Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?

The Supreme Court will consider the petition Thursday.

|The Volokh Conspiracy |

The case is Rogers v. Grewal, which challenges New Jersey's restrictive firearms carry license policy. There's a split on the subject among lower courts; the details are a bit complicated, but the short version is that the First, Second, Third, and Fourth Circuits have upheld such restrictive policies, while the Seventh and D.C. Circuits, together with the Illinois Supreme Court have struck down some such policies. (A panel of the Ninth Circuit has also struck down such a policy, but that has been vacated pending rehearing en banc.) The split between the Third Circuit decision below and the D.C. Circuit decision striking down a similar D.C. law is especially sharp; you can see more in the briefs here.

We may know more Thursday (May 23), though it's also possible that the Court will "relist" the case several times, while the Justices are considering whether or not to hear it. It's also possible that the Court will hold the case pending New York State Rifle & Pistol Association Inc. v. City of New York, the Second Amendment case that the Court has already agreed to hear, and that will be heard in the Fall. Depending on the reasoning of the New York State Rifle & Pistol decision, the Court could then either agree to hear Rogers, decide not to hear it, or send it back to the Third Circuit to be reconsidered in light of the New York State Rifle & Pistol decision. But the Court could also decide to hear Rogers (or decide not to hear it) even before it decides New York State Rifle & Pistol.


NEXT: Donald Trump Responds To Justin Amash: 'Never a Fan...Total Lightweight...Loser'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Maybe I’m not understanding something, but this didn’t make sense to me in the second paragraph.

    “…that might be heard in April.”

    It’s past April for this year, so the tense or the month seems wrong, or is it just me?

    1. Whoops — very sorry, that’s a carryover from an earlier post that I failed to properly edit out. Just fixed it, hope things are clearer now.

    2. NYSRPA v. City of NY may be moot by this fall. NYPD, knowing they would likely lose the case, decided to change the regulation rather than give SCOTUS the opportunity to issue a sweeping decision that would invalidate many of NYC’s regulations.

      1. SCOTUS already rejected that argument.

  2. 10 years from Heller and NJ’s gun control regime still stands. For the benefit of the cheap seats, NJ’s firearms statutes are written with the presumption that all gun ownership is illegal and the listed exceptions are how its citizens purchase, possess, carry, and hunt with them.

    1. It’s an outrage. 10 years of letting blatantly unconstitutional gun control schemes “percolate” through the lower courts, most of which have ignored Heller. Contrast that to same-sex marriage, where clerks granted marriage licenses the day after most of the decisions.

      1. Heller specifically avoids this question, and in the absence of SCOTUS authority, there is a split as to the issue.

        In that situation, you can’t talk about “blatant” unconstitutionality. The Constitution requires a common law legal system where we follow precedents and don’t simply cold-read the Constitution and say “I think it means X”.

        1. Blah blah. “The RIGHT of the PEOPLE to keep and BEAR arms shall not be infringed.” It doesn’t get much more clear than that. There’s absolutely no way to argue in good faith that “may-issue” comports with that. None.

          1. Only to extremists. Reasonable people can disagree with the meaning of what is not that clear of a statement written in another era.

            1. No, not at all. Even the left doesn’t claim it doesn’t mean what it says. They just claim that “public safety” overrides it.

          2. Maybe you should include the first sentence!

            1. I only got up to Differential Equations so maybe my grasp of basic math isn’t as advanced as DStraws but I only count one sentence in the text of the Second Amendment.

              As for my grasp of history, I think I’ll trust George Mason and James Madison over some random revisionists.

        2. Forgive my laziness in not having read the opinions, but in a nutshell how do they get around the core of Heller, which is the right to have firearms for individual self-defense?
          You’re right that Heller leaves a lot of room for regulations and restrictions but as a matter of logic I would have thought this was central to it.

          1. They limit it to the precise circumstances of Heller, (The right to have a functioning firearm within the home. Then they use rational basis review and claim to be doing intermediate scrutiny.

            The courts have a lot of practice at this sort of thing; Before Heller, they spent nearly 80 years standing Miller on it’s head. (Miller, believe it or not, stood for the principle that it was the ownership of military arms that was protected.)

            1. And even the right to have a functinoing firearm within the home (what they term the “core right” as a way of disparaging any others) can be subject to ridiculous restrictions, like requiring it being locked up at all times (Jackson v. City and County of San Francisco), a $340 fee (Kwong v. Bloomberg), or even restrictions on types of firearms that the banning of which makes people “feel safer” (Friedman v. City of Highland Park).

              Professor Volokh said it right many years ago when he wrote:

              “This also reflects, I think, the fact that intermediate scrutiny (which requires that “the legislature’s policy choice substantially serves a significant governmental interest”), coupled with deference to the legislature’s factual judgments (“[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments”), essentially means per se validation of pretty much all gun controls that will be tested under such scrutiny. The legislature will always be able to assert a significant governmental interest in preventing crime, reducing the use of police resources, and so on, and will nearly always be able to plausibly argue that it has “weigh[ed] conflicting evidence” in concluding that the law “substantially serves” the interest. (Intermediate scrutiny without deference to legislative weighing of evidence might offer more protection, but that’s not the intermediate scrutiny being applied in this case.) Indeed, the same might even apply to strict scrutiny, except that courts might be more reluctant to read strict scrutiny as essentially eviscerating the right than they are as to intermediate scrutiny (and courts might be more inclined not to defer to legislative conclusions about facts under strict scrutiny).”

              1. Well, sure, but you can’t avoid noticing that the judiciary is populated with people who aren’t just deferential to the legislatures, but instead are often actively hostile to the right in question.

                The good Professor is sometimes a little too reluctant to recognize that the judiciary, too, is capable of being motivated by animus.

                1. True, but that’s common of most conservatives. To admit this (even to themselves) would require that conservatives acknowledge that we and liberals have no common ground, which would in turn mean that America, which is based on a common culture and history, with shared values, principles and loyalties, is gone. That’s to painful for most conservatives to admit, so they delude themselves into thinking leftists are good, but misguided people.

        3. “The Constitution requires a common law legal system”

          No it doesn’t. Otherwise Louisiana has an unconstitutional system.

          What language in the US Constitution mandates a common law system?

          1. The Constitution requires the federal courts have a common law system. It is part of
            Article III and is referrenced in the 7th Amendment.

            Louisiana can do what it wants, though it is worth noting that the Civil Law rhetoric is vastly overstated-their courts make plenty of common law too.

  3. Of course it does, and anyone who claims otherwise is acting in bad faith.

  4. Only lawyers could ‘misunderstand’ SHALL NOT BE INFRINGED.

    1. Only uneducated non lawyers who have no understanding of the legal system think that this talking point has any force as legal reasoning.

      1. We understand that the legal community don’t care, which is the same thing.

        1. The legal community are the experts here.

          1. You mean “experts.”

            In fact they aren’t.

    2. Your thoughts on child pornography, threats, defamation, incitement, securities fraud, obscene expression, and the like must be fascinating.

  5. We’re theoretically guaranteed equal rights under the constitution, but some circuits, and states, are a lot more equal than others.

    1. So you think the circuit court system (specifically authorized in Article III and confirmed by longstanding tradition) is unconstitutional?

      1. He didn’t say that

      2. US Constitution Article III

        The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

        Did Congress have the authority to create the circuit courts, almost certainly. However, In my opinion, to say the language above “Specifically” authorizes the circuit court system is I think pushing it a bit too far. I don’t see how you could make the quoted language from Ariticle III less specific about inferior courts.

        1. Inferior courts, in 1787,meant circuit courts.

          1. Bull, it would clearly include every type/kind of court created under Article III inferior to SCOTUS itself.

            Oh, and the circuit courts weren’t created until 1789.

      3. I think the Supreme Court should do a better job of policing the circuits and make sure that local and regional preferences don’t infringe on fundamental constitutional rights of American citizens.

        I think we both agree on that in terms of voting rights and the first and fourth amendments, why should gun rights be any different?

        1. Sure , but that doesn’t mean circuit splits,which happen all the time, violate equal protection.

  6. I cannot imagine the outrage which would ensue if lower courts treated the right to obtain an abortion or the right to obtain a gay marriage with the same cavalier attitude which they apply to Second Amendment rights.

    “Calm down Democrats, no one is coming to take your abortions away. we just want to impose reasonable abortion controls.”

    1. Well, many Republicans DO in fact want to take abortions away. The differences are a) abortion is not protected by the Constitution and b) Republicans are honest about it. Liberals are incapable of not lying.

    2. Really? Whole Women’s Health happened precisely because lower courts were doing that.

    3. There are, and should be, plenty of reasonable restrictions with respect to abortion. Just as there should be reasonable restrictions with respect to guns.

      1. There are many reasonable restrictions with respect to guns. There are far more unreasonable ones.

      2. “There are, and should be, plenty of reasonable restrictions with respect to abortion.”

        It seems that most, if not all restrictions on abortion disappeared in New York when Governor Cuomo signed the Reproductive Health Act into law, legalizing abortions even at 9 months, as long as the child hasn’t yet exited from the birth canal. What do you think the odds are that the New York legislature would enact a similar law legalizing the acquisition and carrying of guns?

    4. You don’t have to “imagine”, you can read all about it.

  7. Even if they take the case on the conference May 23rd, we won’t hear about it until 28th when orders are released. Sometimes they publicize grants the day of the conference, but not usually.

  8. in should be noted that Stevens, the author of the dissent in heller, has proposed an amendment to 2A in which the proposed language just happens to matches his reasoning in the dissent.

    Basically Stevens admits his dissent was wrong

    1. That’s the problem with “living constitutionalism.” It somehow always manages to lead to an outcome that comports with its proponent’s policy desires.

    2. That’s silly. He got outvoted, so now he wants a constitutional amendment. How does that prove he thinks he was wrong (as opposed to wanting a decision he thinks was wrong to be overturned)?

      1. He doesn’t think it’s wrong. He just doesn’t like the 2nd Amendment.

      2. If he thought his reasoning was right, he would be of the opinion that the 2nd amendment doesn’t need amending.

        Instead, he proposes an amendment which says something else.

        Stevens knew his take on the 2nd amendment was wrong. He dislikes the 2nd amendment as policy, and thinks that the Court is entitled to rule that the Constitution “means” his policy preferences.

        1. Exactly. They convince themselves that they truly do know better.

        2. You can both (A) think the decision was wrong, and (B) propose an amendment such that the wrong decision is even more obviously wrong.

          1. I suppose, but I’m presuming Stevens wasn’t an idiot.

            The thing about this is that there’s a fair amount of historical evidence about the 2nd amendment, this is a very researched topic, and basically none of it supports Stevens’ views.

            Stevens thinks the Constitution should be interpreted to mean whatever Stevens thinks is good policy. He knows that, while legal professionals have been conditioned to admire those magical clothes, the average person would just call him naked. So he makes a pretense of originalist reasoning, maybe not enough to persuade anybody who’s paying attention, but enough to spare him most people realizing just how results oriented he really is.

      3. Stevens submits the following revised 2nd Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed.

        If he was correct, then why would he need to propose adding “when serving in the militia”?

        1. Brett, Joe: suppose Heller had gone the other way, and decided that the 2A only protected the National Guard. Gun rights activists start a campaign for a new amendment that reads ‘The right of the people to keep the weapons of their choice, and bear them concealed and openly, shall be absolute’. Would you support that amendment, or say that it wasn’t needed because alternate Heller got it wrong?

          1. I wouldn’t support an amendment, because clearly amending the Constitution wouldn’t matter if people were willing to ignore it anyway. I’d have advocated an overthrow.

          2. Basically what RWH says: An amendment wouldn’t do any good under such circumstances, because the Supreme court would have already read an amendment which was clear enough, and held that it meant something other than what it said.

            You can’t fix the problem of courts being willing to lie about what words mean by changing the words. You need to replace the people reading them.

            Setting that aside, that would be a stupid amendment. If Roe gets overturned, are the pro-aborts going to propose an amendment stating, “The right of women to kill their children at any age shall be absolute.”? That would be the equivalent.

        2. If he was correct, then why would he need to propose adding “when serving in the militia”?

          Uh, because there were only 4 votes interpreting it that way? Was that supposed to be a trick question?

        3. I wonder if Stevens really thought that one out probably.

          Does he really want all the gun owners meeting up and organizing and training regularly?

          1. I do, Kazinski. And I want gun owners, while they are well regulated under military discipline, to be able to access fully automatic military weapons. And when they are not under military discipline, I want those weapons stored under lock and key in well regulated guarded armories, just like in the military—but not under the military chain of command. Because that’s what the 2A and the other constitutional militia clauses require as a matter of right.

            If we could establish that as a principle protected by the 2A, then maybe we could thereafter discuss regulating other gun uses not required by right under the 2A, such as personal self-defense. That way we could also restore to the populace their ability to seek public safety under their right to collective self-government—a right which the NRA has long been campaigning to turn into a nullity.

            1. No, the 2nd Amendment did not require that the right be regulated under the auspices of a government-run militia. Don’t you people ever tire of lying?

              1. Which is why i said, “. . . but not under the military chain of command.” Always happy to lend a hand to the speed readers.

                1. If it’s not under the military chain of command, then where else would they be locked up? Who would run these “armories?” You’re intentionally obfuscating by trying to make an unreasonable position seem reasonable.

                  1. If you read the entire constitution, your questions are answered there, in Article 1, Article 2, and Article 3.

                    1. I’ve read it. Why don’t you enlighten me?

            2. Stephen, the point of the 2nd amendment was, like all the rights in the Bill of Rights, to protect the right in question against a government determined to do the wrong thing. In this case, a government that means to discontinue the militia system.

              How was it expected to protect against that? By safeguarding the right of people to be armed and trained outside that system, so that even if the militia were formally disbanded, they could be quickly reconstituted in an emergency from a population which were already armed and familiar with the use of those arms.

              It’s rather like, if you thought a voluntary fire department was the best way to protect a community from fires, but feared that the government might end up controlled by arsonists, you would guarantee people the right to own and train with firefighting equipment outside the fire department, so that they could get together and put out fires even if the government wanted everything to burn to the ground.

              A well regulated (Trained, equipped.) militia might be necessary to the security of a free state, but that doesn’t mean the people running the government want the state to be free.

              Always remember that a Bill of Rights is founded on the assumption that sometimes the government will have bad motives, and must be obstructed. It exists not to facilitate the government in doing good, but to stop it from doing evil.

              1. That’s one of the best justifications of the Enumerated Powers Doctrine I’ve ever seen. Thank you, Brett. That was very well said.

              2. Brett, apparently, like RWH, you missed it when I said, “. . . but not under the military chain of command.”

                1. No, Stephen, we didn’t miss it. We ignored it as a legal nullity. You want them locked up “but not under the military chain of command” but seem to have missed that the people who would inevitably be responsible for enforcing that rule – the police – are still part of the military chain of command. That is, armed agents of the state who report directly to the Executive Branch of government. (Okay, technically the police are only para-military. That distinction does not change the analysis.)

                  Unless you think we should trust to the kindness of strangers, there is no authority we can turn to for your “well regulated guarded armories” except the very government they are supposed to protect us from.

                  1. Please, Rossami, read Article 1, Section 8:

                    The Congress shall have power: . . .

                    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

                    If that amount of state authority doesn’t put things sufficiently outside the federal military chain of command to satisfy you, then your quarrel is with the Constitution, and you are SOL for originalist arguments.

                    Nothing in the Constitution was intended to facilitate its overthrow.

                    I suggest that the passage quoted above gives Congress power to direct the states to build and govern armories for the militia, and manage them under the command of officers selected by the states—but according to regulations prescribed by Congress.

                    Is there any other way to read it? Do you deny that doing it that way constructs a state-based bulwark against federal tyranny, by keeping military arms accessible and convenient for use by state-led militias?

                    You really can’t expect any sovereign to go farther than that to convenience its own overthrow. If you remain unsatisfied, then you may need to invent a utopian past to match your utopian ideology, and then sail away from reality altogether.

                    1. Stephen, how would you reconcile your position with the fact that the Second Amendment has been incorporated against the states?

      4. SCOTUS can reverse itself pretty much any time it wants to. Assuming he still thinks his dissent in Heller was right , the only thing he needs to overturn Heller is for a majority of the sitting justices to agree with him.

        1. the only thing he needs to overturn Heller is for a majority of the sitting justices to agree with him.

          That’s sufficient, but it’s not necessary. Another way to overturn Heller is to enact a constitutional amendment overturning Heller.

          1. If they’d ever thought they had the support to do that, they would have attempted it. The reason they went with judicial bad faith was because they knew they didn’t have enough public support for getting rid of the 2nd amendment.

            Gun control was NEVER as popular as it was made out to be. For a while the media were united in favoring it, and shut out anybody who expressed opposition, but even then it was political poison across much of the nation.

            1. Gun control could absolutely have been as popular as it was made out to be, and more than that, and still fall far short of the popularity necessary to pass an amendment. That’s why, “Pass an amendment,” has long since ceased being good faith argument, and instead become a taunt with which the minority can devil a majority, and not just on gun control. Don’t like abortion? Pass an amendment!

              1. Except that gun rights are actually protected by the Constitution. Killing fetuses and having butt sex are not.

              2. Stephen, only 6 states lack RKBA amendments in their state constitutions. Several states have added such amendments in my life. NONE have repealed them. NONE.

                State constitutions are not typically hard to amend.

                You don’t have a majority, you only imagine you do because the media are dominated by people who agree with you, and they are capable of creating an illusion of support for even unpopular causes.

    3. Stevens is an ass. He also tries to defend his indefensible opinion in Kelo, and stated in an interview that Trump should be impeached for fighting Congressional subpoenas (never once mentioning either the standard for Congressional investigations set forth in Watkins v. United States OR the exceedingly broad claim of executive privilege made by Obama in response to the Congressional subpoena of Fast & Furious documents).

      1. He’s a senile old coot. Kelo was an outrage. It’s when I knew that Kennedy was a liberal. The case was a classic example of a group of liberals looking down from their self-appointed ivory tower to tell the common man what was good for him and his property.

        1. In general I agree with you about Kelo. But nobody who decided it was self-appointed.

          1. They were nominated and confirmed to Supreme court seats, and self-appointed to the position of rewriting the Constitution.

  9. Mance and Pena are being held and were never rescheduled after apr 12th conference.

    If you read the USG amicus in NYSRPA one gets the distinct impression that a narrow ruling (Robert’s court is infamous for narrow rulings limited to the facts, I think)- a narrow ruling wont address outside the home self defense. “Keep” includes the right to transport the gun to where its lawfully possessed elsewhere. It may address licensing.

    Roger’s deals with outside the home directly. I see Roger’s getting held or outright granted. Nothing in the NJ AG brief led me to think Rogers is a bad vehicle.

  10. What will happen if the court says that ‘and bear’ means states must allow shall issue CCW along the lines of Texas or Florida or whatever?

    Bold prediction: not much. No blood in the streets, no shootouts over parking spaces.

    Nonetheless, there will be dire predictions: Human sacrifice, dogs and cats living together, mass hysteria! The debates over what the practical result of shall issue CCW would be became silly several years ago, when the 40th state became shall issue. When 80% of states have adopted it without problems the ‘our state is different’ argument looks a little shopworn.

    1. “What will happen if the court says that ‘and bear’ means states must allow shall issue CCW along the lines of Texas or Florida or whatever?”

      While the court may rule that may issue CCW schemes are inadequate under 2A, I don’t see them obligated states with unlicensed lawful open carry to adopt CCW license schemes.

      1. I don’t believe there any states left that allow unlicensed open carry but are not shall issue concealed carry.

        1. Last I counted, there are eight states that heavily restrict issue of concealed carry licenses, as well as open carry. There are now double that number of states that no longer require a license to carry concealed.
          It’s too bad SCOTUS doesn’t recognize a “if 84 percent of states allow concealed carry and it isn’t causing any problems, then your ‘restrictions are necessary for public safety’ argument is bogus” test.

          1. Exactly. My point is that obligating a state to allow shall-issue concealed carry when they otherwise allow open is a moot point, as there are none.

        2. Vermont has been unlicensed carry since 1903, and issues no licenses of any sort.

  11. “Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?”

    Yes. What else could “bear arms” mean? Bear them only in one’s home, or at the gun club range?

    1. Per Retired Justice Stevens: “The right to bear arms is quite obviously a typo, a scrivener’s error. What the drafters of the Bill of Rights meant was the right to BARE arms; the only thing that protects is the right to wear short sleeve shirts and tank tops.”

  12. The Third Circuit opinion upholding NJ’s gun control laws really isn’t that sound. It is a shame the SC refused to hear it on cert because it is both not supported by Heller and McDonald and also is not very well reasoned.

    NJ is also effectively a “no issue” state which the Third Circuit seemed to overlook and the District court refused to look into with any great detail. (In short they took the government at its word that it was a shall issue state even though the number of valid permit holders would indicate otherwise). I can’t find the most recent info but the number of permits issued in NJ that don’t belong to police or security guards is something around 1000 to 2000.

    I imagine the SC granted cert in the NY case so it could set the constitutional scrutiny test for the Second Amendment as it is clear Circuit courts have abused their discretion to do so. That will probably get it a kick back to the Third Circuit which I imagine will uphold it again even if told to use strict scrutiny.

    After 10+ years of since Heller it is clear the Circuit courts are only going to take the Second Amendment seriously if the Supreme Court forces them to do so. Perhaps now with a more solid conservative majority they will take the time to “micro manage” the Second Amendment docket much like the SC had to do out of Southern circuits during the civil rights era. I really see no other alternative unless Trump manages to change the landscape of the Circuit courts even more in his remaining two years in office (and perhaps another four after that).

    1. What we really need is a preclearance law for 2nd Amendment laws, much like the Voting Rights Act operated for decades.

      1. Precisely.

  13. In my view, which is not the position the Supreme Court has taken, rights of the people are consistently individual rights, and this includes the 2nd Amendment. Other rights of the people such as in the First and Fourth amendments, make no sense if read collectively.

    That said, this individual right is connected to and tempered by the initial clause, a well-regulated militia being necessary to the security of a free state. This, in my view, gives a state an express, textual constitutional right, that the federal government does not have, to regulate its militia. In regulating its militia, it can regulate the time, place, and manner of keeping and bearing arms, as long as those regulations are (1) reasonably related to a state militia purpose and (2) don’t extinguish the individual right.

    In regulating its militia, a state in my view should be able to do things like standardize and specify the kinds of arms allowed, require minimal amounts of training and safety and proficiency testing, and impose reasonable limits on when and where arms can be borne outside militia service.

    The problem with the Supreme Court’s current jurisprudence is it writes the initial clause out of the amendment, giving it no content. This is not legitimate.

    The 2nd Amendment confers upon a state an express, textual right to have a militia and regulate its militia “well.” This gives it an express, textual constitutional right to have some say – a say the federal government doesn’t have – in the regulation of arms kept and borne by the people.

    1. The prefatory clause, regarding a well-regulated militia, does NOT limit or constrain the operative clause, that the right of the PEOPLE (which is NOT LIMITED to members of the militia) to keep and bear arms shall not be infringed. To think otherwise you must ignore both history and the rules of grammar and rewrite “the people” to mean “members of the militia.” In other words, your view of a limited Second Amendment is ahistorical nonsense.

      1. DjDiverDan, It’s entirely plausible that a state can only regulate its militia. But nothing stops a state from defining its militia to consist of all adults over the age of legal firearms possession (I.e. everyone who can legally keep and bear arms) if it wants.

    2. ReaderY: To make sure I understand – if some state defines its militia as ‘all citizens over the age of 14’ and authorizes them to own the full panoply of current infantry arms – full auto rifles, grenades, RPG’s, mortars, etc, etc – you think that is the state’s sole prerogative, and the federal government can’t restrict any of that?

      1. Yes, absolutely. That’s what the 2nd Amendment was intended to do.

      2. Absaroka – United States v. Lopez held Congress has no general power to regulate the possession of firearms – so you’re exactly right, Congress has no say, that’s existing law.

        Congress can only regulate interstate commerce in firearms. It can’t regulate keeping and hearing them directly. At all. Any kind.

    3. At the time the Constitution was written, it was common to state a purpose. For example, New Hampshire’s Constitution said:

      “ART. XXII. The liberty of the press is essential to the security of freedom in a State; it ought therefore, to be inviolably preserved.”

      No one interprets that to mean that the free press is conditioned upon it being essential to the security of freedom

      1. That’s an unfair comparison. Both statements in your example are about liberty of the press. One could only be interpreted as supporting the other.

        But in the 2nd Amendment, the term “well regulated” doesn’t just imply, it literally says and hence literally means, regulation. Regulation isn’t arbitrary freedom. It’s the opposite. Where there is regulation, there is a power to regulate. And just as a right of the people is necessarily an individually possessed right, a power to regulate is necessarily a power of the state.

        1. That’s not what “well-regulated” meant in the 2nd Amendment context, and you know it.

          1. That he has the meaning of “well regulated” wrong for the context is less important than the fact that he’s applying it to the wrong object.

        2. but put that “well regulated” back in the proper context. It’s clear that it’s the militia that is to be “well regulated, not the right of the people to keep and bear arms.

    4. ReaderY, I agree with your interpretation, except for one thing. Where do you see in the 2A any exclusion of a federal power to regulate guns outside the militia context—so long as those regulations do not amount to a ban? For instance, if it proved necessary to regulate non-militia gun use to protect exercise of other constitutional rights, and the federal government did that without banning private gun ownership and use, what would be wrong with that?

      1. “For instance, if it proved necessary to regulate non-militia gun use to protect exercise of other constitutional rights,”

        I’m having a really hard time seeing a plausible scenario for this. What are we talking about, outlawing AI powered guns that conspire against civil liberties?

    5. Oh, also, about “rights of the people are consistently individual rights.” Isn’t that sort of a contradiction in terms when it comes to the right of assembly?

      Plus, if you are alert to historical context, you will at least understand that when the founders drafted the right to petition, their thinking surely included first and foremost their frustrations when colonial legislatures collectively, not individually, petitioned the English government for redress of grievances, and were ignored. Franklin ranked that experience as the most important among the causes of the revolution, so it’s pretty reasonable to think the founders had that in mind when drafting the petition part of the 1A.

      I don’t have historical basis to assert that the original meaning excluded personal petitions for redress, but that context does give a clear historical instance where a right protected was a collective right, and viewed that way. Is there any explicit or implied instance in the record to support a case that the right to petition was also intended as an individual right?

      It seems a natural enough reading, and I don’t object to it, but I’m not aware of any way the record makes that clear. But that’s just off the top of my head. I haven’t made a study of it, and could easily have missed it.

      It would be helpful if someone could cite something specific. Reading Heller, it is hard to escape a conclusion that Scalia, at least, didn’t actually have any specific historical basis for his assertion that rights of the people are always individual rights. Assembly and petition seem to show exceptions to a case which Scalia was able to make only on the basis of a sloppy inference.

      1. “Oh, also, about “rights of the people are consistently individual rights.” Isn’t that sort of a contradiction in terms when it comes to the right of assembly?”

        No, not really. I think you’re misunderstanding what “individual right” means in this context. It’s perfectly possible to exercise individual rights in concert with other people, like my going to church on Sunday rather than praying alone. I’m still the one making the decision. (That I could be excommunicated just goes to the nature of the right, not who exercises it.)

        The “individual” here identifies the level at which the decision to exercise gets made. Each individual person decides whether they want to exercise the right. The government can’t up and declare that you only get to exercise freedom of religion in a recognized sect in the company of other people.

        “Individual” is inherent in the concept of rights, because having established that the topic in question is outside the government’s jurisdiction to impose choices coercively, no other institution in society is invested with that sort of coercive power.

        Basically there’s government coercion, and individual choices, and all the stuff in between is made up of individual choices building up voluntary institutions.

        1. So, to be clear, freedom of assembly is an individual right because the individual decides whether or not to take part in the assembly. You can’t be told, “Block A is assembling to petition the government for B, be there or plan to spend some time in jail.” You, the individual, get to make the choice whether or not to participate.

  14. EV writes, “Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?”

    To which one might counter-ask, “Does the First Amendment require a ban on carrying guns in some pubic places?”

    For instance, will the right of peaceable assembly be too heavily burdened if citizens assembling in public to advocate particular policies must consistently confront conspicuously armed, armored, and undisciplined groups of opponents? Would it be better or worse if the armed opposition seemed disciplined?

    1. I’d counter-answer, “No”, because, demonstrably, the right to keep and bear arms has not proven incompatible with freedom of assembly. So your proposal just hasn’t been happening.

      I’d also answer “No”, because just as the right to freedom of speech and of the press isn’t the right to pen ransom notes and say, “Your money or your life!”, the right to keep and bear arms isn’t the right to commit assault or murder. So it isn’t the right that would be interfering with freedom of assembly in your hypothetical, it would be the crime.

      1. Where did I mention crime? Implicit armed intimidation—especially if deemed a right—is not a crime. But neither is it a “peaceable” thing to do. I suggest that display of arms and peaceable assembly—both rights, mind you—are incompatible. And the way they are incompatible points straightforwardly toward the right policy.

        Gun rights will be minimally burdened if they are found not to extend to carrying guns at public assemblies. But the right to assembly could be stifled if public carry could not be controlled—and that without any crimes committed. So the protection of competing constitutional rights, in this kind of case, requires a federal ability to regulate carrying arms in public, by keeping gun carriers away from peaceable public assemblies.

        Luckily for gun enthusiasts, there is the 2A, which carves out a separate space for warlike assemblies—with the militia clause. Separate militia assemblies from the peaceable kind, and keep militia assemblies under military discipline, and both rights are fulfilled according to the constitution.

        1. No, armed does not imply intimidation, unless you are a criminal. My being armed does not imply I will assault you. It only implies that I will assault you if you assault me first. Peaceably assembling does not do that

          1. RWH, the question is not what implies intimidation. The question is what produces intimidation. You are not talking here about infringing just your right to arms. You are talking also about infringing others’ rights to peaceable assembly.

            That means yours is not the only side which gets to say what is, and is not, intimidating. If folks fear your armed militia group’s arrival at their rally, and they want to leave as a result, you don’t get to say to people who were actually intimidated, “No, you weren’t.”

            And because they too are talking about rights, they can legitimately use their power of self-government to balance those competing rights to their own satisfaction, if they can muster the political power to do it. Note that I suggested that to achieve the best balance, any necessary regulation ought to be done in a way to minimally burden gun rights while accomplishing the objective.

            There may be a role for the courts in reviewing the balance. There is no legitimate role for the courts to sanctify one right and negate the other, nor to promulgate some utopian theory of reality to clear the way for gun rights supremacy on all contested questions.

            1. “RWH, the question is not what implies intimidation. The question is what produces intimidation.”

              The problem with this approach is that people can’t control other people’s reactions, only what they themselves do. There are people who are irrationally intimidated, there are people who will falsely claim to be intimidated in order to invoke government power against their foes, like the anti-gunners who SWAT anybody they see engaging in open carry.

              What is called for here is a rational man test. Not whether somebody is actually intimidated, (Or claims to be.) but whether a sensible person would be intimidated under the circumstances.

              1. Brett, are you prepared to allow a rational man test to govern the right to arms? Or are you just asserting that the right to assembly can be overturned by a lesser standard than you demand for arms?

                1. I’m asserting that the proper basis for determining whether conduct with a gun is illegal “intimidation” is the same as the proper basis for any other conduct. Not whether a particularly nutso person WAS intimidated, but whether a reasonable person would have been intimidated.

                  Of course it’s possible for somebody to carry in an intimidating manner, just as you could intimidate people walking down the street carrying a baseball bat or tire iron. But that doesn’t make just carrying any of these items in an ordinary manner “intimidation”.

                2. This question of yours has already been tangentially addressed.

                  The Supreme Court has ruled that an armed socialist militia does not have a Second Amendment right to march in Chicago (Presser V. Illinois) because Illinois may adopt regulations on their ability to march.

                  I’m sure lawyers can read that case anyway they want (as lawyers are wont to do), but the Court took the side that, in practicum, you don’t have a right to use your 1A right to peaceably assemble with your 2A right to keep and bear arms.

                  1. Presser V. Illinois was decided during the decades that the Supreme court was refusing to admit that the 2nd amendment guaranteed a right. There are a number of decisions issued during that dark period that are premised on gun ownership not being a right, that really ought to be overturned now.

                    But the Court is absurdly reluctant to ever overturn its own decisions.

                    1. Still, I would consider it a controlling precedent, unless it is specifically overturned. I do not know of such a case.

                      For example, the Cruikshank, which said the 2A protected a pre-existing natural right (and thus state governments weren’t obliged to protect it) was overruled when the 1A was incorporated and thus state governments were obliged to protect 1A rights.

            2. Freedom of speech does not extend to terroristic threatening. Does that mean I can suppress your right to speech by claiming irrationally but sincerely that I feel threatened by your speech? Of course not. And saying so does not put the entirety of Free Speech on some sort of rational man test. It puts your claims of intimidation on the rational man test.

              1. First, I’m not under a constitutional constraint that my speech be, “peaceable.” If I were, then yes, if my speech were other than peaceable, you could claim intimidation.

                Two, if my speech could kill you if I uttered a magic syllable, then you would of course be a fool not to be intimidated.

                Speech and guns are not the same. The analogy is so far-fetched it’s irrelevant, and always tiresome.

                1. Except for these purposes, they are the same. Arms were protected in spite of the fact that they are dangerous. Saying that they get a special set of rules because they’re dangerous is hollowing it out.

                2. Hundreds or thousands of people gathered can be very dangerous if they decided they no longer want to be peaceable, much more so than a single individual with a gun. So if the argument is indeed about “what produces intimidation” then large numbers of people certainly qualifies.

                  Its ironic that you say “yours is not the only side which gets to say what is, and is not, intimidating” then go on to deny that anything your side does could possybly be seen as intimidating

                  1. Its ironic that you say “yours is not the only side which gets to say what is, and is not, intimidating” then go on to deny that anything your side does could possybly be seen as intimidating

                    Did I say that? Can you show me the quote, or are you just attributing what you think I might say?

                    Here is what I have said, in other threads. I think the right to peaceable assembly should be interpreted against permitting armed and armored demonstrators, whoever they are. I think demonstrators who show up with weapons or body armor, however makeshift, should be turned away by police. And I apply that alike across the political spectrum. No militia guys with semi-auto rifles. No ANTIFA types with bicycle locks. Got it? Peaceable intent at a pubic assembly requires no arms, and no armor.

            3. Do you also feel that armed government agents at a peaceable assembly is intimidating and a violation of the First Amendment?
              What if the assembly is protesting police officers and their conduct? Would armed and armored police officers be intimidating at that assembly?

  15. If this “right to carry in all public places despite the wills of the property-owner” carries through, I’m getting a “Pride-Revolver” and claim that anyone trying to discriminate against me for being gay is discriminating against my gun.

    I suspect as long as my revolver is big and scary enough, this legal theory will never be tested.

    1. Outside of employer parking lots, I haven’t seen that proposed anywhere.

  16. The 7th circuit decision isn’t really a split from the 1st, 2nd, 3rd, and 4th, as it did not address “may-issue” systems or de facto bans, but rather a “no-issue” de jure ban. The decision even states that it makes no points about what systems may be constitutional, only that the total ban is unconstitutional

    1. I don’t draw much of a distinction there. The reasoning in the Moore court would have been against may issue as well.

Please to post comments

Comments are closed.