"The Faces of the Second Amendment Outside the Home: History Versus
Ahistorical Standards of Review" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1938950 )
Cleveland State Law Review, Vol. 60, No. 1, 2012 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=319306 )
PATRICK J. CHARLES (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1428375 ),
Government of the United States of America - Air Force
Email: [email protected]
In the wake of District of Columbia v. Heller and McDonald v. City of
Chicago there have been numerous legal challenges to extend the Second
Amendment outside the home. The challenges come in all forms. Some
advocates rely on Heller’s dicta to claim handguns provide the
quintessential self-defense weapon outside the home. Other’s take a
balancing of liberty approach to claim any threats to the liberty,
security, and property of a person know no bounds, and must be preserved
with the public carrying of arms. Lastly, some challenges invoke First
Amendment jurisprudence to assert that any prior restraints on armed
individual self-defense are unconstitutional, unless the government can
show a compelling or substantial government interest for doing so.
In terms of historiography, what makes these challenges interesting is
they are a complete reversal from the gun lobby’s stance nearly three
decades earlier. Writing in 1983, Don B. Kates determined the Second
Amendment did not protect the right to carry guns outside the home,
unless 'in the course of militia service.' 'Outside of that context,'
wrote Kates, 'the only carrying of firearms which the amendment appears
to protect is such transportation as is implicit in the concept of a
right to possess - e.g., transporting them between the purchaser or
owner’s premises and a shooting range, or a gun store or gun smith and
so on.'
Today, however, the view of the Second Amendment has drastically
changed. Following the opinions in Heller and McDonald, advocacy groups
are pushing for robust Second Amendment rights outside the home. This
includes rights to open carry, conceal carry, and even a revisionist
libertarian spin of William Blackstone’s analysis on auxiliary rights.
Needless to say, the Second Amendment is continuing to morph further
into mythical meaning, and farther away from any historical context.
How is this being accomplished? One answer is revisionist history. This
occurs in all areas of constitutional law from the First Amendment to
congressional power over immigration, and is not limited to the Second
Amendment. Revisionism surfaces as a means for individuals, advocacy
groups, public interest groups and even politicians to advance an agenda
through the courts rather than adopt legislation or constitutional
reform. In short, revisionist history is a reeducation of the public to
believe a historical fiction was in fact a historical reality.
In terms of the right to 'keep and bear arms' in public places, this
means diminishing the founding generation’s understanding of the police
power to only a few minor exceptions. The founders are recast as a
gun-toting civil society where every individual’s life is portrayed as
more constitutionally significant or equal to society’s interest in
preserving the peace and ensuring the public good. In other words, it is
being asserted that an armed society facilitates the peace as much as a
well-regulated government or society. While this mythical Second
Amendment has garnered acceptance among some of the masses, politicians,
and gun advocates, the historical evidence does not support this
conclusion. Indeed, the founding generation saw a great importance for
arms bearing in the advancement of the Early Republic, but not in the
manner it is cast by gun proponents.
Another way the Second Amendment is being recast is through inventive
legal strategies. Those that advocate for a robust Second Amendment
outside the home seek solace in libertarian doctrine and First Amendment
jurisprudence. These approaches wish to cast aside history as
inconclusive, and claim armed individual self-defense as equally
fundamental in time, place, and manner as other constitutional rights,
such as freedom of speech or religion. In particular, it is argued that
the Second Amendment has finally been recognized as fundamental, and the
courts must begin jurisprudence anew to reflect this fact.
This article disagrees that the courts need to reinvent or recast the
Second Amendment outside the home to reflect its 'fundamental' status as
recognized in Heller and McDonald. The history of public arms regulation
already provides significant guideposts for the courts to adjudicate the
right to 'keep and bear arms' in public. To accomplish this, it requires
placing history in context and not letting mythical interpretations or
historical assumptions to permeate.
Thus, this article begins by decoding the public carrying of arms as
the founding generation would have understood it. It provides
substantiating historical evidence that counters the mythical meanings
of the Statute of Northampton, and proves that the Statute did not
solely seek to regulate a particular conduct with the intent to terrify,
but the activity of carrying arms among the public concourse. It was the
act of carrying arms itself that was deemed to terrify the people, for
it was thought to be uncommon and unsafe to go armed in a well-regulated
society. Such conduct ran counter to the idea of government authority
and the police power.
In addition to this showing, this article weighs the historical
approach against others, particularly libertarian balancing and the
importation of First Amendment jurisprudence into the Second. To apply
either of these latter approaches would be unprecedented in the
pantheons of arms regulation history and American jurisprudence
altogether. Not once did the founding generation conflate public arms
carrying with a presumption of liberty or prior restraint. Instead, arms
regulation was premised on what was in the interest of the public good.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
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