Stephen Halbrook’s recent, important paper in the Federalist Society Review, To Bear Arms for Self-Defense: A “Right of the People” or a Privilege of the Few?, provides a scholarly and deeply researched analysis of the text and history of the Second Amendment, taking the discourse on the right of ordinary citizens to carry a firearm outside the home to a new level. Halbrook’s paper, published as a two-part series, examines the text of the Second Amendment, its antecedents both in 17th-century England and pre-revolutionary America and its interpretation and application up to the Civil War. His second installment picks up the thread with the history and ratification of the Fourteenth Amendment. In addition to providing new insights into the text, history, and tradition of the Second Amendment—from its English origins to the latest judicial decisions—the paper serves the critically important function of collecting in a single, accessible place, perhaps for the first time, key textual and historical evidence bearing on the question whether the Second Amendment’s protections extend outside the home. As Halbrook deftly shows, the evidence that it protects a right to carry firearms outside the home is simply overwhelming—so overwhelming, in fact, anyone who would press a different answer to that question bears a heavy burden of persuasion.
Stephen Halbrook is uniquely well-positioned to take on the question of the original understanding of the scope of the right to bear arms. As an attorney, Halbrook was heavily involved in both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010); in addition, his historical writing has led the field of Second Amendment scholarship for nearly four decades, ever since the publication of his groundbreaking book That Every Man Be Armed in 1984. Indeed, Halbrook’s 1998 book Freedmen, The Fourteenth Amendment, and the Right to Bear Arms laid the foundation for the Supreme Court’s ultimate holding in McDonald that the Second Amendment was incorporated against the States by the Fourteenth Amendment. As one federal court has recognized, Halbrook thus possesses both “extensive knowledge of the historical underpinnings of the Second Amendment and practical knowledge of litigating in this rapidly evolving area of law.”
Perhaps most important is the fact that Halbrook’s conclusions concerning the Second Amendment’s historical meaning (1) are consistent with the Supreme Court’s binding interpretation of the Amendment in Heller, and (2) have remained consistent over the course of his career. In contrast, the historical account proffered by anti-Second-Amendment scholarship has been forced to repeatedly morph, lurch, and jerk its way through American history in various attempts to engage in revisionist reasoning—arguing first that the Amendment protects only “collective rights”; next, that it protects an individual right that was strictly conditioned on militia service; then asserting that even if it protects an individual right of armed self-defense, it is limited to the home; and finally asserting that states have virtually unlimited power to do what they will to gun owners via regulation. With the terms of the argument changing so frequently, it is difficult not to suspect that such “scholarship” is motivated more by anti-gun political positions than by a genuine desire for historical knowledge. Not so with Stephen Halbrook; his interpretation of the right to keep and bear arms has remained consistent from the beginning.
As Halbrook’s latest paper shows, the evidence is overwhelming that the Second Amendment protects a right to armed self-defense outside the home. Begin with the language of the Amendment itself: “Textually,” Halbrook explains, “the right to keep and bear arms is no more restricted to the home than are the First Amendment rights” to religion, speech, assembly, and petition. “When a provision of the Bill of Rights is restricted to a house, it says so.” The Third Amendment references a singular “house” and the Fourth Amendment references plural “houses.” No such reference exists in the Second Amendment. That is also established, Halbrook notes, by the separate protection of the rights to keep and bear arms: “If the framers meant to protect nothing more than keeping arms in the home, there would have been no point in including a right to bear arms.” And finally, the text also unequivocally condemns the efforts by a minority of outlier States to confine this right to a favored, elite subset of the people—those who have a “good reason” to bear arms. Where the Bill of Rights safeguards certain rights to “the people,” those rights “extend to the people at large and may not be denied or disparaged to all except an elite chosen by government.” Many of these textual arguments have been advanced before, but Halbrook’s paper provides the invaluable service of presenting them, crisply and accessibly, all in a single place—making it an important resource, I hope, for attorneys, scholars, and judges considering these questions.
Perhaps the most valuable contribution of Halbrook’s paper, however, is its concise but detailed discussion of the history of pre-Revolutionary English law concerning the right to bear arms. Anti-Second-Amendment activists have attempted to show that the historical understanding of the right in England—and in particular, the 1328 Statute of Northampton—shows that the right does not extend outside the home. As Halbrook puts the point, these activists have thus maintained that a “decree of a monarch, written three-quarters of a century before Chaucer’s Canterbury Tales, supersedes the explicit language of the Second Amendment.” Halbrook completely destroys this argument, thoroughly tracing how (1) the English judicial precedent interpreting Northampton—including the leading decision in Sir John Knight’s Case—(2) the legislative exposition of the Statute offered in 18th- and 19th-century Parliamentary debates, and (3) the interpretation articulated by leading English commentators such as Blackstone and William Hawkins, all unanimously and unambiguously show that English law limited the carrying of firearms for self-defense only when it was done with “malo animo,” a specific intent to do violence or terrorize.
Finally, Halbrook’s paper offers a thorough and enlightening look at the early-American understanding of the Second Amendment up to the Civil War. Among other insights, Halbrook demonstrates (1) that pre- and post-Revolutionary Americans hewed to the same, limited understanding of the Statute of Northampton as their English forebears; (2) that the small number of nineteenth-century statutes regulating the concealed carry of firearms were uniformly understood to allow the peaceable, open carry of arms; and (3) that current efforts at restricting that right in fact continue a dark legacy of suppressing slaves and free African-Americans from engaging in armed self-defense based on the same misguided public safety concerns that are cited today.
The collective weight of the textual and historical arguments marshalled by Halbrook is in fact so great that it should, I submit, place a heavy burden on those who argue for a revisionist understanding of the Second Amendment—one that effectively limits the right to bear arms to the home. Given the explicit text guaranteeing “the right of the people” to “bear arms,” anyone offering a non-literal, contrary reading that denies any right to carry firearms in public should bear a heavy burden of persuasion. Similarly, Halbrook’s historical research demonstrates that the Founders deemed the right to carry arms as evident as the air they breathed. Justice Kennedy recognized this in the Heller oral argument, Halbrook points out, when he noted “the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies.” And it was taken as a given in 1775 when at Concord “the embattled farmers stood / And fired the shot heard round the world.” Indeed, the “shot heard round the world” involved private arms used outside on a public green in Massachusetts; it was not fired in a colonial living room.
The debate over the right to carry is simply not a close call, at least not through an originalist’s lens. Arguing that the Second Amendment does not protect this right is equivalent to arguing that the First Amendment freedoms of speech and press leave the government free to require anyone who wishes to opine on politics to first obtain a license to speak or publish.
Unfortunately, scholars—and some courts—have thus far not appreciated the weight of the evidence establishing the right to carry. A well-funded cottage industry supporting the anti-Second-Amendment lobby has sought to denigrate the Second Amendment at every turn—with familiar anti-Second-Amendment arguments that “the people” protected by the Amendment are limited to a government-approved elite, that the “right” is in fact a privilege contingent on government dispensation, that to “bear Arms” is a National Guard activity, and that a flat ban prohibiting ordinary citizens from carrying firearms for self-defense is not “infringement.” And willful judges, in open revolt against Heller and McDonald, apply what Halbrook aptly characterizes as “a limbo-like version of intermediate scrutiny . . . asking how low the standard can go.” (The answer, unfortunately, is very low indeed.) Hopefully, Halbrook’s paper will serve as a jarring reminder of just how contrary all of these arguments are to the Second Amendment’s unambiguous text and history.
Such a reminder has never been needed more. The coronavirus has brought a war of a different type to our shores. Today, unlike any other time in our history, a large and growing percentage of the American people are voting with their pocketbooks (and feet) in favor of gun rights. Many Americans—including those who previously supported gun control—are quickly realizing the importance of the rights secured by the Second Amendment. Across the nation, the resources of police forces are straining to the breaking point, hundreds of police officers are themselves succumbing to the virus, all with the result that officials are publicly stating that the police can no longer respond to all emergency calls. Indeed, many states are taking the extraordinary step of releasing inmates into the public by the thousands. Individuals are beginning to understand that they cannot count on the government or their local police department to protect them—that they are, in fact, their own first responders—and faced with that realization, in record numbers they have made the decision to acquire a firearm. Shopping lists across the country, in addition to including toilet paper, hand sanitizer, and canned goods, now suddenly list firearms at the top.
Make no mistake: these developments are not confined to the so-called “Red States” long viewed as havens for pro-Second-Amendment views. Even in the “Blue States,” people are waiting in long lines to purchase firearms and ammunition from gun stores. And remarkably, the state officials even in places like Illinois, Delaware, and Connecticut now recognize that the right to purchase a firearm is “essential.” This is in addition to the United States Department of Homeland Security’s recent declaration that the “operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” are essential services.
An early “prohibition movement” to ban guns lost steam after Pearl Harbor was attacked in 1941, prompting Americans to recognize anew the critical importance of the right to keep and bear firearms for self-protection. The malicious attack of the coronavirus appears to be having a similar effect, prompting law-abiding citizens to realize the need for self-protection in times of social upheaval and breakdown. It is unfortunate that it took a tragedy as extreme as the coronavirus to wake America up to the importance of its cherished constitutional rights. But now more than ever, in the midst of the tragedy, America stands to benefit from scholarship, like Stephen Halbrook’s, reminding us that the constitutional rights enshrined by the Framers in our basic charter are a precious legacy designed to get Americans through times of crisis as well as times of prosperity.