The home is an institution that has long shaped the right to arm for self-defense.172 Although not textually specified in the Second
Amendment, the history of self-defense and firearms has centered on
169. See Darrell A.H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights, 86 N.Y.U.L.REV. 887, 954–57 (2011).
170. There is no doubt that this unorganized militia exists. Heller points to its existence as supporting a personal right to arms and 10 U.S.C. § 311(b)(2) identifies it as “members of the militia who are not members of the National Guard or the Naval Militia.” 10 U.S.C. § 311(b)(2) (2012). For a discussion of Wallace’s plans to use such a militia, see DAN T.CARTER,THE POLITICS OF RAGE 113 (2d ed. 2000). See also H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate,76 CHI.-KENT L.REV. 403, 546 (2000) (discussing the militia’s history and the distinction between an organized and unorganized militia).
171. See 10 U.S.C. § 802; 53A AM.JUR.2D MILITARY AND CIVIL DEFENSE § 242 (2006). 172. See generally Darrell A.H. Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 COLUM.L.REV. 1278 (2009) (making this argument).
confrontation within the home.173 The result is to give institutional
shape to what the naked right to “bear” arms for “self-preservation” can mean.
Although the Second Amendment does not mention the home, there is an ancient cultural and constitutional recognition of the home as a special place of refuge and sanctuary. Whether that institutional sensitivity is represented through the Third or Fourth Amendment text,174 through due process protections of property, privacy, or
family,175
or through the increased protections in the home for (and from) speech,176 the home is salient in constitutional jurisprudence.
Anglo-American common law and culture has long recognized the home as an institution that maximizes self-defense and autonomy. For example, even though English law generally disarmed Catholics in the seventeenth century, they were permitted to keep arms in their homes necessary for self-defense as allowed by the Justices of the Peace.177
Confederate officers, freshly defeated by Union troops, could take their private side-arms home.178 And the common law has long
recognized the “castle doctrine” which provides that no one must flee from his home before using force against an intruder in self-defense.179
Early proposed regulations on the carrying of weapons during the colonial era recognized the home as a demarcation. One bill made it a crime for poachers to carry arms outside one’s own property unless performing military duty.180 During Reconstruction, Congress’s source
173. District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008) (focusing the Second Amendment inquiry on self-defense in the home).
174. U.S.CONST.amends. III, IV.
175. Seeid.amends. V, XIV; Griswold v. Connecticut, 381 U.S. 479, 495 (1965).
176. City of Ladue v. Gilleo, 512 U.S. 43, 54–59 (1994) (observing a difference between the government interest in regulating signage in public streets as opposed to homes); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (concluding that obscene materials are constitutionally protected in the home); see also Frisby v. Schultz, 487 U.S. 474, 487–88 (1988) (upholding an ordinance that prohibited picketing outside an individual’s residence).
177. Miller, supra note 172, at 1324.
178. See MATTHEW S.MUEHLBAUER &DAVID J.ULBRICH,WAYS OF WAR:AMERICAN MILITARY HISTORY FROM THE COLONIAL ERA TO THE TWENTY-FIRST CENTURY 247 (2013). 179. People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914).
180. The bill stated:
[W]ithin twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him a new, and every such bearing of a gun shall be a breach of the new recognizance.
of indignation was that the Ku Klux Klan was breaking into freedmen’s homes and disarming them,181 not necessarily that the government
regulation forbade whites and blacks alike from publicly bearing arms.182
Judicial sensitivity to the home as an institutional focus of the Second Amendment is not itself an answer to the question of whether the right is home-bound. However, to the extent that the judiciary must maintain a certain configuration of institutional arrangements, as opposed to merely maximizing self-defense or minimizing armed mayhem, a focus on the institutional aspects of the home does nudge the judiciary along a more productive line of analysis.
In litigation, courts may continue to ensure the home is a unique setting for facilitating Second Amendment activity. This may lead to increased justifications for regulations that interfere with self- defensive protections in the home and correspondingly lesser protections for activity outside the home. One result? Weapons that are uniquely capable of safely protecting homes may enjoy more constitutional protection than weapons that are less suitable for home protection.