National and Local Traditions for the Second Amendment

The Second Amendment does not have a geography clause.

On Tuesday, the Supreme Court heard argument in Wolford v. Lopez. Most Second Amendment cases focus on who can carry arms or what kind of arms they can carry. But Wolford focuses on where people can carry. Heller and its progeny held that carry can be prohibited in certain "sensitive places." But Wolford goes beyond that rubric. Hawaii law provides that for businesses that are generally open to the public, affirmative permission must be granted to carry a firearm. This permission can be granted through a posted sign or oral consent.

One fascinating aspect of the argument focused on tradition. Is it the tradition of the nation? Or is it the tradition in Hawaii? The history of Hawaii, which was admitted to the Union in 1959, makes it somewhat unique. Until Bruen, there was no custom of carrying weapons in Hawaii.

During several colloquies, Justice Sotomayor insisted that the Court should focus on the local tradition in Hawaii. She favorably cited Justice Holmes's opinion in McKee v. Gratz (1922). If your best authority is a Holmes opinion from 1922, you are probably on a shaky footing.

Sotomayor pushed the point about Hawaiian tradition:

JUSTICE SOTOMAYOR: Nothing about Hawaii's customs, tradition, or culture creates an expectation that the general public carries guns wherever they go, correct?

Alan Beck, counsel for the plaintiffs, responded that the local customs do not matter.

MR. BECK: Hawaii is part of the United States, and as part of the United States, our national tradition is that people are allowed to carry on private property that is open to the public.

Then there was some cross-talk, without any clear resolution.

MR. BECK: As --Hawaii is part of the United States, Your Honor, and as the -

JUSTICE SOTOMAYOR: But, if it's a local custom that controls -

MR. BECK: It is not a local custom that controls.

JUSTICE SOTOMAYOR: I --I -

MR. BECK: It is the custom -

JUSTICE SOTOMAYOR: Where else in the law have we permitted local custom to create a constitutionally protected right?

MR. BECK: Bruen was very clear here that we're dealing with our national tradition, Your Honor. It is not local custom that controls in this area of law.

I think Beck is right. Perhaps this question can be understood in terms of the equal footing doctrine. When territories enter the republic as states, they enter on equal footing to the original thirteen colonies. But with that great power comes a great responsibility. Those new states are now subject to the same national traditions that bind all of the prior states. This approach may be inconsistent with modern conceptions of multiculturalism, but out of many states comes one republic.

Sarah Harris, the Principal Deputy SG, offered a similar response to Justice Sotomayor.

JUSTICE SOTOMAYOR: Just as here, where most property owners for 200 years didn't carry weapons in this state without an owner's consent. That's the presumption of the Hawaiian people.

MS. HARRIS: So two points on that, one with respect to the presumption of the Hawaiian people. As Petitioner notes, there is no Second Amendment for every single state in the union that's different. It is a national tradition, and states cannot retain their pre-statehood traditions as sort of a --a veto for the Second Amendment national tradition.

Perhaps we could push the localism question a bit further. Why should the tradition be confined to the state? Why shouldn't an urban area like Manhattan have a different custom than rural areas in upstate New York?

In one of my first law review articles, The Constitutionality of Social Cost, I asked whether the Second Amendment has a "geography clause"--a term I coined in a 2009 blog post. Here is an excerpt from my 2011 article from the Harvard Journal of Law & Public Policy.

Does the Constitution have a geography clause? This section explores whether the Second Amendment is a national right or a local right that can be limited based on circumstances, such as high crime. Proponents of the geography clause argument fall into two camps. First, Justice Stevens in McDonald contended that the Second Amendment as applied against the States should provide weaker protections than the Second Amendment as applied against the federal government.225 Justice Alito adequately rebutted this erroneous application of Justice Brandeis's laboratories of experimentation thesis and Justice Harlan II's never accepted incorporation jurisprudence.226 The other theory, advanced by Justice Breyer, contends that local municipalities should be able to consider whether an area has a high crime rate when construing the meaning of the Second Amendment.227 Although Justice Alito rejected Justice Stevens's two‐track approach to incorporation, he leaves open the door for localities to devise solutions to social problems that "suit local needs and values" according to certain limitations.228 This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location, and distinguishes those frameworks from the approach Justice Breyer seeks.

I thought Bruen emphatically rejected this argument that the meaning of the Second Amendment can very in different parts of the country. But apparently this issue is still up for debate.

Finally, I was amused by a comment from Chief Justice Roberts. He noted that Hawaii also has a very different tradition with respect to property rights.

CHIEF JUSTICE ROBERTS: Right. But let me just switch gears a little bit. You talked about the tradition in --in Hawaii. Hawaii, given its obvious origins and its --its admission to --to the United States fairly recently, has a totally different, in some areas, tradition and practice. The law of property in particular in Hawaii, I mean, for the longest time, maybe it's still the case, is that you don't own property, you get it on long-term lease as if you were, you know, a bank in a skyscraper in New York. That was the common method. And I wonder, I thought, you know, as mentioned earlier, it is part of the United States. And do we isolate, do we have different traditions in different states when it comes to applying Bruen?

Perhaps the Chief was thinking of Hawaii Housing Authority v. Midkiff (1984), which was decided three years after he clerked. If the Court is ever interested in overruling some more precedents, Midkiff, along with Berman v. Parker and Kelo v. City of New London, should make the list.

Comments

[Stephen Lathrop]

The national tradition since ratification of the Constitution and the Bill of Rights has been to leave states at liberty to specify various standards for gun control in their own Constitutions. No national standard except the Militia Clause standard ever got national assent during the 18th century. Thus no national standard was available to be incorporated against the states when the 14th Amendment was ratified.

The case to be made for a national standard begins with Heller, but that decision could not be justified under decision making conditions laid down in Bruen.

[Brett Bellmore]

Lathrop, the case for a national standard begins with ratification of the 14th amendment. Which the Court to its eternal shame spiked in Slaughterhouse and related cases, but it has been established for decades now that respecting constitutional rights is not locally optional.

Sotomayor, of course, dislikes this right to the point where she is simply incapable of reasoning as though it were a real constitutional right. She has a serious mental block in that regard.

You, too?

[Stephen Lathrop]

Nope, Bellmore. The 14A did not incorporate against the states any personal rights not previously applicable against the federal government. With regard to the federal 2A, only the militia clause was originally ratified. No other federal constitutional amendments to explicitly extend gun rights had passed.

The 14A thus did not decree 19th century state-constitutional gun rights be incorporated. That could not have happened for the same reason it did not happen originally. The state rights were not alike, so there was no uniform standard to apply. Nobody attempted to say which state's gun rights ought to become standard everywhere.

Those various state constitution protected gun rights continued as before, applying variously from state to state. That remained the case until Heller changed the accepted reading of the U.S. Constitution, to force all states to acknowledge a personal right to self-protection with a firearm.

[Brett Bellmore]

"With regard to the federal 2A, only the militia clause was originally ratified. "

That's an amusing notion, which I expect will get very little purchase if asserted in court. Did somebody scribble the rest of the amendment into the Bill of Rights some time after ratification of just the Milita clause?

[Joe_dallas]

Stephen Lathrop 3 hours ago
"With regard to the federal 2A, only the militia clause was originally ratified."

Lathrop - Last I checked, there isnt any form of a line item veto in the ratification process for amendments to the constitution

[Randal]

it has been established for decades now that respecting constitutional rights is not locally optional

Of course, but Hawaii is respecting the Second Amendment in the manner specified by Bruen.

I think Bruen is a steaming pile, but Lathrop is right: to the extent there was a national tradition around 2A at the time of the 14th, it was federalism.

[Brett Bellmore]

No, they're not. The whole point of the 14th amendment was to establish that states and localities had to respect constitutional rights, regardless of "local traditions". It was NOT a federalism amendment.

[Randal]

Hawaii is respecting the federal right as it was understood at the time of the 14th.

What's weird is that Bruen attempts to incorporate other states' constitutions against Hawaii...!!!

[Brett Bellmore]

Respecting the federal right as it was understood at the time of the 14th, relying on a Jim Crow law? Got any other jokes?

[Randal]

That's their attempt to comply with Bruen. Bruen isn't the Second Amendment, it's stupid, so it's not surprising that attempts to comply with it are stupid.

Hawaii is perfectly willing and happy to honor the Second Amendment itself.

[Brett Bellmore]

No, it is NOT their attempt to comply with Bruen. I'm not going to give that absurd claim the time of day. They are not complying with Bruen, they're not trying to comply with Bruen, nobody seriously thinks they're trying to comply with Bruen.

It's their attempt to render Bruen moot, by excluding carrying of guns from so many places that people might as well not have them.

And since they can't just go before the Supreme court and say, "Yeah, we're violating that ruling of yours, whatcha going to do about it?" they have to pretend that they're complying with Bruen, but everybody and their kid sister knows they're doing the opposite.

[Randal]

Complying with Bruen, attempting to comply with Bruen, pretending to comply with Bruen... I don't care what you call it. They're not saying that the Second Amendment doesn't apply to them or that it's not a "first class" right.

[Joe_dallas]

Relying on Hawaiian customs and traditions at the time of ratification of either 2a or 14a or Hawiian customs that existed prior to 1959 are not relevant.

When Hawaii became a state, it agreed to be bound by the US constitution that existed at the time of ratification of the US constitution and the subsequent amendments. Hawaii did not agree to be bound by a different constitution. Same thing when Texas became a state.

[JoeFromtheBronx]

Hawaii would probably rather not follow Heller, but is willing to do so.

[Brett Bellmore]

They're not "willing" to, they've simply been given no choice in the matter.

[Area Man]

These are the same people who, when the Supreme Court used to pretend abortion was a constitutionally protected right, would demand that local abortion laws be struck down.

[Randal]

Area man owns himself, film at 11.

[Area Man]

.

[Absaroka]

Kansas had a long local tradition of segregation until Brown v Board ended it. I think the rights in the BoR are a floor, and states can't go below that floor regardless of their quaint local traditions.

I am supremely unpersuaded by arguments of the form 'Black Codes did X to blacks during Jim Crow, and that justifies doing X to everyone today'.

[SRG2]

Yup. I don't see how Hawaii wins this one. I do see that a seller of "no guns here" signs will make a few bucks.

I suspect the best Hawaii can do is pass strict(er) laws against trespassing when armed.

[Absaroka]

"I do see that a seller of "no guns here" signs will make a few bucks."

FWIW, I live in a deep blue state (WA), where 11% of the adult population has a carry permit. Even in the bluest parts of the state (e.g. Seattle) it's rare to see businesses with no-guns signs. I think businesses look at the issues caused by having shoppers with CPLs (rounds to none) and the potential loss of business (who knows) and don't bother with signs.

In fairness, Washington has had shall-issue licenses since 1962ish, so folks have had a long time to accurately assess the chance of problems. People in Hawaii don't have that experience and may worry more.

[Area Man]

I live in Texas. In the cities, nearly every business has the required "Don't carry here" sign. In the rural areas, not as much. It's really not a big problem. Again, this is Texas, where (most) people aren't as hostile to gun rights.

[Absaroka]

Interesting! Are you talking 30.05, 30.06, or 30.07?

Texas isn't somewhere I go; my sense from internet chatter was that 30.07 were fairly common around Austin et al, while the other two were pretty uncommon everywhere. Not so?

[Brett Bellmore]

Which is just fine. The problem is that the Hawaii legislature really wants to keep people disarmed, or if that's not possible, force them to leave their guns at home any time they walk out the door.

They really, bluntly put, want to violate the 2nd amendment.

[MarkJawz]

But that also is just as much of a problem for blue states that have banned guns on public transport. If you live in New York City or D.C. without a car, and you can't bring a gun on a subway, you effectively can't carry.

[Brett Bellmore]

Yes, in fact, it IS just as much of a problem for them. And by pushing the envelope to the point where the Court couldn't refrain from slapping them down, Hawaii may just have screwed over NYC and DC, when the precedent from striking down their laws gets rolled out nationally.

[MarkJawz]

Ehh, you're more confident than I am. I suspect the court will rule narrowly on this one issue such that every other "sensitive place" remains.

[Stephen Lathrop]

Absaroka — The BoR floor was always the militia right, until Heller enlarged the floor to decree a personal right of self-protection with a firearm was protected by the 2A.

Also, your Black Codes argument does not accomplish the pejorative task you set for it. It remains reasonable but not necessary to cite measures motivated against blacks as part of America's history and tradition. But strictures against arming others, explicitly including white others, also abound in that history and tradition. Those stretch back to the earliest days of white colonization on the Eastern Seaboard, and run continuously forward through the 20th century.

Bruen attempts to circumvent that record in two ways: first, by gerrymandering the time continuum to pick as relevant only intervals which led to outcomes Thomas favored; second, by insisting that no evidence be considered except legal texts dating within that pre-selected sampling of dates. Even the slip-shod tradition of law office history is not so biased against evidence of court records, case outcomes, and contrary prevailing practices.

While parading as a decision based on history and tradition, Bruen excluded more history and tradition than it relied upon. The part deemed relevant was notably smaller than the other part. That makes the decision an unworkable results-oriented mess. It cannot provide coherent guidance because its arbitrary rules to require sampled facts exclude a predominant remnant of facts which remain stubbornly relevant.

[Joe_dallas]

Stephen Lathrop 3 hours ago
"Absaroka — The BoR floor was always the militia right,"

Its always been a right of the people for self defense (individual right) and a right for the common defense ( militia right).

You keep repeating historical research that is flawed ie cherry picked which is what Stevens did in his heller dissent. He pretended that the historical record of the self defense never existed. He (and you) ignore the senate vote to limit 2a to the common defense that was voted down. Good historical research is not truncating historical record which is what you repeatedly do.

[JoeFromtheBronx]

Who is making such arguments?

Justice Jackson flags tainted history and tradition to question the usage of the approach.

The specific policy involved here was used historically in various contexts, as noted by the state briefing.

The specific "Black Codes" era rule cited as a red flag was reestablished once the Reconstruction government took over. Unlike various bad black codes, it was deemed an acceptable, race-neutral rule.

[Brett Bellmore]

Debate in this case just underscored that Sotomayor's hostility to the 2nd amendment overrides every other consideration in her mind. Arguing local option for a constitutional right?

Well, we knew going in that Hawaii had three votes in the bag. Scotusblog seems to think they don't have four votes. But Barrett just might be that fourth vote, she seems less enthusiastic about the 2nd amendment being a full first class right.

[Randal]

Everyone agrees it's a first-class right. We just disagree on its scope. Heller found self-defense and hunting somewhere in a penumbra, which as we now know was an Egregiously Wrong thing to do. Bruen extended that error by placing the right on the extremely shaky History and Tradition foundation.

What we need now is a good old-fashioned return to the original meaning of the Second Amendment.

[MarkJawz]

You're a liar. If you think the Hawaii, California and New York treatment is that of a "first class right," I'd like to see what you consider otherwise.

[Brett Bellmore]

Yeah, anti-gunners long ago settled on this "We don't want to violate the 2nd amendment, we just understand it to permit everything it was written to prevent." line.

Nobody takes it seriously, and it wasn't even funny back when Stevens tried it.

[Randal]

It was written to prevent the federal government from demilitarizing states. Pretty much the opposite of what's going to happen to Hawaii.

[Brett Bellmore]

It was written to prevent the federal government from demilitarizing the population of the states, which is a relevantly different thing. Thus incorporating it against the states prohibits them from demilitarizing their own populations, too.

[Randal]

Ok, I'm glad you agree with me that your post was misleading.

I agree with you that the 14th Amendment applies to states, and I further agree that it prevents "demilitarizing the population."

A default rule against carrying on private property does nothing to demilitarize the population.

[Brett Bellmore]

It is a default rule that aims at discouraging gun ownership by denying you anywhere outside your home you can carry the gun.

We don't permit those sorts of tricks for other rights.

[Randal]

Then attack it on those grounds. I don't see that argument being made in these litigations.

[Joe_dallas]

Randal 6 hours ago
"Everyone agrees it's a first-class right. We just disagree on its scope. "

That is the same stunt that Stevens' tried to pull with his Heller dissent!

Yes stevens agreed the "right to keep and bear arms shall not be infringed " then he turned around and stated the right can be significantly infringed to the point that there is no longer a right protected by the constitution.

[wvattorney13]

The description of what we are talking about is manipulable and hopefully doesn't control the answer. For example, "didn't carry weapons in this state without an owner's consent" is one way to say it. It seems to support the HI law.

But wouldn't it be more precise to say "didn't carry weapons in this state in the face of an affirmative objection by the owner, backed up with a threat of ejection unless obeyed"?

Isn't my formulation better? What history and tradition in any state (or anywhere ever) requires a gun carrier to stop and request affirmative consent to carry a weapon upon entering any private property?

[F.D. Wolf]

Second look at the Corwin Amendment (technically still pending for ratification before the states since 1861)?

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

[F.D. Wolf]

When state officials talk about "our traditions", I hear it in a Deep South accent.

[wvattorney13]

Indeed. Their traditions are "we don't like guns." The problem is that for however much that is true, it is not a tradition in harmony with the constitution that should be given any countenance by the courts.

If a locality has a tradition of "shut up and do what you are told" or "just admit what you did to the police" then good for that locality, but the tradition cannot possibly have any relevance when assessing the scope of a constitutional right.

They are feigning malicious compliance with Bruen by completely misstating the test.

[Randal]

I totally agree that states' traditions shouldn't be relevant to the meaning of the constitution.

Bruen says otherwise. It goes on and on... and on about states' traditions.

[MarkJawz]

It doesn't say anything about a specific state's traditions. It says things about traditions at the time of the founding. Since Hawaii wasn't even a state until after WW2, its traditions are irrelevant.

[Randal]

You're either insane, or you've never read Bruen and have no idea what it says. Here's just one example of many:

A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.”

I think it's fair to wonder why a Massachusetts statute from 1795 should bind Hawaii today.

[Brett Bellmore]

The statute doesn't bind Hawaii today, they are not obligated to arrest "all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.”

It is merely evidence of what the right was understood to mean at the time it was made a binding part of the Constitution.

[Randal]

No, it's evidence of what Massachusetts thought its constitution meant. The Second Amendment had no bearing on what laws Massachusetts could pass at the time.

[JoeFromtheBronx]

When the issue is free speech, the 1790s limits are not as readily cited. There, modern-day free speech laws are more libertarian.

[wvattorney13]

Another issue I had. Nobody seems to be talking about the practicalities of this law. It would be a rare business indeed that would go all 2A and put these signs up. Most business want to stay out of this fray, even if at a core level they have no objection to customers carrying.

So in any reasonable trip away from home, I am going to one or more places that likely will not have posted the sign. Therefore, I have to leave the gun at home. With no storage requirement, and it being unrealistic to leave it in the street, I can't take it at all for the entirety of the trip. If I have 13 stops, 12 of which allow the gun, the 13th compels me to leave it at home.

My right to carry in public is limited to a situation where I want to go outside and walk in circles on the sidewalk. And, this is EXACTLY what HI is trying to accomplish. So their claims of issuing X number of CCW permits as evidence of compliance with Bruen is window dressing. They know that the CCW permits don't do anything.

[Stephen Lathrop]

wvattorney13 — You insist on an arbitrary assumption that there exists a law-abiding, well-trained, non-feckless, not-psychotic, not-drug-dependent, non-alcoholic, emotionally stable cohort of gun carriers, who are without physical impairments which could increase risks to others if they produce concealed guns, and shoot them within the private property of others.

On the basis of faith in the existence and reliability of that segment, you demand that owners of private property be legally compelled to open it to entry on terms to arm alike not only that minority, but all the others too, and admit them too.

No thanks.

If you feel constrained in your gun carrying convenience by a legal standard to keep private property under the governance of its owners, then I am fine with that. Your opposite notion is repellant that gun carriers must be maximally convenienced, while all the others bear every burden which an indiscriminately armed populace inflicts.

[MarkJawz]

Go fuck yourself, you lying statist.

[Rossami]

With that much straw, you need go to find the yellow brick road. Maybe the Wizard will give you a brain because that's not what wv said at all.

[Aubrey LaVentana]

"wvattorney13 — You insist on an arbitrary assumption that there exists a law-abiding, well-trained, non-feckless, not-psychotic, not-drug-dependent, non-alcoholic, emotionally stable cohort of gun carriers"

No.

Carry advocates know that there exists a cohort of law-breaking, undisciplined, sometimes psychotic, drug-dependent, impulsive gun carriers, who will enter public spaces open to anyone else, and ignore any signage or laws meant to discourage them.

This cohort is small but responsible for the majority of all violent and property crime. They are the "indiscriminately armed populace" that disgusts you. Or are they?

They are polar opposites to the cohort of people who qualify for, train for, and employ concealed carry, and who litigate the limitations on it.

You seem to not distinguish between these two cohorts. Laws that fail to distinguish between them are the issue.

[MarkJawz]

Hochul admitted as much! She said carry in New York would be limited to the streets and sidewalks.

They can be honest about their intentions because they know they have a judiciary filled with bad-faith Democrat Party appointees.

[Longtobefree]

"Most Second Amendment cases focus on who can carry arms or what kind of arms they can carry."

Who can carry? Everyone not incarcerated.
What kind of arms? All kinds; the US Constitution does not infringe on any specific arms.

Nothing to it.

[Randal]

Yet another nail in the infants' coffin of the History and Tradition doctrine.

[Brett Bellmore]

From the oral arguments, sounds more like another nail in the coffin for "local option".

[Randal]

I don't think Hawaii will win. But as Lathrop points out, Sotomayor has highlighted yet another Bruen logic error. Bruen was already in tatters after Rahimi, and Sotomayor is stomping on the remnants.

This gives more ammo to lower courts, and eventually to a Thomas-free SCOTUS to finally ditch Bruen entirely. (And probably the original sin of Heller along with it.)

[Brett Bellmore]

The Bruen logic errors are actually errors in gun controllers' desperate efforts to rationalize Bruen away. But I do agree that Rahimi left Bruen in tatters. Thomas turned out to be the only member of the majority who actually meant it.

Your problem is that, while there aren't 5 votes to uphold Bruen as written, there are only 3 votes to completely ditch it. Getting rid of Thomas won't get you to an anti-Heller Court, there are only currently 3 votes on the Court to undo Heller.

The radical gun controller position just isn't as popular nationally as you want to think, even if it is in some states like Hawaii. The Court isn't going to do your dirty work for you.

[Randal]

It depends on how you undo Heller. You guys seem unable to think beyond the Stevens dissent as the only other possible choice. It's not. There are much better Heller alternatives out there that would probably appeal to the center right (like constitutionalizing assault rifles, which would happen if we actually took the militia clause seriously).

[Brett Bellmore]

I'm not sure what you mean by "constitutionalizing assault rifles"; Yes, if we took the preface seriously, it's drop dead obvious that it's a right to the same sort of weaponry as the Army issues to its soldiers.

But once having acknowledged that ownership of battle rifles is constitutionally protected, fat chance any lesser gun control laws could survive rational basis review.

If all you meant is that Scalia's halfway acknowledgement of the 2nd amendment might eventually be displaced by a ruling that entirely upholds it, I would say that would be Bruen, if the majority had actually meant it. They clearly didn't, except for Thomas.

[Randal]

You can constitutionalize assault rifles (and "lesser guns," at least to the extent they're useful militarily) while returning self-defense and hunting to the states. In other words, you can -- and perhaps should -- own an assault rifle, but that doesn't mean you get to carry it around with you at all times and store it unsafely (unless you live in West Virginia).

[Brett Bellmore]

So, you want to keep the keep, and ignore the bear?

[Randal]

No, I want to give "bear" its original meaning.

[JoeFromtheBronx]

(like constitutionalizing assault rifles, which would happen if we actually took the militia clause seriously).

The militia clause involves a "well regulated mlitia" and can be applied by giving the government the authority to regulate the usage of assault rifles (I put aside what that means exactly), including setting forth a rule that they were kept in local armories (the British were seeking to seize such things in the events the lead to Lexington and Concord) for usage when necessary.

[Aubrey LaVentana]

"a rule that they were kept in local armories (the British were seeking to seize such things in the events the lead to Lexington and Concord) for usage when necessary "

the rifles weren't centrally stored in armories, just reserves of powder and shot, and the cannon.

And it's not a winning argument that mandatory armory storage is Constitutionally defensible, since a centralized armory is more prone to seizure.

[JoeFromtheBronx]

David Kopel:

"At the governors’ command, British soldiers began raiding American armories, which stored firearms for militiamen who could not afford their own, and also held large quantities of gunpowder."

https://theimaginativeconservative.org/2024/04/battles-lexington-concord-american-revolution-david-kopel.html

Even if it is merely ammo, rifles w/o ammo are of limited value.

And it's not a winning argument that mandatory armory storage is Constitutionally defensible, since a centralized armory is more prone to seizure.

The chance of seizure alone doesn't mean that it is unjust to only allow the storage of certain weapons, which will still be available to the militia to use [providing a reserve force of the people at large vs. a standing army], at certain locations.

And, if people want to be originalists, the original understanding was more open to regulation, even of speech, when it was deemed necessary to protect the public welfare.

[Absaroka]

I think the analogue you are seeking is one mandating storage in armories, and forbidding possession at home, if you can find one.

[JoeFromtheBronx]

My original comment provided a limited citation regarding the presence of armories that provided an important militia function.

The armories would provide arms to those unable to pay for them (the militia is supposed to be the people at large, not just the well off). Some areas also limited personal storage of guns and powder, particularly in heavily populated urban areas.

I'm not binding myself to a "history and tradition" approach. Applying the Second Amendment, using the militia clause, I don't think it is required to give people a personal right to possess assault weapons [whatever that means].

If we took the clause "seriously," given modern conditions and everything, it is possible to carefully regulate the storage of such weapons, having them available for militia use for the specific needs such weapons would address.

Meanwhile, people for personal use would still have a broad range of arms to use.

[Absaroka]

I'm not disagreeing: the government can absolutely stock weapons in armories. National Guard Armories are a pretty common thing. If the government wants to stockpile an M-16 for every citizen, that is perfectly OK.

What's not OK is saying 'we're going to stockpile arms in a government controlled armory, so you can't have an AR at home'. Imagine if you will, General Braddock helpfully announcing he was going to save everyone the trouble of storing their weaponry by establishing a storehouse under his control, and forbidding other possession. I don't think the colonials would have considered that acceptable.

[Rossami]

Joe, I think I finally understand your argument. The problem is that your example does not logically advance your argument. The existence of armories which stored firearms for those who could not afford them says nothing about the limitations, if any, on ownership or storage of firearms by those who could afford them.

The ammo storage requirement was entirely about the explosion/fire risk of the powder. There were, to the best of my knowledge, no restrictions on the storage of non-explosive shot. The public safety justification for storage of large quantities of a highly flammable substance within the limits of cities built primarily of wooden structures does not extrapolate to the current circumstances. This is especially true when noting that those powder restrictions were only on bulk storage. They did not reach down to normal-use amounts such as 'a powderhorn'. An analogy might be gasoline. There are detailed regulations on the operation and location of tank farms but no such regulations on where you can park the gasoline in your car.

[Mike45]

The recent situation at the church in St Paul illustrates the multi-faceted nature of the amendments in our Bill of Rights. The protesters were standing on their use of freedom of speech, an enumerated first amendment right, but went too far when they invaded the church, violating the right of the church members freedom of religion, which is also a first amendment right.
The second amendment is also a multi-faceted amendment. It recognizes the authority of states to form and train militias while also recognizing the right of the people to keep and bear arms. Note this language is also consistent with the tenth amendment which sets out hierarchy of rights on the people vs powers of the state and federal governments.
Businesses can tell people they don't want firearms on their property and people carrying which respects both parties rights. Governments mandating prohibiting carrying unless specific permission is given respects neither parties rights.

[Brett Bellmore]

" It recognizes the authority of states to form and train militias while also recognizing the right of the people to keep and bear arms. "

There is not one word in the 2nd amendment recognizing a state's authority to form and train militias. It gives the necessity of a militia as a reason why the right shall not be infringed, and that's it. Doesn't say WHO forms or trains them.

There was no reason for the amendment to touch on that, since it was already taken care of in the Constitution proper:

" 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."

[dwb68]

2nd amendment was incorporated against the states with the 14th amendment... end of story. We dont allow states to have "local traditions" around any of the other rights, period.

[Brett Bellmore]

If there's one constant for the gun controllers, it is their absolute determination that the 2nd amendment never, ever be treated the same as other constitutional rights.

[JoeFromtheBronx]

Suddenly, when Hawaii wants to respect its traditions, the concept for some conservatives is horrible. Conservatives regularly honor tradition. Tradition is a mixed bag. But let's be consistent.

Hawaii was badly treated, including by colonialism, and now tries to honor Hawai'i traditions. To the degree that matches current constitutional principles, that seems okay.

The Black Codes red flag turns out to be a strawman?

https://ballsandstrikes.org/scotus/wolford-v-lopez-oral-argument-recap/

The state, in its brief, as did Neil Katyal yesterday, explained that the regulation flagged by a VC contributor was UPHELD later by the Reconstruction Congress.

That specific regulation, as compared to various bad ones in the Black Codes era, was deemed appropriate. In fact, protecting property rights, it helped blacks. For instance, if a black person had a business, a KKK member could not go onto it with a weapon unless given authorization.

Finally, yes, there is a national constitution. The 2A originally promoted federalism. The 14A, again, conservatives are selectively concerned about this, and put in place certain national rights.

Obscenity is a bit of an exception, with states allowed some discretion in setting forth morals legislation.

States still have some discretion unless the laws in place violate national rules. For instance, some states more heavily regulate establishment or free exercise rules than the national floor.

The same applies to gun rights. Some go beyond Heller. It is still unclear how far Heller applies beyond the home. States have some discretion in regulating the rules there. There is some room for Hawaii to honor its traditions, not based on racism, etc., in this context.

[Area Man]

This might be the craziest theory yet. Imagine their reaction if we tried to say that local traditions allowed regulating marriage, sodomy, or abortion. They'd have a meltdown.

The point of the 14th Amendment was to set a national floor with respect to certain rights. In other words, it was specifically designed to undermine federalism with respect to that floor. This theory is just insane.

[Rossami]

I thought Sotomayor really shot her own arguments in the foot when she asked "Where else in the law have we permitted local custom to create a constitutionally protected right" because I thought the answer was an unambiguous 'nowhere'. But then I got to "This section considers the First and Fourth Amendments, which countenance locational rights that can vary based on location" and now I'm thinking that my understanding is incomplete.

Digging into the linked article, the 1A "locational rights" examples are forum analysis (is the sidewalk a traditional public forum, etc) and obscenity doctrine. I think the forum analysis example is inapt because while forum is a location, the analysis is not allowed to vary from state to state. The obscenity doctrine is on-point but that doctrine is so confused and unworkable that I don't consider it a useful basis for anything.

The 4A example is that 'location' can be one factor among many in determining whether a particular stop was reasonable. But that location is highly specific - a specific street or neighborhood, nothing anywhere close to the entire state. So I agree with the article that it's not applicable here.

So thank you. I learned something. Had I been in Beck's shoes, I would have been tempted into the simple pithy answer "nowhere" and been wrong. The less-satisfying but right answer would have been 'nowhere relevant'.

[Randal]

Obscenity seems relevant. I don't think you can sweep it away just by proclaiming it to be "confused."

[Rossami]

Fair. I was trying to be concise in an already-overlong comment.

The applicability of obscenity doctrine is entirely based on the 1973 Miller decision which invoked "contemporary community standards" without defining, well, anything. Subsequent cases have questioned the viability of that approach. Specifically, it runs smack up against the vagueness doctrine in that defendants cannot know what will or will not count as a violation. Miller has not been formally overturned but subsequent decisions have all been to cabin it, not to expand that doctrine.

[JoeFromtheBronx]

"Where else in the law have we permitted local custom to create a constitutionally protected right"

The Due Process Clause protects denial of life, liberty, and property without due process of law. Locally created law and custom can create liberty or property rights protected by the clause.

[Rossami]

Can you be more specific with your example, please? A case name or maybe even a case cite?

And to be clear, it would have to be a case under federal law that nevertheless recognised a state-created right not recognized by other states, not a case argued under state law, right?

[BadLib]

I wonder if a "regional custom" of excluding Blacks from public facilities should exempt much of the country from the Civil Rights Act...

On another point, would the Court find it acceptable for a state to make it a crime to engage in political speech with other patrons in/on property held open to the public unless explicit permission was provided by the party controlling the property?

For the default to be that it's a crime to exercise an enumerated constitutional right on private property held open to the public seems absurd. I of course have no issue with the controlling party over such property explicitly banning such exercise openly and clearly - with the remedy being limited to "trespassing" the person requiring them to leave and never return.