The Right to Carry Firearms outside of the Home: Separating Historical Myths from Historical Realities
Cornell, Saul, Fordham Urban Law Journal
Introduction I. History and the Future of Gun Regulation: Heller's Legacy II. The Scope of the Right to Bear Arms in the Founding Era III. Gun Regulation in the Founding Era and Early Republic: Myths and Realities IV. The Pistol and the Lash: Slavery and the Permissive Right to Carry V. No Right to Carry: The Emergence and Spread of the Massachusetts Model Conclusion: The Past and Future of the Right to Carry Arms Outside the Home
Emboldened by their victory in Heller, (1) gun rights advocates are waging a relentless campaign to strike down what little remains of the nation's relatively anemic gun control regime. (2) The Heller opinion itself is also partly responsible for generating a seemingly limitless parade of new lawsuits. (3) Legal scholars from across the ideological spectrum have attacked the controversial five-to-four decision, both for its revisionist rewriting of constitutional history and for its poor judicial craftsmanship. (4) The opinion raised more questions than it answered and left lower courts scrambling to decipher what was prohibited by Heller, if anything, short of a total ban on handguns. (5) The decision articulated no theory of judicial scrutiny, provided no black letter rules, and failed to create any categories of analysis to guide judges. Instead, it left the courts with an incomplete laundry list of presumptively lawful regulations to serve as a model of what remained legal. (6) In United States v. Masciandaro, Judge J. Harvie Wilkinson aptly summarized the problems that Heller's poor judicial craftsmanship wrought: "This case underscores the dilemma faced by lower courts in the post-Heller world: how far to push Heller beyond its undisputed core holding." (7)
The first section of this Article examines the continuing relevance of history in the post-Heller era. The second section focuses on conceptions of the right to bear arms and the right to carry in the Founding era. Apart from service in militia, there is little evidence of a broad constitutional consensus on a right to carry arms in public. The third section analyzes some of the myths and realities about early American gun regulation. The fourth section locates the legal ideal of traveling armed in public in a distinctively southern tradition that was a minority strain within Antebellum law. The final section of this Article explores the alternative theory of robust arms regulation that emerged by the era of the Fourteenth Amendment and became the dominant tradition in American law. The existence of this regulatory tradition has remained hidden from modern scholars and courts because support for high levels of gun regulation was so pervasive outside of the South that few of these laws were ever challenged in court.
I. HISTORY AND THE FUTURE OF GUN REGULATION: HELLER'S LEGACY
Rather than close the book on historical argument, Heller appears to have done the opposite. The court stated this point succinctly in United States v. Masciandaro: "[H]istorical meaning enjoys a privileged interpretative role in the Second Amendment context." (8) Unfortunately, judges are in the unenviable position of evaluating the complex and contradictory historical evidence paraded before them. Separating historical myths from historical realities, distinguishing historical fact from error, and disentangling law office history from rigorous historical scholarship are serious problems for the courts in this area of the law. (9)
One of the most controversial issues to arise in the wake of Heller is the right to carry firearms outside of the home. This issue is currently being litigated in the Fourth Circuit and a decision may well be rendered by the time this Article is published. (10) Masciandaro reveals the problems that Heller has created. In Masciandaro, the defendant was arrested for possessing a loaded firearm in a national park. (11) The court applied an intermediate scrutiny test and found that the statute in question, which prohibited loaded firearms in national parks, easily passed constitutional muster. …