Does the Second Amendment Have a “Private Infrastructure”?

The traditional model of constitutional rights puts the government on one side and individuals on the other; rights restrain the power of the former over the latter. But that model is a little bit over-simplified in a world of pluralistic rights disputes where constitutional interests arise on many sides simultaneously. Once one goes beyond the simple binary model, hard questions arise about who has what kind of duties with regard to rightsholders—including whether and how constitutional rights need some kind of private (that is, non-governmental) “infrastructure.” Those questions are increasingly important for the Second Amendment—I’ll try to frame them here, and offer a few tentative thoughts.

It may be helpful to begin with a comparison. As Jack Balkin has shown, the system of free expression has transformed in ways that the traditional “dualist” conception of rights adjudication is often ill-suited to address. He points to “significant changes in the practices and technologies of free expression, changes that concern a revolution in the infrastructure of free expression. That infrastructure, largely held in private hands, is the central battleground over free speech in the digital era.” Elsewhere, Balkin argues that, as a result, “the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech.”

Could the same be said of the Second Amendment?

In many different ways, some of the most interesting and challenging questions for the Second Amendment in recent years are analogous to those confronting the right to free speech: Not just the breadth and strength of the right to keep and bear arms, but whether and how it interacts with other rights. Scholars have increasingly recognized and addressed those questions, especially in the context of free speech. (For a few recent examples, see here, here, and here).

But what about the “infrastructure” question that Balkin raises with regard to free expression? Does the right to keep and bear arms face an equivalent contextual transformation wherein the infrastructure of arms-bearing (whatever that may be) is increasingly held in private hands, and Second Amendment doctrine is increasingly irrelevant to the concerns of gun owners?

Consider the recent headlines about private actors—Walmart, Kroger, and others—asking their customers not to openly carry weapons in their stories. Many gun rights advocates have responded with outrage, and some have invoked the constitution, which raises the question: Do these businesses’ decisions, and others like them, have Second Amendment implications?

Under the traditional model, the easy, obvious, and correct answer is no—there is simply no state action to challenge. These businesses are private actors not bound by the Second Amendment any more than they’re bound by the First, and if they want to discourage or forbid the carrying of weapons on their private property, that’s their right. As the Eleventh Circuit put it a few years ago, “property law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment.”

But on another level, these developments illustrate the incompleteness of the traditional, binary model of constitutional rights claims as involving just the rightsholders against the government. After all, some businesses have specifically linked their decisions to what they see as shortcomings in the political process. And yet at the same time as they’re making up for government failure, these businesses are also asserting legal interests of their own—most obviously the right to exclude, but also to avoid legal liability for gun misuse or even (albeit not explicitly!) a right not to keep or bear arms.

Perhaps the best version of the gun rights advocates’ complaint is not a straightforward claim that the exclusion of guns violates their Second Amendment rights. Rather, it is a more general argument—a la Balkin—that the right to keep and bear arms depends on an “infrastructure, largely held in private hands,” and that the Second Amendment doctrine is only marginally helpful in resolving the underlying concerns. If a system of free expression properly takes account of important platforms and mediums of communication like Facebook and Google, the argument would go, then a system of arms-bearing must take into account the actions of their gun-related equivalents.

That returns us to the central question: Is there an equivalent “infrastructure” of the Second Amendment? If so, what does it entail? In the context of free expression, the infrastructural transformation that Balkin describes is largely the result of technological change—and, in particular, the digitization of speech. I cannot identify an analogous transformation in arms-bearing which would render the effective exercise of the right dependent upon some non-state actors. While modern expression is heavily dependent on private (primarily technological) intermediaries, it’s hard to say the same of armed self-defense. Certainly some gun owners would like to carry or use weapons on other people’s private property, but most still see the core right of self-defense as being most important in the home. Is the libertarian rhetoric of gun rights really able to accommodate a Second Amendment version of Pruneyard? (The question is not merely rhetorical.)

But perhaps there is more to the argument than that. In a forthcoming piece, Jake describes what he calls “The Right to Keep and Bear Arms Outside the Second Amendment”—the wide range of legal rules that operate between politics and constitutional doctrine to protect the right to keep and bear arms. Maybe there is a complementary story to be told about the private intermediaries on which the right depends. In earlier work, Darrell has explored an institutional approach to the Second Amendment—one in which judges would “recognize   and   potentially   defer   to   salient   organizations,  rules,  traditions,  and  norms  that  both  facilitate  and  constrain  Second  Amendment  activity.” The infrastructural argument, if it has validity, would represent a variation on that theme: constitutional actors (not just judges) might take into account the ways in which such institutions are necessary to vindicate constitutional interests.

To be clear, gun owners do not have Second Amendment claims against private businesses that do not wish to sell guns or allow them on their property. Much if not most of the constitutional rhetoric on this issue has been misguided at best and misleading at worst. The primary disputes here are political, social, and cultural, rather than doctrinal. But the lines between those categories are not always bright or stable. And as private actors continue to fill the void left by legislative inaction, we can expect continuing debates about who and what is bound by the Second Amendment, and how broadly we should conceptualize the right to keep and bear arms.

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

The historical record suggests: Maybe not.

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

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

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

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

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

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

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

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