INTRODUCTION I. THE MEANINGS OF "KEEP" AND "BEAR" A. The Traditional Understanding." Military Terms B. The New Understanding: Self-Defense Terms 1. Keeping as having 2. Bearing as carrying II. RIGHTS NOT TO A. The Right Not to Speak B. Other Rights Not To III. THE RIGHT NOT TO KEEP OR BEAR ARMS A. The Right Not to "Keep "' Arms 1. Mandatory possession laws 2. Laws forbidding the exclusion of guns from private property 3. Concealed carry laws B. The Right Not to "Bear" Arms C. Mediating, Conflicting, Rights CONCLUSION INTRODUCTION
In District of Columbia v. Heller, (1) the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms for purposes of self-defense. (2) In doing so, the Court rejected the idea that the amendment's function is to protect the state militias from disarmament by the federal government, finding instead that the original public understanding of the Second Amendment gives individuals the right to keep and bear arms disconnected from military service, and that it "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (3) The Court went on to conclude that "keeping" a gun means having it in one's constructive possession--in the home, for example--and that "bearing" a gun means carrying it on one's person. (4) These actions are constitutionally protected because they advance the "central component" or "core lawful purpose" of the Second Amendment: freedom of self-defense, (5) particularly in the home. (6)
But what if a person believes that the best way to defend himself against violence in his home is to keep guns out of it? After all, despite the undoubted importance of the right to self-defense and the political popularity of the Supreme Court's "individual rights" reading of the Second Amendment, (7) a majority of Americans choose not to keep guns in their homes. (8) Many if not most make that decision for personal safety reasons, (9) and even among gun owners, only a minority say that their primary motivation for having a gun is self-protection against crime. (10) Empirical data regarding self-defense and gun ownership are notoriously contested, (11) and often unpersuasive, (12) so it may be impossible to say whether avoiding guns is, statistically speaking, the "right" safety decision. But since Heller entrusts that decision to the individual, the statistics should be largely irrelevant as a constitutional matter. (13) A person who believes her home to be safer without a gun is attempting to protect herself from a risk of future violence, just like a person who chooses to keep a handgun on her bedside table. If self-defense is the "core" of the Second Amendment, why should only one of these decisions be constitutionally protected? Shouldn't the interests giving rise to the affirmative right also protect a person's freedom not to exercise it?
The central idea explored in this Article is that the Second Amendment's guarantee of an individual right to keep or bear arms in self-defense should include the freedom not to keep or bear them at all. Though such a "negative" Second Amendment self-defense right has never been recognized, nor even thoroughly discussed, (14) rights not to engage in constitutionally protected activities are well established in other areas of law. (15) This is especially but not uniquely true in First Amendment doctrine, which in turn has often been used as a guidepost for the Second Amendment. (16) Indeed, the freedom not to speak has famously been called a "fixed star in our constitutional constellation," (17) precisely because it serves the same First Amendment values as speech itself: individual autonomy, the marketplace of ideas, and so on. As Chief Justice Burger wrote in Wooley v. Maynard, "[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind."' (18) Justice Brennan emphasized that symmetry in Riley v. National Federation of the Blind of North Carolina: "[T]he First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." (19) Following the same logic, one might say that after Heller the Second Amendment guarantees freedom of armed self-protection, a concept necessarily comprising the decision of both what arms to keep and what arms not to keep.
But what would it mean to have a right not to keep or bear arms, and what relevance would that right have in practice? Traditionally, gun regulations have limited citizens' ability to have or carry guns. The usual Second Amendment question, therefore, has been whether such limitations are constitutional. But some legislatures are now contemplating or doing something quite different: pursuing "anti-gun control" laws that supersede private ordering by making it difficult or illegal for private parties to keep guns out of their homes, off their property, and otherwise out of their actual or constructive possession. Perhaps most radically, some have proposed or enacted laws requiring citizens to keep guns in their homes. (20) Many others have adopted "forced entry" or "take your gun to work" laws, which require private parties--usually businesses--to allow guns on their property. (21) And even concealed carry rules arguably burden the ability not to keep arms, because they make it substantially more difficult for people to monitor whether unwanted guns are being brought onto their property or into their homes. (22)
Parts I and II of this Article argue that the new self-defense-based reading of the Second Amendment suggests recognition of a fight not to keep or bear arms; Part III explores that right's practical significance. Part I begins by describing how the terms "keep" and "bear" were redefined through changing interpretations of the Second Amendment's core purpose. Though those words were long understood to have a military connotation, scholars, advocates, and courts in recent decades have come to see them as referring to private, individual possession and use of guns. This new understanding, which broadly equates "keeping" a gun with "having" it in one's possession and "bearing" a gun with "carrying" it, is intertwined with the new view of the Second Amendment as grounded in self-protection.
Part II explores the constitutional protection of rights not to engage in activities which would, if undertaken voluntarily, be constitutionally protected. Not every constitutional right carries with it such an inverse right. There is no Thirteenth Amendment right to sell oneself into slavery, for example. (23) But others do--people have constitutional rights to decide whether to speak, (24) whether to associate, (25) "whether to bear or beget a child," (26) and whether to accept the assistance of counsel. (27) Such rights often exist where the underlying reasons for protecting the "affirmative" right are also furthered by the "negative" right. Thus the First Amendment protects speech and silence because they both serve core First Amendment purposes like the protection of individual autonomy and the preservation of the marketplace of ideas. By contrast, the Thirteenth Amendment's abolitionist purpose would be hindered, not helped, if people were permitted to sell themselves into slavery.
Extending this approach to the Second Amendment context, it would seem that the decision not to have or carry arms should be constitutionally protected if it serves the amendment's core purpose--individual self-defense, according to Heller and McDonald v. City of Chicago. (28) That is, if the "core" and "central component" of the Second Amendment is a right to make decisions about armed self-defense in the home, and if not possessing guns is one such decision, then forcing someone to possess a gun amounts to compelled keeping and violates the amendment's core purpose.
Part III describes the contours and possible practical import of a right not to keep or bear arms. Subpart A explores the right not to keep, which, like the right to keep, would be roughly coextensive with a person's property rights. Thus if voluntarily having a gun in one's home constitutes "keeping" within the scope of the Second Amendment, then being forced to have a gun in one's home constitutes compelled keeping. The latter implicates precisely the same constitutional interests as the former, because it limits the homeowner's ability to make decisions about how best to protect herself using guns and thereby to prevent violence in her home. This potentially calls into question the constitutionality of laws compelling private owners or businesses to permit guns on their property. Whether such laws are actually unconstitutional is difficult to say--the answer depends among other things on the still-undefined standard of review for Second Amendment claims--but at the very least they help illustrate the potential significance of the right not to keep arms.
Subpart B briefly evaluates the right not to bear, which would protect an individual from being forced to "carry" arms. The practical scope of this right is limited, if only because the government rarely compels citizens to carry arms or burdens their ability not to. A right not to bear arms could give rise to Second Amendment arguments--albeit weak and unsuccessful ones--against compulsory military service. But just as the First Amendment's right not to speak does not include an absolute right to refuse to salute one's commanding officer, the right not to keep or bear arms would not give soldiers a constitutional right not to carry weapons.
The purpose of this Article is to test the strengths and weaknesses of an idea, not to advocate without qualification for the recognition of a new constitutional right. The idea itself is deeply counterintuitive, and there are serious objections to it. (29) It is not necessarily true that the decision not to keep...