THE SUPRISINGLY STRONG ORIGINALIST CASE FOR PUBLIC CARRY LAWS.

• Author: Taylor, Jonathan E.

Before I jump in, I want to lay out a roadmap for my remarks, which will begin with a discussion of District of Columbia v. Heller. (1) Any discussion of the Second Amendment must now begin with Heller. I want to focus both on what the Court said the Second Amendment protects and what the Court said the Second Amendment does not protect--understanding oth categories is crucially important. And then I'll turn to how Heller is being applied in the lower courts. When it comes to applying Heller, the courts of appeals have coalesced around a two-step framework. (2) The first step is to determine whether the law at issue burdens conduct that is protected by the Second Amendment as historically understood. (3) If it does, courts proceed to the second step and analyze the law under some form of scrutiny (4)--typically intermediate scrutiny. (5)

Admittedly, there have been some dissenters from this two-step approach, including, most notably, then-judge Kavanaugh. (6) But for the most part, that is the accepted framework. When the courts of appeals analyze public carry restrictions of the sort we're discussing today, in particular the good-cause requirement, they typically apply this approach and have upheld such laws under intermediate scrutiny. (7) While that's a fine approach, today I want to offer a different defense for why I think these laws are constitutional-one that is fully consistent with Judge Kavanaugh's interpretation of Heller, and which some of the folks in this room might find appealing. It's rooted in history, tradition, federalism, and respect for Heller.

So let's begin with Heller, because I think, as I mentioned, that's where we have to begin. The Court's opinion in Heller is four parts. (8) The first part, a discussion of the background in that case and the procedural section, (9) is not relevant to today's discussion. But parts two, three, and four are critically important, and I'll just walk through each of them.

Part two outlines the parameters of Second Amendment protections. (10) In Heller, the Court is resolving whether the right protected is an individual right to keep and bear arms, or a collective right. (11) And the Court resolves that disagreement in favor of the individual rights approach. (12) But in doing so, it looks not only to the text of the Second Amendment, but also to history and tradition, and for that reason has been regarded by many as a kind of high-water mark of originalism. (13)

The Court's approach began by canvassing the antecedent English history, which Justice Scalia seemed to find highly relevant. (14) He did so because the Second Amendment, by speaking of the right to keep and bear arms, assumes a preexisting right inherited from our predecessors in England. (15) But the Court then also looked to the early American tradition to in form the shape and the scope of the right. (16) And the Court did not limit its consultation of historical materials to documents from the Founding Era, but also reviewed historical documentation all the way up through the late nineteenth century, illustrating that all of that time period is important to the constitutional analysis. (17) After consulting all this historical material, the Court came to the conclusion that the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (18) So the core of the right is self-defense in the home. To be clear, that is not necessarily the only right the Second Amendment protects, but it is the core of the right.

Then, the Court proceeded to the third part of its opinion, which is equally important: the overview of what the Second Amendment doesn't protect. (19) Here, the Court said explicitly that, just like many other constitutional rights, the Second Amendment right is "not unlimited." (20) So how do we know what those limitations are? The text of the Second Amendment does not tell us. It simply says that "the right of the people to keep and bear Arms shall not be infringed." (21) You will not find answers to the difficult questions by staring hard at that text all day. Instead, we must look again to history and tradition--the same touchstones that led the Court to conclude that the Second Amendment right is an individual right and guided the Court in determining the contours of that individual right.

The Court said explicitly: "[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation," (22) or to "keep and carry any weapon whatsoever in any manner ... and for [any] purpose." (23) Instead, as the Court explained, these "longstanding prohibitions" are seen as tradition-based "exceptions" to the Second Amendment, and are thus constitutional by virtue of their "historical justifications." (24) Some examples that the Court gave of these lawful, longstanding regulations are the prohibitions on the possession of firearms by felons and the mentally ill. (25) These examples are notable because such prohibitions, while longstanding in the Court's eyes, had been around for only a hundred years or so at the time of Heller. (26) So the Court says that we don't simply look to the time of the Founding to see if a law is longstanding; we also consult the full tradition of this country.

In the last part of its opinion, the Court turned to the application of the Second Amendment as interpreted to the law at issue in the case. (27) The law in Heller was a total prohibition on owning any handguns in the home. (28) The Court concluded that this amounted...