69 Am. U. L. Rev. F. 69 (2020).

* Junior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2021, American University, Washington College of Law; B.A. Political Science, 2016, Trinity University. I owe thanks to many for assistance in writing and shepherding this piece to publication. To the entire Law Review team, thank you for your prompt and pellucid edits. To Professor Stephen Wermiel, my faculty advisor, thank you for counseling my understanding of constitutional law; also, to Professors David Crockett and John Hermann at Trinity University, thank you for igniting my passion for clear writing and free thinking. And, finally, to my parents and fiancée, each of whom have consistently sacrificed to further my dreams and aspirations, thank you for your unwavering love and support.

The Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago affirmed that the Second Amendment protects an individual right to keep functional firearms in the home. As many commentators have predicted, these holdings prompted the question of whether the Second Amendment protects a right to carry firearms outside of the home as well. Many thought the issue had arrived when, in January 2019, the Supreme Court granted certiorari in New York State Rifle & Pistol Ass’n v. City of New York. The issue in that case is whether a New York City permitting scheme requiring permit holders to keep their firearms only in the premises listed on the license violated the Second Amendment rights of permit holders to transport firearms outside of New York City to second homes or firearms ranges.

Although the Second Amendment represents the most obvious avenue for bolstering individuals’ rights to carry firearms outside of the home, the Supreme Court’s implied fundamental rights doctrine—crystallized in Washington v. Glucksberg—provides an alternative method for protecting the carrying of firearms outside of the home in certain limited circumstances.

This Comment argues that Glucksberg recognizes an implied fundamental right to travel with lawful arms for the purpose of self-defense. Glucksberg articulated a two-prong test for recognizing implied fundamental rights. The test requires showing that the claimed right is both deeply rooted in history and tradition and described carefully so that it connects tightly with the historical record. Since at least the fourteenth century in England, a narrow right to travel with arms for self-defense has existed, and today every state either allows qualified individuals to carry a firearm absent an intent to harm others or has a state licensing scheme that permits qualified citizens to carry a firearm outside of the home. Moreover, this right bears a careful description that does not deviate from historical practices. Lower court cases show that failing to tether a claimed right closely to the history underlying the claim will fail the second prong of the Glucksberg test. However, the right to travel with arms for self-defense is formulated so that it closely tracks the historical record beginning in fourteenth century England, and it therefore adheres sufficiently close to the underlying history that it meets the careful description prong. As such, the right to travel with arms for self-defense is fundamental and belongs within the Supreme Court’s pantheon of other implied fundamental rights.