Our reading of the Second Amendment is akin to the
Seventh Circuit’s interpretation in Moore, 702 F.3d at 936–42,20 and at odds with
the approach of the Second, Third, and Fourth Circuits in Drake, 724 F.3d at
431–35, Woollard, 712 F.3d at 876, and Kachalsky, 701 F.3d at 89, 97–99.
a
We are unpersuaded by the decisions of the Second, Third, and Fourth
Circuits for several reasons. First, contrary to the approach in Heller, all three
courts declined to undertake a complete historical analysis of the scope and nature
of the Second Amendment right outside the home. Compare Heller, 554 U.S. at
605 (examining the post-ratification interpretations of the Second Amendment
because “the public understanding of a legal text in the period after its enactment
or ratification” is “a critical tool of constitutional interpretation” (emphasis
omitted)), with Drake, 724 F.3d at 431 (noting that the court was “not inclined to
address [text, history, tradition and precedent] by engaging in a round of fullblown
historical analysis” and relying on the Second Circuit’s conclusion that
“[h]istory and tradition do not speak with one voice” (quoting Kachalsky, 701 F.3dat 91)); Woollard, 712 F.3d at 874–76 (declining to “impart a definitive ruling”
regarding the scope of the Second Amendment right), and Kachalsky, 701 F.
3d at 91 (refusing to look at “highly ambiguous history and tradition to determine the
meaning of the Amendment”). As a result, they misapprehend both the nature of
the Second Amendment right and the implications of state laws that prevent the
vast majority of responsible, law-abiding citizens from carrying in public for
lawful self-defense purposes.
For example, in Kachalsky, the Second Circuit’s perfunctory glance at the
plaintiffs’ historical argument misunderstood the historical consensus regarding the
right to bear arms outside the home. Relying on three cases, the court concluded
that “history and tradition [did] not speak with one voice” regarding the ability to
restrict public carry because at least three states “read restrictions on the public
carrying of weapons as entirely consistent with constitutional protections.”
Kachalsky, 701 F.3d at 90–91 (citing Fife v. State, 31 Ark. 455 (1876), English, 35
Tex. at 473, and Andrews v. State, 50 Tenn. 165 (1871)). But in its brief historical
analysis, the court missed a critical factor: the cases it cites in favor of broad public
carry restrictions adhere to a view of the Second Amendment that is and always
has been incorrect. Cf. Moore, 702 F.3d at 941 (referencing “disagreement . . .
with some of the historical analysis in [Kachalsky because] we regard the historical
65 issues as settled in Heller”). All three cases interpret the Second Amendment as a
militia-based (rather than a self-defense-centered) right; they uphold regulations on
carrying pistols in public because pistols are not the type of weapons that would be
used by militia men. See Fife, 31 Ark. at 461 (upholding a prohibition against
carrying pistols in public because such weapons are “used in private quarrels and
brawls” and are not “effective as a weapon of war, and useful and necessary for
‘the common defense’”); English, 35 Tex. at 475 (“[W]e shall be led to the
conclusion that the [Second Amendment] protects only the right to ‘keep’ such
‘arms’ as are used for purposes of war, in distinction from those which are
employed in quarrels and broils, and fights between maddened individuals . . . .”);
Andrews, 50 Tenn. at 186–87 (affirming the constitutionality of a law regulating
public carry of certain weapons which were not the “usual equipment of the
soldier” but remanding for consideration of whether a revolver was the “character
of weapon” used in warfare).
Because the Second Amendment has always been an individual right to
defend oneself, cases that—like these—uphold gun regulations because they do not offend the militia-based nature of the right are inapposite and should not factor into
a historical analysis of the right’s scope. See, e.g., Heller, 554 U.S. at 605. And
with these cases off the table, the remaining cases speak with one voice: states may
not destroy the right to bear arms in public under the guise of regulating it. See,
e.g., Kachalsky, 701 F.3d at 90 (recognizing that some state courts “offered
interpretations of the Second Amendment” consistent with the plaintiffs’ position
that “though a state may regulate open or concealed carrying of handguns, it cannot
ban both”); see also Drake, 724 F.3d at 449 (Hardiman, J., dissenting) (noting that
the “crux of the[] historical precedents[] endorsed by the Supreme Court, is that a
prohibition against both open and concealed carry without a permit is different in
kind, not merely in degree, from a prohibition covering only one type of carry”).
In light of Heller, the Second Circuit erred in outright rejecting history and tradition as unhelpful and ambiguous, and the Third and Fourth Circuits erred in
following suit.
