The Right Not to Keep or Bear Arms

Blocher, Joseph, Stanford Law Review

INTRODUCTION

I. THE MEANINGS OF "KEEP" AND "BEAR"
    A. The Traditional Understanding." Military Terms
    B. The New Understanding: Self-Defense Terms
       1. Keeping as having
       2. Bearing as carrying

II. RIGHTS NOT TO
    A. The Right Not to Speak
    B. Other Rights Not To

III. THE RIGHT NOT TO KEEP OR BEAR ARMS
    A. The Right Not to "Keep "' Arms
       1. Mandatory possession laws
       2. Laws forbidding the exclusion of guns from private property
       3. Concealed carry laws
    B. The Right Not to "Bear" Arms
    C. Mediating, Conflicting, Rights
CONCLUSION

INTRODUCTION

In District of Columbia v. Heller, (1) the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms for purposes of self-defense. (2) In doing so, the Court rejected the idea that the amendment's function is to protect the state militias from disarmament by the federal government, finding instead that the original public understanding of the Second Amendment gives individuals the right to keep and bear arms disconnected from military service, and that it "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." (3) The Court went on to conclude that "keeping" a gun means having it in one's constructive possession--in the home, for example--and that "bearing" a gun means carrying it on one's person. (4) These actions are constitutionally protected because they advance the "central component" or "core lawful purpose" of the Second Amendment: freedom of self-defense, (5) particularly in the home. (6)

But what if a person believes that the best way to defend himself against violence in his home is to keep guns out of it? After all, despite the undoubted importance of the right to self-defense and the political popularity of the Supreme Court's "individual rights" reading of the Second Amendment, (7) a majority of Americans choose not to keep guns in their homes. (8) Many if not most make that decision for personal safety reasons, (9) and even among gun owners, only a minority say that their primary motivation for having a gun is self-protection against crime. (10) Empirical data regarding self-defense and gun ownership are notoriously contested, (11) and often unpersuasive, (12) so it may be impossible to say whether avoiding guns is, statistically speaking, the "right" safety decision. But since Heller entrusts that decision to the individual, the statistics should be largely irrelevant as a constitutional matter. (13) A person who believes her home to be safer without a gun is attempting to protect herself from a risk of future violence, just like a person who chooses to keep a handgun on her bedside table. If self-defense is the "core" of the Second Amendment, why should only one of these decisions be constitutionally protected? Shouldn't the interests giving rise to the affirmative right also protect a person's freedom not to exercise it?

The central idea explored in this Article is that the Second Amendment's guarantee of an individual right to keep or bear arms in self-defense should include the freedom not to keep or bear them at all. Though such a "negative" Second Amendment self-defense right has never been recognized, nor even thoroughly discussed, (14) rights not to engage in constitutionally protected activities are well established in other areas of law. (15) This is especially but not uniquely true in First Amendment doctrine, which in turn has often been used as a guidepost for the Second Amendment. (16) Indeed, the freedom not to speak has famously been called a "fixed star in our constitutional constellation," (17) precisely because it serves the same First Amendment values as speech itself: individual autonomy, the marketplace of ideas, and so on. As Chief Justice Burger wrote in Wooley v. Maynard, "[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind."' (18) Justice Brennan emphasized that symmetry in Riley v. National Federation of the Blind of North Carolina: "[T]he First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." (19) Following the same logic, one might say that after Heller the Second Amendment guarantees freedom of armed self-protection, a concept necessarily comprising the decision of both what arms to keep and what arms not to keep.

But what would it mean to have a right not to keep or bear arms, and what relevance would that right have in practice? Traditionally, gun regulations have limited citizens' ability to have or carry guns. The usual Second Amendment question, therefore, has been whether such limitations are constitutional. But some legislatures are now contemplating or doing something quite different: pursuing "anti-gun control" laws that supersede private ordering by making it difficult or illegal for private parties to keep guns out of their homes, off their property, and otherwise out of their actual or constructive possession. Perhaps most radically, some have proposed or enacted laws requiring citizens to keep guns in their homes. (20) Many others have adopted "forced entry" or "take your gun to work" laws, which require private parties--usually businesses--to allow guns on their property. (21) And even concealed carry rules arguably burden the ability not to keep arms, because they make it substantially more difficult for people to monitor whether unwanted guns are being brought onto their property or into their homes. (22)

Parts I and II of this Article argue that the new self-defense-based reading of the Second Amendment suggests recognition of a fight not to keep or bear arms; Part III explores that right's practical significance. Part I begins by describing how the terms "keep" and "bear" were redefined through changing interpretations of the Second Amendment's core purpose. Though those words were long understood to have a military connotation, scholars, advocates, and courts in recent decades have come to see them as referring to private, individual possession and use of guns. This new understanding, which broadly equates "keeping" a gun with "having" it in one's possession and "bearing" a gun with "carrying" it, is intertwined with the new view of the Second Amendment as grounded in self-protection.

Part II explores the constitutional protection of rights not to engage in activities which would, if undertaken voluntarily, be constitutionally protected. Not every constitutional right carries with it such an inverse right. There is no Thirteenth Amendment right to sell oneself into slavery, for example. (23) But others do--people have constitutional rights to decide whether to speak, (24) whether to associate, (25) "whether to bear or beget a child," (26) and whether to accept the assistance of counsel. (27) Such rights often exist where the underlying reasons for protecting the "affirmative" right are also furthered by the "negative" right. Thus the First Amendment protects speech and silence because they both serve core First Amendment purposes like the protection of individual autonomy and the preservation of the marketplace of ideas. By contrast, the Thirteenth Amendment's abolitionist purpose would be hindered, not helped, if people were permitted to sell themselves into slavery.

Extending this approach to the Second Amendment context, it would seem that the decision not to have or carry arms should be constitutionally protected if it serves the amendment's core purpose--individual self-defense, according to Heller and McDonald v. City of Chicago. (28) That is, if the "core" and "central component" of the Second Amendment is a right to make decisions about armed self-defense in the home, and if not possessing guns is one such decision, then forcing someone to possess a gun amounts to compelled keeping and violates the amendment's core purpose.

Part III describes the contours and possible practical import of a right not to keep or bear arms. Subpart A explores the right not to keep, which, like the right to keep, would be roughly coextensive with a person's property rights. Thus if voluntarily having a gun in one's home constitutes "keeping" within the scope of the Second Amendment, then being forced to have a gun in one's home constitutes compelled keeping. The latter implicates precisely the same constitutional interests as the former, because it limits the homeowner's ability to make decisions about how best to protect herself using guns and thereby to prevent violence in her home. This potentially calls into question the constitutionality of laws compelling private owners or businesses to permit guns on their property. Whether such laws are actually unconstitutional is difficult to say--the answer depends among other things on the still-undefined standard of review for Second Amendment claims--but at the very least they help illustrate the potential significance of the right not to keep arms.

Subpart B briefly evaluates the right not to bear, which would protect an individual from being forced to "carry" arms. The practical scope of this right is limited, if only because the government rarely compels citizens to carry arms or burdens their ability not to. A right not to bear arms could give rise to Second Amendment arguments--albeit weak and unsuccessful ones--against compulsory military service. But just as the First Amendment's right not to speak does not include an absolute right to refuse to salute one's commanding officer, the right not to keep or bear arms would not give soldiers a constitutional right not to carry weapons.

The purpose of this Article is to test the strengths and weaknesses of an idea, not to advocate without qualification for the recognition of a new constitutional right. The idea itself is deeply counterintuitive, and there are serious objections to it. (29) It is not necessarily true that the decision not to keep guns is the equivalent of self-defense, for example, nor is it obviously correct that being denied the right to exclude guns from one's property is the equivalent of being forced to "keep" them. The Article attempts to address those and other objections, and by doing so to cast light not only on the idea of a negative Second Amendment right, but also on the affirmative right of which it may or may not be a reflection.

The Article takes Heller and McDonald as given, and uses them as departure points for analysis rather than targets of criticism. The goal here, as in other post-Heller scholarship, (30) is to flesh out the new Second Amendment, and to determine the implications of a right whose central component and core is selfdefense. The Article therefore focuses not on the question of whether Heller and McDonald were rightly decided but rather on the question of their implementation, a question the Court itself has recognized as largely unanswered. (31)

The discussion also seeks to highlight a simple but often underappreciated fact, one that helps explain the bitterness of the political and scholarly debate over the Second Amendment: both sides are invoking self-defense and personal safety interests. (32) In Heller, the Supreme Court attempted to short-circuit the conflict by saying that one side's policy preferences were irrelevant because the other had a constitutional fight to defend itself with guns. But that did not resolve the underlying tension, and the growing number of laws that limit private gun control demonstrate with increasing clarity that if the Second Amendment is, at its core, a guarantee of self-defense interests, then it may speak to those who do not want to keep guns as well as those who do. This is not an argument for gun control, but rather a suggestion that if gun control laws are to be subject to constitutional scrutiny on the basis that they infringe self-defense interests, then anti-gun control laws should be as well. Arming one side of the debate with a constitutional sword means arming the other with a constitutional shield.

I. THE MEANINGS OF "KEEP" AND "BEAR"

The Second Amendment protects a range of individual activity, and yet the verbs that define that activity--"keep" and "bear"--rarely figure prominently in legal and popular debates about the amendment's meaning. Instead, other words in the amendment--"well-regulated," "militia," "the people," and even "arms"--generally drive the discussion, with the definitions of "keep" and "bear" shifting to accommodate them. In Heller, for example, the Court began its textual analysis with "right of the people," (33) then moved on to "arms," (34) and only then to the phrases "keep arms"' and "bear arms." (35) This relative neglect of the Second Amendment's major verbs must be remedied, for in order to understand the scope of the right protected by the amendment, one must know what actions it covers. Is a person "keeping" a gun when it is stored in a locked safe in a toolshed? Is he "bearing" it if the gun is in the glove compartment of his car? (36) Understanding the scope of these "affirmative" rights is also necessary for analyzing the right not to keep or bear. If keeping and bearing are interpreted broadly, then not-keeping and not-bearing should be as well. If the right to keep extends to guns that are not in one's immediate possession, then the right not to keep should have a similar reach.

These understandings of the Second Amendment's verbs depend on how one interprets the amendment as a whole, but it is not the purpose of this Article to revisit the debate over whether the Second Amendment is solely concerned with militias, nor even to suggest that one or the other reading of "keep and bear" is preferable. The central holding of Heller, of course, was that the Second Amendment protects an individual right to keep and bear arms independent of militia service. (37) McDonald affirmed that holding and made it applicable against the states. (38) The argument here accepts Heller and McDonald as correct and controlling, and refers to the pre-Heller understanding of the Second Amendment only in order to demonstrate the changes that Heller brought about. The goal of this Part is to frame the rest of the Article's argument by explaining how the central debate over the purpose of the Second Amendment impacts the meanings of the words "keep" and "bear."

For present purposes, then, the relevant point is a descriptive one: When Heller and McDonald shifted the meaning of the Second Amendment away from militias and toward personal self-defense, they also altered the class of activities that constitute keeping and bearing. Those who understand the Second Amendment as protecting a militia-related right read the phrase "keep and bear arms" to connote the military use of weapons. But under Heller's "individual right" reading of the amendment, (39) this military understanding is simply idiomatic. According to the Court's view, the word "keep" broadly denotes "having" a gun in one's home or otherwise constructively possessing it, while the word "bear" refers to carrying a gun on one's person.

The new meanings of "keep" and "bear" are important because they indicate that a new class of individual activity is now protected by the Second Amendment, and for a different reason than before. It is this shift that makes the right not to keep or bear arms both constitutionally relevant and practically important. If the purpose of the Second Amendment were protecting state militias from disarmament by the federal government, then an individual's decision not to keep or bear arms--not to use them in a military sense, that is--would probably have little constitutional relevance, at least as far as the Second Amendment is concerned. (40) Refusing to bear arms would probably do nothing to further the amendment's purpose of protecting state militias from disarmament, and might even hinder it.

But if the purpose of the Second Amendment is to protect a right to self-defense, as Heller and McDonald indicate, then the decision not to keep or bear arms may have constitutional significance for the simple reason that such a decision can be, and often is, rooted in concerns about personal safety and self-defense--values the Court has now identified as the amendment's central component. Since the self-defense reading of the Second Amendment creates expansive new definitions for the words "keep" and "bear," it follows that a right not to keep or bear--the mirror image of the affirmative right--might have broad practical implications as well.

A. The Traditional Understanding." Military Terms

Heller's apparent protestations to the contrary, (41) the Second Amendment was long understood by many if not most courts and scholars to protect state militias from disarmament by the federal government. (42) Under this militia-based interpretation, the phrase "keep and bear arms" was read as referring to the possession and use of weapons in connection with militia service.

The word "bear" does the lion's share of the work in this regard. Adherents to the militia-based reading of the Second Amendment argue that the phrase's plain meaning is military: "The term 'bear arms' is a familiar idiom; when used unadorned by any additional words, its meaning is 'to serve as a soldier, do military service, fight."' (43) As historian Gary Wills put it, "To bear arms is, in itself, a military term. One does not bear arms against a rabbit." (44) This basic conclusion is buttressed by the fact that "bear" was and is often used in conjunction with "arms," creating a combination of words ("bear arms") that derives from the Latin arma ferre, which translates directly as bear war equipment. (45) Bearing arms therefore had a different meaning from, for example, bearing guns. (46)

Supporters of this view point to historical evidence suggesting that the Framers used "bear arms" to refer to military activity. For example, scholars have demonstrated that in Founding-era congressional debates the term "bear arms" was used almost exclusively to denote military activity. (47) Debates over the wording of the Second Amendment included discussion of whether conscientious objectors should be exempted from "bearing arms" (48) or permitted to employ others to bear arms in their place. (49) Those exceptions make little sense except in the military context. (50) Others have argued that the general public shared the Framers' view of the phrase "bear arms" as having a military meaning. An amicus brief filed by a group of linguists and English professors in Heller concluded that, out of 115 texts published between the Declaration of Independence and the adoption of the Second Amendment, the phrase "bear arms" was used 110 times in a clearly military context, four other times in contexts that were not clearly military but which included qualifying language conveying a different meaning, and only once, unadorned, in a nonmilitary context. (51)

Because it is broader, the meaning of the word "keep" does not support the militia reading as directly as the word "bear." Even so, scholars have highlighted evidence suggesting that it could be, and often was, used to refer to the maintenance of militia stores. The Articles of Confederation, for example, required that "every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accounted, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition, and camp equipage." (52) In his Heller dissent, Justice Stevens pointed to the fact that "a number of state militia laws in effect at the time of the Second Amendment's drafting used the term 'keep' to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary." (53) Some scholars have bolstered this view with pre-Framing evidence. (54)

Finally, many have argued that the phrase "keep and bear arms" is effectively unitary, which in turn reinforces a militia-based reading of the Second Amendment. As Justice Stevens put it in his Heller dissent:

   [T]he clause protects only one right, rather than two. It does not
   describe a right 'to keep... Arms' and a separate right 'to bear...
   Arms.' Rather, the single right that it does describe is both a
   duty and a right to have arms available and ready for military
   service, and to use them for military purposes when necessary. (55)

The Heller majority rejected this argument, however, treating "keep" and "bear" as separate verbs protecting different kinds of action. The following Subpart describes that approach.

B. The New Understanding: Self-Defense Terms

In Heller, the Court held that the Second Amendment protects an "individual" right to bear arms disconnected from militia service. The majority found that although "self-defense had little to do with the right's codification[,] it was the central component of the right itself." (56) Two Terms later, in McDonald, the Court reaffirmed this reading and held that the individual right to armed self-defense is "among those fundamental rights necessary to our system of ordered liberty" and is therefore applicable against the states. (57)

As a textual matter, Heller's reading of the Second Amendment was based primarily on the words "right of the people," which the Court interpreted as referring to all citizens, not just the select militia. (58) But the majority did not ignore the phrase "keep and bear arms." Dismissing the traditional militia-related reading of that phrase as capturing only an "idiomatic" meaning, (59) the majority decoupled the words "keep" and "bear" (60) and gave them much broader definitions. "Keep," the majority concluded, refers to the act of "possessing" or "having" a gun, for example, in one's home. (61) "Bear," meanwhile, means to "carry" a gun on one's person. (62) Compared to the earlier, militia-related understandings described above, these definitions extended constitutional protection to a vast range of private activity.

1. Keeping as having

Whereas supporters of the militia-based reading of the Second Amendment have traditionally focused on the word "bear," the Heller majority drew its strongest support from the word "keep," which it found to mean "have weapons":

   Johnson defined "keep" as, most relevantly, "[t]o retain; not to
   lose," and "[t]o have in custody." Webster defined it as "[t]o
   hold; to retain in one's power or possession." No party has
   apprised us of an idiomatic meaning of "keep Anns." Thus, the most
   natural reading of "keep Arms" in the Second Amendment is to "have
   weapons." (63)

The majority supported this conclusion by looking to "written documents of the founding period," which it found to show that "' [k]eep arms' was simply a common way of referring to possessing arms, for militiamen and everyone else." (64)

The majority's reading was in line with that of scholars who argue that "keep" means to possess. Glenn Harlan Reynolds and Don Kates, for example, conclude that "the term 'keep' refers to owning arms that are kept in one's household." (65) Robert E. Shalhope points to the Oxford English Dictionary's treatment of the word "keep," the twenty-ninth definition of which is "actively to hold in possession; to retain in one's power or control; to continue to have, hold, or possess." (66) And Robert H. Churchill argues that "[t]he language of 'keeping arms' ... had a colloquial meaning that applied to individuals outside of the context of militia service." (67)

These scholars invoke historical evidence, often beginning with the 1689 English Bill of Rights, which states in part that "the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law." (68) Some argue that the "have arms" language in the English Bill of Rights is the precursor to the "keep ... arms" language in the Second Amendment, and that Blackstone interpreted the "have arms" protection in English law as ensuring the "natural right of resistance and self-preservation" (69)--a right to armed self-defense. (70) Joyce Lee Malcolm, in her influential review of the English background of the right to keep and bear arms, concludes that the English Bill of Rights "came down squarely, and exclusively, in favour of an individual right to have arms for self-defence." (71)

This scholarship, like Heller's own reasoning, ties the broad definition of "keep" to a view of the Second Amendment as protecting a right to possess arms for self-defense. If self-defense in the home is the essence of the right, then having a gun in one's home (or in one's garage, attic, or outdoor shed) must count as "keeping" it. (72)

2. Bearing as carrying

The Heller majority's definition of "bear" was straightforward: "At the time of the founding, as now, to 'bear' meant to 'carry."' (73) The majority acknowledged that "bear arms" had an idiomatic military meaning, (74) but found that it was not limited to military service. Instead, the majority concluded that "[w]hen used with 'arms,' ... the term has a meaning that refers to carrying for a particular purpose--confrontation." (75) The majority suggested that "confrontation" can be equated with "offensive or defensive action." (76)

Justice Scalia's opinion for the Court conducted a "review of founding-era sources," from which it "conclude[d] that this natural meaning was also the meaning that 'bear arms' had in the 18th century. In numerous instances, 'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia." (77) The Court discounted the evidence, presented in amicus briefs by linguists and historians, that "bear arms" was most often used in the military context: "[T]he fact that the phrase was …

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Publication information: Article title: The Right Not to Keep or Bear Arms. Contributors: Blocher, Joseph - Author. Journal title: Stanford Law Review. Volume: 64. Issue: 1 Publication date: January 2012. Page number: 1+. © 1999 Stanford Law School. COPYRIGHT 2012 Gale Group.

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