Please read TDF 68 for the background of this prediction.
PREDICTION: SCOTUS will use the facts laid out in TDF 68 (below) to say that "bear" (off property) in 2A refers to long journeys and certain specific circumstances in Common Law--e.g., process serving, following hue and cry, etc., but not toodling around town. Back in the day, even going to the next town was a "long journey," so in terms of geography, city travel was the exception.
In TDF 68, I laid out argumentation to save local CCW. It is unknown whether such ideas will impact SCOTUS before or after packing, but it seems likely that libertarians and purists will block it from being pushed by the good guys.
THE DAILY FUDD: E68: "'Shut up, libertarians & purists. We can actually win on CCW permits,' or 'Why I don't use the term "constitutional carry."'"
FOLKS, TAKE THIS SERIOUSLY. CALLING FOR POLICIES THAT WILL NEVER BE ADOPTED DOES NOTHING TO HELP THE SITUATION.
Settlement of the English colonies in North America made BEARING a much larger part of the Anglo Common Law Right to Arms. In the Old Country, the right in terms had largely focused on one's home (e.g., the 1688/89 English Right to Arms provision being interpreted as a blunderbuss in a peasant's home to ward off burglars). Long-distance traveling in the colonies sometimes involved being armed being legally required. But local carry around your "familiar haunts," as Arkansas courts would later describe them, was seen as subject to regulation. Texas as well regulated handgun possession when not "traveling"--defined by Texas authorities to me personally circa 2000 as crossing three county lines and staying overnight. Such prerogative for regulation will likely carry over in post-Heller 2A and 14A jurisprudence, meaning that while such local carry would ultimately be protected, some localized regulation--such as a Shall-Issue permit with non-egregious and equitable prerequisites--would stand as a long-standing element within that constitutional concept.
TIER 2: Regarding "familiar haunts" and such: Back in the day, long-distance travel was more of a hassle, and more of a danger, hence the right--sometimes even requirement--to be armed while doing so. Once one arrived at a locale, one often would deliver their arms to an appointed place, conduct their business, and then retrieve their arms as they left town. Communities were generally considered relatively safe, as people were generally better and locals had arms in their homes and businesses, and thus could deter and defend visitors against criminality.
Today, we live in a more urbanized setting, but one where often our "familiar haunts" don't include parts of the buildings in which we live. We simply don't know our neighbors the way we once did. Travel within a community is more extensive than some inter-community travel back in the day. And what would qualify as "familiar haunts" can readily be in far more diverse and separated locations. (Un-PC point: In addition, criminality is more rampant due to our more cosmopolitan settings.)
So today, the arguments back in the day deprecating local carry versus travel carry hold less water. Putting 2A matters under strict scrutiny, it should thus be notably harder to justify heavy regulation. Today we have stories of women raped in their own apartment buildings, whereas a century ago a rape in New York's Central Park would have been almost unheard of. Local travel--be it "familiar haunts" or within a community one is visiting--has lost its safer character. (Interestingly, Texas eliminated some restrictions on local carry by declaring in statute that a person is to be presumed "traveling" if found armed.) Quite frankly, today "local" carries the same "right of self-defense" call for carry as long-distance travel.
CONCLUSION: 2A with 14A should be recognized as indeed protecting both local and travel carry. Within that RKBA tradition, communities have the prerogative for limited regulations on local carry-- such as concealed versus open carry, non-egregious permits and requirements, discharge outside of recognized gun ranges, and some specific locations (though an argument could be made that such locations need to offer a "gun check" service, much like hats and coats back in the day).
The term, "constitutional carry" is at best premature, and politically self-endangering. While libertarians are so used to losing politically that they don't care about the community impact of either their policy ideas or the defeat of certain policy positions, Patriots do indeed care. We ought not push for policy positions that lead to loss for those supposed to benefit from the polities--and that includes personal rights. The well-being of our communities are key to our survival and success, and our rights mean nothing if the conditions are the ground make community tranquility impossible. Plus, to demand a supposed purism that is politically destructive only aids those in opposition to such rights.
Use of this term, however sincere and well-meaning, sets the stage for consternation should jurisprudence develop in the most likely direction--the accurate one, which I described above. Does the 2A community accept a SCOTUS ruling saying such, and thereby guaranteeing general CCW? Or does it go the libertarian route, gripe a lot, and end up alienating the vast swath of the general population on the matter, leading to its loss? Let us hope not.
Settlement of the English colonies in North America made BEARING a much larger part of the Anglo Common Law Right to Arms. In the Old Country, the right in terms had largely focused on one's home (e.g., the 1688/89 English Right to Arms provision being interpreted as a blunderbuss in a peasant's home to ward off burglars). Long-distance traveling in the colonies sometimes involved being armed being legally required. But local carry around your "familiar haunts," as Arkansas courts would later describe them, was seen as subject to regulation. Texas as well regulated handgun possession when not "traveling"--defined by Texas authorities to me personally circa 2000 as crossing three county lines and staying overnight. Such prerogative for regulation will likely carry over in post-Heller 2A and 14A jurisprudence, meaning that while such local carry would ultimately be protected, some localized regulation--such as a Shall-Issue permit with non-egregious and equitable prerequisites--would stand as a long-standing element within that constitutional concept.
TIER 2: Regarding "familiar haunts" and such: Back in the day, long-distance travel was more of a hassle, and more of a danger, hence the right--sometimes even requirement--to be armed while doing so. Once one arrived at a locale, one often would deliver their arms to an appointed place, conduct their business, and then retrieve their arms as they left town. Communities were generally considered relatively safe, as people were generally better and locals had arms in their homes and businesses, and thus could deter and defend visitors against criminality.
Today, we live in a more urbanized setting, but one where often our "familiar haunts" don't include parts of the buildings in which we live. We simply don't know our neighbors the way we once did. Travel within a community is more extensive than some inter-community travel back in the day. And what would qualify as "familiar haunts" can readily be in far more diverse and separated locations. (Un-PC point: In addition, criminality is more rampant due to our more cosmopolitan settings.)
So today, the arguments back in the day deprecating local carry versus travel carry hold less water. Putting 2A matters under strict scrutiny, it should thus be notably harder to justify heavy regulation. Today we have stories of women raped in their own apartment buildings, whereas a century ago a rape in New York's Central Park would have been almost unheard of. Local travel--be it "familiar haunts" or within a community one is visiting--has lost its safer character. (Interestingly, Texas eliminated some restrictions on local carry by declaring in statute that a person is to be presumed "traveling" if found armed.) Quite frankly, today "local" carries the same "right of self-defense" call for carry as long-distance travel.
CONCLUSION: 2A with 14A should be recognized as indeed protecting both local and travel carry. Within that RKBA tradition, communities have the prerogative for limited regulations on local carry-- such as concealed versus open carry, non-egregious permits and requirements, discharge outside of recognized gun ranges, and some specific locations (though an argument could be made that such locations need to offer a "gun check" service, much like hats and coats back in the day).
The term, "constitutional carry" is at best premature, and politically self-endangering. While libertarians are so used to losing politically that they don't care about the community impact of either their policy ideas or the defeat of certain policy positions, Patriots do indeed care. We ought not push for policy positions that lead to loss for those supposed to benefit from the polities--and that includes personal rights. The well-being of our communities are key to our survival and success, and our rights mean nothing if the conditions are the ground make community tranquility impossible. Plus, to demand a supposed purism that is politically destructive only aids those in opposition to such rights.
Use of this term, however sincere and well-meaning, sets the stage for consternation should jurisprudence develop in the most likely direction--the accurate one, which I described above. Does the 2A community accept a SCOTUS ruling saying such, and thereby guaranteeing general CCW? Or does it go the libertarian route, gripe a lot, and end up alienating the vast swath of the general population on the matter, leading to its loss? Let us hope not.
Our heritage--including our traditional rights--includes community authority. In regard to RKBA, local carry has for centuries been an area where such authority has notably ranked, even with State constitutional guarantees. Even as slander prohibitions are within "freedom of speech," history shows--for better or worse--that carry regulations are within historic RKBA.
The Constitution is not libertarian, and neither is our Common Law tradition. I personally would love to see CCW--and some very particular open carry--as much a a part of our social order as neckties on men (which I'd actually like to see banned as torture devices) and boob accentuation on women (yes, I'm a pig). But let us not push our preferences or personal visions at the expense of the functional purposes of whatever tradition, convention, or constitutional right might be in sight.
RKBA and CCW have their function. Let us work for and preserve THAT.
TDF INDEX: Cats, Guns, and National Security: THE DAILY FUDD index. https://catsgunsandnationalsecurity.blogspot.com/2021/03/the-daily-fudd-index.html
The Constitution is not libertarian, and neither is our Common Law tradition. I personally would love to see CCW--and some very particular open carry--as much a a part of our social order as neckties on men (which I'd actually like to see banned as torture devices) and boob accentuation on women (yes, I'm a pig). But let us not push our preferences or personal visions at the expense of the functional purposes of whatever tradition, convention, or constitutional right might be in sight.
RKBA and CCW have their function. Let us work for and preserve THAT.
