Exporting Open Carry Bans?

  • Date:
  • April 20th, 2022

By: Jacob Charles

Many states are becoming territorial about their residents. So territorial, in fact, that at least some legislators are proposing ways to functionally use their state’s criminal code extraterritorially. Proposals to criminalize conduct that facilitates women seeking abortion care outside the state have cropped up in Missouri. Other states target different sorts of conduct they deem unlawful. As Anthony Michael Kreis describes in a recent Harvard Law Review Blog essay, these proposals threaten “a fundamental, associative right to travel that is embedded in the American constitutional tradition.” He details the sordid history of laws limiting mobility, like antebellum Illinois’s restrictions on the movement of Black Americans and the Virginia anti-miscegenation statute struck down in Loving v. Virginia that criminalized not only Richard and Mildred Loving’s marriage, but their travel outside the state to escape the state’s interracial marriage ban. Kreis notes that Supreme Court right-to-travel cases have generally focused on state’s impeding immigrating into the state, “on states creating legal impediments aimed to fence people out of their jurisdictions.” By contrast, the recent proposals above have a different focus: “creating a legal regime with chilling effects to fence residents in.”

After listening to Kreis talk about his essay on Eric Segall’s Supreme Myths podcast, I started wondering what it would look like if states with stricter gun regulation tried to do for guns what these other states have done for conduct like seeking an out-of-state abortion or bringing a child outside the state to seek gender-affirming health care. I’ve considered this type of “what would it look like for guns” questions before, mostly recently in a set of op-eds exploring the issue in the context of a gun-enforcement analogue to Texas’s SB8. So, what kind of gun-related law would mirror those proposed in Idaho and Missouri? For starters, it would have to be a type of law that didn’t directly infringe a constitutional right. If the Constitution protects the conduct, then a state can’t forbid it, so we needn’t even get to the question of banning travel to do it. That’s the teaching of Loving, as Kreis notes. (Missouri’s law obviously depends on an assumption that the Court will abandon Roe and Casey.)

So a hypothetical California law that barred traveling out of state to buy a handgun is likely to be held flatly inconsistent with the Second Amendment, altogether separate from any right to travel. (It’d also likely violate the Dormant Commerce Clause given such a law’s effect on interstate commerce.) What about criminalizing traveling out of state to openly carry a gun? California has banned open carry since the 60s, and no federal court has (yet) said there’s a Second Amendment right to open carry. But there seems something still fundamentally different about that kind of analogy—which can’t implicate intrastate interests in gun violence prevention in the same way that, at least facially, barring travel out of state for an abortion can protect a state’s professed interest in the life of the unborn.

The hard thing about conjuring an analogue in the gun space is that gun-related conduct is quite unlike the conduct targeted by the Missouri and Idaho bills and proposals like them. The latter target conduct that concerns central questions about bodily autonomy, and the state’s policy just is to reach different conclusions than its residents about those questions (e.g., when life begins, what sex consists of, etc.). It would therefore undermine the state’s policy if a resident could hop over the border and engage in that conduct. But not so with most gun-related laws. It wouldn’t undermine a state’s interest in the safety of its residents for one of them to go carry guns without a license, hunt with particular weapons, or do any other myriad of things in another state. The only really close analogue I can think of is if a state had a pacifist policy (say, at least with respect to private violence) and therefore forbid private gun ownership or some forms of self-defense to further that interest. That’d be a similar decision about bodily autonomy and the state’s policy (say, minimizing aggregate violence) that could be undermined even if that conduct were done elsewhere. Of course, given Heller that’s back to a protected constitutional right and therefore gets tossed out before the right to travel enters the scene.

To my mind, it’s hard to imagine states with strict gun regulation engaging in a tit-for-tat with respect to the types of laws Kreis highlights in the same way they might be able to with respect to laws like SB8 that do in fact target constitutionally protected conduct. Part of that is about the nature of the state’s interest. A comprehensive worldview inscribed in state policy (e.g., life begins at conception, sex assigned at birth is the only legitimate way to define gender, etc.) will necessarily be undermined wherever contrary conduct happens to take place; Virginia’s commitment to white supremacy couldn’t countenance the Lovings leaving Virginia to get married any more than it could recognize their marriage in the state. The nature of the state’s interest in gun violence prevention doesn’t generally take on this totalizing picture that’d banish guns as a free-floating normative ideal. So one difference is the state's interest. Another difference is about the nature of the underlying conduct. Kreis argues for “an associative right to travel protect the private decision-making of individuals today—and especially in circumstances that involve sensitive choices about a person’s bodily autonomy.” Conduct with guns isn’t often thought to implicate such sensitive choices about a person’s autonomy.

Thus, whatever one thinks of Kreis’s argument on the merits—about constitutional limits for the state’s coercive power beyond its borders—it seems unlikely that it’s an issue that will arise in the context of gun rights and regulation. In other words, unlike the symmetrical ability of blue and red states to take advantage of SB8-type legislation to undermine their disfavored rights, there seems a distinct asymmetry in state’s policing their borders—at least in the context of firearms.