Open carry for all: Heller and our nineteenth century Second Amendment.

• Author: Meltzer, Jonathan
• Position: Author abstract

INTRODUCTION I. HELLER, MCDONALD, AND THE STATE OF GUN RIGHTS IN AMERICA A. Heller, McDonald, and the Right to Carry B. The Current Gun Regulation Landscape II. THE RIGHT TO CARRY IN THE FOUNDING ERA AND THE NINETEENTH CENTURY A. The English Right B. Legal Commentators at the Founding 1. Blackstone's Commentaries 2. St. George Tucker C. Founding-Era Constitutions and Laws 1. State Constitutions 2. Gun Laws that Promoted Public Safety 3. The Founding Era as a Whole D. The Antebellum Period E. The Fourteenth Amendment and the Right to Carry III. IMPLICATIONS FOR AN ORIGINALIST RIGHT TO CARRY A. The Right to Carry Openly (and Not Concealed) B. Alternative Interpretations of the Right to Carry 1. No Right to Carry 2. The Alternative Outlet Theory CONCLUSION INTRODUCTION

Since the Supreme Court's landmark decisions in District of Columbia v. Heller (1) and McDonald v. City of Chicago (2) announced that the Second Amendment guarantees an individual right to keep and bear arms and incorporated that right against the states, courts and scholars have struggled to determine the reach of those opinions. The past five years have witnessed dozens of challenges to state and federal gun regulations of all kinds, from bans on gun ranges, (3) to laws preventing the sale of firearms to persons under twenty-one, (4) to section 1983 suits in response to temporary disarmament. (5) The most consequential cases in defining the contours of the Second Amendment, however, relate to the right to carry firearms outside the home. The issue is extraordinarily important to proponents and opponents of gun rights alike. For proponents, the only way to truly vindicate the right to self-defense is to allow law-abiding citizens to carry firearms on their person. According to opponents of gun rights, an individual right to carry would constitutionalize extreme behavior, allow for vigilantism, and undermine public safety.

The holdings of Heller and McDonald reached only the right to keep a handgun in the home, leaving the lower courts to sort out whether and how that right extends beyond the home. Provided with such minimal guidance, they have reached vastly different conclusions. Some have taken after Heller, conducting significant historical analysis to determine the extent of the Second Amendment right outside the home. (6) Others have concentrated on tiers of scrutiny, weighing the benefits of the gun regulation at issue against its intrusion on the right to keep and bear arms. (7) Others still have refused to extend the right outside the home absent further instruction from the Supreme Court. (8)

This circuit split has led to a number of different conclusions about the right to carry outside the home. In United States v. Masciandaro, Judge Wilkinson stated that "[t]he whole matter [of the right to carry outside the home] strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree." (9) In a similar vein, the Court of Appeals of Maryland stated that "[i]f the Supreme Court ... meant its [Heller] holding to extend beyond home possession, it will need to say so more plainly." (10) Other courts have found that the right to carry must extend beyond the home, relying on the historical evidence presented in Heller, as well as on the case's dicta regarding the prime importance of self-defense, which they argue cannot be limited to the home. (11) These courts have emphasized the need for states to allow some type of carry, but have not expressed a view on the constitutionality of one type of carry of weapons over another. A third group of courts has determined that although the Second Amendment may well extend beyond the home, particular regulations on the right to carry--for example, laws banning the concealed carry of weapons--do not infringe on the right. Two recent cases in the Second and Tenth Circuits have followed this model. (12) Both of those opinions consulted extensive historical evidence regarding limitations on the right to carry in reaching their conclusions.

This Note, like the cases discussed above, attempts to understand the contours of the right to carry after Heller and McDonald. Like the panels of the Second and Tenth Circuits, I am particularly interested in what kind of carry of weapons, if any, the Second Amendment protects. I argue that Heller and McDonald have left little doubt that a historical analysis is the proper method for defining the right guaranteed by the Second Amendment. The Court's (and, for that matter, the dissents') use of history to determine the existence of an individual right to firearms suggests that elaboration of the extent of the right will require further expeditions into the past.

The history relied upon by the Supreme Court, particularly in Heller, and the way the Court reads the historical sources, compel two important conclusions about the right to carry weapons. First, the logic, interpretive choices, and dicta of Heller suggest that the right to keep and bear arms must extend beyond the home. Second, the right to carry weapons that is guaranteed by the Second Amendment is the right to carry weapons openly. Much of the history of the right to carry is difficult to decipher. Only one set of sources consulted by the Supreme Court speaks comprehensively and unequivocally on this question: antebellum state supreme court decisions. They find almost uniformly, in upholding state concealed weapons bans, that the right to keep and bear arms protects the right to carry weapons openly--and only openly--in self-defense. The particular rationale in those decisions--that the only way to carry weapons defensively is to carry them openly--may not jibe with modern sensibilities. But these opinions are still windows, according to the Heller Court, into the historical understanding of the Second Amendment. Our modern right should reflect this understanding, meaning that the logical outgrowth of Heller would be a regime in which the concealed carry of firearms could be banned, but the open carry of the same weapons could not.

Such a holding would not sit well with either the opponents or proponents of the individual right to keep and bear arms. Opponents see open carry as the worst of the pro-gun movement--a practice aimed more at provocation and showmanship than at any legitimate safety goal. (13) Meanwhile, many proponents of gun rights recognize how unusual and fear-inducing open carry is in many situations, and how much many Americans prefer to carry weapons concealed. They worry that a constitutional right limited to open carry would prevent many law-abiding citizens from carrying weapons due to the stigma of carrying openly. (14) Still, even if this result is impractical and unpopular, it is the most loyal reading of Heller. And because the Court has committed to an originalist methodology for the Second Amendment, complaints about open carry's lack of agreement with modern practice ought to have very little sway.

This Note proceeds in three Parts. Part I summarizes the holdings of Heller and McDonald with an eye to what they suggest about the right to carry. It also surveys current state laws regarding the right to carry. Part II examines historical evidence from the periods deemed crucial by Heller and McDonald to determine how it illuminates the original understanding of the right to carry. This Part notes the lack of clear evidence from the Founding era regarding the right to carry--a sharp contrast with the nineteenth-century case law, which concentrates heavily on the carry of weapons. Part III explores the implications of this historical analysis. It argues that the early nineteenth-century case law, which the Heller Court stated was critical to determining the public understanding of the right to carry, leaves little doubt that the Second Amendment was understood at that time to guarantee the right to carry outside the home, but only a right to do so openly. It also discusses other possible readings of the history provided by courts and scholars, and why they comport less well with this evidence. Finally, the Note concludes with a recognition that the Supreme Court may well avoid the finding compelled by this history, and it ties this possible, perhaps even likely, avoidance of an open carry regime to some of Heller's shortcomings.

1. HELLER, MCDONALD, AND THE STATE OF GUN RIGHTS IN AMERICA

   Heller and McDonald upended Second Amendment jurisprudence by holding that the Amendment guarantees an individual right to keep and bear arms, and that this individual right is incorporated by the Fourteenth Amendment. (15) These cases have been analyzed and debated in detail in academic literature, an exercise I will not replicate in this Note. Instead, I will focus more narrowly on their application to the right to carry weapons outside the home. To supplement this analysis, I will also offer in this Part a short summary of the contemporary legal landscape of right to carry laws in the United States, in order to provide readers with the backdrop against which this legal battle will play out.

   This Part and the next focus heavily on the history of the Second Amendment when discussing the right to carry arms beyond the home. Heller and McDonald made clear that originalism is the proper method for assessing the constitutionality of laws challenged under the Second Amendment. The majority and the dissents in Heller rested their conflicting arguments upon the history of the right to keep and bear arms, and the majority in McDonald once again performed a substantial historical inquiry on the question of incorporation. (16) Scholars on the left and right have questioned that choice of methodology as well as the way in which the Court employed it, (17) but there can be little doubt after Heller and McDonald that defining the Second Amendment right is a task that requires historical analysis. (18) This Note, without endorsing this methodology, operates...