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
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. …