The right to carry firearms outside of the home: separating historical myths from historical realities.

AuthorCornell, Saul
PositionGun Control and the Second Amendment: Developments and Controversies in the Wake of District of Columbia v. Heller and McDonald v. Chicago

Introduction I. History and the Future of Gun Regulation: Heller's Legacy II. The Scope of the Right to Bear Arms in the Founding Era III. Gun Regulation in the Founding Era and Early Republic: Myths and Realities IV. The Pistol and the Lash: Slavery and the Permissive Right to Carry V. No Right to Carry: The Emergence and Spread of the Massachusetts Model Conclusion: The Past and Future of the Right to Carry Arms Outside the Home INTRODUCTION

Emboldened by their victory in Heller, (1) gun rights advocates are waging a relentless campaign to strike down what little remains of the nation's relatively anemic gun control regime. (2) The Heller opinion itself is also partly responsible for generating a seemingly limitless parade of new lawsuits. (3) Legal scholars from across the ideological spectrum have attacked the controversial five-to-four decision, both for its revisionist rewriting of constitutional history and for its poor judicial craftsmanship. (4) The opinion raised more questions than it answered and left lower courts scrambling to decipher what was prohibited by Heller, if anything, short of a total ban on handguns. (5) The decision articulated no theory of judicial scrutiny, provided no black letter rules, and failed to create any categories of analysis to guide judges. Instead, it left the courts with an incomplete laundry list of presumptively lawful regulations to serve as a model of what remained legal. (6) In United States v. Masciandaro, Judge J. Harvie Wilkinson aptly summarized the problems that Heller's poor judicial craftsmanship wrought: "This case underscores the dilemma faced by lower courts in the post-Heller world: how far to push Heller beyond its undisputed core holding." (7)

The first section of this Article examines the continuing relevance of history in the post-Heller era. The second section focuses on conceptions of the right to bear arms and the right to carry in the Founding era. Apart from service in militia, there is little evidence of a broad constitutional consensus on a right to carry arms in public. The third section analyzes some of the myths and realities about early American gun regulation. The fourth section locates the legal ideal of traveling armed in public in a distinctively southern tradition that was a minority strain within Antebellum law. The final section of this Article explores the alternative theory of robust arms regulation that emerged by the era of the Fourteenth Amendment and became the dominant tradition in American law. The existence of this regulatory tradition has remained hidden from modern scholars and courts because support for high levels of gun regulation was so pervasive outside of the South that few of these laws were ever challenged in court.

  1. HISTORY AND THE FUTURE OF GUN REGULATION: HELLER'S LEGACY

    Rather than close the book on historical argument, Heller appears to have done the opposite. The court stated this point succinctly in United States v. Masciandaro: "[H]istorical meaning enjoys a privileged interpretative role in the Second Amendment context." (8) Unfortunately, judges are in the unenviable position of evaluating the complex and contradictory historical evidence paraded before them. Separating historical myths from historical realities, distinguishing historical fact from error, and disentangling law office history from rigorous historical scholarship are serious problems for the courts in this area of the law. (9)

    One of the most controversial issues to arise in the wake of Heller is the right to carry firearms outside of the home. This issue is currently being litigated in the Fourth Circuit and a decision may well be rendered by the time this Article is published. (10) Masciandaro reveals the problems that Heller has created. In Masciandaro, the defendant was arrested for possessing a loaded firearm in a national park. (11) The court applied an intermediate scrutiny test and found that the statute in question, which prohibited loaded firearms in national parks, easily passed constitutional muster. (12) The government's interest was important and the means chosen to effectuate this goal were substantially related to that interest. (13) Although the three-judge panel agreed on this point, there was substantial disagreement over the scope of Heller's holding regarding the right to bear arms outside of the home. (14) In Masciandaro, the majority refused to wade into this question. Judge Wilkinson and Judge Duffy embraced a minimalist reading of Heller, counseling judicial restraint, particularly on this crucial question:

    There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. (15) Judges Wilkinson and Duffy took no position on this issue, but their argument implicitly suggested that one could make a plausible case that Heller's holding established no right to carry firearms outside the home. Judge Niemeyer, by contrast, argued that Heller did assert the existence of a right beyond the home:

    Consistent with the historical understanding of the right to keep and bear arms outside the home, the HellerCourt's description of its actual holding also implies that a broader right exists. The Court stated that its holding applies to the home, where the need "for defense of self, family, and property is most acute," suggesting that some form of the right applies where that need is not "most acute." Further, when the Court acknowledged that the Second Amendment right was not unlimited, it listed as examples of regulations that were presumptively lawful, those "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." If the Second Amendment right were confined to self-defense in the home, the Court would not have needed to express a reservation for "sensitive places" outside of the home. (16) The logic of Judge Niemeyer's argument seems especially weak when read against the actual beliefs and practices that the American legal tradition demonstrates. The assertion that the need for self-defense is most acute in the home implies nothing about the existence of a right to self-defense outside the home. Even under Heller's flawed version of history, one plausibly could argue that the Founders decided to constitutionalize the right only in the home. Self-defense beyond the home implicates far broader questions of public safety. It makes historical sense that the Founding generation decided to leave the resolutions of these difficult questions to the more flexible standards afforded by the common law and the public policy preferences of individual legislatures. The fact that the Founding generation needed weapons to train and hunt also has little bearing on how these weapons might have been used outside of the home because pistols were not typically part of the standard weaponry of the militia. Finally, the fact that some states and localities chose to ban carrying in sensitive places while others chose to enact broad bans only underscores that gun regulation in American history reflects the diversity of the American historical experience. (17)Y

  2. THE SCOPE OF THE RIGHT TO BEAR ARMS IN THE FOUNDING ERA

    Virginia was the first state to draft a new Constitution and Declaration of Rights. George Mason, the primary architect of the Virginia Declaration of Rights, was a leading patriot and took a major role in the creation of the new state's militia. (18) An early advocate for colonial independence, he became an outspoken champion of the militia. Mason urged his fellow citizens to enact a law to put the colony's militia in a state of readiness for possible war with Britain. Mason's vision of the militia invoked traditional Whig ideas. (19) On January 17, 1775, Mason prepared this set of resolutions for the Fairfax County Committee of Safety, an important institution responsible for coordinating Virginia's military efforts:

    Resolved, That this Committee do concur in opinion with the Provincial Committee of the Province of Maryland, that a well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government. (20) Mason's emphasis on the need for the militia to be composed of property holders reflected a view common among members of Virginia's gentry elite that it was dangerous to arm the "rabble." (21) Without the guidance of gentlemen, an armed population might easily become a mob rather than a well-regulated militia. The radicalism of the revolution pushed Mason and other Virginians to embrace a more inclusive conception of the militia. (22) The language that Virginia eventually adopted asserted that the militia was "composed of the body of the people," a formulation that reflected the more democratic ethos associated with Revolutionary ideology. When the committee charged with producing a declaration of rights revised Mason's original draft, they settled on the following language:

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power. (23) Virginia's Declaration of Rights made no mention of the right to bear arms or a right of self-defense. (24) The absence of such language did not mean that Virginians did not esteem the right of self-defense; rather, it merely underscored that they believed such a right was adequately protected under the common law. (25) The militia focus of Mason's language troubled...

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