Firearms Law Workshop Mini-Symposium, Part VII: The Right to Keep and Bear Arms Outside the Second Amendment

The Second Amendment protects an individual right to keep and bear arms.  But, under the Constitution, that right is circumscribed.  It is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Nor does the Second Amendment impose limits on private parties’ authority to restrict firearms on their own property, on local governments’ power to regulate secondary effects of firearms-related activity (e.g. noise levels), or on the remedies available to private plaintiffs in a civil lawsuit arising from firearms-related harm. The Constitution simply sets a floor on the scope of the right to keep and bear arms.

Congress and the states, meanwhile, have consistently raised protection for that right far above what the Constitution requires—often in the name of the Second Amendment. Through a myriad of exemptions, exceptions, and accommodations, lawmakers have created a host of formal, non-constitutional legal protections for the right to keep and bear arms (“RTKBA”). This web of laws, at both the state and federal level, expands the practical arms right in ways that far outstrip the protections provided by the federal Constitution. This functionally-expanded RTKBA protects the arms right far more pervasively and to much greater practical effect than the formal constitutional guarantee. Much like the Civil Rights Acts or Voting Rights Acts can be said to expand the constitutional right to equal protection or to vote, so too does this expanded RTKBA magnify the constitutional guarantee in significant ways.

Recognition of rights-expansion through ordinary law is not new. More than a decade ago, Professor Ernie Young documented the myriad ways in which the American system of government is “constituted” by a host of laws outside the “canonical Constitution.”  Many ordinary laws perform the same functions as the document drafted in Philadelphia in 1787—he calls these laws “the Constitution outside the Constitution.”  Young highlights three such functions: constituting the government, conferring rights on individuals, and entrenching structures and rights against change.  Ordinary law, then, can often perform the same functions that constitutional provisions perform. They organize relations among governmental entities, create and expand rights, and can even seem nearly as entrenched as rights in the canonical Constitution (e.g., the Social Security Act).  By looking at the function of a law, we can identify how the Constitution operates outside the formal, canonical document.

The RTKBA is no different. Like the Constitution outside the Constitution, a functional analysis of the RTKBA underscores that the scope of the right extends far beyond the parameters of the Second Amendment. And these ordinary laws create formal legal barriers to gun regulations and create formal legal entitlements to engage in firearms-related activity that are not compelled by the Constitution.

Several categories of laws push the boundaries of the RTKBA beyond the Second Amendment. Preemption laws are one important example. Almost every state in the union has robust preemption laws that bar local governments from regulating firearms.  Although often tied rhetorically to the Second Amendment, these laws are not mandated by the Constitution. And without these laws, the predominantly urban areas that experience the most gun violence, and at the same time support the most gun regulation, would no doubt have stricter gun laws than they currently do.  It is no exaggeration to say that widespread preemption laws likely prevent more gun laws than the Second Amendment.

Preemption and similar laws (such as the Protection for Lawful Commerce in Arms Act  and laws requiring employers to allow employees to bring their guns to work, requiring colleges to allow individuals to carry on campus, etc.) perform the same functions as the individual-rights guarantee in the Second Amendment: carving out a sphere of private action in which the state, and sometimes even private entities, cannot regulate.  And, as with many other constitutional guarantees, the rights conferred by these legal rules may be more practically important for millions of Americans than the bare Second Amendment right.

The functionally-extended RTKBA raises several questions. One is normative. Why does the right to keep and bear arms deserve this protection from a host of otherwise valid exercises of the state’s regulatory authority, and to what degree are these laws justified on Second Amendment grounds? Another is conceptual. What does it mean to talk about a legally enforceable right to keep and bear arms in the context of, for example, laws mandating or forbidding private conduct?  A final one is pragmatic. How does the existence of an extra-constitutional right influence regulation, litigation, and activism aimed at passing effective gun violence prevention measures?

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]