The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review
55 Pages Posted: 5 Oct 2011 Last revised: 3 Aug 2012
Date Written: October 5, 2011
In the wake of District of Columbia v. Heller and McDonald v. City of Chicago there have been numerous legal challenges to extend the Second Amendment outside the home. The challenges come in all forms. Some advocates rely on Heller’s dicta to claim handguns provide the quintessential self-defense weapon outside the home. Other’s take a balancing of liberty approach to claim any threats to the liberty, security, and property of a person know no bounds, and must be preserved with the public carrying of arms. Lastly, some challenges invoke First Amendment jurisprudence to assert that any prior restraints on armed individual self-defense are unconstitutional, unless the government can show a compelling or substantial government interest for doing so.
In terms of historiography, what makes these challenges interesting is they are a complete reversal from the gun lobby’s stance nearly three decades earlier. Writing in 1983, Don B. Kates determined the Second Amendment did not protect the right to carry guns outside the home, unless 'in the course of militia service.' 'Outside of that context,' wrote Kates, 'the only carrying of firearms which the amendment appears to protect is such transportation as is implicit in the concept of a right to possess - e.g., transporting them between the purchaser or owner’s premises and a shooting range, or a gun store or gun smith and so on.'
Today, however, the view of the Second Amendment has drastically changed. Following the opinions in Heller and McDonald, advocacy groups are pushing for robust Second Amendment rights outside the home. This includes rights to open carry, conceal carry, and even a revisionist libertarian spin of William Blackstone’s analysis on auxiliary rights. Needless to say, the Second Amendment is continuing to morph further into mythical meaning, and farther away from any historical context.
How is this being accomplished? One answer is revisionist history. This occurs in all areas of constitutional law from the First Amendment to congressional power over immigration, and is not limited to the Second Amendment. Revisionism surfaces as a means for individuals, advocacy groups, public interest groups and even politicians to advance an agenda through the courts rather than adopt legislation or constitutional reform. In short, revisionist history is a reeducation of the public to believe a historical fiction was in fact a historical reality.
In terms of the right to 'keep and bear arms' in public places, this means diminishing the founding generation’s understanding of the police power to only a few minor exceptions. The founders are recast as a gun-toting civil society where every individual’s life is portrayed as more constitutionally significant or equal to society’s interest in preserving the peace and ensuring the public good. In other words, it is being asserted that an armed society facilitates the peace as much as a well-regulated government or society. While this mythical Second Amendment has garnered acceptance among some of the masses, politicians, and gun advocates, the historical evidence does not support this conclusion. Indeed, the founding generation saw a great importance for arms bearing in the advancement of the Early Republic, but not in the manner it is cast by gun proponents.
Another way the Second Amendment is being recast is through inventive legal strategies. Those that advocate for a robust Second Amendment outside the home seek solace in libertarian doctrine and First Amendment jurisprudence. These approaches wish to cast aside history as inconclusive, and claim armed individual self-defense as equally fundamental in time, place, and manner as other constitutional rights, such as freedom of speech or religion. In particular, it is argued that the Second Amendment has finally been recognized as fundamental, and the courts must begin jurisprudence anew to reflect this fact.
This article disagrees that the courts need to reinvent or recast the Second Amendment outside the home to reflect its 'fundamental' status as recognized in Heller and McDonald. The history of public arms regulation already provides significant guideposts for the courts to adjudicate the right to 'keep and bear arms' in public. To accomplish this, it requires placing history in context and not letting mythical interpretations or historical assumptions to permeate.
Thus, this article begins by decoding the public carrying of arms as the founding generation would have understood it. It provides substantiating historical evidence that counters the mythical meanings of the Statute of Northampton, and proves that the Statute did not solely seek to regulate a particular conduct with the intent to terrify, but the activity of carrying arms among the public concourse. It was the act of carrying arms itself that was deemed to terrify the people, for it was thought to be uncommon and unsafe to go armed in a well-regulated society. Such conduct ran counter to the idea of government authority and the police power.
In addition to this showing, this article weighs the historical approach against others, particularly libertarian balancing and the importation of First Amendment jurisprudence into the Second. To apply either of these latter approaches would be unprecedented in the pantheons of arms regulation history and American jurisprudence altogether. Not once did the founding generation conflate public arms carrying with a presumption of liberty or prior restraint. Instead, arms regulation was premised on what was in the interest of the public good.
Keywords: Second Amendment, McDonald v. City of Chicago, District of Columbia v. Heller, Statute of Northampton, public carry, conceal carry, originalism, historical guideposts, First Amendment, bear arms, keep arms
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