Legal Commentary

District Court Upholds Ban on Carrying Guns Into Church (Even With the Church?s Permission)

By Eugene Volokh

The case is GeorgiaCarry.org v. Georgia (filed today). The law was challenged by, among others, a minister, who said that he wanted to possess a gun at church, with the church?s permission; the law, as I read it (see § 16?11-127 and § 16?11-127.1) categorically forbids such possession at ?churches or church functions,? except by various government officials, and possibly private university security officers. (The court did, however, read the statute as not applying to gun possession by a minister who lives on church grounds, if the possession is within the residential part of the grounds, or to storage of the gun by the minister in a secured place in the minister?s office.)

The challengers argued, in essence, that the Free Exercise Clause prohibited laws that single out religious activities for special burden ? here, the burden is that if you want to engage in worship (either as a congregant or as a minister), you must surrender for the duration your ability to defend yourself with a gun. The court rejected that argument, reasoning that the burden is too slight to be unconstitutional (even when the law singles out religion, as it does here).

The challengers also argued that the Second Amendment?s protection of the right to bear arms in self-defense includes the right to do so in church (at least with the property owner?s permission). The court assumed without deciding that the Second Amendment is not limited to gun possession in the home, and did not rely on Heller?s dictum approving of restrictions on gun possession in ?sensitive places.? But it concluded that intermediate scrutiny ? under which a law must be substantially related to an important government interest ? was the proper test, at least for restrictions on gun possession outside the home. And it reasoned that intermediate scrutiny was passed:

Defendants? third objective, protecting the free exercise of religion, is an important governmental interest. The free exercise right is enshrined in the First Amendment to our Constitution. Although the Constitution protects a person?s right to free exercise only against governmental intrusion, it is clear that the protection of religious freedom against private bias or coercion is also an important governmental goal. See, e.g., 42 U.S.C. § 2000e-2(a) (prohibiting discrimination in employment on the basis of religion). Prohibiting the carrying of firearms in a place of worship bears a substantial relationship to that important goal by protecting attendees from the fear or threat of intimidation or armed attack.

The court did not discuss, as best I can tell, the counterargument that it?s impermissible to protect the free exercise of religion using means (gun carry bans) that the minister and the church do not want ? and that many attendees might likewise not want ? and that they see as endangering church attendees more than protecting them. (I realize that there might be disagreement among attendees on this, disagreement between the attendees and church officials, and disagreement between the church community and the government; but the counterargument still strikes me as a plausible objection to the court?s decision.)

Full post as published by The Volokh Conspiracy on January 24, 2011 (boomark / email).