Judicial Toleration for Negative Externalities of Bearing Arms in Public - Addressing the Second Amendment Circuit Split

30 Pages Posted: 5 Dec 2016 Last revised: 15 Dec 2016

See all articles by Betty Craipo

Betty Craipo

Gonzaga University - School of Law

Date Written: December 3, 2016


Historically, Second Amendment objections to firearm regulation did not present itself. Even upon objection, longstanding prohibitions on who may possess firearms, what type of firearms, and how and where possession occurs have been consistently upheld. Recently, a few circuit courts have introduced a “why” question of the necessity of arming for the bearer. These courts have placed more weight on the negative externalities of bearing arms than on law-abiding citizen’s right to self-defense in public.

Several circuit courts have held that the government can refuse to permit a law-abiding citizen to bear arms in public unless the citizen has a particularized reason why he or she needs a concealed firearm for self-defense. In contrast, sister circuit courts have held that the restrictions on bearing arms in public have gone too far when the burden is placed on law-abiding citizens to demonstrate why they need a firearm to ward off a specific dangerous person. Requiring this “why” veers far off from the longstanding prohibitions on possession in sensitive places and possession by those who have proven themselves dangerous to society. Law-abiding citizens have proven their right to bear arms by their conduct and these “why” restrictions conflict with their recognized right to be “armed and ready for offensive or defensive action in a case of conflict with another person.” Nevertheless, several circuit courts continue to shift the burden away from the government proving it has the power to restrict a law-abiding citizen’s rights. This shift has placed the burden on the shoulders of law-abiding citizens to prove they have the right to defend themselves.

These courts ignore the implication of the Supreme Court’s analysis that the constitutional right of armed self-defense is broader than the right to simply have a gun in one's home and that armed self-defense is the central component to Second Amendment rights. In spite of this, these courts have banned a large swath of law-abiding citizens from bearing arms in public, while not considering whether they could bear arms openly in their respective states. For although it was established in 1897 that a prohibition on carrying concealed weapons does not infringe upon Second Amendment rights, carrying arms was never considered a right that could be prohibited for the law-abiding.

Nonetheless, the judiciary in general has justified restricting access to firearms in order to “promote public safety and eliminate negative externalities.” The objective of the judiciary is to perform a balancing of individual liberties and negative externalities. However, when it comes to the bearing of arms by the law-abiding, the Second Amendment “is the very product of an interest balancing by the people” that the court should not “conduct anew.” Therefore, outside of the “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places,” law-abiding citizens do not need a “why” to bear arms because the Constitution gives them the right to “judicial toleration of the negative externalities” of bearing arms in public.

Keywords: Second Amendment, Concealed Carry, Bearing Arms, Keep and Bear Arms, Negative Externalities, Judicial Toleration, Open Carry, Right to Bear Arms, Circuit Courts, Circuit Court Split, Longstanding Prohibitions

Suggested Citation

Craipo, Betty, Judicial Toleration for Negative Externalities of Bearing Arms in Public - Addressing the Second Amendment Circuit Split (December 3, 2016). Available at SSRN: https://ssrn.com/abstract=2879994 or http://dx.doi.org/10.2139/ssrn.2879994

Betty Craipo (Contact Author)

Gonzaga University - School of Law ( email )

721 N. Cincinnati Street
Spokane, WA 99220-3528
United States

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