The First Congressional Debate on Public Carry and What It Tells Us About Firearm Regionalism

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia\u27s public carry law in the 1890s. These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment codified venerable, widely understood liberties. Second, the Senators\u27 and Congressmen\u27s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns. Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right. Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations

Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases. In researching this Article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately, this research shows that while there is a near unanimous national consensus within the federal circuit courts on the overall framework for assessing Second Amendment challenges—known as the “two-step test” or the “two-part test”—there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This Article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points

\u3cem\u3eNYSRPA v. Bruen\u3c/em\u3e and the Future of the Sensitive Places Doctrine: Rejecting the Ahistorical Government Security Approach

On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment case challenging New York’s concealed carry licensing system. The justices’ questions focused not only on who may obtain a license to carry a firearm in public, but also where those with a license may or may not bring their weapons. These questions acknowledged that the Court’s decision in District of Columbia v. Heller provided a carveout for firearms restrictions in “sensitive places,” providing “schools and government buildings” as just two examples. In the fourteen years since Heller, state and federal courts have upheld firearms restrictions in a number of locations under the sensitive places doctrine. However, in anticipation of a wave of sensitive places litigation following the Bruen decision, several conservative scholars now seek to limit the doctrine to only those locations protected by strict government security measures, such as metal detectors and security guards. This article demonstrates that such an approach is inconsistent with our nation’s history of regulating public carry and both historical and present-day case law, including Heller

Meritless Historical Arguments in Second Amendment Litigation

Since Heller Second Amendment litigation and scholarship has focused in large part on questions about the historical understanding of the Second Amendment. One area where this historical analysis has been especially pronounced is in litigation over the scope of the Second Amendment right outside of the home. Litigants, amici, and scholars fiercely debate the meaning of historical statutes, treatises, and cases, arguing about the scope of the right to carry arms outside of the home at the time of the Second and Fourteenth Amendments’ ratifications. Most law review articles attempt to address difficult or hotly contested legal issues. This is not one of those kinds of articles. This article will instead address the frivolous arguments made by many plaintiffs in public carry Second Amendment cases, some of which have unfortunately made their way into district and circuit court decisions. These arguments, often made in a misleading sentence or two, usually take a few paragraphs to effectively rebut, paragraphs which the state and local governments defending against challenges to gun laws generally do not have the time, necessary expertise, or word count to include in their briefing. This article aims to provide easy answers to these arguments, hopefully allowing both the courts and the parties to focus on the actual issues in the Second Amendment debate

The First Congressional Debate on Public Carry and What It Tells Us About Firearm Regionalism

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia\u27s public carry law in the 1890s. These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment codified venerable, widely understood liberties. Second, the Senators\u27 and Congressmen\u27s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns. Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right. Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations

The Law and Politics of Firearms Regulation in Reconstruction Texas

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts.More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today

Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases. In researching this Article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately, this research shows that while there is a near unanimous national consensus within the federal circuit courts on the overall framework for assessing Second Amendment challenges—known as the “two-step test” or the “two-part test”—there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This Article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points