by Michael C. Dorf
My professional interest in the Second Amendment case the Supreme Court recently added to its docket concerns the question whether there are textual, historical, doctrinal, pragmatic, or other grounds for distinguishing between firearms possession in the home--protected by the Court's 2008 and 2010 decisions declaring the Second Amendment an individual right--and firearms possession outside the home. In a symposium article in 2008, I suggested that the answer is probably not but that the matter is not free from doubt. I offered a number of means by which the Court, if it so wished, could limit the right to the home. The following year, Prof Darrell Miller wrote a longer article that gestured in the same direction.
I very much hope that the Supreme Court accepts the suggestion offered by Professor Miller and me, but I'm not optimistic. I suspect that the Court will find at least some right to carry firearms in public--either concealed or openly--sufficient to invalidate restrictions like those at issue in the new case from New York and similar ones in other parts of the country. My home state forbids open carriage but issues concealed-carry permits to those in specific high-risk jobs or to others who can demonstrate "proper cause." I fear that the Justices will endanger millions of Americans who live in places that have made the decision to restrict firearms in this way by declaring such laws invalid and holding that states must presumptively permit competent adults to carry firearms in public (with exceptions only for the likes of "felons and the mentally ill" as recognized in the Heller case).
I turn now to how a general constitutional right to possess firearms in public could interact with policing. The short version is "not well."
In July 2016, police officer Jeronimo Yanez shot and killed civilian Philando Castile after Castile told Yanez during the course of a traffic stop that he, Castile, had a gun. Castile was legally entitled to possess the gun. Indeed, he told Yanzez about the gun so as not to worry him. But as Yanez told investigators and the jury that ultimately acquitted him of manslaughter and two other charges, the incident unfolded so quickly that the legal status of Castile's gun didn't register. Yanez said he feared for his life.
Whatever one thinks about the verdict in the Yanez case, widespread possession of firearms makes incidents like the killing of Castile more likely. Yes, there are occasionally cases like the murder of George Floyd, in which a sadistic police officer deliberately attacks a defenseless civilian. But most police killings (and woundings) of civilians occur when police respond to what they perceive as a threat to their own safety. Sometimes, of course, civilians actually do threaten the safety of police officers or others, making the use of force, even deadly force, justified. However, too often police who use deadly force out of fear for their safety could have avoided doing so without risking their own safety.
How so? One idea--floated by Prof Sherry Colb in a law review article twenty years ago and gaining currency again now--would reduce the number of occasions for potentially deadly police-civilian interactions by limiting the opportunities for traffic stops. Similar proposals around other sorts of potential encounters--for example, by using social workers rather than police for health-and-safety checks--would likewise reduce the number of other opportunities for such conflicts.
That said, so long as there is crime, there will be encounters between police and civilians. And so long as police have reason to think that the civilians with whom they have adversarial encounters are carrying firearms, the police will fear for their own safety and thus be quick to pull the trigger on their own guns.
Thus, we see how a federal constitutional right of the public to carry firearms could lead to more fatal police-civilian interactions. If carrying an unlicensed firearm subjects someone to the substantial risk of a prison sentence, fewer people will be armed--legally or illegally--than if there is a constitutional right to carry a gun in public. And so, under the regime that the Supreme Court may be poised to impose on the nation, every time the police interact with a civilian, the police are a bit more likely to fear for their lives and use deadly force.
To be sure, even in jurisdictions that restrict public carriage, police already mostly assume that the civilians with whom they interact are armed and dangerous. As Prof Rosa Brooks writes in her fascinating memoir Tangled Up in Blue, "[t]he chief lesson learned at the [police] academy was this: Anyone can kill you at any time." [p. 79]. So long as police departments tell their officers to assume the worst about civilians, the officers will do so.
Yet that doesn't mean that the prevalence of armed civilians won't make a difference. Rookie cops on their first assignments will be guided mostly by what they've been taught, but with experience will come real-life lessons. And therefore, a judicially mandated increase in the percentage of armed civilians will translate into increased fear by police.
Against all of that, one might say that the police mostly fear "bad guys" with guns, who will have guns regardless of the law. And there is some truth to that claim--but only some. Again, if most people cannot lawfully carry guns in public, and if penalties for possession of an unlicensed firearm are substantial, then even "bad guys" will tend to go out unarmed on most occasions, to avoid being busted for something minor only to end up facing a substantial prison sentence for the gun possession.
Finally, I have focused here on the surely unintended and undesirable impact that a right to public carriage would have on police-civilian interactions, but of course it could have a likewise undesirable impact on civilian-civilian interactions. Given the many variables, the data we do have on the impact of public carriage on violent crime are inconclusive. In a rational world, that would lead a modest Supreme Court to leave to the political process--which hardly denies proponents of gun rights opportunities to make their voices heard--the decision whether to permit widespread public carriage. Alas, we do not live in that world. Accordingly, I expect our immodest Supreme Court to invoke some version of textualism and originalism as a basis for placing the burden of persuasion on those who would limit public carriage and to say that burden has not been met. I hope but do not expect to be proven wrong.