F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E D W A R D P E R U T A ; M I C H E L L E L A X S O N ; J A M E S D O D D ; L E S L I E B U N C H E R , D R .; M A R

K C L E A R Y ; C A L I F O R

N I A R I F L E A

N D P I S T O L A S S O C I A T I O N F O U

N D A T I O N , Plaintiffs-Appellants

,

v

.

C O U N T Y O F S A

N D I E G O ; W I L L I A M D

. G O R E , individually

and in his capacity as Sheriff, Defendants-Appellees

. N o. 10-56971

D.C. No. 3:09-cv-02371- I EG-B GS

OPI NI ON

A ppeal from the United States District Court for the Southern District of California I rma E. Gonz alez , Chief District J u dg e, Presiding

Arg ued and Submitted December 6, 2012—San F r ancisco, California

F iled F ebruary

13, 2014

B efore: Diarmuid F . O’Scannlain, Sidney R. Thomas, and Consuelo M. Callahan, Circuit J udg es.

O pinion by

J udg e O’Scannlain; Dissent by J udg e ThomasP E R U T A V

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SUMMARY *

Civil Rights

The panel reversed the district court’s summary judg ment and held that a responsible, law-abiding citiz en has a r i ght under the Second Amendment to c arry a firearm in public for self-defense.

Plaintiffs challeng ed a County of San Dieg o policy which interpreted California’s restriction o n carry ing handg uns in public. California g enerally prohibits the open or concealed carriag e of a handg un, w hether loaded or unloaded, in public locations, absent the showing of, among other thin gs , go od

cause. Under San D ieg o’s policy

, concern for one’s personal safety alone is not considered g o od cause.

The p anel f

irst held that a law-abiding citiz en’s ability to carry a g un outside the home for self-defense fell wit h i n the Second A mendment rig ht to keep and bear a rm s for the
purpose of self-defense. Apply ing the analy sis set forth in District of Columbia v. H

eller

, 554 U.S. 5 70 (2008), the panel then held that it did not need to apply a particular standard o f heig htened scrutiny to t h e S a n Dieg o policy b ecause the “g ood cause” restriction amounted to a destruction o f the Second Amendment rig ht altog ether. T he panel concluded that S a n Dieg o County ’s “g ood cause” permitting requirement impermissibly infring e d on the Second Amendment rig ht to bear arms in lawful self-defense.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P E R U T A V

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Dissent i n g , J udg e Thomas stated that San Dieg o County ’s “g ood cause” policy f

ell squarely within the Supreme Court’s definition of a presumptively lawful reg ulatory m easure. J udg e Thomas stated that in dealing a needless, sw e ep ing judicial blow to the public safety discretion invested in local law enforc e ment officers and to California’s carefully constructed firearm reg

ulatory scheme, the majority opinion conflicted with Supreme Court authority

, the decisions o f sister circuits, and Ninth Circuit precedent.

COUNSEL

Paul D. Clement, B ancroft PL L C, W ashing ton, D.C., a rg u ed the cause f

or the plaintiffs-appellants. Carl D

. Michel, Michel & Associates, P.C., L ong B each, California, filed the briefs f or the plaintiffs-appellants. With him on the opening brief were Glenn S. McRoberts, Sean A. B rad y , and B obbie K. Ross, Michel & A ssociates, P.C., L o ng B each, California. W ith him on the reply

brief were Glenn S. McRoberts, Sean A. B rady

, and B obbie K. Ross, Michel & Associates, P.C., L ong B each, California, and Paul Neuharth, J r., Pau l Neuharth, J r. APC., San Dieg o , California.

J ames M. Chapin, Senior Deputy Attorney for County of San, San Dieg o, California, a

rg ued the cause and filed the b rief for the d efendants-appellees. W ith him on the brief was T h omas E. Montg o m ery , County Counsel for County of San Dieg o, San Dieg o, California.

Stephen P. Halbrook, F a irfax

, Virgi n i a, filed the brief on behalf of amicus curiae Cong r e ss of Racial E q uali ty , I nc. in support of the plaintiffs-appellants.P E R U T A V

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Paul D. Clement, B ancroft PL L C, W ashing ton, D.C., filed the brief on behalf of amicus curiae National Rifle Association o f America, I

nc. in support of plaintiffs-appellants.

David B

. Kopel, I ndepend e n c e I nstitute, Golden, Colorado, filed the brief on beh al f of amici c uriae I nternational L aw Enforcement Educa t ors and Trainers Association and the I ndependence I

nstitute.

Alan Gura, Gu r a & Possessky

, PL L C, Alex andria, Virg inia, filed the brief on behalf of amici curiae Second A mendment F oundation, I nc., Calg u ns F o undation, I nc., Adam Richards, and B rett Stewart in support of plaintiffs-appellants.

J ohn C. Eastman, Chapman Un iversity School of L aw, Orang e, Califo r nia, f

iled the brief on behalf of a mici curiae Center for Constitutional J urisprudence, D o c tors for Responsible Gun Ownership, a nd L aw Enforcement Alliance of America. W ith him on the brief were An t h o ny T. Caso and Karen J . L ug o.

Don B

. Kates, B a ttle Ground, Washing ton, filed the b rief on behalf o f amici curiae Gun Owners of California and Senator H.L . Richardson (Ret.) in support of plaintiffs-appellants.

Neil R. O’Hanlon, Hog an L ovells US L L P
, L os Ang eles, California, filed t h e b r ief on b ehalf o f amici c uriae B rady Center to Prevent Gun Violence, the I nternational B rotherhood of Police Officer s , a n d the Police F oundation. W ith h im on the brief were A d a m K

. L evin, S. Chartey Quarcoo, and Samson O. Asiy anbi, Hog an L ovells US L L P, W a shing ton, D.C., and J onathan E. L owy and Daniel R. Vice, B rady Center to Prevent Gun Violence, W ashing ton, D.C.P E R U T A V

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Paul R. Coble, L aw Offices of J o nes & May er, F u llerton, California, filed the brief on b ehalf of amici curiae California State Sheriffs Association, California Poli ce Chiefs Association, and California Peace Officers Association in support o f defendants-appellees. W ith him on the b rief was Martin J

. May er, L aw Offi c e s of J ones & May er, F u llerton, California.

Simon J

. F rankel, Coving ton & B u rling L L P, San F rancisco, California

, f

i led the brief on behalf of amici curiae L eg al Community ag ainst V i o l e n c e, M a j o r Cities Chiefs Association, Association of Prosecuting Attorn e y s , and San F rancisco Di strict Attorney Georg e G ascón in support o f defendants-appellees. W ith him on the b rief were Samantha J

. Choe, Steven D. Sassaman
, a n d Ry an M. B u schell, Coving ton & B urling L L P, San F r a n cisco, California.

OP INION

O’SCANNL AI

N, Circuit J udg e:

W e are called upon to decide whether a responsible, lawabiding citiz en has a rig ht under the Second Amend m ent to carry a firearm in public for self-defense.

I

A

California g enerally prohibits the open or con cealed carriag e of a handg un, w hether loaded or unloaded, in publicP E R U T A V

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locations. 1 See Cal. Penal Code § 25400 (prohibiting concealed carry of a firearm); id. § 25850 (prohibi t i n g carry of a loaded f

irearm); id. § 26350 (prohibiting open carry o f an

u nloaded f

irearm); see also id. § 25605 (ex e mpting the gu n owner’s residence, other private property , and place o f business from section 25400 and section 26350).

Nonetheless, one may apply for a license in California to carry a concealed weapon in the c ity or county in which he o r she works or resides. Id. §§ 2 6150, 26155. To obtain such a license

, t h e applicant must meet several requirements. F o r

ex a mple, o ne must demonstrate “g o od moral character,” complete a specified training co u r s e, and establish “g ood cause.” Id. §§ 26150, 26155.

California law deleg ates to e a ch c ity and county the
power to issue a written policy setting forth the procedu res for obtaining a concealed-carry license. Id. § 2 6 160. San Dieg o County has issued such a policy

. A t i s s u e in this appeal is that policy ’s interpretation of the “g ood cause” requirement found in sections 26150 a n d 26155: “[ A] set o f circumstances that disting u i s h the applicant from the

1 T h e r e are a f

ew n arro w ex cep tio n s to th is ru le. A rm o red v eh i cle
g u a r d s an d retired f

ed eral o f f icers m ay carry a lo ad ed f irearm in pu

b lic

w ith o u t m eetin g strin g en t p erm ittin g req u irem en ts. S ee Cal. P en al Co d e § 2 6 0 15 (arm o red v eh icle g u ard s); id

. § 2 60 2 0 (retired f

ed eral o f f icers). A n d a citizen m ay carry a lo ad ed f irearm in p u

b l ic if : (1 ) h e is en g ag ed in th e act o f attem

p tin g to m ak e a law f

u l arrest; (2 ) h e is h u n tin g in lo catio n s

w h ere it is law f

u l to h u n t; o r (3 ) h e f

aces im m ed iate, g rav e d an g er p ro v id ed th at th e w eap o n is o n ly carried in “ th e b rief in terv al” b etw een th e tim e law en f

orcem en t o f

f i cials are n o tif

ied o f t h e d an g er an d th e tim e th ey arriv e on th e s cen e (w

h ere th e f leein g vi ctim w ou ld o b t ain a g u n d u rin g th at in terv al is ap p aren tly lef t to P ro v id en ce). Id

. § 26 0 4 0 (h u n tin g ); id

. § 2 6 0 4 5 (im

m ed iate, g ra v e d an g er); id

. § 2 6 0 5 0 (attem

p tin g t o m ak e a law f u l arrest).P E R U T A V

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mainstr e a m a n d causes him or her to be placed in harm’s
way .” Good cause is “evaluated on an individual basis” and
may arise in “situations related to p ersonal protection as w ell

a s those related to individual businesses or occupatio n s

. ” B ut—important here—concern for “on e ’s personal safety alone is not considered g ood cause.”

The power to g rant c o ncealed-carry licenses in San Dieg o County is vested in the county sheri f f’ s d e p artment. Since 1999, the sheriff’s department h a s required all applicants to “provid e supporting documentation” in order “to demonstrate and e laborate g ood cause.” Thi s “ r equired documentation, such as r estraining o r d ers, letters from law enforcement
ag encies or the [district attorney ] familiar w i t h t h e case, is discussed with each applicant” to determine whether he o r she can show a sufficiently pressing need for self-protection. I f the applicant cannot demonstr a t e “circumstances that disting uish [ him] from the mainstream,” then he will not qualify for a concealed-carry

permit.

B

W ishing to carry handg uns f or self-defense but unable to document specific threats ag a inst them, plaintiffs Edward P er u ta, Michelle L ax son, J ames Dodd, L eslie B uncher, a nd Mark C l e ary (collectively “the applicants”), all residents o f San Dieg o County
, w ere either d enied c oncealed-carry licenses because they could not establish “g ood c a u se” o r decided not to apply

, confident that their mere desire to carry for self-defense would fall short of establishing “g o od cause”

as the County defines it. An additional p laint i f f, the California Rifle and Pis t o l A s s o c i a t i o n F o u n d a t i o n , comprises
many San Dieg o Country residents “in the same predicamentP E R U T A V

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as the individual Plaintiffs.” No plaintiff is otherwise barred under federal or state law from possessing firearms.

C

On October 23, 2 0 0 9
, after the County denied his application for a concealed-carry license, Peruta s ued the County of San D i eg o and its sheriff, W illiam Gore (coll e ctively “the County ”), under 42 U.S.C. § 1983, requesting injunctive a n d d eclaratory r elief from the enforcement o f the County p olicy ’s interpretati o n o f “g ood cause.” Peruta’s lead arg ument was that, by deny ing him the ability to carry a loaded handg u n for self-defense, the County infring ed his righ t to bear arms under the Second Amendment.

About a y ear later, the applican t s and the County filed dueling motions for summary judg ment. T h e district court denied the applicants’ motion and g ranted the County ’ s. Assuming without deciding that the S e c o nd A mendment “encompasses Plaintiffs’ asserted rig h t to c arry a loaded handg un in public,” the d istrict court upheld th e County policy under intermediate scru t iny

. A s the court reasoned, California’s “important and substa n tial interest in public safety ”—particularly in “ r educ[ ing ] the risks to other members of the public” posed by concealed handg u ns’ “disproportionate involvement in life-threatening crimes o f violence”—trumped the applicants’ alleg edly burdened Second Amendment interest. The district court rejected all o f the other claims, and the applicants timely appealed.P E R U T A V

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I I

As in the district court, on appeal the applicants p lace o ne

ar gu m e n t at center stag e: they assert that by defining “g ood cause” in San Dieg o County ’ s permitting scheme to ex clude

a g eneral d e s i r e to carry for self-defense, the County impermissibly burdens their Second Amendment rig ht to bear

arms.

The Supreme Court’s opinions in D istrict of Columbia v

. Heller

, 554 U.S. 570 (2008)

, a n d McDonald v. City of Chicago

, 130 S. Ct. 30 2 0 ( 2 0 10), direct our analy sis of this claim. I n Heller

, the Court confronted a Second A mendment challeng e to a District of Columbia law that “totally ban[ ned] handg un possession in the h o m e ” and “require[ d ] that any lawful firearm in the home be d i s a s s e m bled or bound by a trig g er l o ck

. ” 554 U.S. a t 603, 628–29. The validity of the

measures depended, in the first place, on whether the Second Amendment codified an individual rig h t , as plaintiff Dick Heller maintained, or a collective rig h t, as the g overnment insisted. Id. at 577.

C onsulting the tex t’s orig inal public meaning

, the C o u r t sided with H e l ler, c o ncluding that the Second A mendment codified a pre-ex isting

, individual rig ht to keep and bear arms and that the “ central component of the rig ht” is self-defense. Id. a t 592, 599. I t further held that, because “the need for defense o f self, family

, and property is most acute in the home,” the D .C. b a n on the home use of handg uns—“the
most preferred firearm in the nation”—failed “constitutional muster” under any standard of heig htened scrutiny

. Id. at 628–29 & n.27 (rejecting r ational-basis review). The same went for the trig g er-lock requirement. Id. at 635. The Court had no n eed to “undertake an ex haustive historical analy sisP E R U T A V

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. . . of the full scope of the Second Amendment” to dispose o f Heller’s suit. I

d. at 626–27. Nor had it reason to specify

, for future cases, which burdens on the Second Amendment rig ht trig g ered which standar d s o f review, o r w hether a tieredscrutiny approach w as even a ppropriate in the first place. Id.
at 628–29. B y any measure, the District of Columbia law h ad overreached.

Two y ears later, the Court e val u a t e d a similar handg un ban enacted by the City

of Chicag o. The question presented in McDonald

, however, was not whether the ban infring ed the city residents’ Second A mendment rig hts, but whether a state g overnment c ould even be subject t o t he strictures of the Second Am e n dment. That depended on whether the rig ht could be said to be “deeply r ooted in this Nation’s history a nd tradition” and “fundamental to o u r scheme o f ordered liberty .” 130 S. Ct. at 3036. To these questions, the McDonald Court declared, “[ o] ur d e c is i o n in H eller points unmistakably to the answer.” Id. After a l l

, self-defense,
recog niz ed since ancient times as a “ba s i c r i ght,” is the “centra l component” of the Second Amendment g uarantee. Id. Consequently

, that rig ht res t ri cted not only the federal government but, under the F ourteenth Amendment, als o t h e states. Id. a t 3 0 26. Having so concluded, th e Court remanded the case to the Seventh Circuit for an analy sis o f whether, in lig ht o f Heller

, the Chi cag o handg un b an infring ed the Second Amendment rig ht. Id. at 3050.

I t doesn’t take a lawy er to see that straig htforward application of the rule in Heller will not dispose of this c ase. I t should be equally obvious that neith er H eller nor McD o n a l d speaks ex plicitly or p recisely to the scope o f the Second Amendment rig ht outside the home or to what it takes
to “infring e” it. Yet, it is just as apparent that neither opinionP E R U T A V

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is silent on these matters, for, at the v ery least, “the Supreme Court’s a pproach

. . . points in a g eneral direction.” E zell v

. City of Chicago

, 651 F .3d 684, 700 (7th Cir. 2011) (not ing
t h at Heller does not leave u s “without a framework for h o w to proceed”). To resolve the challeng e to th e D.C. restrictions, the Heller m a j ority described and applied a

cer tain methodolog y : it addressed, first, w hether h aving operab l e handg uns in the home amounted to “keep[ ing ] a nd bear[ ing ] Arms” within th e meaning of the Second Amendment a

nd, nex t, whether t h e challeng ed laws, if they indeed d id burden c o nstitutionally p rotected conduct, “infring ed” the rig h t. W e apply that approach h e r e , a s we have done in the p ast , U n i ted States v. Chovan

, 735 F .3d 1127, 1136 (9th Cir. 2013), a nd as many of our sister c ircuits have done in similar cases. See, e.g. , Nat’l Rifle Ass’n of Am., Inc. v. Bureau of

Alcohol, Tobacco, F

irearms, & Explosives

, 700 F .3d 185, 194 (5th Cir. 2012) (“A two

- s t ep inquiry has
emerg ed a s the prevailing approach.”) ; United States v

. Greeno
, 679 F .3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (

Heller II ), 6 70 F .3d 1244, 1252 (D

. C

. C i r. 2011); Ezell

, 651 F .3d at 701–04; U n i t ed S tates v

. Chester

, 628 F .3d 673, 680 (4th Cir. 2010); U n i ted States v

. R e ese , 627 F .3 d 792, 800–01 (10th Cir. 2010); United States v

. Marzzarella

, 614 F .3d 85, 89 (3d Cir. 2010).

A

Th e f i r s t question g oes to the scope of the g uarantee: Does the restricted activity —here, a r e s t r iction on a responsible, law-abiding citiz en’s 2 ability to c arry a g un

2 In th is case, as in Heller , w e co n sid er th e sco p e o f th e rig h t o n ly w i th
resp ect to resp o n s ib le, law

- ab id in g citizen s. S ee Heller

, 55 4 U.S. at 6 3 5 (“ A n d w h atev er else it leav es to f

u tu re ev alu atio n , it su

rely elev ates ab ov eP E R U T A V

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outside the home for self-defense—fall wi t h i n the Second Amendment rig h t to keep and bear arms for th e p u r pose o f self-de f e n s e? Ezell

, 651 F .3d at 701; see also Kachalsky v

. Cnty. o f W estchester

, 701 F .3d 8 1, 96 (2d Cir. 2012). C oncerning the p recise methods by which that rig ht’s s c o p e i s d iscerned, the Heller and McDonald Courts were hardly shy : we must c onsult “both tex t and history .” Heller

, 554 U.S. at 5 95; see als o McDonald

, 130 S. Ct. at 3047 (reiterating that “the scope of the Second Amendment rig ht” is d etermined by historica l a n aly sis and not interest balancing ).

The a n aly sis beg ins—as any interpretive endeavor must—with the tex t. “Constitutio nal rig hts are enshrined with the scope they were understood to have when the people adopted them, whether or not future leg islatures or (y e s) even future judg es think that scope too broad.” Heller

, 554 U.S. at 634–35. To arrive a t the orig inal understanding of the rig ht, “we are g uided by the principle that ‘ [ t] he Con s t i t u t ion was written to be u nderstood by the voters; its words and phrases

were used in their n ormal and ordinary as disting uished from technical meaning ,” unless e vidence sug g ests that the lang uag e was used idiomatically

. Id. a t 576 (quoting United States v. Sprague , 282 U.S. 716, 731 (1931)).

all oth er in terests th e rig h t o f law

- ab id in g , resp o n sib le citizen s to u se arm s in d ef en se o f h earth a n d h o m e.”). W ith resp ect to irresp o n sib le o r n o n

law

- ab id in g citizen s, a d if f eren t an aly sis—w

h ich w e d eclin e to u n d ertak e h ere—ap p lies. Ch o va n , 7 3 5 F.3 d at 11 3 8 (h o ld in g th at a statu t e “ d oes n o t im p licate t h is co re Seco n d A m en d m en t rig h t [if ] it reg u lates f

irearm
p o ssessio n f

o r in d iv id u als w ith crim in al co n v i c tio n s”); see a lso H eller

, 5 5 4 U.S. at 6 2 6 (“ [N]o th in g in ou r o p in io n sh o u ld b e tak en to cast d ou b t

o n lo n g stan d in g p ro h ib itio n s o n th e po ssessio n o f f irearm s by f

elo n s an d th e m en t ally

ill . . . .”).P E R U T A V

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Since the g oal is to arrive a t a fair

, not a hy per-literal, reading of t h e Constitution’s lang uag e, Heller ’s analy sis is necessarily a contex tual—and therefore a histor ical—one. Se e Chester

, 628 F .3d at 680 (“This historical inquiry seeks
to determine whether the c onduct at issue was understood to be within the scope of the rig ht

. . . .”). I t beg ins with the prer a t i f i c a t i o n “ h i s t o r i c a l b a c k gr o u n d o f t h e S e c o n d Amendment,” since “the Second Amendment .

. . c odified a pre-ex isting rig h t.” Heller

, 554 U.S. at 592 ( e m p h a s is omitted). Nex t, it turns to w hatever sources shed lig ht on the “public understanding [ of the Second Amendment] in the period after its enactmen t o r r atification,” see id. at 605–10, such as nineteenth-century judicial interpretations and leg al
commenta r y

. See id. at 605 (“W e now address how the Second A mendment w as interpreted from immediately after its ratification throug h the end o f the 19th c e n t u r y .”); id. at 610–19 (survey

ing “Pre–Civil W ar C ase L aw,” “Post–Civil W a r L eg islation,” and “Post–Civil W ar Commentators”).

Of c ourse, the necessi ty of this historical analy sis
presupposes what Heller makes e x plicit: the Second Amendment rig ht is “not unlimited.” Id. at 595. I t is “not a rig ht to keep and carry a

ny weapon whatsoever in any manner whatsoever and f

or whatever purpose.” I

d. at 626. Rather, it is a rig ht subjec t to “traditional restrictions,” which themselves—and this is a critical point—tend “t o s how the
scope of the rig ht.” McDonald

, 130 S. Ct. at 3 056 (Scalia, J
., co n c u r ring ); see also Kachalsky

, 701 F .3d at 96; Nat’l Rifle Ass’n of Am.
, 7 0 0 F .3d at 196 (“F or now, w e state that a long standing presumptively l a w ful reg ulatory measure

. . . would likely [ burden co n d u ct] outside the ambit o f the Second Amendment.”); United St ates v

. Skoien

, 6 14 F .3d 638, 640 (7th Cir. 2010) ( en banc) (“That some categ orical limits are proper is part of the orig inal meaning .”).P E R U T A V

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I n short, the mea n i n g of the Second Amendment is a matter not merely of abstract dictionary definition s b u t also of historical practice. As “[ n ] othing but conventions and

c o n tex ts cause [ lang uag e] to convey a particular idea, ” w e beg in our a

naly sis of the s c o p e of the Second A mendment rig ht by e x amining the tex t of the amendment in its historical
contex t. See A ntonin Scalia & B ry an A

. G a r n er, Reading Law: The Interpretation of Legal Texts x x vii (2012).

1

The Second Amendment secures the r ig ht not only to

“ k e ep” arms but also to “ bear ” them—the verb wh o s e orig inal meaning is key in this case. Saving us the trouble o f pulling the eig hteenth-century dictionaries ourselves, the Court already has supplied the w ord’s plain meaning : “At the time of the founding

, as now, to ‘bear’ m e a n t t o ‘ carry .’” H e l l er , 554 U.S. a t 5 84. 3 Yet, not “carry ” in the o rdinary

sense of “convey [ ing ] or transport[ ing ] ” an object, as o ne mig ht carry g r oceries to the check-out counter or g arments to the laundromat, b ut “carry for a p ar t icular purpose— confrontation.” Id. The “natura l m eaning of ‘bear arms,’” according to the Heller majority

, w as best a r t i culated b y J ustice Ginsburg in h er dis s e n t i ng opinion in Muscarello v

. United States
, 524 U .S. 125 (1998): to “‘wear, bear, o r carry

. . . upon the person o r in the clothing or in a pocket, for t he
purpose

. . . of b eing arme d an d ready for offensive o r

3 A lth o u g h w e are d ealin g w ith t h e S e c o nd A m en d m en t rig h t as in co rp o rated ag ain s t th e states t h ro u g h th e F o u rteen th A m en d m en t,

w e—co n s isten t w ith th e Co u rt’ s an aly sis in McDo n a ld —assu m e th at th e rig h t h ad th e sam e sco p e at th e tim e o f in co rp o ratio n

as it d id at th e tim e

o f th e f o u n d in g

. S

ee, e.g

. , 1 3 0 S. Ct. at 3 0 3 6 (u sin g th e d ef in itio n o f th e Sec o n d A m en dm en t rig h t esp o u sed in Heller w h en an aly zin g in co rp o ratio n

ag ain st th e states).P E R U T A V

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d e fensive action in a case of conflict with another person

. ’ ” Heller

, 554 U.S. at 584 (quoting Muscarello

, 524 U.S. at 143 (Ginsburg

, J
., dissenting ) (quoting Black’s Law Diction a ry 214 (6th e d. 1998)); see also id. at 592 (concluding that the Second Amendment “g uarantee[ s] the individual rig ht to

. . . carry weapons in case of confrontation”).

Speakers of the Eng lish lang u ag e will all a g ree: “bearing

a weapon inside the h o me” does not ex haust this definition o f “carry

. ” F or one thing

, the very risk occasioning s u ch carriag e, “conf

r o n t a tion,” is “not limited to the home.” Moore v

. Madigan

, 702 F .3d 933, 936 (7th Cir. 2012). One needn’t point to statistics to reco gn i z e t hat the prospect o f

c o nflict—at least, the sort of conflict for which one wou l d wish to be “armed a n d ready ”—is just as menacing (and likely more so ) bey ond the front porch as it is in the living

r o o m

. F or that reason, “[ t] o speak o f ‘bearing ’ arms wit h i n one’s home would at all times have been an awkward u sag e.” Id. To be sure, the idea of carry ing a g un “in the clothing or in a pocket, for the purpose

. . . of being arm e d a n d r e ady

, ” does not ex actly conjure up imag es of father stuffing a six

shooter in his pajama’s pocket before heading downstairs to start the morning ’s coffee, or mother concealing a handg u n in her coat before stepping outside to retrieve the mail. I nstead, it bring s to mind scenes such as a w oman toting a small handg un in h er purse as she walks throug h a dang erous neig hborhood, or a nig ht-shift worker carry ing a handg un in his coat as he travels to and from his job site.

More importantly

, at the time of the S econd Amendment’s enactment, the familiar imag e that “bear arms” would h ave painted is one of a n e i ghteenth-century frontiersman, who “from t i m e to time [ would] leave [ his] home to obtain supplies from the nearest trading post, and enP E R U T A V

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r o u t e one would be as much (probably more) a t risk i f unarmed as o n e would be in one’s home unarmed.” Id. at 936. I ndeed, it was this spirit of the arms-bearing settler that Senator Charles Sumner invoked ( a n d the Heller Court cited

as instructive of the sco p e o f t h e rig ht) in the (in)famous “Crime ag a inst Kansas” speech in 1856: “The rifle ha s ever been the companion of the pioneer and, under God, his tutelary protect o r a ga i n st the r ed man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one a rtic l e in

our National Constitution must b e blotted out, before the complete rig ht to it can in a ny way be impeached.” 4 The W orks of Cha r l e s S

u mner 211–12 (1875); see also Heller

, 554 U.S. at 609.

Other passag es in Heller and M cDonald sug g est that the Court shares Sumner’s view of the scope of the rig ht. The Second Amendment, Heller tells us, s e c u re s “the rig h t to ‘protect[ ] [ oneself] ag ainst both public and private violence,’ thus e x tending the rig h t in some form t o w h e rever a person could become e x posed to public or private violence.” United States v. Masciandaro

, 638 F

. 3 d 458, 467 (4th Ci r

. 2 0 1 1 ) (Niemey er, J
., specially co n c u r r ing ) ( quoting Heller

, 554 U.S.
at 594 (emphasis added)). The Court r einforced this view b y clarify ing t h a t t h e need f

or the rig ht is “most a cute” in the home, Heller

, 554 U.S

. at 628, thus imply ing that the rig ht

ex ists outside the h ome, thoug h the n eed is no t a lway s a s “a cute.” See also McDonald

, 130 S. Ct. at 3044 (2010) (“[ T] he Second A mendment protects a personal r ig ht to keep and bear arms for lawful purposes, most notably fo r selfdefense within the home .”). I n a similar vein, Heller identifies “laws forbidding the c arry ing of firearms i n sensitive places such as school and g overnment building s” a s presumptively lawful. 554 U.S. a t 626. W ere the rig htP E R U T A V

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restricted to the home, the constitutional invincibility of such restrictions would g o without say i ng

. F inally

, both Heller and McDonald identify

the “core component” of the r ig ht a s self-defense, which necessar i l y “take[ s] place wherever [ a]
person happens to b e,” whether in a back alley or on the back deck. Eug ene Volokh, Implementing the Right to Keep and Bear A rms for Self-Defense: An A nalytical Framework and

a Resear c h Agenda

, 56 UCL A L

. Rev. 1443, 1515 ( 2 009);

see also Moore
, 702 F .3d at 937 (“To confine the rig ht to be armed to the home is to divorce the Second Amendment from the r ig ht of se l f-defense described in H eller a nd McDonald .”).

These passage s alone, thoug h short of dispositive, strong ly sug g est that the Second Amendment secures a rig ht
to carry a firearm in some fashion o utside the home. Reading those l ines in lig ht of the plain-meaning definition of “bear Arms” elucidated above makes matters even clearer: the Second Amendment rig h t “could not rationally ha ve been l i m i t ed to the home.” Moore
, 702 F

. 3d at 936. Thoug h people may “keep A rms” (or, per Helle r ’s definition, “have weapons,” 554 U.S. at 582) in the h o m e f or defense of self, family

, a nd property , they are more s e n s ibly said to “bear Arms” (or, Heller ’s g loss: “carry [ we apons]

. . . u pon the
person or in the clothing or in a pocket,” i d

. a t 5 84) in nondomestic setting s. 4 Kachalsky

, 7 0 1 F .3d at 89 n.10 (“The

4 Heller an d McDo n a ld f

o cu s o n th e Seco n d A m en d m en t rig h t to k eep

an d b ear arm s fo r self-d

e f e n se —th e co re co m

p o n en t o f th e rig h t, w

h ich th is c a se i m

p l i cates. We n eed n o t co n sid er, th eref o re, w h eth er th e rig h t h as o th er en d s. See Eu g en e Vo lo k h

, Imp lemen tin g th e Rig h t to Keep a n d Bea r Arms fo r S

elf-Defen se: An An alytica l Fr a m e w o r k a nd a Resea r ch A g en d a , 5 6 U CL A L

. Rev

. 1 44 3
, 14 4 8 (2 0 0 9) (su g g estin g th at th e r i gh t

“ m ay h av e oth er co m

p o n en ts,” su ch as t

h e rig h t to k eep an d b ear arm s f or recreatio n , h u n tin g , o r resistin g g o v ern m en t ty ran n y ).P E R U T A V

. C O U

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plain tex t of the Second Amendment does not limit the rig ht
to bear arms to the home.”); see also Drake v. Filko

, 724 F .3d 426, 444 (3d Cir. 2013) (Hardiman, J
., dissenting ) (“To speak of ‘bearing ’ arms solel y w i t hin one’s home not only would conflate ‘bearing ’ w ith ‘keeping

, ’ in derog ation of the Court’s holding that the v erbs c odified distinct rig hts, b ut also would be a wkward usag e g iven the meaning assig ned the terms b y the Supreme Court.”).

2

I n addition to a tex tual analy sis of the phr a s e “ bear Arms,” we, like the Court in Hel l er , look to the orig inal public un d er s t anding of the Second Amendment rig ht a s evidence of its scope and meaning

, rely ing on the “important founding -era leg a l scholars.” See Heller

, 554 U.S. at 600–03, 605–10 (ex amining the p ublic unde r s t a n ding o f the Second Amendment in the period after its ratification because “[ t] hat
sort of inq u i r y is a critical tool of constitutional interpretation”).

The co m monsense reading of “bear Arms” previously discussed f

inds support in sev eral important constitutional treatises in circulation at the time of the Second Amendment’s ratification. S e e id. at 582–83, 592–93 (treating such sources as instructive of the clause’s orig inal meaning)

. Writing on the Eng lish rig ht to arms, W illiam B lackstone noted in h is Commentaries o n t h e Laws of England that the “the rig ht of h aving and using arms for selfpreservation and defence” had its roots in “the natural rig ht o f resist a n c e and self-preservation.” H eller

, 5 54 U.S. at 594 ( internal citations and quotations omitted). I t wa s t h i s i n herited r ig ht of armed self-defense, according to Heller

, that “by the time of the f

ounding [ was] understood to b e a nP E R U T A V

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individual rig ht protecting ag ainst b o t h public and private violence.” Id. (emphasis a dded). Althoug h B lackstone elsewhere described a f

ourteenth-century Eng lish statute that forbad the “riding or g o ing armed w ith dang erous or unusual weapons,” that prohibition was understood to cover carriag e of uncommon, frig htening weapons o n ly

. I ndeed, J u stice J a m e s Wilson, an early American leg al commentator a n d framer, confirmed this n arrower reading

, see 2 J ames W ilson, The W orks of James W

ilson 654 ( Robert McCloske y ed. 1967), citing an E ng lish c ommentator for the proposition that wearing ordinar y w e apons in ordinary circumstances p osed

no problem. See Eug ene V olokh, The Fi r st a nd Second A m e n dments

, 109 Colum. L

. Rev. Sidebar 97, 101 (2009) (“American b e nchbooks for justices of the peace echoed [ W ilson’s observation] .”); J oy ce L ee Malcolm, To Keep and Bear Arms: The Origins of a n A n glo-American Right 105 (1994) (quoting an Eng lish c a se r e c o gniz ing “a g eneral Connivance to Gentlemen to ride armed fo r t heir security

, ” notwithstanding the statute); see also W illiam Rawle, A View of the Constitution of the United State s o f America 1 26 (2d ed. 1 829) (observing that the Second A mendment would not forbid the prohibition of the “ca r r y ing o f arms abroad by a sing le individual, a ttended with ci r c u m stances g iving just

reason to fear that he purposes to m a k e a n unlawful u se o f them”). I t is li k e l y f o r this reason that Heller cites B lackstone’s commentary on the statute as evi d e nce not o f the scope o f the “ke ep and bear” lang uag e but of what
weapons qualify as a S e c o nd Amendment “arms.” See Heller , 554 U.S. at 627.

W r iting over thirty y e a r s later in what H eller calls the “most important” American edi t i o n of B lackstone’s Commentaries
, id. at 5 94, St. Georg e Tucker, a law professor and former Antifederalist, affirmed B lackstone’s comm entsP E R U T A V

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o n t h e B ritish rig ht and commented further on its America n dimensions. The rig ht to armed self-defense, Tucker insisted, is the “first law of n ature,” and any law “prohibiting a n y person from bearing a

rms” c r ossed the constitutional line. St. Georg e Tucker, B lackstone’s Commentaries: W ith Notes of Reference to the Constitution and Laws of t h e Federal Government o

f the United S

tates; a nd of the Commonwealth of Virginia 289 ( 1803). Tucker went on to note that, thoug h Eng li sh law presumed that a ny g athering of armed men indicated t h at treasonous plotting was afoot, it would have made little sense to apply such an assumption in the colonies, “where the r ig h t to b ear arms is recog niz ed and secured in the constitution i t s elf.” Tucker, supra , vol. 5, app., n.B
, at 19. After all, “ [ i] n many parts of the United St a t e s , a man no

more thinks, o f g oing out of h is house on any occasion, without his rifle or musket in his hand, than a European fine
g entleman without h is sword by hi s s ide.” Id. ; see also Michael P. O’Shea, Modeling the Second A m e n d ment Right
to Carry Arms (

I) : Judicial Tradition and the S c o pe of “Bearing Arms” for Self-Defense

, 6 1 Am. U. L

. R e v

. 585, 637–38 (2012). L i k e wise, Edward Christian—another B l ackstone commentator from that period—maintained that this inherited rig ht allowed “ e v e r y o n e

. . . to keep or c arry a g un, if he does not us e i t f o r the [ unlawful] destruction o f
g ame.” See Clay

ton E. Cr a m e r & J o seph Edward Olson, W hat Did “Bear Arms” Mean in the Second Amendment?

, 6 Geo. J .L

. & Pub. Pol’y 5 11, 517 (2008) (quoting 2 W illiam B lackstone, Commentaries 4 41 (Edward Christian e d., 1795)).

3

I n k e e ping with the views of the important lateeig hteenth-century c o mmentaries, the g reat weig ht o fP E R U T A V

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ninetee nth-century precedent on the Second Amendment o r its state-law analog ues confirms the Heller -endorsed understanding of “bear Arms.” 5 I n fact, as we will show,
many of the same cases that the Heller majority invoke d a s proof that the Second Amendment secures an individual rig ht
may just as easily be cited for the proposition that the rig ht to carry in c ase of confrontation means n o t h i n g if not the
g eneral rig ht to carry a c o mmon weapon outside the home for self-defense.

a

B u t b e f o r e t urning to the cases themselves, we offer a word on meth o d o l o gy

. W e set out to review the bulk o f precedents from this p eriod. 6 All are, in a broad s ense, equally relevant, for every h istorical g loss on the phrase “bear arms” furnishes a clue of that phrase’s orig inal o r customary

5 Fo llo w in g Heller

, w e cred it n in eteen th

- cen tu ry j u dicial in terp retatio n s

o f th e rig h t to bear arm s as pro b ativ e o f t h e Seco n d A m en d m en t ’ s

m ean in g

. Heller

, 5 5 4 U.S. at 5 8 6 ; id

. at 6 0 5 (“ W e n o w

ad d ress h o w

th e Seco n d A m en d m en t w as i n terp reted f ro m im m ed iately af

ter its ratif icatio n th ro u g h th e en d o f

th e 1 9 th cen tu ry .”).

W e d eclin e, h o w ev er, to u n d ertak e an ex h au s tiv e an al y s is of
tw en tieth

- cen t

u ry in terp retatio n s o f t

h e rig h t f or th e sam e reaso n th at th e Heller Co u rt p resu m ab ly d i d: co m i n g o v er a h u n d red y ears af ter th e A m en d m en t ’s r a t if

i catio n , th ey seem p o or so u rces o f th e tex t’ s o rig in a l
p u b lic m ean in g

. C

f

. i d

. at 61 4 (“ Sin ce d iscu ssio n s [in Co n g ress an d elsew h ere af ter th e Civ il W ar] to o k p lace 7 5 y ears af ter th e ratif

icatio n of th e Seco n d Am e n d m en t, th ey d o n o t p ro v id e as m u ch in sig h t in to its

o rig in al m ean in g as earlier so u rces.”).

6 W e w ill in ev itab ly m iss so m e. T h e brief s f iled in th is ap p eal w ere ab le
to ad d ress o n ly

so m an y b ef o re ru n n in g u

p ag ain st w o rd lim its.P E R U T A V

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meaning

. Still, some c ases are more equal than others. 7 That’s because, with Heller on t h e b o oks, the Second Amendment’s orig inal meaning is now settled in at least two relevant r espects. F irst, Heller c larifies that the keeping a nd bearing of arms is, and has always b een , an individual rig ht. See, e.g. , 554 U.S. at 616. Second, the rig ht is, a n d has always b een , oriented to the end of self-defense. See, e.g. , id. Any contrary interpretation of the rig ht, whether propounded in 1791 or just last week, is error. W hat that means for our review is that historical interpretations of the rig h t’s scope a re of vary ing probative worth, falling g enerally into one of three
cate g ories ranked here in descending o rder: (1) authorities that understand bearing a r ms for self-defense to be an individual rig ht, (2) authorities that understand bearing arms for a purpose other than self-defense to be an individual rig ht, and (3) authorities that understand bearing arms not to be an individual rig ht at all.

T o illustrate, a precedent in the first categ ory that declared a g eneral rig ht to carry g uns i n public would be a g reat case for Peruta, while a decision in the same g roup that

co n fined e x ercise of the rig ht to the home would d o his position much damag e. B y contrast, those cases in the third categ ory

— which, like the dissenting opinions in Heller

, espouse the view t h a t o n e has a rig ht to bear arms only collectively in conne c t i o n with militia service and not for self-defense within or o utside the home—are of no help. The second categ ory , consisting mostly of cases that e mbrace the premise that the rig ht’s purpose is deterring ty ranny , is only

7 W i th ap o lo g i es to Geo rg e Orw ell. S ee Geo rg e Orw ell, An ima l Fa rm 1 1 8 (2 0 0 9 ) (1 9 4 5 ) (d istillin g M a no r Farm ’ s Sev en Co m m an dm en ts of A n im alism

to a sin g le ru le: “ A l l an im als are eq u al, b u t so m e an im als are

m o re eq u al th an

o th ers”).P E R U T A V

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marg inally useful. Since one n eedn’t ex actly tote a p istol on his way to the g rocery store in order to keep his g overnment i n check, it is no surprise ( and, thus, o f limited sig nifican c e fo r p u rposes of o ur analy sis) when these courts sug g est that the r ig ht is mostly c onfined to the home. L ikewise, a secondcateg ory case assertin g t hat the g oal of ty ranny prevention d o e s i ndeed call for public w eapon bearing lends onl y indirect support for the proposition that b earing arms in case of c onfrontation includes carry ing weapons in public f

or selfdefense.

b

Having se t f

o r th the methodolog y to be e mploy ed, we turn to the n ineteenth-century case law interpreting the Second Amendment, beg inning w ith the cases that the Court itself relied upon in Heller

.

The first case is Bliss v. Commonwealth

, 12 Ky

. (2 L itt.) 90 (1822), cited in Heller

, 554 U.S. at 5 8 5 n .9, a decision “especially sig nificant both because it is n earest in time to the founding era a

nd because the state court a s sumed (just a s [ Heller ] d o es) that the constitutional provision

. . . codified a preex isting r i g ht.” N elson L und, The Second A mendment

, Heller

, and Originalist J

u rispruden c e , 5 6 UCL A L

. Rev. 1343, 1360 ( 2009). There, Kentucky ’s hig h est court interpr eted that state’s Second A mendment analog ue (“the rig ht of the c itiz ens to bear arms in defense o f themselves a nd the state, shall not be questioned”) as inval idating a ban on “wearing concealed arms.” Bliss

, 12 K y

. (2 L itt.) a t 90. The Com m o n w e a lth’s lead arg ument to the contrary had been that, thoug h Kentucky ’s constitution forbad prohibitions on the ex ercise of the rig ht, it permitted laws “merely reg ulating the manner of ex ercising that rig ht.” I d

. at 91. Althoug h theP E R U T A V

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court ag reed with t h e Commonwealth’s arg ument in principle, it disag reed with the c onclusion that the ban on “wearing concealed arms” was merely a means of “reg ulating the manner of ex ercising ” the r ig ht. Id. An a ct needn’t
amount to a “complete destruction” of the rig ht to be “forbidden by the ex plicit lang uag e of the constitution,” since
any statute that “d i m i nsh[ ed] or impair[ ed the rig ht] as it

ex isted when the constitution was formed” w ould a lso be “void.” Id. at 92. T hus, had the statute p urported to prohibit both the concealed and open carriag e of weapons, e ffecting

an “ ent i r e d

e s t ruction of the right

, ” it would have been an obvi o u s nullity ; but even as a ban on concealed carry alone there could be “e n t e r t ained [ no] reasonable doubt but [ that] the provisions of the a c t import a r estraint on the rig ht of the citiz ens to bear arms. ” Id. at 91–92 (emphasis added). Striking down the law, the court ex plained that the
preex isting rig ht to bear arms had “no li m i ts short of the moral power o f the citiz ens to ex ercise i t , a n d i t in fact consisted i n n o t h ing else but in the liberty of the citiz ens to bear arms. Diminish that liberty

, therefore, and y ou necessarily

restrain the rig h t.” Id. at 92.

I n Simpson v. State
, the Tennessee Su p r e m e Court read
t h a t state’s Second Amendment a n a log ue just as the Bli s s court read K entucky ’s. 13 T e nn. (5 Yer.) 356 (1833), cited in Heller

, 554 U.S. at 5 85 n.9. Convicted o f the crime of affray for app earing in public “array ed in a warlike manner” (i.e., armed), Si m p s o n arg u e d that the state should have had to prove that he h a d committed a cts of phy sical v iolence to convict him. Id. at 361–62. The court ag reed, concluding in
p art that even if the common law did not r equire p r o o f o f actual violence to punish persons for merely walking around with weapons, the state constitution’s protection of the “rig ht
to k eep and to b ear arms” would trump: “[ I ] t would be g oingP E R U T A V

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much to o fa r , to impair by construction or abridg ment a constitutional privileg e which is so d eclared.” Id. at 360; c f. S t ate v. Huntly

, 25 N .C. (3 I red.) 418 (1843) (rejectin g a “r i gh t to bear arms” d efense and upholding an affray conviction of a defendant who, threatening to kill off a c ertain family

, w as caug ht c a

rry ing a n unusual weapon in public). I t went without say ing

, evidently —for the court offered little in the way of analy sis—that w hatever else the c o n stitution

me a n t by “ bear arms,” it certainly implied the rig ht to carry operable weapons in public. The court confirmed as much in 1871, h olding that an act that proscribed o penly carry ing a pistol “publicly o r privately

, without reg ard to time or place,

or circumsta n c es” went too far, e ven thoug h the statute

ex e mpted from its prohibitions th e c arry ing of long g uns. Andrews v. State
, 50 Tenn. 165, 187 (1871), cited in Heller

, 554 U.S. at 608, 629.

Thoug h the Tennessee Supreme Court announced a slig htly different view of the rig h t to bear arms in Aymette v

. S t a te , that case is plainly consistent with—and indeed affirms—the principle that the rig ht to bear arms ex tends out of doors. 2 1 Tenn. 154 ( 1840), c i t e d i n H eller

, 554 U.S. at 613–14. Commenting o n the “manifest distinction” b etween

a restrictio n on “wearing concealed weapons” (which the

c o u r t upheld) and a prohibition on open carry , the court observed with little fanfare that “[ i] n the nature of thing s , if [ persons] were not allowed to b ear arms openly

, they could
not bear them in their defense o f the State at all.” Id. a t 160. The court mar s h a l ed this point in support of the secondcateg ory p o s ition “whereby citiz ens were permitted to carry

arm s openly

, unconnected with any service in a formal militia, b ut were g iven th e r i gh t to use them only for the military purpose of banding tog e ther to oppose ty ran n y ”—a view of the rig ht’s end that Heller ex plicitly rejects. Heller

,P E R U T A V

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5 54 U.S. at 6 13 ( “[

Aymette ’s] odd reading of the rig ht is, t o be sure, n ot the one we adopt.”). Nonetheless, what remains of Aymette is its observation that the rig ht to bear arms, even if not in the service of personal self-defense, must include the rig ht to carry g uns outside the home.

The Alabama Supreme Court weig hed in that same y ear. See State v. R eid

, 1 Ala. 6 12 (1840), c ited in Heller

, 554 U.S.
at 6 29. Taking a view of the rig ht narrower than that of the Simpson court, it nonetheless declared that the constitutional
g uarantee o f “a rig ht to bear arms, in defense of [] self and the State,” meant that an Alabamian must be permit t ed to carry

a weapon in public in some fashion. I d

. at 615. Reid, f

ound
g uilty o f the “evil practice of carry ing weapons secretly

, ” challeng ed the constitutionality of the statute of conviction. Id. a t 614. Rejecting this challeng e, the court held that the state constitution’s enumeration of the rig ht did not strip the leg islature of the power “to enact l a w s in reg ard to the

manner in which arms shall be borne

. . . as may be dictated by the safety of the people and the advancement of public morals.” Id. at 616. A nd, departing to some deg ree from the approach in Bliss

, the court c o n cluded that Alabama’s

c oncealed-carry law was just such a reg ulation, g oi n g n o further than forbidding that means o f arms bearing thoug ht “to e x ert an u nhappy influence upon the moral feeling s of the
wearer, by making him less reg ardful o f the personal security of others.” I

d. at 617. The a ct ’ s n arrowness e nsured its validity :

W e do not d esire t o b e u nderstood a s maintaining

, that in reg ulating the manner o f bearing arms, the authority of the L eg islature h a s n o other limit than its o wn discretion. A
statute which, under the pretence o fP E R U T A V

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reg ulating

, a m o unts to a d estruction of the rig ht, or which requires arms to be so borne a s to render them wholly useless for the purpose of defence, w ould be clearly unconstitutional.

Id. at 616–17. Read in lig ht of the c ourt’s earlier sta t ement that a restriction on arms bearing would stand s o long as it simply proscribed the “manner in which arms shall be borne,” this passag e sug g ests that to f orbid nearly all forms of public

arms bearing would be to destroy the rig ht to b ear ar ms entirely

. 8

Embra c i n g precisely that p osition, the Georg ia Supreme Court’s d eci sion in Nunn v. S tate six y ears later—praised in Heller as “perfectly c aptur[ ing ] ” the relationship between the Second Amendment’s two clauses

, 554 U.S. at 612—made

ex p licit what Reid intimated. 1 Ga. 2 4 3 (1846), cited in Heller

, 554 U.S. at 612, 626, 629. Conv icted of keeping a pistol on his person—a statutory misdemeanor (whether the pistol was carried openly or “secretly ”)—Nunn attacked the
statute o f conviction as a n unconstit u t i onal infring ement o f his rig ht to bear arms under the Sec o n d Amendment. Id. at 246. T he court beg an with a statement of the constitutional

s t andard: “The rig ht of the whole people, old a nd y oun g, men, women and boy s, and not militia only

, to keep and bear

arms of every description, a nd n ot such merely as are used b y

8 T h e In d ian a Su

p rem e Co u rt ap p eared to tak e th e sam e v iew

. Co mp are S ta te v. Mitch ell

, 3 B lack f

. 2 2 9 (In d

. 1 8 3 3 ) (p u

b lish in g a o n e- sen ten ce

o p i n io n th at read s, “ It w as h eld in th is case, th at th e statu te o f 1 8 3 1
, p ro h ib itin g a ll p erso n s, ex cep t trav elers, f ro m w earin g o r carry in g

co n cealed w eap o n s, i s n o t u n co n stitu t i o n a l .”) with W a lls v. S ta t e , 7 B lack f

. 5 7 2
, 57 3 (In d

. 1 84 5 ) (im p ly in g t h at a citizen co u ld av o i d l e g al
tro u b l e u n der th e c o n c e a l ed w eap o n s law if “ h e ex h ib ited h is p isto l so f req u en tly th at it co u ld n ot b e said to b e co n cealed ”).P E R U T A V

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the militia, shall not b e infring ed, curtailed, or b roken in
upon, in the smallest deg ree.” Id

. a t 251. Turning to the

s t a t ute, the court reasoned that had it merely limited t h e

manner of the ex ercise of th e r ig ht to c arry , it would have withstood scrutiny . As written, however, it went too far:

W e are of the opinion, then, that so far as the
act of 1837 seeks to suppre s s the practice o f
carry in g c ertain w eapons secretly

, that it is valid, inasmuch as it does not d e p r i v e the citiz en of his natural

rig h t of self-defence, o r of his con s t i t u tional rig ht to keep and bear

arms. B ut that s o much of it, as contains a prohibition ag ainst bearing arms openly , is in conflict with the Constitution, and void ; a nd that, as the defendant has bee n indicted a nd convicted for c arry

ing a pistol, without charg ing that it w as done in a concealed
manner, under that p o rtion of the statute which e ntirely f

orbids its use, the judg ment o f the c o u rt below must be reversed, and the proceeding

quashed.

Id. I n other words, as the same court ex plained in a later case involving a defen d a n t charg e d with illicit open carriag e, to ban both the open and c oncealed carriag e of pistols “would be
t o p r o hibit the bearing of those a r ms” altog ether. Stockda l e

v. State
, 32 Ga

. 225, 227 (1861) (adding that such a set o f restrictions “would

. . . bring the A ct within the decision in Nunn’s case”).

Althoug h the Arkansas Supreme Court in State v. Buzzard appeared a t first to take t h e contrary position, viewing restrictions on carr

y ing weapons for self-defense a sP E R U T A V

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permissible p olice-power reg ulations, s ee 4 Ark. 1 8 ( 1 842);

see also F ife v. State
, 31 A rk. 455 ( 1876) (rely ing o n Buzzard
to uphold a prohibition on concealed c arry ); Carroll v. State
, 28 Ark. 99 (1872) (same), the court staked its position on two interpretations of the Second A m e n d ment rig ht that the Heller Court repudiated—and from which the Arkansas court itself later retreated. According to one judg e in the spl i n t e r ed majority

, the Second A mendment secured a rig ht to bear arms for use in mi l itia service but not a rig ht to bear arms for personal s elf-defense. Id. at 22 (opinion of Ring o, C.J

. ). W r iting separat ely

, the other judg e in the majority went further

, as s erting that the Second Amendment secured no individual right

. Id. at 32 (opinion o f Dickinson, J .); compare id. a t 43 (L acy , J
., dissenting ) (arg uing that the court should have embraced the B l i s s view). Neither interpretation survives Heller

—which is also to sa y that neither opinion elucidates the rig h t ’ s orig inally understood scope. 9 Yet it didn’t take Heller to convince the Ar k ansas Supreme Court that B uzzard could use some shearing

. W riting in 1 878, the
court c larified that while “the L eg isla t u r e mig h t, in the

ex e r cise of the police power o f the S tate, reg ulate the mode of wearing arm s , ” b a n ning “ the citiz en from wearing o r carry ing a war arm, ex cept upon his own premises or when on

a journey

. . . or whe n a ct i n g as or in a id of an officer, is an unwarranted restriction upon his constitutional rig ht to keep and bear arms.” W

ilson v. State , 33 Ark. 557, 560 (1878).

9 B y assu m in g th at th e rig h t to b ear arm s is an i n d iv id u al o n e f o cu sed on

m ilitia serv ice rath er th an self

- d ef en se, th e Ch ief J u d g e Rin g o ’ s o p in io n in Bu zza rd f

alls in to th e seco n d

- categ o ry ; J u d g e Dick in so n ’ s o p in i o n f or th e m aj o rity is co n sist e n t w ith t h e th ird

- categ o ry p o sitio n in co n clu d in g th at th e Seco n d A m en d m en t d o es n o t secu re an in d iv id u al rig h t at all.P E R U T A V

. C O U

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State v. Chandler

, an 1850 decision of the L ouisiana Supreme Court, proceeds along the li nes drawn in Nunn

. 5 L a. Ann. 4 89 (1850), cited in Heller

, 554 U.S. at 6 13, 626. Rejecting the arg ument t h a t L ouisiana’s ban on carry ing concealed weapons infring ed t he Second Amendment rig ht,
t h e court ex plained that the prohibition was “absolutely
necessary to counteract a vicious state o f society

, g rowing out of the habit of carry

ing c oncealed weapons, and to p revent bloodshed and assassinations committed upon unsuspecting persons.” Id

. a t 4 89–90. A ban on the open carriag e o f
weapons, by con t r a st, w ould enjoy no such justification. Echoing Reid , the court said:

[ Th e A c t ] interfered with no man’s rig ht to carry arms (to use its words) “i n f u ll o p en view,” which places men upon an e quality

. This is the rig ht g uaranteed by t he Constitution of the United States, and w hich is calculated to incite men to a manly a nd noble defence o f themselves, if necessary , a nd of t heir country , without any tendency to secret advantag es a

n d u n m a n l y assassinations.

Id. at 490; see also Heller , 554 U.S. at 613 (citing favorably Chandler ’s h olding that “ c i t i z e ns had a rig ht to carry arms openly ”); S tate v. Jumel

, 1 3 L a. Ann. 399, 400 (1858) (invoking Chandler f

or the proposition that “prohibiting only

a particular mode of bearing arms which is found dang erous to the peace of society

” does not infring e the rig ht).

Nine y ears later, the T e x as Supreme Court declared that “[ t] he r ig h t of a citiz e n to bear arms, in the lawful defense o f himself or the state, is absolute,” permitting even the wielding of a B o wie k

nife, “the most deadly of all weapons in commonP E R U T A V

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use.” Cockrum v. St ate , 24 Tex

. 394, 4 03 (1859). Thoug h the state le gi s l ature was free to d iscourag e the carriag e o f such an “ex ceeding [ ly ] destructive w eapon,” it could not adopt measures effectively prohibiting its use as a defensive

arm: “ [ A] dmonitory reg ul a tion of the abuse [ of the rig ht]
must n ot b e carried too far. I t c ertainly has a limit. F or if the leg islature were to a f

f i x a punishment to the abuse of this rig ht, so g reat, as in its nature, it must d e ter the citiz en from its lawful ex ercise, that would b e tantamount to a prohibition of the right .” I

d. 1 0

T h u s, the majority of nineteenth century courts ag re e d that the Second Amendment r ig ht ex tended outside the home and included, at minimum

, t h e r ig ht to carry an operable
weapon in public for the pu r p o se of lawful self-defense. Althoug h some courts a

pproved limitations on the manner o f
carry outside the home, none approved a total destruction of the rig h t to carry

in public.

I ndeed, we know o f only four cases f r o m t h a t period rejecting the presumptive-carry view. T h r ee of the four, however, are not categ o ry -one cases. See Haile v

. State
, 38 Ark. 5 64 (1882) (espousing a militia-based reading of the

10 T h e co u rt rested th is h o l d in g o n th e T ex as co n stitu tio n ’ s g u aran tee of th e rig h t to b ear arm s, n o t th at o f t h e Seco n d A m en d m en t, w h ich it read

as a s trictly ty

ran n y

- d eterrin g m easu re “ b ased o n th e id ea, th at th e peo p le

can n o t b e ef

f ectu ally o p p ressed an d en slav ed

, w h o are n o t f

i rst d isarm ed .” Co ckru m , 24 T ex

. at 4 1 0

. T h o u g h Heller

, o f co u rse, rej ects su ch a read in g

as co n trary to th e A m en d m en t’ s o rig in al m ean in g , Co ckru m retain s p ro b ativ e v alu e f

o r p u rp oses o f o u r an aly sis, as it “i l l u s t r ates th e th esis th at, w h en an an t eb ellu m co u rt co n clu d ed t h at a co n stitu

tio n al rig h t to bear

arm s h ad a self

- def en se co m

p o n en t, th en th is n o rm ally en t ailed
p resu m p tiv e carry

rig h ts, ev en as ap p lied to a v ery p o ten t an d d an g ero u s

w eap o n su ch as th e B o w ie k

n if e.” O’ Sh ea, su

p ra , at 6 3 2

.P E R U T A V

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rig ht); Hill v. State
, 53 Ga. 472 (1874) (same); English v

. S t a t e , 3 5 Tex

. 473 (1872) (same). Consequently

, they sh e d

no lig ht on the question whether, if the r ig ht to b ear arms is an individual rig ht directed to the end of self-defense, it sanctions the public carriag e of common weapons. I n t h e fourth case, State v. D uk e , t he court does beg in with the Heller -endorsed understanding of the rig ht but none t heless concludes that, while the rig h t contemplates weapon carry ing in certain places outside the home (e.g

. , one’s business) a nd in circumstances reasonably g iving rise to fear of attack, the rig ht is otherwise subject to h eavy -handed re gu lation. 42 Tex

. 455, 4 59 (1875). Yet, Duke is distingu i s h a b l e: it construed th e gu a r a n tee of the rig ht to bear arms as it appeared in the Tex as Constitution of 1869, which p ermitted “such reg u lations [of the rig h t] as the leg islature may prescribe.” Id. at 458. T h e Second Amendment’s tex t contains no such open-ended claus e r estricting its application, and we oug ht not to g o looking for an unwritten one.

4

As the Court did in Heller

, we turn nex t to the post–Civil W a r leg islative scene. Althoug h consulting post–Civil War discussions may seem to be an unusual means for discerning the orig inal public mean ing of the rig h t—particularly g iven that these discussions postdate the Second A m endment’s ratification b y three-quarters of a century —we h ew to the Su p r eme Court’s conclusion that they retain some sig nificance, albeit less than earlier interp r e t a t ions of the rig ht. See Heller

, 554 U.S. a t 614–18; see also McDonald

, 130 S. Ct. at 3038–42. Aft e r t h e Civil W ar, “there was an outpouring of discussion of Second Amendment in Cong ress and in public discourse, a s people debated whether and how
to secure constitutional righ ts f or newly freed slaves.”P E R U T A V

. C O U

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N D I E G O 33

Heller

, 554 U.S. at 614. A s this discussion was led by “those born and educated in the early 19th c entury ” near the time o f the Second Amendment’s enactment, “ their understanding o f the orig ins and continuing sig n ificance of the Amendment is instructive.” Id.

Perhaps unsurpris i n g ly

, our review sug g e sts that their understanding comports with that of most nineteenth-century
courts: then, as at the time o f the founding

, “[ t] he rig ht of the people

. . . to bear arms meant to c arry arms on one’s person.” Stephen P. Halbrook, Securing C i vil R ights, Freedmen, the Fourteenth Amendment, and the Righ t t o Bear A rms 50 (1998).

Our ex amination of the Civil W ar leg islative scene beg ins with the Supreme Court’s infamous decision in Dred Scott v

. Sanford

, 60 U .S. 393 (1856). Acc o r d ing to the Supreme Court in Dred Scott
, b lack slaves a nd their descendants “had

no rig hts w h i c h t h e w hite man was bound to respect”— pouring fuel on the flames of the nati o n ’ s a lready -blaz ing sectional crisis just four y ears b efo r e the firing on F o rt Sumter. Id. at 4 07. At the heart o f t h i s h olding was the Court’s conclusion that at no point had blacks ever b een members of the sovereig n “p eo p l e ” of the United States. I t apparently f

ollowed f rom this p remise that, as constitutional

n o n-citiz ens, blacks lacked n ot only the rig ht to “full libe r t y of speech in public and private” and “ to hold meeting s upon political affairs” but also the c o nstitutional rig ht “ to keep a nd
carry arms wherever they went .” Id. a t 4 17 (emphasis added). I t was in larg e part in reaction to Dred S cott ’s log ic, on which the B la c k C o d e s o f t h e p o s t

- w ar S o u t h p l a i n l y rested, that the Reconstruction Cong ress s p r u ng into action. H e l l er , 5 54 U.S. at 614. I t was, of course, no coincidence that the cod e s , d e sig ned to deny the p rivileg e s o fP E R U T A V

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constitutional ci t i z e n ship to the freedmen, took aim at that
most fundamental rig ht of keeping and bearing arms. Clay ton E. Cramer, The Racist Roots of Gun Control

, 4 Kan. J .L

. & Pub. Pol’y 17, 20 (W inter 1995) (“The various B lack Codes adopted after the Civil War required b lacks to obtain a license before carry

ing or poss e s s i n g firearms or bowie k nives.

. . . These r estrictive g un laws play ed a part in p rovokin g Republican efforts to g et the F ourteenth A mendment passed.”); se e also Stephen P. Halbrook, Personal Security, P e rsonal Liberty, and “The Constitutional Right to B e a r Arms”: Visions ofthe Framers of the Fourteenth A mendment

, 5 Seton H all Const. L .J

. 3 41, 3 48 ( 1995) (“One did not have
to look hard to discover state ‘statutes r elating to the carry ing of arms by n e groes’ and to a n ‘act to prevent free people o f color from carry

ing firearms.’” ( c i tations omitted)). A s Heller n o tes, “[ t] hose who o p p o s e d t h e s e i n justices f requently stated that they infring ed blacks’ constitutional rig ht to keep and bear arms.” Heller , 554 U.S. at 614.

B y all a ccount s , the model of such codes was Mississippi’s 1 865 “Act to Reg ulate t h e R e lation of Master and Apprentice Relative to F reedman, F r ee Neg roes, a nd Mulattoes,” which provided in part t hat “no freedman, free
neg ro o r mulatto

. . . shall keep or c arry fire-arms of any kind,

or any ammunition, d irk or bowie knife” and that “any freedman, free neg ro or mulatto f ound with any such arms o r ammunition” w as subject to arrest. 1866 Miss. L a ws ch. 23, §1, 1 65 (1865). The a ct, rig o ro u s l y enforced, led to a thoroug h confiscation of black-owned g uns, w hether found at home or on the person: “The militia of this country have seiz ed every g un and pistol found in the hands of t h e (so called) freedmen.

. . . T hey c laim that t h e s t a t u t e laws o f Mississippi do not r ecog n iz e the neg ro a s having any rig ht to carry a rms. They commenced seiz ing arms in town,” as w ellP E R U T A V

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as, later, “the plantations.” Harper’s W eekly

, J an. 13, 1866,
at 19, c ol. 2. A similar law enacted by a city in L o u i s i a n a, which a special report “had broug ht to Cong ress’ attention,” forbad freedmen from carry ing firearms or any other kind o f
weapon w ithin the limits of town w ithout special permission from the g o vernment and o ne’s employ e r. Halbrook, supra , a t 5 ; s ee also “The F reedmen’s B ureau B ill,” New Y o r k Evening Post
, May 30, 1866, at 2, col. 1 (“In South Carolina and F lorida the freedmen a re fo rb i d den to wear or keep arms.”).

Among the proposed leg islative solutions to the problem of the B lack Codes was a bill to a d d t o t he powers of the F reedmen’s B ureau, a federal a g ency dispatched to the South
to aid the f

ormer slav e s

. O n e senator, a Democrat from I ndiana, seemed to fear that the bill’s section securing civil rig hts to blacks would cast doubt o n the l e gi t i macy of his state’s laws securing o nly whites’ ri gh t to carry weapons openly

. See Halbrook, supra , at 8. Another senator, thoug h he opposed the bill, knew well the nature of the fundamental rig hts it soug h t to secure: They included “the subordination of the military to the civil power i n p e ace, in a war, a nd alway s,” “the writ of habeas corpus ,” and “trial by jury ,” he declared. They also include d t h e rig ht “for every man bearing his arms about him and keeping them i n h is house, his castle, for his o w n d e f en se.” Cong

. Globe, 39th Cong
., 1st Sess. 340, 371 (J a

n. 23, 1866) (Sen. H enry W inter Davis) (emphasis a dded), cited in H eller

, 554 U. S. at 616. Meanwhile, in the House, T

. D. Eliot, the chairm a n o f the Committee on F reedman’s Affa i r s , q u oted from the L ouisiana city ordinance mentioned above, citing its prohibition on “carry ing firearms” within the town as an ex ample o f the sort

o f black code that federal leg islation securing fundamental rig hts would undo. Cong. G lobe, 39th Cong
., 1st Sess. 517P E R U T A V

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(J an. 29, 1 866). Underscoring the d a n ge r that the Southern states’ abridg ement o f t h e rig ht portended for blacks, he quoted a letter from a teacher at a black school in Mary land, which told of violence p rompting “both the may or and sheriff [ to] warn[ ] the colored people to g o armed to school, (which
t h e y do).” She apparently added: “The superintendent of schools c ame down and broug ht me a revolver.” Cong

. Globe, 39th Cong
., 1st Sess. 658 (F eb. 5, 1866). Concerned by such peril, Ma s s a c husetts Cong ressman Nathaniel P. B anks proposed making the lang uag e of the act more specific by ex plicitly listing “the constitutional rig ht t o b ear arms”
among the civil rig h ts protected. Cong

. Globe, 39th Cong
., 1st Sess. 5 85 (F eb. 1, 1866). The lang uag e made it into both the first bill, which President J ohnson vetoed (thoug h he did not object to its arms-bearing provision), as well as the final version, passed by a veto-proof supermajority

. Cong

. Globe, 39th Cong

. , 1st Sess. 915–17 (F eb. 1 9, 1866); Cong

. Globe, 39th Cong ., 1st Sess. 3842 (J uly 16, 1866).

Orders of Union commanders charg ed with manag ing Reconstruction in the South lend further support to the notion that citiz ens in the post–Civil W ar era conceived of the rig ht
to bear arms as ex tending to s e lf-defense outside the h ome. The Union commanders, who were g iven a u thority over various “ departments” of the d efe a t e d South, issued orders that were just as impo rt an t to the task of securing the constitutional rig hts of libera t ed slaves as Cong ressional leg islation. “To the end that civil rig hts and immunities may be enjoy ed,” G e n e ral Daniel Sickles issued G eneral Order No. 1 f or t h e D ep artment o f South Carolina, stating in part that “[ t] he constitutional rig hts of all loy al and well-disposed inhabitants to bear arms, will not be infring ed,” thoug h such

a g uarantee neither foreclosed b ans on “the unlawful practice of carry ing concealed weapons” nor authoriz ed “any pe r s onP E R U T A V

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to enter with arms o n the premises of another ag a inst his consent.” Cong

. Globe, 39th Cong
., 1st Sess. 908 ( F e b. 17, 1866) (Rep. William L awrence) ( q uoting Sickles’ order on the floor of the House). Cong ressman W illiam L awrence of Ohio lauded Sickles’ o rde r a s just the rig ht medicine. Id. The Loyal Georgian
, a known black journal, applauded its issuance, editorializ ing that blacks “certainly

. . . h ave the

same rig h t to own and carry arms that other citiz e ns h ave.” The L oy al Georg ian (Aug usta), F eb. 3, 1866, 3
, col. 4
, cited in Heller , 554 U.S. at 615.

J ust a s it was “plainly the understanding in the post–Civil W a r Cong ress that the Second A mendment protecte d an individual rig ht to use a r ms for self-defense,” Heller

, 554 U.S. a t 616, it appears that the rig h t was also u nderstood
to encompass c arry

ing weapons in public in c ase o f confrontation.

5

W e c onsider n ex t the major “[ p] ost–Civil W a r [ c] ommentators[ ’] ” understanding of the rig ht. I d .; see also David B

. Kopel, The S

e c o n d A m endment in the Nineteenth Century
, 1 99 8 B.Y.U. L

. Rev 1 359, 1461–1503 (1998) (collecting relev an t commentary from the p eriod). The first and most influential was Thomas Cooley

, judg e , professor, and author of two leading treat i s e s on constitutional law. Quoted at leng th in Heller solely for his view that the rig ht is

an individual one, Cooley ’s works say little on t he selfdefense co m ponent o f the rig ht. Nonetheless, his treatment of the Second A mendment in his more pop u l a r treatise supports a self-defense view of the rig h t. There, he notes that “happily ” there has been “little o ccasion” for consideration b y

c o urts of the ex tent to which the rig ht may be reg ula t ed

,P E R U T A V

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citing only

— a nd witho u t disapproval—the pro-carriag e decisions in Bliss

, Nunn
, and a third c a se on “ the rig ht of selfdefence.” Thomas M. Cooley

, A Treatise on the Constitutional Limitations W hich Rest u

pon the Legisla t i ve Power of the States of the American Union 350 & n.1 (1868), cited in Heller

, 554 U .S. at 616–17. 1 1 Also of note, Cooley observes e lsewhere in the book that s t ate constitutions ty pically secure (among others) the rig h t o f each citiz en to “bear arms for th e d

efence of himself

.” Id. at 35–36 (emphasis added). Cooley ’s view of the rig ht is thus at least compatible with the mainstr e a m s elf-defense view and d id not preclude c ertain kinds of defensive weapon s bearing

. 1 2 See

11 T h e ed i t o r s o f an 1 8 7 5 ed i tio n o f B lack sto n e also h ig h lig h t ed th ese t h r e e cases in th eir d iscu ssio n o f “ [t]h e rig h t o f carry in g arm s f or s e l fp ro tectio n .” 1 W i lliam Black sto n e, Co m men ta ries o n th e La w s o f En g la n d 1 2 1 n .6 4 (Herb ert B ro o m & Ed w ard A

. Had le y e d s

. , 1 8 7 5 ). W illiam Drap er L ew is, a later e d i t o r, w ro te “ [t]h at th e rig h t o f carry in g

arm s as secu red b y th e U.S. C o n s titu tio n , an d g en erally b y State

co n stitu tio n s, d o es n o t in clu d e th e h ab i tu al carry in g o f co n cealed d ead ly

w eap o n s b y priv ate in d iv i d u als.” 1 William B lack sto n e, Co mmen ta r ies o n th e La ws o

f En g l a n d 14 4 n .9 1 (W illiam D rap er L ew is ed

., 1 8 9 7 ). Bo th th ese read i n g s, l i k e Co o l e y ’s
, p resu m e th at so m e arm s b earin g f o r self

d ef en se o u tsid e th e h o m e is en co m p assed in th e rig h t.

12 In Co o ley ’ s o th er treatise, h e o f ten d escrib ed th e rig h t to b ear arm s as

o rien ted to w ard th e g o al of citizen ry

- w id e m ilitary read in ess. T o th is en d

, “t o b ear arm s i m

p lies so m eth in g m o re th an th e m ere k eep in g ; it im p li e s th e learn in g to h an d le an d u se th em in a w ay th at m ak es th o s e w h o k eep th em read y f

o r th eir ef

f icien t u se; in o th er w o rd s, it im p lies th e rig h t to

m eet f o r v o lu n tary d is c i p l i n e in arm s, o b serv in g in d o in g so th e law s of
p u b lic o rd er.” T h o m as M. C o o l e y , T h e Gen era l Prin cip les o f Co n s titu tio n a l La w in t

h e Un ited S ta tes o

f America 2 7 1 (1 8 8 0 ), cited in Heller , 5 5 4 U.S. at 6 1 7

– 18

.

A lth o u g h o n e m ig h t b e tem p ted to read th is p assag e, an d th e sectio n in w h ich i t ap p ea r s , a s s u g g estin g th at Co o l ey b eliev ed th e rig h t t o b e d ev o ted so lely t o t

h e d ef en se o f th e co m

m u n ity

, tw o o f h i s later co m m en tsP E R U T A V

. C O U

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also Cooley

, The G eneral Principles

, supra , a t 270 (observing that the rig h t w as adopted in its inherited Eng lish form, “with some modification and enlarg ement”).

A s ec ond constitutional commentator from the e ra, also cited in Heller

, seeme d to concur in Cooley ’ s account. See J ohn Pomeroy
, An Introduction to the Constitutional Law of the United States (8th ed. 1885), cited in Heller

, 554 U.S. at 618. Thoug h Pomeroy associated the rig ht with the “ object” of “secur[ ing ] a well-reg u lated m i l i tia,” he sug g ested that, while restrictions o n the frow n ed

- u pon method of “secret”
carry ing would not violate the rig ht, restrictions on o pen carry likely would. Consistent with t h e m a jority of nineteenth century courts, Pomeroy did n ot see “laws forbidding persons to carry dang erous or concealed weapons” alone a s incompatible w ith the A mendment’s “ intent and desig n,” ( in
contrast with laws barring carry a ltog ether) for the rig ht is not absolute: “F reedom, not license, is secured.” I d. at 152–53.

The observations of Ol i v e r W endell Holmes J r. in his annotations to J ame s Kent’s canonical Commentaries on American Law
, are in accord. “As the Con s t i t u t ion of the United States

. . . declare [ s] the rig ht of the people to keep

su g g est o th erw ise. First, a later lin e in th e sam e treatise clarif ies: “ [T ]h e secret carry in g of th o se [arm s] su ited m erely to d ead ly i n d iv id u al

en co u n ters m ay b e p ro h ib ited .” Id

. at 2 7 2

. If Co oley u n d ersto od th e rig h t to allo w w eap o n s b earin g o n ly f o r t rain in g in “ d iscip lin e in arm s” an d th e lik e, th is later clarif

icatio n w o u ld n ot h av e b een n ecessary : o f co u rse th e A m en d m en t w o u ld n o t f

o reclo se restrictio n s o n co n cealed carry in g , j u st

as it w ou ld n o t f

o reclo s e restrictio n s o n o p en carry in g —o r carry in g alto g eth er. A n d seco n d

, as p rev io u s ly n o ted

, Co o ley ’ s m o re p o p u lar treatise ref

eren ced an d co n tem

p lated a s elf

- d ef en se co m p o n en t to th e rig h t. Co o ley

, A Trea tise o n th e Co n stitu tio n a l Limita tio n s , su p ra , at 3 5 0 & n .1

.P E R U T A V

. C O U

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and b ear arms,” he w r o t e , “ it h as been a subject of g rave d i s c u s sion, in some of the state courts, whether a statu t e prohibiting persons, w hen not on a journey

, o r as travellers, from wearing or c a rrying concealed weapons , b e constitutional. There has been a g reat difference of opinion

on the q uestion.” 2 J

. Kent, Commentaries on A merican Law *340 n.2 (Holmes e d

., 12th e d. 1873), c ited in Heller

, 554 U.S. at 618. Reviewing a handful o f cases “in favor of” concealed-carry restrictions and others wholly aga i n st it, Holmes tel l i ng ly ends with an analy sis of Nunn v

. State
, in which a statutory prohibition on carry ing was “adjudg ed to be valid so far as it g oes to suppress the wearing of arms secretly

, but unconstitutional so far as it prohibits the b earing

or carry ing a rms openly

. ” I

d. F or h is own part, Holmes
t h o ug ht a state a cting pursuant to its g eneral police p o w e r may (and should) p rohibit the “atrociously abused” p r a c tice

o f concealed carry

. Id. Notably

, thoug h, h e stops short o f
sug g esting that bans on arms bearing a l tog ether would be appropriate, thoug h he was obviously aware that some courts had adopted a more ag g ressive reg ulatory posture toward the rig ht.

The a ccount of Georg e Chase, y et another nineteenthcentury editor of B lackstone, also r e f lects the mainstream view of the rig ht—and quite ex plicitly so. Thoug h the rig ht
may not b e infring ed, he wrote, “ i t i s g enerally held that
statutes prohibiting the carry ing of concealed weapons are not in conflict with these constitutional provisions, since they merely forbid the carry

ing of a rms in a particular manner , which is likely to lead to breaches of the peace and p r o v o ke
to the commission o f crime, rather than contrib ute to public

or personal defence.” The American Students’ Black s t one: C o m m e n taries o n the Laws o f England 84 n.11 (Georg eP E R U T A V

. C O U

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Chase ed., 3d ed. 1890) [ hereinafter “ Chase”]

, cited in Heller, 554 U.S. at 626.

L eg al commentator J ohn Odronaux

, also cited in Heller

, understood the rig ht clearly to include arms bearing outs ide the home. Predating t h e Constitution, “[ t] he rig ht to bear

arms has alway s been the distinctive p rivileg e o f freemen,” rooted in part in the “necessity of self-protectio n t o t h e person.” J oh n Ordronaux

, Constitutional Legislation in the United States: Its Origin, and Application to the Relative Powers of Congress, and of Sta t e L e g islatures 241 (1891), cite d in Heller

, 554 U .S. at 619. He described the special province o f the privileg e in American h istory : “ E x p osed a s

our e arly c olonis t s were to the attacks of savag es, the possession of arms became an indis p e nsable adjunct to the
ag ricultural implements employ ed in the cu l t i v ation of the soil. Men w ent armed into the f i eld, and went armed to church. There was alway s public dang er.” Id. at 242. Still, for all its robustness, the Amendment h as never prevented “a State f rom enacting laws r eg ulating the manner in which arms may be carried. Thus, the carry ing of concea l e d w e a

pons may b e absolutely p rohibited without the infring ement of any constitutional rig ht, while a statute forbidding the bearing o f

arms openly w ould be such an infring ement.” Id. at 243 (adding that a state may require a p rivate citiz en to “obtain a license in order to be permitted to carry a concealed weapon”). Thus, Ordronaux squarely c omes down on the si d e of Nunn and like a

u thorities, affirming in no uncertain terms the rig ht’s viability outside the home.

That position also prevailed, to a g reater or lesser e x tent, in some of the minor late- n i n eteenth-century commentaries. H e n r y C a m p b e l l B l a c k

, H a n d b o o k o

f A m e r i c a n Constitutional Law 463 (1895) (noting that, thoug h the arms-P E R U T A V

. C O U

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b e aring privileg e belong s to individuals and is a “ natura l rig ht,” restrictions on carry ing concealed weapons are n o t unconstitutional); J ames Schouler, Constitutional Studi es: State a nd Federal 226 (1897) (“To the time-honored rig ht o f f r ee people to bear a

rms was now [ in the mid-nineteen t h

century ] annex ed,

. . . the qual i f i cation that carry

ing concealed weapons was not to be included.”); see also

, supra , n.12 (late-nineteenth-century editors of B lackstone).

That is n ot to say that this p eriod was without p roponents of a dissenting view. I nde e d

, there were several. S ee J oel Prentiss B ishop, Commentaries o n the Law of S tatutory Crimes 497–98 (1873) (disag reeing that the rig ht permits the
carry ing of weapons f

or personal self-defense); J .C. B ancroft Davis, “Appendix ,” in Samuel F reeman Miller, Lectures on the Constitution of the United States 645 (1893) [ hereinafter “Davis”] (understanding the rig ht to secure the characteristic activities o f “military bodies a n d as sociations”); Georg e B outwell, The Constitution of the U nited States at the End of the First Century 358 (1895) (same); 2 J ohn Randolph Tucker, The Constitution of the U nited States 671–72 (Henry St. Georg e T ucker ed., 1899) (same). 1 3 Y et, we must accord

13 S om e o f th ese au th o rities to o k t h eir cu es fro m th e Su

p rem e Co u rt’ s d e c i sio n in Presser v. Illin o is
, 1 1 6 U .S. 2 5 2 (1 8 8 6 ), w h ich th ey

u n d ersto o d as ty i n g th e rig h t ex clu siv el y t o m ilitia serv ice. S ee, e.g

. , Dav is, su p ra , a t 6 4 5

. J u s t ice Stev en s, d issen tin g i n Heller

, read i t sim ilarly

. Heller

, 5 5 4 U.S. at 6 7 3 (Stev en s, J
., d issen tin g ). T h e m aj o rity call e d t ha t v i ew “ sim

p l y w ro n g ,” co n clu din g th at “

Presser said n o th in g ab o u t th e Seco n d A m en d m en t’ s m ean in g o r sco p e, b ey on d th e f act th at i t d o es n o t p rev en t th e p ro h ib itio n o f priv ate p aram i litary o rg an izatio n s.” Id

. at 6 2 1 (m aj o rity

o p in io n ).

On e o th er n in eteen th

- cen tu ry au th o r cited in Heller reg isters d isap pro v al o f p u

b lic a r m s b e arin g bu t o f f ers n o leg al assessm en t of

w h eth er s u ch b earin g is w ith in th e sco p e o f th e rig h t

. S e e B en j am inP E R U T A V

. C O U

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N D I E G O 43

these commentaries little weig ht, and for the same reason we discounted the state c a s e s finding no individual or selfdefense-based rig ht to keep and bear arms: Heller tells u s that they are—and alway s have been—incorrect interpretations o f the nature and scope of the rig ht.

The weig ht of authority sug g ests that t h e rig ht to bear
arms, as understood in the post–Civil War leg al commentary , included the rig ht to carry weapons outside the home f or selfdefense, which, as shown, is consistent with the understanding of the r ig ht a rticulated in most e i gh t eenthcentury c ommentary , nineteenth-century court opinions, a nd by many post–Civil W ar political actors.

So concludes our analy sis of tex t and history : the carry ing of an operable handg un out s i d e the home f or the lawful
purpose of self-defense, thoug h s u b ject to traditional restrictions, constitutes “bear[ ing ] Arms” within the meaning of the Second Amendment.

6

Our c on c l u s i o n that the rig h t to bear arms includes the rig ht to c arry an operable f irearm outside the home f or the lawful p u rpose of s e l f

- defense is p erhaps unsurprising —other circuits faced with this question have ex p ressly h e ld, or at the

v e r y least have assumed, that this is so. Moore
, 702 F .3d at

V a u g h an A

b b o tt, Ju d

g e a nd Ju ry: A Po

p u la r Exp la n a t io n o

f Lea d i n g To p ics in th e La w o

f th e La nd 3 3 3– 3 4 (1 8 80 ) (“ Carry in g th em f o r d ef en ce, in th e m o re settled parts o f th e lan d

, sav ors o f co w ard ice rath er th an of
p ru d en ce; a w ell- beh av ed m an h as less to f ear f ro m v io len ce th an f

ro m th e b lu n d ers o f h im self a n d f rien d s in m an ag in g t

h e p isto l h e m i g h t carry as a p ro t ectio n .”), cited

in Heller , 5 5 4 U.S. at 6 1 9

.P E R U T A V

. C O U

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9 3 6 ( “ A rig ht to b ear arms thus implies a rig ht to carry a loaded g u n o utside the home.”); see a l s o , e.g. , Drake

, 724 F .3d at 431 (recog niz ing that the Secon d Am endment rig ht “ m ay h ave some application b e y o nd the home”); W oollard v. Gallagher

, 712 F .3d 865, 876 (4th Cir. 20 1 3 ) (“W e

. . . assume that the Heller rig ht ex ists outside the home

. . . .”); Kachalsky

, 701 F .3d at 89 (assuming that the Second Amendment “mu st have some application in the very different contex t of the public possession of firearms”).

Gi v en this consensus, o ne mig ht c onsider it odd that we have g one to such leng ths to trace the historical scope of the Second Amendment rig ht. B ut we have g ood reason to do so:

we must fully understand the h istorical scope of the rig ht before we can determine whether and to what ex tent the San Dieg o County policy b urdens th e r i gh t or whether it g oes

even further and “amounts to a de s t r u c tion of the rig ht” altog ether. See Heller

, 554 U.S. at 629 ( quoting Reid

, 1 Ala.
at 616–17). Heller instructs that tex t an d history a re our primary g uides in that inquiry

.

One of Heller ’s most important lessons is that the Second Amendment “codif[ ies] a pre-ex isting rig ht” whose contours

can be understood principall y t h roug h an evaluation o f contemporaneous accounts by courts, l e g islators, leg al commentators, and the like. Heller

, 5 54 U.S. at 603, 605; see also McDonald

, 1 30 S. Ct. at 3056–57 (Scalia, J
., concurring ) (“The traditional restrictions [ on the keeping and b earing o f arms] g o to show the scope of the rig ht.”). Tracing the scope of the rig ht is a necessary first step in the constitutionality analy sis—and sometimes it is the d ispositive one. S ee Heller

, 554 U

. S. a t 628–35. “[ C] onstitutional rig hts are enshrined with the scope they were understood to have when the people adopted them.

. . . ” Id. at 634–35. A law that “under theP E R U T A V

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pretence of reg ulating

, amounts to a destruction of the rig ht” would not pass constitutional muster “[ u] nde r a ny of the standards of scrutiny that we have applied to e n umerated constitutional rig hts.” Id. a t 628–29. Put simpl y , a law that destroy s (rather than merely b urdens) a rig ht central to the Second Amendment must be struck down. Id.

W e thus disag ree with those c ourts—including the district
court in this c ase—that have taken the view that it is not necessary (and, thus, necessary not ) t o d e cide whether
carry ing a g un in public for the lawful p urpose of self-defense is a constitutionally p rotected activity

. See, e.g. , Drake

, 724 F .3d at 431; W

oollard , 712 F .3d at 876; Kachalsky , 701 F .3d at 89; c

f. Masciandaro

, 638 F .3d at 475. Understanding the scope of the rig ht is not just n e c e s s ary , it is key to our analy sis. F or if self-defen s e o u t s ide the home is part o f the

core rig ht to “bear arms” and th e California reg ulatory scheme p rohibits the ex ercise o f that r i gh t , no amount o f interest-balancing under a heig htened f o rm of means-ends scrutiny can justify San Dieg o County ’s policy

. S ee Heller

, 554 U .S. at 634 (“The v ery enumeration of the rig ht takes out of the hand s of g overnment—even the Third B ranch o f Government—the power t o d ecide on a case-by -case basis whether the rig ht is really worth insisting upon.”).

B

Having concluded that carry in g a g un outside the home for self-defense comes within the mea n i n g of “bear[ ing ] Arms,” we ask whether San Dieg o County ’s “g ood c ause” permitting requirement “infring e[ s] ” the rig ht.P E R U T A V

. C O U

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1

a

To determine what constitutes an infring ement, our sister circuits h ave g rappled with vary ing sliding -scale and tieredscrutiny approaches

, a g reeing a s a g e neral matter that “the level o f scrutiny applied to g un control r e gu l ations depends

on the re gu lation’s burden o n the Second Amendment rig ht
to keep and bear arms.” Nordkye v. King
, 681 F .3d 1041, 1045–46 (9th Cir. 201 2 ) ( en banc) (O’Scannlain, J
., concurring ) ( collecting cases); see Heller II
, 670 F .3d at 1257 (requiring a “strong justification” f or reg ulations imposing a “substantial burden upon the core rig ht of self-defense”); Ezell

, 651 F .3d at 7 0 6
, 708 ( apply ing more demanding scrutiny to “severe burden[ s] on the c ore Second A mendment rig ht”); Masciandaro

, 638 F .3d a t 4 69–70 (requiring “strong justification[ s] ” for “severe burden[ s] o n t h e core Second Amendment r ig ht” (quoting Chester

, 628 F .3d at 682–83)); Marzzarella

, 614 F

. 3 d at 97 (calibrating the level of scrutiny
to the “severity

” of the burden imposed). Under this g eneral approach, severe restrictions on t h e “core” rig h t have been thoug ht to trig g er a kind of s t r i c t s crutiny

, while less severe burdens h ave b een reviewed under some lesser form o f heig htened scrutiny

. Se e , e.g. , United States v. Decastro
, 682 F

. 3d 1 60, 166 ( 2d Cir. 2012); Heller II
, 670 F .3d at 1257; Masciandaro

, 638 F .3d at 47 0 ; C h e ster , 628 F

. 3d at 682. Confronting challeng es to curtailments of the rig ht t o c a r ry , one court has applied “some form of heig htened scrutiny

. . . less than strict scrutiny

. ” K achalsky

, 701 F .3d at 93–94. Anothe r , eschewing a tiered approach, required the state to “justif[ y ] ” the burden. Moore
, 702 F .3d at 941 ( “Our analy sis is not based on deg rees of scrutiny

, but on I llinois’s f ailure to justify the most restrictive g u n law of any of the 50 states.”).P E R U T A V

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Still another has applied intermediate scrutiny

. See W oollard

, 712 F .3d at 876.

And there is, of c ourse, an alternative approach f o r the
most severe cases—the ap p r o a c h used in Heller itself. I n Heller

, apply ing heig hten ed scrutiny w as unnecessary

. No
matter what standard of review to which the Court mig ht have held the D .C. restrictions, 1 4 “banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family w ould fail constitutional muster.” Id. at 628–29 (internal q

uotation marks and citation omitted). A law e ffecting a “ d

estruction of the rig ht” rather than merely burdening it is, a f

t e r all, an infring ement under a ny lig ht. Heller

, 554 U .S. a t 629 (emphasis added) (quoting Reid

, 1 Ala. at 616–17); see also Heller II
, 670 F .3d at 1271 (Kavanaug

h, J
., dissenting ) (“ I n m y view, Heller a nd McDonald leave little doubt that c o urts are to assess g un bans and reg ulations b ased o n tex t, history

, and tradition, not by a balancingtest such as strict or intermediate scrutiny

. ”). 1 5

b

Our first task, therefore, is to assess th e n a t u r e of the infring ement that the San Dieg o County poli cy purportedly effects on the rig ht to bear arms—namely

, does it burden the rig ht or, like in Heller , does it destroy the rig ht altog ether?

14 Ex clu d i n g , o f co u rse, ratio n al b asis rev iew

. S ee Hell e r , 5 54 U.S. at 6 2 8 n .2 7.

15 In Ch o va n , w e ap p lied in term ed i ate scru tin y to a Seco n d A m en d m en t claim th at in v o lv ed “ a su b s tan tial b u rd en o n ” a rig h t o u tsid e th e co re of th e Seco n d A m en d m en t. 7 35 F.3 d at 1 13 8

. In t erm ed iate scru tin y i s n o t ap p ro p riate, h o w ev er, f

o r cases i n v o lv i n g th e d estru ctio n o f a rig h t at th e

co re o f th e Seco n d A m en d m en t.P E R U T A V

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C a l ifornia’s reg ulatory scheme addresses two ty pes o f arms-bearing : open and c o ncealed c a rry

. Under California law, open c arry i s p r o hibited in San Dieg o County 1 6
reg ardless of w hether the weapon is loaded or unloaded. See Cal. Penal Code §§ 25850, 26350. B ecause California l a w has no permitting p rovi s ion f or open carry , cf. id. §§ 26150, 26155 (providing li censing only for concealed carry ), it is illeg al in virtually

all circumstances.

California law also severely restricts c oncealed car ry , althoug h not to the same ex t e n t a s o p e n carry

. As a g eneral rule, concealed carry is not allowed reg ardless of whether the
weapon is loaded. See id. § 25400. B ut ther e a r e c e r t ain

ex c e ptions. Concealed c ar r y is acceptable with a proper permit. Id. §§ 26150, 26155. And even without a permit, it is sanctioned for particular g roups, see, e.g. , id. § 25450 (peace officers); id. § 2 5455 (retired peace off i cers); id. § 25620 (military personnel); id. § 2565 0 ( retired federal officers), in particular locations, see, e.g. , id. § 26035 (private property or place of business); id. § 26040 (where hunting is allowed), a

nd at p articular times, see, e.g. , id. § 2 6045 (when faced w ith “immediate, g rave dange r ” in the “brief interval before and after the local law enforcement ag ency

. . . has been notified of the dang er and before the a r r i v a l of its assistance); id. § 2 6050 (making or attempt i n g t o make a lawful arrest).

Clearly

, the California scheme does not p revent every person from bearing arms o utside the h o m e i n every

16 San Dieg o, lik e m o st o f th e p o p u l o u s cities an d co u n t ies in Calif o rn ia, is in co rp o rated

. See Calif o rn i a State A sso ciatio n o f Co u n ties, a va ila b le

a t h ttp ://w

w w .csa c.co u n ties.o rg /cities- w ith in

- each

- co u n ty (last v isited Feb . 4 , 2 0 1 4 ).P E R U T A V

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circumstance. B ut the fact that a small g roup o f people have the ability to ex ercise their rig ht to bear arms do e s n o t e n d

our inquiry

. B ecause the Second A mendment “confer[ s] an individual rig ht to k e e p and bear arms,” we must assess whether the California scheme deprives a ny individual of his constitutional rig hts. Heller

, 554 U .S. at 595. T hus, the question is not whether the California scheme (in lig ht of San Dieg o County ’s policy

) a l lows some people to b ear arms outside the h o m e in some places at some times; instead, the question i s w hether it allows the ty pical responsible, lawabiding citiz en to bear arms in public for the lawful purpose of self-defense. T h e a n s w er to the latter question is a resounding “no.” 1 7

I n California, the only way that t h e ty pical responsible, law-abiding citiz en can carry a weapon in public for the lawful p urpose of self-defense is with a c oncealed-carry permit. A nd, in San Dieg o County
, th a t option has been taken o ff the table. The San Dieg o County policy specifies that concern for “one’s personal safety alone” does not satisfy the “g o o d c ause” requirement for issuance of a permit. I nstead, an applicant must demonstrate that h e s u f fers a unique risk of harm: he must show “a set o f c i rcumstances that disting uish [ him] f

rom the mainstream and cause[ ] him

. . . to be placed in harm’s way

. ” G iven this requirement, the “ty pical” responsible, law-abiding citiz en in San Dieg o County cannot bear arms in public f or self-defense; a typical

17 It is w o rth n o tin g th at C alif o rn ia h as o n e o f th e m ost rest r i c t i v e g un reg u lato ry reg im es in th e n atio n

. In d eed

, i t is o n e o f o n ly eig h t s tates w i th

a “ m ay

- i ssu e” p erm ittin g reg i m e, m ean in g th at a g en eral d esire t o carry in self

- d ef en se is n o t su f

f icien t to j u stif

y ob tain in g a p erm it. S

ee Dra ke

, 7 2 4 F.3 d at 4 42 (Hard im an , J ., d issen tin g ).P E R U T A V

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citiz en fearing for his “personal safety ”

— by definition— cannot “ distinguish [ himself ] from the mainstream .”

Althoug h California law provides other specified

ex c e ptions from the g eneral p rohibition ag ainst public carry , these do little to protect an individual’s rig ht to bear arms in public for the lawfu l p u rpose of self-defense. The

ex e mptions f

or particular g roups of law e nforcement officers and military personnel do n ot p rotect the ty pical responsible, law-abiding citiz en. E x cluding private property and places o f busines s d oes not protect the rig ht to b ear arms for public confrontation. And the ex ceptions for “making or attempting
to make a lawful arrest” or for s i t u at ions of “immediate,
g rave dang e r” (to t h e ex tent that they are not entirely illusory —for how would one o btain a gu n for use in public when suddenly faced w ith such a circumstance? ) d o not cover t he scope o f the rig ht, which includes the rig ht to carry i n

case of public confrontation

, not just after a confrontation has occurred. Heller

, 554 U.S. at 584 (de f i n i n g b ear arms to

mean carry

ing a weapon “ f

or the purpose

. . . of being armed and ready for offensive or defensive action i n a case of conflict w ith another person.” (emphasis a dded) ( q u oting Muscarello

, 524 U.S. a t 143 (Ginsburg

, J
., dissenting )). T o reason by analog y , it is as thoug h San Dieg o County banned

a l l political speech, b ut e x empted from this restriction parti c u l a r people (like current or former political fig ures), particular p laces (like private p roperty ), and particular situations (like the week before an election). Althoug h these

ex c e ptions mi gh t preserve small pockets of freedom, they would d o little to prevent d estruction of the rig ht to free speech as a whole. As t h e C ourt has said: “The Second Amendment is no different.” Heller

, 5 54 U.S. at 6 35. I t too is, in effect, d estroy ed when ex ercise of the rig ht is limited to a few people, in a few places, at a few times.P E R U T A V

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c

I t is the rare la w t hat “destroy s” the rig ht, requiring Heller -sty le p er se invalidation, but the Court ha s made perfectly clear that a ban on handg uns in the home is not the only act o f its k ind. W e q uote the relevant parag raph in full, telling case citations included:

Fe w laws in the history of our Nation h a v e

come close to the severe restriction of the District’s h andg u n ba n

. A nd some of those few have been struck down

. I n Nunn v. State
, the Georg ia Supreme Court struck down a prohibition on c a

rry ing p istols openly (even thoug h it upheld a p rohibition on carry ing concealed weapons ). See 1 Ga., at 251. I n And r e w s v. State
, the T e nnessee Supreme Court likewise held that a statute that forbade openly carry

ing a pistol “publicly or privately

, without reg ard to time o r p l ace, o r circumstances,” 50 Tenn., at 187, violated the
state constitutional provision (which the court equated with the Second Amend m e n t ). That

was so even thoug h the statute did not restrict the carry ing of long g u ns. Ibid

. See a lso State

v. Reid

, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence o f
reg ulating

, amounts t o a d estruction of the rig ht, o r which requires arms to be so borne

as to render t h em wholly useless for the
purpose of defence, would be clearly unconstitutional”).P E R U T A V

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Id. at 629. I n other words, D.C.’s complete ban on handg uns in the home a m o u n t ed to a d estruction of the r ig ht precisely b e cause it matched in severity the k inds of complete ca r r y prohibitions confronted ( a n d struck down) in Nunn a nd Andrews

. These, in turn, r e se m b l e the severe restrictions in effect in San Dieg o County
, wher e t he open or concealed carriag e of a g u n, loaded or not, is forbidden. H eller teaches that a near-total prohibiti o n o n keeping arms ( Heller ) is hardly better than a near-total p rohibition on bearing them (this case), and vice versa. B oth g o too far.

2

The County p resents one further arg ument in support o f the constitutionality of its “g ood c a use” p o l i c y , w hich it perceives as its ace in the hole: the Heller Court’s d escription of concealed-carry restrictions as “presumptively lawful
reg ulatory m e a s ures.” Id. at 627 n .26. “The rig ht [ is] not a rig ht to keep and carry a

ny weapon whatsoever in any manner whatsoever a

nd for whatever p urpose,” Heller say s. Id. at 626. “F or e x ample, the majority of the 19th-century courts to consider the q

uestion held that prohibitions on c a rry ing concealed weapons wer e l awful u nder the Second Amendment and state analog ue s

. ” Id. According to the County
, this means that t h e i r concealed-carry policy (which stops just short of an all-out ban) must a lso be lawful. Erg o, this suit must fail.

Bu t t he County ’s arg ument has two flaws. F irst, it misappreh e n ds Peruta’s challeng e. This is not a case where

a plaintiff w ho is permitted to openly carry a loaded weapon attacks t h e v alidity of a state’s concealed-carry r ule because he would rather carry secretly

. Rather, Peruta and his fellow plaintiffs arg ue that the San Dieg o County policy in lig ht o fP E R U T A V

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the Cal i f ornia licensing scheme as a whole violates the Second Amendment b ecause it precludes a responsible, lawabiding citiz en f

rom c arry

ing a weapon in publi c f o r the
purpose of lawful self-defen s e i n a ny manner. True, Peruta focuses his challeng e on the licensing scheme for concealed
carry , but for g ood reason: acquiring such a license is the only practical a venue by which h e may come lawfully to carry a g un for self-defense in San Dieg o County

. See Cal. Penal Code §§ 26150, 26155 ( c r eating a licensing scheme for concealed c a rr y only ). As we have ex plained, open c arry is prohibited in San Dieg o County
, and elsewhere in California, without ex c eption. See id. §§ 25850, 26350. I t is ag ainst this backdrop o f the California c arry reg ime at larg e , Peruta
arg ues, that the unconstitutionality of the County ’s restrictive interpretation of “g ood cause” becomes apparent. His is not

an attack trai n e d o n a restriction a g ainst concealed carry a s such, or viewed in isolation. Rathe r , h e targ ets the

c o n s titutionality of the entire scheme and requests the least intrusive remedy : that the County of San Dieg o, in line with
many of the other counties in the State o f California, should be made to issue carry licenses to citiz ens whose only “g ood cause” is the H

eller -approved desire for self-defense.

The second, so m e wh at-related mistake in the County ’s
arg ument is that it read s too much into Heller ’s ostensible blessing of c o n c e a led-carry restrictions. A flat-out ban on concealed carry in a jurisdiction permitting open carry may

or may not infring e the Second Amendment rig ht—the
passag e f rom Heller clearly bears on that issue, w h i ch we need not decide. B ut whether a state restriction o n both concealed and open carry overreaches is a different matter. To that question, H

eller i t s e lf furnishes no ex plicit answer. B u t t he three authorities it cites for its statement on concealed-carry laws do. S e e H e ller

, 554 U.S. at 626. W eP E R U T A V

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have analy

z ed all three already

. The first, State v. Chandler

, stands f or the principle that laws p r o hibiting the carry o f concealed weapons are valid only so long as they do not destroy the rig ht to carry arms in public altog ether. See 5 L a

. Ann. at 489–90 (“[ The Act] interfered with no man’s rig ht to carry arms (to use its words) ‘ in full open view,’ which places men upon an equality .”); see also Jumel

, 13 L a. Ann. at 400 (citing Chandler for the principle that “prohibiting only a particular mode of bearing a rms

. . . found dang erous” does not infring e the rig ht). The second, Nunn v. State
, was even

more ex plicit: “A law which merely inhibits the wearing o f certain w eapons in a c oncealed manner is valid

. B ut so far a s it cuts o ff the ex ercise of the rig h t of the citiz en altog ether to bear arms , or , un d e r t h e color o f prescribing the mode

, renders the rig ht itself u seless—it is in conflict wit h the Constitution, and void

. ” 1 Ga. a t 243. Heller ’s third a nd final
source, Chase’s A merican Students ’ Blackstone

, takes a similar stance, concluding that, tho u gh the Constitution forbids the infring ement of the rig ht to bear arms, “s t a t u tes prohibiting the carry

ing of concealed weap o n s a r e not in conflict w ith [it or its state analogues]

, since they merely forbid the carry

ing of arms in a particular manner, which is likely to lead to breaches of the p e a c e a nd provoke to the commission o f crime, rather than contribute to public o r personal defence.” Chase, supra , at 84 n.11.

Of course, these three sources are not the only ex ponents of this view. As we have show n , d o z e ns of other cases a nd authorities f

r om the same period—many o f which Heller cites

as probative of the rig ht’s o r i g inal meaning —contend likewise. See, e.g. , Reid

, 1 A l a

. a t 6 1 6 –17 ( striking down a concealed carry law because “the L eg islatu r e [ has] the rig ht to enact laws in reg ard to the manner in which arms shall be b o r n e,” but noting that a statute that destroy s the r i gh tP E R U T A V

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altog ether under the “pretence of regu l a t i ng ” the manner o f
carry “would be clearly unconstitutional”); Bliss

, 12 K y

. (2 L itt.) a t 91 ( holding that a b an on conce a l ed carry , which “restrain[ ed] the full a

nd complete e x e r cise of [ the] r ig ht,”

was unconstitutional and void). As J udg e Hardiman aptly summariz e d “ courts have l o n g h[ e ld] that althoug h a State
may prohibit the open o r c oncealed carry of firearms, it may not ban both because a complete prohibition on public carry violates the Second Amendment a n d analog ous state constitu t i o nal provisions.” Drake

, 724 F .3d at 449 (Hardiman, J

. , dissenting ).

To b e clear, w e a re not h olding that the Second Amendment requires the s t a t e s to permit concealed carry

. B ut the Second Ame n d ment does require that the states permit some form of carry for self-defense outside the h ome. Historically

, the preferred form of carry has de p e nded upon social con vention: concealed carry was frowned upon because it was seen as “evil practice” tha t e n d a n g ered “the safety o f the people” and “ public moral s ” b y “ex ert[ ing ] an unhappy influence upon the moral feeling s of t h e wearer[ and] making h im less reg ardful of th e p e r s o nal security o f others.” Reid

, 1 Ala. a t 616– 17. States thus often passed laws banning concealed carry and state c ourts often allowed prohibitions on c oncealed carry so long as o p e n carry was still permitted. Id. ; see also Nunn
, 1 Ga. at 251 (“[ S] o far a s the act of 1837 seeks to suppre s s the practice of carry ing certain w eapons secretly

, th[ en] it is v al i d

. . . . B ut [ to the

ex tent it] c ontains a p rohibition a g ainst bearing arms openly

, is in conflict with the Constitution, and v oid .”).

California, throug h its leg islative scheme, has take n a d i fferent course than most nineteenth-century state leg islatures, e x pressing a preference f or concealed r a ther thanP E R U T A V

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open carry

. 1 8 See Cal. Penal Code § 26350 (prohibiting open carry o f an unloaded firearm); see also id. §§ 26150, 26155 (establishing a licensing procedure only for concealed carry ). And it has the power to do so: as the historical sources have repeatedly noted, the state h as a rig ht to p rescribe a particular

manner of c arry , provided t h a t i t does not “cut[ ] off the

ex e r cise of the rig ht o f the citiz en altog ether to bear arms, or, under the color o f p re s cribing the mode, render[ ] the rig ht itself us eless.” Nunn
, 1 Ga. at 243 (emphasis omitted). California’s favoring concealed carry over open carry does
not offend the Constitution

, so long as it allows one o f the
two.

To put it si mply

, c oncealed c arry per se does not fall

o utside the scope of the rig ht to bear arms; but insis t e n c e upon a p articular mode of carry does. As we have ex p lained previously

, this is not the latter ty pe of case. Peruta seeks a concealed carry permit because that is the only ty pe of p ermit available in the state. As the Califor n i a leg islature has limited its permitting scheme to concealed carry —and has thus e x pressed a preference for t h a t manner of armsbearing

— a narrow c h alleng e to th e S an Dieg o County
reg ulations on concealed carry , rather than a broad challeng e to the state-wide ban on open carry , is permissible. 1 9

18 T h is is lik ely th e resu lt o f a ch a n g i n g s o c i a l co n v en tio n in f av o r of

c o n c e a l e d rath er th an o p en carry

. S ee Vo l o k h

, Imp lemen tin g th e Rig ht

, su p ra , at 1 5 2 1 (“ In m an y p l a c e s, carry in g o p en ly is lik ely to f rig h ten

m an y p eo p le, an d to lead to so cial o stracism as w ell as co n f ro n tatio n s w i th th e p o lice.”).

19 T h e dissen t cu rio u sly m isin terp rets o u r op in io n as ru lin g o n t h e

co n stitu tio n ality of Calif

o rn ia statu tes. We d eclin e to resp o n d to its straw

m an arg u m en ts.P E R U T A V

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F or these reasons , Heller ’s favorable mention o f concealed-carry restrictions is not the silver bullet the County had hoped it was, at least not in this case.

3

Our opinion is not the first to a d dress the question o f whether the Second Amendment protects a responsible, lawabiding citiz en’s rig ht to bear arms outside the home for the lawful purpose of self-defens e. I ndeed, we are the f ifth circuit c ourt to opine ex p ressly on the issue, joining an

ex istent circuit split. Compare Moore
, 702 F

. 3 d at 936–42 (holding that “[ a ] rig ht to bear arms

. . . implies a r i ght to carry a loaded g un outside the home” and striking down the open-and-concealed- c arry reg ulatory reg ime in I llinois because the state failed to justify “so substantial a curtailment of the rig ht of armed self-defense”), with Drake

, 724 F .3d at 431–35 (recogniz ing that the rig ht t o b ear arms may have

some application outside the home, but concluding that New J ersey ’s “justifiable n e e d” permitting req u irement was a p r e s u m p t i v e l y l a w f

u l l o n g s t a n d i n g r e g u l a t i o n o r , alternatively

, that the New J ersey reg ulatory scheme survived intermediate scrutiny

); W oollard

, 712 F .3d a t 876, 879–82 (presuming that Second Amendment p r o t e ctions e x ist outside
t h e home and upholding Maryland’s reg ulatory schem e becau s e i t could not “substitute [ a different] view[ ] f o r the considered judg ment of th e General Assembly

, ” which “appropriate[ ly ] balance[ d] ” the interests involved), and K a c h alsky

, 701 F .3d at 89, 97–99 (proceeding on the “assumption” that the r ig ht to bear a rms ex tends out s ide the home, but affording “substantial deference to t h e predictive judg ments of [ the leg islat ure] ” and thus upholding the g un reg ulations under intermediate scrutiny ). Our reading

of the Second Amendme n t is akin to the Seventh Circuit’sP E R U T A V

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interpretation in M

o o re , 702 F .3d at 936–42, 2 0 and a t odds with the approach of the Second, T h i rd, and F ourth Circuits in Drake

, 724 F .3d at 431–35, W o ollard

, 712 F .3d at 876, a nd Kachalsky , 701 F .3d at 89, 97–99.

a

W e are unpersuaded by t h e decisions of the Second, Third, and F ourth Circuits for several reasons. F irst, contrary t o the approach in Heller

, all three courts declined t o undertake a complete historica l analy sis of the scope a nd
nature of the Second Amendment rig ht outside the h ome. C o mpare Heller

, 5 54 U.S. at 605 (ex amining the po s t

ratification i n t e r

p r e t a t i ons o f the Second A mendment because “the public u nderstanding of a leg al tex t in the p eriod after its
enactment or r atification” is “a critical tool of constitution al interpretation” (emphasis omitted)), with Drake

, 724 F .3d at 431 (noting that the court was “not inclined to address [ tex t, history

, tradition and p recedent] by eng aging in a round o f full-blown historical analy sis” and rel y i ng on the Second Circuit’s conclusion that “[ h ] istory and tradition do n ot speak with one voice” (quoting Kac h a lsky

, 701 F .3d at 91)); W oo l lard

, 712 F .3d at 874–76 (declining to “ impart a definitive rul i n g ” reg arding the scope of the Second Amendment rig ht), and Kachalsky

, 701 F .3d a t 91 ( refusing
to look at “ h i g h ly ambig uous history and tradition to determine the meaning of the Amendment”). As a r esult, they misapprehend both the nature of the Second A mendment rig ht and the implications of state laws that prevent the vast

2 0 T h e Su p rem e Co u rt o f Illin o is h as also f o u n d Mo o re p ersu asiv e. S ee Peo p le v. Ag u ila r , 2 01 3 IL 1 2 2 1 16
, at * 5

– 6 (Sep t. 1 2
, 2 0 1 3 ) (ru lin g “ th at th e seco n d am en d m en t p ro tects th e rig h t to p o ssess an d u se a f

irearm f or self

- d ef en se o u tsid e th e h o m e”).P E R U T A V

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majority of responsible, law-abiding citiz ens from carry ing in public for lawful self-defense purposes.

F or ex ample

, in Kachalsky

, the Second Circuit’s perfunctory g lance at th e plaintiffs’ historical arg ument misunderstood the h istorical consensus reg arding the rig ht to bear arms outside the home. Rely ing o n three cases, the court concluded that “history and tradition [ d id] not speak with o ne voice” reg arding the a

bility to r estrict public carry because at least three states “read restrictions on the pu b lic carry ing o f

w e a p o n s a s entire l y c o n s i s t e n t wi t h c o n s t i t u t i o n al prot e c t i o n s.” Kachalsky

, 701 F .3d at 90–91 (citing Fife v

. State
, 3 1 Ar k. 455 (1876), English

, 35 T e x

. at 473, a nd Andrews v. State
, 50 Tenn. 165 (1 8 7 1 ) )

. B ut in its brief historical analy sis, the court missed a critical factor: the cases it cites in favor of broad public carry restrictions adhere to a view of the Second Amendment that is a nd alway s has been incorrect. C

f

. Moore
, 702 F .3d at 941 (referencing “disag reement

. . . w ith some of the histo r i c a l analy sis in [ Kachalsky b ecause] we reg ard the historical issues as settled in H e ller ”). A ll three cases interpret the Second A mendment

as a militia-based ( rather than a self-defense-centered) rig ht; they uphold reg ulations o n carry ing pistols in public because pistols a re not the ty

pe of weapons that wo u l d b e used b y militia men. See Fife

, 31 Ark. at 461 (upholding a p rohibition
ag ainst carry

ing pistols in public because such weapons a re “used i n p r i vate quarrels and brawls” and are not “effective

as a w eapon of war, and usefu l a n d n e cessary f or ‘the

common d efense’”); English

, 35 T ex

. at 475 (“[ W ]e shall be led to the conclusion that the [ Second Amendment] protects only the rig ht to ‘keep’ such ‘arms’ a s are used for purposes

o f w ar, in distinction from those which are employ e d i n quarrels a nd broils, and fig hts b etween maddened individuals

. . . .”); Andrews

, 50 Tenn. a t 1 8 6

– 87 (affirming theP E R U T A V

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constitutionality of a law reg ulating public carry of cert ain
weapons w hich were n ot the “usual equipment of the soldier” but remanding for cons ideration of whether a revolver was the “character of weapon” used in warfare).

B e caus e t h e Second Amendment h as a lway s been an individual r ig ht to defend oneself, cases that—like these—uphold g un reg ulations because they d o not offend the militia-based nature o f the r ig ht a re inapposite and should not factor into a h istorical analy sis of the rig ht’s scope. See, e.g. , Heller

, 554 U .S. at 605. And with these cases o f f t h e t a b l e , the remaining case s speak with one voice: states may not d estroy the rig ht to bear arms in public under the g uise o f
reg ulati n g it. See, e.g. , Kachalsky

, 701 F .3d at 90 (recogniz ing that some state courts “offered interpretations o f the Second Amendment” c onsi s t ent w ith the plaintiffs’ position that “thoug h a state may reg ulate open or concealed
carry ing of handg uns, it c a

nnot ban both ”); s e e also Drake

, 724 F .3d at 449 (Hardiman, J
., dissenting ) ( n o t ing that the

“ c r u x o f the[ ] historical precedents[ ] endorsed by the Supreme Court, is that a prohibition ag ainst both o pen a nd concealed carry without a permit is d ifferent in kind, not merely in deg ree, from a prohi b i t i o n covering only one ty pe of carry ”). I n lig ht o f H

eller

, the Second Circuit erred in outrig ht rejecting history and tradition as u n h elpful a nd ambig uous, and the T hird and F ourth Circuits erred inP E R U T A V

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following suit. 2 1 S

e e Kachalsky

, 701 F .3d at 9 1; see also Drake , 724 F

. 3d at 431; W oollard , 712 F .3d at 875–76.

B y evading an in-depth analy sis o f h istory and tradition, the Second, Third, and F o urth Circuits missed a crucial piece of the Second Amendment a nal y s i s. They failed to comprehend that carry

ing w ea pons in public f

or the lawful
purpose o f self defense is a central component of the rig ht to bear a rms. See Moore
, 702 F .3d at 941 (criticiz ing the court in Kachalsky f

o r “sug g est[ ing ] that the Second A mendment

21 In d eed

, th e T h ird Circu it w en t ev en f u r t h e r t h an th at. It n o t o n ly rej ected h i sto ry an d trad itio n , b u t sp ecif ically relied o n m o re recen t m id

tw en tieth cen t

u ry d ev elo p m en ts to j u s tif y New J ersey ’ s p erm it t i ng sch em e. S

ee D ra ke

, 7 2 4 F .3 d at 4 3 2

– 3 4 ; see a lso id

. at 4 4 7

– 5 2 ( H a r d im an , J
., d issen t in g ) (criticizin g th e m aj o rity ’ s relian ce o n m id

t w en tieth

- cen tu ry New J ersey law to j u stif y n arro w in g th e sco p e o f t h e Seco n d A m en d m en t rig h t ). T h e T h ird Circu it m aj o rity co n clu d ed th at

ev en if t h e S eco n d A m en d m en t rig h t ex ten d ed o u tsid e th e h o m e, p erm i ttin g restrictio n s th at req u ired in d iv id u als to sh o w a “ j u stif i ab le n eed
to carry a h an d g u n ” in th e f o rm o f “ sp ecif

ic t h reats o r p rev io u s attack s

w h ich d em o n strate a sp ecial d an g er to t h e ap plican t’ s lif

e” w ere an alo g o u s to th e ty p e o f “ lo n g stan din g ” reg u l atio n s th at t h e S u p rem e Co u rt h ad id en tif i ed as “ p resu

m p tiv ely l aw f

u l” in Heller

. Id

. at 4 2 8

– 2 9 (m aj o rity

o p in io n ). T o reach th is co n clu sio n , th e T h ird Circu i t relied u p o n N e w J ersey l aw , w

h ich h ad in co rp o rated so m e v ersio n o f th e “ j u stif iab l e n eed ”
req u irem en t in to its p erm ittin g sch em e sin ce 1 9 2 4

. Id

. at 4 3 2

. W e rej ect th is an aly sis b ecau se i t g o es ag ain st th e an aly sis o f th e Seco n d A m en d m en t’ s sco p e em

p lo y ed in Heller an d McDo n a ld : th o se cases m ad e clear th at th e s co p e o f th e Seco n d A m en d m en t rig h t d ep en d s n o t o n p o sttw en tieth ce n t u ry d ev elo p m en ts, b u t in stead on th e u n d erstan d in g o f th e rig h t th at p red o m in ated fr o m t h e t im e o f ratif icatio n th ro u g h th e

n i n e teen th cen t

u ry

. S ee, e.g

. , Heller

, 5 5 4 U.S. at 6 0 5 ; see also Dra k e , 7 2 4 F.3 d at 45 2 (Hard im an , J
., d i ssen tin g ) (“ [R]eg ard l ess o f w h eth er New J ersey ’ s j u stif

iab le n eed req u irem en t d ates to 1 92 4 o r 1 9 6 6 f or p u rp o ses

o f th e in q u i ry , t

h ere is n o t a su f

f icien tly lo n g stan d in g trad i t i o n of
reg u latio n s th at co n d itio n th e issu an ce o f p erm its o n a sh o w in g o f sp ecial

n eed f o r self

- def en se to u p h o ld New

J ersey ’ s law

o n th at b asis.”).P E R U T A V

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s h o u l d have a much g reater scope inside the home th a n outside” and noting that the “ i n t erest in self-protection [ a nd thus in the Second Amendment rig ht] is as g reat outside a s inside the home”). A nd further, they failed to c ompre hend that reg ulations on the r i gh t , althoug h permissible to an

ex tent, could not g o so far as to enjoin co m p l et ely a responsible, law-abiding

citiz en’s rig ht to carry in public for self-defense. Such reg ulations affecting a destruction of the rig ht to bear arms , just like reg ulations that affect a destruction o f the rig ht to keep arms , cannot b e s u stained under any standard of scrutiny

. See Heller , 554 U.S. at 629.

B e cause the Second, Third, and F ourth Circuits e schewed history and tradition in their analy sis of the constitutionality of these reg ulations, despite the Supreme Court’s admonition th a t “the public understanding of a leg al tex t in the period after its enactment or ratification” is a “critical tool o f constitutional interpretation,” we find their a pproaches unpersuasive. See Heller

, 554 U.S. at 605. Our independent analy sis of history and tradition leads us to take a d i f f e rent

course.

b

B ecause our anal y s i s paralleled the analy sis in Heller itself, we d i d not apply a particular standard of heig htened scrutin y

. S

ee also Moore
, 702 F .3d at 941 (declining to subject the “most restrictive g un law of any of the 50 states”
to an “analy sis

. . . b ased on d eg r ees of scrutiny ”). Thus, the Second, Third, a

nd F ourth Circuits’ ex tensive discussions
reg arding the application of in termediate scrutiny to similar
reg ulations in other states is n ot particularly instructive to our view of the issues in this case.P E R U T A V

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Nonetheless, to the ex tent those opinions sug g est that the ty pe of reg ulation at issue here c a n w i thstand some form o f heig htened scrutiny

, it is worth noting our disag reement with their reasoning

.

W h en an a l y

zing whether a “ substantial relationship”

ex isted between the c halleng ed g un reg u lations and the g oal of “public safety and crime prevention” the Second C i rcuit concl u d e d that it owed “ substantial deference to the predictive j u d g ments of [ the leg islature] ” reg a rding the deg ree o f fit between the reg ulations a nd the pub l i c interest they aimed to serve. Kachalsky , 701 F .3d at 97. Rely ing on New York’s historical reg u lation o f h a n dg uns from 1911 to the p resent, the court d eferred to the state l e gislature’s “belief” that reg u lation o f handg u n possession would have “a n appreciable impact on public safety and crime prevention.” Id. at 97–98. I t t h u s u pheld New York’s
reg ulatory scheme, emphasiz ing that ther e was “ g eneral reticence to invalidate t h e a cts of [ our] elected leaders.” Id.
at 100 (citing Nat’l Fed’n of Indep. Bus. v. Se b e lius

, 132 S. Ct. 2 5 66, 2579 (2012)). Taking a similar approach, the Third Circuit deferred to the leg islature’s judg ment that the permitting r eg ulations would s e r v e its interest in ensuring public safety

even thoug h “New J ersey [could not] present[ ] [ t h e court] with much evidence to show how or w hy its leg islators arrived at this p redictive judg me nt.” Drake

, 724 F .3d at 437; see also id. a t 454 (Hardiman, J

. , dissenting ) (clarify ing tha t i n actuality “New J ersey

. . . provided no evidence at all to support its proffered justification

. . .”). And the F ourth Circuit, in a familiar vein, relie d on the legi slature’s judg ment that “reduc[ ing ] the nu mber o f handg uns carried in public” w ould increase public safety a nd prevent crime, despite conflicting evidence on the i s s u e

. W oollard , 712 F .3d at 879–82.P E R U T A V

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This is not a

n appropriate ap p lication of intermediate scrutiny in at least two respe c t s

. F irst, the analy sis in the Second, Third, and F ourth Circuit decisions is near-identical
to the f r eestanding “interest-balanci n g i nquiry ” that J u stice Br ey e r p r o p o s ed

— a n d t h at t h e m a j o r i t y ex p lici t l y rejected—in Heller

. S

ee Heller

, 554 U.S. at 6 89–90 (B rey er, J
., dissenting ) (proposing t h at in Second Amendment cases the cour t should “ask[ ] whether the statute burdens a protected interest in a w ay o r to an ex tent that i s o u t o f proportion to the statute’s salutary effects upon other important g overnmental interests”); see also id

. a t 634–35 (majority opinion) ( rejecting a “judg e-empowering ‘interestbalancing inquiry ’” as a test f or the constit u t i o n a lity o f S ec ond Amendment reg ulations because “no oth e r enumerated constitutional rig ht [ had its] core protecti on

. . . subjected to [ such] a freestanding ” inquiry). All three courts referenced, and ultimately relied upon, the state leg islatures’ determinations weig hing the g overnment’s interest in public

s a f ety ag ainst an individual’s interest in his Second Amendment rig ht to bear arms. See Kach a l s k y , 7 01 F

. 3d at 100 (deferring to the state leg islature’ s determination “that limiting handg un possession to p e r s o n s who have an articuable basis for believ i n g t h ey will need the weapon for self-defense is in the best interest of pub l i c s a f ety a nd outweighs the need to have a handg u n f o r an unex pected confrontation” (emphasis a dded)) ; see also Drake

, 724 F .3d
at 439 ( noting that “New J ersey has decided that this somewhat h e ig htened risk to the p ublic may be outweighed by the potential safety b enefit to a n i n d i vidual with a justifiable need to carry a handg un” (emphasis a d d e d ) (internal quotation marks o m i t t ed)); W oollard

, 712 F .3d at 880 (rely ing on the state’s determination that “the g ood-andsubstantial-reason requirement ‘ strikes a proper balance between ensuring access to h an d g un p ermits for those w hoP E R U T A V

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need them while preventing a g reater-than-ne c essary prolifera t i o n o f handg uns in public places that

. . . increases risks to public safety

. ’” (emphasis added)). A s we previously

e x plained, such an approach ig n ores the Heller cou r t ’s admonition that “the very enumeration of the rig ht takes out of the hands o f g o vernment

. . . the power to decide o n a caseby -case basis whether the r i g ht is really worth insisting upon.” Heller , 554 U.S. at 634; see also Drake , 724 F .3d at 457 (Hardiman

, J
., dissenting ) ( recog niz ing that the Heller
court “rejected this sort o f balancing inquiry as inconsistent with the very

idea of constitutional rig hts”).

Our second d isag reement w ith o ur sister circuits’ application of intermediate scrutiny r elates to the hig h deg r ee of deference they afforded the state leg islatures’ assessments of the fit between the challeng ed reg ulations and the asserted
g overnment interest they served. Al t h o ug h all three c ite T u rner Broadcasting System, Inc. v. FCC ( Turner II )

, 520 U .S. 180 (1997), for the propositi o n t h at courts must afford deference to leg islative findings

, t h ey a pply this premise in the wron g co n tex t. S e e Drake

, 724 F .3d at 436–37; W

oollard

, 712 F

. 3d at 881; Kachal s k y , 701 F .3d at 97. I n Part I I .A. of Turner
, the Court applied deference to the leg islature’s judg ment reg arding the first portion of the intermediate scrutiny analy sis: whether ther e was a “real harm” amounting to an i m p ortant g o v ernment interest a nd “whether [ the statutory provisions at issue] will alleviate it in

a material way .” Turner
, 520 U.S. at 195. B u t in P a rt I I .B
, when assessing “the fit between the asserted interests and the

means chosen to a d v a n c e them,” the Court applied n o such deference. Id. at 213. I nstead, it required the g overnment to prove that the statute did not burden the rig h t “‘substantially

more

. . . than is n ecess ary to further’ [ the g overnment’s leg itimate] in t e rests.” I d. at 214 (quoting TurnerP E R U T A V

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B r o adcasting System, I

nc. v. FCC ( Turner I

), 512 U.S. 622
, 662 (1994)).

I n Drake

, W

o o llard

, and Kachalsky

, the g overnment fai led to show that the g un reg ulations did not burden “substantially more” of the Seco n d A m endment rig ht than

was necessary to advance its aim of public safety

. I ndeed, a s the district court n oted in W oollard

, the g overnment could not show that t h e c halleng e d reg ulation served its needs any better than a random rationing sy stem, wherein g u n p e rmits

we r e l i m ited to every tenth applicant. See also Drake

, 724 F .3d at 455 (Hardi m a n , J
., dissenting ) (“[ I ] t is obvious that the justifiable need requirement [ in New J ersey ] functions as a rationing sy stem desig n e d to limit the number of handg uns c arried in [ the state] .”)

. A s t h a t court so aptly put it:

The Mary

land statute’s f

a ilure lies in the

o v e r ly broad means b y w hich it seeks t o advance this u ndoubtedly leg itimate e nd. The

r e q u i r e m e n t t h a t a p e r m i t a p p l i c a n t demonstrate “g ood and substantial reason” to carry a handg un does not, for ex a mple, advance the interests of public safety b y ensuring that g uns a

re kept out of the hands o f those adjudg e d most like ly to misuse them,

s u ch a s criminals or the mentally ill. I t doe s not ban handg uns from pl a c e s where the possibility of may

hem is most acute, such a s schools, chu rches, g overnment building s, protest g at h e ring s, or establishments that

serve alcohol. I t does n o t attempt to reduce accidents, as w ould a r equireme nt that all permit applicants c omplete a safety course. I tP E R U T A V

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does not even, as some other States’ laws do, limit the carry

ing of handg uns to persons deemed “suitable” by deny in g a permit to any o ne “whose conduct indicates that he o r

s h e is potentially a dang er to the public i f entrusted with a handg

un.”

Rather, the reg ulation at issue is a rationing sy stem. I t aims, as Defendants concede, simply to reduce the total number o f firearms carrie d outside of the h o me b y limiting the privileg e to those who can d e monstrate “g ood reason” bey o nd a g enera l desire for self-defense.

. . . .

The challeng ed reg u lation does no more to combat [ the state’ s public safety concerns] than w ould a law indiscriminately limiting the i s s u ance of a permit to every tenth applicant

. The solution, then, is not tailored to the probl em it is intended to solve. Mary land’s “g ood and substantial reason” requirement will not prevent those who m e e t it f rom having their g uns taken from them, or f rom accidentally shooting themselves or others, o r from suddenly turning to a life of crime.

. . . I f
any thing

, the Maryland re gu lation puts firearms in the hands of those most l i k ely to

use them in a violent situation by limiting the issuance of permits to “ g roups of individu a ls who are at g reater r isk than others of being the victims of crime.”P E R U T A V

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W oollard v. Sheridan

, 8 63 F

. Supp. 2d 4 62, 474–75 (D. Md. 2012) (internal citations and quotation marks omitted), rev' d sub nom. W

oollard

, 712 F .3d at 865; see als o C ity of Cincinnati v. Discovery Network, Inc.
, 507 U.S. 410, 417–18 (1993) (holding that the “city did not establish the reasonable fit” between a reg ulation p r o hibiting the distribution o f commercial handbills and a g overnment interest in safety a nd esthetics a

nd rejecting the city ’s arg u ment that it could show “a cl ose f

it between its ban o n newsracks dispensing ‘commercial handbills’ and its interest in safety a nd esthetics be ca u s e every decrease in the number of such dispensing devi c e s n ecessarily e ffect[ ed] an increase in safety and an improvement in the attractiveness of the city scape.”).

I n lig ht of the states’ failure to d emonstrate sufficient

narrow tailoring in Drake

, W oollard

, and Kachalsky

, the g un reg ulations a t issue in those cases should have b een struck down even under intermediate scrutiny

.

I I I

W e c onclude by emphasiz ing

, a s nearly e very authority

on the Second Amendment has recog niz ed, regulation of the rig ht to bear a

rms is not only leg itimate but quite appropriate. W e repeat Heller ’s a dmonition tha t “nothing in our opinion should be taken to c ast d oubt on long standing prohibitions on the possession”—or carriag e—“of firearms by felons and the

me n t a l l y ill, or laws forbidding the c arry ing of f irearms in sensitive p laces such a s schools and g overnment building s, o r la w s imposing conditions and qualifications o n the commercial sale of arms.” Heller

, 554 U.S. at 626–27. Nor should a ny thing in this opinion be taken to cast doubt on the validity of measures d e s i gned to make the carry ing o fP E R U T A V

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firearms for self-defense as safe a s possible, both to the carrier and the community

.

W e are well aw a re that, in the judg ment of many g overnments, the safest sort of f irearm-carry

ing reg ime is o ne which restricts the p r ivileg e to law enforcement wit h only

n a r r ow ex c eptions. Nonetheless, “the e nshrinement o f constitutional rig hts n ecessarily take s c ertain policy choices off the table

. . . . Undoubtedly some think that the Second Amendment is outmoded in a s ociety where our standing
army is the pride of our Nation, where well-tra i n e d p olice forc e s provide personal security

, and where g un v iolence is

a serious problem. That is perhaps debatable, but what is not debatable is that it is n ot the r ole of this Court [ or ours] to pronounce the Second A mendment e x tinct.” I d. at 6 36. Nor
may we releg ate the bearing of arms to a “second-class rig ht, subject t o a n entirely different body o f rules than the other B ill of Rig hts g uarantees that we have held to be incorporated into the Due Process Clause.” McDonald

, 130 S. Ct. at 3044.

The d istrict court erred in deny ing the applicant’s motion for summary judg ment on the Seco n d A mendment claim because San Dieg o County ’ s “g o od cause” permitt i ng requirement impermissibly infring es on t h e Second Amendment rig ht to bear arms in lawful self-defense. 2 2

REVERSED and R EMANDED

.

2 2 B ecau se w e rev erse o n th e b asis of th e Seco n d A m en d m en t issu e, w e d o n o t reach an y

o f P eru ta’ s o th er claim s.P E R U T A V

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THOMAS, Circuit J udg e , dissenting :

I n its landmark d e c i sion in Heller

, the Supreme Court held that a complete ban on handg u n possession in the home violated the Second Amendme n t

. D istrict of Columbia v

. Heller

, 554 U .S. 570, 635 (2008). I n doing so, it reminded us that: “the rig ht secured by the Secon d Amendment is not unlimited” a

nd that it “ was not a rig h t to keep and carry any weapon w hatsoever in any manner whats o e v e r and for whatever purpose.” I

d. at 626. Sig nificantly for our case, the Court then specifically discussed restrictions on carry ing concealed weapons, e x plaining that “the majority of the 19thcentury courts to consider the q uestion held that prohibitions

on carry ing concealed weapons were lawful under the Second Amendment or state ana l o gu e s.” Id. The Court then emphasiz ed that “nothing in our opinion sh o u l d b e taken to cast doubt on long standing prohibitions,” which it labeled a s “presumptively lawful.” Id. at 6 26– 27 & n.26. Heller ’s pronouncement is consistent with the Supreme Court’s prior observation that “the rig ht of the peo p l e t o keep and bear

arms

. . . is not infring ed by laws prohibiting the c arry ing o f concealed weapons.” Robertson v. Baldwin

, 165 U

. S. 275, 281–82 (1897).

This case involves California’s “pr e s umptively lawful” and long standing restrictions on carry ing concealed weapons in public and, more specifically

, an even narrower question: the constitutionality of San Di e go County ’ s policy o f allowing persons who show g ood cause t o c arry concealed firearms in publ i c

. W hen w e ex amine the justification provided for the policy , coupled with Heller ’s direction, our conclusion must be that the County ’s p olicy is constitutional.P E R U T A V

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Unfortunately

, the majority n e v er answers the question
p o s ed. I nstead, in a sweeping decision that unnecessari l y decides q uestions not presented, the majority not only strikes down San D ieg o County ’ s concealed carry policy

, but upends the e ntire California firearm reg ulatory scheme. The majority opinion conflicts with Heller

, the r easoned decisions of other Circuits, and our own case law.

Therefore, I

must respectfully

dissent.

I

W e are n ot asked in this case to determine the reach of the Second Am e n dment o utside the home or to evaluate the entirety of California’s handg

un reg ulatory

scheme. Rather, the narrow questions presented in this case are: (1) Does the

s cope of the Second Amendment ex tend to protect t h e concealed carry

ing of handg uns in public, and (2) if so, does San D ieg o County ’s policy o f allowing public co ncealed

w e a p o n c a r r y u p o n a s h o w i n g o f g o o d c a u s e unconstitutionally

infring e on that rig ht?

Second Amendment jurisprudence has rapidly evolved in the last several y ears, commencing with the Supreme Court’s
g roundbreaking d ecisions in Heller and M cDonald v. City of Chicago

, 130 S. Ct. 3020 (2010). A lthoug h these cases are o f
recent orig in, Heller and McDonald

, along with decisions o f

our sister circuits, have provided an a n a ly tical framework for

ex a mining Second Amendment challeng es, which we recently distilled in United States v. Chovan

, 735 F

. 3d 1127, 1136 (9th Cir. 2013).

The Supreme Court h as not as y et defi n ed the ex tent to which the Second A mendment applies outside the h ome, a ndP E R U T A V

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that issue h as been the subject of intens e d e b a t e in the intermediate appellat e c ourts. 1 A s J udg e W ilkinson has

o b served, the q

u estion of the e x tent of the Sec o n d Amendment’s reach b ey ond the home post- Heller is “ a v a st
terra incognita that courts should enter only upon necessity and only then by small deg re e

. ” U n ited S tates v

. Masciandaro

, 638 F .3d 458, 475 ( 4th Cir. 2011) (W ilkinson, J ., concurring ).

I n this chang ing landscape, with many quest i o n s unanswered, our role as a l o wer court is “narrow a nd

cons trained by precedent,” and o ur task “is simply to a pply
t h e t e st announced by Heller to the challeng ed provisions.” Heller v. District of Columbia

, 6 7 0 F. 3 d 1244, 1285 (D.C. Cir. 2011) (“

Heller II ”).

I n this case, we are not presented with a broad challeng e to r estrictions on carry

ing firearms o utside the home. I nstead,

we are asked a much more circumscribed q uestion concerning
reg ulation o f public carry of concealed f i r earms. As the Supreme Court emphasiz ed in Heller

, that i s sue has a much different and u n i que history than the Second A mendment challeng e at issue in Heller

, and t h e h i s tory of concealed
carry restrictions d iffers from the history of o pen carry reg ulations. Those differences are crucial to resolution of the issues in this case.

Simply put, concealed carry p resents an entirely different Second Am e n d m e nt issue from possessing handg u ns in the home for self-defense. As the Supreme Court recog niz ed in Heller

, courts and state leg islatures have long recog niz ed the

1 Co mp a re Mo o re v. Ma d ig a n , 7 0 2 F .3 d 9 33
, 9 3 5

– 3 6 (7 th C ir. 20 1 2) with Mo o re , 7 02 F.3 d at 9 4 4

– 4 9 (W i lliam s, J ., d issen tin g ).P E R U T A V

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d a n g er to public safety of allowing unreg ulated, conceale d
weapons to be carried in public. I n deed that dang er formed part of the rationale f

or allowing police “stop and frisks” in Terry v. Ohio

, 3 92 U.S. 1 (1968). As J ustice Harlan observed in that case, “[ c] oncealed weapons create an immediat e and severe dang er to the public.” Id. at 31–32.

Under Heller and Chovan

, we employ a two-part inquiry when reviewing Se c o nd Amendment challeng es to firearm
reg ulations. “The first question is whether the challeng ed law imposes a b urden on conduct falling within the scope of the Second Amendment’s g uarantee.” Chovan

, 7 35 F .3d at 1134 (citing United States v. Chester

, 628 F .3d 673, 680 (4th Cir. 2010) (internal quotation marks and citation omitted)).

“This historical inquiry se e k s to determine whether the conduct at issue was understood to be within the scope of the rig ht at t h e t i m e of ratification.” Chester

, 628 F .3d at 680. “I f it was not, then th e c h al leng ed law is valid.” Id. “ I f the challeng ed reg ulation burdens conduct t h a t was within the
scope of the Second Amendment as historically understood, then we move to the second step of a p p l y ing an appropriate form of means-end scrutiny .” Id.

I I

The first question is w hether the challeng ed law imposes

a burden o n conduct falling wi t h i n t h e scope o f the Second Amendment ’s gu a r antee. Chovan

, 735 F .3d at 1134. The Supreme Court h as i n s tructed that the core of the Second Amendment is “the rig ht of law-abiding

, responsible citiz ens to u se a rms in d efense of hearth a nd h ome.” Heller

, 554 U.S.P E R U T A V

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at 635. 2 Carry

ing c o ncealed weapons in public by definition does not inherently involve d efense of hearth and home, so the core of the Second Amendment is not implicated. Thus,

we must beg in by ex amining the conduct at issue in this case using the analy sis prescribed by Heller and Chovan

.

2 In p o st- Heller j u r i s p ru den ce, n early ev ery o th er circu it t h at h as ad d ressed th is q u estio n h as s i m ilarly id en tif i ed th e Seco n d A m en d m en t’ s

co re g u aran tee as th e rig h t o f resp o n sib le, law

- ab i d in g ad u lts to p o ssess

u sab le f i rearm s in th eir h o m es. S ee Ka ch a lsky v. Cn ty. o

f W estch e s ter , 7 0 1 F.3 d 8 1, 9 3 (2 d C ir. 2 0 12 ), cert. d en i ed

, 1 3 3 S

. Ct. 1 8 0 6 ( 2 0 1 3) (“ Heller ex p lain s th at th e ‘ co re’ p ro tectio n o f th e Seco n d A m en d m en t is th e rig h t o f l aw

- ab id in g , resp o n s i b l e c itizen s to u se arm s in d ef en se of h earth an d h o m e.”) (so m e in tern al qu o tatio n m ark s an d citatio n o m itted ); Na t’l Rifle Ass’n o

f Am., In c. v. Bu r ea u of

Alco h o l, To ba cco , Firea rms, & Exp lo s ives , 7 0 0 F.3 d 1 8 5 , 1 9 5 (5 t h Cir. 2 0 12 ) (d escrib in g “ a rig h t at th e

co re of th e Seco n d A m en d m en t ” a s “ th e rig h t o f a law

- ab id in g , resp on s ib le ad u l t to p o ssess an d u se a h an d g u n t o d ef en d h is or h er h o m e

an d f am ily ”); Un ited S ta tes v. Green o , 6 79 F.3 d 5 1 0
, 5 17 (6 th Cir. 20 1 2) ( “T h e c o re rig h t reco g n i zed in Heller is th e rig h t of law

- ab id in g , resp on s ib le citizen s to u se arm s i n d ef en se o f h earth an d h o m e.”) (in tern al
q u o tatio n m ark s an d citatio n o m itted ); Heller II
, 6 7 0 F.3 d a t 1 2 5 5 (ex p lain in g th at th e “ co re law f u l p u rp o se p ro tected b y th e Seco n d A m en d m en t” is th at o f

“ a p erso n

law f u lly to acq u ire an d k eep a f

i rearm , in clu d in g a h a n dg u

n , f o r th e p u rp ose o f self

- d ef en se in th e h o m e”) (in t ern al q u o tatio n

m ark s an d citatio n o m itted ); Un ited S ta tes v. Ba rto n , 6 3 3 F .3 d 1 6 8
, 17 0 (3 d Cir. 2 0 11 ) (“ A t th e co re o f th e Seco n d A m en d m en t is th e rig h t o f

law

- ab id in g , resp o n sib le citizen s to u se arm s in d ef en s e of h earth an d h o m e.”) (in tern al q u o tatio n m ark s an d citatio n o m itted ); Un ited S ta tes v. Ch ester , 6 2 8 F .3 d 6 73
, 6 76 (4 th C i r. 2 0 1 0 ) (ex p lain i n g th at Heller “ clearly stak ed o u t th e co re o f th e Seco n d A m en d m en t” a s “ th e rig h t o f law

- ab id in g , resp on sib le citizen s to u se arm s in d ef en se of h earth

an d h o m e”) (in tern al q u o tatio n m ark s an d citatio n o m itted ); see a l so Peterso n v. Ma rtin ez , 7 0 7 F.3 d 1 1 9 7 , 1 2 18 (1 0 th Cir. 2 0 1 3 ) (L u cero , J
., co n cu rrin g sep arately ); G eo rg i a Ca r ry.Or g , In c. v. G eo rg ia
, 6 8 7 F.3 d 1 2 4 4 , 1 2 5 9 (1 1 th

Cir. 2 0 12 ) (n o tin g th at th e H eller Co u rt “ w en t to g reat len g t h s to em p h asize th e s p e cial place t h at th e h o m e—an in d iv id u al’ s p riv ate p ro p erty

—o ccu p ies in o u r so ciety .”).P E R U T A V

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A

The majority ’s first—and crucial—mistake is to misidentify the “conduct at issue.” Chester

, 628 F .3d at 680. The majority frames the question as “whether a responsible, law-abiding c itiz en has a rig ht under the Second A mendment
to c a rr y a firearm in p ublic for self-defense.” This is certainly an important issue, but it is not the question w e a re called up o n t o a nswer. The Plaintiffs are not seeking a g eneral license to carry f i r e a r m s in public for selfdefense—they are seeking a license t o c a rry concealed firearms in public.

Properly identify ing the “conduct a t issue” is the ly nchpin of the two-step inqui ry because the first question w e ask, a s with a ll constitutional challeng es based on enumerated rig hts, is “whether the challeng ed law imposes a burden on conduct falling within the sco pe of the Second Amendment’s
g uarantee.” I

d

. (emphasis a dded). The B ill of Rig hts
g uarantees that individuals may eng ag e in specified protected conduct. Challeng es based on the B ill of Righ t s s e e k to vindicate its g u arantees by strik i n g down laws that interfere with protected conduct. I n the contex t of firearm reg ulations, “[ t] he specific consti t utional challeng e thus delineates the
proper form of relief and clarifies the part i c u l ar Second Amendment restriction that is before us.” Peterson
, 707 F .3d at 1209.

Thus, the proper analy

tic a pproach is to answer the historical inquiry as to w hether c arry ing a concealed weapon in public was u nderstood to b e within the scope o f t he rig ht protected b y the Second Amendm e n t a t the time o f

ra t ification. This ex a mination must be approached with caution, bearing in mind J ustice Stevens’ admonition t h atP E R U T A V

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“ [ i ] t is not the role of federal judg es to be amate u r historians.” McDonald

, 130 S.Ct. at 3119 (Stevens, J
., dissenting ). Care is also r equired to avoid the dang e r inherent in a n y ex ercise of h istoriog raphy : that we assemble h istory to fit a pre-conceived theory

. As judg es undertaking this

ex a mination, we must also s et aside any personal views we may h a ve on the important, but c ontentious, policy question of firearm reg

ulation.

B

Heller instructed us to look to the Second Amendment’s h i s t o r i c al backg round to understand its scope. 554 U.S. at 592; see a l

s o C hester

, 628 F .3d at 680. I n its o wn consideration of the S e cond Amendment’s h istory

, Heller identified a ca t alog ue of historical materials bearing on the
p r o v i s i o n ’ s m e a n i n g. I n e x a m i n i n g t h o s e s a m e sources—from the history of the rig ht in Eng land to the interpretations of nineteenth-century A m e rican courts a nd
commentato rs—we must c onclude that carry ing concealed
weapons has routinely been restricted, a n d has often been outrig ht banned. As the majority fairly acknowl edg es at several points in its ex tensive historical survey , nearly every

s o u r ce cited in Heller concluded that carry ing conceal e d
weapons is not part o f the rig ht to b e a r a r m s a nd that restrictions on carry i n g concealed weapons therefore do not offend the Second Amendment.

B e cause of the im p o r tance attached to the historical

sources by the Supreme Court i n H eller

, it is necessary to

ex a mine them in some detail.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 77

1

History of the Right to Bear Arms in Englan d

. Be cause the Second Amendment “codified a rig h t inherited from our Eng lish ancestors,” the Supreme Court looked to the history of the rig ht in Eng land to divine whether the Second Ame n d m e n t protected a

n individual or a c ollective rig ht. Heller

, 554 U.S. at 592–95, 599 (internal quotation marks a nd citation omitted). A look at the same history sug g ests that the “rig h t inherited from our Eng lish ancestors” did not include

a rig ht to carry concealed wea p o ns in public. See id. at 592–95.

Restrictions o n the carry ing of open and concealed
weapons in public have a long pedig ree in Eng land. The fourteenth-century Statute of Northampton provided that “ no man” shall “g o nor ride a rmed by nig ht nor by day

, in fai r s, markets, nor in the p resence of the justices or other ministers,

nor in no part elsewhere, upon pain to forfeit their armour to the King

, and their bodies to prison at the Kin g’s pleasure.” 2 Edw. 3
, c. 3 (1328). I n Sir John Knight’s Case
, an Eng lish
court ex plained that the statute h ad two purposes. 87 Eng

. Rep. 75 (K.B

. 1686). O n e “was to punish p e ople who g o armed to terrify th e K i n g ’s subjects.” I d. The o ther w as to

co d i f y the common law, which prohibited the described conduct because it promoted the s ense that “ the King [was]
not able or willing to protect h is subjects.” Id. Ultimately

, the court acquitted Sir J ohn Kni g ht under the statute’s

ex c e ption for the king ’s mini sters and servants and any o ne otherwise authoriz e d “ to keep the peace.” 2 Edw. 3
, c. 3 (1328).

F ollowing the e nactment of the Statut e of Northampton, Eng lish monarchs repeatedly c a l l ed on their o f ficials toP E R U T A V

. C O U

N T Y O F S A

N D I E G O 78

enforce it. See Pat ri ck Charles, The F aces of the Second Amendment Outside the Home: History V e r sus A historical S tandards of Review
, 60 Clev. St. L

. Rev. 1, 13–30 ( 2 01 2 ). F or e x ample, in 1579, Queen E liz a beth I called for the

e n f o rcement of the Statute of Northampton and other l a w s prohibiting the carry

ing of “Dag g es, Pistolles, and such like,
not on[ ] ly in Citie s a n d T ownes, [ but] in all partes of the Realme in common hig h[ way s]
, whereby her Majesties g ood qu[ i] et people, desirous to live in p e a c e a b l e manner, are in feare a nd dang er of their lives.” Id. a t 21 (internal quotation marks and citation o mitted). I n 1 594, the Queen ag ain called for the enforcement of g un control laws because her subjects

were being terroriz ed b y the carry ing of arms, including concealed “ pocket Dag s,” i n p u blic. Id. at 22 (internal quotation marks and citation omitted).

More than three centuries after the enactment of the Statute of Northampton, W illiam and Mary declared “[ t] hat the subjects which are Protestants may h a v e arms f or their defence suitable to their Conditions, and as allowed b y L aw.” 1 W

. & M., 2d sess., c. 2, § 7 (1689). This provision of the Eng lish B ill of Rig hts “has long bee n understood to be the predecessor to our Second Amendment.” Heller

, 554 U .S. at 593. B ut despite Eng land’s a doption o f this rig ht, the Statute

o f N o rthampton remained in full force and was stil l unde rs t o od to sharply limit the freedom to carry arms in
p u b l i c

. I n his g uide for B r itish constables, Robert Gardin e r interpreted the statute to mean that

if any Person sh a l l Ride or g o Arm’d offensi v e l y

. . . in F airs or Markets o r elsewher e , by D ay or by Nig h t, in affray o f Her Majesties Subjects, and B re a c h of the Peace; or wear or carry a n y D aggers, GunsP E R U T A V

. C O U

N T Y O F S A

N D I E G O 79

or P istols Charged ; the Constable upon sig ht
t h ereof, may seiz e and take away the i r Armour and W eapons, and have th em appriz ed as forfeited to Her Majesty

.

Robert Gardiner, The Compleat Constable

, 18

– 1 9 (1708) (emphasis added). Notably

, Gardiner disting uished b etween g oing a rmed offensively in breach o f the peace, on t h e o ne hand, and merely wearing or carry ing arms, on the other. Id. This distinction sug g ests that he considered carry ing weapons in publ i c a violation of the statute, reg ardless o f whether doing so actually breached the p e a c e

. Charles, supra , at 25–28. B lackstone confirmed this understanding :

The offense of r iding or g oing armed wi th da n gerous or u nusual weapons, is a crime
ag a i n st the p ublic p eace, by terrify ing the
g ood people of the land; and is particul a r ly prohibited by the St a tute o f Northampton,
upon p ain of forfeitur e of the arms, a nd imprisonment during the king ’s pleasure: in like manner a s, by the laws of Solon, every Athenian was finable who w alked about the city in armour.

4 W illiam B lackstone, Commentaries on the Law s of England 148–49 ( 1 s t ed. 1769) (citations omitted). According to B lackstone, the Statute of Northampton p roscribed the public
carry ing of “ d an g e r ous or unusual” weapons because doing

so terrified the people. Id. Thus, in Eng land, as in ancient Athens, it was an offense simply to g o armed—or, at least, armed in a dang erous manner—in public areas. Id.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 80

Certainly

, this history does not p rovide a r e ady or easy

answer to this case. I ndeed, hist o r y —especially history a s old as that recited here—is o ften ambig uous or contradictory

. Nonetheless, from what we know, w e can be sure tha t “ t h e rig ht we inherited from o u r Eng lish ancestors” left ample leeway for restrictions o n t h e public carry ing of firearms in the interest of public safety

.

2

Post-Ratification Commentary

. The Heller Cou r t relied heavily on the post-ratificatio n commentary of St. Georg e Tucker, W illiam Rawle, and J oseph Story

. See 554 U.S. at 605–10. Unfortunately

, these commentators revealed little o f their opinions about c oncealed weapons. Still, Rawle wrote that the Second Amendment rig ht “ ou ght not

. . . , in any g overnment, to be abused to the disturban c e of the p eace.” W illiam Rawle, A V

iew of the Constitu t ion of the United States 123 (1825). Heller cited this statement when it noted that, “[ f] rom B lackstone throug h the 19th- c entury cases, commentators and courts routinely ex p l a i n e d that the [ Second Amendment] righ t wa s not a rig h t to keep and c arry any

w e apon whatsoever in a ny manner w hatsoever and f o r whatever purpose.” 55 4 U. S

. a t 626. A t the least, Heller ’s lang uag e sug g ests t h a t there is room for restricting c ertain

manners of c arry

ing firearms where they threaten public peace and safety

.

3

Pre-Civil W

ar S tate Con s t i t utions a nd Legislation

. T o confirm its u nderstanding of the Second Am e ndment’s
gu a rantee, the Heller Court looked to state leg islation a nd
state c onstitutional provisions from the F ounding Era a ndP E R U T A V

. C O U

N T Y O F S A

N D I E G O 81

subsequent g enerations. 5 54 U.S. a t 600– 0 3

. T hese same

sources s u p p ort the conclusion that publicly carry ing concealed weapons falls outside the Second Amendment’s
scope.

B y the Fo u nding era, three of the orig inal thirteen states—Massachuse t ts, N orth Carolina, and Virg inia—had

ex p ressly adopted the Statute o f N orthampt o n. Charles,
supra , at 31–32 & n.166. There is no indication that in doing

s o these states meant to e x clude the long standi n g interpretations of the statute.

I n the early nineteenth century , states increasing ly limited the carry ing of concealed f

irearms. 3 And “ [ m ] ost states enacted laws banning the carry ing of concealed weapons

. ” 4

3 See A ct o f Mar. 2 5
, 1 81 3
, 18 1 3 L a. A cts at 1 7 2 ; A ct o f J an

. 1 4, 1 8 2 0
, ch

. 2 3
, 1 8 20 In d

. A cts a t 3 9 ; A ct o f Oct. 1 9, 1 8 21
, ch

. X III, 1 8 21 T en n

. P u b

. A cts. 1 5 (“ [E]ach an d ev ery p erso n so deg rad in g h im self

, b y carry in g

a dirk , sw o rd can e, Fren ch k n i f e, Sp an i sh

stiletto , b elt o r p o ck et p isto ls

.

. . sh all pay a f

in e.”); A ct o f Feb

. 2 1 8 3 8
, 1 8 38 Va. A cts. ch

. 1 0 1
, at 7 6 (m ak in g it u n law f

u l f o r a perso n to “ h ab itu ally o r g en erally k eep o r carry ab o u t h is p erso n an

y p isto l, d irk

, b o w ie k

n if e, o r an y o th er w eap o n o f th e lik e k in d

. . . h id d en o r co n cealed f ro m c o m m o n o b serv atio n ”); A ct of Feb

. 1
, 1 8 3 9
, ch

. 7 7
, 1 83 9 A la. A cts at 6 7– 6 8 ; A ct. o f Mar. 1 8
, 1 8 5 9
, 1 8 5 9 Oh i o L aw s 5 6 (p ro v id in g th at “ w h o ev er sh all carry a w eap on or w eap o n s,

co n cealed o n o r ab ou t h is perso n , s u c h a s a p isto l, b ow ie k n if e, d irk

, or

an y o th er d an g ero u s w eap o n , sh all b e d eem ed g u ilty .”).

4 “ S ee A ct o f Feb

. 1
, 1 8 39
, ch

. 7 7
, 18 3 9 A la. A cts at 6 7– 6 8; A ct of A p r. 1
, 1 8 8 1
, ch

. 9 6
, § 1
, 1 88 1 A rk

. Ac t s at 1 9 1 ; A ct o f Feb

. 1
, 1 8 81
, 1 8 8 1 Co lo

. Sess. L aw s at 7 4 ; A ct o f Feb

. 12
, 1 8 8 5
, ch

. 3 6 20
, 1 8 8 5 Fla. L aw s at 6 1 ; A ct o f

A p r. 1 6 , 1 8 8 1
, 1 8 8 1 Ill. L aw s at 7 3

– 7 4 ; A ct o f J an . 1 4 , 1 8 2 0
, ch

. 2 3
, 1 8 2 0 In d

. A cts at 3 9; 29 Ky

. Ge n

. S t a t

. a rt. 2 9
, § 1 (as am en ded
t h r ou g h 1 8 8 0 ); A ct o f Mar. 25
, 1 8 1 3
, 1 8 1 3 L a. A cts at 1 7 2 ; 1 8 66 Md

. L aw s, ch

. 3 75
, § 1 ; Neb

. Gen .Stat., ch

. 58
, ch

. 5
, § 2 5 (1 8 7 3 ); A ct o f Mar. 5
, 1 8 7 9
, ch

. 12 7
, 1 87 9 N.C. Sess. L aw s at 2 3 1; N.D. P en .Co d e § 4 5 7P E R U T A V

. C O U

N T Y O F S A

N D I E G O 82

Kachalsky

, 7 01 F .3d a t 95; see also Saul Cornell & Nathan DeDino, A W

ell Regulated Right: T

h e Early American Origins of G un Control

, 73 F ord. L

. Rev. 4 8 7
, 5 0 2

– 16 (2004). Georg ia banne d the sale of concealable weapons altog ether, and Tennessee promptly followed suit by banning the sale of bowie knives. A c t o f D ec. 25, 1 837, 1837 Ga. L aws 90; Act of J an. 27, 1838, ch. 137, 1837–38 Tenn. Pub. Acts 2 0 0

– 0 1

. Notably

, some of these bans contained only

narrow ex ceptions, or no ex c e p t ions at all. F or ex ample, Ohio’s concealed-carry ban al l owed a narrow ex ception for th o s e c a rry

ing a w eapon in c o nnection with their lawful employ ment where a “prudent man” would carry weapons in d e f e n s e of himself, his family

, or his property

. 1859 Ohio L aws at 56–5 7

. By contrast, Virg inia’s ban had no

ex c e pti o n s a t all, even if the defendant was acting in selfdefense when using the concealed weapon. 1838 Va. Acts ch. 101 at 76.

4

Pre-Civil W

ar Case Law

. The Heller Court relied heavily

on several early -nineteenth-cent u r y court c ases interpreting the Second Amendment a n d s t a te analog ues. 554 U.S. at 610–14. F or ex ample, when the Court pointed to prohibitions

on carry ing c once a led weapons as a prime ex ample of h ow “the rig ht secured by the S econd Amendment is not unlimit ed,” it specifically c ited the 1 846 Georg ia case Nunn

(1 8 9 5); A ct o f Mar. 1 8
, 18 5 9
, 1 8 5 9 Oh io L aw s at 5 6 ; A ct o f Feb

. 1 8
, 1 8 8 5
, 1 8 8 5 Or. L aw s at 3 3 ; A ct o f D ec. 2 4, 1 8 8 0
, n o

. 3 6 2
, 18 8 1 S.C. A cts at 4 4 7 ; S.D. T err. P en .Co d e § 4 57 (1 8 8 3 ); A ct o f A p r. 1 2
, 1 8 7 1
, ch

. 3 4
, 1 8 7 1 T ex . Gen . L aw s at 2 5

– 2 7 ; A ct o f Oct. 2 0 , 1 8 7 0 , ch . 3 4 9 , 1 8 70 Va. A cts at 5 1 0 ; W ash .Co de § 9 2 9 (1 8 8 1 ); W

. Va.Co d e, ch

. 1 4 8
, § 7 (1 8 9 1 ).” Ka ch alsky , 7 0 1 F.3 d at 9 5 n .2 1

.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 83

v. State and the 1850 L ouisiana case State v. Chandler

. Id. at 6 2 6

. Those cases, and others r elied on in Heller

, provi d e

some of the strong est evidence that the Second A mendment does not protect the carry

ing of concealed firearms in public.

I n State v. Mitchell

, 3 B lackf. 229 ( I nd. 1833), the I ndiana Supreme Court succinctly d eclared “ that the statute o f 1831, prohibiting all persons, ex cept travelers, from we a r i n g o r carry ing concealed weapons, is not unconstitutional.” Id.

I n the 1840 case of S

tate v. Reid

, the defendant—who h ad been c o n victed under Alabama’s Act of F ebruary 1, 1839, which made it a crime fo r a n y person to “carry concealed about his person, any species o f f i r e a r m s” or “any other deadly weapon”—challeng ed h i s c o n v i c t i o n u n d e r A l a bama’s arms-bearing constitutional g uarantee. 1 Ala. 6 1 2, 6 1 4–15, 616 (1840) (cited in H

eller , 554 U.S. at 629). The Alabama Supreme Co u r t b eg an its a naly sis o f the defendant’s challeng e by c onsidering the history of the rig ht to b ear arms in Eng land, including the Eng lish B ill o f R i g hts, which the
court considered to be the prog enitor of the rig ht to bear arms in Alabama. Id. at 615. After e x a m i n i n g this history

, the
court h e l d t hat Alabama’s concealed f irearm ban did not “trench upon the co n stitutional r ig hts of the citiz en.” I d. at 616. The court reasoned that Alabama’s Second A mendment analog ue “neither ex pressly nor by implication, d enied to the L eg islature, the rig ht to enact laws in r e g ard to the manner in

w h ich arms shall be borne.” Id. J ust as the Eng lis h Bi l l o f Rig hts allowed Parliament “to determine what arms shall be borne and how,” t h e A labama constitution permitted the leg islature to d etermine that carry ing concealed weapons was not a proper mode of ex ercising the rig ht t o b e a r a rms. Id. The majority c ites Reid as support for the theory that a ban on concealed weap o n s c arry would not be p ermitted ifP E R U T A V

. C O U

N T Y O F S A

N D I E G O 84

restrictions on p u b l i c carry went too far. B ut Reid plainly does not stand for that propositio n. I t rejected the “evil practice of carry

ing weapons secretly ,” id. a t 6 1 6
, a nd supported the power of t h e leg islature to proscribe the

“ m a nner in which arms shall be borne,” id

. Reid cann o t b e construed a s supporting a Second Amendment rig ht to carry concealed weapons in public.

I n the same y ear a s Reid

, the T ennessee Supreme Court considered a similar challeng e to the constitutionality of a law criminaliz ing the carry

ing of concealed weapons. A ymette v

. State
, 21 Tenn. 154 (1840) (cited in H eller

, 554 U.S. at 613). As in Reid

, th e c o u r t first considered the history o f the rig ht
to b ear arms in Eng land, including the Eng lish B ill of Rig hts under William and Mary

. Id. at 156, 157. B a sed on this history

, the court concluded that the Tennessee legi slature

was well within its powers to c r imin al i z e the carry ing o f concealed weapons:

To hold that the L eg islature could pass no law
upon this subject by which to preserve the public peace, and protect our citiz ens from the
terror which a w anton and unusual e x hibition of a r ms mig ht produce, or their lives f rom being endang ered by desperado e s with

concea l e d a rms, would be to pervert a g reat political rig ht to the worst of purposes, and to make it a social e v il of infinitely g reater

ex tent to society t h a n would result f rom abandoning the rig ht itself.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 85

Id. at 159. 5 T he c ourt’s opinion also included the following
passag e, w hich is qui t e r e l e v ant in assessing its v iew o f leg islative power:

Supose [ sic] it were t o suit the whim of a set of ruffians to enter the theatre in the midst o f the performance, with drawn swords

, g uns, and fix ed bay onets, or to e n ter the church in the same manner, during service, to the terror of the audience, and this were t o become habitual; can it be that it would be bey ond the
power of the L e g islatu r e to p ass laws to remedy such an e v il? Surely not.

. . . The convention, in secur ing the public political

r i gh t in question, did not intend to take a wa y from the L eg islature all power o f reg ulating the social relations of the citiz e ns upon this subject.

Id. at 159.

The majority concedes that A y m e tte does not support a Second Amendment rig h t to bear concea l ed weapons, but
arg ues that it is relevant to other Second Amendment rig hts. However, if the “conduct at issue” here–the rig ht to bear concealed weapons in public–is not protected by the Second Amendment, the ex i s t en ce of other rig h ts is not relevant to our inquiry

.

5 A s th e m a

j o r ity o b s erv es, th e Su

p rem e Co u rt rej ected Aymette ’ s

co n clu sio n th at t

h e Seco n d A m en d m en t en sh rin ed o n l y a m ilitia- cen tered

r i g ht. Heller

, 5 5 4 U.S. at 6 1 3

. Ho w ev er, t h e Co u rt d id n ot q u e s t i o n Aymette ’ s reaso n i n g w ith resp ect to th e v alid ity o f th e state’ s pro h ib itio n

o n th e carry in g o f

co n cealed w eap on s. Id

.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 86

I n State v. Buzzard

, 4 Ark. 18 (1842), the A rkansas Supreme Court held that the Arka n s a s l aw b a nning the wearing of concealed weapons was not contrary to either the Arkansas or U nited States Co n stitution. Id. at 28. As the Chief J ustice wrote:

The act in question does n ot, in my judg ment, detract any

thing f rom the power of the people
t o defend their free state a nd the establishe d institutions of the country

. I t inhibits only the wearing of certain arms c oncealed. This is simply a reg u l a t ion as to the manner o f bearing suc h arms as are specified. The
pr actice of so bearing them the leg islative department of the g overnment has determined
to be wr o n g, or a t least inconsistent with

sou n d policy

. So far, that department had a discretion in r eg a

rd to the subject, over which the judiciary

, as I c o nceive, h a s no control, and therefor e , t he duty of the courts must be the same, whether the policy of the l a w be
g ood or bad. I n either event it is binding

, a nd the o b l ig ation of the courts to enforce its provisions, when leg a lly called upon to do so, is imperative.

Id. at 27.

I n the 1846 case o f N

u n n v. State
, the defendant—who had been convict ed for carry ing a pistol in violation o f Georg ia’s Ac t of December 25, 1837—challeng ed his conviction under the Second Amendment a n d G eorg ia’s analog ous constitutional provision. 1 Ga. at 245, 247 (cited in Heller

, 5 5 4 U .S. at 612, 626). After considering State v

.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 87

R e id a nd the Kentucky case Bliss v. Commonwealth

, t h e Georg ia Supreme Court concluded that a law prohibiting the
carry ing of concealed weapons d oes not violate the rig h t to keep and bear arms. Nu n n , 1 Ga. at 247, 251. Rely ing on Reid , the court ex plained

that so far as the a ct of 1837 seeks to suppress th e practice of carry

ing c ertain weapons secretly

, . . . it is valid, inasmuch a s i t does
not deprive th e citiz en of his natural rig ht o f self-defence, or of his constitutio n a l rig ht to keep and bear arms. B ut that so much of it, a s contains a prohi b i t ion ag a inst bearing a rms

o penly

, is in conflict with the Constituti o n , and void

. . . .

Id. at 2 51. B ecause the criminal c harg e s had n ot specified the

manner in w hich the defendant carried his pis t o l

, t h e court reversed his conviction. Id.

Nunn p lainly does n ot support the notion that b earing concealed weapons falls within the protection of the Second Amendment. I t stands for precisely the opposite proposition. Nonetheless, the majority embraces Nunn as supporting other S ec ond Amendment r ig hts. I t arg ues that, if those other rig hts are restricted, then the leg islature could not prohibit concealed carry

. However, N u n n does not say that. I ts holding is that Georg ia’s analog ous c onstitutional protection

o f the rig ht to bear a

rms did not include the rig ht to ca r r y concealed weapons. 6

6 T h e m aj o rity also claim s th at a later Geo rg ia case, S t o ckd a le v. S ta te , 3 2 Ga. 2 25 (1 86 1 ), e x p l a in ed th at “ to b an b o th th e o p en an d co n cealed carriag e o f pisto ls” ‘ w o u ld be to p ro h ib it t h e b earin g o f t

h o se arm s ’P E R U T A V

. C O U

N T Y O F S A

N D I E G O 88

F inally

, in State v. C h a ndler

, the L ouisiana Supreme Court joined its counterparts in Alabama, Tennessee, a nd Georg ia to hold that a state law c riminaliz ing the carry ing o f concealed we apons did not conflict with the Second Amendment. 5 L a

. Ann. 489, 490 (1850) (cited in Heller

, 554 U.S. at 613, 626). Ac c o r d i ng to the court, the statute “became absolutely necessary to counteract a vicious state o f society

, g rowing out of the habit of carry i n g c oncealed
weapo n s , and to prevent bloodshed and assassinations committed upon unsuspecting p e r s o n s .” Id. at 489–90. I t further ex plained that the statute

i n t e rf e red with no man’s rig ht to carry a rms

. . . in f ull open view, which p laces men upon

an equality

. T h is is t he rig h t g uaranteed b y the Cons t i tution of the United States, a nd which is calc u l a ted to incite men to a manly and noble defence o f themselves, if necessary ,

alto g eth er.” T h is stretch es S to ckd a le f ar b ey o n d w

h at it actu ally said

. In th at case, th e def

en d an t h ad b e e n c h a rg ed w ith v io latin g a s tatu te th at f o rb ad e th e carry in g o f co n cealed w e a p on s. Id

. at 2 2 6. T h e d ef en d an t req u ested th e j u d g e to in stru ct th e j u ry th at h e w as n o t g u ilty so lo n g as h e

w o re h is p isto l in su ch a w ay th a t o th er p eo p le co u ld see th at it w as a p isto l. Id

. T h e j u d g e ref

u sed

, an d in stead in stru cted th e j u ry th at th e d ef en d an t w as g u ilty so lo n g as a n y p o rtio n o f h is p isto l w as h id den f ro m

v iew

. Id

. at 2 2 6 –2 7

. T h e Geo rg ia S u prem e Co u

rt rev ersed th e d ef en d an t ’ s co n

v ictio n , h o ld in g th at th e trial j u d g e’ s in stru ctio n s w er e

erro n eo u s. Id

. at 2 2 7

– 2 8

. T h e co u rt reaso n ed th at it is im p ossib le to carry

a p isto l w ith o u t co n cealin g at least s o m e p o rtio n o f it, so req u i rin g t h at

ev ery in ch o f th e p isto l b e ex p o sed to v iew w o u ld m a k e it p ractically im p o s sib l e t o carry it, t

h ereb y v i o latin g Nu n n ’ s ad m o n itio n th at an y reg u latio n th at p ractically p ro h ib its a p erso n f ro m b earin g arm s o

p en l y is

u n co n stitu

tio n al. Id

. at 22 7

. S to ckd

a le w as a sim

p le ap p licatio n of Nu n n ’ s clear h o ld i n g , an d th e m a j o r i t y is w

ro n g t o attrib u te a d if

f eren t m ean in g to it.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 89

and o f their country , without any tendency to secret advan

t a g e s a n d u n manly assassinations.

Id. at 490 (internal quotati o n m a r k s o mitted). Eig ht y ears later, the L ouisiana Supreme Court reaffirmed its hol d i n g , ex p laining that the state’s concealed-carry ban did not violate the Second A mendment because it “prohibit[ ed] only a particular mode of bearing arms which is found dang erous to the peace o f society .” State v. Jumel

, 13 L a. Ann. 399, 399–400 (1858) (emphasis in orig inal).

To be sure, there was at least o ne state hig h court whose voice was o ut of tune with this nineteenth-century chorus. I n the 1822 case of Bliss v. Commonwealth , the Kentucky hig h
court reversed the defendan t ’ s conviction for carry ing a concealed w eapon ( a sword in a cane). 1 2 Ky

. at 93 (cited in H e l l er , 554 U.S. at 585 n.9). The court held that under t h e Kentucky constitution, any restraint or reg ulation o n the rig ht
to bear arms, including r eg ulations on the m anner of carry , w e r e void. Id. at 9 2, 93. Therefore, the cour t s a w n o difference between acts forbidding the carry ing of concealed
weapons and acts forbidding the carry ing of weapons o penly

. Id.

But the reig n of Bliss w as short-lived in Kentucky

. The ruling was met with d isbelief by t h e Kentucky leg islature. I ndeed, “ [ a] committee o f t h e Kentucky House o f Representatives concluded that the state' s Supreme Court h ad misconstr u ed the meaning of the state' s constitutional provision on arms bearing .” S a u l Cornell, The Early American O rigins of the Modern Gun Control Deba te: The Right to Bear Arms, F

irearms Regulation, and the Lessons of H istory
, 17 Stan. L

. & Pol' y Rev. 5 71, 586 (2006) (c i t i n g J ournal of the Kentucky House o f Representatives 75.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 90

(F rankfort, K

y

. 1837)). I t issued a sting ing criticism of B liss

. Id. An d Kentucky eventually amended its constitution specifically to overr

u l e B liss

. See id. at 587; Ky

. Const. o f 1850 art. XI I I
, § 25 (“[ T] h e rig h ts of the citiz ens to bear arms in defence of themselves a nd the State shall n o t b e questioned; but the General Assembly may p as s l a w s to prevent persons from carry ing conce a l ed arms.”). A s Professo r Cornell concluded, the holding of B liss was “biz arre and out of touch with mainstream leg a l a nd constitutional thinking in the e a rly Republic.” Cornell, 17 Stan. L . & Pol' y

Rev. at 586.

Bliss was clearly a judicial outlier. The courts in Buzzard

, Reid

, Aymette
, and Nunn all c onsidered Bliss ’ s conclusions and ex pressly rejected them. Nunn
, 1 Ga. at 247–48, 251; Aymette
, 21 Tenn. a t 160; Reid

, 1 Ala. at 617; Buzzard

, 4 Ark. 25–26. Reid speculated that Bliss ’ s solitary p osition was the result of the unique lang uag e of Kent u c k y ’s constitution. 1 Ala. at 6 1 9. Aymette more d irectly questioned the
correctness of Bliss ’s reasoning

, ex plaining that “ there is a manifest distinction” between carry ing arms s e cretly a

nd
carry ing arms openly

. 21 Tenn. at 1 6 0

. Buzzard pointedly disag reed with Bliss , observing :

However c a

p tivating such arg uments may appear upon a merely c asual o r superficial view of the subject

, t h ey are believed to be specious, and to rest u pon premises at variance with all the fundamental principles
upon w hich the g o vernment is based; and that,
upon a more mature a

nd c areful investig ation,

as to the o bject f

or which the rig ht was retained their fallacy becomes evident. The dang ers to b e apprehended from the ex istenceP E R U T A V

. C O U

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N D I E G O 91

a n d e x ercise of such rig ht, not only to socia l orde r , domestic tranquillity and the uprig ht and inde pendent administration of the
g overnment, but also to the e stablished institutions o f the country , appears so obvious

as to induce the belief that they are present to every intellige n t mind, and to render their statement here unnecessary

.

4 Ark. 25–26.

I n short, Bliss does not in a n y way a lter the g reat w eig ht of early -nin e t e e nth century cases holding that carry ing concealed weapons is conduct that falls outside the bounds o f Second Amendment protection.

5

Post-Civil W

ar Legislat i o n and Commentary

. Even thoug h laws enacted after the Civil W ar we re far removed from the F o u nding E r a , the Heller Court found them instructive for discerning the Second Ame n d m e nt’s nature. 554 U.S. at 614. L ikewise, the Cou r t l ooked to post-Civil W a r commentaries for illumination. Id. at 6 1 6

– 1 9. These

s o u rc es further cemented the understanding of the early

nineteenth- c en t ury courts that concealed carry is not protected by

the Second Amendment.

B y the latter half of the nineteenth c entury , mo s t s t a t e s had enacted bans or limitations on the carry ing of concealed
weapons. See Kachalsky

, 70 1 F. 3 d at 95 & n.21 (collecting statutes). D uring that time, three states and one territory even passed total b ans on carry ing of p istols, whether concealed o r open. Id. at 90 (citing C h

. 9 6
, § § 1–2, 1881 Ark. Acts atP E R U T A V

. C O U

N T Y O F S A

N D I E G O 92

191–92; Act of Dec. 2
, 1 8 75, ch. 52, § 1, 1876 Wy o. T err. Comp. L aws, a t 352; Act of A pr. 12, 1871, ch. 34, § 1, 1871 Tex . Gen. L aws at 25; Ch. 13, § 1, 1870 Tenn. Acts at 28).

D es pite these w idespread restrictions on the carry ing o f conceal e d weapons, leg al c ommentators saw no Second Amendment violations. J ohn Pomeroy wrote that the Second Amendment’s “inhibition is c e r t ainly not violated by laws forbidding persons to carry dang erous or concealed weapons.” J ohn Norton Pomeroy
, An Int r o duction to the Constitutional Law of the United States 1 52–53 (1868) (cited in Heller

, 554 U.S. at 618). L ike the Court i n H e l l er , he compared the Second Amendment to the F irst: “The clause is analog ous to the one securing freedom of speech and o f the
press. F reedom, not license, is secured; the f air use, n o t t h e libellous abus e, is protected.” Id. ; see Heller

, 554 U.S. at 618.

I n his edition o f Kent’s Commentaries
, J ustice Holmes noted a “g reat difference o f opinion” amon g the state courts

on whether prohibitions on carry ing concealed weapons were constitutional. 2 J ames Kent, Commentaries on A m er ican Law *340 n .2 (Oliver W endell Holmes, J r. ed., 12th e d. 1 873) (cited in Heller

, 554 U.S. at 6 1 8, 626)

. After summariz ing the state co u r t s ’ cases (including those discussed above), he sided with the courts that found such prohibitions constitutional: “As the practice of carry ing concealed
weapons has been often so atrociously abused, i t w o uld be
very desirabl e , o n principles of public policy

, that the respective leg islatures shou l d h ave the competent power to secure the public peace, and g uard ag ainst personal violence by such a precautionary

provision.” Id.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 93

Georg e Chase, like J ustice Holmes, concluded i n The Americ a n Students’ Blackstone (1884) that concealed
weapons bans were necessary to e n sure public safety

, and that th e y w e re widely deemed lawful: “ [I ] t is g enerally held that
statutes prohibiting the carry ing of c oncealed weapons are not in conflict with these constitutional provisions, since they merely forbid the carry

ing of arms in a particular m anner, which is likely to lead to breaches of the p e a c e and provoke
to the commission o f crime, rather th an contribute to public

or personal defence.” Chase, s u p r a , at 85 n.11 (cited in Heller , 554 U.S. at 626) (emphasis in orig inal).

J ohn Ordrona u x wr o te that althoug h “[ t] he rig h t to bear

arms has alway s been the distinctive p rivileg e o f freemen,” the Second Amendmen t does not limit a state’s power to “enact[ ] laws reg ulating the m a n n er in which arms may be carried. T hus, the carry

ing of c oncealed weapons may be absolutely prohibited without the infring ement o f a ny constitutional right .” J ohn Ordronaux

, Constit u t ional Legislation in the United S tates 241 (1891) (ci t e d in Heller

, 554 U.S. at 619) (some emphasis added).

I n a ddition to these c o m m e ntators cited in Heller

, the majority recog niz es other commentators who concluded that th e S e cond Amendment was n ot c oncerned w ith concealed
carry

. F or ex ample, Henry Campbell B lack wrote simply that “[ t] he rig ht to bear arms is n ot infring ed b y a state law
pr o hibiting the carry

ing of concealed deadly weapons.” H e n r y C a m p b e l l B l a c k

, H a n d b o o k o

f A m e r i c a n Constitutional Law 4 63 (1895). And the editor o f a n 1 8 9 7 edition of B lackstone wrote that “the r ig ht of ca r r y i n g arms

as s e c u r e d by the U.S. Constitution, and g enerally by State constitutions, does not i n c l ude the habitual carry ing o f concealed d eadly weapons b y private individuals.” 1 W illiamP E R U T A V

. C O U

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N D I E G O 94

B lackstone, Commentaries on the Laws of England 144 n.91 (W illiam Draper L ewis ed., 1897).

6

G i ven this ex tensive history

, it is n o t surprising t h a t i n 1897 the Supreme C o u r t endorsed the view that carry ing concealed w eapons is not protected conduct under the Second Amendment. Robertson , 165 U.S. at 281–82. I n rejecting a challeng e under the Thirteenth A mendment, the Court noted that the freedoms enumerated in the B ill of Rig hts are subject
to “certain well-recogn i z e d e x ceptions.” Id. at 281. As an

ex a mp l e of such a well-recog niz ed ex ception, the Court

ex p lained that “the rig ht of the people to keep a nd bear arms

. . . is n ot infring ed by laws p rohibiting t he c arry ing o f concealed weapons.” Id. a t 281–82. Altho u gh this passag e is old, no case, including H eller

, has ev er called it into question.

Most of o ur sister cir c u i t s that h ave c onsidered the question have reached similar c onclusions. I n Drake v

. Filko

, 724 F .3d 426 (3d Cir. 2013), the Third Circuit considered the New J e rsey Handg un Permit L aw, which required persons who wished to carry

a handg un in public to apply for permit and show “

justifiable need.” Ag ainst a Second Amendment challeng e, t h e Third Circuit held that “ the requirement that applicants demonstrate a ‘justifiable need’ to p ublicly car r y

a handg un for self-defense qualifies as a ‘presumptively lawful,’ ‘long standing ’ r eg ulation and therefore d oes not burden conduct within the scope o f the Second Amendment’s
g uarantee. Id. at 429–30.

I n Peterson
, the Tenth Circuit considered a Sec ond Amendment chal l eng e to Colorado’s concealed handg unP E R U T A V

. C O U

N T Y O F S A

N D I E G O 95

licensing reg ime, which restricted the issuance of licenses to Colorad o residents. The Tenth Circuit concluded that “[ t] here can b e l i t t l e doubt that bans on the concealed
carry ing of firearms are long standing .” 707 F .3d at 1 210. After conducting

an historical analy sis, the Court concluded that “the Second Amendment does not confer a rig ht to carry concealed weapons.” Id. at 1211.

Althoug h the Second Circuit did not reach the question o f the scope of the Second Amendment, it c oncluded that “state
reg ulation o f the use of firearms in p ublic was ‘ e n s hrined with[ in ] t he scope’ of the Second Amendment when it was adopted” and that “ex tensive state reg ulation o f h a ndg uns has

never been c o n s i dered incompatible with the Second Amendment.” Kachalsky , 701 F .3d at 96, 100.

C

I n sum, employ ing the a n aly sis prescribed by the Supreme Court, the answer to the historical inq u i r y i s clear:
carry ing a c oncealed w eapon in public was not understood to be within the scope of the rig ht protected by th e S econd Amendment a t the time of r atification. This conclusion is in

a c c o r d with Heller ’s r e c o gn i t i o n t h a t t h er e we r e “long sta n d i n g p r o h i b i t i o n s ” o n f i r e a r m s t h a t were “presumptively lawful,” 544 U.S. at 626–27 & n.26, and the Supreme Court’s observation in Robertson that “the rig ht o f the people to keep and bear a rms

. . . is not infring e d by laws prohibiting the carry

ing of concealed weapons,” 165 U.S. at 281–82. S

e e Peterson
, 707 F .3d a t 1211. B ecause the rig ht asserted is not protect e d by the Second Amendment, our inquiry should be at an end: San Dieg o County ’s g ood cause requirement for a person to carry a concealed weapon in San Dieg o County

is constitutional. Chester , 628 F .3d at 680.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 96

I I I

B e cause the act of carry

ing concealed weapons in public is not protected by the Second Amendment, it is unnecessary to reach the second part o f t h e Second Amendment inquiry

. However, even if we were to assume that San Dieg o County ’s
g ood cause requirement implicates the Second Amendment, I woul d conclude that the San Dieg o County policy easily passes constitutional muster.

The second Chovan inquiry is whether the challeng ed
g overnm ent action survives means-end scrutiny under the

a p p r o p r i a t e level of r eview. Chovan

, 735 F .3d at 1136. I n Second Amendment analy sis, the level of scrutiny depends on “‘(1) how close the la w co m e s t o the core of the Second Amendment rig ht,’ and ‘(2) the severity of the law’s burden

on the rig ht.’” Id. a t 1 138 (quoting Ezell v. City of Chicago

, 651 F .3d 684, 703 (7th Cir. 2011)).

The core o f the Second Amendment rig ht is “the r ig ht o f law-abiding

, responsible citiz ens to u s e arms in d e fense o f hearth and h o me.” Heller

, 554 U.S. at 635. Carry ing conceal e d w eapons in p ublic d oes not implicate the core rig ht. Assuming

, for arg ument’s sake, that the burden placed in this case on w h a tever Second Amendment rig hts ex tend outside the home is substantial, the n application o f intermediate scrutiny is approp r iate. Chovan

, 735 F .3d at 1138.

Surviving intermediate scrutiny requires “ (1) the
g overnment’s stated objective t o be sig nificant, substantial,

or important; and ( 2) a reasonable fit between the challeng edP E R U T A V

. C O U

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N D I E G O 97

reg ulation a

nd th e asserted o bjective.” Id. at 1139 (citing Chester , 628 F .3d at 683). 7

The County

claims that its application of the g ood cause requirement protects the public peace and protects “the safety of the p ub lic from unknown p ersons carry ing concealed, loaded firearms.” As the Supreme Court has repeatedly made clear, public safety and preventing crime are important, indeed compelling

, g overnment interests. See, e.g. , S chenk v

. P r o-Choice Network of W

. N.Y

. , 519 U.S. 3 57, 376 (19 9 7 ) (public safety is a sig nifi c ant g o vernment interest); United States v. Salerno

, 481 U.S. 739, 750 (1987) (preventing crime is a compelling g overnment interest).

The County arg ues that the g o od cause requirement helps protect public safety beca u s e it reduces the number o f concealed firearms circulating in public. Accor d i n g t o the County
, reducing the number of g u ns carried i n public ensures public safety

by , among other thing s:

• L imiting the lethality of v iolent crimes. According to

an ex pert declaration filed in support of the County ’s motion for summary judg ment, even thoug h the
g eneral availability of g uns may or may not influence the a bsolute number of violent crimes, when g uns a re

7 W e are n o t alo n e i n th is ap p li c a t i o n

. O t h e r circu i t s th at h av e

co n sid ered a restrictio n sim i lar to th e g o o d cau s e req u irem en t h a v e ap p lied in term ed iate scru tin y

. S

ee W o o lla rd v. Ga lla g h er , 7 1 2 F.3 d 8 6 5
, 8 6 9
, 8 7 6 (4 th Cir. 2 0 13 ) (ap p ly in g in term ed iate s cru t in y to a Mary lan d statu te req u irin g a p p lican ts to dem o n s trate a “ g oo d an d su b stan tial reaso n to

w ear, carry , o r tran sp o rt a h an d g u n ” in o rd er to o b tain a licen s e to d o so ); Ka ch alsky

, 7 0 1 F.3 d at 9 6 (ap p ly in g i n term ed iate scru tin y to a New Yo rk
statu te req u irin g a p p lican ts to dem o n s trate “ p ro p er cau s e” i n o rd er to

o b tain a licen s e to carry co n cealed h an d g u n s).P E R U T A V

. C O U

N T Y O F S A

N D I E G O 98

used in such crimes it is much more li k e ly that the crime will result in the death of the victim.

• L imiting th e ability o f criminals to leg ally take advantag e of stealth and surprise.

• Protecting police officers and e nsuring their practical monopoly on armed f

orce in public. A ccording to the County
, more than ninety percent of poli c e officers who are killed in the line of duty are killed with g uns.

• L imiting the d ang er to other members o f t h e public. The d ecision to carry a c oncealed firearm i n p ublic

ex p o ses other people to increased risk of injury o r death without their knowledg e or control.

• L imiting the likelihood that minor altercations i n public will escalate into fatal shooting s.

The County p r esented data showing that the m o re g uns

are carried in public, the more likely it is that violent crimes will result in death and detailing t h e specific risks posed b y concealed weapons.

Obviously

, the Plaintiffs disag r ee with the efficacy of the policy to achieve these g oals, a n d h a v e marshaled evidence challeng ing c onventi o nal wisdom a bout the correlation between violence a

n d the prevalence of handg uns. B ut ours is not the f

orum in which to resolve that debate. Rather, we

owe “substantial deference t o the predictive judg ments” o f leg islative bodies. Turner Broad. Sys. Inc. v. FCC
, 520 U.S. 180, 195 (1997). “I n the contex t of f irea r m reg ulation, the leg islature is ‘far better equipped than the judiciary ’ to make sensitive public policy judgm e nts (within constitutionalP E R U T A V

. C O U

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N D I E G O 99

limits) concerning the dang ers in car r y i n g firearms a

nd the

manner to combat thos e r i s k s.” Kachalsky

, 7 01 F

. 3d at 97 (quoting Turner Broad. S ys. Inc. v. FCC
, 512 U.S. 622, 665 (1994)). As the Second Circuit aptly e x plained, “[ i] t is the leg islature’s job, not ours, to weig h conflicting evidence a nd make po l i cy judg ments.” Id. at 99; accord W oollard

, 712 F. 3 d at 881. F urther, the test o n the first step o f intermediate scrutiny only requires that “the g overnment’s stated objective to b e sig nificant, substantial, or important.” Chovan , 735 F .3d at 1139.

The second inquiry in an intermediate scrutiny analy sis is whether there is “a reasonable f i t b etween the challeng ed

r eg ulation and the asserted objective.” Id. F irst, as t h e majority properly n o tes, California does not impose a complete ban on the carry ing of concealed weapons in public. Cal. Penal Code § 25400. A g un owner’s residence, place o f business, and private property are e x empt from § 25400. Id.
at § 25605. Carry

ing a concealable firearm within a vehicle is n ot a crime if the firearm is within a vehicle and is either locked in the vehicle' s trunk or in a locked contain er

. Id

. at § 25610. Peace officers, retired officers, military personnel, and retired federal office r s are permitted to carry concealed
weapons. I

d. at §§ 25450, 25455, 25620, 25650. Hunters a nd
ang lers may carry concealable firearms while hunting o r fishing

. Id. at § 25640. Secti o n 25400 does not apply to transportation of firearms to or from g un shows or similar events, id. at § 25535, nor does it apply to people practicing shooting targ ets at established targ et rang es , w h ether public

or private, id. at 25635. 8 And, of c o urse, California is a

8 Carry in g a co n c e a l a b l e f irearm is perm itted in a n u m b er of o th er circu m s tan ces. S

ee g en era lly id

. at § § 2 54 5 0– 2 5 6 5 0

.P E R U T A V

. C O U

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“may -issue” state, in which concealed public carry is allowed with a proper permit. Id. § 26150.

B ec a u se of these ex ceptions, the California Court o f Appeal concluded that Cal i fornia’s concealed carry statutes

were “ narrowly tailored to protect the public,” and did “ not substantially burden defendant’s ex er ci s e of his Second Amendment rig ht.” People v. Ellison

, 196 Cal.App.4th 1342, 1351, 128 Cal.Rptr.3d 245, 252 (Cal.App. 2011).

Second, the San D i e g o County “g ood cause” p ermit requirement itself d oes not preclude all carry ing of concealed
weapons in public. I t limits the risk to pub l i c safety b y reducing the number of g uns in public circulation, but a llows those who will most li k e l y need to defend themselves in public to carry a handg un. I n this way , the licensing scheme is “oriented to the Second A mendment’s pr o t e c tions.” Kachalsky

, 701 F .3d at 98. Of course, the g o od cause requirement is not perfect. Not every one who may ultimately need the protection of a handg un may o b t ain a permit, a nd there is a r isk that some c oncealed-carry license holders may misuse their firearms. B ut the g ood cause requirement does
not have to be perfect; indeed

, it is unrealistic to ex pect any reg ulatory measure to perfectly solve the problem to which it is addressed, especially a problem as complex as g un violence. Rather, under intermediate scrutiny

, the challeng ed
reg ulation must strike a r e asonable balance between the burdened rig ht a n d the public n eed. B y g ranting concealedcarry licenses only

to those who are known to need them for self-defense, the g ood cause requirement strikes a reasonable balance between individuals’ interest in self-defense and the public’s interest in limiting the proliferation of handg uns in public spaces.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 101

W h en viewed objectively

, the San Dieg o Count y “ g ood cause” policy easily s u r v ives intermediate scrutiny

. The
g overnment has identified sig nificant, subs tantial, o r i m portant objectives and provided a r easonable fit b et w e e n the challeng ed reg u lation and the a s serted objective. Therefore, even if the Second Am e ndment protection were

ex tended to provide a rig h t t o c arry concealed weapons in public, t h e “ g ood cause” San Dieg o County r equirement would still pass constitutional muster.

I V

Rather than employ ing the straig htforward methodolog y prescribed by Chovan

, the majority w anders off in a different laby rinthian path, both in its analy sis of the Second Amendment r ig ht a t issue a n d its analy sis of the g overnment reg ulation in question. I n doing so, it conflic t s with the instruction of the Supreme Court, the holding s of ou r s i ster circuits, a nd our o wn circuit precedent. I t needlessly intrudes and disrupts valid and constitutional leg islati v e c hoices. I must respectfully

disag ree with its approach.

A

Th e majority never answers the q uestion as to whether
carry ing concealed we a p o ns in p ublic is protected under the Second Amendment. Rather, it eng ag e s in a broader circular inquiry

. I t first ex c eeds the b ounds o f Heller by d etermining that the Seco n d Amendment p rotects at least some conduct outside the home. I t then r e a sons that because the Second Amendment protects some conduct outside the h ome, states may not completely prohibit carry ing handg uns outside the home. T he majority then ex amines the California reg ulatory scheme a n d c oncludes that, because California bans openP E R U T A V

. C O U

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carry in most public a r ea s, it must allow concealed carry without the n ecessity of showing g ood cause. Therefore, it
reasons, San Dieg o County ’s “g ood cause” requirement must be unconstitutional.

1

The majority ’s log ical t a p estry quickly unravels under close ex amination. I f c arry ing c once aled firearms in public f alls outside the Second Amendment’s scope, t h e n nothing —not even California’s d ecision to restrict other, protected forms of c arry

—can mag ically endow that conduct with Second Amendment protection.

An analog y to the Fi rst Amendment contex t illustrates this p oint. See Heller

, 554 U.S. a t 5 9 5 (analog iz ing the Second Amendment to the F irst). T here are, of course, certain ty p e s of speech that d o not fall within the protection of the F irst A mendment, such as child pornog raphy

, obscene material without serious literary

, art i s tic, political, o r scientific value, “fig hting w ords,” and speech that materially assists a fore i gn terrorist org aniz ation. 9 I f a state decided to ban all protected F irst Amendment speech, would that bring child pornog raphy

, obscenity

, “fig h ting w ords,” and material

a ssistance to a foreig n terrorist org aniz ation under the protection of the F irst A mendment? Of cou r s e not. However, that is p recisely the flawed reasoning that the majority employ s.

9 See New Yo rk v. F

e rb e r , 4 5 8 U.S. 7 4 7
, 7 6 4 (1 9 8 2) (ch ild
p o rn o g rap h y ); Ro th v. Un ited S ta tes , 3 5 4 U .S. 4 7 6
, 4 8 4 (1 9 5 7) (o b scen ity ); Ch a

p lin sky v. New Ha mp sh i re , 3 1 5 U.S. 5 6 8, 5 7 1– 7 2 (1 9 4 2) (f ig h tin g w ord s); Ho ld

er v. H u ma nita ria n La w Pro

ject
, 1 3 0 S. C t. 2 7 0 5
, 2 7 2 2

– 2 3 (2 0 1 0 ) (m aterial assistan ce to terro rists).P E R U T A V

. C O U

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The same log ic a

pplies in the Second A mendment
contex t. I f certain c onduct falls o u tside the scope of the Second Amendment, t h en r estrictions on that conduct a re valid, reg ardless of t h e r eg ulatory landscape g overning dif f e r e n t activities. Chester

, 628 F

. 3d at 680. The majority

s imply makes up the rig ht out of whole cloth, or perhaps

more aptly p ut, no cloth. Reg ulation of unrelated c o n d u ct cannot create a new rig

ht where none ex isted before.

Unsurprising ly

, the majority does not—and cannot—cite
any authority that supports its a ssertion. I t claims that several nineteenth-century sources cited in Heller support i t s p roposition. As I have discussed, those sources support no such proposition. I n Chandler

, the L ouisiana Supreme Court

ex p lained that a concealed weapons b a n “int erfered with no man’s rig ht to carry arms” under the Second Amendment, which it defined a s the rig ht to car r y a r m s “in full open view.” 5 L a. Ann. 489, 490 (1850). I n N u n n , the Georg ia Supreme Court held that “[ a] law which m erely inhibits the wearing of certain weapons in a concealed manner is valid

. ” 1 Ga. 243, 243 (1846) (emphasis in orig i n a l ) ; s e e also id. at 251. I n Reid

, the Alabama Supreme Court ex p l a i n ed that a conceal ed-carry ban did not “come in collision with the constitution” beca

u s e i t s o u g ht to “promote personal security ” by “inhibit[ ing ] the w earing o f c e r tain weapons, in such a

manner as is calculated to ex ert an unhappy influence upon t he moral feeling s of the wearer, by making h im l e s s reg ardful of the personal security of others.” 1 Ala. 6 12, 617 (1840). And Georg e Chase’s American Students’ Blackstone
notes a consensus that “statutes prohibiting the car r y i n g o f concealed w e apons are not in conflict with these constitutional provisions, since they merely forbid t h e

c a rry ing of arms in a particular manner, which is likely to lead to breaches o f the p eace and provoke to the commissionP E R U T A V

. C O U

N T Y O F S A

N D I E G O 104

of crime, rather than contrib u t e to public or personal defence.” 1 The American Students’ B l a c kstone 84 n.11 (Georg e Chase ed. 1884) (emphasis in orig inal).

Alt h o ug h a ll the nineteenth-century cases cited by the majority cautioned ag ainst restrictions on the open c a rry ing of weapons, none of them–ex cept the discredited, o utlier Bliss

– sug g ests that rest r i ctions on carry ing concealed
weapons implicate the Second Amendment. See Chandler

, 1 L a. A nn. at 4 90; Nunn
, 1 Ga. at 251; Reid

, 1 Ala. at 616–17. And n o thing in these cases or Chase’s Blackstone even h ints
t h a t a restriction on carry ing concealed weapons wou l d become invalid if restrictions we r e p laced on open carry

. Rather, they sug g est that re s t r ictions o n concealed carry a re alway s v a l i d

, while there are limits to restrictions on open carry

.

The majority concedes that it is in con f l i c t w ith the Second, T hird, and F ourth Circuits in D r ake

, W oollard

, a nd Kachalsky

. However, it insists that it is in ac c o r d with the Seventh Circuit’s decision in Moore

. B ut Moore did not involve a challeng e to the implementation of a “ g ood cause” requirement to carry a concealed weapon in public. Rather, it was a direct challeng e to an I llinois law banning almost all forms of carry

ing a loaded firearm outside the home and did
not involve “narrower, better tailored restrictions” such as the

one at issue here. S

ee Moore v. Madigan

, 708 F

. 3d 901, 904 (7th Cir. 2013) (Hamilton, J
., dissenting from denial o f rehearing en banc).

2

The majority essentially concedes tha t the Plaintiffs’ challeng e to San Dieg o County ’s “g ood cause” policy f ailsP E R U T A V

. C O U

N T Y O F S A

N D I E G O 105

unless w e consider California’s reg ulator y s c heme in its entirety

. According to the majority

, the Plaintiffs’ challeng e “is not a n a t t ack trained on a restriction ag ainst concealed
carry as such, o r viewed in isolation.” Rather, t h e P laintiffs “ta rg et[ ] the constitutionality o f the entire scheme” of carry reg ulation in California. I ndeed, if California did not restrict
open carry , Plaintiffs wou ld h ave n o cause for complaint. And, of course, if California law permitted unrestricted concealed public carry , there w ould be no case a t all. I t is b y California statute that local Sheriffs are invested with the discretion t o g rant concealed c arry p ermits. Plaintiffs’ real quarrel is with the statute. Their theory is that t he statutory discretion afforded Sheriffs should b e uniformly ex cised. Thus, b y argu i n g that the Second Amendment compels the County t o interpret “ g ood cause” to include a g eneral desire
to carry a concealed g un, t h e P l a intiffs in reality a re challeng ing the c onstitutionality of the § 26150 g ood cause provision. Their proposed remedy o f pre v enting California Counties from ex ercising discretion eliminates t h e statutory “g ood cause” requirement and transforms it into a “no cause” limitation f

or the g eneral public. Thus, Plaintiffs’ complaint and theory n ecessarily specifical l y c a lls into question the constitutionality of state c o n c e a led carry law. F u rther, b y arg uing that California is r equired to provide some outlet for public c arry of handg uns, it indirectly implicates the
const i tutionality of the entire California firearm reg ulation scheme.

Althoug h the constitutionality of the entire sch eme is at issue, the Plaintiffs did not name the State of California as a defendant, a

nd the Plaintiffs have not complied with F ed. R. Civ. P. 5.1. U nder that rule, if the state or one of its ag ents is
not a p arty

to a federal court proceeding , “[ a] party that files

a pleading

. . . drawing into q uest i o n the constitutionality o fP E R U T A V

. C O U

N T Y O F S A

N D I E G O 106

a

. . . state statut e m u st promptly ” serve the state’s attorney ge n e r al with notice of the pleading and the constitution al question it raises. F ed. R. Civ. P. 5.1(a). I n addition, the district court must certif

y to the state’s attorney g e neral that the constitutionality

of the state statute h as been questioned, and must permit the sta t e to intervene to defend it. F ed. R. Civ. P. 5.1(b), ( c ) ; 28 U.S.C. § 2403. The rule protects the public interest by g iving the state an opportunity to voice its views on the constitutionality o f its own statutes. Oklahoma

ex rel. Edmondson v. P ope , 51 6 F. 3 d 1214, 1216 (10th Cir. 2008).

Given the real essence of the Plaintiffs’ arg ument, they

were required to comply with F ed. R. Civ. P. 5.1. They d id

n ot. I f we are to consider the constitutionality of th e e n t i r e California r eg ulatory scheme, Calif ornia should have been afforded an opportunity to defend it. And, to the e x tent that the majority strikes down the entirety of California f i r e arm reg ulations, it should have stay ed the m andate to permit a leg islative response, as the Seventh C i rcuit did in Moore

. 708 F .3d at 942.

B

I m u s t a lso respectfully disag r ee with the majority ’s analy sis o f the g overnment reg u lation at issue, which directly conflicts with our circuit precedent in Chovan

.

1

The majority ackn o w l edg es that we, like our sister circuits, e mploy

a sliding -scale approach, where the level o f scrutiny w e apply to a challeng ed law depends on h ow severe

a burden the law imp o s e s on the “core” of the SecondP E R U T A V

. C O U

N T Y O F S A

N D I E G O 107

Amendment g uarantee. Chovan

, 7 35 F .3d at 1 138; see, e.g. , Kachalsky

, 7 01 F .3d at 9 3; Heller

, 6 7 0 F .3d a t 1 257; Ezell

, 651 F .3d at 7 08; Chester

, 628 F. 3 d at 682; United States v

. Reese
, 627 F .3d 792, 801 (10 t h Cir. 2010); United S tates v

. Marzzarella

, 614 F .3d 85, 96–97 (3d Cir. 2010). B ut then the majority purports to take an “alternative approach,” which it claims was used in Heller

. Under that alternative approach, the majority rejects any

means-ends scrutiny . I n doing so, it directly conflicts with Chovan

. Despite whatever pedig ree the majority claims f o r this alte rnative approach, we are bound to follow the law of our Circuit. F urther, the majority a pproach has n o support in Heller

. The Heller Court held on ly that the D.C. handg un ban w as unconstitutional “ [u] nder a n y o f the standards o f scrutiny that we have applied to enumerated constitutional rig hts” because “[ f] ew laws in the history of our N ation have

come close” to the severity of its restriction. H eller

, 554 U.S.
at 628, 629. The Court did not ex pressly r eject means-ends scrutiny

, a

nd it is ex tremely unlikely that the Court rejected by implication such a w ell-establish ed method for assessing the constitutionality of laws. I ndeed, b y t a k ing care to specifically rule out rational-basis scrutiny

, the C ourt necessarily implied that ot h er, heig htened levels of meansends scrutiny are appropriate. See Heller

, 554 U.S. at 628 n.27.

The majori t y sug g ests that the Heller Court r ejected any means-ends scrutiny when it r ejected J u s tice B rey er’s “interest-balancing inquiry .” S ee 554 U .S. at 6 34–35; id. at 689–90 (B rey er, J
., dissenting ). However, the Court did no

s u ch thing

. J ustice B rey er’s dissent advocated ag ai n s t apply ing establis hed tiers of scrutiny

, preferring instead to d e cide case-by -case whether a challeng ed law burdened t h eP E R U T A V

. C O U

N T Y O F S A

N D I E G O 108

Second Amendment at all. I d. at 689 (B rey er, J
., dissenting ). The H eller Court dismissed this case-by -base inquiry

, noting that “ [ w] e know of no other enu m e r a t ed constitutional rig ht

w hose core protection has been subjected to a f reestan d i n g ‘interest-balancing ’ a

pproach.” Id. at 634 (emphasis added). By t h is, the Heller Court did not disavow the means-ends scrutiny framework for evaluating bur d e n s on enumerated rig hts, which has long been a f ix ture o f c o nstitutional rig hts jurisprudence. See generally Adam W inkler, Scrutinizing the Second Amendment

, 1 05 Mich. L . Rev. 683 (2007); see also Kachals ky

, 7 01 F .3d at 99 n.23 (rejecting the arg ument that “handg un possession in public h a s t h e ring of an absolute constitutional rig ht”). Rather, the Court me a n t o nly that severe burdens on “core protections” would fail any level of scrutiny and cannot be ex cu s e d t hroug h the sort o f freewheeling interest-balan cing a p proach J ustice B rey er proposed. Heller

, 5 54 U.S. at 628 (“ U n d e r any of the standards of scrutiny that we have a p plied to enumerated constitutional rig hts, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and f

amily w ould fail constitutional muster.”) (internal quotation marks, footnote, and citation omitted).

The majority ’s new a lternative approach to establishing the appropriate level of scrutiny is unsupported in Supreme Court preced e n t a nd is in direct conflict with our Circuit’s precedent and the approach taken by our sister circuits.

2

The majority also e rrs i n i t s alternative intermediate scrutiny analy sis. The majority acknowledg es the Cho v a n second step inquiry as to whether the g overnment policy is a reasonable fit between the c halleng ed reg ulation and theP E R U T A V

. C O U

N T Y O F S A

N D I E G O 109

asserted objective. B ut, r ather than apply ing that analy sis, it substitutes the demanding and inappropriate least restrictive
means test.

There is no support for the application o f a least restrictive means test in Chovan , and our sister circuits have repeatedly

and emphatically recog n iz ed that, in this contex t, intermediate scrutiny does n ot require the l e a st restrictive

means available. See M asciandaro

, 638 F .3d at 474 (“[ I ]ntermediate scrutiny does not require that a reg ulation be the least intrusive m e a ns of achieving the relevant
g overnment objective, or that there b e no burden whatsoever

o n t he individual rig ht in question.”); Heller

, 670 F .3d at 1258 (ex plaining that under intermediate scrutiny

, there must be a tig ht fit “‘that e m p l oy s n ot necessarily the least restrictive means but

. . . a means narrowly tailored to achieve the des i r e d o bjective’” (quoting Bd. of Trustees of the State Univ. o f N. Y

. v. Fox
, 492 U.S. 469, 480 ( 198 9)). I n other words, the fit between the g ood cause requirement and public safety objectives must b e “reasonable, not p e rfect.” Marzzarella

, 614 F .3d at 98.

The majority a lso rejects Turner B r o a d casting ’s admonition to afford “substantial deference to the predictive judg ments” o f legi s l ative bodies, Turner Broad. Sys. Inc. v

. FCC
, 5 20 U.S. 180, 195 (1997), and criticiz es o ur sister circuits’ reliance on Turner Broadcasting

.
However, “[ i] n the c o ntex t of firearm r e gulation, the leg islature is ‘far better equipped than the judiciary ’ to make sensit ive p ublic policy judg ments.” Kachalsky

, 701 F .3d at 97; see a lso D rake

, 724 F .3d at 436–37; W oollard , 712 F .3d at 881. This advice is particularly apt when we consider the widely -vary

ing state and local g u n laws that are tailored toP E R U T A V

. C O U

N T Y O F S A

N D I E G O 110

particu l a r c ommunity n eeds. W hat law enforcement deems

a critical restriction in u rban areas may not b e as important in rural p ortions of the country

. T hose sensi t i v e p olicy
assessments are best m ade by the respective leg islative branches and, when permitted by st a t u te, by local law enforcement officials. 1 0

Turner Broadcasting itself provides a sound rejoinder to t he majority : “Even in the realm of F irst Amen d m e n t questions where Cong ress must b ase its conclusions u p o n

su bstantial evidence, deference must be accorded to its finding s as to the harm to be a v o i d e d a nd to the remedial

measures adopted

for that end

, lest we infring e on traditional leg islative autho rity to make predictive judg ments when enactingnationwide reg

u latory policy

. ” Turner
, 5 20 U.S. at 196 (emphasis added).

F inally , the majority

derides the g ood cause requirement

as nothing more than an arbitrary

, overbroad ra t i o n i ng sy stem. I n fact, the record supports the opposite conclusion. The County does not randomly allocate c oncealed-carry licenses to people reg ardless of n e e d

. I nstead, it makes the best prediction possible o f wh o a c t u a lly needs firearms for

10 In d eed

, t

h e C alif o rn i a S tate Sh erif

f s A sso ciatio n , th e Calif

o rn i a Po l i ce Ch ief s A s so ciatio n , an d th e Calif o rn ia Peace Of

f icers A sso ciatio n n o te in th eir am icu s b rief th at th e d iv ersity o f co m m u n ities an d reg io n s in Calif o rn ia w arran ts th e ex ercise o f d is c r e t i o n b y ch ief law en f orcem en t

ex ecu tiv es to d eterm in e, in th e co n t ex t o f th e issu es p resen ted in t h e i r j u risd ictio n , th e circu m stan ces u n d er w h ich a co n cealed g u n p erm it sh ou ld issu e.P E R U T A V

. C O U

N T Y O F S A

N D I E G O 111

s e l f

- d e f e n s e , a n d g r a n t s c o n c e a l e d

- c a r r y l i c e n s e s according ly

. 1 1

V

A careful ex amination of the narrow questions before us

can only lead to the c onclusion that S a n Dieg o County ’s “g ood ca u s e ” policy falls squarely within the Supreme Court’s definition of “presumpt i v e ly lawful reg ulatory measures.” Heller

, 5 5 4 U .S. at 626, 627 n.26, 636. T h ere is

no need t o r each any other issue presented in the c ase. I n dealing a needless

, s w e eping judicial blow to the public safety discretion i nvested in local law enforcement officers and to Calif

o r n i a’s carefully constructed firearm reg ulatory scheme, the majority opinion confl i c t s with Supreme Court

1 1 I w o u ld also rej ect th e P lain tif f s’ altern ativ e eq u al pro tectio n claim s. T h e i r f irst claim is m erely an attem p t to b o o tstrap an eq u al p ro tectio n arg u m en t to t

h eir Seco n d A m en d m en t claim

, s o it is m o r e a p p ro p riately

an aly zed u n der th e Seco n d A m en d m en t. Cf. Alb rig h t v. Oliver

, 5 1 0 U .S. 2 6 6
, 2 7 3 (1 9 94 ); O rin v. Ba r cla y , 27 2 F.3 d 1 2 07
, 1 2 1 3 n .3 (9 th Cir. 20 0 1) (h o ld i n g t h a t a n eq u al p ro tectio n claim w as “ n o m o re th an a First A m en d m en t claim d ressed in eq u al p ro tectio n clo th in g ” an d w as th eref ore

“ s u b su m ed b y , an d co

- ex ten siv e w ith ” th e f o rm er). A s f

o r th eir “ class of

o n e” eq u al p ro t ectio n claim

, th e P lain tif f s d id n o t estab lish a g en u in e issu e

o f m aterial f

act w ith reg ard to w

h eth er th ey w ere situ ated sim ilarly to th e

ren ew al ap p l i can ts belo n g in g to th e Ho n o r ary Dep u ty Sh erif

f ’ s A sso cia t io n (“ HDSA ”). S ee Villa g e o

f W illo wb ro o k v. Olech

, 5 2 8 U .S. 5 6 2
, 5 6 4 (2 0 0 0) (p er cu riam ) (r e co g n izin g a “ class of o n e” eq u al
p ro tectio n claim “ w

h ere th e p l ain tif

f alleg es th at sh e h as b een in ten tio n ally treated dif

f eren tly f ro m o th ers sim il a r l y s itu ated an d th at th ere is n o ratio n al b asis f

o r th e d if f eren ce in treatm en t.”)

. T h e H DSA ren ew al
ap p lican ts d o cu m en t ed sp ecif i c th reats or oth erw ise q

u a l i f i e d f o r r en ew als,

so th ey w ere n o t sim ilarly s i tu ated

. I w o u l d also rej ect P lain tif f s ’

rem ain i n g d u e p ro cess an d p r i v i leg es & im m u n ities claim s b ecau s e P lain tif f s f ailed to “ s p e c i fi c ally an d d istin ctly arg u e [th em ] in [th eir]

o p en in g b rief

.” G reen w o o d

v. F.A.A. , 2 8 F.3 d 9 7 1 , 9 7 8 (9 th Cir. 1 9 9 4).P E R U T A V

. C O U

N T Y O F S A

N D I E G O 112

authority

, the de c i s ions of our sister circuits, and our o wn circuit precedent.

I respectfully

dissent.