Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of "Bearing Arms" for Self-Defense

This Article sheds light on a major constitutional question opened up by the United States Supreme Court's landmark decisions in District of Columbia v. Heller and McDonald v. City of Chicago: Does the Second Amendment "right to bear arms" include a right to carry a handgun for self-defense outside the home? Some courts and commentators have declared that Heller held that the Second Amendment right is limited to the home, so that restrictions on handgun carrying do not even fall within the scope of the Second Amendment. Others assert that the potential applicability of the right to bear arms outside the home is simply a "vast terra incognita," devoid of guidance, into which lower courts should hesitate to venture for prudential reasons.These courts are mistaken about Heller and mistaken about the absence of guidance. As I show, Heller and McDonald have two holdings, not just one: they adopted a particular interpretation of the right to bear arms, then applied that understanding to the bans on handgun possession that were before them. The right that Heller and McDonald recognized-the individual "right to . . . bear arms for the purpose of self-defense"-has a long tradition in the state courts, and that tradition supports a right to carry outside the home. Post-Heller lower court decisions that confine the scope of the Second Amendment right to the walls of the house have reached those results, not by addressing and distinguishing this large and relevant body of precedent, but by ignoring it.The centerpiece of the Article is an analysis of the past 190 years of state court constitutional precedent on arms carrying. I show that there have been two different traditions of the individual right to bear arms: a defense-based right, under which courts construe the right to bear arms as protecting a meaningful right to carry handguns for self-protection, and a "hybrid" or civic-based right, under which gun possession is protected, but courts do not view self-defense as a central purpose of the right, and therefore uphold broader restrictions on weapons carrying. I show that Heller and McDonald embraced the first tradition and rejected the second. Once lower courts and scholars look to the correct line of precedent, they will find powerful arguments that the Second Amendment's scope includes a right of individuals to carry handguns in public for self-defense.Ab esse ad posse valet consequentia.1INTRODUCTIONIf the decisions in District of Columbia v. Heller2 and McDonald v. City of Chicago3 have established the Second Amendment right to keep and bear arms as a "part of ordinary constitutional law,"4 then we should expect important issues of Second Amendment interpretation and application to become increasingly amenable to resolution using the tools of ordinary constitutional reasoning. The purpose of this Article is to show how far that expectation can be met with respect to the most significant Second Amendment issue currently facing state and lower federal courts: whether, and to what extent, the Second Amendment5 right to "bear arms for the purpose of self-defense"6 includes a right to carry handguns (and perhaps other common defensive weapons) outside the home.7 I will apply familiar tools of doctrinal and historical analysis8 to this question, and will argue that the Second Amendment right to bear arms should be understood to protect a presumptive right to carry a handgun outside the home for self-defense. This right requires that most individuals be able, if they so choose, to obtain authority to carry a loaded defensive handgun legally at most times and in most places. The right is also subject to some forms of regulation. Important examples are likely to include the requirement of a carry permit or license (if issued on an objective, nondiscretionary basis), and regulations of the mode of carry, such as requirements that handguns must be carried openly, or that they must be carried concealed.These conclusions are contrary to the decisions of some post-Heller lower courts that have rendered restrictive opinions holding that the Second Amendment confers no protection outside the walls of an individual's home, largely because the particular laws challenged and struck down by the Supreme Court dealt with the possession and defensive use of handguns in the home. …