Securing Gun Rights by Statute: The Right To Keep and Bear Arms Outside the Constitution

63 Pages Posted: 23 Feb 2021 Last revised: 15 Feb 2022

See all articles by Jacob D. Charles

Jacob D. Charles

Pepperdine University - Rick J. Caruso School of Law

Date Written: February 19, 2021

Abstract

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 nonconstitutional legal regime privileging guns and their owners. This collection of nonconstitutional 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 noninterference 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 rhetorical and legal connection 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 the context of the Second Amendment, as well as of the First, Fourth, and Fourteenth Amendments.

Keywords: firearms, gun rights, second amendment, popular constitutionalism, preemption, constitutional theory, concealed carry

Suggested Citation

Charles, Jacob D., Securing Gun Rights by Statute: The Right To Keep and Bear Arms Outside the Constitution (February 19, 2021). 120 Michigan Law Review 581 (2022), Duke Law School Public Law & Legal Theory No. 2021-21, Available at SSRN: https://ssrn.com/abstract=3789216

Jacob D. Charles (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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