Heller After Ten Years*

40 Campbell L. Rev. 431 (2018)

FEBRUARY 2, 2018

Denning:          Moderator, Brannon Denning
Lowy:                Panelist, Jonathan Lowy
Reynolds:         Panelist, Glenn Harlan Reynolds
Mocsary:          Panelist, George A. Mocsary
Blocher:           Panelist, Joseph Blocher

Denning:  I’ll just briefly introduce the panelists, and then I will take the moderating privilege just to set the discussion up, including posing a few questions that I hope we could come back to once everybody has made their presentations.  So on the right, far right, is Glenn Reynolds.  He is a Brogan professor of law at the University of Tennessee and my former professor.  Then we’ve got Jonathan Lowy, the vice president for litigation at the Brady Center to Prevent Gun Violence.  George Mocsary, who is assistant professor of law at Southern Illinois University, which was where I had my first teaching gig, so it’s nice to have a Saluki in the house.  And then finally, Joseph Blocher, who is professor of law at Duke University.

So just by way of discussion, I think one of the most interesting shifts in firearm policy over the last three-plus decades has been this transition from either prohibitions on the carrying of concealed weapons, or, where it was allowed, from a may-issue regime—that is to say officials would have discretion whether or not to grant you a license to carry a concealed weapon—to a must-issue regime.  And, as of now, the vast majority of states have adopted must-issue laws for concealed carry permits.  I think it’s over forty and maybe as many as forty-four or forty-five states.  Somebody on the panel more knowledgeable can probably verify that.

In addition, you have begun to get a movement for public carry.  Now, in the old days, in the nineteenth century, culture read open and concealed carry 180 degrees differently than we do today.  Many of the prohibitions, the rationales given for prohibitions on concealed carry, had to do with the fact that if you were going to go armed, you had an obligation to put everybody on notice.  If you were strapped, you ought to have the sort of courage or be transparent about it, as opposed to people with concealed weapons who were sort of card sharks, and carpetbaggers, and other people of no repute.

Now that it’s become the reverse so that open-carry—if you’re wearing a gun on your hip, carrying a rifle in public, whatever, that that’s viewed as very provocative and very aggressive.  Whereas, if you’re going to carry a gun, do the rest of us a favor and not flaunt it.  And so I’d be interested to hear any thoughts that anybody had on that sort of cultural shift.

As to concealed carry, courts have been very reluctant to read Heller to require state and local governments to adopt a shall-issue regime.1  In fact, it’s still a relatively open question whether Heller extends beyond the four walls of the home.  And this matters only in a few states; only in the few states that happen to have populations that are located close to a city, huge urban populations, which, to generalize, may favor more gun control.  And then, in some cases, we’ll have rural populations which are very much interested in being able to have a concealed carry permit and the like.  So in these sort of outlier states, this is still an issue.

Interestingly, this is sort of a departure for the courts.  The Supreme Court in particular, when it comes to fundamental rights, it sometimes has a habit of waiting until there are just a few outlier states that prohibit certain conduct, and then they’ll just constitutionalize it.  You saw this in Lawrence with sodomy statutes.2  There were just a handful left.  And, in fact, gay marriage as well.  And I heard Sandy Levinson, a professor at Texas, give a talk in 1998, where he predicted that by 2010 or 2015 that there would only be a handful of states that had outlawed—that still banned same-sex marriage, and at that point the court would jump in and constitutionalize the issue, and just apply the rule to these outliers.  And it’s interesting that there is a slightly different dynamic going on here.

So before I turn it over to the panelists, I wanted to pose a few questions that I hope either get addressed in the remarks or we could come back to following the presentation.  So, number one, is this history that I described, this historical prohibition of concealed carry, is it a problem for the current litigation or the current litigants?  In other words, is it too easy for courts to just say, “Look, there is a long tradition of banning concealed carry, and therefore the framers of the Fourteenth Amendment and the framers of Second Amendment understood this, and took it into account when they drafted those amendments”?

The second point is, given the success of the concealed carry movement in most states, is this something that could be safely left to the political process?  In other words, is this an area where the judiciary needs to become involved?  And to the extent the courts perceive it as not, is that driving some of the judicial reluctance to constitutionalize this issue as opposed to leaving it largely as a policy matter?

And finally—I’m throwing Joseph a softball here—can you make the argument that the retention of concealed carry bans or—may-issue regimes in states is simply an example of a kind of firearms localism that we ought to value?  In other words, that if people in California, by and large, don’t want to give their officials discretion to issue licenses or not, and a majority of them are happy, is that a policy choice that we should respect, and not expect the courts to jump in and disrupt?  So, with that, I will turn it over, and we will start with Glenn.

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