"Modeling the Second Amendment Right to Carry Arms (I): Judicial
Tradition and the Scope of ‘Bearing Arms’ for Self-Defense" (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1949477 )
American University Law Review, Vol. 61, 2012 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=283437 )
MICHAEL P. O'SHEA (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=391312 ),
Oklahoma City University School of Law
Email: [email protected]
This Article sheds light on the most important constitutional question
opened up by the United States Supreme Court’s landmark decisions in
District of Columbia v. Heller and McDonald v. Chicago: Does the Second
Amendment “right to bear arms” include a right to carry handguns and
other common weapons for self-defense outside the home? Some courts and
commentators have declared that Heller held that the Second Amendment
right is limited to the home, so that restrictions on handgun carrying
do not even fall within the scope of the Second Amendment. Others assert
that the potential applicability of the right to bear arms outside the
home is simply a “vast terra incognita,” devoid of guidance, into which
lower courts should hesitate to venture for prudential reasons.
These courts are mistaken about Heller and mistaken about the absence
of guidance. As I show, Heller and McDonald have two holdings, not just
one: they adopted a particular interpretation of the right to bear arms,
then applied that understanding to the bans on handgun possession that
were before them. The right that Heller adopted has a long tradition in
the state courts, and that tradition supports a right to carry outside
the home.
The centerpiece of the Article is an analysis of the past 190 years of
state court constitutional precedent on arms carrying. I show that there
have really been two different traditions of the individual right to
bear arms: a defense-based right, under which courts construe the right
to bear arms as protecting a meaningful right to carry handguns for
self-protection, and a “hybrid” or civic-based right, under which gun
possession is protected, but courts do not view self-defense as an
important purpose of the right, and therefore uphold broad restrictions
on weapons carrying. I show that Heller and McDonald embraced the first
tradition and rejected the second. Once lower courts and scholars look
to the correct line of precedent, they will find powerful arguments that
the Second Amendment’s scope includes a right of individuals to carry
handguns in public for self-defense.
Part I supplies a useful vocabulary for the discussion by
distinguishing three different conceptions of the relationship between
self-defense and the right to carry arms; these are the three competing
models of the right. Part II then examines the Heller and McDonald
decisions, and what they suggest about the scope of Second Amendment
carry rights. Part III is by far the longest part of the Article. It
conducts a detailed review of the long history of litigation in the
state courts over the carrying of weapons, and shows that courts
applying a defense-based, individual right to bear arms have regularly
held that it includes a right to carry weapons outside the home. This
right was particularly well protected in the period between the
ratification of the Second Amendment in 1791 and the ratification of the
Fourteenth Amendment in 1868, which Heller and McDonald teach is a
critical period for originalist inquiry into the right to keep and bear
arms. Finally, Part IV concludes by identifying lessons that the
Article’s analysis implies for courts, legal scholars, and historians
today.
****************************************************************************************************************
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
_______________________________________________
To post, send message to [email protected]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
