Second Amendment Limitations – The Heller Safe Harbor

Second Amendment Limitations – The Heller Safe Harbor
By U.S. Government [Public domain], via Wikimedia Commons

Second Amendment Limitations – The Heller Safe Harbor

Glenn Harlan Reynolds

University of Tennessee College of Law

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November 4, 2015

Georgetown Journal of Law & Public Policy, Forthcoming


This paper looks at recent cases that suggest that the so-called “Heller Safe Harbor,” allowing limitations on gun ownership and possession in some circumstances, is facing additional scrutiny from lower courts, with previously accepted gun restrictions being struck down or limited. It also looks at future changes in limitations on Second Amendment Rights. Paper presented at a Georgetown Law School symposium in November, 2015, to be published in the Georgetown Journal of Law and Public Policy.

Second Amendment Limitations – Introduction

The topic of “Second Amendment Limitations” might seem to be, in our President’s frequently-used phrase, on the wrong side of history. The trend over the past couple of decades, after all, has been the expansion, not the limitation of Second Amendment rights. Nonetheless, the Second Amendment, like all provisions of the Bill of Rights, is not unlimited in its protections. Though the shape and extent of the Second Amendment’s limits is still being defined by courts and, perhaps significantly, by legislatures -I hope to offer a few thoughts here that may prove useful.

It seems that the greatest source of limitation in coming years is likely to be the courts. And, as Brannon Denning and I have noted in the past, there was (and to some degree remains) reason to believe that lower courts might adopt a crabbed and minimalist reading of the right to arms. As we talk about limitations on the right to keep and bear arms, two especially important categories come to mind. First, there are limitations on what kind of arms may be kept and borne: Handguns? Rifles? ”Assault Weapons?” Shotguns? Howitzers? Weapons of Mass Destruction? Second, there are limitations on who may keep and bear arms: To whom does the right apply – and, more importantly, to whom does it not apply? In this brief Essay, I will look at some judicial efforts relating to these categories, before venturing a few more general thoughts on the keeping and bearing of arms in 21St Century America.

What kind of arms?

It is a tedious affair, so late in the Second Amendment debate, to encounter individuals who believe that they have demonstrated the absurdity of a right to arms under the Constitution by raising the possibility, as a reductio ad absurdum, of private ownership of nuclear weapons. Likewise, people raise the possibility of cannon, tanks, etc. Such argumentation, however, serves mostly to illustrate the arguer’s unfamiliarity with Second Amendment scholarship.

In fact, there is surprisingly little to add to Don Kates’ treatment of this topic in his seminal article, Handgun Prohibition And The Original Meaning Of The Second Amendment, in which he wrote:

The preceding sections of this Article demonstrate that, in general, the second amendment guarantees individuals a right to “keep” weapons in the home for self defense. Several limitations on this right have already been suggested, however. First and foremost are those implicit in United States v. Miller, suggesting that the amendment protects only such arms as are (1) “of the kind in common use” among law-abiding people and (2) provably “part of the ordinary military equipment” today. The analysis presented throughout this Article indicates that the “ordinary military equipment” criterion is infected by Miller’s conceptually flawed concentration on the amendment’s militia purpose, to the exclusion of its other objectives. Decisions recognizing that concerns for individual self-protection and for law enforcement also underlie right to arms guarantees involve at once greater historical fidelity and more rigorous limitation upon the kinds of arms protected. These decisions suggest that only such arms as have utility for all three purposes and are lineally descended from the kinds of arms the Founders knew fall within the amendment’s guarantee.

Reformulating Miller’s dual test in this way produces a triple test that anyone claiming the amendment’s protection must satisfy as to the particular weapon he owns. That weapon must provably be (1) “of the kind in common use” among law-abiding people today; (2) useful and appropriate not just for military purposes, but also for law enforcement and individual self-defense, and (3) lineally descended from the kinds of weaponry known to the Founders.

This triple test resolves the ad absurdum and ad horribilus results (to which Miller’s sketchy and flawed militia-centric discussion greatly contributed) sometimes viewed as flowing from an individual right interpretation of the amendment._ Handguns, for example, clearly fall within the amendment’s protection. That handguns are per se “in common use” among law-abiding people and combine utility for civilian, police and military activities is not only provable but judicially noticeable. . . . Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. Moreover, many of them may not be lineally descended from the kinds of weapons known to the Founders.

In addition to the tripartite test, two further limiting principles would tend to exclude the sophisticated military technology of mass destruction-or, indeed, anything beyond ordinary small arms-from the amendment’s protection. First, since the text refers to arms that the individual can “keep and bear,” weapons too heavy or bulky for the ordinary person to carry are apparently not contemplated. Second, according to Blackstone and Hawkins, the common-law right did not extend to “dangerous or unusual weapons” whose mere possession or exhibition “are apt to terrify the people.’’ Naturally, it would terrify the citizenry for unauthorized individuals to possess weapons that could not realistically be used even in self-defense without endangering innocent people in adjacent areas or buildings.

I apologize for this lengthy quotation, but include it to demonstrate that Kates’ 1983 analysis makes clear that the ”right to own an atomic bomb” objection is neither new nor well founded. One might argue that the Supreme Court’s emphasis on self-defense, rather than collective protection against tyranny, supports a somewhat less militia-centric view of protected weaponry, perhaps including non-lethal weapons, but the basic outlines of Kates’ analysis survive: The Second Amendment supports individual weapons of a type that is in common use among the citizenry, but not weapons that are too big to be borne by an individual, or weapons that, even when used properly, would unnecessarily endanger the surrounding community.

One somewhat novel limitation, suggested by Judge Frank Easterbrook in the Seventh Circuit’s opinion in Friedman v. City of Highland Park, Illinois,4 involves reading the above as ”endanger the surrounding community’s peace of mind.” As evidence that Highland Park’s municipal assault weapon ban furthered a substantial governmental purpose, Easterbrook wrote:

If it has no other effect, Highland Park’s ordinance may increase the public’s sense of safety. Mass shootings are rare, but they are highly salient, and people tend to overestimate the likelihood of salient events. If a ban on semiautomatic guns and large-capacity magazines reduces the perceived risk from a mass shooting, and makes the public feel safter as a result, that’s a substantial benefit.

See full PDF below.

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