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09/27/2017

Mark Frassetto: The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism
Michael Ramsey

Mark Anthony Frassetto (Everytown for Gun Safety) has posted The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism on SSRN. Here is the abstract:

In the aftermath of District of Columbia v. Heller, 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. This article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia’s public carry law in the 1890s. These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment “codified venerable, widely understood liberties.” 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, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations.

I have some doubts about the relevance of debates from the 1890s on the original meaning of the Fourteenth Amendment.  But I have become a little less doubtful after studying Justice Scalia's originalist methodology, which gave more weight to distant post-ratification evidence than one might expect (see here).