Firearms and Fora: Constructing Public Carry Doctrine

Abstract

Where can a person lawfully carry firearms in public and pursuant to what conditions? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment rights to speak and peaceably assemble in public, it developed permitting, public forum, and time, place, and manner doctrines. As they construct similar Second Amendment doctrines concerning public carry policymakers and courts can draw upon invaluable lessons from the First Amendment experience. Learning from First Amendment doctrine does not entail borrowing or adopting its concepts or standards for public carry – in fact, in some respects it may entail substantially departing from them. The architects of public carry doctrine can learn many lessons – general, specific, positive, and negative – from the development and implementation of public expression doctrine. If they heed these lessons, we may end up with a public carry doctrine that avoids certain critical mistakes and even improves on First Amendment doctrine.

Keywords: public carry, Second Amendment, First Amendment, public forum, sensitive place, time place and manner, doctrine, firearms, arms, licensing, constitutional rights