F. Lee Francis (Widener University Commonwealth Law School) has posted Beyond Keep and Bear: The Second Amendment’s Implied Rights (SMU Law Review, forthcoming 2027) on SSRN. Here is the abstract:
To keep and bear arms, a person must first acquire them, carry them, maintain them, train with them, and load them. Yet in the wake of New York State Rifle & Pistol Association v. Bruen, courts have increasingly sorted the conduct surrounding firearm ownership into a protected “core” and an unprotected periphery, treating acquisition, transport, training, and ammunition as “ancillary” matters open to ordinary regulation. The result is a right that survives in name while being regulated out of practical existence. This Article argues that the core-versus-ancillary taxonomy is mistaken. It finds no footing in the Second Amendment’s text or history, and it is unique among enumerated rights: no other constitutional guarantee is construed by isolating its final act and treating the conditions of its exercise as beyond its scope. In its place, the Article offers a unified framework of concomitant rights. Conduct surrounding the keeping and bearing of arms is protected when it bears a textual nexus to keeping or bearing, formed part of the historical exercise of the right, and remains functionally central to the right’s practical use. The framework operates cumulatively rather than as a freestanding balancing test, and it has real limits: it protects the citizen’s acquisition of arms but not a dealer’s freestanding right to sell, and the components that make arms operable but not cosmetic accessories. Applied, it resolves questions now dividing the lower courts, including the open conflict over whether firearm components such as silencers are “Arms,” and it supplies an administrable test faithful to Heller, Bruen, and Rahimi. The Second Amendment protects more than the bare possession of a firearm. It protects the liberties without which that possession would mean nothing.
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