Scholarship Highlight: Curry on the Shifting Core of the Second Amendment

  • Date:
  • October 08, 2019

Ryan Curry has published a new paper in the latest issue of the Tulsa Law Review, “An Evolving Right: The Shifting Core of the Second Amendment and Its Effect on Public-Carry.” He catalogues the various ways courts have characterized the “core” of the Second Amendment right and argues that the Supreme Court needs to step in and clarify. From the Introduction:

. . . Heller defined the core purpose of the Second Amendment as the right to use handguns for self-defense. Absent from this definition is the answer to a crucial question, the question on which this Note will focus: is the core limited to certain locations? Stated more directly, is it limited to the home? As the recent cases of Wrenn v. District of Columbia and Young v. Hawaii illustrate, by expanding or contracting the Second Amendment's core, courts give themselves significant leeway to determine whether a statute that limits firearm possession outside the home is constitutional. . . .

Part I of this Note explores the background of the Second Amendment by highlighting the role of the militia during the American Revolution. This section illustrates the public admiration of the militia during the colonial period as well as the shared public fear of the militia’s antithesis: a standing military. As discussed in other writings, there is an argument that the founders did not envision the Second Amendment as a protection of individual firearm rights unrelated to state militias but, rather, intended it to provide a balance against the federal military by granting citizens the right to keep and bear arms in the limited context of militia service.

Part II analyzes the Supreme Court’s decisions in Heller and McDonald. While these decisions relied heavily on a historical interpretation of the Second Amendment, in both instances, the Court expanded the reach of the widely-believed intent of the framers and held that the Second Amendment protects an individual right to possess handguns for self-defense even in the absence of any militia connection.

Part III discusses the hotly contested right of public-carry by examining and defining good-cause statutes. As previously noted, such statutes often deny public-carry permits to law-abiding citizens with no mental health concerns unless the applicant is able to establish cause for self-defense over and above the self-protection needs of the general public. This portion of the Note also analyzes the public-carry circuit split in light of the recent Wrenn and Young decisions, and more specifically, exposes the shifting core of the Second Amendment. While Wrenn created the split, Young introduced a third interpretation of the core, thus revealing the core’s malleable nature.

. . .

Part IV raises the point that the judicial focus on the Second Amendment’s core appears to have grown since Heller. Given the current spotlight on the core, this Part argues that the concept of the core is possibly being rendered unnecessarily abstract as a result of the relevant case law’s failure to explain what exactly it means for the Second Amendment to have a core in the first place. This portion of the Note suggests, based on language and inferences drawn from Heller and McDonald, that the Second Amendment’s core is properly defined and understood simply as the Amendment’s primary purpose. It then examines whether such a substitution of terms might have altered the Ninth Circuit’s ruling in Young.

Given the shifting nature of the core, Part VI concludes by arguing that the disagreement among the circuits regarding the right to carry handguns in public makes Supreme Court intervention both necessary and appropriate. In America’s mass-shooting society, the public safety implications of a Supreme Court ruling placing the right of public-carry either inside or outside of the core of the Second Amendment could be profound.