To Bear Arms for Self-Defense: A 'Right of the People' or a Privilege of the Few?

34 Pages Posted: 28 May 2020

Date Written: April 30, 2020

Abstract

Does the right to bear arms protect the right to carry a firearm in public? This paper begins with an analysis of the clear text of the Second Amendment declaring that “the right of the people to . . . bear arms, shall not be infringed.” It then launches into a history of the English origins of this right. The medieval Statute of Northampton proscribed going armed in a manner to terrorize the subjects, while the common law recognized the peaceable carrying of arms. The Declaration of Rights of 1689 accorded the right to Protestants, and Blackstone found it to be a cornerstone of protection of personal liberty and personal security.

At the American Founding, the right to bear arms was constitutionalized along with other basic rights. The peaceable carrying of firearms by ordinary Americans was allowed in all states during the antebellum period — even in those states where going armed with the intent to terrorize others was a crime. By 1861, 25 of 34 states allowed the carrying of weapons both openly and concealed. In the 9 states that then restricted concealed carry, open carry was lawful; it was this right of open carry that justified the restrictions of concealed carry. However, African Americans were barred from bearing arms at all or were subjected to arbitrary licensing requirements.

This paper next traces the history of the Fourteenth Amendment and its aftermath as applied to the right to bear arms. This entails analysis of the discretionary licensing schemes of the black codes, protection of the right under the Civil Rights Act of 1871, and carry bans in Reconstruction and in the Jim Crow and anti-immigrant eras.

State courts recognized the right to bear arms in the modern era. In Heller, the U.S. Supreme Court read “bear” arms to mean “carry” arms and rejected interest balancing. Applying the right to the states, McDonald found the right to be fundamental, not second class. Yet the circuits are split, with some applying the clear text and others playing a limbo game to see how low the standard can go. The game played out most recently when the Supreme Court granted certiorari regarding New York City’s ban on transporting a handgun outside one’s licensed premises and the City amended the law to moot the case.

Keywords: right to bear arms, Second Amendment

JEL Classification: K20

Suggested Citation

Halbrook, Stephen P., To Bear Arms for Self-Defense: A 'Right of the People' or a Privilege of the Few? (April 30, 2020). Available at SSRN: https://ssrn.com/abstract=3589749

Stephen P. Halbrook (Contact Author)

Independent Institute ( email )

100 Swan Way
Oakland, CA 94621
United States

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