Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules

This is a guest post that is part of a mini-symposium on “Private Property and the Second Amendment,” responding to Jake Charles’ earlier post Bruen, Private Property & the Second Amendment.  Stay tuned for additional response posts that will run on the blog in the coming weeks.  

When the Supreme Court required public school desegregation in Brown v. Board of Education, some Southern jurisdictions resisted through legal chicanery.  In Virginia, the Prince Edward County school district “closed” its public schools to avoid integration, while setting up government-funded private schools that were “private” in name only.  The Supreme Court was not amused.  In Griffin v. School Board, the Court saw the closure for what it was, and it ordered Prince Edward County to reopen its schools on an integrated basis.

A similar game of legal chicanery is playing out in many Democratic states, which have launched massive resistance to the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen.  That decision held that the Second Amendment protects the right of law-abiding citizens to carry arms outside the home for self-defense.  Bruen recognized that states may reasonably regulate the right to bear arms using their police powers.  But they may not deny that right altogether to law-abiding Americans.  On this, Bruen followed the great weight of early American court precedent. 

In response to Bruen, some states have tried to engineer de facto bans on public carry.  These states have employed many mechanisms, such as requiring permits with high application fees, forcing permit applicants to disclose all their social media accounts, imposing time-consuming and expensive training requirements, and declaring as many places as possible to be “sensitive places” or “gun-free” zones.  But the most successful of the resistance measures has been to prohibit permit holders from possessing firearms on all private property unless the person in control of the property has granted express permission to enter with a weapon.  New York passed such a law in July, and New Jersey’s legislature passed a statute containing a similar provision this month.  California has also considered adopting it, and Maryland might consider it when Democrats take full control of state government in January.

By encouraging legislatures to presumptively ban firearms on all private property, prominent scholars, including Jacob Charles and Ian Ayres and Frederick Vars, claim to have found a constitutional loophole to nullify the practical effect of Bruen.  Everyone agrees that private property holders have the right to control their property.  If they want to allow guns, they may.  If they want to ban them, they may do that, too.  But why, these scholars ask, should the default rule only be that private property owners must allow guns unless they take affirmative steps to ban them?  In their view, states should have the power to flip the default rule so that guns are banned unless property owners say otherwise.

Flipping the default rule creates a de facto ban on public carry because most private property owners do not post signs either allowing or restricting firearms.  A person who cannot carry a firearm on private property cannot go about most life activities while possessing a firearm.  A gun permit holder cannot get groceries, go to a store, get a cup of coffee, use the restroom, or stop for gas while carrying a loaded firearm for self-defense.  Ironically (as I explained here), New York’s current gun carry regulations are far more restrictive than before Bruen was decided.

Although a default no-carry rule results in a drastic near-complete ban on public carry, it is not so easy to explain why this is unconstitutional.  There is no constitutional right to bear arms on private property.  The Second Amendment grants a right against the government, not a right against private individuals.  With limited exceptions, people do not have to permit guns on their property if they do not want them there.  Moreover, the Second Amendment appears to have nothing to say about which default rule a state has.  The selection of a default rule seems to be committed to a state’s police power. 

The counterarguments provided to date are unpersuasive.  In Antonyuk v. Hochul, Judge Suddaby temporarily restrained New York’s private property rules.  He argued that New York “is now making a decision for private property owners” by presumptively banning guns on private property.  But this seems wrong for two reasons.  First, New York is not deciding for private property owners.  As Jacob Charles correctly points out, private property owners may still allow guns on their property by posting a sign.  Second, one could make the same claim about the traditional default rule:  are those states deciding that guns may be carried on private property?  Obviously not:  private property owners in those states can ban guns, also by posting a sign.

Another argument that some have raised is that there is no historical tradition of presumptively banning guns on private property.  This argument, too, is unpersuasive.  Bruen does not freeze a state’s regulatory power to only those laws that have historically existed.  Although I cannot explain my reasons here, those who read Bruen to do that are, in my view, seriously misreading the decision.  Worse, even if Bruen said this, this argument is an appeal to Bruen’s authority.  It does not explain, as a matter of first principles, why New York’s law is unconstitutional.  Finally, while there may not be many examples of a presumptive ban on carrying firearms on private property, the historical record is not one-sided.  Alabama banned carrying pistols on another person’s property in the early 1900s, which its state supreme court upheld.  Some states (including pro-gun states like Louisiana and South Carolina) have presumptively banned carrying handguns inside another person’s home.  Granted, homes are not property generally open to the public.  But New York’s law applies both to homes and to businesses, so it is not obviously unconstitutional in all its applications. 

For my part, I am genuinely unsure whether a state has the power to change the default rule on all private property.  But conceding for argument’s sake that a state does have this power, I offer a different reason why New York’s law (and the law New Jersey is poised to enact) is unconstitutional.

Both states have so gerrymandered their private property law that their new law is nothing more than a pretext to deprive people of their right of public carry.  New York and New Jersey claim that they are switching the default rule so that carrying firearms on private property is banned, unless allowed by the property owner.  But this is not true.  A law switching the default rule—that actually changed the default rule—would prohibit the carrying of firearms by everyone, unless the person (1) had the express permission of the property owner or (2) was justified in committing what otherwise would be a trespass.

New York’s law does not come close.  New York exempts retired law enforcement officers from its private property ban.  These private citizens have no law enforcement powers and act with no governmental authority.  If the presumption is that carrying firearms is prohibited unless allowed, what gives retired law enforcement officers the power to violate private property rights?  Shouldn’t the default rule also apply to them?

A true switch of the default rule would also apply to active law enforcement officers.  Law enforcement officers, whether on or off duty, have no authority to violate private property rights unless they have a warrant or they are justified in committing a trespass (e.g., apprehending a fleeing felon).  For example, an on-duty officer getting a coffee at a local convenience store is a trespasser if he brings his weapons onto store property, against the owner’s wishes.  What is true of on-duty law enforcement officers is also true, a fortiori, of those who are off-duty and acting privately.  Indeed, many locations, such as stadiums and amusement parks, prohibit the possession of weapons by law enforcement officers who are not engaged in their official duties.  A law that truly changed the presumption would mean that on-duty law enforcement officers, no less than private citizens, would need express permission to bring their guns onto private property.

New Jersey’s law, meanwhile, is larded up with other exceptions.  In addition to active and retired police officers, New Jersey exempts from its default private property ban:  federal, county, and municipal prosecutors; the Attorney General, assistant attorney general, and deputy attorney general; judges of all kinds, including judges of the tax court, workers’ compensation judges, and administrative law judges; and hunters and target shooters.  So retired police, prosecutors, and tax court judges can enter grocery stores and shopping malls with concealed weapons (unless otherwise posted), while public defenders, stalking victims, and individuals with death threats would face felony charges for violating their permit restrictions.

If New York’s and New Jersey’s purported interest in presumptively banning firearms on all private property is to respect the property owner’s wishes, then these laws are grossly underinclusive.  Neither state’s law accomplishes the ends that they offer in defense. 

Although underinclusiveness does not necessarily entail unconstitutionality, it is a constitutional problem here.  Underinclusive laws can run in two directions.  Sometimes, “a legislature may deal with one part of a problem without addressing all of it.”  Erznoznik v. Jacksonville (citing Williamson v. Lee Optical Co.).  The Supreme Court has upheld laws that are underinclusive in this way.  Other times, however, underinclusiveness is a sign that the law is a pretext for accomplishing impermissible ends.  For example, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, a city in Florida passed an ordinance that nominally regulated animal killings; but the ordinance was gerrymandered to prohibit only a particular religious practice involving animal sacrifice while allowing virtually every other type of animal killing.  The Supreme Court struck down that underinclusive law as a violation of the First Amendment’s Free Exercise Clause. 

New York’s and New Jersey’s new private-property default rule is similarly gerrymandered and pretextual.  On its face, these laws do not switch the property default rule for gun carrying by politically favored groups (e.g., retired and off-duty police).  This shows that they are not actually making a generally applicable default rule that a person may not bring a gun onto another person’s property without express consent.  Instead, these laws target gun carry by one group only:  civilians without prior law enforcement experience.  And what is clear from the face of the statute is confirmed by public statements of government officials, who openly admit that the law is part of a regulatory regime designed to prohibit most private citizens from carrying their weapons virtually anywhere.  When asked where a gun permit holder could carry his firearm under the new law, Gov. Kathy Hochul (D-NY) forthrightly answered “probably some streets.” 

Because these laws are clearly a pretext, they are not a valid regulation of the right to bear arms.  If a state wants to change its default rule to prohibit firearms on private property, it can do so.  But it must actually change the default rule.  Otherwise, a federal court should recognize New York’s and New Jersey’s law for what it is:  a shadow ban against most private citizens carrying firearms.  These states are overtly defying Bruen, and their laws should meet the same fate as Prince Edward County’s segregated “private” school system.

The Myth of the “Massachusetts Model”

The title of Saul Cornell’s recent blog postThe Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced.  I will make no such argument.  In some places, laws regulating the carrying of weapons were enforced strictly.  In others, they were ignored.  Some authorities enforced the laws against blacks but not against whites.  My argument is targeted against a specific set of surety laws that Professor Cornell claims largely prohibited public carry outside the South during the nineteenth century.  These laws, I will argue, neither broadly restricted public carry nor were widely enforced.   

Professor Cornell has posited that the antebellum United States had two regulatory traditions governing the carrying of weapons.  The South’s regulatory environment was permissive, he claims, because Southern laws prohibiting the carrying of concealed weapons did not prohibit people from bearing arms openly.  Yet “[o]utside of the slave south,” he argues, “a more restrictive approach to gun regulation emerged, taking root in Massachusetts and spreading to other states.”  Under this approach, which he dubs the Massachusetts Model, “no person may go armed . . . without reasonable cause to apprehend an assault or violence to his person, family, or property.”

There are two problems with this claim.  First, Professor Cornell’s assertions are based on selectively quoting from the law. The full version of the provision contained a standing requirement that severely limited the law’s actual scope.  Second, the historical evidence refutes the claim that Northern states prohibited public carry, either using this surety provision or the common law crime of going armed to the terror of the people.  To the contrary, the “Massachusetts Model” did not serve as a model of prohibiting public carry anywhere, including in Massachusetts.  

In 1835, Massachusetts codified its state laws in a compilation known as the Revised Statutes of the Commonwealth of Massachusetts.  The Revised Statutes partly compiled existing law and partly revised it.  One revision governed when justices of the peace could require individuals to post sureties promising to keep the peace.  The new provision, § 16, read in full:

If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.

Nine other jurisdictions used the Revised Statutes of Massachusetts as a template when codifying their laws.  These jurisdictions also adopted Section 16, including Wisconsin (1839), Maine (1840), Michigan (1846), Virginia (1848), Minnesota (1851), Oregon (1853), the District of Columbia (1857), Pennsylvania (1860), and West Virginia (1870).

Professor Cornell’s claim that these laws “forbade arming oneself except in unusual situations” mischaracterizes the statutes.   These laws did not prohibit anyone from going armed.  They simply stated that an individual carrying a weapon may be required to find sureties if someone else complained of having “reasonable cause to fear an injury, or breach of the peace.” So to invoke the laws, a complainant could not merely assert that the defendant went armed. (See, for example, p. 620 of this treatise for Wisconsin justices of the peace, in which the form complaint requires that the plaintiff “has reasonable cause to fear a breach of the peace, and personal injury at the hands of [the defendant].”)  Even then, a defendant could claim that he went armed because he had reasonable cause to fear an attack.  If a court did not accept that explanation, then the defendant could be required to post a bond to keep the peace. 

Surety laws, thus, are not criminal prohibitions.  As Blackstone explained, sureties served as a “caution . . . intended merely for prevention, without any crime actually committed by the party, but arising only from probable suspicion that some crime is intended.”  The surety laws did not prohibit going armed.  They merely authorized justices of the peace to require a bond in some circumstances when individuals went armed without reason to fear attack.

Professor Cornell’s primary interpretive evidence to the contrary is an appeal to authority.  He relies on a comment from Judge Peter Oxenbridge Thacher, who treated the surety provision as though it broadly prohibited going armed.  Rather than offer any legal analysis that Judge Thacher was correct, much of Professor Cornell’s blog post is an attempt to bolster Judge Thacher’s credentials.   

But Judge Thacher’s remark is of dubious legal authority.  It was made as part of a welcome address to members of the grand jury.  His comment was not part of a court opinion, nor was it a legal instruction to the grand jury in a specific case.  Even more, we have significant circumstantial evidence that Judge Thacher’s understanding was not shared by nineteenth-century judges, lawyers, and laymen in Massachusetts or in the other surety states.    

Let’s start with the judges on the Supreme Judicial Court of Massachusetts.  In Commonwealth v. Murphy, that court analyzed whether the right to bear arms was violated by an 1893 state law prohibiting organized bodies of men from parading and drilling with arms.  In upholding the law, the court noted that other state courts had upheld bans on concealed carry.  But curiously, the court made no mention of Massachusetts’s supposed 60-year history of severely limiting public carry.  Surely if Massachusetts had the power to restrict public carry to those in danger (and if it had exercised that power since 1836) then it would follow a fortiori that the state could ban the carrying of firearms in a parade.  (And if Massachusetts had restricted public carry since 1836 to those reasonably fearing attack, as Professor Cornell claims, why did it need the 1893 law at all?)

Judge Thacher’s understanding of the surety law is also at odds with other nineteenth-century lawyers and laymen.  Percy A. Bridgham, a member of the Suffolk County bar, answered readers’ legal questions in the Boston Globe.  On October 13, 1890, a reader asked whether a person could lawfully carry a concealed weapon while repossessing furniture.  Mr. Bridgham wrote back (p. 4), “There is no penalty in this State for carrying concealed weapons, except in cases where they are found on a person who is attempting to commit another crime.”  In a book Bridgham published the following year with a collection of legal questions, he noted that “[t]here is no statute in this State which expressly forbids the carrying of weapons, but there is a statute that provides that a person so carrying may be required to give bonds to keep the peace.”  Percy A. Bridgham, One Thousand Legal Questions Answered by the People’s Lawyer of the Boston Daily Globe 129 (1891); see also id. at 170 (reprinting the furniture repossession question and answer).  In 1873, the Detroit Free Press complained that in Michigan “there is no statute whatever against the carrying of concealed weapons,” even though the surety law had been on the books for three decades.  (Feb. 26, 1873, p.2)  The Detroit paper called the surety law “absurd” because a plaintiff had to have reason to fear an assault before he could file a complaint against someone going armed.  This made the law useless against those offenders who would use their weapons upon sudden provocation.  (Id.)

Not only did surety laws not ban public carry, by all appearances they were hardly ever invoked.  In his seminal article Firearm Regionalism and Public Carry, Professor Cornell and his co-author identified one unreported case where the law was at issue.  Even in that one case, the demand for a surety was not granted.

In his blog post, Professor Cornell tries to rationalize this dearth of cases with two claims: (1) Massachusetts residents rarely carried weapons in public, so there was no reason to prosecute; and (2) “records of justices of the peace in rural New England are rare.”  Both responses are unpersuasive.

Professor Cornell’s first claim is against the weight of the evidence.  Throughout the surety states, there are repeated complaints of people carrying concealed weapons.  (Despite his focus on Massachusetts arrest records, remember that Professor Cornell’s claim is not just about Massachusetts; he also claims that the Massachusetts Model became the predominant mode of regulation in nine other jurisdictions.)  In 1837, before Pennsylvania adopted its surety law, the Public Ledger (Philadelphia) complained that “[o]ur city is full of blacklegs, pickpockets, rowdies[,] and profligates from all parts of the country, and the universal practice among such offal, is to carry dirks, Bowie knives, and other instruments of mischief, with mischievous design.”  (Public Ledger, Mar. 15, 1837, p. 4).  In 1841, Green Bay residents requested that the legislature prohibit the carrying of concealed weapons.  (Public Meeting, Milwaukee Sentinel, Mar. 19, 1842).  They obviously did not understand Wisconsin’s 1839 surety law to already ban carrying weapons, and they believed the problem of people going armed was significant enough to warrant legislation.  And in 1881, Mayor Samuel King of Philadelphia demanded that Philadelphians stop carrying concealed weapons and threatened violators with prosecution under a Pennsylvania law that restricted concealed carry of deadly weapons.  (Mayor King’s Proclamation, Phila. Inquirer, July 25, 1881, p. 4)  (Yes, concealed carry prohibitions were commonplace outside the slaveholding South.)  These are just some examples, to which I could add many more. 

As for Professor Cornell’s second claim, a lack of evidence that surety cases existed is not so easily dismissed by pointing to the difficulty of finding the original records.  Even if justice of the peace records are difficult to find, there are indirect ways to search for cases.  Much like today, local newspapers in the nineteenth century reported on local cases, including those in police court.  I have searched prominent newspaper databases for surety cases in the ten surety states.  I have found very few—in the low single-digits.  In contrast, I have found newspapers in Massachusetts and Virginia claiming that the surety law was rarely invoked.

Even more remarkable, in the ten surety jurisdictions, there is not a single court decision about the surety law in any court of record.  Not one.  Ironically, the courts of record that have opined on the surety laws are primarily courts in the last ten years invoking Professor Cornell’s research to justify contemporary broad bans on public carry.

If evidence of nineteenth century gun law enforcement were so hard to find, we should not have readily available evidence of other laws being enforced.  But we do.  Prosecutions involving laws against the carrying of concealed weapons were common and reported in local newspapers in most of the country.  Also common were defendants mounting constitutional challenges against the validity of these laws in state courts of record.  These cases resulted in reported decisions.  Given this, it is incredible to believe that ten states could sharply restrict both open and concealed carry, and yet, there is not a single decision about these laws in any court of record.  More likely, these surety laws never ended up in a court of record because they were hardly enforced in any state in which they were passed.

Ultimately, virtually all the surety states adopted laws against the carrying of concealed weapons.  Proceeding chronologically, Virginia restricted the carrying of concealed weapons in 1838, Pennsylvania in 1850, the City of Washington in 1858, Wisconsin in 1872, Oregon in 1885, Michigan in 1887, Maine in 1917, and Minnesota in 1917.  These state laws left it lawful to carry weapons openly.  West Virginia was an outlier; it adopted a broader law restricting public carry, whether openly or concealed, but even that law only applied to handguns and other concealable weapons.  Massachusetts did not restrict public carry significantly until it required a license to carry a gun in 1906.  These criminal statutes, not the surety laws, became the predominant mode of enforcing public carry restrictions.  And they show that the “Southern model” of prohibiting only concealed carry was not limited to the South.

Thus, the reason Professor Cornell is unable to produce evidence supporting his claim that carrying weapons was generally unlawful is that such laws did not exist.  To the contrary, it was generally lawful to carry firearms in some form throughout the North.  Neither surety laws, nor the common law offense of going armed to the terror of the people, made it unlawful for a person to carry a weapon for self-defense or other lawful purposes.  A few colorful newspaper reports from New York and Pennsylvania illustrate the point (one can find more examples in the surety states and in the North)

From New York:  “Judge Lawrence decided to-day that the statute forbidding the carrying of concealed weapons did not apply to pistols, and discharged Gen. Howard, a Baltimore merchant, on whom a pistol was found.”

Boston Post, May 6, 1874, at 2.

Also from New York:  “A wild sensation was caused in New York streets on Wednesday.  A tall man wearing a brown overcoat took up a position in the doorway of the Fulton bank, with a large revolver in his right hand, with the muzzle pointed to the ground.  He was justled by a number of persons who had occasion to enter the bank, and finally a policeman was sent for.  To him the man said he was waiting to [] ‘do up’ a man, and that he meant to shoot him.  As there is no law against carrying deadly weapons openly the man was ordered to move on.”

Lancaster Intelligencer, Feb. 7, 1889, at 1.

Philadelphia:  “Some very incomprehensible things are done by the courts.  That is, [their] things would be incomprehensible if done by others than the courts.  For instance:  B.S. Gratz, of New Jersey, who has been twice a patient in a lunatic asylum, strapped upon his person an overgrown pistol and then, with his artillery in view, invaded City Hall at Philadelphia and demanded an interview with Mayor Ashbridge.  . . . He was arraigned upon a charge of carrying concealed weapons; argued his own case and secured a discharge upon the variance between the evidence and the complaint.  His deadly weapon was not concealed and the law does not prohibit lunatics from carrying unconcealed weapons.  The curious feature of the case is that, the court, knowing the man to be a lunatic at least occasionally, deliberately allowed him to go forth armed . . . .”

Evening Journal, Dec. 15, 1899, at 2.

This post is long, but let me end by summing up briefly:  people carried weapons in surety states; the surety laws did not ban public carry (and were not commonly understood to do so); and the laws were rarely invoked.

This blog post was adapted from material in an amicus brief that I filed with Nelson Lund and the Buckeye Firearms Association in New York State Rifle & Pistol Association v. Bruen, No. 20-843.  That brief was based on my book chapter Constitutional Liquidation, Surety Laws, and the Right to Bear Arms, in New Histories of Gun Rights and Regulation:  Essays on the Place of Guns in American Law and Society (Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller eds., forthcoming).

[Ed note: This post is in response to Prof. Cornell’s earlier argument on this blog.]

Members of Congress Have Little Right to Bear Arms on Capitol Hill

After last week’s riot at the Capitol, the acting House Sergeant-at-Arms implemented a new policy requiring House members to be screened for weapons before entering the House chamber.  On Tuesday, June 12, the U.S. Capitol Police declined to admit Rep. Lauren Boebert (R.-Colo.) to the floor of the House of Representatives after she refused to allow Capitol Police to inspect a bag she was carrying. Rep. Boebert protested on Twitter that she is “legally permitted to carry my firearm in Washington, D.C.[,] and within the Capitol complex.”  Rep. Madison Cawthorn (R.-NC) also claimed that he was armed during the riot.

These two freshmen are not the only Members of Congress who have firearms on Capitol Hill.  Earlier this year, Rep. Ken Buck (R.-Colo.) made news when he showed off an AR-15 rifle that he keeps in his office, telling “Joe Biden and Beto O’Rourke, if you want to take everyone’s AR-15s, why don’t you swing by my office in Washington, D.C. and start with this one?”

Joe Biden is unlikely to confiscate Rep. Buck’s AR-15; but the U.S. Attorney for the District of Columbia might.  At least two sets of laws govern the possession of weapons within the Capitol complex.  In 1967, Congress specifically prohibited the carrying of accessible weapons in all capitol buildings and grounds.  In addition to this federal law, the general criminal law of the District of Columbia applies to the Capitol complex.  The District has strict rules on firearms.  Among these, all firearms must be registered, some firearms cannot be lawfully registered  (e.g., certain semiautomatic firearms deemed “assault weapons”), ammunition magazines cannot exceed a 10-round capacity, the carrying of rifles and shotguns is prohibited, and the carrying of pistols is lawful only with a license to carry issued by the District of Columbia.  (As the signs at the Capitol office buildings warn visitors, the District does not recognize carry permits from other states.)  Even with a license, the District prohibits the carrying of pistols in many places, including the “U.S. Capitol buildings and grounds” and within 1,000 feet of a demonstration.

The 1967 federal law contained an exception for those “authorized by regulations which shall be promulgated by the Capitol Police Board.”  The Capitol Police Board regulations (Appendix J), in turn, provide that, “nothing contained in [the 1967 federal law] shall prohibit any Member of Congress from maintaining firearms within the confines of his office or any Member of Congress or any employee or agent of any Member of Congress from transporting within the Capitol Grounds firearms unloaded and securely wrapped.”  When Rep. Buck faced questions about the legality of his rifle, the Capitol Police pointed to this regulation to explain why his possession of the rifle was lawful.

But Capitol Police Board regulations do not authorize him—or any other Member of Congress—to possess firearms in violation of District law.  The Capitol Police Board regulations merely exempt certain people from the 1967 federal law.  On their face, they do not purport to confer a general authority to possess firearms in violation of District law.  Nor does the Capitol Police Board have the power to grant such an authority.  The 1967 federal law had a savings clause providing that “[n]one of the general laws of the United States and none of the laws of the District of Columbia shall be superseded by any provision of this Act.”  So while the Capitol Police Board regulations provide Members of Congress with a limited exception from the 1967 federal law governing weapons on Capitol grounds, they do not preempt the District’s general gun laws—which apply at the Capitol as they do elsewhere in the District.

Possession of an AR-15 rifle is unlawful in the District.  The District of Columbia’s statutory definition of “assault weapons” includes any semiautomatic rifle with a detachable magazine and a pistol grip.  These weapons cannot be registered in the District, and a person possessing such a firearm is subject to a misdemeanor prosecution for possession of an unregistered firearm.  Rep. Buck’s AR-15 has a pistol grip and a detachable magazine, so it fits within this definition.  Rep. Buck’s rifle also appeared to have a thirty-round magazine attached.  If so, Rep. Buck could be prosecuted for that, too.  The District of Columbia prohibits ammunition magazines that can accept more than 10 rounds, and in 2019, the District elevated the penalty for this crime from a misdemeanor to a felony.

Rep. Buck is correct that his possession of a rifle within his office is consistent with Capitol Police Board regulations.  So he could not be charged under the 1967 federal law with unlawfully possessing a firearm on Capitol Grounds.  But because the federal law did not supersede the District’s weapons laws, he still could be prosecuted for violating the District’s gun control laws.

Rep. Buck has also claimed that his rifle is “non-functional” because it “is lacking its bolt carrier group” (which contains the firing pin among other components) and has been equipped with a trigger lock.  But the District’s definition of firearm includes “any weapon, regardless of operability, which . . . [can be] readily converted, restored, or repaired, or is intended to, expel a projectile . . . by the action of an explosive” and includes “the frame or receiver of any such device.”  The removal of the bolt carrier group and the existence of the trigger lock will not remove his AR-15 from the District’s regulation of firearms.

What about Rep. Boebert and Cawthorn’s desire to carry pistols throughout the Capitol?  The Capitol Police Board regulations only permit Members of Congress to keep firearms in their offices and to transport unloaded and securely wrapped firearms elsewhere.  They do not permit the carrying of a loaded pistol outside a Member’s office.  The regulations further prohibit all persons (including those otherwise authorized to carry guns at the Capitol) from carrying any firearms inside the House or Senate chamber and some other adjacent spaces, “unless assigned or approved by the two Sergeants of Arms for maintenance of adequate security.”  So Members have no right to be on the floor with firearms, loaded or otherwise.  Members who violate the Capitol Police Board regulations could face federal prosecution under the 1967 federal law.

Even within a Member’s own office, District law imposes further restrictions.  Members’ weapons would have to be registered in the District of Columbia, and they could not have any high-capacity magazines.  Their ability to carry a pistol within their office is still questionable.  District law prohibits individuals with licenses from carrying concealed pistols in certain areas, including the Capitol buildings and grounds.  So Members could not rely on having a DC concealed carry permit to carry their weapons anywhere in the Capitol, including their offices.  Without a license, District law permits a person to carry a registered firearm in his “place of business.”  I’m not sure if the Members’ offices will count as their personal places of business.  If it is, then (and only then) could they carry loaded pistols in their offices.  But here again, Members have no authority to bear arms outside their offices.  Those who do could face prosecution under District law, either for carrying a pistol without a license or, if they were licensed, for carrying a firearm in a prohibited place.  Outside of their offices, Members may only transport firearms within the Capitol complex if they remain outside the House and Senate chambers (and surrounding areas), and if the firearms are unloaded and in a locked container (which would comply with both Capitol Police Board regulations, which require firearms to be unloaded and securely wrapped, and District law, which requires that the transporting container be locked).

If that were not enough, there is one further federal law complication.  A 1988 federal law (18 U.S.C. § 930) makes it a misdemeanor to possess a firearm in a federal facility, which is defined as “a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.”  The Capitol buildings likely fit within this definition.  (I am not aware of any charges brought under § 930 for possessing firearms in a capitol building—people are usually charged under the 1967 law or the District’s gun laws because they contain higher penalties.)  Section 930 has an exception for “the lawful carrying of firearms or other dangerous weapons in a Federal facility incident to hunting or other lawful purposes.”  The scope of this section—especially as it applies to “other lawful purposes”—remains largely untested.  Federal courts would be unlikely to recognize, however, that it covers the carrying of loaded firearms for self-defense because such a broad exemption would largely negate the attempt in § 930(a) to generally prohibit weapons in federal buildings.  See United States v. De la Cruz-Bancroft, No. CR 09-MJ-319 JH/WDS, 2010 WL 8752034, at *2 (D.N.M. Jan. 4, 2010).  Nor is it clear how § 930’s general ban on firearms in federal facilities would interact with the specific 1967 law that Congress implemented for the Capitol.  A general rule of statutory construction is that specific laws prevail over general laws, so ordinarily one might think that the exception for Members of Congress in the 1967 law should prevail over the generic ban of firearms in federal facilities in § 930.  But the 1967 law states that it does not supersede any of the “general laws of the United States.”  The savings clause means that, even if Capitol Police Board regulations exempt Members under the 1967 law, it might not shield them from prosecution under § 930.

Finally, Members of Congress do not have any special right to break criminal law, ex officio.  While the Constitution affords Members of Congress a privilege from civil arrest “during their Attendance at the Session of their respective Houses,” that privilege does not apply to arrests for “Treason, Felony and Breach of the Peace”—a term of art that encompassed all crimes.  Nor could they rely on the Second Amendment’s right to bear arms.  Heller’s dicta, which lower courts have followed, state that governments may ban “the carrying of firearms in sensitive places such as schools and government buildings.”  The D.C. Circuit has already held that the Capitol complex is a quintessential sensitive place.

In the nineteenth century, it was not uncommon for Members of Congress to have pistols in their desks.  (Nor was it uncommon for other members to complain about their brethren who were armed with concealed weapons.)  In the twentieth century, John Dingell supposedly kept a hunting shotgun in a Capitol basement locker when he was a teenage congressional page.  But federal and District weapons law have become much stricter in recent decades.  Members of the general public routinely face felony prosecutions when they bring weapons to the Capitol complex.  Members of Congress are not above the laws they have enacted.  Except in very limited cases, they have no right to be armed on Capitol Hill.

The Supreme Court and the Current Public Carry Petitions: Open Splits and Concealed Vehicle Problems

In District of Columbia v. Heller, the Supreme Court recognized an individual right to keep and bear arms for self-defense.  Although the decision settled whether persons have a right to keep arms when they are not enrolled in an organized militia, the decision raised many follow-up questions.  Is the Second Amendment limited to keeping arms inside the home or is public carry also protected?  What standard of review should courts employ?  What arms are protected?  Since Heller, the Supreme Court has been mostly silent, leaving the lower courts to address these (and other) issues.

At present, perhaps the most politically sensitive question involves the constitutionality of restrictions on the public carry of firearms, whether open or concealed.  This issue is ripe for resolution.  Eight circuits have split three ways.  Their positions have become entrenched by stare decisis.  And the remaining four circuits are unlikely to produce any significant decisions because their states generally permit individuals to carry firearms.

The First, Second, Third, and Fourth Circuits have held that states may restrict all public carry to those citizens who can prove that they face a special danger.  These circuits have generally bracketed the issue of whether the Second Amendment applies beyond the home.  Assuming it does, these circuits have held that broad restrictions on public carry withstand intermediate scrutiny.  The Third Circuit has additionally held that New Jersey’s restriction on public carry was sufficiently longstanding that it did not “burden conduct within the scope of the Second Amendment’s guarantee.”

The D.C. Circuit has reached the opposite conclusion.  District law only permits individuals to carry concealed firearms with a license, and the District limits licenses to individuals who had “good reason to fear an injury to his or her person or property.”  Unlike the First, Second, Third, and Fourth Circuits, the D.C. Circuit enjoined the “good reason” requirement, holding that it violated the Second Amendment.

The Seventh Circuit struck down Illinois’s ban on publicly carrying loaded firearms for self-defense.  Although the Illinois case involved a complete ban on concealed and unconcealed firearms, the Seventh Circuit’s opinion strongly suggested that the court would not approve limiting public carry to those with a special need.

The Ninth Circuit has held that the Second Amendment, at most, protects the public carry of unconcealed weapons.  In a widely watched en banc decision, the court held that the Second Amendment does not grant a right to carry a concealed weapon under any circumstances.  Individuals who want to challenge a ban on public carry in that circuit may only raise a Second Amendment challenge to a jurisdiction’s restrictions on openly carried firearms.  (The Ninth Circuit has yet to rule on whether a general prohibition of openly carried firearms is constitutional.)  In an earlier case, the Tenth Circuit took a similar position in a challenge to a Colorado law limiting concealed handgun licenses to residents.

The public carry issue has not generally arisen in the Fifth, Sixth, Eighth, or Eleventh Circuits.  All jurisdictions in those circuits allow law-abiding citizens to obtain permits to carry concealed weapons, and most also allow individuals to carry firearms openly.  These circuits may face narrower public carry cases, such as the constitutionality of prohibitions on carrying weapons in specific locations (e.g., public parks).  But these circuits are unlikely to rule on a case involving a broad prohibition on public carry.

Not only has the circuit split on public carry become mature, there is also a conflict within at least one circuit.  The D.C. Court of Appeals (the local court) has steadfastly refused to accept the D.C. Circuit’s decision striking down its “good reason” requirement for a license to carry concealed firearms.  Like the Ninth Circuit, the D.C. Court of Appeals has held that the District of Columbia has plenary authority to regulate concealed weapons, and that any Second Amendment right to public carry, if it exists at all, is limited to weapons carried openly.  So litigants in the District of Columbia face different rules, depending on whether they are in federal or local court.  That itself is a strong reason to grant certiorari to resolve the public carry issue.

Yet, the Supreme Court has been content to let these splits fester.  The closest it has come to deciding a public carry case was granting certiorari in New York State Rifle & Pistol Association, Inc. v. City of New York.  That case raised the issue of whether New York City could ban licensed gun owners from transporting unloaded guns in locked containers to second homes and shooting ranges outside New York City.  New York City, faced with almost certain defeat in the Supreme Court, amended its regulation to allow the transportation of firearms outside the City, and the Supreme Court dismissed the case as moot.

For gun rights advocates, the mooting of the case was a significant blow.  Advocates had hoped the New York case would provide a springboard to challenge public carry restrictions.  And they had hoped to use the New York case to counter the trend in lower courts to review Second Amendment regulations under a deferential intermediate scrutiny standard.

The mooting of the New York case may have also frustrated the Supreme Court, albeit for the opposite reason.  The New York case offered an opportunity for the Supreme Court to address the lower courts’ narrowing of Heller, without forcing the Court to weigh in on the politically charged public carry issue directly.  The Court’s decision to take the case probably signaled that key justices wanted to take an incremental approach in Second Amendment cases.

While New York City prevented the Court from dipping its toes in the Second Amendment waters, there is reason to believe that a critical mass of justices is now ready to dive in.  Three justices (Alito, Gorsuch, and Thomas) dissented from the dismissal of the New York case.  A fourth, Justice Kavanaugh, wrote a concurrence to share his concern about lower courts narrowing Heller.  He thought that issue could be best addressed by taking another Second Amendment case on its docket.

Of those pending cases, six involve challenges to the constitutionally of public carry restrictions.  Five raise the constitutionality of a special need requirement to obtain a license to carry a firearm (three from New Jersey, one from Massachusetts, and one from Maryland).  The sixth challenges Illinois’s refusal to issue licenses to carry to most nonresidents.  The Ninth Circuit has additional cases in the wings seeking to invalidate open carry restrictions in Hawaii and California.

To resolve the circuit split, the Supreme Court should grant one of the petitions from New Jersey.  New Jersey does not offer any substantial avenue for individuals (other than active or retired law enforcement officers) to carry firearms outside the home.  For handguns, New Jersey law does not distinguish between open and concealed carry.  Both activities require the same handgun carry permit, which New Jersey strictly limits to those with a “justifiable need.”  New Jersey also generally does not permit individuals to carry loaded rifles or shotguns, nor does New Jersey have an emergency self-defense exception to its public carry laws.

In litigation, “may issue” states are often described as requiring the applicant to show some special danger apart from the regular community.  This description is an oversimplification.  The amount of special danger an applicant must show varies widely across jurisdictions.  At one end of the spectrum, many licensing officials in these jurisdictions ignore the need requirement and issue licenses on essentially a “shall issue” basis to qualified applicants.  At the other end are jurisdictions (e.g., San Francisco, California) that almost never issue licenses regardless of how much danger an applicant may face.  Between these extremes is a vast middle ground of jurisdictions that issue permits to applicants who demonstrate substantial need—for example, business owners who make nightly cash deposits.

New Jersey falls on the near-total-ban end of this spectrum.    New Jersey law requires a “justifiable need” to carry a handgun.  This standard requires “specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.”  The New Jersey Supreme Court has held that those engaged in high-risk professions do not have a justifiable need to carry a handgun.  The court, thus, has affirmed the denial of permits to a diamond dealer who carried loose diamonds and a theater manager making cash deposits, who may have been at significant risk for robbery.  New Jersey’s criteria are so strict that even applicants who face significant credible danger have difficulty securing permits, often requiring them to appeal from initial denials.  New Jersey’s justifiable need standard, thus, is close to a blanket ban.

Cases from more moderate discretionary jurisdictions could produce a muddled non-answer.  If the Court holds, in a non-New Jersey case, that the Second Amendment permits states to restrict public carry to those who have a special danger distinct from the general community, it will leave open the question of how much danger an application must face before he becomes constitutionally entitled to a license.  Does a license have to be available to business owners?  Residents of high-crime areas?  Victims of stalking or domestic violence?  Only those who face death threats?  From the experience after Heller, lower courts will likely defer to the various licensing agencies.  And because the amount of danger an applicant faces is fact-specific, the Supreme Court would be unlikely to intervene in any particular case.  In essence, this kind of decision would continue to encourage lower courts to “narrow from below.”

Unlike New Jersey, other states have more complicated legal regimes, which could result in a fragmented decision.  The only state stricter than New Jersey is Hawaii, which has not approved a single carry license for a private citizen (other than a security guard) since 2013.  But Hawaii has separate licensing for concealed and unconcealed weapons.  Even if five justices agreed that the Second Amendment required some form of public carry, they may not be able to agree on the remedy.  Historically minded justices may take the position that the Second Amendment protects only openly carried weapons (the majority nineteenth-century position).  Other justices may believe that states can choose whether to authorize open or concealed carry, as long as it provides one option.  The result could be a fragmented judgment on whether appropriate relief is to force Hawaii to issue a license for openly carried weapons or to let it choose which type of license to issue.

California’s carry laws create similar problems.  California’s carry laws defy easy summary.  But with some oversimplification, California has both a general ban on carrying firearms openly and a licensing requirement for concealed weapons that requires applicants to show “good cause.”  As with a Hawaii case, a California case could cause a narrow majority to split on the question of appropriate relief.  California’s laws also have several other nuances.  In rural areas, a person can get a permit to carry a firearm openly.  The prohibition against openly carrying firearms does not apply in some parts of unincorporated rural areas. And California has an emergency self-defense exception to its prohibition on carrying loaded firearms.  Some moderate justices may think that these narrow exceptions are constitutionally sufficient, which may detract from deciding the core issue.

Maryland’s carry laws also have peculiarities.  Maryland, like New Jersey, does not distinguish between open and concealed carry of handguns.  But Maryland has no general prohibition against openly carrying rifles and shotguns, whereas New Jersey does not leave citizens any accessible avenue to carry firearms of any kind.

The Illinois case is also a poor vehicle to decide the scope of the right to bear arms.  While Illinois generally prohibits nonresidents from getting a license to carry, Illinois law also permits nonresidents to carry weapons in their vehicles if they have a carry license from their state of residence.  New Jersey, in contrast, requires both residents and nonresidents to have a New Jersey permit, and the state makes it equally difficult for a nonresident to obtain one.  A New Jersey case, thus, would present the public carry issue in the most straightforward manner.

Finally, a New Jersey case would also be the hardest to moot.  California, Hawaii, Massachusetts, and New York issue permits at the local level.  In the face of a potentially adverse Supreme Court decision, the local licensing official could simply change his licensing criteria.  In fact, Hawaii officials may be in the process of shifting their licensing criteria to improve their chances of prevailing in a pending Ninth Circuit challenge to Hawaii’s open carry restrictions.  While Maryland issues permits at the state level, the state police have plenary power to decide what constitutes “good and substantial reason” to issue a carry permit.  They, too, could easily moot a case by expanding the criteria under which they issue permits.  New Jersey licensing officials lack this power.  The state’s strict “justifiable need” standard is codified into law and backed by numerous state supreme court decisions narrowly defining the term.  Moreover, New Jersey law gives both police and judges a role in issuing carry licenses.  While local New Jersey judges ultimately issue the licenses, either the local police chief or the state police superintendent must grant the preliminary approval.  If police chiefs unilaterally loosen their criteria, New Jersey judges will likely override their license approvals; and if state judges unilaterally try to issue more licenses over initial denials by police, the police chiefs can appeal their decision to issue licenses (and they usually prevail).  To moot Supreme Court review, the New Jersey legislature would likely have to change state law.  After the New York case, the Supreme Court should consider a Second Amendment petition that does not allow for easy gamesmanship by the parties.