Upcoming C-SPAN Programs on the Second Amendment

Starting tonight, CSPAN is airing past events on the Second Amendment in a marathon session. The schedule is here and below is a description of the events, including ones with Darrell as well as other experts who have appeared on this blog and at Center events: Saul Cornell, Patrick Charles, and Brannon Denning, and Adam Winkler.

History of Gun Rights in America

Historian Patrick Charles and legal scholar Brannon Denning discuss the history of the second amendment and American gun rights from the drafting of the Bill of Rights to more recent Supreme Court decisions that have shaped the current debate over gun control legislation. The National Constitution Center in Philadelphia hosted the event.

U.S. Gun Rights & Regulations

The National History Center hosted a discussion on gun rights and regulations. Speaking from the Rayburn House Office Building in Washington, D.C. were historian Saul Cornell and law professor Darrell Miller. They delved into the drafting of the U.S. Constitution’s Second Amendment and how it’s been interpreted ever since.

NRA Origins & 1930s Politics

A discussion on the National Rifle Association. Patrick Charles, Senior Historian for the United States Airforce, talked about the history of the NRA, including changes in gun control and views on the Second Amendment. This interview was recorded at the annual American Historical Association meeting.

American Artifacts National Firearms Museum

National Firearms Museum director Jim Supica and senior curator Phil Schreier talked about the museum’s collection of handguns, rifles, and other firearms, and explained the role these weapons have played in the settlement, expansion and preservation of the United States. The National Firearms Museum is owned and operated by the National Rifle Association.

History Bookshelf Adam Winkler, “Gunfight”

Adam Winkler talked about his book “Gunfight: The Battle Over the Right to Bear Arms in America.” He was interviewed by Mr. Dunham and responded to questions from members of the audience. This presentation of the Texas Book Festival was held in the C-SPAN/Book TV Tent. The program concluded with festival information

Lectures in History First & Second Amendment Court Cases

University of South Florida Sarasota-Manatee visiting professor John Prevas taught a class at IMG Academy about the First and Second amendments to the U.S. Constitution, using court cases to demonstrate how these rights have been interpreted. Located in Bradenton, Florida, IMG Academy is a college preparatory boarding school focused on student-athletes. Mr. Prevas teaches at the school as part of IMG Academy’s partnership with the University of South Florida to offer certain students courses with college credit.

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.

Guns Laws, Decatur, and Protecting Black Lives

I just finished Kathleen Belew’s excellent book, Bring the War Home: The White Power Movement and Paramilitary America, and one story there stuck out to me. It’s a story about racist violence motivating stricter gun regulations with particular resonance for this moment.

In 1979, a small group of Black protesters was marching in protest of the shoplifting arrest of a Black man in Decatur, Alabama (yes, the Alabama one). A group of 200 robed Ku Klux Klan members carrying rifles, pistols, and shotguns surrounded the 8 protesters. They wounded four protesters and fired into a car before police broke up the confrontation. In response to this armed intimidation, the Decatur City Council passed an ordinance banning the carrying of weapons within 1,000 feet of any public demonstration. There is no doubt that the City Council enacted the law in response to white supremacist violence and armed intimidation and that at least one goal was to protect peaceful protest, including for the Black Americans whose gathering had previously been interrupted. And the KKK understood the ordinance as aimed at their armed confrontations. The New York Times reported at the time that shortly after the law was passed “200 robed and heavily armed Klansmen paraded through town and circled the home of Mayor Bill Dukes, jeering defiance as Decatur policemen stood by, some waving in greeting. Ray Stelle, Klan kleagle, or lieutenant, said, ‘If the Mayor wants our guns, he’ll have to come and get them.’”

This episode reminded me of another gun law motivated by a concern for Black lives. The law struck down in Heller—banning handguns from the District—was strongly endorsed in the District’s Black communities and passed by its majority Black City Council. James Forman describes how those at the time viewed the law as “a civil rights triumph.” It helped to show that, “at least in D.C., the killing of black men mattered.” Gun laws, like these, have been used many times in our history to protect racial minorities from the harms that guns can cause to communities of color.

To be sure, throughout U.S. and English history, gun laws—like all laws—have sometimes targeted racial or religious minorities. And, as a matter of enforcement, even today’s neutral gun laws are often enforced disproportionately against communities of color. These are systemic problems with the criminal legal system that should give pause to those who seek to further criminalize gun-related conduct. But the Decatur and D.C. examples alone demonstrate that it is overly simplistic to suggest “all gun control is racist.” The situation in Decatur shows democratic institutions, even in the Deep South, responding to armed intimidation and violence against Black Americans by enacting gun laws designed to protect them. The fact that the KKK interrupted a peaceful protest—a quintessential act of democratic participation—demonstrates how guns can threaten harm even when no one is shot or killed. As Joseph highlighted last week, his new article with Reva Siegel unpacks these ways that guns can, especially through armed intimidation like that undertaken by the Decatur Klan, inflict a public harm on civic life. And just as legislatures can take action to guard against the physical injuries that guns cause—like the D.C. City Council in 1975—they can also act to guard against the democratic injuries that guns cause—like the Decatur City Council in 1979.

When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety

What can armed protest teach about the case for gun regulation?  Reva Siegel and I have just posted our article, When Guns Threaten the Public Sphere: Recovering the Common Law Approach to Public Safety, which is forthcoming as part of the Northwestern Law Review symposium the Center co-sponsored this past fall. Here is the abstract:

Today, the gun debate focuses on how regulation can reduce the staggering number of Americans who are wounded or killed by guns every year. This Article widens that focus beyond injury-prevention, beyond the horrors of Sandy Hook, Parkland, and constant daily shootings, to examine cases where guns threaten and intimidate without inflicting physical injury—for example, when armed masses flood the legislature (Washington D.C. or Michigan), or when individuals pull guns on citizens in a protest march (St. Louis), or when people use guns to assert coercive control over intimate partners (everywhere).

Guns shape the ways we live together. As we show in an account of the armed protesters who flooded the Michigan legislature, weapons can be used not only to injure but to intimidate. For this reason, the government interest in regulating arms to promote public safety is not only concerned with preventing physical injuries, but also with preventing weapons threats. Recognizing that government regulates guns to prevent social as well as physical harms is a critical first step in building a constitutional democracy where citizens have an equal claim to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint. We draw on this principle in developing one of the first accounts of the public safety interest in regulating weapons.

In the wake of the January 6 riots in the United States Capitol, we have updated the Article to show how the assault on the Michigan legislature is connected to violent challenges to the 2020 election. These events, as well as many others from daily life, illustrate the character, scope, and stakes of public safety in a constitutional democracy.

All agree that there is a public safety interest in regulating guns, yet few agree about its scope. Some advocates of public carry are beginning to argue that preventing physical injury is the only legitimate reason for regulating guns.  Other advocates, judges, and scholars claim that the Constitution restricts a democracy’s ability to legislate in the interest of public safety and privileges the claims of citizens who rely on guns, rather than gun laws, to respond to fears of violence.

To counter these arguments, we demonstrate that a different understanding of public safety is deeply rooted in our history. For centuries, the Anglo-American common law has regulated weapons not only to keep members of the polity alive, but to protect their liberties against weapons threats and to preserve public peace and order. That regulatory tradition has long shaped state and federal law. Critically, we show that this regulatory tradition grounds the understanding of the Second Amendment set forth in District of Columbia v. Heller, where Justice Scalia specifically invokes it as a basis for reasoning about the regulation of guns.

Guided by core principles of our constitutional democracy and by traditions informing the Second Amendment itself, government can enact and enforce gun laws that secure public and private spaces for equal enjoyment by all citizens. We dispute scholars who assert that the Constitution privileges the security claims of the armed over the unarmed, or allows the redress of physical but not social injury. We show how concern for the even handed enforcement of gun laws is a core part of the public safety interest. Given the commitments that define our constitutional democracy, government can regulate weapons to ensure that all persons have equal claims to security and to the exercise of liberties whether or not they are armed and however they may differ by race, sex, or viewpoint.

Why Heller Is Such Bad History

When I began the research for my recent book, Armed Citizens: The Road from Ancient Rome to the Second Amendment, my goal was to understand the origins of American gun laws. I was hardly alone in this, of course; there is an enormous amount of contemporary research on the original goals of the Second Amendment, including Scalia’s 2008 decision in DC vs Heller, which still sets the framework for gun regulations today. But one thing that became clear, when reading that decision and reading the debates leading up to and surrounding the writing of the Constitution and the Bill of Rights, was just how different the concerns of the eighteenth-century were from the gun politics of today.

When the Supreme Court took up DC vs Heller, it had to answer the question of whether or not the Second Amendment protected an “individual” right to bear arms. By a 5-4 ruling, the court declared that it did. Such a ruling is, of course, within the purview of the Supreme Court. Given the nature of the question, it was also appropriate for it to come down to a 5-4 ruling for one side or the other. As the goal of this post is to show that Heller is “bad history,” I should say from the outset that my point is not that ruling in favor of DC’s gun laws would have been good history. Rather, it is to show that Justice Scalia’s justification of that decision, while rooted in an analysis of the amendment’s eighteenth-century context, was based on a fundamental misconception of the way that gun rights and militia service were understood and debated during the eighteenth century. It is not inherently bad history to say that the Second Amendment protects an individual right to bear arms; it is, however, bad history to declare that such a ruling was a return to the “original understanding” of the amendment.  And it is especially bad history to claim that the protection of an individual right was the primary reason for the Second Amendment’s inclusion in the Bill of Rights.

Scalia’s decision combined two key elements: his originalist philosophy of constitutional interpretation, on the one hand; and an expansive view of gun rights, on the other. These elements are neither inherently consistent nor inconsistent with each other. They did not, however, link together in the way that Scalia claimed, because the eighteenth-century America he described was not one that most historians of the militia would recognize. Justice Scalia mischaracterized eighteenth-century society in two key ways. His claim that “The ‘militia’ comprised all males physically capable of acting in concert for the common defense” whitewashed a history of not only excluding people of color from the militia – able-bodied or not – but of using that militia to police the actions of non-whites and especially of the enslaved population. His opinion also reads at portions as if unaware that the militia was an official government institution under state authority (and colonial authority before that), and under the command of those governments. Before, during, and after the Revolution, there was not one militia, but rather different militias for the different states. And while those militias were broken down into geographical subunits, they were all part of specific militias under government authority. Colonial and state laws about “all able-bodied men” being part of the militia were followed by noting that those men were required to register with their local officers, and the officers were required to maintain the lists of eligible men. Those men would be required to participate in the militia, including both training and musters during peacetime, and active duty when needed – under government command. By ignoring these aspects of the eighteenth-century militia, the Heller decision helped feed a common misperception that membership in the militia was a status that one might independently declare, as do the men in the modern militia movement.

To be sure, there were armed groups of men in the eighteenth century who declared themselves a militia, yet acted outside of – and in explicit opposition to – their colonial and state governments. That was the approach of the men who participated in Shays’s Rebellion and the Whiskey Rebellion, most of whom had also been members of their state militias. But the governments at the time, both at the state and national level, explicitly rejected those claims. George Washington, then retired, thought that the actions of those “insurgents” would lead to “anarchy and confusion,” the antithesis of the “Bulwark of our Liberties and independence” that a “respectable and well established” militia would provide. Because the militia as it existed in the early republic was a state institution, in both senses of the word. To be legal – let alone “well-regulated” – its actions had to be done under the leadership of the colonial governments, until 1775; under the state governments, until the ratification of the Constitution; then, following that, under the command of either the state or national government, as specified by the Constitution’s Militia Clause and the Militia Acts of 1792. And while the militia’s participation in the American Revolution was an illegal activity according to British rule, those militias still acted under the command of newly constituted civil authorities, not as independent actions of the militia leaders and militiamen themselves. In his decision in Heller, Scalia missed the key role that civilian powers played in commanding the militia. Yet civilian control of military power was an enormously important issue for the founding generation, as shown by the language of the state-level predecessors to the Second Amendment.

In the interest of fairness, some passages in Heller showed a genuine understanding of the issues involved – where it indeed reads like good history. The decision recognized that England’s growing army during the 1680s helped spur the 1689 Bill of Rights. The decision also recognized that the militia was meant to render standing armies unnecessary. And at the end, Scalia acknowledged that it is “debatable” whether the Second Amendment as a whole is “outmoded” in a nation “where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” And while Stevens’ dissent was notably better history than the majority opinion, it is not perfect; nor is it entirely clear that, as Stevens claimed, the “’right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia” [emphasis added].

From an historian’s perspective, the problem is that the question the court had to address, “does the Second Amendment guarantee an individual right to bear arms?” was not an important question during the founding generation. If one starts by asking, not whether or not the amendment protected an individual right, but why the amendment was included in the first place, a very different set of concerns become paramount. Those concerns revolved around the militia. The men of the founding generation spent an inordinate amount of time debating the respective roles of citizens’ militias and professional armies – a discussion which had been a major topic of political debate in the Anglophone world since the 1690s, when John Trenchard and Walter Moyle published An Argument, Shewing that a Standing Army in Inconsistent with a Free Government. Those ideas, though never dominant in England itself, found a welcoming audience in British North America. They were key to complaints about British soldiers’ presence in the aftermath of the French and Indian War, then ramped up after the 1770 Boston Massacre and the fighting at Lexington and Concord, and were the source of Jefferson’s complaint in the Declaration of Independence that England “has kept among us, in times of peace, standing armies, without the consent of our legislatures.”

That fear of standing armies – and therefore, the belief in the necessity of a citizens’ militia – remained strong in the Revolution’s aftermath. Everyone involved in the writing of the Constitution and the Bill of Rights considered a large standing army to be an inherent threat to liberty. The debate between the Federalists and the Anti-Federalists at the time played out not as whether there should be a standing army, but as a discussion of how best to avoid a large standing army; and while men like Washington and Hamilton were not against having any professional army, they were a) against having a large one, and b) by 1789, no longer attempting to argue for even a small one. The Constitution’s Militia Clause and the Second Amendment were the government’s way of providing the framework for an answer to those questions, while avoiding the problems caused by events like Shays’s Rebellion. Their answer was that for the United States to be both free and secure, the states’ citizens’ militias – and not standing armies – must be able to provide that security. Should an individual state’s militia’s fail to provide that security, the national government would be able to bring in the militias of other states. Those were the questions they asked and the answers they gave. Whether the amendment protected an individual right to bear arms is our question; it was not theirs.

Historians are not required to limit themselves to those questions that people in the past explicitly posed, but we do have to acknowledge the risks involved when we impose our own. In this case, the question of an individual right to bear arms did not make sense in a society where everyone eligible for militia duty was required to participate. Short of the kind of Rousseau-style abstract analysis of the individual which divides human males into both a private man and a public citizen, in a society with universal male militia participation it is impossible to separate the definitely-arms-bearing militia member from the possibly-but-not-definitely-arms-bearing private citizen.

And yet, the ruling in Heller required a decision on just this matter. This difficulty is why the ruling deserved to be answered 5-4 one way or the other. Heller is not bad history because it rules that individuals had the right to bear arms outside of participation in the militia. It is bad history because it viewed the individual right to bear arms as why the amendment was written in the first place; it is bad history in its claim that the Second Amendment protected “only individuals’ liberty to keep and carry arms.” [emphasis added]. With this approach, Scalia shifted the decision from a questionable but defensible answer to the question the court had been asked, to a mischaracterization of the nature of the amendment itself. That mischaracterization, rather than the decision itself, is what makes Heller such bad history.

The Breadth of Judge Barrett’s “Dangerousness” Principle

Judge Amy Coney Barrett opened her dissent in Kanter v. Barr by identifying a historical principle underlying modern gun regulation: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” She went on to suggest that dangerousness is the Second Amendment’s exclusive limiting principle, such that “legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”

This is a historically contestable position—many scholars and judges conclude that dangerousness was not the exclusive basis for disarmament, and that the Founding generation also denied guns to those thought to be unvirtuous, disloyal, incompetent, and so on. But if “dangerousness” is the operative principle for historically-informed Second Amendment interpretation, how broadly does it sweep? In Barrett’s terms, what do “history and tradition” tell us about the “scope of the legislature’s power to take [the right to keep and bear arms] away?”

Answering that question means considering, in her words, “a category simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” In her Kanter dissent (which argued that the federal felon prohibitor was unconstitutional as applied to a non-violent felon), Judge Barrett focused on the latter—felons who might not be dangerous. But it is also important to consider the former: non-felon groups disarmed because they were thought to be dangerous.

Through that frame, the historical evidence demonstrates that the “scope of the legislature’s power” was quite broad, notwithstanding the fact that the founding generations applied that power to very different groups than law does today—both more narrowly (for example, by not disarming domestic abusers) and more broadly.

In a forthcoming essay, we analyze two sets of historical gun laws that seem historically distant, but which the “dangerousness” approach makes relevant: laws regulating Native Americans and laws regulating those “disaffected to the cause of America.” These groups—much more so than felons, drug users, domestic abusers, and other groups targeted by contemporary restrictions—were subject to gun regulation by the Founding generations, apparently based on the perceived threat they posed. Relying largely on the Center’s Repository of Historical Gun Laws, the first part of the essay provides a historical overview of these laws, which have not received the same level of scholarly attention as some other historical prohibitions, such as those involving public carry or certain classes of arms.

Comparing these historical laws to contemporary gun restrictions inevitably means reasoning by analogy—as the test of “text, history, and tradition” favored by some originalist judges requires. The key step in analogical reasoning is identifying whether two things are relevantly similar, a process that is hard—and perhaps even impossible—to fully articulate given the invisible abstractions and generalizations that underlie it. Many scholars, including those sympathetic to broad gun rights, have noted some of the difficulties that arise when one looks for historical equivalents of modern laws. But at the very least, a “dangerousness” approach to text, history, and tradition must mean identifying the groups that were disarmed on that basis either in the Founding era or during Reconstruction.

The second part of the essay grapples with a question such regulations raise: What is to be done with the many historical laws that lack modern equivalents? Second Amendment historicism sometimes directs us to the family tree of gun laws in order to identify “lineal descendants” of particular guns or gun laws. But what about the lines of regulation that died out for one reason or another? Should embarrassing ancestors be cropped out of the historical picture entirely, or might they still have something to teach, in roughly the same way as Dred Scott v. Sandford has been invoked to support the “individual right” reading of the Second Amendment?

In some form or another, history is and will remain relevant to the question of whose access to guns can constitutionally be limited. Whether the answer to that question turns on a group’s dangerousness, virtuousness, or some other principle is beyond the scope of our essay. We assume that dangerousness was at least one reason why certain groups were disarmed. But whatever approach one takes, it is important to be clear about the historical record, and the breadth of the government’s power to regulate.

To be clear, the lessons of history can be instructive in a cautionary way—not only with regard to the groups that were wrongly subject to disarmament in the past, but also the potential malleability of a “dangerousness” principle. In particular, the historical record shows an inclination to disarm those who were considered threats to public safety and the political order. Whether and how history can provide guidance with regard to the targets of contemporary prohibition—felons and domestic abusers, for example—is a broader question of constitutional interpretation. Understanding the full historical record, and the breadth of the government’s historical power, is a crucial first step.

Virginia Court Partially Enjoins New Private-Sale Background-Check Requirement

In 2020, the Virginia legislature passed a host of new gun regulations: limiting purchases of handguns to one a month, requiring the reporting of lost/stolen firearms, giving local autonomy over gun restrictions on government property, creating an extreme risk protection (aka red flag) law, and others. These new laws, in a state that had previously granted much greater solicitude for gun-rights advocates, led to sharp and predictable backlash. Many of these laws have already been challenged. One challenge in particular—a requirement that private sales undergo background checks—resulted in a (partial) win for the plaintiffs last week in Virginia circuit court in Elhert v. Settle. The case, and the court’s opinion, raise a set of interesting new questions moving forward.

The law at issue requires that, with limited exceptions, all firearm sales must be preceded by a criminal history background check. Under federal law and pre-2020 Virginia law, only when firearms were sold by licensed dealers (often called FFLs for Federal Firearm Licensees) did the prospective purchaser have to undergo a background check. (This is the so-called “gun show loophole” because purchases from non-licensed persons at gun shows do not have to go through background checks.) A group of individuals and gun-rights organizations sued, claiming that the private-sale background check requirement violates the Virginia state constitutional right to bear arms, which the court treated as co-extensive with the Second Amendment. One of the plaintiffs is 18 years old, and so cannot obtain a handgun through an FFL because federal law does not let licensed dealer sell handguns to those under 21. (The Fifth Circuit has upheld that law against constitutional challenge.)

First, the court concluded that the proper test to apply to these types of challenges is the history and tradition framework advocated most prominently by then-Judge Kavanaugh in his Heller II dissent. It was also the position adopted by Justice Thomas (joined by Justice Kavanaugh, but only Justice Kavanaugh) in his recent dissent from the denial of certiorari in Rogers v. Grewal, as I’ve written about. The court in Elhert framed the question this way:

The two frameworks proposed by the parties are the following: (1) a history-and-tradition framework from Heller and McDonald, and (2) a sliding scale of heightened scrutiny as applied by the United States Fourth Circuit Court of Appeals. The Court rejects the sliding-scale framework because it is inconsistent with the text of the right to keep and bear arms and inconsistent with the guidance in Heller and McDonald. Three discrepancies have led the Court to this conclusion.

The three reasons the court gave were: (1) a sliding scale is forbidden interest balancing, (2) “the sliding-scale framework too easily resorts to intermediate scrutiny, which is not compatible with fundamental rights,” and (3) the sliding scale “eliminate[s]” the word “bear” in the Amendment. Echoing language from a lot of pro-gun advocates, judges, and scholars, the court said:

The sliding-scale framework replaces the analysis of historical justifications with conjecture about a laws burden, guesswork on where the burden places the law on the scale, and empirical judgments about what justifications are heavy enough to balance the scale. It is difficult to imagine a test sounding more like interest balancing than a sliding scale of burdens and justifications.

But, of course, this is exactly how many rights are assessed, including to take the most the obvious example, the First Amendment. Courts expressly drew on that right’s jurisprudence when fashioning this approach. The approach can also be seen in the abortion context, where the Supreme Court’s recent decision in June Medical actually hinged on questions about the law’s burden, the nature and impact of that burden on the right, and empirical and scientific evidence about the justifications for that burden. (Even the Chief Justice’s concurrence, as I’ve noted, was squarely focused on questions of burden.) It is hard to see how it’s okay for courts to “interest balance” free speech and abortion rights but not gun rights; it seems to me the advocates’ reasons for rejecting tiers of scrutiny in the Second Amendment either ought to be applied across the board to require a wholesale revision in how rights are treated in the courts or be seen as bare rhetorical tools to win cases.

Second, after concluding that history and tradition are the guide, the Elhert court found that the private sale background check requirement is facially valid. Even though the law covers “private sales” and not the “commercial sales” that Heller said can be restricted (the court finding a distinction there that eludes me), the court concluded that the same rationale applied in both cases. “[T]he Court is at a loss as to how the historical justifications of preventing felons and the mentally disabled from possessing firearms would allow conditions on commercial sales and not also justify conditions on private sales.” In short, “[s]o long as the background check is limited to preventing a longstanding prohibition on a historically justified category, it does not violate the right to keep and bear arms.”

Third, the court struck down as unconstitutional the private sale background check requirement as applied to 18-20 year olds. The reasoning is a bit hard to follow, but to me it looks something like this: (1) federal law bars FFLs from selling handguns to those under 21, (2) federal law requires that FFLs who facilitate private transfers take the gun into inventory and record it as an acquisition before transferring it, (3) the NICS background check system automatically rejects handgun transfers to those under 21, and (4) therefore the Virginia law deprives those under 21 of the right to a handgun. Because the court concludes that those under 21 have a right to buy a handgun, the Virginia law cannot constitutionally be applied to them.

Second Amendment methodology is a major flashpoint in current debates over the right to keep and bear arms, but so far every federal appeals court to face the question has rejected the history and tradition approach in favor of what’s become known as the two-part framework. (As my colleague Darrell Miller notes, these two competing frameworks shouldn’t really been seen as opposing paradigms.) The Elhert court’s approach to methodology may be a signal that the dissenting justices are starting to win over more converts in the state courts.

Scholarship Highlight: Jennifer Tucker on Public History and Guns

Second Amendment scholars naturally spend a great deal of time and energy focusing on questions about the history of gun rights and regulation, but less time investigating questions about how that history is or should be presented to the public in venues like museum exhibits. Historian Jennifer Tucker (Wesleyan) has done as much as any scholar I know to illuminate such questions, including (as she puts it):

how do firearms differ from other types of material culture in relation to their own historical contexts, and in how they are understood by museum visitors (and curators)? Do museums permit or encourage critical research? What can be done to improve museum/researcher relations? What is the place in firearms museums of the depiction of gun violence? How do museums give insights into history that differ from the accounts available in books?

Through the end of July, the Journal of the History of the Behavioral Sciences is making freely available a really fascinating interview that Prof. Tucker recently did with David Serlin (UC San Diego) about public history, COVID-19, and guns. As she puts it in the interview, “the historical study of gun technologies merits more attention than it currently receives. The study of guns and their social and cultural practices is a perfect example of the importance of inserting the study of technological developments into the history of politics and society.”

You can read the whole thing here. The discussion of guns begins around page 5, and there are some interesting graphics throughout, including of the NRA Firearms Museum.

A Police Powers Defense to Second Amendment Challenges?

In a recent article in the Chicago Law Review, The Origins of Substantive Due Process, Ilan Wurman argues against the notion that antebellum courts enforced limits on state or local legislative power through a doctrine of substantive due process. Instead, limits on this legislative power—apart from state constitutional rights guarantees—operated through three principal doctrines: (1) municipal/corporate law, (2) the Dormant Commerce Clause, and (3) the Contracts Clause.  Absent these limits, Wurman contends, “there appears to have been no doctrine known to the law by which courts could prevent a state legislature from enacting legislation contrary to natural principles of justice or to fundamental rights but that violated no state constitutional provision.”

What’s the upshot of this finding for modern jurisprudence? Wurman suggests that just as the notion of the state’s police powers was crucial to understanding these three principal limits on legislative power prior to the Fourteenth Amendment, they might still have purchase with respect to incorporated rights afterward. The pre-Fourteenth Amendment cases, Wurman argues, “suggest that, historically, states were limited to good-faith and legitimate exercises of their police powers when state power ran up against potential federal constitutional prohibitions.” With passage of the Fourteenth Amendment, more constitutional prohibitions became applied to the states, and these could be adjudicated the same way. After noting that the Court has not yet established a methodology for deciding Second Amendment questions, Wurman explains that “the police-powers framework could supply the Court with a framework for such cases.”

In that framework, just as states defended against federal constitutional claims under the Commerce and Contract Clauses by invoking their police powers, so too could states defend legislation today against incorporated rights challenges on this theory. In applying the police-powers framework, courts historically judged the reasonableness of the law and the genuineness of the state’s purpose of protecting public health and safety. That test actually looks a lot like the way that state courts were interpreting their own right-to-arms provisions prior to Heller. As Adam Winkler detailed just before Heller came down:

The most prominent feature of the state law in this area is the uniform application of a deferential “reasonable regulation” standard to laws infringing on the arms right. This standard is extremely deferential to state legislative efforts to control weapons and, under this standard, the vast majority of gun control regulations are upheld. The reasonable regulation standard does have its limits; laws (or their application to specific individuals) found to be arbitrary or to amount to a complete denial of the right to bear arms have been invalidated. Such rulings are rare, however, and state courts use their oversight authority over the arms right sparingly. Judicial review in this area is limited to guarding against extreme, unfair, or nonsensical governmental action relating to guns and does not create any significant hurdles to gun control.

As it turns out, federal courts have not taken such a route in Second Amendment cases (or many others). As my colleague Joseph Blocher points out, although state courts have routinely incorporated federal constitutional doctrine into their interpretation of similar state rights, federal courts almost never incorporate state doctrine. Still, though lower courts have not adopted such a methodology, the Supreme Court could. Indeed, if the Court increasingly turns to history to guide its answers to interpretive and methodological questions, Wurman’s article gives one more reason to provide states broad leeway to exercise their police powers to protect public health and safety in the face of gun violence.

A Court in Denial

Justice Brett Kavanaugh joined the Supreme Court in October 2018, taking over the seat from retiring Justice Anthony Kennedy. In January 2019, after nearly a decade of declining to hear a Second Amendment case, the Court granted review in New York State Rifle & Pistol Association v. City of New York. Many observers—myself certainly included—thought the new Court would have an increased interest in resolving questions about the substance and methodology of the right that Heller announced in 2008. But, after NYSRPA was dismissed as moot earlier this year, the Supreme Court this week denied review in the 10 cases it had been holding for NYSRPA. It’s not totally clear why. But one thing is clear: Justice Thomas thinks the Court abdicated its responsibility in doing so. In this post, I unpack his dissent from the denial of certiorari in one of these cases and question what’s next for the Second Amendment at the Supreme Court.

Of the 10 cases the Court was considering, several of them concerned one of the biggest open issues in Second Amendment jurisprudence today: does the Second Amendment extend outside the home and, if so, is that public right as broad as the private one? These cases came in the form of challenges to restrictive public carry licensing regimes—“may issue” or “good cause” laws—in New Jersey, Maryland, and Massachusetts. The First, Second, Third, and Fourth Circuits have upheld these restrictive laws. The D.C. Circuit has struck one down. And in September the Ninth Circuit will consider en banc a challenge to Hawaii’s restrictive law.

Thomas dissented from the Court’s decision not to review one of the pending New Jersey cases—Rogers v. Grewal. (Neither Thomas nor any other justice registered disagreement with the  decision to deny cert in every other case, including those concerning California’s Unsafe Handgun Act, assault weapon and high-capacity magazine bans, and others.) New Jersey requires that individuals who wish to carry firearms in public (open or concealed) obtain a license to do so. But not everyone can get a license. To do so, the applicant must establish that she has a “justifiable need” to carry the gun in public. The law dates back to 1924, when the state first enacted a licensing provision with a need requirement to carry firearms concealed. It was not until 1966, however, that the law covered open carry as well.

Thomas was joined by Kavanaugh for all but Part II of his dissent. In the introductory portion, Thomas argued that the Court’s failure to review the case treated the Second Amendment differently than the Court would treat restrictions on speech or abortion rights. Grewal, said Thomas, provides the Court “the opportunity to [(1])] provide guidance on the proper approach for evaluating Second Amendment claims,” (2) “acknowledge that the Second Amendment protects the right to carry in public,” and (3) “resolve a square Circuit split on the constitutionality of justifiable-need restrictions on that right.”

Part I of his dissent focused on the first point—lower courts need authoritative guidance from the Court on how to approach Second Amendment questions. In his view, courts rejected the “framework” Heller and McDonald established—text, history, and tradition—and substituted an “entirely made up” two-step inquiry. (As an aside, it’s hard to credit the view that a coverage-protection inquiry that includes tiers-of-scrutiny is a framework fashioned out of whole cloth. As I’ve written about in a forthcoming article, courts expressly note they are borrowing from the First Amendment when adopting the framework.) The two-part framework, Thomas contends, is in “blatant defiance” of Heller.

In Part II, the portion of the opinion that Kavanaugh declined to join, Thomas turns to the second reason he gives for granting cert—to acknowledge a public carry right. For him, “the right to carry arms for self-defense inherently includes the right to carry in public. This conclusion not only flows from the definition of ‘bear Arms’ but also from the natural use of the language in the text.” Thomas then goes through English and early American case law to bolster the point. He first analyzes the 1328 Statute of Northhampton, which has been the subject of a long-simmering dispute over its scope and enforcement. He takes the view that it was rarely enforced and even then only forbid arming oneself in public with ill intent. He then argues that founding era thinkers, like St. George Tucker, William Rawle, and James Wilson, also accepted a broad public carry right. Finally, he catalogues early Southern caselaw that broadly protected (mostly under state constitutions) a public carry right and Civil War sources suggesting the same for the federal Constitution.

Finally, in Part III (with Kavanaugh back on board), Thomas went on to his third point—the need for resolving the circuit split. Consistent with his view of proper Second Amendment methodology, he said that “[s]tates can impose restrictions on an individual’s right to bear arms that are consistent with historical limitations.” Although he strongly suggests a “good cause” regime like New Jersey’s would be unconstitutional, he simply concludes that the Court “should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.”

It has been clear where Thomas stands for a while, as his frequent prior dissents from denial of certiorari show. But this dissent gives us new insight into the other justices. Notably, Kavanaugh joined the call for (1) a text, history, and tradition test, and (2) the Court to resolve the circuit split. The first point was one he made at length in his dissent in Heller II. The second was a point he made in his NYSRPA concurrence. But he declined to join Thomas’s historical tour. Maybe that was because Thomas answered the question without briefing on the issue. Or maybe Kavanaugh had doubts about Thomas’s historical excavation, which cited almost all pro-gun sources and dealt only once (and that only cursorily) with scholars who view the history differently; he did not even acknowledge, for example, more recent historical inquiry into Rex v. Knight by historian Tim Harris. Or Kavanaugh or other justices may have been concerned by what post-Heller corpus linguistic analyses seem to suggest, as my colleague Darrell Miller has written about. After all, no other justice chose to join any of the dissent, not even Part III simply calling for the Court to resolve the circuit split.

So what does that mean for what’s next? Well, Justice Gorsuch has joined a prior Thomas dissent from denial of cert—in a case raising a similar issue and that Thomas framed almost identically: “At issue in this case is whether [the Second Amendment] protects the right to carry firearms in public for self-defense.” Unless something has changed in the last two years about Gorsuch’s views of Heller or the Second Amendment, it’s not clear why he did not join the call to grant review here. As for Justice Alito I’ve noted his nuanced and hard-to-read views on the Second Amendment, which means he is not an automatic vote to grant review. And the Chief, for his part, just does not seem all that interested in wading back into the quagmire. (He took neither Heller nor McDonald to write and has not joined a single one of the dissents from denial of cert.)

I suspect there are not 5 voices on the conservative side that agree on the open issues, which explains why there are not the 4 votes needed to grant cert. These might be methodological disputes—such as whether the text, history, and tradition test that Thomas and Kavanaugh are pushing is proper; or they could be substantive ones—such as whether “good cause” laws are consistent with the Second Amendment whatever the methodology. It is also possible that enough justices just think the lower courts are generally getting it right. Or, conversely, it is possible enough justices think that as the lower courts are filled with more conservative jurists, they will gradually move the law toward greater protection for the Second Amendment without requiring Supreme Court intervention.

In terms of what’s next, I mostly have guesses. The major issues in Second Amendment jurisprudence—who the right protects, where the right can be exercised, and what weapons it covers—were all on the docket this year. So too were fairly unique laws, like California’s microstamping requirement, of the kind the Court might have been tempted to take to minimize disruption from a ruling. If the Court did not act on one of these, why would they ever take another? I can see at least a few ways a new case could get there (and I very well might be missing other ways):

  1. SCOTUS’s hand gets forced. This could happen if, for example, a federal appellate court strikes down a key federal law, like a ruling that facially invalidates the felon prohibitor. I’d have to think the Court would then be forced to take the case.
  2. A new or deepened circuit split. I’ve written about how surprising it is how few circuit splits there are in this area, but there are some. One, as noted, is on public carry. The Ninth Circuit could side with the D.C. Circuit in its case this fall and make the split deeper. That could put more pressure on the Court. Or a new split could develop or grow deeper in other areas, such as whether a person prohibited from possessing firearms can raise an as-applied challenge.
  3. The election happens. It is possible that with all the hot-button issues on the docket this year, the Court did not want to generate more controversy around election time. Maybe the judicial appetite will return post-November.
  4. Congress passes new/stricter gun laws. If a new Congress decides to pass a slate of new gun regulations, that might also put pressure on the Court to adjudicate the issues—especially if appellate courts are reaching conflicting conclusions on a question of federal law.

For now, though, it’s all a waiting game. There have been no major cert petitions filed recently, so we will not be hearing any news from the Court in the short term.