THE RIGHT TO BEAR ARMS: FOR ME, BUT NOT FOR THEE?

• Author: Halbrook, Stephen P.

I am going to talk about the right to bear arms, which seems like it would be a simple topic. The Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed." (1) The question being hotly litigated in the minority of states that have enacted so-called discretionary license issuance for carrying handguns (2) is whether "bear arms" means that you have a constitutional right to carry a firearm outside your home. The words of the Second Amendment alone seem to be conclusive about that--a right to keep arms and a right to bear arms. These are two distinct rights: keeping arms would obviously include keeping them at home. (3) "Bear" means nothing if it means you can only carry arms in your home. (4) It has to mean something more than that. When the Bill of Rights restricts some element of the subject to the home, it says so very clearly. In the Third Amendment, for example, soldiers will not be "quartered in any house" without the consent of the owner, unless in times of war. (5) The word "houses" appears in the Fourth Amendment in terms of search and seizure issues. (6) So, when restricting an activity to the home, the Bill of Rights plainly says so.

So, really, the word "bear" does nothing unless it means you can carry a firearm. And when reference is made to the right of the people, one would think that includes society at large--individuals at large--and not those who would be chosen by government to exercise a given right. (7) You cannot imagine regarding the right of the people to assemble in the First Amendment, that the government gets to decide who has that right and that you can get a license to exercise the right only "for good cause" that differs from the situation of the people at large.

That's the text of the Bill of Rights, and then we move on to District of Columbia v. Heller. (8) The complaint in the case alleged a right to keep arms in the home, and therefore that the D.C. handgun ban was unconstitutional. (9) And, of course, the Court so held. (10) The decision discusses the right to bear arms as a right to carry arms. (11) In fact, Justice Scalia's opinion goes into great detail in the course of refuting the idea that bearing arms only refers to bearing arms in the militia and about the fact that carrying arms is what bearing arms means. (12) A good quote in the opinion comes from Justice Ginsburg's decision in an 18 U.S.C. [section] 924(c) case about what it means to bear arms; she states that bear arms means carrying, for example, a gun in the pocket or otherwise on the person. (13)

The Heller decision also refers to restrictions on the Second Amendment right generally. (14) One of those is that you cannot carry in sensitive places, such as schools and government buildings. (15) This seems to imply that, "Aha! Nonsensitive places are places where you can carry." So in addition to that, the decisions that the Court relies on in Heller talk about the right actually to carry arms--handguns, for example--and the Court refers to some of the nineteenth-century cases: Nunn v. State (16) from Georgia and Andrews v. State (17) from Tennessee. (18) In those two states, there were times when the legislature declared a prohibition on carrying handguns, either openly or concealed, and those laws were invalidated. (19) And Heller, towards the end of the decision, states that the D.C. law is somewhat like these nineteenth-century laws. (20) Such nineteenth-century laws were so extreme in terms of prohibiting the right to bear arms altogether. (21) By the same token, the District of Columbia was prohibiting the right merely to possess handguns altogether. (22)

One more part of Heller makes clear that under the Court's decision, although the issue wasn't squarely before the Court, there is a right to carry outside the home. The Court refers to the fact that the Second Amendment has the militia clause, but for the people who lived at the time of the Founding, even more important to them was the right to carry arms for self-defense and for hunting. (23) You don't go hunting in your home, you may or may not have to defend yourself in the home, and certainly militia activities do not take place in the home. So there's a lot in Heller to go on here in terms of predicting what might happen in the future in the Court.

If we move on to McDonald v. City of Chicago, (24) which applied the Second Amendment to the states through the Fourteenth Amendment, (25) the very first carry law that the Court refers to in terms of what the Fourteenth Amendment was intended to invalidate was the Mississippi Black Code from 1865, which provided that no African American, no freedman, no freed slave could carry a firearm without some kind of permit from the authorities. (26) In fact, those types of statutes pervaded both the slave codes and then later the Black Codes from the early Reconstruction period, requiring a permit that is solely at the discretion of the issuing authority in terms of whether the person could have a right to bear arms. (27) So, there were a lot of African Americans who were arrested and prosecuted and their guns seized and confiscated under these laws. (28) You'll see speeches in Congress about the purpose of the Second Amendment in terms of wanting to get rid of these laws and invalidate them. (29)

You also have the passage of the Freedman's Bureau Act in 1866, which was enacted by two-thirds of the same Congress that passed the Fourteenth Amendment and sent it to the states for ratification. (30) The Freedman's Bureau Act explicitly declared that the rights to personal security and personal liberty include the right to bear arms. (31) They were referring to the right of African Americans to have the rights of full citizenship, which included the right to carry arms outside the home. (32)

Now, there is a third Supreme Court case that suggested Heller's demise was like when Mark Twain said, "The reports of my death have been greatly exaggerated." (33) If you remember after Heller and McDonald, the Supreme Court was not granting certiorari in any Second Amendment cases. (34) It was like maybe they are never going to take another one. And then all of a sudden they took a case based solely on the cert petition and the opposition to it from the State of Massachusetts involving a stun gun ban. (35)

There was a woman who had been threatened and beat up by her ex-boyfriend, and she had a stun gun. (36) She had it with her and then was busted in a parking lot with the stun gun, which was prohibited under Massachusetts law. (37) The Massachusetts Supreme Judicial Court upheld that law, (38) and it went to the Supremes, and they said, "Hold on. Your reasoning is totally out of whack with what we held in Heller." The weapon does not have to be a type that existed at the time of the Founding, just as Heller made clear regarding modern communications and the exercise of free speech and a free press, even though there was no internet at the time of the Founding. (39) But under the Speech and Press Clauses, the internet is still protected. (40) By the same token, types of weapons, if they're commonly possessed by law-abiding people for lawful purposes, or typically possessed for lawful purposes, are protected by the Second Amendment. (41)

And so, the Supreme Court, simply on the basis of the petition in opposition, reversed and remanded to the Massachusetts court and said, "Go back and look at this again under our precedent. You have not been consistent with what we've ruled." (42) The interesting part about that case, about which there is more detail in Justice Alito's concurring opinion, is that it took place outside the home. (43) So, had the Court thought that there was no right to carry any kind of arm outside the home as guaranteed by the Second Amendment, the Court could have dealt with the case that way. There was no reason to go into the analysis of the type of weapon. So, yes, the Court didn't make that proposition explicit, but rather seemed to assume that there is a right to carry some kinds of arms outside the home. (44) That was a 8-0 per curiam opinion assuming that there's a right to carry outside the home. (45)

As Judge Katsas mentioned, the Gould v. Morgan (46) case out of the First Circuit is one that my colleague Jonathan Taylor and I participated in in different roles. He got to argue. I didn't get to do that. But what's funny about these cases, or interesting, is how the turn into ancient history becomes a big part of the case. Specifically, you'll see a lot of briefs about the Statute of Northampton (47) from the 1300s in England. (48) And that was 50 years before Chaucer wrote The Canterbury Tales. (49)

How many of you remember reading that in high school, The Canterbury Tales? We were just high school kids. We thought it was really funny. I remember the phrase, somebody called somebody else a "merry knave" (50) and a "saucy bumpkin[]," (51) and we thought that was just hilarious.

But the argument seems to be that the statute overrides the Second Amendment because it was passed by a monarch in Medieval England. And that becomes a big part of the briefing. (52) And it's really fun to do that kind of briefing, but like the D.C. Circuit said in Wrenn v. District of Columbia (53) that...