SECURING GUN RIGHTS BY STATUTE: THE RIGHT TO KEEP AND BEAR ARMS OUTSIDE THE CONSTITUTION.

• Author: Charles, Jacob D.

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 gunrights 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.

TABLE OF CONTENTS INTRODUCTION I. EXPLORING THE VAST GUN-RIGHTS EXPANSE A. The Gap Between Policy and Public Opinion B. Filling the Gap: Gun Rights Outside the Constitution 1. The First Wave: Extending the Libertarian Framework 2. The Second Wave: A Turn to Aggressive Intervention II. UNPACKING STATUTORY GUN RIGHTS A. Rhetoric, Social Movements, and Constitutional Culture B. Redistributive Rights and Redistributive Effects III. ASSESSING THE DOCTRINAL EFFECTS OF BROAD GUN RIGHTS A. The Second Amendment 1. Status 2. Methodology 3. Protected Weapons 4. Unkeeping Arms B. Other Constitutional Implications 1. The First Amendment 2. The Fourth Amendment 3. The Fourteenth Amendment CONCLUSION INTRODUCTION

For some observers, the period of American history punctuated by the COVID-19 pandemic, economic uncertainty, and antiracism protests clarified the need for guns in a time of "lawless violence." (1) For others, it made just as clear the harms that guns can cause in a society that accepts and excuses a quick resort to lethal violence. (2) The Second Amendment looms large in this debate. (3) But focusing too narrowly on those twenty-seven words of constitutional text neglects the vast and expansive nonconstitutional protections for gun rights in contemporary America. Gun rights have been expanding in legislative halls and city councils for decades, and this statutory framework significantly structures the nature of gun rights today. (4) This Article tells the story of this powerful gun-rights regime outside the Constitution. That story demonstrates that, despite the frequent claims of vilification and unfair treatment, (5) guns are one of the most protected commodities under American law and gun owners are some of the law's most favored citizens.

In 2008, in District of Columbia v. Heller, the Supreme Court first established that the Second Amendment protects an individual right to keep and bear arms. (6) That right is not, the Court underscored, "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (7) Nor does the Second Amendment impose limits on the authority of private parties to restrict firearms on their own property, (8) the power of local governments to reasonably regulate the secondary effects of firearms-related activity, (9) or the typical remedies available to private plaintiffs in civil lawsuits arising from firearms-related harm. (10) Yet a collection of state and federal laws establish these rules and more. (11)

Many of these laws were passed before the Supreme Court breathed new life into the Second Amendment. (12) The first prominent wave of state laws, largely a libertarian initiative, took off in the 1980s with relaxed concealed-carry laws and comprehensive preemption laws barring localities from enacting gun regulations. (13) A second wave, picking up momentum in the early 2000s, became more intrusive and aggressive. This second wave includes laws requiring that private businesses allow guns in their parking lots, granting broad stand-your-ground immunity, and mandating that colleges permit guns on campus. (14) These two waves track two key movements in the history of gun-rights advocacy. The laws beginning to spread in the 1980s dovetail with the rise of a more bellicose wing of the National Rifle Association (NRA), which, along with like-minded gun-rights organizations, (15) commenced the concerted push toward constitutional protection for gun rights in the courts. (16) The wave in the early 2000s coincides with the advocacy leading up to the Supreme Court's decision in Heller itself. (17)

In the libertarian first wave, the movement sought to limit governmental intervention. It overwhelmingly succeeded. For example, almost every state today has robust preemption laws that bar local governments from regulating firearms. (18) These laws are not mandated by the Constitution, which would allow localities to regulate guns just as much as the state and federal governments. (19) Without these laws, the predominantly urban areas that experience the most gun violence, and at the same time support the most gun regulation, (20) would no doubt have stricter gun laws than they currently do. (21) It is no exaggeration to say that widespread preemption laws likely prevent more gun regulation than the Second Amendment. (22)

Turning to the aggressive second wave, the movement sought state intervention on behalf of gun rights. It succeeded in passing a host of state laws that expand gun rights beyond what the Constitution would require against unwilling public officials and even private entities. For example, several states require that public universities and colleges allow students, employees, and visitors to carry loaded firearms on campus, regardless of whether the administration or student body objects. (23) Other states have taken aim at private enterprise. (24) Florida's Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008 provides that even a private employer cannot stop an employee "from possessing any legally owned firearm when such firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot." (25)

Through this large set of exemptions, exceptions, and accommodations, lawmakers have created a powerful right to keep and bear arms outside the Constitution. Nothing about the fact of this expansion suggests these legislative protections are anomalous or problematic. Protecting constitutionally informed values is a commonplace legislative goal, from local antidiscrimination ordinances to employee rights and benefits. But as discretionary policy choices, the consequences of this expansionism cannot be blamed on the dead hand of the past; the Constitution does not bind legislators to ignore the effects of these laws. And the evidence suggests that this expansion is not costless. These alternatingly deregulatory and interventionist laws can impose harms on disadvantaged members of the community, such as gun-violence victims who find the courthouse doors closed because of laws giving industry actors broad immunity or domestic-violence shelters that cannot bar firearms from their property because of parking-lot laws. (26) Rights, especially gun rights, do not always apply equally to Black Americans and other marginalized groups. (27) And the culture these laws foster--one that perceives a threat behind every corner--can lead to tragic outcomes in a society in which threat perception is so thoroughly racialized. One can, of course, disagree with this Article's normative appraisal of these laws and still recognize that the broader gunrights expansionism detailed here is an important factor in assessing today's debates over gun rights and regulation.

In fact, the broad protective barrier these laws provide has led some scholars to argue that the formal Second Amendment--only judicially viable since 2008--is already becoming obsolete. (28) Many of these laws, after all, perform the same function as the individual-rights guarantee in the Constitution: carving out a sphere of private action in which the state cannot regulate. (29) Yet some of these statutes are not just shields safeguarding gun rights but also swords thrusting them into places and spaces the formal Constitution would never grant them access. (30) And the rights guaranteed by these legal rules may be more practically important for millions of Americans than the bare Second Amendment right vindicated in Heller. (31)

This Article is the first to systematically identify and assess these nonconstitutional gun rights as an integrated fabric. Although several scholars have addressed some of these laws in isolation, (32) none have surveyed and evaluated the collection as a whole. This task takes on heightened importance in an atmosphere of increasingly urgent debate over gun rights and regulation. With Joseph Biden's election to the presidency, an administration took office in 2021 championing "the most ambitious agenda for reducing gun deaths in presidential history." (33) The October 2020 confirmation of a Supreme Court justice with a skeptical view...