The Right To Keep and Bear Arms in Self-Defense and Bans on Carrying Guns Outside the Home:

I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. The article is quite long, so I thought I’d just blog some excerpts; if you’re interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government’s proprietary role [if that’s present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

* * *

Heller stated that bans on concealed carry of firearms are so traditionally recognized that they must be seen as constitutionally permissible. This tradition does indeed go back to 1813 and the following decades, at least in some Southern states, and by the end of the 19th century it had become a pretty broadly accepted proposition. A smattering of state court cases has struck down such bans, but nearly all courts have upheld them, and many state constitutions expressly authorize them.

The same cannot, however, be said about general bans on carrying firearms in public, which prohibit open carrying as well as concealed carrying. Heller expressly concluded that “the right to ... bear arms” referred to carrying arms. Ten state constitutions strongly imply this, by protecting “bear[ing] arms” but expressly excluding “carrying concealed weapons.” (See Colo. Const. art. II, § 13; Idaho Const. art. I, § 11; Ky. Const. § 1; La. Const. art. I, § 11; Miss. Const. art. III, § 12; Mo. Const. art. I, § 23; Mont. Const. art. II, § 12; N.M. Const. art. II, § 6; N.C. Const. art. I, § 30; Okla. Const. art. II, § 26; see also Tenn. Const. art. I, § 26 and Tex. Const. art. I, § 23, authorizing the legislature to “regulate the wearing of arms with a view to prevent crime,” which suggests that “bear[ing] arms” includes “wearing” them, which is to say carrying them in public, though subject to regulations.)

Other constitutions don’t mention carrying as such, but they do use the word “bear.” And many courts applying state constitutional provisions have held or suggested that carrying in public is generally constitutionally protected, at least outside some special places such as businesses that serve liquor, churches, or polling places, though some courts have disagreed.