Securing Gun Rights by Statute: The Right To Keep and Bear Arms Outside the Constitution
71 Pages Posted: 23 Feb 2021 Last revised: 12 Apr 2021
Date Written: February 19, 2021
In popular and professional discourse, debate about the right to keep and bear arms most often revolves around the Second Amendment. But that narrow reference ignores a vast and expansive non-constitutional legal regime privileging guns and their owners. This collection of non-constitutional gun rights confers broad powers and immunities on gun owners that go far beyond those required by the Constitution, like rights to bring guns on private property against an owner’s wishes and to carry a concealed firearm in public with no training or background check. This Article catalogues this set of expansive laws and critically assesses them. Unlike the formal constitutional guarantee, this broad collection is not solely libertarian, concerned only with guaranteeing non-interference with a negative right. Instead, it is also aggressively interventionist, countermanding contrary policy judgments by employers, universities, property owners, and local government officials, conferring robust rights and privileges, and shifting the distribution of violence in society.
This Article underscores the connection, rhetorically and legally, between this gun-rights expansionism and the formal Second Amendment guarantee. These laws do not derive from a judicial interpretation of the scope of the Constitution, but they are expressed and advocated for in constitutional terms. The Article also highlights how broad gun rights can create unique harm to the body politic and to marginalized groups by fostering fear and mistrust and empowering sometimes problematic private actors to proactively police their own communities. Finally, the Article shows how gun-rights expansionism influences constitutional doctrine in a number of ways, including in the context of the Second Amendment, as well as the First, Fourth, and Fourteenth Amendments.
Keywords: firearms, gun rights, second amendment, popular constitutionalism
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