amici States from exercising their right to carry and bear arms across State lines.

“The Ninth Circuit’s en banc decision has only made this uncertainty worse by failing to engage with the argument that Hawaii’s licensing scheme effectively amounts to a ban on carrying weapons – not merely a regulation,” they add, which is why they are asking the court to establish precedent to resolve the issue once and for all.

The First, Seventh, and D.C. circuits have all held that the Second Amendment extends outside the home. The Second, Third, and Fourth circuits reached conclusions inconsistent with this principle even though they did not reject it as the Ninth Circuit did.  

“The blatant misinterpretation of the Second Amendment by the Ninth Circuit must be remedied,” Texas Attorney General Ken Paxton said. “We are asking for the Court to simply uphold the Second Amendment as it is written. The lower courts have flagrantly disregarded the Supreme Court’s instructions in Heller, leaving the right to bear arms in jeopardy. We must have a clear and concise ruling that protects the Second Amendment from lower courts’ hostility to gun rights to prevent this type of infringement from happening yet again.”

The states joining the brief include Louisiana, Arizona, Montana, Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.