by Michael Treves*
Columbine. Sandy Hook. Virginia Tech. Aurora. Orlando. Las Vegas. Parkland. The locations of America’s mass shootings have become seared into our nation’s memory. And, sadly, the list keeps growing. Under the broader definition of mass shootings, America has around one mass shooting a day.1
The United States has a unique problem with guns. It is one of the few countries in the world in which the right to keep and bear arms is constitutionally protected. However, the United States is also, among developed nations, the most homicidal—in large part due to the easy access many Americans have to firearms.2 The United States has nearly six times the gun homicide rate as Canada, more than seven times as Sweden, and nearly sixteen times as Germany.3 While the United States has only 4.4 percent of the world’s population, it has almost half of the civilian-owned guns around the world.4
Yet, despite the large numbers of gun-related deaths in America, support for gun ownership has sharply increased since the early 2000s.5 At the heart of the emotionally charged debate over gun control in America is the Second Amendment of the United States Constitution. The Second Amendment provides that, “[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.”6
In 2008, in District of Columbia v. Heller, the Supreme Court attempted to clarify, in part, the meaning of the Second Amendment.7 Limited by the facts of Heller, the Court held that the Second Amendment protects an individual’s right to keep and bear arms for self-defense inside the home.8 Two years later, in McDonald v. City of Chicago, the Supreme Court further held that the Fourteenth Amendment incorporated to the states the Second Amendment right to keep and bear arms for self-defense.9 After Heller, it is undeniable that the Second Amendment protects a right to bear arms for self-defense inside the home; but, as the United States Court of Appeals for the Seventh Circuit stated: “[T]he Supreme Court has not yet addressed the question whether the Second Amendment creates a right of self-defense outside the home.”10
This Note will argue that in light of the text and history of the Second Amendment and Supreme Court precedent, an unabridged right to lawful armed self-defense under the Second Amendment stops at the doorstep and does not extend outside of the home. As such, public carry laws do not regulate conduct that falls within the scope of the Second Amendment right.
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Without clear guidance from the Supreme Court after District of Columbia v. Heller, the lower courts have splintered in their examinations of the constitutionality of public carry laws. Four federal circuits—First, Second, Third and Fourth—have all upheld licensing requirements that limit the public carry of a firearm to a proper purpose.11 On the other hand, the Seventh Circuit, Ninth Circuit and District of Columbia Circuit have all struck down similar laws.12
Although the Supreme Court has yet to prescribe a particular form of inquiry for Second Amendment challenges, every federal circuit court to decide the issue has adopted a two-step test for evaluating such claims.13 Courts applying the two-part test “first consider whether the challenged law imposes a burden on conduct that falls within the scope of the Second Amendment’s guarantee as historically understood, and if so, courts next determine the appropriate form of judicial scrutiny to apply (typically, some form of either intermediate scrutiny or strict scrutiny).”14
A historical understanding of the Second Amendment is important at both steps of the two-step test. The threshold question is whether the regulatory scheme impinges on conduct that “falls within the scope of the Second Amendment’s guarantee as historically understood.”15 This inquiry, informed by history, requires determining how proximate a regulation is to the “core” of the Second Amendment; this, in turn, informs the appropriate level of scrutiny. The circuits have generally held that strict scrutiny applies to regulations that burden the “core” of the Second Amendment and that, otherwise, intermediate scrutiny governs.16
In determining whether conduct falls outside the “core” of the Second Amendment, courts examine the extent to which that activity has historically been regulated.17 If the activity has been subject to longstanding regulation, courts will uphold the ability of states to regulate it through the police power.18 As the Court stated in Heller, longstanding prohibitions “are presumed not to burden conduct within the scope of the Second Amendment” because they have “long been accepted by the public” as consistent with its protections.19
Even if a court determines that a regulation is outside of the scope of the Second Amendment, its historical roots remain relevant to the constitutional analysis at step two. A regulation of carrying firearms survives intermediate scrutiny “if it is substantially related to the achievement of [the] important governmental interest” in public safety.20 In determining whether a law meets this test, the court must afford “substantial deference to the predictive judgments” of the legislature, because “[i]t is the legislature’s job, not the [courts’], to weigh conflicting evidence and make policy judgments.”21 A greater degree of deference is warranted when the law at issue has a longstanding history, because the history shows that “states have long recognized a countervailing and competing set of concerns with regard to handgun ownership and use in public.”22
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According to District of Columbia v. Heller, the scope of the Second Amendment is determined by its historical origins and its plain language.23 Laws restricting the public carry of firearms are consistent with the text of the Second Amendment and centuries of similar or more stringent restrictions on the right to carry firearms in public, as well as the Supreme Court’s decisions in Heller and McDonald. Accordingly, these regulations do not burden conduct that falls within the scope—or “core”—of the Second Amendment right.
To begin, regulations on the public carry of firearms are consistent with the text of the Second Amendment. That the Second Amendment speaks of the “right of the people to keep and bear arms” does not imply a right to carry a firearm outside of the home.24 To “bear” arms under the Second Amendment has at least two meanings other than the right to carry a firearm in public places at all times. Heller itself demonstrates this. First, Heller states that, consistent with the purpose of codifying the Second Amendment—namely, to preserve the militia—carrying arms during government-related militia service is protected.25 Second, Heller holds that the Second Amendment protects carrying arms “in defense of hearth and home.”26 The Court interpreted “bear” to mean to “carry” or to “wear, bear, or carry,” upon one’s person, for the purpose of being armed and ready in case of conflict.27
The Court in Heller contemplated that a gun might only be carried in the home, as it ordered the District of Columbia to permit Heller to do precisely that: it directed that unless Heller was otherwise disqualified, the District of Columbia must allow him “to register his handgun and must issue him a license to carry it in the home.”28 Heller did not want simply “to keep” a gun in his home; he wanted to be able “to bear” it in case of self-defense, and the Supreme Court said he could. Therefore, reading the Second Amendment to not include an absolute right to public carry is consistent with Heller and does not read the word “bear” out of the constitutional text.29
Historical evidence about the public understanding of the pre-existing right to keep and bear arms, as it was understood in England before the Framing and during the Framing-era in America, demonstrates a longstanding tradition of regulation on the public carry of firearms.30 A focus on the historical understanding of the pre-existing English right to keep and bear arms is crucial, since “it has always been widely understood that the Second Amendment … codified a pre-existing right” in English law.31
For centuries before the Framing of the United States Constitution, England criminalized the practice of carrying arms in public. In 1328, the English Parliament enacted the Statute of Northampton, a broad and “widely enforced” prohibition on the public carry of offensive weapons.32 The Statute provided that, except while on the King’s business, no man was permitted to “go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure.”33 This prohibition was far-reaching. The Statute extended to all places within “the King’s peace”—that is, within the King’s effective control—including “Fairs, Markets, and any other places” where people would congregate.34 Moreover, in 1579, Queen Elizabeth I issued a proclamation clarifying that the Statute banned the carrying of “Daggers, Pistols, and such like, not only in Cities and Towns, but in all parts of the Realm.”35
Those circuits that have struck down licensing requirements have held that the Statute of Northampton only criminalized the public carrying of a firearm with an intent to cause terror.36 However, a subjective intent was never an element of the prohibition.37 The Statute adopted a strict liability standard, and “intent to cause terror” was presumed by the mere act of traveling armed.38 The Statute was a categorical prohibition on the carry of arms in populated areas. As Queen Elizabeth declared in 1574, in defense of her strict enforcement of the Statute, the public carrying of pistols, whether “secretly” or in the “open,” was “to the terrour of all people professing to travel and live peaceably.”39
The right to arms was codified in England in the Declaration of Rights in 1689. The Court in Heller stated that this right “has long been understood to be the predecessor to our Second Amendment.”40 The 1689 Declaration did not, however, create a general, unrestricted right to bear arms. The Declaration ensured that subjects “may have arms for their defence suitable to their conditions, and as allowed by law.”41 And the Statute of Northampton remained in effect even following codification of the right to arms. As William Blackstone explained, the English right was an “auxiliary subordinate right,” only granted “as … allowed by law”; it was “a public allowance, under due restrictions,” one of which included the Statute of Northampton.42
Prominent English scholars agreed that there was no right to carry weapons for self-defense outside of the home. William Blackstone confirmed the continued applicability of the Statute of Northampton. In his Commentaries on the Laws of England, Blackstone stated, “The offence of riding or going armed, with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton, … upon pain of forfeiture of the arms and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour.”43 Additionally, Lord Coke explained that one could defend one’s home, but would be guilty if he went armed in public even for “safeguard of his life.”44 And, William Hawkins similarly noted that the Statute of Northampton permitted one to defend himself “in his own House” because “a man’s house is as his castle,” but did not allow one to “excuse the wearing [of] such Armour in Publick,” even if he claimed “such a one threatened him, and that he wears it for the Safety of his Person from Assault.”45
The American colonies adopted much of the English tradition on gun regulation. Many colonies enacted their own versions of the Statute of Northampton. In 1686, New Jersey became the first colony to codify the prohibition with a law that provided that no person “shall presume privately to wear any pocket pistol … or other unusual or unlawful weapons,” and that “no planter shall ride or go armed with sword, pistol, or dagger.”46 Other colonies, including Massachusetts and New Hampshire, enacted similar categorical prohibitions.47
And, after the American Revolution, many of the now American states maintained their strict prohibitions on public carry. Many states “adopted verbatim, or almost verbatim, English law.”48 For instance, North Carolina’s formulation followed its English predecessor closely, and declared that no person may “go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the King’s Justices, or other ministers, nor in no parts elsewhere.”49 Massachusetts’ law made it a crime for anyone to “ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.”50 Numerous other states enacted similar statutes.51 Others implemented similar prohibitions through common law.52
States enforced these laws as general prohibitions on carrying offensive weapons, including firearms, in populated areas. The act of armed travel with a firearm was itself the offense. Arrests did not require that a defendant “threaten any person” or “commit any particular act of violence.”53 Moreover, justices of the peace and other law enforcement officials maintained significant authority to preempt violence by arresting or disarming individuals they judged to be a threat to the peace, including those who violated the prohibition on armed travel in public.54
In sum, the historical evidence demonstrates that by the time of the Framing of the United States Constitution, England had a longstanding tradition of regulating and prohibiting the public carry of weapons, particularly offensive weapons, such as firearms. These prohibitions did not depend on the circumstances: the very act of carrying a firearm in public was prohibited precisely because it naturally terrified the public. This tradition was adopted by the colonies, and later by the states, leading to the introduction of numerous laws throughout the country during the Framing-era that limited the public carry of firearms.
The longstanding tradition of public carry regulation demonstrates that carrying firearms outside of the home is plainly outside the “core” of the Second Amendment right. This conclusion is consistent with Supreme Court precedent as expressed in Heller and McDonald and holdings by the First, Second and Fourth Circuits that the right to public carry lies outside the Second Amendment’s “core.”55 Those circuits that have struck down licensing statutes on the public carry of firearms, on the other hand, have read Heller to imply an unconditional right to publicly carry arms for self-defense.56 But this reading is too broad. Heller was never meant “to clarify the entire field” of Second Amendment jurisprudence, but rather strike down a single law that “ran roughshod” over residents’ individual right to possess handguns in the home.57 As the Seventh Circuit stated in United States v. Skoien, Heller’s language “warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment created individual rights, one of which is keeping operable handguns at home for self-defense.”58 This conclusion is reinforced by McDonald, in which the Court plainly stated that Heller “does not imperil every law regulating firearms.”59
Indeed, the Heller Court made this same point as well. The majority opinion stated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited” and thus does not protect “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” or “for any sort of confrontation.”60 In fact, the Court noted that nothing in its holding should “cast doubt” on a non-exhaustive list of “longstanding prohibitions” that are “presumptively lawful”.61 The Court mentioned that most “19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”62
Heller should only be read for what it precisely states: “the need for defense of self, family, and property is most acute” in the home.63 By characterizing the Second Amendment right as most acute in the home, the Supreme Court necessarily implied that that right is less acute outside the home. Had the Supreme Court intended to create a broader general right to carry for self-defense outside of the home, the Court in Heller, or subsequently in McDonald, would have done so explicitly.
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The debate on gun reform in the United States has introduced important questions about the meaning of the Second Amendment and, in the wake of the Supreme Court decision in District of Columbia v. Heller, the extent to which the Second Amendment applies outside of the home. Critics of gun reform often bemoan that any form of gun regulation on the public carry of firearms is an explicit violation of the Second Amendment. Although the Supreme Court has to date repeatedly denied writs of certiorari addressing this specific question, the Court has provided a framework to understand the application of the Second Amendment outside of the home. Based on a review of the text and history of the Second Amendment and Supreme Court precedent, it is clear that public carry laws regulate conduct that is outside the scope of the Second Amendment right. With the increasing number of gun-related deaths in America, the need for sensible gun reform has become more and more apparent. The Second Amendment should no longer stand as a barrier to such change.
* Michael Treves is a 3L at New York University School of Law.
1. Christopher Ingraham, We’re Now Averaging More Than One Mass Shooting Per Day in 2015, Wash. Post, Aug. 26, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/08/26/were-now-averaging-more-than-one-mass-shooting-per-day-in-2015.
2. Extensive reviews of the research, compiled by the Harvard School of Public Health’s Injury Control Research Center, suggest the answer is pretty simple: The US is an outlier on gun violence because it has many more guns than other developed nations. Harvard Injury Control Research Ctr., Homicide, Firearms Research, https://www.hsph.harvard.edu/hicrc/firearms-research/guns-and-death (last visited Jan. 28, 2019).
3. Mona Chalabi, Gun Homicides and Gun Ownership Listed by Country, The Guardian (Jul. 22, 2012, 5:00 AM), https://www.theguardian.com/news/datablog/2012/jul/22/gun-homicides-ownership-world-list.
5. Kim Parker et al., Views on Gun Policy, America’s Complex Relationship With Guns (June 22, 2017), http://www.pewsocialtrends.org/2017/06/22/views-on-gun-policy.
6. U.S. Const. amend. II.
7. 554 U.S. 570, 592 (2008) (stating the Second Amendment confers the right to carry a firearm for protection).
8. Id. at 635.
9. McDonald v. City of Chi., 561 U.S. 742, 750 (2010) (“[W]e hold that the Second Amendment right is fully applicable to the States.”).
10. Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012).
11. See Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) (“good reason”); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (“good and substantial reason”); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (“justifiable need”); Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (“proper cause”).
12. See Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018); Wrenn v. Dist. of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).
13. See N.Y. State Rifle & Pistol Ass’n v. Cuomo, 804 F.3d 242, 254 (2d Cir. 2015); 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); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1123, 1260 n.34 (11th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Heller I”); Ezell v. City of Chi., 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).
14. See Powell v. Tompkins, 783 F.3d 332, 347 n.9 (1st Cir. 2015).
15. Id. at 347 n.9.
16. See, e.g., id. at 1257; Kachalsky, 701 F.3d at 93–94; United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011); Marzzarella, 614 F.3d at 97.
17. See, e.g., Kachalsky, 701 F.3d at 93–94; Masciandaro, 638 F.3d at 470; Marzzarella, 614 F.3d at 97.
18. See, e.g., Kachalsky, 701 F.3d at 96.
19. Heller I, 670 F.3d at 1253.
20. Kachalsky, 701 F.3d at 96.
21. Id. at 97, 99.
22. Id. at 96.
23. District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (noting that these two considerations decide the scope of the right to bear arms). This is because text and history bear most strongly on what the right was understood to mean, at the time of enactment, to the public. Young v. Hawaii, 896 F.3d 1044, 1051 (9th Cir. 2018).
24. U.S. Const. amend. II (emphasis added). Cf. Young, 896 F.3d at 1052–53.
25. See Heller, 554 U.S. at 599 (“[T]he Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.… [T]he threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right – unlike some other English rights – was codified in a written Constitution.”).
26. Id. at 635.
27. Id. at 584.
28. Id. at 635 (emphasis added).
29. But see Young v. Hawaii, 896 F.3d 1044, 1053 (9th Cir. 2018) (“Understanding ‘bear’ to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between ‘keep’ and ‘bear’ to avoid rendering the latter guarantee as mere surplusage.”).
30. The relevant historical inquiry involves “examination of a variety of legal and other sources to determine the public understanding of [the] legal text,” with particular stress on the understanding of the Second Amendment during “the founding period.” Heller, 554 U.S at 595, 604. As the Seventh Circuit noted, “Heller focused almost exclusively on the original public meaning of the Second Amendment, consulting the text and relevant historical materials to determine how the Amendment was understood at the time of ratification.” Ezell v. City of Chi., 651 F.3d 684, 700 (7th Cir. 2011). This is because the Supreme Court in Heller understood the Second Amendment to have codified a “pre-existing right.” Heller, 554 U.S. at 592.
31. Heller, 554 U.S. at 592, 599.
32. Peruta v. City of San Diego, 824 F.3d 919, 930 (9th Cir. 2016) (deeming the Statute of Northampton “the foundation for firearms regulation in England for the next several centuries”).
33. Statute of Northampton, 2 Edw. 3, c. 3 (1328) (Eng.).
34. See Joseph Keble, An Assistance to the Justices of the Peace, for the Easier Performance of Their Duty 224 (1683).
35. Id. at 21 (emphasis added).
36. See, e.g., Young v. Hawaii, 896 F.3d 1044, 1066–68 (9th Cir. 2018).
37. In the years following its enactment, King Edward III and his successors directed sheriffs and bailiffs to arrest “all those whom [they] shall find going armed.” Patrick J. Charles, The Faces of the Second Amendment Outside the Home, 60 Clev. St. L. Rev. 1, 13–25 (2012) (citation omitted).
38. Eric M. Ruben & Saul Cornell, Firearm Regionalism & Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J. F. 121, 129–30 (2015).
39. Charles, supra note 37, at 22 (citation omitted).
40. District of Columbia v. Heller, 554 U.S. 570, 593 (2008).
41. 1 W. & M., ch. 2, § 7 (1689) (emphasis added).
42. 1 William Blackstone, Commentaries *141–44.
43. William Blackstone, Commentaries on the Laws of England 148–49 (1769).
44. 3 Lord Coke, Institutes of the Law of England 161–62 (1797).
45. 1 William Hawkins, Treatise of the Pleas of the Crown ch. 63, § 8 (1716).
46. 1686 N.J. Laws 289, ch. 9.
47. See 1694 Mass. Acts 10, no. 6; 1699 N.H. Laws 1.
48. Peruta v. City of San Diego, 824 F.3d 919, 933 (9th Cir. 2016).
49. 1792 N.C. Sess. Laws 60, ch. 3.
50. 1795 Mass. Acts 436, ch. 2.
51. See, e.g., 1786 Va. Acts 33, ch. 21; 1801 Tenn. Pub. Acts 710, § 6; 1821 Me. Laws 285, ch. 76, § 1; 1852 Del. Laws 330, ch. 97, § 13.
52. See, e.g., Md. Const. of 1776, art. III, § 1 (adopting “the Common Law of England” and “the English statutes, as existed at the time of their first emigration”); see also Charles, supra note 37, at 31–32.
53. James Ewing, A Treatise on the Office & Duty of a Justice of the Peace 546 (1805); see also Joel Prentiss Bishop, Commentaries on the Criminal Law § 980 (3d ed. 1865) (noting that there was no requirement that “peace must actually be broken, to lay the foundation for a criminal proceeding”).
54. Saul Cornell, The Right to Keep & Carry Arms in Anglo-American Law: Preserving Liberty & Keeping the Peace, 80 L. & Contemp. Probs. 11, 31 (2017) (“The primary function of the justice of the peace in the new American Republic remained unchanged: to preserve the peace.”).
55. See District of Columbia v. Heller, 554 U.S. 570, 595 (2008); McDonald v. City of Chi., 561 U.S. 742, 786 (2010); Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) (“good reason”); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (“good and substantial reason”); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (“justifiable need”); Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (“proper cause”).
56. See, e.g., 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.”).
57. Kachalsky, 701 F.3d at 88–89.
58. 614 F.3d 638, 640 (7th Cir. 2010) (emphasis added).
59. McDonald, 561 U.S. at 786.
60. Heller, 554 U.S. at 595.
61. Id. at 626–27.
62. Id. at 626–27; see also McDonald, 561 U.S. at 786.
63. Id. at 628; see also Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (“[T]he individual right to bear arms for the purpose of self-defense [in] the home [is] the ‘core’ of the right as identified by Heller.”); Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“Second Amendment guarantees are at their zenith within the home.”); United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (“[A] lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home.”).