Tents as Homes for Second Amendment Purposes

At the Volokh Conspiracy, Eugene Volokh posts about Morris v. U.S. Army Corps of Engineers. In Morris, the Federal District Court of Idaho struck down an Army Corps of Engineers regulation that prohibited the possession of loaded firearms in recreation areas near dams operated by the Corps. The court held that the regulation violated the Second Amendment.

In discussing whether the regulation violates the Second Amendment, the court looked to District of Columbia v. Heller, where the Supreme Court held that the Second Amendment protects and individual right to bear arms:

[O]ne core right was described by the Supreme Court: The right of a law-abiding individual to possess a handgun in his home for self-defense. District of Columbia v. Heller, 554 U.S. 570 (2008). In addressing the need for self-defense in the home, the Supreme Court held that the home is “where the need for defense of self, family, and property is most acute.” Id. at 628.

The same analysis applies to a tent. While often temporary, a tent is more importantly a place – just like a home – where a person withdraws from public view, and seeks privacy and security for himself and perhaps also for his family and/or his property. Indeed, a typical home at the time the Second Amendment was passed was cramped and drafty with a dirt floor – more akin to a large tent than a modern home. Americans in 1791 – the year the Second Amendment was ratified – were probably more apt to see a tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public understanding” at time of ratification is “critical tool of constitutional interpretation”). Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more permanent structure,” and are deemed to be “more like a house than a car.” U.S. v. Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry over well into the Second Amendment’s security concerns.

The regulation at issue would ban firearms and ammunition in a tent on the Corps’ sites. This ban poses a substantial burden on a core Second Amendment right and is therefore subject to strict scrutiny

I have written previously on determining the scope of Second Amendment rights in the context of firearms bans in student housing. In that comment, I recognized that the Supreme Court has not clarified what level of scrutiny should be applied to laws that restrict the right to bear arms. But the Court did seem to indicate that laws that prevent people from possessing handguns in the home would not be upheld under any level of scrutiny. By analogizing student housing to homes, courts may conclude that restrictions on firearms in student housing violate the Second Amendment without needing to determine what level of scrutiny should apply.

In Morris, the court seemed to take this sort of approach. By analogizing tents to homes, the court brings the Corps regulation closer to the "core" right protected by the Second Amendment, and concludes that the ban on firearm possession in tents is subject to strict scrutiny, which almost guarantees that the law will be found to violate the Second Amendment.

Finally, the court's use of the Fourth Amendment in analogizing tents to homes is particularly interesting. The court draws on precedent from Fourth Amendment cases to conclude that tents are more like homes than vehicles -- which receive less protection under both the Second and Fourth Amendments. Bringing in Fourth Amendment precedent indicates that Second Amendment inquiries may end up drawing on other areas of the law in order to determine the scope of the right to bear arms.