by Deepa Devanathan1
In 2008, the United States Supreme Court held that the right of law-abiding, responsible citizens to use arms in defense of hearth and home is at the core of the Second Amendment.2 Two years later, the Court extended the Second Amendment right to bear arms in self-defense of hearth and home to the states.3 Since then, there has been a flurry of litigation at the federal district court and circuit court levels over whether state permit schemes that require citizens to receive a permit before being able to carry a gun in public are constitutional.4 After a few years of litigation, the question has become when a public carry permit scheme is constitutional and when it is unconstitutional.
Finding the line between constitutional and unconstitutional in the realm of public carry permit schemes is essential to ensuring that states respect Second Amendment rights while preventing gun violence, an issue that has plagued our country since the 20th century. Mass shootings have only become more prevalent and dangerous, and states are desperate for clear constitutional rules as to where, how, and when they can regulate gun possession.5 However, based on the circuit court rulings on public carry permit schemes, those constitutional rules are not clear.6
This Contribution argues that to properly balance Second Amendment rights with a State’s need to protect people from gun violence, gun permit schemes that cover both open carry and concealed carry must include a procedural right to appeal a local official’s decision denying a permit and must include a “good cause”7 requirement that is written with sufficient clarity so as to ensure that permits actually reach those who need them.
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The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”8 The Supreme Court held that the language of the Amendment confers not merely a collective right, but guarantees “the individual right to possess and carry weapons in case of confrontation.”9
The Second, Third, Fourth, and Ninth Circuits all looked at public carry permit schemes and found them to be constitutional.10 However, those permit schemes all had “good cause” requirements, i.e. requirements that ask applicants to show a good reason for their need to carry a gun in public, and additional checks on local discretion to confer permits, such as a right to appeal.11 By comparison, the D.C. Circuit and the Seventh Circuit looked at public carry permit schemes and found them to be unconstitutional because they essentially banned people from bearing arms in public for self-defense.12
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To find clear constitutional rules on public carry, there must first be the right to gun possession of this kind in the text of the Constitution. The Supreme Court’s decision in District of Columbia v. Heller directs consideration of “both text and history” when interpreting the Second Amendment, bearing in mind that “constitutional rights are enshrined with the scope that they were understood to have when the people adopted them.”13
The text and historical understanding of the Second Amendment both point to a core right to bear arms in public for self-defense. The Second Amendment’s inclusion of the right to “bear” as well as “keep” arms indicates that the right to bear arms extends outside of the home for self-defense. The Court, through Justice Scalia, has held that at the time of the founding, and now, the term “bear” mans to “carry.”14 Notably, Justice Ginsburg shares this understanding of the meaning of “bear”: to “ ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”15 When Justice Scalia and Justice Ginsburg agree on the textual and historical meaning of the Second Amendment, we are wise to pay attention.
There is a rebuttable presumption that every clause and term in the Constitution has meaning: “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.”16 If there is already a provision to “keep” arms that applies to cases of self-defense in the house, then the term “bear” has no meaning in the house because it is redundant and an awkward fit; people “keep” guns in the house but they typically do not “carry” them.17 Therefore, the provision providing a right to “bear” arms must apply outside of the house where people cannot “keep” guns but must, instead, “bear” guns for self-defense.
As the Seventh Circuit held, a right to keep and bear arms for personal self-defense in the eighteenth century could not rationally have been limited to the home.18 When the Constitution was written, even people who feared harm would have to leave their houses and would have to rely on a right to bear arms in public for self-defense to protect themselves.19 This mobility is as prevalent if not more prevalent today. With the growth of infrastructure and methods of transportation, Americans are more and more often not in their houses, indicating that the necessity of extending Second Amendment protections for using arms in self-defense to the public sphere.
Sensibly, then, several courts have read the Second Amendment as bestowing a right to bear arms in public for self-defense. After a thorough textual and historical analysis, the Ninth Circuit concluded that carrying a gun outside the home for self-defense comes within the meaning of “bear[ing] Arms.”20 Additionally, circuit courts have held that the Second Amendment does protect, to some degree, the right to carry arms in public for self-defense.21
Authority all thus points to the conclusion that the Second Amendment right must extend outside the home. The only question, then, is the extent to which state actors can limit that right, and under what conditions they can do so.
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Regulations on the Second Amendment right to carry guns in public for self-defense can be constitutional if they do not substantially burden people’s Second Amendment rights and thus pass constitutional scrutiny.22 If a state permitting law is to meet this standard, it cannot condition the issuance of concealed carry and open carry permits on applicant’s showing of something as broad as, say, a “unique, compelling, and justifiable need” with no right to appeal of a denial of a permit. Otherwise, the local official’s decision could effectively amount to a total ban, or close to it, and thus not survive intermediate or strict scrutiny.
First, a permit scheme that covers concealed carry and open carry, that requires people to prove a “unique, compelling, and justifiable need,” and that does not contain a right to appeal is unconstitutional because it amounts to a total ban on people’s rights to carry guns in public for self-defense. In Heller, the Court held that if a law totally destroys a right, then it is unconstitutional per se, and courts do not have to engage in balancing of interests.23 Requiring people to prove a “unique, compelling, and justifiable need” necessarily requires people to prove that they have a need that is different from those of ordinary citizens. The permitting scheme, thus, is premised on the incorrect assumption that ordinary citizens may be prevented from exercising their constitutional right to bear arms in public for self-defense until they receive a state’s permission to do so.24 Such a premise flies in the face of the entire purpose of the individual rights that the Constitution protects: they are the rights to act without government intervention, not rights to take action only with the government’s permission.
Further, conditioning permitting on a standard too ambiguously stated is functionally equivalent to a total ban. If the state permitting standard requires “unique, compelling, and justifiable need” before someone can obtain permission to carry a firearm in public, that is tantamount to a non-definition. Simply put, it’s overbroad: the government actor determining whether to issue a permit would essentially be free to do as he wished. The Court has often held unconstitutional vague laws on the grounds that they are susceptible to arbitrary enforcement.25 A potential remedy for this would be to include a right to appeal, as is the case in other permit schemes such as New York’s permit scheme.26 The New York Penal Law at issue in Kachalsky allows for appeals of a permit application denial to a state court.27
Second, assuming arguendo that such a permit scheme is not a total ban, it is unconstitutional because it still could not pass intermediate scrutiny. For any restriction on the right to carry arms to pass constitutional muster, it must be substantially related to the achievement of an important governmental interest.28 Indeed, the Supreme Court has recognized that the Government has a substantial—and even compelling—interest in public safety and crime prevention.29
Although there is an important state interest in protecting public safety, an overly restrictive permit scheme is not substantially related to that important governmental interest because it is not a reasonable fit. Such a permit scheme is underinclusive because it fails to allow citizens who need firearms for their own safety to carry them, and it is overinclusive because of the high showing it requires; proving a unique, compelling, and justifiable need, making applicants prove that they are the only ones who have a need for self-defense. Such a task is nearly impossible. Additionally, the difficult standard may lead to people’s resorting to illegal means to obtain guns, which would only increase violence and injure public safety.30 The narrowness of the permit scheme makes the permit scheme an unreasonable and possibly counterproductive means to an important end.
Third, such a permit scheme is unconstitutional because it does not pass strict scrutiny. If the permit scheme does not pass intermediate scrutiny it cannot pass strict scrutiny.31 However, even if the permit scheme passes intermediate scrutiny, it does not pass strict scrutiny because it is not narrowly tailored to the compelling public interest. The standard of “unique, compelling, and justifiable” is dispositive of the permit scheme’s failing strict scrutiny because such a standard is too vague to be narrowly tailored to curbing gun violence. If the government interest is in curbing gun violence and keeping people safe, then the standard that the government uses to allow residents to carry guns has to be specific enough to include those who have a legitimate interest in self-defense and to exclude those who do not.
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Permit schemes that cover both open carry and concealed carry but that do not include a right to appeal or a clear, reachable standard are unconstitutional because they amount to a total ban on the right to carry guns in public for self-defense. Even if they are not deemed to go so far, they don’t pass strict or intermediate scrutiny. Gun violence absolutely must be curbed. However, unconstitutional permit schemes not only fail to curb gun violence, but they fail while in turn doing violence to rights enshrined in the Constitution.
1. Deepa Devanathan is a 2L at New York University School of Law. This Contribution is a commentary on the 2018 Evans A. Evans Constitutional Law Moot Court Competition hosted by the University of Wisconsin Moot Court Board. 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 2018 Evan A. Evans Constitutional Law Moot Court Competition.
2. District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
3. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
4. See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012); Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
5. Current statistics show that on average 318 people in America are shot every day and that 96 people in America die every day from gun violence. Brady Campaign to Prevent Gun Violence, Key Gun Violence Statistics, http://www.bradycampaign.org/key-gun-violence-statistics (last visited April 10, 2018).
6. See infra.
7. A “good cause” requirement is one that requires applicants to prove that they have a good reason to have a gun for self-defense in public.
8. U.S. Const. amend. II.
9. District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
10. See Kachalsky v. County of Westchester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012); Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 868–69 (4th Cir. 2013); Peruta v. County of San Diego, 742 F.3d 1144, 1149 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
11. See id.
12. See Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).
13. Heller, 554 U.S. at 595.
14. Id. at 584.
15. Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting) (quoting Black’s Law Dictionary 214 (6th ed. 1998)).
16. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
17. See Moore, 702 F.3d at 936.
20. See Peruta v. County of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014), rev’d en banc, 824 F.3d 919 (9th Cir. 2016).
21. See, e.g., Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (noting that the Second Amendment “may have some application beyond the home.” (emphasis in original)); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (“We … assume that the Heller right exists outside of the home …”).
22. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); see, e.g., United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir. 2012) (“A two-step inquiry has emerged as the prevailing approach”); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chicago, 651 F.3d 684, 701–04 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
23. See District of Columbia v. Heller, 554 U.S. 570, 679 (2008) (“The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition–in the place where the importance of the lawful defense of self, family, and property is most acute–would fail constitutional muster.”).
24. See Wrenn v. District of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017) (“the good-reason law is necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.”).
25. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355 (1983).
26. See Kachalsky v. County of Westchester, 701 F.3d 81, 88 n.8 (2nd Cir. 2012).
27. See id.; In re Kaplan v. Bratton, 249 A.D.2d 199, 201 (1998) (describing judicial review of an administrative determination under NY Penal Law Section 400.00(2)(f) and applying an arbitrary and capricious standard).
28. See Kachalsky, 701 F.3d at 96–97; United States v. Masciandaro, 638 F.3d 458, 471 (2d Cir. 2011); United States v. Skoien, 614 F.3d 638, 641–42 (7th Cir. 2010).
29. See Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997) (“governmental interests … may include an interest in public safety and order”); Schall v. Martin, 467 U.S. 253, 264 (1984); Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 300 (1981) (“Protection of the health and safety of the public is a paramount governmental interest”).
30. Empirical research shows that most criminals who use firearms do not get their guns from legal sources. 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 “unique, compelling, and justifiable need” requirement will thus have little impact to no impact in making sure guns are kept out of the hands of those who should not have them.
31. See, e.g., Plyler v Doe, 457 U.S. 202, 216–17 (1982).