Contributions

Marden Series: Understanding the Second Amendment After Heller

by Sarah Good­field 1

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

*****

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 19th 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.

*****

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.

 

Notes:

  1. 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.