Article by:
Mark Anthony Frassetto*

40 Campbell L. Rev. 335 (2018)


In the aftermath of District of Columbia v. Heller,1 in which the Supreme Court struck down the District of Columbia’s handgun ban and found an individual right to keep and bear arms under the Second Amendment, a prominent issue remains unresolved: whether or to what extent the Second Amendment protects an individual right to keep and bear arms outside of the home—often referred to as the right to “public carry.”  This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding another D.C. firearm law—the regulation of public carry—in the 1890s.

Since Heller, three public carry-related issues have arisen in Second Amendment litigation: (1) whether the Second Amendment protects a right to carry firearms in public at all; (2) whether the Second Amendment protects a right to a specific kind of carry—open (a firearm exposed to public view in a holster) or concealed; and (3) whether it is permissible to require an applicant for a concealed/open carry permit to make a showing of “good cause” or a special need for self-defense to carry a firearm in public.  The Seventh Circuit and D.C. District Court have struck down total carry bans under the Second Amendment.2 At least two courts have upheld regulations banning open carry but allowing concealed carry.3  Several federal circuit courts of appeals have upheld the constitutionality of requiring applicants for carry permits to show “good cause” or a “special need” to carry a firearm, with the D.C. Circuit being an important outlier.4  The Supreme Court has yet to weigh in on any of these regulations.5

With minimal guidance provided by the Supreme Court, the circuit courts have generally coalesced around a two-step test for laws regulating firearms.6  At step one, a court analyzes whether the challenged law falls within the scope of the Second Amendment based primarily on the text, history, and tradition.7  This step is heavily reliant on historical case law, statutes, and treatises to make a determination whether the challenged law falls within the historical scope of the right protected by the Second Amendment.8  If a court finds that the law impinges on the right as historically understood, then at step two, some form of heightened scrutiny is applied: intermediate or strict, depending on how close the challenged law falls to the core of the right.9

Because of this methodology, the historical understanding of the right to keep and bear arms, as well as the historical scope of firearms regulation, has played a prominent role in Second Amendment litigation.  Unfortunately, this history has often been mischaracterized by gun-lobby scholars in supporting constitutional challenges to contemporary public carry regulations.  They argue that the only historical doctrinal debate surrounding the Second Amendment was whether it protected an individual right or pertained to a collectivist militia-based right—a legal debate which Heller ended.10  They also claim that public carry was historically unregulated across the country and, therefore, the individual right recognized in Heller should apply broadly outside the home.11  Historians and legal scholars have recently disputed both arguments, finding instead that founding-era state laws consistently regulated carry, while Civil War- and post-Civil War-era state laws—and views on the scope of the Second Amendment right—varied dramatically by region.

These findings are most clearly articulated by Saul Cornell and Eric Ruben in an article published in the Yale Law Journal Forum, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context.12  Cornell and Ruben argue that, during the founding era, most states adopted preexisting English law regulating the carrying of weapons, specifically the Statute of Northampton, a 1328 English law that prohibited carrying weapons in public.13  Many states adopted the Statute of Northampton in their legal codes, and it was applicable through the common law in other states.14 While there is some debate as to the scope of the prohibition under the Statute of Northampton and its progeny, no credible scholar from either side of the debate disputes that the Northampton formulation governed public carry during the period.15

By the 1830s, this national uniformity had broken down, and at least two regional traditions developed, according to Cornell and Ruben.16  The “Massachusetts model,” common in the North and Midwest, prohibited carrying firearms in public generally, with an exception for those with a specific reason to fear for their safety.17  In the Deep South, an alternative tradition developed, which allowed open carry but prohibited concealed carry.18  After the Civil War, a third tradition developed in the Western states, which prohibited carry completely in populated cities and towns but allowed carry with no restrictions in the lawless rural frontier.19  The Massachusetts model also moved into some Deep South and border states during this time period.20

The congressional debates discussed in this Article, which occurred surrounding the consideration and passage of a public carry law for the District of Columbia, further support the Cornell-Ruben position in two ways.  First, they show no national consensus existed regarding a right to public carry under the Second Amendment.  Some, especially in the Deep South, believed the Second Amendment required a broad right to open carry, others thought carry could be limited to situations where a person experienced a particular need for self-defense, and some did not believe the Second Amendment protected any individual right to carry in public at all.  Because the Supreme Court in Heller stated that the Second Amendment “codified venerable, widely understood liberties,” this lack of consensus casts doubt on the claims of gun-lobby scholars that a permissive public carry regime is constitutionally mandated.21

Second, the senators’ and congressmen’s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns.  Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right.  Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, through which the Second Amendment applies to the states, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations.22  In contrast, the Southern Democrats’ views should not be controlling, as their legal traditions were in direct opposition to the principles driving the Fourteenth Amendment.

Section I.A of this Article surveys the history of public carry regulation in the District of Columbia from its founding to 1890.  Section I.B discusses the introduction of a bill in the 51st Congress to increase the punishment for carrying a weapon in the District and the Senate debate associated with the bill.  Section I.C examines the corresponding debate in the House of Representatives.  Section I.D discusses consideration of the bill in the 52nd Congress, focusing on the debate in the Senate immediately preceding the bill’s ultimate passage.  Section I.E reviews the subsequent history of public carry regulation in the District from the 1890s to the present.  Part II analyzes what the debate and passage of the District’s 1892 public carry law can teach us about the contemporary debate surrounding the original meaning of the Second Amendment, as incorporated through the Fourteenth Amendment.

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