by Andrew Debbins*
Do state laws that condition the issuance of concealed carry permits on an applicant’s showing of “good cause” unconstitutionally burden those applicants’ Second Amendment rights? Andy Debbins (’17) addresses this question, raised at the 2016 “Fall” Marden Competition, at the New York University School of Law. Generally, “good cause” restrictions require that applicants show some special reason for carrying a concealed weapon. Writing from the perspective of the 2016 “Fall” Marden petitioner, this Contribution argues that a simple, straight-forward reading of the Second Amendment renders “good cause” restrictions unconstitutional.
Unlike many issues that divide the United States politically, gun control is bounded by a specific constitutional right. However, that Second Amendment right to keep and bear arms does not enjoy the same volume of jurisprudence or delineated boundaries as others in the Bill of Rights. The relatively unsettled nature of Second Amendment rights may in fact exacerbate gun control’s contentiousness.2 By contrast, First Amendment litigation has produced such tests as means-end scrutiny and time, place, and manner restrictions. Courts have begun to borrow these tools from First Amendment jurisprudence to help define the constitutional right to keep and bear arms.3
Only some contours of the Second Amendment are settled law. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees private individuals, not merely military personnel, a right to bear arms and thereby invalidated a law preventing gun possession in the home.4 In McDonald v. City of Chicago, the Court held that the Second Amendment applied to the states by way of the Fourteenth Amendment.5 The Supreme Court has offered “precious little guidance” as to whether the Second Amendment guarantees a right to carry firearms outside the home or the extent to which a state may restrict that right. The Court has also not determined which level of heightened scrutiny courts should apply to laws restricting Second Amendment rights.6 These questions are subject to a variety of approaches in the several circuits, and they probe what Judge Wilkinson termed the “vast terra incognita” of Second Amendment law.7
This article begins by examining the terra incognita and three types of arguments courts have employed to limit Heller’s application. Each of these arguments obscures the commands of Heller. This article argues that the simplest view of the Second Amendment—that it guarantees a fundamental right to have a firearm for self-defense—provides the correct answer to the many questions Heller left unanswered. Preserving the simplicity of the Second Amendment right to carry a firearm for self-defense has its greatest effect where public carry bans or good cause restrictions are in issue.8 The article will therefore focus on laws of this sort.
*****
The Second Amendment of the United States Constitution provides that the “right of the people to keep and bear Arms, shall not be infringed.”9 In Heller, the Supreme Court provided a broad two-step framework for determining the constitutionality of a firearm regulation.10 At the first step, courts should determine whether the specific right at issue falls within the “historical understanding of the scope of the [Second Amendment] right.”11 If a regulation infringes on a historically recognized right, courts proceed to a second step where they apply a level of scrutiny commensurate with the fundamental nature of the right.12 Applying this analysis, the Heller court concluded that a law banning firearms in the home was unconstitutional.13
Lower courts have found several avenues within the Heller framework to reach a decision restricting firearm possession in public. Each of these arguments operates at a different point in Heller’s two-step analysis to limit Heller’s application to its facts. First, courts have held that fundamental Second Amendment rights do not extend outside the home when considering the Amendment’s scope at the first step.14 Second, courts insert a middle step in which they consider the longstanding nature of a restriction and whether that justifies regulation of protected conduct.15 Finally, courts may find that even if Second Amendment rights do extend outside the home, the regulation at issue survives constitutional scrutiny.16 The arguments often intersect and overlap, but this article will consider each in turn.
The most direct route to uphold a firearms restriction is to determine at the first step of Heller analysis that a challenged restriction does not implicate a right within the scope of the Second Amendment at all. This argument carries the most weight when concealed carry alone is in issue, because Justice Scalia in Heller noted explicitly that prohibitions on carrying concealed weapons have long been upheld under the Second Amendment.17 In Peruta v. County of San Diego, the Ninth Circuit sitting en banc went so far as to find that the Second Amendment conferred no right to concealed carry at all, and it upheld a “may issue” good cause restriction for concealed carry even when open carry was generally prohibited.18 This strong position is unique. Where the challenged restriction implicates all public carry, many courts are reluctant to proclaim that the Second Amendment does not apply at all.19 Most courts take the more moderate position that public carry is not at the core of the Second Amendment.20 These courts miss Heller’s fundamental emphasis of self-defense. Restrictions of the Second Amendment’s scope at the first step impede self-defense too liberally to pass constitutional muster.
When a restriction survives the first step, a court may shift focus to the Heller court’s explicit exception from the Second Amendment for “longstanding” regulations.21 Some courts seize on the note in Heller that its list is not exhaustive and view it as an invitation to add to it.22 For example, in Drake v. Filko, Judge Aldisert strained to squeeze New Jersey’s “justifiable need” standard into the longstanding exception category.23 The court held that this excepted the regulation from constitutional scrutiny because a regulation could not pass the first step of analysis in Heller’s framework.24
Other courts have treated this category of “longstanding” exceptions with kid gloves. Three years before Drake, Judge Scirica wrote for the Third Circuit that “prudence counsels caution when extending these recognized exceptions to novel regulations unmentioned by Heller.”25 The Fourth Circuit acted accordingly when it refused to consider a prohibition on firearm possession by domestic violence offenders to be an exempted longstanding regulation merely by analogy to felon-in-possession laws.26 In Kachalsky v. County of Westchester, Judge Wesley used the longstanding tradition of public firearms regulation not as a basis for exemption from constitutional scrutiny, but as a factor that helped justify applying intermediate scrutiny to New York’s “proper cause” condition for public carry.27 While the longstanding nature of a regulation might properly bear on the appropriate level of scrutiny, the exception must not confer constitutionality without due constitutional analysis, lest Second Amendment jurisprudence be reduced to imprecise historical line-drawing.
A firearm restriction’s final route through the terra incognita to survive a Second Amendment challenge is to withstand constitutional scrutiny at the Heller framework’s second step. The Heller Court only commanded that some level of heightened scrutiny apply, not which level.28 Since Heller, lower federal courts have applied multiple levels of scrutiny to Second Amendment challenges.29 When firearms restrictions survive challenges at this step, it is usually because the court chose to apply intermediate scrutiny.
The “core” right of the Second Amendment that a court identifies tends to dictate what level of scrutiny it applies. Unsurprisingly, what constitutes the core right is also an important point of disagreement between courts that ultimately validate general firearms restrictions and those that invalidate them. On one hand, opinions upholding restrictions tend to identify the exact facts at issue in Heller, gun possession in the home, as the core right of the Second Amendment.30 Any public carry restriction should thus receive intermediate scrutiny, and several general good cause restrictions have survived challenges through this reasoning.31 On the other hand, opinions that strike down gun control laws tend to view the Second Amendment’s core right more broadly as a right to carry firearms for self-defense.32 Public carry restrictions do not infringe the former, but they do infringe the latter.33 As discussed infra, the latter view is correct in light of the Supreme Court’s Second Amendment jurisprudence.
Each of these three arguments adds further layers of complexity to Second Amendment jurisprudence. Yet the right identified in Heller is simple. It is a right to have a firearm for the lawful purpose of self-defense. That principle can navigate the maze of the terra incognita with ease.
*****
Proper application of the Second Amendment as interpreted in Heller cannot countenance public carry bans or good cause restrictions. While the common arguments discussed supra elegantly manipulate Heller’s analytical framework, they discount the central theme in the Supreme Court’s Second Amendment jurisprudence. The right to have a firearm for self-defense permeates the Second Amendment. Public carry bans and good cause restrictions impermissibly restrict that Second Amendment right because a right to carry a firearm for self-defense is as applicable outside the home as inside. Heller’s carve-out for longstanding regulations cannot supplant constitutional analysis, and laws restricting this fundamental right fail any standard of constitutional scrutiny.
The Court’s emphasis on self-defense in both Heller and McDonald leads quite easily to a conclusion that fundamental Second Amendment rights exist outside the home. Justice Scalia wrote in Heller that the “inherent right of self defense has been central to the Second Amendment.”34 Two years later, the Court in McDonald reiterated that self-defense is “‘the central component’ of the Second Amendment right” and notably did not restrain that principle to the narrower facts in Heller.35 The centrality of self-defense to the Second Amendment requires that its protections be strong outside the home as well as inside. The Court made no distinctions regarding the home that could limit the “individual right to possess and carry weapons in case of confrontation.”36 As Judge Posner notes in Moore v. Madigan, “confrontations are not limited to the home.”37 In fact, they are most likely to arise outside the home.38 Limiting the core protection of the Second Amendment to the home confuses Heller’s judgment with its holding.39
Many courts have implicitly recognized that Second Amendment rights exist outside the home. While writing separately on Part III.B of Masciandaro, Judge Niemeyer of the Fourth Circuit noted that the Heller Court implied that the “need for defense of self, family, and property” outside the home deserves constitutional protection when it wrote that the need for defense was “most acute” in the home rather than only acute in the home.40 Similarly, the Heller Court’s discussion of valid restrictions of a citizen’s ability to possess firearms in “sensitive places” like schools or government buildings recognizes that there are, in fact, places outside the home where an individual’s right to carry a weapon is protected by the Second Amendment.41 Even courts that ultimately uphold good cause restrictions proceed under the assumption that the Second Amendment has some application to public possession of firearms.42
Heller made clear that historical inquiry is crucial to Second Amendment questions, and history heralds a right to possess firearms in public. The Second Amendment is “enshrined with the scope [it was] understood to have when the people adopted [it].”43 Securing a right to possess firearms for self-defense inside, but not outside, the home would have seemed of little use in 1791 when North America was a more dangerous place.44 Early nineteenth-century scholars insisted that if Congress “prohibit[s] any person from bearing arms, as a means of preventing insurrection,” the courts must be able to pronounce on the constitutionality of the measure or else “the provision in the constitution which secures to the people the right of bearing arms, is a mere nullity.”45 Early nineteenth-century case law further demonstrates the public’s understanding that the right to bear arms included the right to carry operable weapons in public.46 The historical importance of self-defense to the Second Amendment requires that its protections not be limited to conduct inside the home, since situations requiring self-defense are not limited to the home.47
Constitutional text also touts a right to carry weapons in public. The Amendment itself guarantees the right “to keep and bear Arms” without words of limitation, and its authors arguably intended this breadth.48 Furthermore, as the Heller Court explained, at the time of the Amendment’s drafting, as now, “bear” meant “carry.”49 One does not usually think of carrying as an activity done exclusively inside the home, and bearing a weapon inside the home does not exhaust this definition of “carry.”50 Rather, to limit “bearing” arms to the home forces an awkward redundancy in the provision “to keep and bear arms.”51
Heller’s carve-out for longstanding regulations cannot supplant constitutional analysis. The precise law in issue will likely dictate how useful a jurisprudential tool the “longstanding” doctrine is. For example, a restriction on misdemeanants’ weapon possession is similar to the exception for a felon’s possession that Heller enumerated. A court may be wise to treat such a restriction as “longstanding.” However, more novel and more general good cause restrictions are not as easily fit within the category of longstanding exceptions.52
Courts should hesitate to delineate the Second Amendment’s boundaries with the longstanding exception. If status as a longstanding regulation excepts a restriction from constitutional analysis, the line-drawing exercise around what constitutes “longstanding” becomes the fulcrum of constitutional scales. Second Amendment jurisprudence will be reduced to a historical exercise devoid of the consideration of policy and state purposes for which means-end scrutiny accounts. Beyond that, this approach approximates rational-basis review, which Heller made clear is inappropriate in Second Amendment jurisprudence.53 Courts inclined to create a safe harbor from constitutional scrutiny for longstanding regulations, as the Drake court did, hobble the Second Amendment and run afoul of Heller.
By contrast, the Kachalsky court applied the longstanding doctrine with reasonable caution. Under its approach, the doctrine of longstanding regulations is a consideration weighing on the level of scrutiny the court will apply.54 If a restriction has longstanding roots, the court will apply intermediate scrutiny.55 The Kachalsky approach preserves heightened constitutional scrutiny. This treatment of the enigmatic longstanding exception is best because meaningful Second Amendment analysis requires the discretionary policy balancing available through means-end scrutiny.56
Finally, public carry bans and good cause restrictions cannot survive any heightened standard of constitutional scrutiny because these laws substantially invade the core Second Amendment right to self-defense. They are unavoidable, general restrictions. To borrow from First Amendment jurisprudence, a requirement that every citizen show good cause to carry a firearm leaves no “ample alternative channels” for carrying a firearm for self-defense.57 Indeed, good cause restrictions are not akin to time, place, and manner restrictions because they preclude a law-abiding citizen from exercising the core right to self-defense in any manner at all when the need arises outside the home.58
Strict scrutiny is the proper standard of review for public carry bans and good cause restrictions because they substantially burden core protected conduct.59 Courts look to how close a law goes to the core of the Second Amendment right and the severity of the law’s burden on the right to determine the appropriate level of scrutiny.60 Public carry bans and good cause restrictions affect the heart of the Second Amendment: individuals’ right to defend themselves with a firearm. They preclude a substantial number of law-abiding people from being able to defend themselves with a firearm whenever they are in public. This is a severe burden on a fundamental right. When courts pave new paths to intermediate scrutiny, they obfuscate the centrality of self-defense to the Second Amendment and further confuse the terra incognita.
Public carry bans and good cause restrictions fail strict scrutiny. To pass a strict scrutiny analysis, a restriction must be narrowly tailored to promote a compelling government interest.61 While public safety is certainly a compelling government interest, it is difficult, if not nearly impossible, to narrowly tailor a ban or good cause restriction. Both apply to the general population, and nothing about them is narrow. Less general alternatives—such as gun registries or fingerprint sensors that prevent unstable people from acquiring weapons—abound, so public carry bans and good cause restrictions cannot survive strict scrutiny.
Intermediate scrutiny cannot permit public carry bans or good cause restrictions either. Under intermediate scrutiny, a restriction of constitutional rights need not be the least restrictive means of regulating protected conduct, but it must be substantially related to an important government interest.62 In the case of a ban or good cause restriction, these laws impact all law-abiding citizens rather than only those whose firearm possession may create danger, such as criminals, the mentally ill, or youth. These measures are not substantially related to public safety because they paint with unnecessarily broad strokes.63 Weapons restrictions only make sense if they advance public safety. But baldly reducing the number of guns legally owned hardly furthers that purpose.64 And where core constitutional rights are at stake, platitudes do not suffice.
No doubt, gun violence is a serious problem in the United States. But it is also an easy source of political capital for politicians who promise broad, aggressive laws.65 Where we question democratic processes, courts must strictly scrutinize laws to protect constitutional rights. Bans and good cause restrictions may do little more than restrict the rights of law-abiding citizens.66 Even worse, they may placate public calls for solutions without providing any. And like the restriction struck down in Heller, bans and good cause restrictions fail any heightened standard of constitutional scrutiny.
*****
The vast terra incognita left by Heller and McDonald lends itself to a plethora of legal interpretations. Some interpretations reserve the core of Second Amendment protection for firearms in the home. Others squeeze public carry bans or good cause requirements into Heller’s exception for longstanding regulations. The correct interpretation is the simplest: the Second Amendment guarantees individuals the right to have a firearm for self-defense wherever they may be. Public carry bans and good cause restrictions substantially interfere with that right without justification, and they therefore fail any standard of heightened constitutional scrutiny.
* Andrew Debbins is a 2L at New York University School of Law. This piece is a commentary on the 2016 Fall Marden Moot Court Competition hosted by the New York University Moot Court Board. The fact pattern of the competition involved a fictional state law that banned openly carrying firearms and conditioned carrying concealed firearms on, among other things, an applicant’s demonstrating good cause to carry a firearm, as defined by each issuing locality. The plaintiff in that case had her permit subsequently revoked for lack of good cause when she failed to produce identification while carrying a weapon. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of an argument assigned to the author at the Fall 2016 Marden Competition.
2. See generally James B. Jacobs, Can Gun Control Work? 223 (2002) (discussing the degree to which a Supreme Court decision guaranteeing an individual right to possess firearms could calm the fears of gun rights advocates).
3. See, e.g., United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013) (“In determining the appropriate level of scrutiny, other courts have looked to the First Amendment as a guide.”); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 197–98 (5th Cir. 2012).
4. See District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
5. See McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
6. Peterson v. Martinez, 707 F.3d 1197, 1207 (10th Cir. 2013).
7. United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J.) (“It is not clear in what places public authorities may ban firearms altogether .… The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by a small degree.”).
8. A note on terminology may be useful. Open carry refers to carrying a firearm in public on the person in a visible manner. Concealed carry refers to carrying a firearm in public somewhere on the person where it is not visible to others. Public carry refers to carrying a firearm in public in either an open or concealed fashion, as allowed by law. Public carry can refer to open carry, concealed carry or both depending on a state’s laws. Good cause restrictions are those laws which condition the issuance of a permit for public carry on the applicant’s showing, among other things, some special reason why she must carry a weapon. Good cause goes by various names in different jurisdictions, such as “proper cause” in New York or “justifiable need” in New Jersey. These good cause restrictions stop just short of complete bans, which provide citizens with no legal option for carrying firearms in public. Furthermore, a good cause restriction may be either a “may issue” or “shall issue” law. A “may issue” restriction leaves great discretion to the permitting officer. A “shall issue” law has criteria that, when met, entitle the applicant to a weapons permit. This distinction breaks down where a “shall issue” law uses good cause as one of the criteria, so this article will not focus on the difference.
9. U.S. Const. amend. II.
10. Heller, 554 U.S. at 635; accord Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 685–86 (6th Cir. 2016) (collecting cases from many circuits that have adopted the Heller two-step Second Amendment analysis).
11. Heller, 554 U.S. at 625.
12. Id. at 628–29.
13. Id. at 635–36.
14. See, e.g., Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013).
15. See, e.g., Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013).
16. See, e.g., Kachalsky v. Cty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012).
17. Heller, 554 U.S. at 626; accord Peterson v. Martinez, 707 F.3d 1197, 1211 (10th Cir. 2013) (holding that a claimed right to carry a concealed weapon failed the first step of the two-step Second Amendment analysis); Hightower v. City of Boston, 693 F.3d 61, 73–74 (1st Cir. 2012) (finding revocation of a concealed carry permit did not violate the Second Amendment).
18. Peruta v. Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc) (“We therefore conclude that the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.”), petition for cert. filed sub nom. Peruta v. California, No. 16–894 (Jan. 17, 2017).
19. See, e.g., Drake, 724 F.3d at 431 (“[W]e decline to definitively declare [whether] the individual right to bear arms for the purpose of self-defense extends beyond the home.”); Kachalsky, 701 F.3d at 89 (stating only that “Second Amendment guarantees are at their zenith within the home.”).
20. See, e.g., Woollard, 712 F.3d at 876 (“[A]s we move outside the home, firearm rights have always been more limited.”); Drake, 724 F.3d at 436 (“[T]he core of the right conferred upon individuals by the Second Amendment is the right to possess usable handguns in the home for self-defense.”); Kachalsky, 701 F.3d at 94 (“The proper cause requirement falls outside the core Second Amendment protections identified in Heller.”).
21. Heller, 554 U.S. at 626–27 (“[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”).
22. Heller, 554 U.S. at 627 n.26 (“We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”).
23. See Drake, 724 F.3d at 433–34. New Jersey had had a good cause restriction on concealed carry since 1924, but only expanded that restriction to include open carry (thus constituting a public carry restraint completely conditioned on “need,” or a good cause restriction) in 1966. Id. at 432. The Drake court nonetheless pointed to New York’s “permit schema”—which since 1913 had conditioned any form of public carry on the applicant showing proper cause—as an example of a longstanding restriction which the court reasoned could justify New Jersey’s standard as longstanding regardless of jurisdictional lines. Id. at 433–34.
24. Id. at 434 (“[W]e believe that the ‘justifiable need’ standard of the Handgun Permit Law qualifies as a ‘longstanding,’ ‘presumptively lawful’ regulation that regulates conduct falling outside the scope of the Second Amendment’s guarantee.”); accord United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) (“We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.”); United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (concluding that Heller “identified limits deriving from various historical restrictions on possessing and carrying weapons,” including the felon dispossession provision, that “were left intact by the Second Amendment.”).
25. United States v. Marzzarella, 614 F.3d 85, 93 (3d Cir. 2010). Judge Scirica left the bench one month before Drake was decided, a decision in which his colleagues arguably did exactly that which he had warned against.
26. See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010) (“The government bears the burden of justifying its regulation in the context of heightened scrutiny review; using Heller ‘s list of ‘presumptively lawful regulatory measures’ to find § 922(g)(9) constitutional by analogy would relieve the government of its burden.”).
27. Kachalsky v. Cty. of Westchester, 701 F.3d 81, 91 (2d Cir. 2012) (“Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case.”).
28. District of Columbia v. Heller, 554 U.S. 570, 628 n.27 (2008) (noting that Second Amendment rights must receive a level of scrutiny above rational basis lest the amendment become redundant with the prohibition on irrational laws).
29. See Drake, 724 F.3d at 435 (“As laws burdening protected conduct under the First Amendment are susceptible to different standards of scrutiny, similarly ‘the Second Amendment can trigger more than one particular standard of scrutiny depending, at least in part, upon the type of law challenged and the type of Second Amendment restriction at issue.’” (quoting United States v. Reese, 627 F.3d 792, 801 (10th Cir. 2010))).
30. See, e.g., United States v. Masciandaro, 638 F.3d 458, 470–71 (4th Cir. 2011).
31. See Drake, 724 F.3d at 436 (applying intermediate scrutiny to New Jersey’s “justifiable need” requirement for concealed carry permits as an alternative justification to its longstandingness); Kachalsky, 701 F.3d at 93–94 (applying intermediate scrutiny to a law that made demonstrating “proper cause” for a concealed carry permit the only path to public carry).
32. See Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012) (“The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.”).
33. Compare Kachalsky, 701 F.3d at 93–94 with Madigan, 702 F.3d at 942.
34. District of Columbia v. Heller, 554 U.S. 570, 628 (2008).
35. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (quoting id. at 599); see also United States v. Games-Perez, 667 F.3d 1136, 1145 (10th Cir. 2012) (Gorsuch, J., concurring) (dictum) (“[T]here is a ‘long tradition of widespread lawful gun ownership by private individuals in this country,’ and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” (quoting Staples v. United States, 511 U.S. 600, 610 (1994))).
36. Heller, 554 U.S. at 592.
37. Moore, 702 F.3d at 936–37.
38. See id. at 937–40 (reviewing empirical studies about gun violence).
39. See id. at 936–37 (“[T]o confine the [Second Amendment] right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.”); see also Drake v. Filko, 724 F.3d 426, 445 (3d Cir. 2013) (Hardiman, J., dissenting) (“Heller challenged the District of Columbia’s prohibition on guns in the home .… The application of the law to the facts does not vitiate the Court’s articulation of the right to keep and bear arms as a general right of self-defense.”).
40. United States v. Masciandaro, 638 F.3d 458, 468 (4th Cir. 2011) (Niemeyer, J., writing separately) (quoting Heller, 554 U.S. at 628).
41. See Heller, 554 U.S. at 626.
42. See, e.g., Kachalsky v. Cty. of Westchester, 701 F.3d 81, 93 (2d Cir. 2012) (noting the court’s “assumption that the Second Amendment applies to [the public] context” when undertaking constitutional means-end scrutiny).
43. Heller, 554 U.S. 634–35.
44. See Moore, 702 F.3d at 936 (“[O]ne doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.”).
45. 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia *289 (1803).
46. See, e.g., State v. Reid, 1 Ala. 612 (1840) (holding that laws restricting concealed carry were permissible where open carry preserved citizens’ right to public carry); Bliss v. Com., 12 Ky. 90 (1822) (holding that a ban on wearing concealed arms in public violated a state analogue to the Second Amendment).
47. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009) (“[S]elf-defense has to take place wherever the person happens to be.”).
48. U.S. Const. amend II. The Second Amendment’s origins are traceable to a provision of the English Bill of Rights stating “subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law.” Bill of Rights, 1688, 1 W. & M., c. 2 (Eng.). Early nineteenth-century commenters noted the comparatively unqualified scope of the Second Amendment. St. George Tucker wrote in Blackstone’s Commentaries that the Second Amendment right to keep and bear arms “is without any qualification as to [its] condition or degree, as is the case in the British government.” 2 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia *143 n.40 (1803).
49. District of Columbia v. Heller, 554 U.S. 570, 584 (2008).
50. See Peruta v. Cty. of San Diego, 742 F.3d 1144, 1152 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016), petition for cert. filed sub nom. Peruta v. California, No. 16–894 (Jan. 17, 2017).
51. See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012) (“A right to bear arms thus implies a right to carry a loaded gun outside the home.”).
52. See Drake v. Filko, 724 F.3d 426, 451 (3d Cir. 2013) (Hardiman, J., dissenting) (noting that the “longstandingness analysis is conducted at too high a level of generality.”).
53. Heller, 554 U.S. at 628 n.27 (noting that Second Amendment challenges require heightened scrutiny because “[i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”); accord United States v. Chester, 628 F.3d 673, 677–79 (4th Cir. 2010) (“Some courts have treated Heller’s listing of “presumptively lawful regulatory measures,” for all practical purposes, as a kind of “safe harbor” for unlisted regulatory measures.… This approach, however, approximates rational-basis review, which has been rejected by Heller.”).
54. Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).
55. Id.
56. See Heller, 554 U.S. at 628 n.27.
57. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); cf. Ezell v. City of Chicago, 651 F.3d 684, 710 (7th Cir. 2011) (holding plaintiffs’ Second Amendment challenge to Chicago’s pairing of a ban on firing ranges in the city with a condition for a public carry permit that required firearms training at a range had a strong chance of success on the merits where the city did not produce evidence of a government purpose sufficient to satisfy a strong form of intermediate scrutiny).
58. A constitutional restriction would allow a responsible person to enjoy undiminished Second Amendment rights by choosing permitted conduct, such as purchasing a weapon without banned military features. Compare N.Y. State Rifle and Pistol Ass’n v. Cuomo, 804 F.3d 242, 247 (2d Cir. 2015) (holding that New York law banning certain semi-automatic weapons with military-style features did not violate the Second Amendment) with Peruta v. Cty. of San Diego, 742 F.3d 1144, 1171 (9th Cir. 2014) (finding that a good cause restriction combined with open carry restrictions “preclude[] a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner.”), rev’d en banc, 824 F.3d 919 (9th Cir. 2016), petition for cert. filed sub nom. Peruta v. California, No. 16–894 (Jan. 17, 2017). Good cause restrictions leave no way to exercise the right to possess a firearm for self-defense outside the home.
59. See Roe v. Wade, 410 U.S. 113, 155 (1973) (finding that regulations limiting fundamental rights are subject to strict scrutiny).
60. See, e.g., Ezell, 651 F.3d at 703 (delineating courts’ various rigor of judicial review for Second Amendment limitations).
61. See FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 451 (2007) (stating the strict scrutiny standard).
62. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988).
63. Cf. Ezell v. City of Chicago, No. 14–3312, 2017 WL 203542, at *7 (7th Cir. Jan. 18, 2017) (holding defendant city did not meet its evidentiary burden to justify a zoning ordinance restricting firing ranges under heightened scrutiny); Legend Night Club v. Miller, 637 F.3d 291, 300 (4th Cir. 2011) (finding a statute that would revoke the liquor license of a broad range and substantial number of establishments failed intermediate scrutiny because it was too broad and “reache[d] a substantial number of impermissible applications.”).
64. Cf. Jeffrey Roth & Christopher Koper, Nat’l Inst. of Justice, Impacts of the 1994 Assault Weapons Ban: 1994–96 8 (1999), https://www.ncjrs.gov/pdffiles1/173405.pdf (“the maximum theoretically achievable preventive effective of the [assault weapons] ban on gun murders is almost certainly too small to detect statistically”).
65. See, e.g., Michael Shnayerson, The Contender: Andrew Cuomo, A Biography 374 (2015) (detailing the politically ambitious New York Governor’s effort to pass the nation’s strictest assault weapons ban within a month of the massacre at Sandy Hook Elementary School in Connecticut).
66. Empirical research shows that most criminals who use firearms do not get their guns from legal sources, which are the object of any gun regulation. See generally Philip J. Cook et al., Sources of Guns to Dangerous People: What We Learn by Asking Them, 79 Preventative Medicine 28 (2015). A ban or good cause requirement that aimed to further public safety by reducing the availability of legal guns may have little impact for this purpose.