Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of ‘Bearing Arms’ for Self-Defense
104 Pages Posted: 27 Oct 2011
Date Written: October 25, 2011
This Article sheds light on the most important constitutional question opened up by the United States Supreme Court’s landmark decisions in District of Columbia v. Heller and McDonald v. Chicago: Does the Second Amendment “right to bear arms” include a right to carry handguns and other common weapons for self-defense outside the home? Some courts and commentators have declared that Heller held that the Second Amendment right is limited to the home, so that restrictions on handgun carrying do not even fall within the scope of the Second Amendment. Others assert that the potential applicability of the right to bear arms outside the home is simply a “vast terra incognita,” devoid of guidance, into which lower courts should hesitate to venture for prudential reasons.
These courts are mistaken about Heller and mistaken about the absence of guidance. As I show, Heller and McDonald have two holdings, not just one: they adopted a particular interpretation of the right to bear arms, then applied that understanding to the bans on handgun possession that were before them. The right that Heller adopted has a long tradition in the state courts, and that tradition supports a right to carry outside the home.
The centerpiece of the Article is an analysis of the past 190 years of state court constitutional precedent on arms carrying. I show that there have really been two different traditions of the individual right to bear arms: a defense-based right, under which courts construe the right to bear arms as protecting a meaningful right to carry handguns for self-protection, and a “hybrid” or civic-based right, under which gun possession is protected, but courts do not view self-defense as an important purpose of the right, and therefore uphold broad restrictions on weapons carrying. I show that Heller and McDonald embraced the first tradition and rejected the second. Once lower courts and scholars look to the correct line of precedent, they will find powerful arguments that the Second Amendment’s scope includes a right of individuals to carry handguns in public for self-defense.
Part I supplies a useful vocabulary for the discussion by distinguishing three different conceptions of the relationship between self-defense and the right to carry arms; these are the three competing models of the right. Part II then examines the Heller and McDonald decisions, and what they suggest about the scope of Second Amendment carry rights. Part III is by far the longest part of the Article. It conducts a detailed review of the long history of litigation in the state courts over the carrying of weapons, and shows that courts applying a defense-based, individual right to bear arms have regularly held that it includes a right to carry weapons outside the home. This right was particularly well protected in the period between the ratification of the Second Amendment in 1791 and the ratification of the Fourteenth Amendment in 1868, which Heller and McDonald teach is a critical period for originalist inquiry into the right to keep and bear arms. Finally, Part IV concludes by identifying lessons that the Article’s analysis implies for courts, legal scholars, and historians today.
Keywords: Second Amendment, Right to Bear Arms, District of Columbia v. Heller, McDonald v. Chicago, Concealed Carry, Shall Issue Laws, Open Carry, Handguns, Self-Defense, Right to Keep and Bear Arms, State Constitutional Law
JEL Classification: K10, K14, K39
Suggested Citation: Suggested Citation