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What Gun Regulations Will the Supreme Court Allow? Part One: Restricting Firearms Outside of the Home

This is Part One in a two-part series of columns by Professor Dorf.  Part Two will appear here on Justia’s Verdict on January 2, 2013. –Ed.

The Newtown, Connecticut massacre of twenty schoolchildren and seven adults may have so changed the political landscape in America that gun-control laws that could not have been enacted just weeks ago are suddenly under discussion. Most of the proposed measures are modest: plugging gaps in the law requiring waiting periods for gun purchases; re-enactment of the “assault weapons” ban; restrictions on very large ammunition magazines; and so forth.

But what about much more serious restrictions?  Suppose that the political will developed for a ban on private possession of firearms in all public places? Would such a law—enacted at the federal, state, or local level—contravene the Second Amendment as interpreted by the Supreme Court? The answer is not entirely clear.

The high Court’s two leading Second Amendment cases—District of Columbia v. Heller in 2008, and McDonald v. City of Chicago in 2010—both found a right to possess firearms in the home. Neither case involved a right to carry firearms outside of the home, and the lower federal courts have reached contrary conclusions as to whether there is such a right.

For example, late last month, the U.S. Court of Appeals for the Second Circuit upheld New York’s restrictive scheme for licensing public carriage of guns in Kachalsky v. County of Westchester, but just two weeks later, the U.S. Court of Appeals for the Seventh Circuit invalidated an Illinois law barring most people from publicly carrying loaded guns in Moore v. Madigan.  Given the questions left unanswered in the Heller and McDonald cases, respectable arguments can be made either for or against a right to possess firearms in public.

In the balance of this column, I will examine those arguments. In my next column, which will appear on Wednesday, January 2, I will explore a deep irony that is at work in this area of constitutional law: In order to find a right to public carriage, the Court’s most conservative Justices may need to discard the originalist methodology that they purported to embrace in the Heller and McDonald cases, in favor of the sort of “living Constitution” view that they say they deplore.

The Supreme Court’s Second Amendment Cases

Prior to the Supreme Court’s 2008 ruling in the Heller case, it was not clear that the Second Amendment protected any individual right at all. The Amendment’s text is hardly pellucid. It states: “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.” Under the so-called “collective right” view, the Second Amendment only protects the right of the people of the several States to collective defense via their state militias.

In Heller, the Court rejected the collective right view. The main purpose of the Second Amendment may well have been collective defense, the majority said, but the means by which it achieves that purpose is by ensuring that when called to muster, the individuals who together make up the state militia will have weapons. And, the Court went on, when the people are not serving in the militia, they may use their firearms for a variety of purposes—including individual self-defense, a common-law right that late-Eighteenth-Century Americans highly valued.

The Court’s endorsement of the “individual right” view of the Second Amendment in Heller was controversial. The Justices split 5-4 along ideological lines, with the conservatives ruling in favor, and the liberals voting against, the individual right to private possession of firearms. They split the same way two years later in the McDonald case, when the majority ruled that the right that was recognized in Heller also limits state and local efforts to restrict gun possession.

Heller’s Limitations and Exceptions

Justice Antonin Scalia, the author of the majority opinion in Heller, likes to say that he’s an originalist and a textualist, but not a nut. Perhaps for that reason, his Heller opinion includes a number of sensible limitations and exceptions that are nonetheless difficult to square with the language and history of the Second Amendment.

If the purpose of the Second Amendment is to ensure an armed militia, then one might think that it especially protects just those weapons that are most useful in military service. In modern times, that would mean machine guns, rocket-propelled grenades, tanks, and other heavy weaponry. But recognizing the danger that private possession of such weapons would pose, Justice Scalia’s Heller opinion asserts that they fall outside of the Second Amendment.

Heller also mentions, but does not endorse, what is sometimes called the “insurrectionist” view of the Second Amendment—under which patriots maintain their store of arms to prevent the government from becoming tyrannical. One might think that Timothy McVeigh and the “militia movement” of the 1990s would have discredited the insurrectionist view, but it continues to be voiced by mainstream politicians. For example, just two years ago, the Nevada Republican candidate for the U.S. Senate, Sharron Angle, clearly associated the Second Amendment with insurrection. She lost the election, but she did win 45 percent of the vote.

The problem with the insurrectionist view of the Second Amendment is not that it is atextual or ahistorical. James Madison more or less laid out the insurrectionist view in Federalist No. 46—although Madison had in mind that the people of a state would rise up under the auspices of the state militia, not one-by-one or in private armed bands. Still, insurrectionists can rightly point to Madison and other founding fathers in support of their reading of the Second Amendment. But at least since the Civil War—when Confederate rebels attempted to exercise a right of armed rebellion, with disastrous consequences—most thoughtful Americans have come to understand insurrectionism as beyond the pale.

Beyond rejecting a reading of the Second Amendment that would protect private possession of high-powered military weaponry and largely setting aside insurrection, the Heller opinion validates a number of additional limits. The opinion, Justice Scalia said, should not “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.”

Since the Newtown massacre, some commentators have pointed to the inclusion of schools in the Court’s list of places that can be made firearms-free. But no one really doubted that government has the power to keep guns out of schools. Perhaps more important than what is on the Court’s list is the question of how Justice Scalia compiled that list—and thus, the further question of what else might be added to it.

The Uncertain Methodology of the Second Amendment Cases

In answering the core question before it in the Heller case, the Supreme Court used a version of originalism. To figure out what the Second Amendment protects today, the Court asked what its words would have been generally understood to protect in 1791, when it was enacted. After concluding that the Second Amendment was originally understood to codify a right to individual armed self-defense, the majority went on to marshal evidence for the proposition that this understanding remained largely unchanged throughout the Nineteenth Century and was consistent with the Court’s sparse Second Amendment precedents.

Notably, the Heller Court made little effort to explain the basis for its conclusion that the particular limitations and exceptions it was validating could also be justified by this methodology. In introducing the somewhat ad hoc list that I quoted above, Justice Scalia simply noted that historically, the right to possess firearms had been subject to regulation, including prohibition of concealed weapons.

What about other regulations? The Court said virtually nothing—in Heller or in the subsequent McDonald case—about what regulations, short of outright bans, would survive or about how such regulations should be evaluated. The Court left such questions for another day.

That day has now arrived—at least in the lower federal courts. New York permits private citizens to carry concealed firearms in public, but only if they can demonstrate a special need for doing so. And New York completely forbids private citizens from openly carrying firearms. Do those restrictions violate the Second Amendment? If not, what about the Illinois law that completely bars public carriage of loaded guns by all persons except for those in a small number of statutorily designated occupations?

To answer such questions, should courts look for precise Eighteenth and Nineteenth Century analogues to the New York and Illinois laws? Or is it enough that these laws fall within a general American tradition of firearms regulation? Until the Supreme Court grants review in another Second Amendment case, the lower courts will continue to struggle with such questions.

Is There Any Right to Carry Firearms in Public?

Might it be possible to bypass these questions for a whole class of firearms restrictions? Suppose that the Second Amendment simply affords no protection at all for possession of firearms outside of the home. Although the text of the Amendment draws no distinction between home possession and public possession of firearms, the Court’s decision in Heller repeatedly emphasizes the special value of firearms as a means of protection in the home.

Moreover, as I tentatively suggested in an essay for a 2008 symposium in the Syracuse Law Review, limiting the Second Amendment right to home possession would parallel the Court’s interpretation of other provisions of the Bill of Rights, including the First Amendment. Although that provision’s text also makes no distinction between the home and other locations, case law has afforded greater protection in the home. In the 1969 case of Stanley v. Georgia, the Supreme Court construed the First Amendment to protect home possession of material that could be proscribed as obscenity outside of the home.

Picking up and running with my suggestion, the next year University of Cincinnati Law Professor Darrell Miller wrote an article in the Columbia Law Review with the provocative title “Guns as Smut: Defending the Home-Bound Second Amendment.” In it, he explained how the individual right view of the Second Amendment depends on the distinction between the general militia—the whole body of the People—and a select militia—an armed subset of the People that may be used by tyrants to threaten the People’s liberties or by a mob to threaten the government itself. Miller tied the fears of a select militia to Seventeenth and Eighteenth Century English concerns about oppression by the Stuart kings as well as mob violence. He argued that the First Amendment right “peaceably to assemble” is best understood as a right to assemble unarmed. An armed assembly is, or has the potential easily to become, an oppressive select militia. Thus, Miller concluded that the Second Amendment would not have been originally understood to empower individuals to go about in public with firearms, except when performing militia service.

The home-bound view of the Second Amendment has not gone unchallenged. For example, UCLA Law Professor Eugene Volokh forcefully contested both the historical and policy grounds for Miller’s argument. Miller, in turn, objected that Volokh’s rebuttal took aim at the analogy between guns and smut, but missed the substance of his argument. As the progenitor of the obscenity analogy, I am not well positioned to referee this debate, even though I made the point more tentatively than Miller.

In any event, it is unlikely that the Supreme Court’s ultimate resolution of the question will turn on a close reading of the historical materials. Judge Richard Posner, who authored the Seventh Circuit opinion in Moore, argued that the opponents of the individual-right view of the Second Amendment lost the historical argument in Heller and McDonald, and so the question is now simply one of implementation. Because guns can be no less—and often can be more—useful for self-defense in public than in the home, public carriage falls within the scope of the Second Amendment right, he concluded.

If and when the Illinois case, the New York case, or some other case presenting strict limits on public carriage reaches the Supreme Court, will the Justices agree? The answer may depend on just how much guidance the Court’s conservative wing seeks from history, and how much they treat the right to self-defense as part of an evolving, living Second Amendment. I shall address that issue in Part Two of this series of columns, appearing here on Justia’s Verdict on January 2, 2013.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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  • Bob_Smith_12362

    How can somebody become a professor when they don’t even know how to read?

    JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE
    GINSBURG, and JUSTICE BREYER join, dissenting.

    The question presented by this case is not whether the
    Second Amendment protects a “collective right” or an
    “individual right.” Surely it protects a right that can be
    enforced by individuals.

    It wasn’t 5-4, it was 9-0. Pull your head out professor.

    Dorf’s words below:

    M. C. Dorf: “The Court’s endorsement of the “individual right” view of the Second Amendment in Heller was controversial. The Justices split 5-4 along ideological lines, with the conservatives ruling in favor, and the liberals voting against, the individual right to private possession of firearms.”

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  • http://twitter.com/robertnite Roberto Caballero

    “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember it or overthrow it.”

    ABRAHAM LINCOLN, First Inaugural Address, Mar. 4, 1861

  • jarhead1982

    So please show everyone where our founding fathers put into law the duty to retreat when not at home or that self defense outside ones home is illegal.

    Get back to us on that will you?

    • nekelund2

      It’s called common law, which is where the Castle doctrine originated and, unless a common law rule has been expressly over-ridden either by statutory law or the constitution, it remains the law of the land. Many defenses to criminal charges are products of common law, which relies on long-standing legal conventions and jurisprudence to determine what laws are when specific situations aren’t expressly addressed by statutory language. For what it’s worth, I am not aware of any State where self-defense is prohibited outside the home; however, self-defense generally (excluding “Stand your Ground” states) requires that other avenues of egress be unavailable and that the force used is reasonable relative to the threat posed; that is, self-defense must be defense against a real or objectively perceived attack, rather than a pre-emptive strike against someone. If someone grabs me by the shirt collar, I am likely justified in shoving them or grabbing their arms to force them to let go; I might even be justified in throwing a punch at them. I would not be justified in physically assaulting someone who merely looked menacing or whom I didn’t like and, in most cases, I would not be justified in pulling out a gun and shooting the person grabbing my collar because it is disproportionate. The reasonable retreat criteria is based on the notion that self-defense (or most forms of self-help, legally speaking) is legally justified only as a last resort, rather than as a first instinct, with the exception being that someone in his/her residence is entitled to use force without retreat, since it is unreasonable to expect someone to simply surrender their home without resistance.

      If you can’t be bothered to know what the law is before posting your legal opinion, then maybe a website about the law isn’t the right place for you. Argument from ignorance is both fallacious and ineffective.

  • mwb11

    As for federal regulation of firearms. The Gun Control Acts only allow possession via transfer. The term “transfer” denotes a taxable privilege between manufacturer and dealer. A class of persons that the second amendment does not apply to as they are engaged in an activity that affects a right not possessed. Subject to regulation under a FFL, as confirmed by the USSC, as a primary operation of the taxing power using commerce powers to control the movement of the item subject to the excise.

    Once the firearm is sold to the public, the property is suppose to be released from taxing and commerce powers. But BATF forms must be filled out and the purchase approved before transfer is allowed. The citizen signs the form and then possesses via transfer. Subject to the same general administrative power as those that that the second amendment does NOT apply to. The property was never released from commerce and the same plenary legislative powers apply. A power the courts will not interfere with.

    Property in a constitutional republic has been defined. Absolute title with right of contract and alienation. Yet how is anyone suppose to reach a property right under these conditions?

    Regulate? Maybe. Infringe under the second amendment? What second amendment? Can the feds extend the political/economic nature of its administrative powers that it exercises upon a class that the second amendment has no application….against the public itself? And as for the gun control laws. Applying the doctrine of separation of powers. How would a court sit in relation to the (property) right as that right was affected by the enforcement of the law?

    The second amendment is not the issue. Its a side issue. What I see here is another fine example of the destruction of the Due Process Clause through the unconstitutional extension of a virtually illimitable administrative power against a class it has no application to.

    • nekelund2

      How, then, can the government be justified in limiting sales to adults, the mentally fit and non-felons? If property rights are as immutable as you suggest, then they are as entitled as anyone to obtain, receive and use firearms as any other free citizen in the United States, unconstrained by burdensome government regulation. It would likely reduce violent crime? Conjecture and, in any event, irrelevant, since property rights trump the right of a properly-limited government to tell people who can have what type of lethal military-grade weapons.

  • http://www.facebook.com/christopher.j.hoffman Christopher J Hoffman

    Excellent article. I would ask the author to take a closer look at whether a sweeping ban on the best selling, most ubiquitous rifle in the land is truly modest, as he says.

    Contrary to specious arguments that AR15s are exotic, “high powered weaponry that belongs only on a battlefield”, semi-automatic rifles of the AR15 variety comprise the vast percentage of rifle sales, and are in wide use for a plethora of lawful purposes: home defense (because the relatively light round has limited over penetration), competition, target practice, and hunting, (though not deer hunting in many states due to the insufficient round). There is a version of this rifle tailored to nearly every imaginable, lawful purpose.

    Because the AR15 is the most popular rifle in America with perhaps tens of millions in private hands, it almost certainly passes the “common use” test seen in Heller. The instinct to ‘do something’ is understandable, but can there be no doubt that those bent on evil will always find their means. Any ban on these American rifles would clearly have no effect on the behavior of the individuals who must be identified, stopped, stopped, separated and treated.

    • Guest

      Not to mention tailored to such illegal purposes such as the killing of multiple, defenseless people in a public place, but why bother to bring that up? The fact that it was developed for military purposes and used for military purposes (as the M-16, which it was named pursuant to military weapon naming conventions) couldn’t be further beside the point. Millions of gun owners couldn’t possibly be wrong, right? It’s not as if any of them are anything but perfectly sane, law-abiding citizens who would never ever, ever use their weapons for any illegal purpose.

      If, as you say, those bent on evil will always find their means, then why should we assume that any action will have any effect whatsoever on the future Newtowns or Columbines? If there are armed guards, then killers will just shoot the armed guards with their otherwise legal AR15s and then start shooting up the joint. If teachers have guns, then the shooters will just shoot the teachers first or, perhaps, a disgruntled student will relieve a teacher of his or her firearm and start killing classmates. As you said, those bent on evil will always find a way. If we lock them up, they will just escape and commit more crimes, or recruit other evildoers to vicariously commit their atrocities. The problem with doing something is that it is fundamentally inconsistent with, and inherently more difficult than, the concept of doing nothing. Maybe school shootings, fit-of-pique shootings and accidental home shootings are simply the
      price of freedom to have military-grade weaponry in one’s own home. No
      free lunches, right?

      Yes, you could hunt with an AR15. You could also, if they were legal, hunt with a Gatling gun, an RPG or an anti-aircraft gun (no issues with stopping power there). As for self-defense, you never know when an entire band of pirates will swashbuckle in or aliens will attack from the sky or when Britain decides to get its turf back and sics the RAF on America. Unleashing some blasts from your legal 88’s would then be perfectly justified. Unlikely? So is the possibility that your home will be invaded by anyone that you would be unable to stop with a 9-mm or a bolt-action, but details, details.

      If Adam Lanza’s mom didn’t have legal assault rifles, he might have been left with only handguns or single-shot rifles which, since AR15s are as effective as you suggest, would clearly have been less efficient in accomplishing his goal of mass murder. But, hey, let’s implement mandatory psychiatric screening for every person in America and if they have any mental disorder that could conceivably result in misuse of a dangerous firearm, be it clinical depression, hypertension, ADHD or PTSD as a result of having been the victim of a rape or violent assault, lock them up and throw away the key. Because then gun owners can carry their gratuitously-excessive-for-virtually-any-legitimate-non-military-purpose high rate-of-fire, large cartridge weapons into schools and bars and churches and mosques secure in the knowledge that it is fundamentally impossible that anyone will decide to just open up and start shooting. Problem definitively solved.

      • http://www.facebook.com/Jim.Parrie Dilt Pernz

        What a childish rant!

  • Brian Johnston

    Sir
    It is quite clear. The Second Ammendment gives the ‘people’ that is the individual the right to own and bear firearms. The well regulated militia was to be raised from the people who would supply their own weapons. The gun controllers ‘choose’ to think otherwise. It was intended that the people could rise against a tyrannical Government. The people had the right to self defence. America is staring at a future tyrannical Government right now. Somebody wants America disarmed. I believe Sandy Hook, Aurora and other massacres were planned and not by ‘lone nuts’. Port Arthur, Tasmania, Australia was a planned massacre. Martin Bryant was gaoled without trial and no coronial enquiry, illegal.
    Your comments would be appreciated.
    Regards
    Brian

  • Joe

    First the Constitution is not a living document. if it were we would not need a constitution at all and could just make do with Common law. unwritten and infinitely elastic. And subject to abuse by the power of the State. At a minimum our Constitution is intended to restrain government not enable it

    At present we have mutated from a government of limited powers against which some rights ( preexisting rights under English common law) are asserted and explicitly declared non exhaustive) are asserted to a government under which infinite power is presumed under the taxing power and limited rights are carved out in relief. If you deny this consider that the court now gives more credence to rights implied in the penumbrae that those declared in the text.

    This should concern any who value liberty. The courts word on the constitution is not the same as the Constitution, as an honest look at some of the courts most ignoble work over the years suggests.

    Your observation that the collective rights interpretation lost is rather understated considering that that view is largely a work of fiction, designed to escape the plain meaning and historical context for the words, and most importantly enable the policy desired by the powers that be.

    This kind of expedient interpretation damages not only our constitution and the creditably of the court, but threatens the idea of constitutionally limited government itself. Who will guard the gaurds, is now become who will constrain the deconstructionism.

    Were the anti- federalists right ? Or can we get back to the course wisely set by our treasonous founders ?

  • The Embryo Parson

    At the end of the day, Mr. Dorf, it really doesn’t matter what you think. Or even what the courts think.

    • http://www.facebook.com/Jim.Parrie Dilt Pernz

      So then, what does matter?

  • Kenny Lynch

    Dear gun-hating liberals, nearly all modern sporting arms are descended from military weapons. Did you know that the bolt action hunting rifle at your local walmart is a variant of the very same rifle the nazis used to shoot at your grandfather? So that argument doesn’t wash. The founding fathers were very supportive of free men using firearms. Semi-autos have been in use nearly 100 years and the ar15 in semi-auto mode is no more or less effective than any other rifle. In fact many military experts wish our military used something else since its not powerful enough. I truly am saddened by the recent events that have happened lately. So out of respect for the victims we should try to truly find some effective solution to prevent future crimes. that being said, you cannot legislate against this type of thing. Tragedy is tied to human existence and will continue to be

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  • http://twitter.com/soderstromk Ken Soderstrom

    The Illinois case confirmed 2A protects bearing arms outside of the home, as has Bateman v Perdue. Your hopes for a limited right is circling around the drain.

    It has now been made clear that a well-regulated militia requires well-armed citizens, and both are what is necessary to the security of a free state. You’d be better of acknowledging this and working to eliminate the “Gun Free Zones” that are rife with violent crime.

  • prescient11

    This guy is a professor? Is Cornell embarrassed? The right to keep and bear arms shall not be infringed. Hmmm. So, in your genius world, you think that the words “keep” and “bear” (two obviously distinct concepts) somehow have a greater application in the home. How much is your tuition??
    Why are lefties so dumb? Surely they can’t believe the drivel they put on paper? No genius, there clearly is a right to carry outside the home, the f***king word “bear” would appear nowhere in the Second Amendment.
    It can be limited in sensitive places, as has been the case since before the revolution (such as government buildings/schools, etc.), but that’s pretty much it skippy. And a government bureaucrat deciding, in his opinion that you don’t need one, ain’t gonna cut it. May issue will fall, shall issue is the law.
    Savvy?

  • prescient11

    And another thing, just what in the world do you think later events have to do with what the Amendment was there for??
    If the Amendment was there to protect the people against a tyrannical government, that’s the TRUTH and no invocation of Timothy McVeigh will change that.
    And yes, “more thoughtful Americans” reject the “insurrectionist view” eh skippy? I’ll take James Madison’s opinions of yours any day of the week, frankly.
    There are tens of millions of Jews, minorities, and Asian people, who were all disarmed and slaughtered (much later than our civil war, mind you) that concur.

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