Houston, We Have a Problem: Does the Second Amendment Create a Property Right to a Specific Firearm?

By John L. Schwab & Thomas G. Sprankling

Introduction

Ever since the Supreme Court’s 2008 decision in District of Columbia v. Heller,1 lower federal courts have endeavored to answer outstanding questions about the contours of the Second Amendment right. One issue that has received scant attention, even from academic commentators, is whether the Second Amendment protects the right of an individual to own a specific weapon.2 The Fifth Circuit addressed this question in March 2012 in Houston v. City of New Orleans, although the panel that heard the case withdrew its initial decision two months later and vacated and remanded the district court’s ruling that had dismissed the defendant’s Second Amendment claims.3 While the Fifth Circuit’s original Houston decision is no longer good law, it is the best example to date of a circuit court’s attempt to grapple with whether the Second Amendment conveys a property right to a specific weapon. Consequently, this piece uses Houston as its central case study in the course of exploring the minimal existing caselaw regarding the extent to which the Second Amendment protects property ownership. All subsequent references to Houston are to the withdrawn opinion unless otherwise noted.

This piece contends that while the Houston majority and all other federal courts to consider the issue have reached the correct result (i.e., that the Second Amendment does not encompass a property right to a specific weapon), their reasoning has been brief and undertheorized. This piece will identify the gaps that exist in even the most analytically rigorous decision (the Houston majority opinion) and provide an analytical foundation to support that opinion against the Houston dissent’s primary arguments. Part I details the background Supreme Court caselaw and the small number of federal court decisions that have considered whether the Second Amendment encompasses a property right to a specific weapon. Part II identifies the gaps in the Houston majority opinion and engages directly with the reasoning of the dissent. Part III suggests a new test for fleshing out the scope of the Second Amendment, which is a task that circuit courts have just begun to undertake.

I. Heller, Houston, and the Scope of the Second Amendment

This Part explores the legal backdrop of the Houston decision. Part I.A describes the recent rejuvenation of the Second Amendment. Part I.B examines the handful of federal court opinions addressing whether the Second Amendment protects an individual’s right to a specific firearm. Part I.C discusses the facts of Houston before laying out the reasoning of the Fifth Circuit’s majority opinion.

A. The Revitalized Second Amendment

Heller marked a significant change in the Court’s Second Amendment jurisprudence, which was previously virtually nonexistent.4 Partially because of the dearth of Second Amendment precedent, the Court’s holding in Heller was narrow and subject to several significant caveats. Specifically, the majority decision determined that the Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”5 The Court was explicit that “the right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and enumerated a nonexhaustive list of four specific limits to the scope of the Amendment.6 McDonald subsequently recognized the same limits on the Second Amendment’s protection even as it applied the right against the states.7

Thus, if Heller and McDonald clearly identified the basic scenario that the Second Amendment protects—use of a handgun, in the home, in self-defense—the lower courts are engaged in determining precisely which laws regulating firearm use (if any) the Amendment prohibits.8 To date, however, decisions have generally specified the rights left unprotected by the Second Amendment,9 rather than those the Amendment protects.10

B. The “Specific Firearm” Cases

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