Jonathan Meltzer abstract. In the aftermath of District of Columbia v. Heller
and McDonald v. City of Chicago
, the most important frontier for defining the scope of the Second Amendment is the right to carry weapons outside the home. Lower courts have disagreed on the proper approach for resolving this issue, how to read the Supreme Court precedent, and the extent of the right protected by the Second Amendment. Not surprisingly, they have reached significantly different results. This Note argues that Heller
leave little doubt that courts should engage in a historical analysis when examining the right to carry. Such a historical examination—guided by the sources, methodology, and logic of Heller
—yields two important conclusions: (1) the Second Amendment guarantees a right to carry outside the home, and (2) it guarantees only a right to carry openly. While much of the history examined by the Supreme Court gives little indication of early understandings of the right to carry, the one set of sources consulted by the Court that speaks unequivocally on the right to carry—antebellum state supreme court cases—suggests that only the open carry of weapons is protected. This conclusion, not yet advanced in the scholarship, differs from arguments by many advocates of gun control, which suggest that there should be no right to carry outside the home, and those suggested by many advocates of gun rights, which would allow states to choose between open and concealed carry, as long as one is guaranteed. Either of those results, while perhaps more practical for twenty-first century Americans, would be inconsistent with Heller
’s approach and with the sources on which it relies. Instead, a faithful reading of Heller
requires constitutionally protected open carry, and, strangely enough, a nineteenth-century conception of the right to carry weapons.
author. Yale Law School, J.D. 2013; Law Clerk, J. Harvie Wilkinson III, United States Court of Appeals for the Fourth Circuit. I am particularly indebted to Kate Stith for her thoughtful and patient stewardship of this project for many months. I would also like to thank Aneil Kovvali, Daniel Meltzer, Josh Meltzer, Tracy Nowski, Ellen Semonoff, and Connor Sullivan for helpful insights and suggestions. The editors of the Yale Law Journal
offered many important comments and recommendations that improved this Note immensely, and for which I am very grateful. James Dawson in particular was an indispensable partner and Lead Editor throughout. All errors are my own.