Take Your Guns To Town: Expanding the Scope of the Second Amendment Beyond the Home
In 2008, the Supreme Court of the United States concluded that the Second Amendment protects an individual right to keep and bear arms as applied to the federal District of Columbia. Two years later, the Court incorporated that individual right through the Fourteenth Amendment. Yet the statutes struck down in these two cases dealt only with the in-home possession of handguns; the question of whether the United States Constitution protects the right to keep and bear arms outside the home remains undecided. In both of the aforementioned decisions, the Supreme Court found that self-defense is at the core of the Second Amendment. While some lower courts maintain that the Second Amendment disappears at the threshold, others argue that the right to carry a firearm extends outside of a residence . . .
The courts remain undecided regarding what level of scrutiny should be applied to statutes which ban carrying a firearm in public. This Comment advances the idea that since this right is fundamental, strict scrutiny should be applied with differing applications based on varying state interests.
Drawing on parallels between the First, Second, and Fourth Amendments is a useful tool in constructing the Second Amendment’s boundaries outside the home. For instance, the protections of speech afforded by the First Amendment do not disappear once Americans venture outside their houses. Substantial speech protections exist in public, with even greater protections while inside of the home. Similarly, the Fourth Amendment, with the home also at its zenith, nonetheless provides citizens with substantial protections outside their homes. In keeping with both, the same principle should hold true with the Second Amendment; the right to self-defense should not disappear once outside the home. While the Second Amendment may not protect the open carrying of rocket launchers or bazookas in public, it certainly protects the law-abiding citizen’s right to carry a handgun for personal protection.
This Comment argues that the Second Amendment, while at its apex inside the home, offers substantial protections outside the home. Part I
discusses the two seminal Supreme Court cases which set the groundwork for modern Second Amendment jurisprudence—District of Columbia v. Heller and McDonald v. City of Chicago. Part II
analyzes two recent lower court decisions that expressly held that the Second Amendment’s core of self-defense protections extends outside the home.
divides the argument into two main sections. Section A
is separated into three parts: Text, Policy, and Precedent. The “Text”
subsection examines the words of the Second Amendment and distinguishes “bear” from “keep” as two separate and distinct rights. The “Policy”
subsection discusses the idea that self-defense is the core of the Second Amendment, with many states having expanded those rights beyond the Castle Doctrine and liberalizing when a law-abiding citizen can use deadly force in public. The “Precedent”
subsection argues that comparing the Second Amendment to the First and Fourth Amendments is useful in determining the scope of the right to keep and bear arms. Particularly, both the First and Fourth Amendments offer substantial protections outside the home yet operate at their pinnacle inside the home.
insists that since the Second Amendment is a fundamental right and applies outside the home, courts should apply strict scrutiny to any infringements of the right. Finally, Part IV
applies a strict scrutiny test to hypothetical statutes that would prohibit certain types of weapons inside and outside the home.