The Supreme Court has not established the proper method for analyzing Second Amendment issues. Most courts are inconsistent in determining the rights afforded within the Second Amendment because they rely on a combination of historical analysis, precedent, empirical data, logic, and judicial deference.1 While the Supreme Court has not established a method for resolving Second Amendment questions, the Court has employed a consistent method in recent Second Amendment cases.2 The Supreme Court in Heller and McDonald used history to analyze the language and purpose of the Second Amendment, at the time of it’s founding.3 This allowed the Court to determine what the language meant at the time of the founding and thus what rights were afforded based on those words.4 Therefore, the extent of the Second Amendment’s rights must be determined by employing a similar historical analysis. The historical analysis of the language and purpose at the time of the founding will dictate whether the Second Amendment extends to beyond the home.
The historical analysis demonstrates that the language used in the Second Amendment extends the rights of the individual beyond the confines of the home. Furthermore, the analysis shows that the purpose of the Second Amendment necessitates the rights extending beyond the home at the time of the founding. Because the right extended beyond the home at the time of the founding, it must extend beyond the home today. However, it is clear that the rights within the Second Amendment are not limitless. The rights of individuals under the Second Amendment are limited based on the type of weapon, the classification of the individual, and the type of location.
A. The Language of the Second Amendment
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”5 The critical language in determining whether the rights extend beyond the home is “to keep and bear arms.” To determine the meaning of the Second Amendment at the time of the founding, the analysis must begin with the 18th century. The 1773 edition of Samuel Johnson’s dictionary defined “keep” as, “to retain” and “to have in custody.”6 The 1771 edition of Timothy Cunningham’s dictionary defined “keep” as, “to hold; to retain in one’s power or possession.”7 The court in Heller concluded that the term “keep arms”, as used in the Second Amendment, means to “have weapons” for personal self-defense purposes.8 However, the term “keep arms” cannot possibly be read to allow an individual to carry the weapon beyond their home. This indicates that the issue must turn on whether “bear arms” establishes this right. At the time of the founding, “bear,” meant to “carry”.9 In Muscarello v. United States, Justice Ginsburg stated that “bear arms” in the Second Amendment “indicates: wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in case of conflict with another person.”10 The court in Heller, concludes that the “bear arms” wording in the founding-era meant to carry weapons.11 The historical analysis of the language indicates that the phrase “to keep and bear arms” grants a right to own or have weapons and a right to carry those weapons.12
The right to bear arms cannot mean to carry weapons strictly within ones house. If the founders intended for the Second Amendment to provide only a right to individuals within their house, the term “bear” would have not been included. This is evident by the definition of the phrase “to keep arms.” This phrase grants the right to own a weapon for personal protection, presumably to be stored within the home.13 Owning a weapon for personal protection necessarily requires the use of the weapon. When using a weapon for personal protection, an individual is required to handle or carry the weapon. This demonstrates that the phrase “to keep arms” encompasses the right to carry and use arms within ones home. To read the Second Amendment as only extending a right in the home is to ignore critical wording within the Amendment. The Second Amendment includes the word “bear”.14 This wording is not present simply to reiterate rights that have already been granted by the Second Amendment.15 Thus, the term “bear” grants rights different than the rights “to keep” provides. Therefore, at the founding, the Second Amendment necessarily gives individuals the right to carry weapons outside the home.
B. The Purpose of the Second Amendment Rights
The purpose of the Second Amendment’s right to bear arms is to grant individuals the ability to defend themselves and their property.16 This purpose, at the time of the founding, supports the rights extending beyond the home. The purpose of the Second Amendment at the time of the founding is critical because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.”17 Furthermore, this purpose has not changed throughout Second Amendment history.18 Therefore, the rights afforded to individuals in the Second Amendment extend beyond the home today.
The founding generation was a product of English rule. In England, the Kings disarmed political protesters to assure political longevity.19 Thus, the founding generation understood that the right to bear arms was rooted in self-defense and resistance. Writings from the founding-era confirm the conclusion that the right to bear arms granted the right to self-defense. In 1765 Blackstone wrote that this right was “the right of having and using arms for self-preservation and defence.”20 Furthermore, the New York Times wrote “[i]t is a natural right . . . confirmed by the Bill of Rights, to keep arms for their own defence.”21 Therefore, the right to keep and bear arms at the time of the founding was understood to be an individuals right to use arms for self- preservation and defense. Furthermore, prior to the ratification of the Second Amendment, four states’ constitutions included the right to bear arms.22 These constitutions further indicated that the purpose of this right was for an individual’s self-defense. For example, Georgia law in 1770 stated an individuals right to bear arms was “for the security and defence of this province from internal dangers and insurrections” which required the men “to carry fire arms” “to places of public worship.”23 This law demonstrates that the right to bear arms must have extended to beyond the home, in order to defend against internal dangers and insurrections. In fact, this law requires the certain individuals to carry firearms beyond their home.24 It is clear that the founding generation viewed the right to bear arms as a right extending beyond the home. Furthermore, the right to bear arms for self-defense necessarily extended beyond the home. An individual’s right to bear arms in self-defense included defense against tyranny.25 The defense against tyrannical governments is the ability to resist. Resistance against governments cannot take place within the home. Therefore, the right to use arms for self-defense and preservation, at the time of the founding, necessarily extended the right to beyond the home.
Analysis of the Post-Ratification era demonstrates that the purpose of the right to bear arms has not changed throughout history. Between 1789 and 1820, nine states included the right to bear arms as a legal right.26 Four states included the terminology “bear arms in defence of themselves and the state.”27 Three states used “right to bear arms in defence of himself and the State.”28 In Andrews v. State, the court found that the purpose of the Second Amendment was not strictly in defense of his political rights, indicating it is for self-defense.29 Joel Tiffany, wrote in 1849 that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.”30 These examples indicate that the purpose of the Second Amendment did not change over time.
The Second Amendment case law further demonstrates that the right to bear arms has consistently been a right of self-defense. In Johnson v. Tompkins, the court stated that the Second Amendment granted “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary…”31 Furthermore, in Nunn v. State, the Georgia Supreme Court stated that the Second Amendment protected the “natural right of self-defence”, when striking down a ban on carrying pistols.32 The Supreme Court of Louisiana held that the right to carry arms was a “right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves.”33 These cases further demonstrate that the rights afforded in the Second Amendment have always provided individuals with the right to defend themselves and their property.
The historical analysis, much like the one employed in Heller and McDonald, shows that the language in the Second Amendment supports an individual’s right to bear arms extends beyond the home. The term “keep” allows an individual to own a weapon and keep it inside their home for self-defense.34 This allows for an individual to use the weapon if needed. The term “bear”, at the time of the founding and now, means to “carry”.35 In order to carry the weapon, beyond the scope of rights already granted in the Amendment’s language, the Second Amendment must provide a right to carry a weapon beyond the home. This conclusion is not only supported by the lingual history, but also by the purpose of the Second Amendment. Throughout the history of the Second Amendment’s right to bear arms, the purpose has been to grant individuals the right of self-defense. At the time of the founding, personal self-defense required exercising the right to bear arms outside the home. This right cannot be diminished over time because it is a pre-existing right.36 Therefore, it is clear that the rights provided in the Second Amendment must extend beyond the home.
II. The Extent of Second Amendment Rights
The rights in the Second Amendment are not unlimited. This is evident by the court in Heller stating: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms.”37 Thus, the Supreme Court outlined the outer boundaries of the rights afforded in the Second Amendment. However, the Court never provided a clear test to determine which a class of weapons, people, or places are excluded from the rights in the Second Amendment.38 This has led to inconsistent results from the lower courts attempting to discern which classes are excluded from the Second Amendment.39 Therefore, a clear test for each limitation is required in order to determine the extent of the Second Amendment.
A. The Limitation on Type of Weapon
The Court in Miller said that the types of weapons that the Second Amendment extends to are those “in common use at the time.”40 The Court in Heller interprets the commonality requirement to mean that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.41 Thus, the Second Amendment only extends to weapons used primarily for self-defense or used for other lawful purposes.
The exclusion based upon the primary use of the weapon is consistent with recent court decisions. In U.S. v. Marzzarella, the court upheld the law prohibiting possession of a handgun with an obliterated serial number.42 The court determined that the protection under the Second Amendment did not extent to weapons not typically possessed by law-abiding citizens for lawful purposes.43 The court in Hamblen used a similar test to uphold the constitutionality of a categorical ban on certain types of weapons.44 The court upheld a defendant’s conviction for unlawful possession of a machine gun because the court found this weapon was not typically possessed for lawful purposes.45 The court in U.S. v McCartney found that the law prohibiting possession of silencers, grenades, and directional mines did not violate the defendant’s Second Amendment rights.46 The court found that law-abiding citizens do not typically posses these weapons for lawful purposes.47These cases further the assertion that a categorical ban on weapons not typically used for self-defense by law-abiding citizens is not a violation of the Second Amendment. Therefore, the Second Amendment only extends to those weapons, which are typically used for self-defense and other lawful purposes.
B. The Limitation to People
Another limitation on the rights provided in the Second Amendment is based upon a
certain classification of people. The Court in Heller gave two examples of the type of classes that can be excluded based upon their classification: felons and mentally ill.48 However, the Court does not provide a method for determining a class of individuals that the Second Amendment does not extend to.49 Therefore, the test must develop from the rational behind exclusion of the two examples. These two groups were excluded because they can be dangerous with a weapon. Thus, the rights in the Second Amendment extend beyond the home for individuals who are not considered dangerous if permitted to possess a weapon.
The exclusion of individuals who would be dangerous is consistent with recent court decisions. In U.S. v. Skoien, the court upheld a law that barred possession of firearms by all persons convicted of domestic violence.50 The law in Skoien was upheld because the law excluded a class of individuals that would be dangerous if they possessed a firearm.51 In U.S. v. Vongxay, the court held that a law prohibiting felons from possession firearms did not violate the Second Amendment.52 The court in U.S. v. Korbe declined to dismiss an indictment because the court held that substance abusers are a danger if permitted to carry a weapon.53 These examples demonstrate the extent of the Second Amendment rights based upon a classification of person. The Second Amendment only extends to classes of people who are not dangerous to society if permitted to possess a firearm.
C. The Limitation on Place
The final limitation that the court alluded to is a limit on the Second Amendment rights based upon the location of the individual. The Court in Heller states, “carrying of firearms in sensitive places such as schools and government buildings” can be constitutionally limited.54 The Court in Heller restricted the Second Amendment’s rights by including “sensitive places”, but only provided two examples of what may classify under this test.55 The “sensitive places” test is far too vague to be applied consistently. Thus, a test must be developed from the other portions of the Court’s opinion. The Second Amendment must only extend to locations that a weapon would be carried for lawful purposes more frequently than for unlawful purposes. This limit is consistent with the other restrictions that the Supreme Court has placed upon the rights afforded in the Second Amendment.
The limitation of an individual’s Second Amendment rights based upon location is consistent with recent case decisions. In Georgia, a court upheld a law prohibiting possession of weapons in government buildings, courthouses, jails, places of worship, mental health facilities and polling places.56 These locations demonstrate the weighing-test in determining whether a location is sensitive. The government buildings, courthouses, places of worship, and polling places are all locations that an individual may carry a weapon for unlawful purposes because of the activities that take place there. The Jail and mental health facilities are locations that an individual would carry a weapon for unlawful purposes because of the individuals found there. These locations do not present a lawful reason to carry a weapon. Therefore, the reasons for carrying a weapon at these locations weigh far greater on the unlawful purpose side of the test. This example demonstrates that the Second Amendment must only extend to locations that a law-abiding citizen would reasonably carry a weapon for self-defense purposes.
The Supreme Court in Heller demonstrated the proper method to determine the extent of
the Second Amendment’s rights. The Court uses history to determine the meaning of the language at the time of the founding. Applying the same analysis shows that the rights within the Second Amendment extend beyond the home. Furthermore, the historical analysis demonstrates that the rights in the Second Amendment must extend beyond the home to fulfill the purpose of the Second Amendment. The rights at the time of the founding are crucial to the determination because “it has always been widely understood that the Second Amendment . . . codified a pre- existing right.”57 Thus, the rights under the Second Amendment at the time of the founding are the same rights as today. Therefore, the Second Amendment extends beyond the home to protect an individual’s right to own a gun for personal self-defense. However, this right is not unlimited. The Second Amendment only extends to certain people, with certain weapons, in certain locations. First, the Second Amendment extends to only to law-abiding citizens. Second, the Second Amendment only extends to guns typically used for lawful purposes. Third, the Second Amendment extends to locations that a weapon is normally carried lawful for purposes.
1 Darrell A. H. Miller, Comment, Peruta, the Home-Bound Second Amendment, And Fractal Originalism, 127
2 See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020 (2010).
3 Heller, 554 U.S. at 576 4 See id. at 570.
4 See id. at 570.
5 U.S. Const. amend. II.
6 Dictionary of the English Language 106 (4th ed. 1773).
7 A New and Complete Law Dictionary (2d ed. 1771).
8 Heller, 554 U.S. at 584-588.
9 T. Sheridan, A Complete Dictionary of the English Language (1796). 10 524 U.S. 125, 143 (1998).
11 Heller, 554 U.S. at 584.
12 See supra text accompanying notes 6–11.
13 See supra text accompanying note 8.
14 U.S. Const. amend. II.
15 See, e.g., Heller, 554 U.S. 570 (analyzing every word, indicating that no word is included without meaning).
16 See infra text accompanying notes 19–22.
17 Heller, 554 U.S. at 592.
18 See infra text accompanying notes 24–31.
19 L. Schwoerer, The Declaration of Rights, 1689, p 76 (1981).
20 1 William Blackstone, Commentaries 136, 139 (1765).
21 A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 O. Dickerson ed. 1936).
22 Heller, 554 U.S. at 601–02.
23 19 Colonial Records of the State of Georgia 137-139 (A. Candler ed. 1911 (pt. 1)).
25 See infra text accompanying notes 19–21. 26 Heller, 554 U.S. at 603
29 50 Tenn. 165, 183-184 (1871).
30 A Treatise on the Unconstitutionality of American Slavery 117-118 (1849).
31 13 F. Cas. 840, 850, 852 (CC Pa. 1833).
32 1 Ga. 243, 251 (1846).
33 State v. Chandler, 5 La. Ann. 489, 490 (1850).
34 Heller, 554 U.S. at 584-588.
35 Id. at 584.
36 Id. at 592
37 Id. at 626-627
38 See, e.g., Id.
39 See, e.g., U.S. v. Pope, 613 F.3d 1255 (10th Cir. 2010); U.S. v. Brown, 715 F. Supp. 2d 688 (E.D. Va. 2010).
40 United States v. Miller, 307 U.S. 174, 179 (1939).
41 Heller, 554 U.S. at 625.
42 614 F.3d 85 (3d. Cir. 2010).
43 Id. at 87.
44 Hamblen v. U.S. 591 F3d 471 (6th Cir. 2009).
45 Id. at 474.
46 U.S. v. McCartney, 357 Fed. Appx. 73 (9th Cir. 2009).
47 Id. at 76.
48 Heller, 554 U.S. at 626.
50 614 F.3d 638, 639 (7th Cir. 2010).
51 Id. at 642.
52 594 F.3d 1111 (9th Cir. 2010).
53 452 Fed. Appx. 117 (3d Cir. 2011).
54 Heller, 554 U.S. at 626
56 GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1261 (11th Cir. 2012).
57 Heller, 554 U.S. at 592.