Contributions

Marden Series: The Simple Path to Protecting Second Amendment Rights

by Andrew Deb­bins 1

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.

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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.” 25The 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.

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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.

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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.

Notes:

  1. 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.