Where Does the Second Amendment Apply?

The Independent Institute

Does the Second Amendment right to “bear arms” apply outside of the home? You would be mistaken if you thought that the Supreme Court has clearly settled the matter. It has not. In District of Columbia v. Heller (2008), the Court decided that the Second Amendment protected an individual right, and in McDonald v. Chicago (2010), it decided that Second Amendment rights could be enforced against state and local governments. However, the issue of whether those rights apply outside the home was not explicitly addressed by the Supreme Court—at least that’s the thinking in the nation’s lower courts.

The Fourth Circuit’s decision United States v. Masciandaro (2011) illustrates how the lower courts view the matter. The panel’s opinion issued two different views on the question. On the one hand, Judge Wilkinson said that the Supreme Court would have to state more explicitly whether the Second Amendment applies outside the home; on the other hand, Judge Niemeyer argued there is a “plausible reading” of Heller that the Second Amendment does apply outside the home. This decision—with its dueling view of where exactly Second Amendment rights apply—is entirely unsatisfactory, according to Independent Institute Research Fellow Stephen Halbrook.

“The state courts were well aware of the meaning of the right to ‘bear arms’ long before the Supreme Court decided Heller and McDonald,” Halbrook writes in the Wake Forest Law Review. “Just to cite a decision rendered in a state in the Fourth Circuit, the North Carolina Supreme Court in 1921 invalidated a ban on carrying handguns outside the home.... To the extent that the majority in Masciandaro eschewed ruling on—indeed, even recognizing—the right to ‘bear arms’ pending further explicit guidance from the Supreme Court, the Fourth Circuit missed an opportunity to contribute to this jurisprudence.”

No Right to “Bear Arms”? A Critical Analysis of United States v. Masciandaro, by Stephen P. Halbrook (The Wake Forest Law Review, 12/16/11)

Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, by Stephen P. Halbrook

The Founders’ Second Amendment: Origins of the Right to Bear Arms, by Stephen P. Halbrook

That Every Man Be Armed: The Evolution of a Constitutional Right, by Stephen P. Halbrook