Carrying Guns at the Polls: What Does the Second Amendment Have To Say?

Among the drama of this past election cycle was a flurry of debate over the question of whether Michiganders could carry their guns to the polls.

On October 16, 2020, the Michigan Secretary of State issued a directive prohibiting the open carry of firearms at or within 100 feet of polling places on election day. The overarching concern of the directive was to curb the potential for voter intimidation. In response, pro-gun-rights groups filed for an emergency injunction, seeking to invalidate the directive. As Jake Charles noted in his timely piece on this topic, although the groups’ legal claims were not premised on the Second Amendment, the complaint contained overtones of Second Amendment-absolutist rhetoric. A Michigan Court of Appeals judge invalidated the Secretary of State’s directive under Michigan’s version of the APA, and the parties voluntarily dismissed the case after the election.

But the episode poses an intriguing question about the scope of the Second Amendment. Does the Second Amendment protect open carrying of firearms to polling places?

One area of Second Amendment jurisprudence that places location-based limits on firearm carrying is “sensitive places” doctrine. Sensitive places doctrine traces its roots to District of Columbia v. Heller. The Heller opinion simultaneously established the Second Amendment right to a firearm for private purposes and placed limitations on that right. “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .”

Since Heller, a few federal appellate courts have considered sensitive places restrictions under the Second Amendment. For the most part, these courts have not taken the history of sensitive places restrictions into account. But should they have?

There are a few reasons why inquiries into sensitive places under the Second Amendment should consider historical practice. First, Heller itself expects that such inquiries will look into historical practice. Justice Scalia stated definitively that “there will be time enough to expound upon the historical justifications for the exceptions we have mentioned.” This implies that the proper scope of inquiry for the enumerated exceptions to the Second Amendment—felons, sensitive places, and restrictions on the commercial sale of firearms—is a historical one. Moreover, the language introducing the concept of sensitive places references history multiple times. Justice Scalia stated that “[a]lthough we do not undertake an exhaustive historical analysis today,” there are certain longstanding exceptions to the Second Amendment, of which sensitive places is one. And finally, more generally, the Heller opinion overall relied upon and placed great emphasis on historical analysis. As Joseph Blocher and Darrell A.H. Miller wrote in The Positive Second Amendment, Heller has been understood to prescribe a special place for historical analysis in Second Amendment cases.

So, Heller stated that sensitive places creates an exception to the Second Amendment. And historical analysis is likely central to determining where these sensitive places are. So, what does the history of state firearms law say about guns at polling places?

In fact, there are a handful of historical state statutes that prohibit carrying firearms at or near election polling places.

A 1776 Delaware state constitutional provision declared, “no person shall come armed” to any election place, and “no muster of the militia shall be made on that day,” and nor shall any battalion or company “be suffered to remain at the time and place of holding the said elections, nor within one mile of the said places respectively, for twenty-four hours before the opening of said elections, nor within twenty-four hours after the same are closed.” The constitutional provision seems to be intended to inhibit voter intimidation. The stated purpose of the law was “[t]o prevent any violence or force being used at the said elections.”

An 1869 Tennessee statute declared that it was unlawful for “any qualified voter or other person attending any election” in the state to carry about his person, concealed or otherwise, a pistol or other deadly or dangerous weapon.

An 1870 Louisiana statute declared that it was unlawful for “any person to carry any gun, pistol, bowie knife or other dangerous weapon, concealed or unconcealed, on any day of election during the hours the polls are open, or on any day of registration or revision of registration, within a distance of one-half mile of any place of registration or revision of registration.” The stated purpose of the statute was to “Maintain the Freedom of Party Election.” The Louisiana state legislature thus viewed carrying firearms to the polls as potentially endangering that freedom of party election.

An 1873 Texas statute declared it unlawful “for any person to carry any gun, pistol, bowie knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within a distance of one half mile of any place of election.” The structure of the statute implies the statute’s purpose was to curb voter intimidation. The Texas legislature placed the statute in the criminal code under the chapter: “Riots and Unlawful Assemblies at Elections, and Violence Used or Menaced Toward Electors.” This chapter of the penal code was located under the overall title: “Of Offenses Affecting the Right of Suffrage.”

Finally, at least two Maryland statutes—one in 1874 and the other in 1886—prohibited the carrying of guns and pistols on the days of election and primary election in certain counties.

And these are just the laws in the Duke Center for Firearm Law’s Repository. There are likely more statutes like these on the books.

The concentration of these polling place laws in Southern states in the mid-to-late nineteenth century suggests that such laws were tied to Reconstruction efforts. Moreover, the existence of these laws around the time of the Fourteenth Amendment suggests that the original public understanding of the Second Amendment (as applied to the states) included this exception for polling places on election day. State legislators presumably would not enact these laws if they thought the laws were unconstitutional under the Second Amendment.

Although the historical evidence is not conclusive, it is a critical first step for the proposition that the Second Amendment does not protect carrying guns to a polling place on election day.

The Historical Pedigree of Long Gun Registration

In Heller II, the D.C. Circuit claimed that long gun registration requirements are novel, not historic. Heller III reiterated this line, stating that the registration requirement for long guns lacks the “historical pedigree” of the registration requirement for handguns. But is this entirely right? Historical American firearm registration laws suggest that long gun registration is far from novel.

After delving into the Repository of Historical Gun Laws, I found several state (and territorial) statutes from the late nineteenth and early twentieth centuries that required the registration, licensing, or reporting of long guns. These laws contained similar requirements to handgun registration laws. An especially common trend was the requirement of identifying information of both the firearm purchased and the purchaser.

One of the early regulations on long guns was an 1893 Florida law. The statute required a license and $100 bond to carry or own a Winchester or other repeating rifle. The license application required identifying information, including the name of the person taking out the license, the maker of the firearm, the caliber, and the number of the firearm. The explicit mention of rifles and the brand name “Winchester” indicates the statute applied to long guns. (Note that commentators have flagged the likely racist motives of this legislation.)

Several other laws, like the 1893 Florida law, were explicit about the inclusion of long guns. For example, a 1918 Montana law required every person who owned or possessed any firearms to make a report of such firearms to the county sheriff. The act defined “firearms” as any revolver, pistol, shotgun, or rifle. The definition of “firearms” explicitly included long guns.

Similarly, a 1933 Hawaii law required a permit to obtain firearms of any description, “whether usable or unusable, serviceable or unserviceable, modern or antique.” The act defined “firearm” as including “pistols, revolvers, rifles, shotguns, machine guns, [and] automatic rifles,” among other explosive weapons.

Finally, a 1933 Wyoming law required the registration of all firearms. The registry collected the identifying information of the name of the manufacturer, the person from whom the firearm was obtained, the date of its acquisition, the manufacturer’s number, its color, its caliber, whether the firearm was new or secondhand, whether it was automatic, a revolver, a single shot pistol, a rifle, a shotgun or machine gun, and the purchaser’s name. The registry’s inclusion of this information shows that long guns were being registered as well as handguns.

On the other hand, some statutes used broader terms like “gun” or “firearm.” The historical definitions of these terms suggest that such statutes included long guns.

Webster’s 1828 American Dictionary of the English Language defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder.” Importantly, according to Webster’s, pistols were “never called a gun.” The broad definition, as well as the explicit exclusion of pistols, implies that the term “gun” historically included long guns. Further, the same dictionary defined “firearms” as “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.” Again, the broad definition implies the inclusion of long guns.

A few licensing and registration laws used the general term “guns” or “firearms,” which implied application to long guns. For example, a 1913 Michigan law required that retail businesses keep a register of every purchaser of guns, pistols, other firearms, and silencers.

Along the same lines, a 1917 New Hampshire law required an application for noncitizens of the United States to possess any firearm of any description. The application required identifying information, including full name, occupation, and residential address. Even more, the noncitizen was required to display his permit when requested by any person. (Note: This law is in the process of being added to the Repository, so the link is to HeinOnline.)

Similarly broad, a 1925 Michigan law required the purchaser of any gun to give the seller a statement of personal identifying information to forward to the police or county sheriff.

The list of historical long gun registration laws is not exhaustive. What it already shows, however, is that registration before 1934 was not limited to handguns.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Genesa Cefali. This post, like the Repository, is exemplary and not exhaustive.]

Is First Amendment Fee Jurisprudence the Right Approach to the Second Amendment?

The historical record suggests: Maybe not.

First Amendment “fee jurisprudence” deals with the constitutionality of fees charged by governmental entities on activities protected by the First Amendment, like fees charged to hold a rally or parade. The rule is that fees can be imposed on the exercise of a constitutional right when the fees are designed to defray, and do not exceed, the administrative costs of regulating the protected activity. The Second Circuit borrowed First Amendment fee jurisprudence in the Second Amendment context in Kwong v. Bloomberg. Kwong upheld a $340 firearm licensing fee because it was designed to defray (and did not exceed) the administrative costs associated with the licensing scheme. A handful of other courts (e.g., here, here) have also adopted First Amendment fee jurisprudence in the Second Amendment context.

But does this make sense? If the right to bear arms had no relevant history of its own, then it would make sense to look for analogies outside of the Second Amendment context. But the right to bear arms does have a relevant history of its own – a rich record of state and local regulations from pre-colonial times to 1934 (the year the federal government stepped in, and when the Repository stops recording laws). Courts can consider the historical record of fees as applied to guns. This “local” history of the Second Amendment should come before analogies to the doctrine of the First.

The historical record of firearm taxation and licensing suggests that First Amendment fee jurisprudence may not be the most apt analogy. Tax revenue and licensing fees were not typically used to defray costs of the licensing or registration scheme.

Often, the tax revenue and licensing fees were explicitly directed to an unrelated program or project. For example, an 1867 Washington County, Mississippi tax law explicitly declared that the revenue was to contribute to the bridge fund of Washington County. A 1903 Virginia tax on shotguns, rifles, muskets, and other firearms would go to support “the government and public free schools.” Most strikingly, a 1926 Virginia law directed that all the license tax collected from a handgun licensing scheme would create a “diseased and crippled children’s hospital fund.” The explicit purpose of the fund was to establish and maintain a hospital for the care, treatment, and vocational training of diseased and crippled Virginian children.

Sometimes, the tax revenue was directed to a tangentially related program. For example, an 1889 California tax on the storage, manufacture, or sale of gunpowder and other explosive materials directed that the revenue would go to a Fireman’s Charitable Fund. The logical connection is that explosives can cause fires, which require firefighters to put out. However, such a tangential connection was not defraying the costs of the regulatory scheme.

Occasionally, the tax revenue and licensing fees just went to the general state revenue. For example, an 1844 Mississippi tax law’s explicit purpose was to raise revenue for the state. In sum, very few statutes explicitly designated the revenue to defray the costs of implementation.

The fact that these statutes rarely dedicated the revenue to defraying the costs of implementation, instead directing the revenue to sometimes unrelated organizations, suggests that First Amendment fee jurisprudence may not be the proper approach to firearm license fees today.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Genesa Cefali. This post, like the Repository, is exemplary and not exhaustive.]