Stephen Halbrook Guest-Blogging About the Second Amendment and Public Carry of Firearms


I'm delighted to report that Stephen Halbrook, a leading firearms law litigator and scholar, will be guest-blogging this week about the Second Amendment right to bear arms, and in particular about N.Y. State Rifle & Pistol Ass'n v. Bruen, which is now pending before the Supreme Court. Halbrook has written over 30 law review articles and several books on the Second Amendment and firearms law more broadly, including, most recently, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?; those works have been cited in more than 20 court cases and 500 law review articles.

He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. I very much look forward to his posts!

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  1. Looking forward to it!

  2. Yet another blogger for the Volokh Conspiracy who is going to tell the simpletons here that when the Supreme Court said that Open Carry is the right guaranteed by the Constitution, and prohibitions on concealed carry are constitutional, what the Supreme Court really said was that Open Carry can be banned in favor of concealed carry.

    I can hardly wait.

    1. Times change. Unfortunately you havent.

      1. dwb68, the Second Amendment means what the Framers of the Second and Fourteenth Amendments and those who voted to enact those amendments into law thought it meant.

        Time cannot change that any more than simpletons can understand that.

        And no amount of snake oil sold by the Volokh Conspiracy bloggers to the simpletons is going to change that either.

        1. The 2nd amendment means whatever Clement and Gura can convince 5 justices to write in an opinion.

    2. Bearing arms is bearing arms, when I carry I open carry but I’d be perfectly happy with concealed carry, just wear my t-shirt over it.

      1. Kazinski, and rape is sexual intercourse. Moral men and women recognize the distinction between consensual sex between adults and rape. The latter is evil. Concealed carry, like rape, is evil.

        But you have to have a sense of smell to tell the difference. Concealed carriers do not have a sense of smell.

        Concealed carriers are the putrification that invariably ends with the collapse of a civilization. I think many of them know this. The bloggers at the Volokh Conspiracy certainly know this. But for whatever reason, they hate the United States and have expressed that hatred time and time again.

        And what better way to hasten the destruction of the United States and what it stands for other than making secret advantages and unmanly assassinations normal, and legal?

        1. “making secret advantages and unmanly assassinations normal, and legal?”

          Because that’s how I roll.

          1. Kyle Rittenhouse…open carry attracts suicidal vagrants in 2021.

            1. Of course you’re referring to the three “Suicidal Vagrants” he was forced to shoot in self defense.

        2. It’s obvious who the victim of a rape is. Who’s the victim if I stuff a gun in my pocket, walk around all day, and return home, never having used it?

        3. Concealed carriers are the putrification that invariably ends with the collapse of a civilization.

          Who is this nut?

          1. As far as I can tell, he’s a fanatic who wants to open carry, and is upset that some people have argued that states that allow concealed carry do not need to also allow open carry.

        4. lol, wut?

          I finally understand why no one, including the courts, listen to you.

        5. more seriously “Concealed carriers are the putrification that invariably ends with the collapse of a civilization” illustrates the out of date medeival thinking behind the rulings favoring open carry.

          There is nothing inherently sinister or evil about concealed carry. it is now recognized as tactically better. We also shoot with a different grip style than 1791, use autoloaders, and use red dots. lol.

          “the right to bear arms” is simply not offended by concealed carry. Maybe someone’s 1790s morals are offended. you’ll get over it.

        6. re: ” Concealed carry … is evil.”

          No, it’s not. Nor has it ever been evil. Concealed carry harms no one. Concealed carry injures no one. Concealed carry might give you the opportunity to do evil – but so do many, many other things.

          Consider that a printing press can be used to commit evil (by spreading malicious libels). Does not mean all printing presses are evil? Anonymous email services make it even easier to spread libel? Does that automatically make them evil? Of course not. Anonymous email can also be used for good (to evade a totalitarian regime, for example).

          What someone does with a gun may be evil – but that’s equally true whether the gun was concealed or in the open.

    3. Could you please post where the supreme court said open carry is constitutional but concealed carry is not?

      I must have missed it. Would have thought I would have heard of a case where SCOTUS definatively says that “Open Carry is the right guaranteed by the Constitution”.

      You would think such a thing would have been cited quite often…

      1. Gunstar1, the Heller opinion said its citations from Nunn, and likewise Chandler perfectly captured the meaning of the right to keep and bear arms. The very first example given in Section III of Heller of things that do not violate the Second Amendment was 19th-century prohibitions on concealed carry. 19th-century prohibitions on concealed carry included prohibitions on concealed carry not only in public but also in the home, which California still prohibits today.

        In response to a dissent in McDonald v. City of Chicago, Justice Alito (who wrote the opinion) said nothing in his opinion changed Section III of the Heller opinion. Justice Alito in Fulton said that Section III was a holding of the Heller opinion.

        The fact that you say you missed this is reason enough for you not to be commenting, and more than reason enough for you to dispose of your firearms and any other deadly weapons you may have.

        1. An inconclusive example in dicta, as people here have explained to you. Recently.

          Besides, there’s now a constitutional right to privacy, haven’t you heard?

          1. Michael P, and yet Justice Alito who wrote the opinion in McDonald v. City of Chicago said that Section III was a holding of the court in District of Columbia v. Heller. You remember Section III, it began by saying that prohibitions on concealed carry are constitutional.

            Perhaps you can point to a Federal court of appeals published opinion that held Section III of the Heller opinion is dicta? No? I thought not.

            1. Of course Section III was a holding of the court. It just doesn’t say what you think it says. The part about concealed weapons was dicta; if you don’t understand that, you don’t understand how to interpret a judicial decision.

  3. I wonder if Halbrook still thinks “coat of arms” means a coat with pockets to carry guns in.

    1. No, silly, it’s a painting of a soldier. There is no Freedom of Textiles.

    2. Like Noah Webster’s 1828 dictionary:

      “Small pistols are carried in the pocket.”

      So Halbrook’s actual quote snippet, we don’t get the full one, to “bear arms in a coat”, echos Webster’s description of where a pistol would be carried, a coat pocket.

      Noting about “a coat of arms”.

      1. Halbrook looked up “to bear” and found one of the definitions was “to bear arms, as in a coat”. This can only refer to a “coat of arms”. The way he has it, the entry would be unnecessary; “bear arms” appears as a separate definition.

        1. you are as bad as Charles Nichols above.

        2. ‘This can only refer to a “coat of arms”‘, no it could certainly refer to:

          “Small pistols are carried in the pocket” “in a coat”. As in Noah Webster’s 1828 dictionary.

          It’s ridiculous to take a sentence that makes perfect grammatical and logical sense and try to twist it to something that makes no sense just to try and discredit someone’s research.

  4. It is a telling commentary on the USA that people have to write entire books to explain “shall not be infringed”.

    1. I blame God. He/She/They created lawyers.

      1. He allowed lawyers so everyone could learn what sin looks like.
        God often used the evil in men to chastise His people.
        Jerimiah 25:8-9
        8 “Therefore, this is what the Lord of Hosts says: ‘Because you have not obeyed My words, 9 I am going to send for all the families of the north’—this is the Lord’s declaration—‘and send for My servant Nebuchadnezzar king of Babylon, and I will bring them against this land, against its residents, and against all these surrounding nations, and I will completely destroy them and make them a desolation, a derision, and ruins forever.

    2. You sound like someone who should stay away from First Amendment books.

      1. Kook, you sound like someone who can barely read what’s on the bottom of your cage.

  5. Can’t wait! If we’re lucky he’ll explain how the Founders intended to make it simple for evil people with firearms to ambush police officers and to walk into countless schools, places of worship, night clubs, post offices, and restaurants and kill a whole lot of innocent children and adults very quickly.

    1. Well the founders did put explicit instructions in the constitution on how to modify it if needs be.

      Why don’t you just round up the 2/3 of Congress and 3/4 of the states to change it if it’s that cut and dried?

      It’s a lot less dangerous to have a populace armed to the teeth than it is to have a group of elites that decide just to ignore a fundamental right laid out in the constitution because they don’t like it.

    2. Can’t wait! If we’re lucky he’ll explain how the Founders intended to make it simple for evil people with firearms to ambush police officers and to walk into countless schools, places of worship, night clubs, post offices, and restaurants and kill a whole lot of innocent children and adults very quickly.

      I think you’re lost. Vox is that way. —->>

    3. I have an answer here.

      Of course, what we should all remember is that the Second Amendment is not alone in this.

      Other constitutional provisions place limits on the state to keep us safe from the street thug and the gangbanger.

      Consider the 4th Amendment. It restricts the ability of the police to find evidence of criminal wrongdoing. This means the street thug and the gangbanger may get away with their crimes, which enables murder. Not only that, the 4th Amendment is unique to the United States of America. Surely the police in Paris, Lagos, or Singapore do not worry about the 4th Amendment, probable cause, or the exclusionary rule. They just look for evidence.

      Why not follow the example of other countries?

      Or what about the 5th or 6th Amendments?

      How many more street thugs and gangbangers could we catch if we could make them testify against themselves? Or why even bother with trials? Why not trust the police to judge who is and is not guilty? How much more difficult would it be to commit murder- let alone get away with murder- if we let the police judge whether or not a street thug or gangbanger is guilty?

      Or what about the 14th amendment? What if there were certain racial demographics in the U.S. that commit murder at a significantly higher rate than the general population? Why should not the police focus on those demographics? Why should not lawmakers place extra restrictions on the liberties of people in those crime-prone demographics.Would it not be worth it if it prevented one murder?

      Why do we need civil rights at all, given how they tie the hands of the state?

    4. It also allows vice-principals to shoot and stop an intruder before anyone else gets hurt.
      But that is fake news; it doesn’t suit the fascists.

  6. yay!

    Hopefully Holbrook tells us all how SC will rule that permitless open carry of long guns is the real fundamental right. / sarc

    1. because I can’t wait to open carry a rifle in NYC

  7. Whole damn lot of 2nd amendment scholars right here in the comments section. EV didn’t even need to find a guest blogger.

    1. One of the great things about America is that everyone thinks they are a constitutional scholar. Imagine living in a country where you don’t understand your rights.

      1. It’s a lot harder to understand your rights when they can change at a whim.

        Take the poor guy in China who’s in jail for a bad movie review for example.

        1. Changping “used puns to satirize and humiliate…”

          Article 1.1 of the People Justice Code: Unlawful Use of Puns (10 years hard labor)
          And Thomas Friedman wants to be these people…

      2. Well, we DO have the advantage over England of having the Constitution written down.

        1. if its not written down like a contract, does it really exist?

        2. I like having a written constitution myself, but do you think England is a rightless tyranny?

          1. It was presented as an advantage, not a dichotomy between having effective rights or not.

            One might almost think that you habitually argue in bad faith, given how quickly you assembled that strawman.

            1. “One might almost think that you habitually argue in bad faith, given how quickly you assembled that strawman.”

              It is Halloween, so it’s easy to just take one ready made from a neighbor’s porch.

          2. Well, they have been losing rights, you may have noticed. They’ve gone from having not quite as much of a right to keep and bear arms as we had, to restricting the right to own kitchen knives. They’re not doing so hot on freedom of speech, either.

            I’d say they’re not yet a rightless tyranny, but they lack a fundamental safeguard against becoming such, which we have the benefit of.

  8. Looking forward to it, great addition.

  9. Thanks for the Amazon link.

    Darn, I thought, I can’t imagine that I haven’t read that. Sure enough, Amazon reports, “Last purchased 2 May 2021.”

  10. A well regulated library and school system necessary for an educated society, the right to keep and read books, shall not be infringed.

  11. As holbrook points out in his books, the british banned the ownership of guns in Massachuttets in the late 1760’s/early 1770’s and attempted to confiscate guns.

    A holbrook also points out there was considerable historical writing about the right to keep and bear arms for the common defence and self defence. What the pro- gun control advocates ignore and what Stevens dishonestly claimed that there was no historical historical writing the right to keep and bear arms for self defence.

  12. “[M]oral turpitude is evidenced by an act of baseness, vileness or depravity in the private and social duties which according to the accepted standards of the time a man owes to his fellowman or to society in general.” US v. Zimmerman, 71 F. Supp. 534, 537 (E.D. Pa. 1947)

    For over 400 years under American and English law before Independence, a man had a duty to inform his fellowman that he was armed.

    From 1603 to 1825, English law had a simple remedy for a concealed carrier who killed someone. The concealed carrier was executed.

    There was no possibility of a pardon or leniency of any kind (what was once known as “The Benefit of Clergy.”).

    Laws punishing concealed carry (life imprisonment) date back to at least ca 1260 in England.

    Despite nearly 800 years of American and English laws punishing concealed carry, some would have you believe that the framers of the 2nd and 14th Amendments and those who voted to enact those amendments into law believed that acts of moral turpitude, specifically concealed carry, are protected by those amendments.

    It is telling that when asked to prove their case. the best they can do is to cite case law that characterized concealed carry as vile and evil, or in the NYSRPA brief on the merits, make no case at all.

    That is the same type of B.S. that poured out of the Soviet Union.

    It is also the same type of B.S. that has been pouring out of the pages of “The Volokh Conspiracy” since before President Trump was elected. Trump didn’t cause it. His candidacy the first time he ran merely caused the “Conspirators” to come out of the closet or out from under the rocks.

    1. Did someone hijack your account name to write this as a parody? If not, you are coming across as … unhinged.

      Okay, lets step back, take a deep breath and look at the actual text of the Constitution. It guarantees a right to keep and bear arms. It is silent on the question of whether that right is to bear them openly or concealed. The question of open vs concealed is also irrelevant to this lawsuit over the NY law. The Constitution requires only that you must allow at least one means of carry – open OR concealed (or both). Banning both is a de facto ban on all carry – and that’s forbidden.

      1. Rossami, the fact that none of the self-described “Conspirators” of the Volokh Conspiracy ever steps in to point out why your legal argument that the Second Amendment allows Open Carry to be banned in favor of concealed carry is laughable on its face is their failure, not mine.

        All you have to do is to read the Heller and McDonald opinions to know that prohibitions on concealed carry do not violate the Second Amendment.

        On that point, all nine justices in Heller and McDonald are in agreement.

  13. I wish I had made a study of psychology.

    Concealed carriers are cowards, criminals, and depraved degenerates. And yet they believe that those of us who aren’t among their kind will get our feelings hurt because they call us names.

    Psychologists must have a word for that. I wish I knew what that word is.

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