Marden Series: Understanding the Second Amendment After Heller

by Sarah Goodfield*

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? Sarah Goodfield (’17) explores 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 respondent, this Contribution analyzes “good cause” requirements in their historical and legal context, and ultimately concludes that such restrictions do not burden core Second Amendment rights.

As mass shootings and gun violence continue to dominate the news cycle in the United States, there is still much uncertainty about the precise contours of the Second Amendment. In District of Columbia v. Heller, the Supreme Court found an individual right to keep and bear arms for the purpose of self-defense under the Second Amendment.² The Court also acknowledged that certain longstanding, presumptively valid regulatory measures on the ownership and use of firearms, such as prohibiting the possession of firearms by felons or the mentally ill, do not violate the Second Amendment.³ The case before the Court specifically addressed self-defense within the home, where the need is “most acute,” leaving unanswered the precise nature of an individual’s right to carry firearms outside of the home or the kinds of regulations that would qualify as “presumptively valid.”⁴

In the wake of this uncertainty, communities throughout the United States have attempted to combat gun violence through regulatory measures, facing fierce opposition by gun rights advocates who challenge the laws as unconstitutional limitations on activities protected by the Second Amendment. One such regulation is a “good cause” requirement for concealed carry permits, requiring that applicants demonstrate a compelling reason or “justifiable need” for the gun license.⁵ Opponents argue that the Second Amendment protects an individual’s right to bear arms for self-defense, both in private and in public, and that any “good cause” requirement would fail to withstand strict scrutiny.⁶ However, a long tradition of regulating the concealed carry of firearms in England and the United States, dating back centuries, indicates that a categorical limitation for good cause does not burden Second Amendment rights.⁷ Even if it did, a requirement that applicants show “good cause” does not burden the core rights of the Amendment and is therefore subject only to intermediate scrutiny, which it easily passes.⁸

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When a law is challenged on Second Amendment grounds, courts apply a two-step inquiry to assess whether the regulation is permissible.⁹ The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.”¹⁰ If the law is outside the scope of the “right to keep and bear arms” as it was understood at the time of the Second or Fourteenth Amendment’s ratifications, it is a valid regulation.¹¹ Otherwise, courts move to the second step of the inquiry and apply a form of means-end scrutiny.¹²

A “good cause” requirement that regulates an individual’s right to carry a concealed firearm in public should pass both steps as a permissible limitation on the Second Amendment right.

The Second Amendment right to bear arms does not include the right to carry concealed firearms in public. The challenged regulation therefore imposes no unconstitutional burden on an individual’s right to keep and bear arms. Assessing the scope of the Second Amendment and where a regulation fits within that scope requires an historical analysis.¹³ Much like First Amendment jurisprudence, in which courts have recognized certain “well-defined and narrowly limited classes of speech”—such as obscenity, fraud and defamation—as categorically beyond the scope of the First Amendment, there are certain gun-related activities that fall outside the Second Amendment and are “unprotected as a matter of history and legal tradition.”¹⁴

Limitations on the right to carry concealed firearms in public fall within this unprotected category.

“[S]ince at least 1541,” English law specifically prohibited “the carrying of concealed weapons.”¹⁵ The 1689 English Bill of Rights, the predecessor of the Second Amendment, did not protect concealed carry, which was “flatly prohibited” by law.¹⁶ This English tradition became an American tradition. As the Supreme Court noted in Heller, “the majority of 19^th century courts [in the United States] to consider the question held prohibitions on carrying concealed weapons lawful under the Second Amendment or state analogues.”¹⁷ For example, in 1842 the Supreme Court of Arkansas upheld a law fining “every person who shall wear any pistol . . . concealed as a weapon.”¹⁸ In 1850, the highest court in Louisiana similarly upheld a concealed carry restriction.¹⁹ Even the Supreme Court of the United States in 1897 held that “the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons.”²⁰ The Heller Court, in finding an individual right to keep and bear arms for self-defense in the home, did not overturn this holding. In fact, the Court cited to this holding to establish that the Second Amendment “codified a right ‘inherited from our English ancestors . . . .’”²¹ With this historical background in mind, courts throughout the United States have found that “good cause” provisions are indeed “longstanding, presumptively lawful regulatory measure[s]” and thus are exception to Second Amendment protections carved out by the Heller Court.²²

But even if a “good cause” provision were not a “longstanding, presumptively lawful regulatory measure,” it would still pass the appropriate form of constitutional scrutiny, which in this case is intermediate scrutiny. Although the Court in Heller did not establish a specific level of scrutiny for evaluating Second Amendment regulations,²³ the majority of courts to address the issue have applied intermediate scrutiny for similar regulations.²⁴ Like the First Amendment, under which different regulations trigger different levels of scrutiny, limitations on the right to keep and bear arms can be scrutinized under multiple standards, depending on the degree to which the law burdens the core right at issue.²⁵ A “good cause” restriction on the concealed carry of firearms in public, unlike a total ban on firearms, is a more moderate approach for firearms regulation, akin to time, place, and manner restrictions of speech, rather than restrictions on the content of speech.²⁶ Therefore, intermediate scrutiny is the appropriate standard.

Under intermediate scrutiny, the fit between the challenged law and its stated objective must be substantial, though it need not be “perfect.”²⁷ The government, in affirmatively establishing that its means reasonably fits its end, is not required to provide any statistical evidence or legislative history to justify its legislative decision making.²⁸ Rather, the judiciary must give substantial deference to the judgment of the legislature, since it is “the legislature’s job, not [the court’s], to weigh conflicting evidence and make policy judgments.”²⁹ Such policy judgments might include an anticipated decrease in the opportunities for criminals to steal firearms, a decrease in the “likelihood that basic confrontations between individuals would turn deadly,” or the facilitation of the speedy identification of people carrying handguns who actually pose a danger.³⁰ There is indeed evidence that “the ready accessibility of guns contributes significantly to the number of unpremeditated homicides and to the seriousness of many assaults.”³¹ However, even if this were not the case, the judiciary would not be compelled to conclude that “the fit between [the State’s] individualized, tailored approach and public safety is not reasonable.”³² Given that state governments have an acknowledged “compelling” interest in public safety and crime prevention,³³ and that decreasing the number of guns on the streets decreases the likelihood of gun violence,³⁴ “good cause” provisions easily pass the deferential standard of intermediate scrutiny.

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State and local governments cannot reasonably ignore the real dangers and heartbreaking losses that result from gun violence. As they continue to develop policies to address these issues, courts should stand back and allow legislatures to weigh evidence and make the best policy judgments for their communities. The assessment of the “risks and benefits of handgun possession and [the] shaping [of] a licensing scheme to maximize the competing public policy objectives . . . is precisely the type of discretionary judgment that officials in the legislative and executive branches of state government regularly make.”³⁵ To categorically deem unconstitutional “good cause” requirements, which limit the number of concealed handguns on the streets to those who have a demonstrable and justifiable need for self-defense, would deny communities what could very well be a solution to an undeniable and widespread threat to public safety.

* Sarah Goodfield is a 2L at New York University School of Law. This piece is a commentary on the 2015 Problem from NYU Law’s Marden Competition. The problem centered on whether a state law that required applicants for a concealed carry permit demonstrate “good cause” was an unconstitutional limitation on an individual’s Second Amendment right under District of Columbia v. Heller, 554 U.S. 570 (2008). The views expressed in this article do not necessarily represent the views of the author. Rather, this article is a distillation of one side of an argument assigned to the author at the Fall 2016 Marden Competition.

2. District of Columbia v. Heller, 554 U.S. 570 (2008).

3. See id. at 626.

4. Id. at 628.

5. See, e.g., Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013) (upholding a New Jersey licensing statute that requires applicants to demonstrate a “justifiable need” to carry a handgun).

6. See Grace v. District of Columbia, No. 1935 MDA 2013, 2016 WL 2908401, at *144 (D.D.C. May 17, 2016).

7. See generally Peruta v. Cnty. of San Diego, 824 F.3d 919, 933-39 (9th Cir. 2016) (en banc) (providing an extensive history of the tradition of concealed carry regulations in the U.S. and England).

8. See United States v. Marzzarella, 614 F.3d 85, 97-98 (3d Cir. 2010) (applying intermediate scrutiny to a prohibition on handguns without serial numbers that did not burden core Second Amendment rights and served a clear “law enforcement interest”).

9. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

10. United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).

11. United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010).

12. Id.

13. Peruta, 824 F.3d at 933 (looking to state court decisions after adoption of the Second Amendment to determine how the right to bear arms was understood in the years following its ratification).

14. Ezell v. City of Chicago, 651 F.3d 684, 702 (7th Cir. 2011).

15. Peruta, 824 F.3d at 939.

16. Id.

17. Heller, 554 U.S. at 626.

18. See State v. Buzzard, 4 Ark. 18, 18-19 (1842).

19. See State v. Chandler, 5 La. Ann. 489, 489-90 (1850).

20. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).

21. Heller, 554 U.S. at 599 (quoting Robertson, 165 U.S. at 281).

22. See Drake, 724 F.3d at 432 (holding that New Jersey’s “justifiable need” requirement qualifies as a “longstanding, presumptively lawful” regulation) (internal quotation marks omitted); see also Kalchalsky v. Cnty. of Westchester, 701 F.3d 81, 91 (2d Cir. 2010) (“New York’s restriction on firearm possession in public has a number of close and longstanding cousins.”); Peterson v. Martinez, 707 F.3d 1197, 1210 (10th Cir. 2015) (“There can be little doubt that bans on the concealed carrying of firearms are longstanding.”).

23. See Heller, 554 U.S. at 634 (noting that Justice Breyer criticizes the majority for declining to establish a level of scrutiny for evaluating Second Amendment restrictions).

24. See e.g., Drake, 724 F.3d at 430 (applying intermediate scrutiny to New Jersey requirement that applicants demonstrate a “justifiable need” to publicly carry a handgun); Kalchalsky, 701 F.3d at 96 (applying intermediate scrutiny to New York requirement that applicants demonstrate a “proper cause” for a concealed-handgun license); United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (applying intermediate scrutiny to prohibition on carrying loaded handgun in a national park); see also Peruta, 824 F.3d at 942 (noting that, if the Court were to hold that the regulation was within the scope of the Second Amendment, it would apply intermediate scrutiny).

25. Marzzarella, 614 F.3d at 96-97 (“[T]he right to free speech, an undeniably enumerated right, is susceptible to several standards of scrutiny, depending upon the type of law challenged and the type of speech at issue. We see no reason why the Second Amendment would be any different.”).

26. Cf. Id. at 97 (“Because [this prohibition of handguns with obliterated serial numbers] was neither designed to nor has the effect of prohibiting the possession of any class of firearms, it is more accurately characterized as a regulation on the manner in which persons may lawfully exercise their Second Amendment rights.”).

27. Kachalsky, 701 F.3d at 97.

28. Drake, 724 F.3d at 437-38.

29. Kachalsky, 701 F.3d at 99.

30. See Woolard v. Gallagher, 712 F.3d 865, 879-80 (4th Cir. 2013).

31. Drake, 724 F.3d at 438.

32. Id. at 439.

33. See United States v. Salerno, 481 U.S. 739, 750 (1987) (acknowledging government’s “compelling” interest in preventing crime through pretrial detention).

34. Drake, 724 F.3d at 438.

35. Kachalsky, 701 F.3d at 99.