Lincoln Memorial University Law Review Archive


I. Introduction

To what extent does “the right of the people to . . . bear Arms, shall not be infringed” as guaranteed by the Second Amendment protect the liberty to carry firearms outside the home for self-defense or other lawful purposes?[1] While most states recognize a right to do so, either with or without a license and subject to place restrictions, some states grant discretion to a law enforcement agency to decide whether a specific person “needs” or has “good cause” to carry a firearm and restricts licenses to such persons. These discretionary licensing schemes have become a major issue in Second Amendment litigation, with some circuits upholding such laws[2] and others invalidating them.[3]

The Supreme Court has not decided the specific issue, but essential to its interpretation of the Amendment in District of Columbia v. Heller is the following: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”[4] More specifically, to bear arms means to “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”[5] Preservation of the militia was the Amendment’s stated purpose, but most Americans valued the ancient right more for self-defense and hunting.[6]

While the Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,”[7] history and tradition do not support “a right to keep and carry any weapon whatsoever in any manner whatsoever,” and longstanding prohibitions such as carrying firearms in sensitive places like schools are not in question.[8] Nor may the right be exercised in a manner as to terrify others.[9]

Heller declared the District of Columbia’s ban on the possession of handguns violative of the Second Amendment. Recalling nineteenth century state court decisions that declared bans on the open carrying of handguns unconstitutional, the Court noted: “Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban.”[10]

Heller was followed by McDonald v. City of Chicago, which reiterated that “individual self-defense is ‘the central component’ of the Second Amendment right.”[11] McDonald held that the Second Amendment applies to the States through the Fourteenth Amendment and invalidated Chicago’s handgun ban.[12] In Caetano v. Massachusetts, the Supreme Court reversed a Massachusetts decision upholding that state’s stun gun ban.[13] Since the defendant had been caught with the stun gun in a parking lot,[14] the Court assumed that the Second Amendment protects the right to bear arms in non-sensitive, public places.

The Court has granted a petition for a writ of certiorari in a Second Amendment challenge to a New York City rule providing that a person with a license to keep a handgun at one’s dwelling may not take it out of the premises other than to a licensed shooting range within the City.[15] The plaintiffs wish to transport their handguns outside the City to second homes or to shooting ranges and competitions.[16] In upholding the rule, the lower court relied on a declaration by a police official that allowing licensees to transport handguns to second homes or to competitions was “a potential threat to public safety.”[17]

However, to date the Court has not granted certiorari in any of the circuit decisions upholding discretionary carry license laws. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari in a Ninth Circuit decision that the Second Amendment fails to protect the right of a member of the general public to carry a concealed weapon in public, but declining to decide whether open carry is protected.[18] Justice Thomas wrote that the Court “has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion,” and that the denial of certiorari “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.”[19]

While the lower court cases involve various issues about the text of the Amendment, judicial precedents, standards of review, and criminal statistics, a major bone of contention has involved the legacy of the common law at the American Founding and the early Republic. A virtual cottage industry has arisen in which certain historians argue that current restrictions are consistent with the common law history, attorneys supporting the restrictions on behalf of defendants and their amici rely on such historical writings in their briefs, and courts sift through and use or reject the arguments in either upholding or invalidating the restrictions.[20]

Opponents of recognizing that the Second Amendment protects the right of “the people” to “bear arms” seem obsessed with Edward III’s Statute of Northampton of 1328, which provided that no person shall “come before the King’s Justices . . . with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere . . . .”[21]

From some of the current literature, one would think that this monarchal decree, written three-quarters of a century before Chaucer’s Canterbury Tales, supersedes the explicit language of the Second Amendment recognizing “the right to bear arms.”[22] Moreover, as William Hawkins clarified, “no wearing of arms is within the meaning of the statute unless it be accompanied with such circumstances as are apt to terrify the people . . . .”[23] Yet the beating of the dead horse continues unabated.

Litigation-driven interpretations of history to disfavor a meaningful Second Amendment pervade this enterprise. It involves what might be called “history office law” to describe historians who ignore basic elements of criminal offenses in order to show a long-standing tradition of criminalizing the keeping and bearing of arms. It also involves what might be called “law office history” conducted by attorneys who cite these historians and who cherry pick and delete passages from historical documents.

The following seeks to conduct a reality check regarding this history and how it is being read and used. The American experience combines bills of rights declaring the right to bear arms together with common law restrictions against being armed to terrorize others, requirements to find sureties to keep the peace if armed and threatening to others, prohibitions on carrying concealed weapons, and—as applied only to slaves and persons of color—bans on keeping or bearing firearms at all, or in some cases the discretionary issuance of limited licenses. Other than that, the peaceable bearing of arms was not a crime at the Founding or in the early Republic.

[1] “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II.

[2] Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018); Woollard v. Sheridan, 712 F.3d 865 (4th Cir. 2013), cert. denied, 571 U.S. 952 (2013); Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012), cert. denied, 133 S. Ct. 1806 (2013); Drake v. Filko, 724 F.3d 426 (3rd Cir. 2013), cert. denied, 134 S. Ct. 2134 (2014).

[3] Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012); Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), reh. en banc granted, 915 F.3d 681 (9th Cir. 2019).

[4] District of Columbia v. Heller, 554 U.S. 570, 584 (2008). While “bear arms” may be used in a military context, there was no “right to be a soldier or to wage war,” which would be an absurdity. Id. at 586. In historical usage, “bearing arms” meant “simply the carrying of arms,” such as “for the purpose of self-defense” or “to make war against the King.” But limiting “bear arms” to an exclusive military usage was inconsistent with other purposes, such as for hunting. As the Court humorously wrote: “The right ‘to carry arms in the militia for the purpose of killing game’ is worthy of the mad hatter.” Id. at 589.

[5] Id. (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)).

[6] Id. at 598-99.

[7] Id. at 592.

[8] Id. at 625-26.

[9] Id. at 588 n.10.

[10] Id. at 629 (citing Nunn v. State, 1 Ga. 243, 251 (1846); Andrews v. State, 50 Tenn. 165, 187 (1871); State v. Reid, 1 Ala. 612, 616-17 (1840)).

[11] McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).

[12] Id. at 791.

[13] Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (per curiam).

[14] Id. at 1029 (Alito, J., concurring).

[15] New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2nd Cir. 2018), cert. granted, 139 S. Ct. 939 (2019).

[16] Id. at 52.

[17] Id. at 63.

[18] Peruta v. County of San Diego, 824 F.3d 919, 924, 927 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 1995 (2017).

[19] Peruta, 137 S. Ct. at 1198-99 (Thomas, J., dissenting from denial of cert.).

[20] See, e.g., Peruta, 824 F.3d at 939 (citing Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 7-36 (2012)); Young, 896 F.3d at 1077 (Clifton, J., dissenting) (citing Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry, 125 Yale L.J. F. 121, 125 (2015)). But see Wrenn v. District of Columbia, 864 F.3d 650, 660-61 (D.C. Cir. 2017) (“we can sidestep the historical debate on how the first Northampton law might have hindered Londoners in the Middle Ages. Common-law rights developed over time . . . .”).

[21] 2 Edw. III, c. 3 (1328).

[22] “What does the Statute of Northampton provide us in terms of evaluating the protective scope of the Second Amendment outside the home? The answer is armed individual self-defense outside the home deserves only minimalist protection or categorical exclusion.” Charles, supra note 20, at 43.

[23] 1 Hawkins, A Treatise of the Pleas of the Crown, ch. 28, § 9 (8th ed. 1824).

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