FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD PERUTA; MICHELLE

LAXSON; JAMES DODD; LESLIE

BUNCHER, DR.; MARK CLEARY;

CALIFORNIA RIFLE AND PISTOL

ASSOCIATION FOUNDATION,

Plaintiffs-Appellants,

v.

COUNTY OF SAN DIEGO; WILLIAM D.

GORE, individually and in his

capacity as Sheriff,

Defendants-Appellees.

No. 10-56971

D.C. No.

3:09-cv-02371-

IEG-BGS

OPINION

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

December 6, 2012—San Francisco, California

Filed February 13, 2014

Before: Diarmuid F. O’Scannlain, Sidney R. Thomas,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain;

Dissent by Judge Thomas
2 PERUTA V. COUNTY OF SAN DIEGO

SUMMARY*

Civil Rights

The panel reversed the district court’s summary judgment

and held that a responsible, law-abiding citizen has a right

under the Second Amendment to carry a firearm in public for

self-defense.

Plaintiffs challenged a County of San Diego policy which

interpreted California’s restriction on carrying handguns in

public. California generally prohibits the open or concealed

carriage of a handgun, whether loaded or unloaded, in public

locations, absent the showing of, among other things, good

cause. Under San Diego’s policy, concern for one’s personal

safety alone is not considered good cause.

The panel first held that a law-abiding citizen’s ability to

carry a gun outside the home for self-defense fell within the

Second Amendment right to keep and bear arms for the

purpose of self-defense. Applying the analysis set forth in

District of Columbia v. Heller, 554 U.S. 570 (2008), the panel

then held that it did not need to apply a particular standard of

heightened scrutiny to the San Diego policy because the

“good cause” restriction amounted to a destruction of the

Second Amendment right altogether. The panel concluded

that San Diego County’s “good cause” permitting

requirement impermissibly infringed on the Second

Amendment right to bear arms in lawful self-defense. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PERUTA V. COUNTY OF SAN DIEGO 3

Dissenting, Judge Thomas stated that San Diego County’s

“good cause” policy fell squarelywithin the Supreme Court’s

definition of a presumptively lawful regulatory measure. 

Judge Thomas stated that in dealing a needless, sweeping

judicial blow to the public safety discretion invested in local

law enforcement officers and to California’s carefully

constructed firearm regulatory scheme, the majority opinion

conflicted with Supreme Court authority, the decisions of

sister circuits, and Ninth Circuit precedent.

COUNSEL

Paul D. Clement, Bancroft PLLC, Washington, D.C., argued

the cause for the plaintiffs-appellants. Carl D. Michel,

Michel & Associates, P.C., Long Beach, California, filed the

briefs for the plaintiffs-appellants. With him on the opening

brief were Glenn S. McRoberts, Sean A. Brady, and Bobbie

K. Ross, Michel & Associates, P.C., Long Beach, California. 

With him on the reply brief were Glenn S. McRoberts, Sean

A. Brady, and Bobbie K. Ross, Michel & Associates, P.C.,

Long Beach, California, and Paul Neuharth, Jr., Paul

Neuharth, Jr. APC., San Diego, California.

James M. Chapin, Senior Deputy Attorney for County of San,

San Diego, California, argued the cause and filed the brief for

the defendants-appellees. With him on the brief was Thomas

E. Montgomery, County Counsel for County of San Diego,

San Diego, California.

Stephen P. Halbrook, Fairfax, Virginia, filed the brief on

behalf of amicus curiae Congress of Racial Equality, Inc. in

support of the plaintiffs-appellants.
4 PERUTA V. COUNTY OF SAN DIEGO

Paul D. Clement, Bancroft PLLC, Washington, D.C., filed the

brief on behalf of amicus curiae National Rifle Association of

America, Inc. in support of plaintiffs-appellants.

David B. Kopel, Independence Institute, Golden, Colorado,

filed the brief on behalf of amici curiae International Law

Enforcement Educators and Trainers Association and the

Independence Institute.

Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia,

filed the brief on behalf of amici curiae Second Amendment

Foundation, Inc., Calguns Foundation, Inc., Adam Richards,

and Brett Stewart in support of plaintiffs-appellants.

John C. Eastman, Chapman University School of Law,

Orange, California, filed the brief on behalf of amici curiae

Center for Constitutional Jurisprudence, Doctors for

Responsible Gun Ownership, and Law Enforcement Alliance

of America. With him on the brief were Anthony T. Caso

and Karen J. Lugo.

Don B. Kates, Battle Ground, Washington, filed the brief on

behalf of amici curiae Gun Owners of California and Senator

H.L. Richardson (Ret.) in support of plaintiffs-appellants.

Neil R. O’Hanlon, Hogan Lovells US LLP, Los Angeles,

California, filed the brief on behalf of amici curiae Brady

Center to Prevent Gun Violence, the International

Brotherhood of Police Officers, and the Police Foundation. 

With him on the brief were Adam K. Levin, S. Chartey

Quarcoo, and Samson O. Asiyanbi, Hogan Lovells US LLP,

Washington, D.C., and Jonathan E. Lowy and Daniel R. Vice,

Brady Center to Prevent Gun Violence, Washington, D.C.
PERUTA V. COUNTY OF SAN DIEGO 5

Paul R. Coble, Law Offices of Jones & Mayer, Fullerton,

California, filed the brief on behalf of amici curiae California

State Sheriffs Association, California Police Chiefs

Association, and California Peace Officers Association in

support of defendants-appellees. With him on the brief was

Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton,

California.

Simon J. Frankel, Covington & Burling LLP, San Francisco,

California, filed the brief on behalf of amici curiae Legal

Community against Violence, Major Cities Chiefs

Association, Association of Prosecuting Attorneys, and San

Francisco District Attorney George Gascón in support of

defendants-appellees. With him on the brief were Samantha

J. Choe, Steven D. Sassaman, and Ryan M. Buschell,

Covington & Burling LLP, San Francisco, California.

OPINION

O’SCANNLAIN, Circuit Judge:

We are called upon to decide whether a responsible, lawabiding citizen has a right under the Second Amendment to

carry a firearm in public for self-defense.

I

A

California generally prohibits the open or concealed

carriage of a handgun, whether loaded or unloaded, in public
6 PERUTA V. COUNTY OF SAN DIEGO

locations.1See Cal. Penal Code § 25400 (prohibiting

concealed carry of a firearm); id. § 25850 (prohibiting carry

of a loaded firearm); id. § 26350 (prohibiting open carry of an

unloaded firearm); see also id. § 25605 (exempting the gun

owner’s residence, other private property, and place of

business from section 25400 and section 26350).

Nonetheless, one may apply for a license in California to

carry a concealed weapon in the city or county in which he or

she works or resides. Id. §§ 26150, 26155. To obtain such a

license, the applicant must meet several requirements. For

example, one must demonstrate “good moral character,”

complete a specified training course, and establish “good

cause.” Id. §§ 26150, 26155.

California law delegates to each city and county the

power to issue a written policy setting forth the procedures

for obtaining a concealed-carry license. Id. § 26160. San

Diego County has issued such a policy. At issue in this

appeal is that policy’s interpretation of the “good cause”

requirement found in sections 26150 and 26155: “[A] set of

circumstances that distinguish the applicant from the

1 There are a few narrow exceptions to this rule. Armored vehicle

guards and retired federal officers may carry a loaded firearm in public

without meeting stringent permitting requirements. See Cal. Penal Code

§ 26015 (armored vehicle guards); id. § 26020 (retired federal officers). 

And a citizen may carry a loaded firearm in public if: (1) he is engaged in

the act of attempting to make a lawful arrest; (2) he is hunting in locations

where it is lawful to hunt; or (3) he faces immediate, grave danger

provided that the weapon is only carried in “the briefinterval” between the

time law enforcement officials are notified of the danger and the time they

arrive on the scene (where the fleeing victim would obtain a gun during

that interval is apparently left to Providence). Id. § 26040 (hunting); id.

§ 26045 (immediate, grave danger); id. § 26050 (attempting to make a

lawful arrest).
PERUTA V. COUNTY OF SAN DIEGO 7

mainstream and 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 personal protection as well

as those related to individual businesses or occupations.” 

But—important here—concern for “one’s personal safety

alone is not considered good cause.”

The power to grant concealed-carrylicenses in San Diego

County is vested in the county sheriff’s department. Since

1999, the sheriff’s department has required all applicants to

“provide supporting documentation” in order “to demonstrate

and elaborate good cause.” This “required documentation,

such as restraining orders, letters from law enforcement

agencies or the [district attorney] familiar with the case, is

discussed with each applicant” to determine whether he or

she can show a sufficiently pressing need for self-protection. 

If the applicant cannot demonstrate “circumstances that

distinguish [him] from the mainstream,” then he will not

qualify for a concealed-carry permit.

B

Wishing to carry handguns for self-defense but unable to

document specific threats against them, plaintiffs Edward

Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and

Mark Cleary (collectively “the applicants”), all residents of

San Diego County, were either denied concealed-carry

licenses because they could not establish “good cause” or

decided not to apply, confident that their mere desire to carry

for self-defense would fall short of establishing “good cause”

as the County defines it. An additional plaintiff, the

California Rifle and PistolAssociation Foundation, comprises

many San Diego Country residents “in the same predicament
8 PERUTA V. COUNTY OF SAN DIEGO

as the individual Plaintiffs.” No plaintiff is otherwise barred

under federal or state law from possessing firearms.

C

On October 23, 2009, after the County denied his

application for a concealed-carry license, Peruta sued the

County of San Diego and its sheriff, William Gore

(collectively “the County”), under 42 U.S.C. § 1983,

requesting injunctive and declaratory relief from the

enforcement of the County policy’s interpretation of “good

cause.” Peruta’s lead argument was that, by denying him the

ability to carry a loaded handgun for self-defense, the County

infringed his right to bear arms under the Second

Amendment.

About a year later, the applicants and the County filed

dueling motions for summary judgment. The district court

denied the applicants’ motion and granted the County’s. 

Assuming without deciding that the Second Amendment

“encompasses Plaintiffs’ asserted right to carry a loaded

handgun in public,” the district court upheld the County

policy under intermediate scrutiny. As the court reasoned,

California’s “important and substantial interest in public

safety”—particularly in “reduc[ing] the risks to other

members of the public” posed by concealed handguns’

“disproportionate involvement in life-threatening crimes of

violence”—trumped the applicants’ allegedly burdened

Second Amendment interest. The district court rejected all of

the other claims, and the applicants timely appealed.
PERUTA V. COUNTY OF SAN DIEGO 9

II

As in the district court, on appeal the applicants place one

argument at center stage: they assert that by defining “good

cause” in San Diego County’s permitting scheme to exclude

a general desire to carry for self-defense, the County

impermissiblyburdens their Second Amendment right to bear

arms.

The Supreme Court’s opinions in District of Columbia v.

Heller, 554 U.S. 570 (2008), and McDonald v. City of

Chicago, 130 S. Ct. 3020 (2010), direct our analysis of this

claim. In Heller, the Court confronted a Second Amendment

challenge to a District of Columbia law that “totally ban[ned]

handgun possession in the home” and “require[d] that any

lawful firearm in the home be disassembled or bound by a

trigger lock.” 554 U.S. at 603, 628–29. The validity of the

measures depended, in the first place, on whether the Second

Amendment codified an individual right, as plaintiff Dick

Heller maintained, or a collective right, as the government

insisted. Id. at 577.

Consulting the text’s original public meaning, the Court

sided with Heller, concluding that the Second Amendment

codified a pre-existing, individual right to keep and bear arms

and that the “central component of the right” is self-defense. 

Id. at 592, 599. It further held that, because “the need for

defense of self, family, and property is most acute in the

home,” the D.C. ban on the home use of handguns—“the

most preferred firearm in the nation”—failed “constitutional

muster” under any standard of heightened scrutiny. Id. at

628–29 & n.27 (rejecting rational-basis review). The same

went for the trigger-lock requirement. Id. at 635. The Court

had no need to “undertake an exhaustive historical analysis
10 PERUTA V. COUNTY OF SAN DIEGO

. . . of the full scope of the Second Amendment” to dispose of

Heller’s suit. Id. at 626–27. Nor had it reason to specify, for

future cases, which burdens on the Second Amendment right

triggered which standards of review, or whether a tieredscrutiny approach was even appropriate in the first place. Id.

at 628–29. By any measure, the District of Columbia law had

overreached.

Two years later, the Court evaluated a similar handgun

ban enacted by the City of Chicago. The question presented

in McDonald, however, was not whether the ban infringed the

city residents’ Second Amendment rights, but whether a state

government could even be subject to the strictures of the

Second Amendment. That depended on whether the right

could be said to be “deeply rooted in this Nation’s history and

tradition” and “fundamental to our scheme of ordered

liberty.” 130 S. Ct. at 3036. To these questions, the

McDonald Court declared, “[o]ur decision in Heller points

unmistakably to the answer.” Id. After all, self-defense,

recognized since ancient times as a “basic right,” is the

“central component” of the Second Amendment guarantee. 

Id. Consequently, that right restricted not only the federal

government but, under the Fourteenth Amendment, also the

states. Id. at 3026. Having so concluded, the Court

remanded the case to the Seventh Circuit for an analysis of

whether, in light of Heller, the Chicago handgun ban

infringed the Second Amendment right. Id. at 3050.

It doesn’t take a lawyer to see that straightforward

application of the rule in Heller will not dispose of this case. 

It should be equally obvious that neither Heller nor

McDonald speaks explicitly or precisely to the scope of the

Second Amendment right outside the home or to what it takes

to “infringe” it. Yet, it is just as apparent that neither opinion
PERUTA V. COUNTY OF SAN DIEGO 11

is silent on these matters, for, at the very least, “the Supreme

Court’s approach . . . points in a general direction.” Ezell v.

City of Chicago, 651 F.3d 684, 700 (7th Cir. 2011) (noting

that Heller does not leave us “without a framework for how

to proceed”). To resolve the challenge to the D.C.

restrictions, the Heller majority described and applied a

certain methodology: it addressed, first, whether having

operable handguns in the home amounted to “keep[ing] and

bear[ing] Arms” within the meaning of the Second

Amendment and, next, whether the challenged laws, if they

indeed did burden constitutionally protected conduct,

“infringed” the right. We apply that approach here, as we

have done in the past, United States v. Chovan, 735 F.3d

1127, 1136 (9th Cir. 2013), and as many of our sister circuits

have done in similar cases. See, e.g., Nat’l Rifle Ass’n of Am.,

Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,

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

emerged as the prevailing approach.”); United States v.

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

of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir.

2011); Ezell, 651 F.3d at 701–04; United States v. Chester,

628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese,

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

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

A

The first question goes to the scope of the guarantee:

Does the restricted activity—here, a restriction on a

responsible, law-abiding citizen’s2ability to carry a gun

 

2

 In this case, as in Heller, we consider the scope of the right only with

respect to responsible, law-abiding citizens. See Heller, 554 U.S. at 635

(“And whatever else it leaves to future evaluation, it surely elevates above
12 PERUTA V. COUNTY OF SAN DIEGO

outside the home for self-defense—fall within the Second

Amendment right to keep and bear arms for the purpose of

self-defense? Ezell, 651 F.3d at 701; see also Kachalsky v.

Cnty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012). 

Concerning the precise methods by which that right’s scope

is discerned, the Heller and McDonald Courts were hardly

shy: we must consult “both text and history.” Heller,

554 U.S. at 595; see also McDonald, 130 S. Ct. at 3047

(reiterating that “the scope of the Second Amendment right”

is determined by historical analysis and not interest

balancing).

The analysis begins—as any interpretive endeavor

must—with the text. “Constitutional rights are enshrined

with the scope they were understood to have when the people

adopted them, whether or not future legislatures or (yes) even

future judges think that scope too broad.” Heller, 554 U.S. at

634–35. To arrive at the original understanding of the right,

“we are guided by the principle that ‘[t]he Constitution was

written to be understood by the voters; its words and phrases

were used in their normal and ordinary as distinguished from

technical meaning,” unless evidence suggests that the

language was used idiomatically. Id. at 576 (quoting United

States v. Sprague, 282 U.S. 716, 731 (1931)).

all other interests the right of law-abiding, responsible citizensto use arms

in defense of hearth and home.”). With respect to irresponsible or nonlaw-abiding citizens, a different analysis—which we decline to undertake

here—applies. Chovan, 735 F.3d at 1138 (holding that a statute “does not

implicate this core Second Amendment right [if] it regulates firearm

possession for individuals with criminal convictions”); see also Heller,

554 U.S. at 626 (“[N]othing in our opinion should be taken to cast doubt

on longstanding prohibitions on the possession of firearms by felons and

the mentally ill . . . .”).
PERUTA V. COUNTY OF SAN DIEGO 13

Since the goal is to arrive at a fair, not a hyper-literal,

reading of the Constitution’s language, Heller’s analysis is

necessarily a contextual—and therefore a historical—one. 

See Chester, 628 F.3d at 680 (“This historical inquiry seeks

to determine whether the conduct at issue was understood to

be within the scope of the right . . . .”). It begins with the preratification “historical background of the Second

Amendment,” since “the Second Amendment . . . codified a

pre-existing right.” Heller, 554 U.S. at 592 (emphasis

omitted). Next, it turns to whatever sources shed light on the

“public understanding [of the Second Amendment] in the

period after its enactment or ratification,” see id. at 605–10,

such as nineteenth-century judicial interpretations and legal

commentary. See id. at 605 (“We now address how the

Second Amendment was interpreted from immediately after

its ratification through the end of the 19th century.”); id. at

610–19 (surveying “Pre–Civil War Case Law,” “Post–Civil

War Legislation,” and “Post–Civil War Commentators”).

Of course, the necessity of this historical analysis

presupposes what Heller makes explicit: the Second

Amendment right is “not unlimited.” Id. at 595. It is “not a

right to keep and carry any weapon whatsoever in anymanner

whatsoever and for whatever purpose.” Id. at 626. Rather, it

is a right subject to “traditional restrictions,” which

themselves—and this is a critical point—tend “to show the

scope of the right.” McDonald, 130 S. Ct. at 3056 (Scalia, J.,

concurring); see also Kachalsky, 701 F.3d at 96; Nat’l Rifle

Ass’n of Am., 700 F.3d at 196 (“For now, we state that a

longstanding presumptively lawful regulatory measure . . .

would likely [burden conduct] outside the ambit of the

Second Amendment.”); United States v. Skoien, 614 F.3d

638, 640 (7th Cir. 2010) (en banc) (“That some categorical

limits are proper is part of the original meaning.”).
14 PERUTA V. COUNTY OF SAN DIEGO

In short, the meaning of the Second Amendment is a

matter not merely of abstract dictionary definitions but also

of historical practice. As “[n]othing but conventions and

contexts cause [language] to convey a particular idea,” we

begin our analysis of the scope of the Second Amendment

right by examining the text of the amendment in its historical

context. See Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts xxvii (2012).

1

The Second Amendment secures the right not only to

“keep” arms but also to “bear” them—the verb whose

original meaning is key in this case. Saving us the trouble of

pulling the eighteenth-century dictionaries ourselves, the

Court already has supplied the word’s plain meaning: “At the

time of the founding, as now, to ‘bear’ meant to ‘carry.’” 

Heller, 554 U.S. at 584.3 Yet, not “carry” in the ordinary

sense of “convey[ing] or transport[ing]” an object, as one

might carry groceries to the check-out counter or garments to

the laundromat, but “carry for a particular purpose—

confrontation.” Id. The “natural meaning of ‘bear arms,’”

according to the Heller majority, was best articulated by

Justice Ginsburg in her dissenting opinion in Muscarello v.

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

. . . upon the person or in the clothing or in a pocket, for the

purpose . . . of being armed and ready for offensive or

3 Although we are dealing with the Second Amendment right as

incorporated against the states through the Fourteenth Amendment,

we—consistent with the Court’s analysis in McDonald—assume that the

right had the same scope at the time of incorporation as it did at the time

of the founding. See, e.g., 130 S. Ct. at 3036 (using the definition of the

Second Amendment right espoused in Heller when analyzing

incorporation against the states).
PERUTA V. COUNTY OF SAN DIEGO 15

defensive 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 Dictionary

214 (6th ed. 1998)); see also id. at 592 (concluding that the

Second Amendment “guarantee[s] the individual right to . . .

carry weapons in case of confrontation”).

Speakers of the English language will all agree: “bearing

a weapon inside the home” does not exhaust this definition of

“carry.” For one thing, the very risk occasioning such

carriage, “confrontation,” is “not limited to the home.” 

Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). One

needn’t point to statistics to recognize that the prospect of

conflict—at least, the sort of conflict for which one would

wish to be “armed and ready”—is just as menacing (and

likely more so) beyond the front porch as it is in the living

room. For that reason, “[t]o speak of ‘bearing’ arms within

one’s home would at all times have been an awkward usage.” 

Id. To be sure, the idea of carrying a gun “in the clothing or

in a pocket, for the purpose . . . of being armed and ready,”

does not exactly conjure up images of father stuffing a sixshooter in his pajama’s pocket before heading downstairs to

start the morning’s coffee, or mother concealing a handgun in

her coat before stepping outside to retrieve the mail. Instead,

it brings to mind scenes such as a woman toting a small

handgun in her purse as she walks through a dangerous

neighborhood, or a night-shift worker carrying a handgun in

his coat as he travels to and from his job site.

More importantly, at the time of the Second

Amendment’s enactment, the familiar image that “bear arms”

would have painted is one of an eighteenth-century

frontiersman, who “from time to time [would] leave [his]

home to obtain supplies from the nearest trading post, and en
16 PERUTA V. COUNTY OF SAN DIEGO

route one would be as much (probably more) at risk if

unarmed as one would be in one’s home unarmed.” Id. at

936. Indeed, it was this spirit of the arms-bearing settler that

Senator Charles Sumner invoked (and the Heller Court cited

as instructive of the scope of the right) in the (in)famous

“Crime against Kansas” speech in 1856: “The rifle has ever

been the companion of the pioneer and, under God, his

tutelary protector against the red 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 article in

our National Constitution must be blotted out, before the

complete right to it can in any way be impeached.” 4 The

Works of Charles Sumner 211–12 (1875); see also Heller,

554 U.S. at 609.

Other passages in Heller and McDonald suggest that the

Court shares Sumner’s view of the scope of the right. The

Second Amendment, Heller tells us, secures “the right to

‘protect[] [oneself] against both public and private violence,’

thus extending the right in some form to wherever a person

could become exposed to public or private violence.” United

States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011)

(Niemeyer, J., speciallyconcurring) (quotingHeller, 554 U.S.

at 594 (emphasis added)). The Court reinforced this view by

clarifying that the need for the right is “most acute” in the

home, Heller, 554 U.S. at 628, thus implying that the right

exists outside the home, though the need is not always as

“acute.” See also McDonald, 130 S. Ct. at 3044 (2010)

(“[T]he Second Amendment protects a personal right to keep

and bear arms for lawful purposes, most notably for selfdefense within the home.”). In a similar vein, Heller

identifies “laws forbidding the carrying of firearms in

sensitive places such as school and government buildings” as

presumptively lawful. 554 U.S. at 626. Were the right
PERUTA V. COUNTY OF SAN DIEGO 17

restricted to the home, the constitutional invincibility of such

restrictions would go without saying. Finally, both Heller

and McDonald identify the “core component” of the right as

self-defense, which necessarily “take[s] place wherever [a]

person happens to be,” whether in a back alley or on the back

deck. Eugene Volokh, Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical Framework and

a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009);

see also Moore, 702 F.3d at 937 (“To confine the right to be

armed to the home is to divorce the Second Amendment from

the right of self-defense described in Heller and

McDonald.”).

These passages alone, though short of dispositive,

strongly suggest that the Second Amendment secures a right

to carry a firearm in some fashion outside the home. Reading

those lines in light of the plain-meaning definition of “bear

Arms” elucidated above makes matters even clearer: the

Second Amendment right “could not rationally have been

limited to the home.” Moore, 702 F.3d at 936. Though

people may “keep Arms” (or, per Heller’s definition, “have

weapons,” 554 U.S. at 582) in the home for defense of self,

family, and property, they are more sensibly said to “bear

Arms” (or, Heller’s gloss: “carry [weapons] . . . upon the

person or in the clothing or in a pocket,” id. at 584) in

nondomestic settings.4 Kachalsky, 701 F.3d at 89 n.10 (“The

 

4 Heller and McDonald focus on the Second Amendment right to keep

and bear arms for self-defense—the core component of the right, which

this case implicates. We need not consider, therefore, whether the right

has other ends. See Eugene Volokh, Implementing the Right to Keep and

Bear Arms for Self-Defense: An Analytical Framework and a Research

Agenda, 56 UCLA L. Rev. 1443, 1448 (2009) (suggesting that the right

“may have other components,” such as the right to keep and bear arms for

recreation, hunting, or resisting government tyranny).
18 PERUTA V. COUNTY OF SAN DIEGO

plain text of the Second Amendment does not limit the right

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 solely within one’s home not only would

conflate ‘bearing’ with ‘keeping,’ in derogation of the Court’s

holding that the verbs codified distinct rights, but also would

be awkward usage given the meaning assigned the terms by

the Supreme Court.”).

2

In addition to a textual analysis of the phrase “bear

Arms,” we, like the Court in Heller, look to the original

public understanding of the Second Amendment right as

evidence of its scope and meaning, relying on the “important

founding-era legal scholars.” See Heller, 554 U.S. at 600–03,

605–10 (examining the public understanding of the Second

Amendment in the period after its ratification because “[t]hat

sort of inquiry is a critical tool of constitutional

interpretation”).

The commonsense reading of “bear Arms” previously

discussed finds support in several important constitutional

treatises in circulation at the time of the Second

Amendment’s ratification. See id. at 582–83, 592–93

(treating such sources as instructive of the clause’s original

meaning). Writing on the English right to arms, William

Blackstone noted in his Commentaries on the Laws of

England that the “the right of having and using arms for selfpreservation and defence” had its roots in “the natural right of

resistance and self-preservation.” Heller, 554 U.S. at 594

(internal citations and quotations omitted). It was this

inherited right of armed self-defense, according to Heller,

that “by the time of the founding [was] understood to be an
PERUTA V. COUNTY OF SAN DIEGO 19

individual right protecting against both public and private

violence.” Id. (emphasis added). Although Blackstone

elsewhere described a fourteenth-centuryEnglish statute that

forbad the “riding or going armed with dangerous or unusual

weapons,” that prohibition was understood to cover carriage

of uncommon, frightening weapons only. Indeed, Justice

James Wilson, an early American legal commentator and

framer, confirmed this narrower reading, see 2 James Wilson,

The Works of James Wilson 654 (Robert McCloskey ed.

1967), citing an English commentator for the proposition that

wearing ordinary weapons in ordinary circumstances posed

no problem. See Eugene Volokh, The First and Second

Amendments, 109 Colum. L. Rev. Sidebar 97, 101 (2009)

(“American benchbooks for justices of the peace echoed

[Wilson’s observation].”); Joyce Lee Malcolm, To Keep and

Bear Arms: The Origins of an Anglo-American Right 105

(1994) (quoting an English case recognizing “a general

Connivance to Gentlemen to ride armed for their security,”

notwithstanding the statute); see also William Rawle, A View

of the Constitution of the United States of America 126 (2d

ed. 1829) (observing that the Second Amendment would not

forbid the prohibition of the “carrying of arms abroad by a

single individual, attended with circumstances giving just

reason to fear that he purposes to make an unlawful use of

them”). It is likely for this reason that Heller cites

Blackstone’s commentary on the statute as evidence not of

the scope of the “keep and bear” language but of what

weapons qualify as a Second Amendment “arms.” See

Heller, 554 U.S. at 627.

Writing over thirty years later in what Heller calls the

“most important” American edition of Blackstone’s

Commentaries, id. at 594, St. George Tucker, a law professor

and former Antifederalist, affirmed Blackstone’s comments
20 PERUTA V. COUNTY OF SAN DIEGO

on the British right and commented further on its American

dimensions. The right to armed self-defense, Tucker insisted,

is the “first law of nature,” and any law “prohibiting any

person from bearing arms” crossed the constitutional line. St.

George Tucker, Blackstone’s Commentaries: With Notes of

Reference to the Constitution and Laws of the Federal

Government of the United States; and of the Commonwealth

of Virginia 289 (1803). Tucker went on to note that, though

English law presumed that any gathering of armed men

indicated that treasonous plotting was afoot, it would have

made little sense to apply such an assumption in the colonies,

“where the right to bear arms is recognized and secured in the

constitution itself.” Tucker, supra, vol. 5, app., n.B, at 19. 

After all, “[i]n many parts of the United States, a man no

more thinks, of going out of his house on any occasion,

without his rifle or musket in his hand, than a European fine

gentleman without his sword by his side.” Id.; see also

Michael P. O’Shea, Modeling the Second Amendment Right

to Carry Arms (I): Judicial Tradition and the Scope of

“Bearing Arms” for Self-Defense, 61 Am. U. L. Rev. 585,

637–38 (2012). Likewise, Edward Christian—another

Blackstone commentator from that period—maintained that

this inherited right allowed “everyone . . . to keep or carry a

gun, if he does not use it for the [unlawful] destruction of

game.” See Clayton E. Cramer & Joseph Edward Olson,

What Did “Bear Arms” Mean in the Second Amendment?, 6

Geo. J.L. & Pub. Pol’y 511, 517 (2008) (quoting 2 William

Blackstone, Commentaries 441 (Edward Christian ed.,

1795)).

3

In keeping with the views of the important lateeighteenth-century commentaries, the great weight of
PERUTA V. COUNTY OF SAN DIEGO 21

nineteenth-century precedent on the Second Amendment or

its state-law analogues confirms the Heller-endorsed

understanding of “bear Arms.”5In fact, as we will show,

many of the same cases that the Heller majority invoked as

proof that the Second Amendment secures an individual right

may just as easily be cited for the proposition that the right to

carry in case of confrontation means nothing if not the

general right to carry a common weapon outside the home for

self-defense.

a

But before turning to the cases themselves, we offer a

word on methodology. We set out to review the bulk of

precedents from this period.6 All are, in a broad sense,

equally relevant, for every historical gloss on the phrase “bear

arms” furnishes a clue of that phrase’s original or customary

5 Following Heller, we credit nineteenth-century judicial interpretations

of the right to bear arms as probative of the Second Amendment’s

meaning. Heller, 554 U.S. at 586; id. at 605 (“We now address how the

Second Amendmentwas interpreted fromimmediately after its ratification

through the end of the 19th century.”).

We decline, however, to undertake an exhaustive analysis of

twentieth-century interpretations of the right for the same reason that the

Heller Court presumably did: coming over a hundred years after the

Amendment’s ratification, they seem poor sources of the text’s original

public meaning. Cf. id. at 614 (“Since discussions [in Congress and

elsewhere after the Civil War] took place 75 years after the ratification of

the Second Amendment, they do not provide as much insight into its

original meaning as earlier sources.”).

6 We will inevitably miss some. The briefs filed in this appeal were able

to address only so many before running up against word limits.
22 PERUTA V. COUNTY OF SAN DIEGO

meaning. Still, some cases are more equal than others.7

That’s because, with Heller on the books, the Second

Amendment’s original meaning is now settled in at least two

relevant respects. First, Heller clarifies that the keeping and

bearing of arms is, and has always been, an individual right. 

See, e.g., 554 U.S. at 616. Second, the right is, and has

always been, oriented to the end of self-defense. See, e.g., id.

Any contrary interpretation of the right, whether propounded

in 1791 or just last week, is error. What that means for our

review is that historical interpretations of the right’s scope are

of varying probative worth, falling generally into one of three

categories ranked here in descending order: (1) authorities

that understand bearing arms for self-defense to be an

individual right, (2) authorities that understand bearing arms

for a purpose other than self-defense to be an individual right,

and (3) authorities that understand bearing arms not to be an

individual right at all.

To illustrate, a precedent in the first category that

declared a general right to carry guns in public would be a

great case for Peruta, while a decision in the same group that

confined exercise of the right to the home would do his

position much damage. By contrast, those cases in the third

category—which, like the dissenting opinions in Heller,

espouse the view that one has a right to bear arms only

collectively in connection with militia service and not for

self-defense within or outside the home—are of no help. The

second category, consisting mostly of cases that embrace the

premise that the right’s purpose is deterring tyranny, is only

 

7

 With apologies to George Orwell. See George Orwell, Animal Farm

118 (2009) (1945) (distilling Manor Farm’s Seven Commandments of

Animalism to a single rule: “All animals are equal, but some animals are

more equal than others”).
PERUTA V. COUNTY OF SAN DIEGO 23

marginally useful. Since one needn’t exactly tote a pistol on

his way to the grocery store in order to keep his government

in check, it is no surprise (and, thus, of limited significance

for purposes of our analysis) when these courts suggest that

the right is mostly confined to the home. Likewise, a secondcategory case asserting that the goal of tyranny prevention

does indeed call for public weapon bearing lends only

indirect support for the proposition that bearing arms in case

of confrontation includes carrying weapons in public for selfdefense.

b

Having set forth the methodology to be employed, we

turn to the nineteenth-century case law interpreting the

Second Amendment, beginning with the cases that the Court

itself relied upon in Heller.

The first case is Bliss v. Commonwealth, 12 Ky. (2 Litt.)

90 (1822), cited in Heller, 554 U.S. at 585 n.9, a decision

“especially significant both because it is nearest in time to the

founding era and because the state court assumed (just as

[Heller] does) that the constitutional provision . . . codified a

preexisting right.” Nelson Lund, The Second Amendment,

Heller, and Originalist Jurisprudence, 56 UCLA L. Rev.

1343, 1360 (2009). There, Kentucky’s highest court

interpreted that state’s Second Amendment analogue (“the

right of the citizens to bear arms in defense of themselves and

the state, shall not be questioned”) as invalidating a ban on

“wearing concealed arms.” Bliss, 12 Ky. (2 Litt.) at 90. The

Commonwealth’s lead argument to the contrary had been

that, though Kentucky’s constitution forbad prohibitions on

the exercise of the right, it permitted laws “merely regulating

the manner of exercising that right.” Id. at 91. Although the
24 PERUTA V. COUNTY OF SAN DIEGO

court agreed with the Commonwealth’s argument in

principle, it disagreed with the conclusion that the ban on

“wearing concealed arms” was merely a means of “regulating

the manner of exercising” the right. Id. An act needn’t

amount to a “complete destruction” of the right to be

“forbidden by the explicit language of the constitution,” since

any statute that “diminsh[ed] or impair[ed the right] as it

existed when the constitution was formed” would also be

“void.” Id. at 92. Thus, had the statute purported to prohibit

both the concealed and open carriage of weapons, effecting

an “entire destruction of the right,” it would have been an

obvious nullity; but even as a ban on concealed carry alone

there could be “entertained [no] reasonable doubt but [that]

the provisions of the act import a restraint on the right of the

citizens to bear arms.” Id. at 91–92 (emphasis added). 

Striking down the law, the court explained that the

preexisting right to bear arms had “no limits short of the

moral power of the citizens to exercise it, and it in fact

consisted in nothing else but in the liberty of the citizens to

bear arms. Diminish that liberty, therefore, and you

necessarily restrain the right.” Id. at 92.

In Simpson v. State, the Tennessee Supreme Court read

that state’s Second Amendment analogue just as the Bliss

court read Kentucky’s. 13 Tenn. (5 Yer.) 356 (1833), cited in

Heller, 554 U.S. at 585 n.9. Convicted of the crime of affray

for appearing in public “arrayed in a warlike manner” (i.e.,

armed), Simpson argued that the state should have had to

prove that he had committed acts of physical violence to

convict him. Id. at 361–62. The court agreed, concluding in

part that even if the common law did not require proof of

actual violence to punish persons for merely walking around

with weapons, the state constitution’s protection of the “right

to keep and to bear arms” would trump: “[I]t would be going
PERUTA V. COUNTY OF SAN DIEGO 25

much too far, to impair by construction or abridgment a

constitutional privilege which is so declared.” Id. at 360; cf.

State v. Huntly, 25 N.C. (3 Ired.) 418 (1843) (rejecting a

“right to bear arms” defense and upholding an affray

conviction of a defendant who, threatening to kill off a certain

family, was caught carrying an unusual weapon in public). It

went without saying, evidently—for the court offered little in

the way of analysis—that whatever else the constitution

meant by “bear arms,” it certainly implied the right to carry

operable weapons in public. The court confirmed as much in

1871, holding that an act that proscribed openly carrying a

pistol “publicly or privately, without regard to time or place,

or circumstances” went too far, even though the statute

exempted from its prohibitions the carrying of long guns. 

Andrews v. State, 50 Tenn. 165, 187 (1871), cited in Heller,

554 U.S. at 608, 629.

Though the Tennessee Supreme Court announced a

slightly different view of the right to bear arms in Aymette v.

State, that case is plainly consistent with—and indeed

affirms—the principle that the right to bear arms extends out

of doors. 21 Tenn. 154 (1840), cited in Heller, 554 U.S. at

613–14. Commenting on the “manifest distinction” between

a restriction on “wearing concealed weapons” (which the

court upheld) and a prohibition on open carry, the court

observed with little fanfare that “[i]n the nature of things, if

[persons] were not allowed to bear arms openly, they could

not bear them in their defense of the State at all.” Id. at 160. 

The court marshaled this point in support of the secondcategory position “whereby citizens were permitted to carry

arms openly, unconnected with any service in a formal

militia, but were given the right to use them only for the

military purpose of banding together to oppose tyranny”—a

view of the right’s end that Heller explicitly rejects. Heller,
26 PERUTA V. COUNTY OF SAN DIEGO

554 U.S. at 613 (“[Aymette’s] odd reading of the right is, to

be sure, not the one we adopt.”). Nonetheless, what remains

of Aymette is its observation that the right to bear arms, even

if not in the service of personal self-defense, must include the

right to carry guns outside the home.

The Alabama Supreme Court weighed in that same year. 

See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S.

at 629. Taking a view of the right narrower than that of the

Simpson court, it nonetheless declared that the constitutional

guarantee of “a right to bear arms, in defense of []self and the

State,” meant that an Alabamian must be permitted to carry

a weapon in public in some fashion. Id. at 615. Reid, found

guilty of the “evil practice of carrying weapons secretly,”

challenged the constitutionality of the statute of conviction. 

Id. at 614. Rejecting this challenge, the court held that the

state constitution’s enumeration of the right did not strip the

legislature of the power “to enact laws in regard 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. And, departing to some degree from the

approach in Bliss, the court concluded that Alabama’s

concealed-carry law was just such a regulation, going no

further than forbidding that means of arms bearing thought

“to exert an unhappy influence upon the moral feelings of the

wearer, by making him less regardful of the personal security

of others.” Id. at 617. The act’s narrowness ensured its

validity:

We do not desire to be understood as

maintaining, that in regulating the manner of

bearing arms, the authority of the Legislature

has no other limit than its own discretion. A

statute which, under the pretence of
PERUTA V. COUNTY OF SAN DIEGO 27

regulating, amounts to a destruction of the

right, or which requires arms to be so borne as

to render them wholly useless for the purpose

of defence, would be clearly unconstitutional.

Id. at 616–17. Read in light of the court’s earlier statement

that a restriction on arms bearing would stand so long as it

simply proscribed the “manner in which arms shall be borne,”

this passage suggests that to forbid nearly all forms of public

arms bearing would be to destroy the right to bear arms

entirely.

8

Embracing precisely that position, the Georgia Supreme

Court’s decision in Nunn v. State six years later—praised in

Heller as “perfectly captur[ing]” the relationship between the

Second Amendment’s two clauses, 554 U.S. at 612—made

explicit what Reid intimated. 1 Ga. 243 (1846), cited in

Heller, 554 U.S. at 612, 626, 629. Convicted of keeping a

pistol on his person—a statutory misdemeanor (whether the

pistol was carried openly or “secretly”)—Nunn attacked the

statute of conviction as an unconstitutional infringement of

his right to bear arms under the Second Amendment. Id. at

246. The court began with a statement of the constitutional

standard: “The right of the whole people, old and young,

men, women and boys, and not militia only, to keep and bear

arms of every description, and not such merely as are used by

8 The Indiana Supreme Court appeared to take the same view. Compare

State v. Mitchell, 3 Blackf. 229 (Ind. 1833) (publishing a one-sentence

opinion that reads, “It was held in this case, that the statute of 1831,

prohibiting all persons, except travelers, from wearing or carrying

concealed weapons, is not unconstitutional.”) with Walls v. State, 7

Blackf. 572, 573 (Ind. 1845) (implying that a citizen could avoid legal

trouble under the concealed weapons law if “he exhibited his pistol so

frequently that it could not be said to be concealed”).
28 PERUTA V. COUNTY OF SAN DIEGO

the militia, shall not be infringed, curtailed, or broken in

upon, in the smallest degree.” Id. at 251. Turning to the

statute, the court reasoned that had it merely limited the

manner of the exercise of the right to carry, it would have

withstood scrutiny. As written, however, it went too far:

We are of the opinion, then, that so far as the

act of 1837 seeks to suppress the practice of

carrying certain weapons secretly, that it is

valid, inasmuch as it does not deprive the

citizen of his natural right of self-defence, or

of his constitutional right to keep and bear

arms. But that so much of it, as contains a

prohibition against bearing arms openly, is in

conflict with the Constitution, and void; and

that, as the defendant has been indicted and

convicted for carrying a pistol, without

charging that it was done in a concealed

manner, under that portion of the statute

which entirely forbids its use, the judgment of

the court below must be reversed, and the

proceeding quashed.

Id. In other words, as the same court explained in a later case

involving a defendant charged with illicit open carriage, to

ban both the open and concealed carriage of pistols “would be

to prohibit the bearing of those arms” altogether. Stockdale

v. State, 32 Ga. 225, 227 (1861) (adding that such a set of

restrictions “would . . . bring the Act within the decision in

Nunn’s case”).

Although the Arkansas Supreme Court in State v. Buzzard

appeared at first to take the contrary position, viewing

restrictions on carrying weapons for self-defense as
PERUTA V. COUNTY OF SAN DIEGO 29

permissible police-power regulations, see 4 Ark. 18 (1842);

see also Fife v. State, 31 Ark. 455 (1876) (relying on Buzzard

to uphold a prohibition on concealed carry); Carroll v. State,

28 Ark. 99 (1872) (same), the court staked its position on two

interpretations of the Second Amendment right that the Heller

Court repudiated—and from which the Arkansas court itself

later retreated. According to one judge in the splintered

majority, the Second Amendment secured a right to bear arms

for use in militia service but not a right to bear arms for

personal self-defense. Id. at 22 (opinion of Ringo, C.J.). 

Writing separately, the other judge in the majority went

further, asserting that the Second Amendment secured no

individual right. Id. at 32 (opinion of Dickinson, J.); compare

id. at 43 (Lacy, J., dissenting) (arguing that the court should

have embraced the Bliss view). Neither interpretation

survives Heller—which is also to say that neither opinion

elucidates the right’s originally understood scope.9 Yet it

didn’t take Heller to convince the Arkansas Supreme Court

that Buzzard could use some shearing. Writing in 1878, the

court clarified that while “the Legislature might, in the

exercise of the police power of the State, regulate the mode

of wearing arms,” banning “the citizen from wearing or

carrying a war arm, except upon his own premises or when on

a journey . . . or when acting as or in aid of an officer, is an

unwarranted restriction upon his constitutional right to keep

and bear arms.” Wilson v. State, 33 Ark. 557, 560 (1878).

9 By assuming that the right to bear arms is an individual one focused on

militia service rather than self-defense, the Chief Judge Ringo’s opinion

in Buzzard falls into the second-category; Judge Dickinson’s opinion for

the majority is consistent with the third-category position in concluding

that the Second Amendment does not secure an individual right at all.
30 PERUTA V. COUNTY OF SAN DIEGO

State v. Chandler, an 1850 decision of the Louisiana

Supreme Court, proceeds along the lines drawn in Nunn. 

5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626. 

Rejecting the argument that Louisiana’s ban on carrying

concealed weapons infringed the Second Amendment right,

the court explained that the prohibition was “absolutely

necessary to counteract a vicious state of society, growing out

of the habit of carrying concealed weapons, and to prevent

bloodshed and assassinations committed upon unsuspecting

persons.” Id. at 489–90. A ban on the open carriage of

weapons, by contrast, would enjoy no such justification. 

Echoing Reid, the court said:

[The Act] interfered with no man’s right to

carry arms (to use its words) “in full open

view,” which places men upon an equality.

This is the right guaranteed by the

Constitution of the United States, and which

is calculated to incite men to a manly and

noble defence ofthemselves, if necessary, and

of their country, without any tendency to

secret advantages and unmanlyassassinations.

Id. at 490; see also Heller, 554 U.S. at 613 (citing favorably

Chandler’s holding that “citizens had a right to carry arms

openly”); State v. Jumel, 13 La. Ann. 399, 400 (1858)

(invoking Chandler for the proposition that “prohibiting only

a particular mode of bearing arms which is found dangerous

to the peace of society” does not infringe the right).

Nine years later, the Texas Supreme Court declared that

“[t]he right of a citizen to bear arms, in the lawful defense of

himself or the state, is absolute,” permitting even the wielding

of a Bowie knife, “the most deadly of all weapons in common
PERUTA V. COUNTY OF SAN DIEGO 31

use.” Cockrum v. State, 24 Tex. 394, 403 (1859). Though

the state legislature was free to discourage the carriage of

such an “exceeding[ly] destructive weapon,” it could not

adopt measures effectively prohibiting its use as a defensive

arm: “[A]dmonitory regulation of the abuse [of the right]

must not be carried too far. It certainly has a limit. For if the

legislature were to affix a punishment to the abuse of this

right, so great, as in its nature, it must deter the citizen from

its lawful exercise, that would be tantamount to a prohibition

of the right.” Id.10

Thus, the majority of nineteenth century courts agreed

that the Second Amendment right extended outside the home

and included, at minimum, the right to carry an operable

weapon in public for the purpose of lawful self-defense. 

Although some courts approved limitations on the manner of

carry outside the home, none approved a total destruction of

the right to carry in public.

Indeed, we know of only four cases from that period

rejecting the presumptive-carry view. Three of the four,

however, are not category-one cases. See Haile v. State,

38 Ark. 564 (1882) (espousing a militia-based reading of the

10 The court rested this holding on the Texas constitution’s guarantee of

the right to bear arms, not that of the Second Amendment, which it read

as a strictly tyranny-deterring measure “based on the idea, that the people

cannot be effectually oppressed and enslaved, who are not first disarmed.” 

Cockrum, 24 Tex. at 410. Though Heller, of course, rejects such a reading

as contrary to the Amendment’s original meaning, Cockrum retains

probative value for purposes of our analysis, as it “illustrates the thesis

that, when an antebellumcourt concluded that a constitutional right to bear

arms had a self-defense component, then this normally entailed

presumptive carry rights, even as applied to a very potent and dangerous

weapon such as the Bowie knife.” O’Shea, supra, at 632.
32 PERUTA V. COUNTY OF SAN DIEGO

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

State, 35 Tex. 473 (1872) (same). Consequently, they shed

no light on the question whether, if the right to bear arms is an

individual right directed to the end of self-defense, it

sanctions the public carriage of common weapons. In the

fourth case, State v. Duke, the court does begin with the

Heller-endorsed understanding of the right but nonetheless

concludes that, while the right contemplates weapon carrying

in certain places outside the home (e.g., one’s business) and

in circumstances reasonably giving rise to fear of attack, the

right is otherwise subject to heavy-handed regulation. 

42 Tex. 455, 459 (1875). Yet, Duke is distinguishable: it

construed the guarantee of the right to bear arms as it

appeared in the Texas Constitution of 1869, which permitted

“such regulations [of the right] as the legislature may

prescribe.” Id. at 458. The Second Amendment’s text

contains no such open-ended clause restricting its application,

and we ought not to go looking for an unwritten one.

4

As the Court did in Heller, we turn next to the post–Civil

War legislative scene. Although consulting post–Civil War

discussions may seem to be an unusual means for discerning

the original public meaning of the right—particularly given

that these discussions postdate the Second Amendment’s

ratification by three-quarters of a century—we hew to the

Supreme Court’s conclusion that they retain some

significance, albeit less than earlier interpretations of the

right. See Heller, 554 U.S. at 614–18; see also McDonald,

130 S. Ct. at 3038–42. After the Civil War, “there was an

outpouring of discussion of Second Amendment in Congress

and in public discourse, as people debated whether and how

to secure constitutional rights for newly freed slaves.” 
PERUTA V. COUNTY OF SAN DIEGO 33

Heller, 554 U.S. at 614. As this discussion was led by “those

born and educated in the early 19th century” near the time of

the Second Amendment’s enactment, “their understanding of

the origins and continuing significance of the Amendment is

instructive.” Id.

Perhaps unsurprisingly, our review suggests that their

understanding comports with that of most nineteenth-century

courts: then, as at the time of the founding, “[t]he right of the

people . . . to bear arms meant to carry arms on one’s person.” 

Stephen P. Halbrook, Securing Civil Rights, Freedmen, the

Fourteenth Amendment, and the Right to Bear Arms 50

(1998).

Our examination of the Civil War legislative scene begins

with the Supreme Court’s infamous decision in Dred Scott v.

Sanford, 60 U.S. 393 (1856). According to the Supreme

Court in Dred Scott, black slaves and their descendants “had

no rights which the white man was bound to respect”—

pouring fuel on the flames of the nation’s already-blazing

sectional crisis just four years before the firing on Fort

Sumter. Id. at 407. At the heart of this holding was the

Court’s conclusion that at no point had blacks ever been

members of the sovereign “people” of the United States. It

apparently followed from this premise that, as constitutional

non-citizens, blacks lacked not only the right to “full liberty

of speech in public and private” and “to hold meetings upon

political affairs” but also the constitutional right “to keep and

carry arms wherever they went.” Id. at 417 (emphasis

added). It was in large part in reaction to Dred Scott’s logic,

on which the Bla ck Codes of the post-war South plainly

rested, that the Reconstruction Congress sprung into action. 

Heller, 554 U.S. at 614. It was, of course, no coincidence

that the codes, designed to deny the privileges of
34 PERUTA V. COUNTY OF SAN DIEGO

constitutional citizenship to the freedmen, took aim at that

most fundamental right of keeping and bearing arms. Clayton

E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. &

Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes

adopted after the Civil War required blacks to obtain a license

before carrying or possessing firearms or bowie knives. . . . 

These restrictive gun laws played a part in provoking

Republican efforts to get the Fourteenth Amendment

passed.”); see also Stephen P. Halbrook, Personal Security,

Personal Liberty, and “The Constitutional Right to Bear

Arms”: Visions of the Framers of the Fourteenth Amendment,

5 Seton Hall Const. L.J. 341, 348 (1995) (“One did not have

to look hard to discover state ‘statutes relating to the carrying

of arms by negroes’ and to an ‘act to prevent free people of

color from carrying firearms.’” (citations omitted)). As

Heller notes, “[t]hose who opposed these injustices frequently

stated that they infringed blacks’ constitutional right to keep

and bear arms.” Heller, 554 U.S. at 614.

By all accounts, the model of such codes was

Mississippi’s 1865 “Act to Regulate the Relation of Master

and Apprentice Relative to Freedman, Free Negroes, and

Mulattoes,” which provided in part that “no freedman, free

negro or mulatto . . . shall keep or carry fire-arms of any kind,

or any ammunition, dirk or bowie knife” and that “any

freedman, free negro or mulatto found with any such arms or

ammunition” was subject to arrest. 1866 Miss. Laws ch. 23,

§1, 165 (1865). The act, rigorously enforced, led to a

thorough confiscation of black-owned guns, whether found at

home or on the person: “The militia of this country have

seized every gun and pistol found in the hands of the (so

called) freedmen. . . . They claim that the statute laws of

Mississippi do not recognize the negro as having any right to

carry arms. They commenced seizing arms in town,” as well
PERUTA V. COUNTY OF SAN DIEGO 35

as, later, “the plantations.” Harper’s Weekly, Jan. 13, 1866,

at 19, col. 2. A similar law enacted by a city in Louisiana,

which a special report “had brought to Congress’ attention,”

forbad freedmen from carrying firearms or any other kind of

weapon within the limits of town without special permission

from the government and one’s employer. Halbrook, supra,

at 5; see also “The Freedmen’s Bureau Bill,” New York

Evening Post, May 30, 1866, at 2, col. 1 (“In South Carolina

and Florida the freedmen are forbidden to wear or keep

arms.”).

Among the proposed legislative solutions to the problem

of the Black Codes was a bill to add to the powers of the

Freedmen’s Bureau, a federal agency dispatched to the South

to aid the former slaves. One senator, a Democrat from

Indiana, seemed to fear that the bill’s section securing civil

rights to blacks would cast doubt on the legitimacy of his

state’s laws securing only whites’ right to carry weapons

openly. See Halbrook, supra, at 8. Another senator, though

he opposed the bill, knew well the nature of the fundamental

rights it sought to secure: They included “the subordination

of the military to the civil power in peace, in a war, and

always,” “the writ of habeas corpus,” and “trial by jury,” he

declared. They also included the right “for every man

bearing his arms about him and keeping them in his house,

his castle, for his own defense.” Cong. Globe, 39th Cong.,

1st Sess. 340, 371 (Jan. 23, 1866) (Sen. Henry Winter Davis)

(emphasis added), cited in Heller, 554 U.S. at 616. 

Meanwhile, in the House, T. D. Eliot, the chairman of the

Committee on Freedman’s Affairs, quoted from the Louisiana

city ordinance mentioned above, citing its prohibition on

“carrying firearms” within the town as an example of the sort

of black code that federal legislation securing fundamental

rights would undo. Cong. Globe, 39th Cong., 1st Sess. 517
36 PERUTA V. COUNTY OF SAN DIEGO

(Jan. 29, 1866). Underscoring the danger that the Southern

states’ abridgement of the right portended for blacks, he

quoted a letter from a teacher at a black school in Maryland,

which told of violence prompting “both the mayor and sheriff

[to] warn[] the colored people to go armed to school, (which

they do).” She apparently added: “The superintendent of

schools came down and brought me a revolver.” Cong.

Globe, 39th Cong., 1st Sess. 658 (Feb. 5, 1866). Concerned

by such peril, Massachusetts Congressman Nathaniel P.

Banks proposed making the language of the act more specific

by explicitly listing “the constitutional right to bear arms”

among the civil rights protected. Cong. Globe, 39th Cong.,

1st Sess. 585 (Feb. 1, 1866). The language made it into both

the first bill, which President Johnson vetoed (though 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 (Feb. 19, 1866); Cong. Globe,

39th Cong., 1st Sess. 3842 (July 16, 1866).

Orders of Union commanders charged with managing

Reconstruction in the South lend further support to the notion

that citizens in the post–Civil War era conceived of the right

to bear arms as extending to self-defense outside the home. 

The Union commanders, who were given authority over

various “departments” of the defeated South, issued orders

that were just as important to the task of securing the

constitutional rights of liberated slaves as Congressional

legislation. “To the end that civil rights and immunities may

be enjoyed,” General Daniel Sickles issued General Order

No. 1 for the Department of South Carolina, stating in part

that “[t]he constitutional rights of all loyal and well-disposed

inhabitants to bear arms, will not be infringed,” though such

a guarantee neither foreclosed bans on “the unlawful practice

of carrying concealed weapons” nor authorized “any person
PERUTA V. COUNTY OF SAN DIEGO 37

to enter with arms on the premises of another against his

consent.” Cong. Globe, 39th Cong., 1st Sess. 908 (Feb. 17,

1866) (Rep. William Lawrence) (quoting Sickles’ order on

the floor of the House). Congressman William Lawrence of

Ohio lauded Sickles’ order as just the right medicine. Id.

The Loyal Georgian, a known black journal, applauded its

issuance, editorializing that blacks “certainly . . . have the

same right to own and carry arms that other citizens have.” 

The Loyal Georgian (Augusta), Feb. 3, 1866, 3, col. 4, cited

in Heller, 554 U.S. at 615.

Just as it was “plainly the understanding in the post–Civil

War Congress that the Second Amendment protected an

individual right to use arms for self-defense,” Heller,

554 U.S. at 616, it appears that the right was also understood

to encompass carrying weapons in public in case of

confrontation.

5

We consider next the major “[p]ost–Civil War

[c]ommentators[’]” understanding of the right. Id.; see also

David B. Kopel, The Second Amendment in the Nineteenth

Century, 1998 B.Y.U. L. Rev 1359, 1461–1503 (1998)

(collecting relevant commentary from the period). The first

and most influential was Thomas Cooley, judge, professor,

and author of two leading treatises on constitutional law. 

Quoted at length in Heller solely for his view that the right is

an individual one, Cooley’s works say little on the selfdefense component of the right. Nonetheless, his treatment

of the Second Amendment in his more popular treatise

supports a self-defense view of the right. There, he notes that

“happily” there has been “little occasion” for consideration by

courts of the extent to which the right may be regulated,
38 PERUTA V. COUNTY OF SAN DIEGO

citing only—and without disapproval—the pro-carriage

decisions in Bliss, Nunn, and a third case on “the right of selfdefence.” Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which Rest upon the Legislative

Power of the States of the American Union 350 & n.1 (1868),

cited in Heller, 554 U.S. at 616–17.11 Also of note, Cooley

observes elsewhere in the book that state constitutions

typically secure (among others) the right of each citizen to

“bear arms for the defence of himself.” Id. at 35–36

(emphasis added). Cooley’s view of the right is thus at least

compatible with the mainstreamself-defense view and did not

preclude certain kinds of defensive weapons bearing.

12

See

11 The editors of an 1875 edition of Blackstone also highlighted these

three cases in their discussion of “[t]he right of carrying arms for selfprotection.” 1 William Blackstone, Commentaries on the Laws of

England 121 n.64 (Herbert Broom & Edward A. Hadley eds., 1875). 

William Draper Lewis, a later editor, wrote “[t]hat the right of carrying

arms as secured by the U.S. Constitution, and generally by State

constitutions, does not include the habitual carrying of concealed deadly

weapons by private individuals.” 1 WilliamBlackstone, Commentaries on

the Laws of England 144 n.91 (William Draper Lewis ed., 1897). Both

these readings, like Cooley’s, presume that some arms bearing for selfdefense outside the home is encompassed in the right.

12 In Cooley’s other treatise, he often described the right to bear arms as

oriented toward the goal of citizenry-wide military readiness. To this end,

“to bear arms implies something more than the mere keeping; it implies

the learning to handle and use them in a way that makes those who keep

them ready for their efficient use; in other words, it implies the right to

meet for voluntary discipline in arms, observing in doing so the laws of

public order.” Thomas M. Cooley, The General Principles of

Constitutional Law in the United States of America 271 (1880), cited in

Heller, 554 U.S. at 617–18.

Although one might be tempted to read this passage, and the section

in which it appears, as suggesting that Cooley believed the right to be

devoted solely to the defense of the community, two of his later comments
PERUTA V. COUNTY OF SAN DIEGO 39

also Cooley, The General Principles, supra, at 270

(observing that the right was adopted in its inherited English

form, “with some modification and enlargement”).

A second constitutional commentator from the era, also

cited in Heller, seemed to concur in Cooley’s account. See

John Pomeroy, An Introduction to the Constitutional Law of

the United States (8th ed. 1885), cited in Heller, 554 U.S. at

618. Though Pomeroy associated the right with the “object”

of “secur[ing] a well-regulated militia,” he suggested that,

while restrictions on the frowned-upon method of “secret”

carrying would not violate the right, restrictions on open carry

likely would. Consistent with the majority of nineteenth

century courts, Pomeroy did not see “laws forbidding persons

to carry dangerous or concealed weapons” alone as

incompatible with the Amendment’s “intent and design,” (in

contrast with laws barring carry altogether) for the right is not

absolute: “Freedom, not license, is secured.” Id. at 152–53.

The observations of Oliver Wendell Holmes Jr. in his

annotations to James Kent’s canonical Commentaries on

American Law, are in accord. “As the Constitution of the

United States . . . declare[s] the right of the people to keep

suggest otherwise. First, a later line in the same treatise clarifies: “[T]he

secret carrying of those [arms] suited merely to deadly individual

encounters may be prohibited.” Id. at 272. If Cooley understood the right

to allow weapons bearing only for training in “discipline in arms” and the

like, this later clarification would not have been necessary: of course the

Amendment would not foreclose restrictions on concealed carrying, just

as it would not foreclose restrictions on open carrying—or carrying

altogether. And second, as previously noted, Cooley’s more popular

treatise referenced and contemplated a self-defense component to the

right. Cooley, A Treatise on the Constitutional Limitations, supra, at 350

& n.1.
40 PERUTA V. COUNTY OF SAN DIEGO

and bear arms,” he wrote, “it has been a subject of grave

discussion, in some of the state courts, whether a statute

prohibiting persons, when not on a journey, or as travellers,

from wearing or carrying concealed weapons, be

constitutional. There has been a great difference of opinion

on the question.” 2 J. Kent, Commentaries on American Law

*340 n.2 (Holmes ed., 12th ed. 1873), cited in Heller,

554 U.S. at 618. Reviewing a handful of cases “in favor of”

concealed-carry restrictions and others wholly against it,

Holmes tellingly ends with an analysis of Nunn v. State, in

which a statutory prohibition on carrying was “adjudged to be

valid so far as it goes to suppress the wearing of arms

secretly, but unconstitutional so far as it prohibits the bearing

or carrying arms openly.” Id. For his own part, Holmes

thought a state acting pursuant to its general police power

may (and should) prohibit the “atrociously abused” practice

of concealed carry. Id. Notably, though, he stops short of

suggesting that bans on arms bearing altogether would be

appropriate, though he was obviously aware that some courts

had adopted a more aggressive regulatory posture toward the

right.

The account of George Chase, yet another nineteenthcentury editor of Blackstone, also reflects the mainstream

view of the right—and quite explicitly so. Though the right

may not be infringed, he wrote, “it is generally held that

statutes prohibiting the carrying of concealed weapons are not

in conflict with these constitutional provisions, since they

merely forbid the carrying of arms in a particular manner,

which is likely to lead to breaches of the peace and provoke

to the commission of crime, rather than contribute to public

or personal defence.” The American Students’ Blackstone:

Commentaries on the Laws of England 84 n.11 (George
PERUTA V. COUNTY OF SAN DIEGO 41

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

554 U.S. at 626.

Legal commentator John Odronaux, also cited in Heller,

understood the right clearly to include arms bearing outside

the home. Predating the Constitution, “[t]he right to bear

arms has always been the distinctive privilege of freemen,”

rooted in part in the “necessity of self-protection to the

person.” John Ordronaux, Constitutional Legislation in the

United States: Its Origin, and Application to the Relative

Powers of Congress, and of State Legislatures 241 (1891),

cited in Heller, 554 U.S. at 619. He described the special

province of the privilege in American history: “Exposed as

our early colonists were to the attacks of savages, the

possession of arms became an indispensable adjunct to the

agricultural implements employed in the cultivation of the

soil. Men went armed into the field, and went armed to

church. There was always public danger.” Id. at 242. Still,

for all its robustness, the Amendment has never prevented “a

State from enacting laws regulating the manner in which arms

may be carried. Thus, the carrying of concealed weapons

may be absolutely prohibited without the infringement of any

constitutional right, while a statute forbidding the bearing of

arms openly would be such an infringement.” Id. at 243

(adding that a state may require a private citizen to “obtain a

license in order to be permitted to carry a concealed

weapon”). Thus, Ordronaux squarely comes down on the

side of Nunn and like authorities, affirming in no uncertain

terms the right’s viability outside the home.

That position also prevailed, to a greater or lesser extent,

in some of the minor late-nineteenth-century commentaries. 

Henry Campbell Black, Handbook of American

Constitutional Law 463 (1895) (noting that, though the arms-
42 PERUTA V. COUNTY OF SAN DIEGO

bearing privilege belongs to individuals and is a “natural

right,” restrictions on carrying concealed weapons are not

unconstitutional); James Schouler, Constitutional Studies:

State and Federal 226 (1897) (“To the time-honored right of

free people to bear arms was now [in the mid-nineteenthcentury] annexed, . . . the qualification that carrying

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

n.12 (late-nineteenth-century editors of Blackstone).

That is not to say that this period was without proponents

of a dissenting view. Indeed, there were several. See Joel

Prentiss Bishop, Commentaries on the Law of Statutory

Crimes 497–98 (1873) (disagreeing that the right permits the

carrying of weapons for personal self-defense); J.C. Bancroft

Davis, “Appendix,” in Samuel Freeman Miller, Lectures on

the Constitution of the United States 645 (1893) [hereinafter

“Davis”] (understanding the right to secure the characteristic

activities of “military bodies and associations”); George

Boutwell, The Constitution of the United States at the End of

the First Century 358 (1895) (same); 2 John Randolph

Tucker, The Constitution of the United States 671–72 (Henry

St. George Tucker ed., 1899) (same).13 Yet, we must accord

13 Some of these authorities took their cues from the Supreme Court’s

decision in Presser v. Illinois, 116 U.S. 252 (1886), which they

understood as tying the right exclusively to militia service. See, e.g.,

Davis, supra, at 645. Justice Stevens, dissenting in Heller, read it

similarly. Heller, 554 U.S. at 673 (Stevens, J., dissenting). The majority

called that view “simply wrong,” concluding that “Presser said nothing

about the Second Amendment’s meaning or scope, beyond the fact that it

does not prevent the prohibition of private paramilitaryorganizations.” Id.

at 621 (majority opinion).

One other nineteenth-century author cited in Heller registers

disapproval of public arms bearing but offers no legal assessment of

whether such bearing is within the scope of the right. See Benjamin
PERUTA V. COUNTY OF SAN DIEGO 43

these commentaries little weight, and for the same reason we

discounted the state cases finding no individual or selfdefense-based right to keep and bear arms: Heller tells us that

they are—and always have been—incorrect interpretations of

the nature and scope of the right.

The weight of authority suggests that the right to bear

arms, as understood in the post–Civil War legal commentary,

included the right to carry weapons outside the home for selfdefense, which, as shown, is consistent with the

understanding of the right articulated in most eighteenthcentury commentary, nineteenth-century court opinions, and

by many post–Civil War political actors.

So concludes our analysis of text and history: the carrying

of an operable handgun outside the home for the lawful

purpose of self-defense, though subject to traditional

restrictions, constitutes “bear[ing] Arms” within the meaning

of the Second Amendment.

6

Our conclusion that the right to bear arms includes the

right to carry an operable firearm outside the home for the

lawful purpose ofself-defense is perhaps unsurprising—other

circuits faced with this question have expressly held, or at the

very least have assumed, that this is so. Moore, 702 F.3d at

Vaughan Abbott, Judge and Jury: A Popular Explanation of Leading

Topics in the Lawof the Land 333–34 (1880) (“Carrying themfor defence,

in the more settled parts of the land, savors of cowardice rather than of

prudence; a well-behaved man has less to fear fromviolence than from the

blunders of himself and friends in managing the pistol he might carry as

a protection.”), cited in Heller, 554 U.S. at 619.
44 PERUTA V. COUNTY OF SAN DIEGO

936 (“A right to bear arms thus implies a right to carry a

loaded gun outside the home.”); see also, e.g., Drake,

724 F.3d at 431 (recognizing that the Second Amendment

right “may have some application beyond the home”);

Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)

(“We . . . assume that the Heller right exists outside the home

. . . .”); Kachalsky, 701 F.3d at 89 (assuming that the Second

Amendment “must have some application in the very

different context of the public possession of firearms”).

Given this consensus, one might consider it odd that we

have gone to such lengths to trace the historical scope of the

Second Amendment right. But we have good reason to do so:

we must fully understand the historical scope of the right

before we can determine whether and to what extent the San

Diego County policy burdens the right or whether it goes

even further and “amounts to a destruction of the right”

altogether. See Heller, 554 U.S. at 629 (quoting Reid, 1 Ala.

at 616–17). Heller instructs that text and history are our

primary guides in that inquiry.

One of Heller’s most important lessons is that the Second

Amendment “codif[ies] a pre-existing right” whose contours

can be understood principally through an evaluation of

contemporaneous accounts by courts, legislators, legal

commentators, and the like. Heller, 554 U.S. at 603, 605; see

also McDonald, 130 S. Ct. at 3056–57 (Scalia, J., concurring)

(“The traditional restrictions [on the keeping and bearing of

arms] go to show the scope of the right.”). Tracing the scope

of the right is a necessary first step in the constitutionality

analysis—and sometimes it is the dispositive one. See Heller,

554 U.S. at 628–35. “[C]onstitutional rights are enshrined

with the scope they were understood to have when the people

adopted them. . . .” Id. at 634–35. A law that “under the
PERUTA V. COUNTY OF SAN DIEGO 45

pretence of regulating, amounts to a destruction of the right”

would not pass constitutional muster “[u]nder any of the

standards of scrutiny that we have applied to enumerated

constitutional rights.” Id. at 628–29. Put simply, a law that

destroys (rather than merely burdens) a right central to the

Second Amendment must be struck down. Id.

We thus disagree with those courts—including the district

court in this case—that have taken the view that it is not

necessary (and, thus, necessary not) to decide whether

carrying a gun in public for the lawful purpose of self-defense

is a constitutionally protected activity. See, e.g., Drake,

724 F.3d at 431; Woollard, 712 F.3d at 876; Kachalsky, 701

F.3d at 89; cf. Masciandaro, 638 F.3d at 475. Understanding

the scope of the right is not just necessary, it is key to our

analysis. For if self-defense outside the home is part of the

core right to “bear arms” and the California regulatory

scheme prohibits the exercise of that right, no amount of

interest-balancing under a heightened form of means-ends

scrutiny can justify San Diego County’s policy. See Heller,

554 U.S. at 634 (“The very enumeration of the right takes out

of the hands of government—even the Third Branch of

Government—the power to decide on a case-by-case basis

whether the right is really worth insisting upon.”).

B

Having concluded that carrying a gun outside the home

for self-defense comes within the meaning of “bear[ing]

Arms,” we ask whether San Diego County’s “good cause”

permitting requirement “infringe[s]” the right.
46 PERUTA V. COUNTY OF SAN DIEGO

1

a

To determine what constitutes an infringement, our sister

circuits have grappled with varying sliding-scale and tieredscrutiny approaches, agreeing as a general matter that “the

level of scrutiny applied to gun control regulations depends

on the regulation’s burden on the Second Amendment right

to keep and bear arms.” Nordkye v. King, 681 F.3d 1041,

1045–46 (9th Cir. 2012) (en banc) (O’Scannlain, J.,

concurring) (collecting cases); see Heller II, 670 F.3d at 1257

(requiring a “strong justification” for regulations imposing a

“substantial burden upon the core right of self-defense”);

Ezell, 651 F.3d at 706, 708 (applying more demanding

scrutiny to “severe burden[s] on the core Second Amendment

right”); Masciandaro, 638 F.3d at 469–70 (requiring “strong

justification[s]” for “severe burden[s] on the core Second

Amendment right” (quoting Chester, 628 F.3d at 682–83));

Marzzarella, 614 F.3d at 97 (calibrating the level of scrutiny

to the “severity” of the burden imposed). Under this general

approach, severe restrictions on the “core” right have been

thought to trigger a kind of strict scrutiny, while less severe

burdens have been reviewed under some lesser form of

heightened scrutiny. See, e.g., United States v. Decastro,

682 F.3d 160, 166 (2d Cir. 2012); Heller II, 670 F.3d at 1257;

Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682. 

Confronting challenges to curtailments of the right to carry,

one court has applied “some form of heightened scrutiny . . .

less than strict scrutiny.” Kachalsky, 701 F.3d at 93–94. 

Another, eschewing a tiered approach, required the state to

“justif[y]” the burden. Moore, 702 F.3d at 941 (“Our analysis

is not based on degrees of scrutiny, but on Illinois’s failure to

justify the most restrictive gun law of any of the 50 states.”). 
PERUTA V. COUNTY OF SAN DIEGO 47

Still another has applied intermediate scrutiny. See Woollard,

712 F.3d at 876.

And there is, of course, an alternative approach for the

most severe cases—the approach used in Heller itself. In

Heller, applying heightened scrutiny was unnecessary. No

matter what standard of review to which the Court might have

held the D.C. restrictions,14“banning from the home the most

preferred firearm in the nation to keep and use for protection

of one’s home and family would fail constitutional muster.” 

Id. at 628–29 (internal quotation marks and citation omitted). 

A law effecting a “destruction of the right” rather than merely

burdening it is, after all, an infringement under any light. 

Heller, 554 U.S. at 629 (emphasis added) (quoting Reid,

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

(Kavanaugh, J., dissenting) (“In my view, Heller and

McDonald leave little doubt that courts are to assess gun bans

and regulations based on text, history, and tradition, not by a

balancing test such as strict or intermediate scrutiny.”).15

b

Our first task, therefore, is to assess the nature of the

infringement that the San Diego County policy purportedly

effects on the right to bear arms—namely, does it burden the

right or, like in Heller, does it destroy the right altogether?

14 Excluding, of course, rational basis review. See Heller, 554 U.S. at

628 n.27.

15 In Chovan, we applied intermediate scrutiny to a Second Amendment

claim that involved “a substantial burden on” a right outside the core of

the Second Amendment. 735 F.3d at 1138. Intermediate scrutiny is not

appropriate, however, for cases involving the destruction of a right at the

core of the Second Amendment.
48 PERUTA V. COUNTY OF SAN DIEGO

California’s regulatory scheme addresses two types of

arms-bearing: open and concealed carry. Under California

law, open carry is prohibited in San Diego County16

regardless of whether the weapon is loaded or unloaded. See

Cal. Penal Code §§ 25850, 26350. Because California law

has no permitting provision for open carry, cf. id. §§ 26150,

26155 (providing licensing only for concealed carry), it is

illegal in virtually all circumstances.

California law also severely restricts concealed carry,

although not to the same extent as open carry. As a general

rule, concealed carry is not allowed regardless of whether the

weapon is loaded. See id. § 25400. But there are certain

exceptions. Concealed carry is acceptable with a proper

permit. Id. §§ 26150, 26155. And even without a permit, it

is sanctioned for particular groups, see, e.g., id. § 25450

(peace officers); id. § 25455 (retired peace officers); id.

§ 25620 (military personnel); id. § 25650 (retired federal

officers), in particular locations, see, e.g., id. § 26035 (private

property or place of business); id. § 26040 (where hunting is

allowed), and at particular times, see, e.g., id. § 26045 (when

faced with “immediate, grave danger” in the “brief interval

before and after the local law enforcement agency . . . has

been notified of the danger and before the arrival of its

assistance); id. § 26050 (making or attempting to make a

lawful arrest).

Clearly, the California scheme does not prevent every

person from bearing arms outside the home in every

16 San Diego, like most of the populous cities and counties in California,

is incorporated. See California State Association of Counties, available

at http://www.csac.counties.org/cities-within-each-county (last visited

Feb. 4, 2014).
PERUTA V. COUNTY OF SAN DIEGO 49

circumstance. But the fact that a small group of people have

the ability to exercise their right to bear arms does not end

our inquiry. Because the Second Amendment “confer[s] an

individual right to keep and bear arms,” we must assess

whether the California scheme deprives any individual of his

constitutional rights. Heller, 554 U.S. at 595. Thus, the

question is not whether the California scheme (in light of San

Diego County’s policy) allows some people to bear arms

outside the home in some places at some times; instead, the

question is whether it allows the typical responsible, lawabiding citizen to bear arms in public for the lawful purpose

of self-defense. The answer to the latter question is a

resounding “no.”17

In California, the only way that the typical responsible,

law-abiding citizen can carry a weapon in public for the

lawful purpose of self-defense is with a concealed-carry

permit. And, in San Diego County, that option has been

taken off the table. The San Diego County policy specifies

that concern for “one’s personal safety alone” does not satisfy

the “good cause” requirement for issuance of a permit. 

Instead, an applicant must demonstrate that he suffers a

unique risk of harm: he must show “a set of circumstances

that distinguish [him] from the mainstream and cause[] him

. . . to be placed in harm’s way.” Given this requirement, the

“typical” responsible, law-abiding citizen in San Diego

County cannot bear arms in public for self-defense; a typical

17 It is worth noting that California has one of the most restrictive gun

regulatory regimes in the nation. Indeed, it is one of only eight states with

a “may-issue” permitting regime, meaning that a general desire to carry

in self-defense is not sufficient to justify obtaining a permit. See Drake,

724 F.3d at 442 (Hardiman, J., dissenting).
50 PERUTA V. COUNTY OF SAN DIEGO

citizen fearing for his “personal safety”—by definition—

cannot “distinguish [himself] from the mainstream.”

Although California law provides other specified

exceptions from the general prohibition against public carry,

these do little to protect an individual’s right to bear arms in

public for the lawful purpose of self-defense. The

exemptions for particular groups of law enforcement officers

and military personnel do not protect the typical responsible,

law-abiding citizen. Excluding private propertyand places of

business does not protect the right to bear arms for public

confrontation. And the exceptions for “making or attempting

to make a lawful arrest” or for situations of “immediate,

grave danger” (to the extent that they are not entirely

illusory—for how would one obtain a gun for use in public

when suddenly faced with such a circumstance?) do not cover

the scope of the right, which includes the right to carry in

case of public confrontation, not just after a confrontation has

occurred. Heller, 554 U.S. at 584 (defining bear arms to

mean carrying a weapon “for the purpose . . . of being armed

and ready for offensive or defensive action in a case of

conflict with another person.” (emphasis added) (quoting

Muscarello, 524 U.S. at 143 (Ginsburg, J., dissenting)). To

reason by analogy, it is as though San Diego County banned

all political speech, but exempted from this restriction

particular people (like current or former political figures),

particular places (like private property), and particular

situations (like the week before an election). Although these

exceptions might preserve small pockets of freedom, they

would do little to prevent destruction of the right to free

speech as a whole. As the Court has said: “The Second

Amendment is no different.” Heller, 554 U.S. at 635. It too

is, in effect, destroyed when exercise of the right is limited to

a few people, in a few places, at a few times.
PERUTA V. COUNTY OF SAN DIEGO 51

c

It is the rare law that “destroys” the right, requiring

Heller-style per se invalidation, but the Court has made

perfectly clear that a ban on handguns in the home is not the

only act of its kind. We quote the relevant paragraph in full,

telling case citations included:

Few laws in the history of our Nation have

come close to the severe restriction of the

District’s handgun ban. And some of those

few have been struck down. In Nunn v. State,

the Georgia Supreme Court struck down a

prohibition on carrying pistols openly (even

though it upheld a prohibition on carrying

concealed weapons). See 1 Ga., at 251. In

Andrews v. State, the Tennessee Supreme

Court likewise held that a statute that forbade

openly carrying a pistol “publicly or privately,

without regard to time or place, or

circumstances,” 50 Tenn., at 187, violated the

state constitutional provision (which the court

equated with the Second Amendment). That

was so even though the statute did not restrict

the carrying of long guns. Ibid. See also State

v. Reid, 1 Ala. 612, 616–617 (1840) (“A

statute which, under the pretence of

regulating, amounts to a destruction of the

right, or which requires arms to be so borne

as to render them wholly useless for the

purpose of defence, would be clearly

unconstitutional”).
52 PERUTA V. COUNTY OF SAN DIEGO

Id. at 629. In other words, D.C.’s complete ban on handguns

in the home amounted to a destruction of the right precisely

because it matched in severity the kinds of complete carry

prohibitions confronted (and struck down) in Nunn and

Andrews. These, in turn, resemble the severe restrictions in

effect in San Diego County, where the open or concealed

carriage of a gun, loaded or not, is forbidden. Heller teaches

that a near-total prohibition on keeping arms (Heller) is

hardly better than a near-total prohibition on bearing them

(this case), and vice versa. Both go too far.

2

The County presents one further argument in support of

the constitutionality of its “good cause” policy, which it

perceives as its ace in the hole: the Heller Court’s description

of concealed-carry restrictions as “presumptively lawful

regulatory measures.” Id. at 627 n.26. “The right [is] not a

right to keep and carry any weapon whatsoever in anymanner

whatsoever and for whatever purpose,” Heller says. Id. at

626. “For example, the majority of the 19th-century courts to

consider the question held that prohibitions on carrying

concealed weapons were lawful under the Second

Amendment and state analogues.” Id. According to the

County, this means that their concealed-carry policy (which

stops just short of an all-out ban) must also be lawful. Ergo,

this suit must fail.

But the County’s argument has two flaws. First, it

misapprehends Peruta’s challenge. This is not a case where

a plaintiff who is permitted to openly carry a loaded weapon

attacks the validity of a state’s concealed-carry rule because

he would rather carry secretly. Rather, Peruta and his fellow

plaintiffs argue that the San Diego County policy in light of
PERUTA V. COUNTY OF SAN DIEGO 53

the California licensing scheme as a whole violates the

Second Amendment because it precludes a responsible, lawabiding citizen from carrying a weapon in public for the

purpose of lawful self-defense in any manner. True, Peruta

focuses his challenge on the licensing scheme for concealed

carry, but for good reason: acquiring such a license is the only

practical avenue by which he may come lawfully to carry a

gun for self-defense in San Diego County. See Cal. Penal

Code §§ 26150, 26155 (creating a licensing scheme for

concealed carry only). As we have explained, open carry is

prohibited in San Diego County, and elsewhere in California,

without exception. See id. §§ 25850, 26350. It is against this

backdrop of the California carry regime at large, Peruta

argues, that the unconstitutionality of the County’s restrictive

interpretation of “good cause” becomes apparent. His is not

an attack trained on a restriction against concealed carry as

such, or viewed in isolation. Rather, he targets the

constitutionality of the entire scheme and requests the least

intrusive remedy: that the County of San Diego, in line with

many of the other counties in the State of California, should

be made to issue carry licenses to citizens whose only “good

cause” is the Heller-approved desire for self-defense.

The second, somewhat-related mistake in the County’s

argument is that it reads too much into Heller’s ostensible

blessing of concealed-carry restrictions. A flat-out ban on

concealed carry in a jurisdiction permitting open carry may

or may not infringe the Second Amendment right—the

passage from Heller clearly bears on that issue, which we

need not decide. But whether a state restriction on both

concealed and open carry overreaches is a different matter. 

To that question, Heller itself furnishes no explicit answer. 

But the three authorities it cites for its statement on

concealed-carry laws do. See Heller, 554 U.S. at 626. We
54 PERUTA V. COUNTY OF SAN DIEGO

have analyzed all three already. The first, State v. Chandler,

stands for the principle that laws prohibiting the carry of

concealed weapons are valid only so long as they do not

destroy the right to carry arms in public altogether. See 5 La.

Ann. at 489–90 (“[The Act] interfered with no man’s right to

carry arms (to use its words) ‘in full open view,’ which places

men upon an equality.”); see also Jumel, 13 La. Ann. at 400

(citing Chandler for the principle that “prohibiting only a

particular mode of bearing arms . . . found dangerous” does

not infringe the right). The second, Nunn v. State, was even

more explicit: “A law which merely inhibits the wearing of

certain weapons in a concealed manner is valid. But so far as

it cuts off the exercise of the right of the citizen altogether to

bear arms, or, under the color of prescribing the mode,

renders the right itself useless—it is in conflict with the

Constitution, and void.” 1 Ga. at 243. Heller’s third and final

source, Chase’s American Students’ Blackstone, takes a

similar stance, concluding that, though the Constitution

forbids the infringement of the right to bear arms, “statutes

prohibiting the carrying of concealed weapons are not in

conflict with [it or its state analogues], since they merely

forbid the carrying of arms in a particular manner, which is

likely to lead to breaches of the peace and provoke to the

commission of crime, rather than contribute to public or

personal defence.” Chase, supra, at 84 n.11.

Of course, these three sources are not the only exponents

of this view. As we have shown, dozens of other cases and

authorities from the same period—manyof which Heller cites

as probative of the right’s original meaning—contend

likewise. See, e.g., Reid, 1 Ala. at 616–17 (striking down a

concealed carry law because “the Legislature[ has] the right

to enact laws in regard to the manner in which arms shall be

borne,” but noting that a statute that destroys the right
PERUTA V. COUNTY OF SAN DIEGO 55

altogether under the “pretence of regulating” the manner of

carry “would be clearly unconstitutional”); Bliss, 12 Ky.

(2 Litt.) at 91 (holding that a ban on concealed carry, which

“restrain[ed] the full and complete exercise of [the] right,”

was unconstitutional and void). As Judge Hardiman aptly

summarized “courts have long h[eld] that although a State

may prohibit the open or concealed carry of firearms, it may

not ban both because a complete prohibition on public carry

violates the Second Amendment and analogous state

constitutional provisions.” Drake, 724 F.3d at 449

(Hardiman, J., dissenting).

To be clear, we are not holding that the Second

Amendment requires the states to permit concealed carry. 

But the Second Amendment does require that the states

permit some form of carry for self-defense outside the home. 

Historically, the preferred form of carry has depended upon

social convention: concealed carry was frowned upon

because it was seen as “evil practice” that endangered “the

safety of the people” and “public morals” by “exert[ing] an

unhappy influence upon the moral feelings of the wearer[

and] making him less regardful of the personal security of

others.” Reid, 1 Ala. at 616–17. States thus often passed

laws banning concealed carry and state courts often allowed

prohibitions on concealed carry so long as open carry was

still permitted. Id.; see also Nunn, 1 Ga. at 251 (“[S]o far as

the act of 1837 seeks to suppress the practice of carrying

certain weapons secretly, th[en] it is valid. . . . But [to the

extent it] contains a prohibition against bearing arms openly,

is in conflict with the Constitution, and void.”).

California, through its legislative scheme, has taken a

different course than most nineteenth-century state

legislatures, expressing a preference for concealed rather than
56 PERUTA V. COUNTY OF SAN DIEGO

open carry.

18

See Cal. Penal Code § 26350 (prohibiting open

carry of 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 has a right to prescribe a particular

manner of carry, provided that it does not “cut[] off the

exercise of the right of the citizen altogether to bear arms, or,

under the color of prescribing the mode, render[] the right

itself useless.” 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 of the

two.

To put it simply, concealed carry per se does not fall

outside the scope of the right to bear arms; but insistence

upon a particular mode of carry does. As we have explained

previously, this is not the latter type of case. Peruta seeks a

concealed carry permit because that is the only type of permit

available in the state. As the California legislature has

limited its permitting scheme to concealed carry—and has

thus expressed a preference for that manner of armsbearing—a narrow challenge to the San Diego County

regulations on concealed carry, rather than a broad challenge

to the state-wide ban on open carry, is permissible.19

18 This is likely the result of a changing social convention in favor of

concealed rather than open carry. See Volokh, Implementing the Right,

supra, at 1521 (“In many places, carrying openly is likely to frighten

many people, and to lead to social ostracismas well as confrontations with

the police.”).

19 The dissent curiously misinterprets our opinion as ruling on the

constitutionality of California statutes. We decline to respond to its strawman arguments.
PERUTA V. COUNTY OF SAN DIEGO 57

For these reasons, Heller’s favorable mention of

concealed-carryrestrictions 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 address the question of

whether the Second Amendment protects a responsible, lawabiding citizen’s right to bear arms outside the home for the

lawful purpose of self-defense. Indeed, we are the fifth

circuit court to opine expressly on the issue, joining an

existent circuit split. Compare Moore, 702 F.3d at 936–42

(holding that “[a] right to bear arms . . . implies a right to

carry a loaded gun outside the home” and striking down the

open-and-concealed-carry regulatory regime in Illinois

because the state failed to justify “so substantial a curtailment

of the right of armed self-defense”), with Drake, 724 F.3d at

431–35 (recognizing that the right to bear arms may have

some application outside the home, but concluding that New

Jersey’s “justifiable need” permitting requirement was a

presumptively lawful longstanding regulation or,

alternatively, that the New Jersey regulatory scheme survived

intermediate scrutiny); Woollard, 712 F.3d at 876, 879–82

(presuming that Second Amendment protections exist outside

the home and upholding Maryland’s regulatory scheme

because it could not “substitute [a different] view[] for the

considered judgment of the General Assembly,” which

“appropriate[ly] balance[d]” the interests involved), and

Kachalsky, 701 F.3d at 89, 97–99 (proceeding on the

“assumption” that the right to bear arms extends outside the

home, but affording “substantial deference to the predictive

judgments of [the legislature]” and thus upholding the gun

regulations under intermediate scrutiny). Our reading of the

Second Amendment is akin to the Seventh Circuit’s
58 PERUTA V. COUNTY OF SAN DIEGO

interpretation in Moore, 702 F.3d at 936–42,20and at odds

with the approach of the Second, Third, and Fourth Circuits

in Drake, 724 F.3d at 431–35, Woollard, 712 F.3d at 876, and

Kachalsky, 701 F.3d at 89, 97–99.

a

We are unpersuaded by the decisions of the Second,

Third, and Fourth Circuits for several reasons. First, contrary

to the approach in Heller, all three courts declined to

undertake a complete historical analysis of the scope and

nature of the Second Amendment right outside the home. 

Compare Heller, 554 U.S. at 605 (examining the postratification interpretations of the Second Amendment because

“the public understanding of a legal text in the period after its

enactment or ratification” is “a critical tool of constitutional

interpretation” (emphasis omitted)), with Drake, 724 F.3d at

431 (noting that the court was “not inclined to address [text,

history, tradition and precedent] by engaging in a round of

full-blown historical analysis” and relying on the Second

Circuit’s conclusion that “[h]istory and tradition do not speak

with one voice” (quoting Kachalsky, 701 F.3d at 91));

Woollard, 712 F.3d at 874–76 (declining to “impart a

definitive ruling” regarding the scope of the Second

Amendment right), and Kachalsky, 701 F.3d at 91 (refusing

to look at “highly ambiguous history and tradition to

determine the meaning of the Amendment”). As a result,

theymisapprehend both the nature of the Second Amendment

right and the implications of state laws that prevent the vast

20 The Supreme Court of Illinois has also found Moore persuasive. See

People v. Aguilar, 2013 IL 122116, at *5–6 (Sept. 12, 2013) (ruling “that

the second amendment protects the right to possess and use a firearm for

self-defense outside the home”).
PERUTA V. COUNTY OF SAN DIEGO 59

majority of responsible, law-abiding citizens from carrying in

public for lawful self-defense purposes.

For example, in Kachalsky, the Second Circuit’s

perfunctory glance at the plaintiffs’ historical argument

misunderstood the historical consensus regarding the right to

bear arms outside the home. Relying on three cases, the court

concluded that “history and tradition [did] not speak with one

voice” regarding the ability to restrict public carry because at

least three states “read restrictions on the public carrying of

weapons as entirely consistent with constitutional

protections.” Kachalsky, 701 F.3d at 90–91 (citing Fife v.

State, 31 Ark. 455 (1876), English, 35 Tex. at 473, and

Andrews v. State, 50 Tenn. 165 (1871)). But in its brief

historical analysis, 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 and always has been

incorrect. Cf. Moore, 702 F.3d at 941 (referencing

“disagreement . . . with some of the historical analysis in

[Kachalsky because] we regard the historical issues as settled

in Heller”). All three cases interpret the Second Amendment

as a militia-based (rather than a self-defense-centered) right;

they uphold regulations on carrying pistols in public because

pistols are not the type of weapons that would be used by

militia men. See Fife, 31 Ark. at 461 (upholding a prohibition

against carrying pistols in public because such weapons are

“used in private quarrels and brawls” and are not “effective

as a weapon of war, and useful and necessary for ‘the

common defense’”); English, 35 Tex. at 475 (“[W]e shall be

led to the conclusion that the [Second Amendment] protects

only the right to ‘keep’ such ‘arms’ as are used for purposes

of war, in distinction from those which are employed in

quarrels and broils, and fights between maddened individuals

. . . .”); Andrews, 50 Tenn. at 186–87 (affirming the
60 PERUTA V. COUNTY OF SAN DIEGO

constitutionality of a law regulating public carry of certain

weapons which were not the “usual equipment of the soldier”

but remanding for consideration of whether a revolver was

the “character of weapon” used in warfare).

Because the Second Amendment has always been an

individual right to defend oneself, cases that—like

these—uphold gun regulations because they do not offend the

militia-based nature of the right are inapposite and should not

factor into a historical analysis of the right’s scope. See, e.g.,

Heller, 554 U.S. at 605. And with these cases off the table,

the remaining cases speak with one voice: states may not

destroy the right to bear arms in public under the guise of

regulating it. See, e.g., Kachalsky, 701 F.3d at 90

(recognizing that some state courts “offered interpretations of

the Second Amendment” consistent with the plaintiffs’

position that “though a state may regulate open or concealed

carrying of handguns, it cannot ban both”); see also Drake,

724 F.3d at 449 (Hardiman, J., dissenting) (noting that the

“crux of the[] historical precedents[] endorsed by the

Supreme Court, is that a prohibition against both open and

concealed carry without a permit is different in kind, not

merely in degree, from a prohibition covering only one type

of carry”). In light of Heller, the Second Circuit erred in

outright rejecting history and tradition as unhelpful and

ambiguous, and the Third and Fourth Circuits erred in
PERUTA V. COUNTY OF SAN DIEGO 61

following suit.21See Kachalsky, 701 F.3d at 91; see also

Drake, 724 F.3d at 431; Woollard, 712 F.3d at 875–76.

By evading an in-depth analysis of history and tradition,

the Second, Third, and Fourth Circuits missed a crucial piece

of the Second Amendment analysis. They failed to

comprehend that carrying weapons in public for the lawful

purpose of self defense is a central component of the right to

bear arms. See Moore, 702 F.3d at 941 (criticizing the court

in Kachalsky for “suggest[ing] that the Second Amendment

21 Indeed, the Third Circuit went even further than that. It not only

rejected history and tradition, but specifically relied on more recent midtwentieth century developments to justify New Jersey’s permitting

scheme. See Drake, 724 F.3d at 432–34; see also id. at 447–52

(Hardiman, J., dissenting) (criticizing the majority’s reliance on midtwentieth-century New Jersey law to justify narrowing the scope of the

Second Amendment right). The Third Circuit majority concluded that

even if the Second Amendment right extended outside the home,

permitting restrictions that required individuals to showa “justifiable need

to carry a handgun” in the form of “specific threats or previous attacks

which demonstrate a special danger to the applicant’s life” were analogous

to the type of “longstanding” regulations that the Supreme Court had

identified as “presumptively lawful” in Heller. Id. at 428–29 (majority

opinion). To reach this conclusion, the Third Circuit relied upon New

Jersey law, which had incorporated some version of the “justifiable need”

requirement into its permitting scheme since 1924. Id. at 432. We reject

this analysis because it goes against the analysis of the Second

Amendment’s scope employed inHeller and McDonald: those cases made

clear that the scope of the Second Amendment right depends not on posttwentieth century developments, but instead on the understanding of the

right that predominated from the time of ratification through the

nineteenth century. See, e.g., Heller, 554 U.S. at 605; see also Drake,

724 F.3d at 452 (Hardiman, J., dissenting) (“[R]egardless of whether New

Jersey’s justifiable need requirement dates to 1924 or 1966 for purposes

of the inquiry, there is not a sufficiently longstanding tradition of

regulations that condition the issuance of permits on a showing of special

need for self-defense to uphold New Jersey’s law on that basis.”).
62 PERUTA V. COUNTY OF SAN DIEGO

should have a much greater scope inside the home than

outside” and noting that the “interest in self-protection [and

thus in the Second Amendment right] is as great outside as

inside the home”). And further, they failed to comprehend

that regulations on the right, although permissible to an

extent, could not go so far as to enjoin completely a

responsible, law-abiding citizen’s right to carry in public for

self-defense. Such regulations affecting a destruction of the

right to bear arms, just like regulations that affect a

destruction of the right to keep arms, cannot be sustained

under any standard of scrutiny. See Heller, 554 U.S. at 629.

Because the Second, Third, and Fourth Circuits eschewed

history and tradition in their analysis of the constitutionality

of these regulations, despite the Supreme Court’s admonition

that “the public understanding of a legal text in the period

after its enactment or ratification” is a “critical tool of

constitutional interpretation,” we find their approaches

unpersuasive. See Heller, 554 U.S. at 605. Our independent

analysis of history and tradition leads us to take a different

course.

b

Because our analysis paralleled the analysis in Heller

itself, we did not apply a particular standard of heightened

scrutiny. See also Moore, 702 F.3d at 941 (declining to

subject the “most restrictive gun law of any of the 50 states”

to an “analysis . . . based on degrees of scrutiny”). Thus, the

Second, Third, and Fourth Circuits’ extensive discussions

regarding the application of intermediate scrutiny to similar

regulations in other states is not particularly instructive to our

view of the issues in this case.
PERUTA V. COUNTY OF SAN DIEGO 63

Nonetheless, to the extent those opinions suggest that the

type of regulation at issue here can withstand some form of

heightened scrutiny, it is worth noting our disagreement with

their reasoning.

When analyzing whether a “substantial relationship”

existed between the challenged gun regulations and the goal

of “public safety and crime prevention” the Second Circuit

concluded that it owed “substantial deference to the

predictive judgments of [the legislature]” regarding the

degree of fit between the regulations and the public interest

they aimed to serve. Kachalsky, 701 F.3d at 97. Relying on

New York’s historical regulation of handguns from 1911 to

the present, the court deferred to the state legislature’s

“belief” that regulation of handgun possession would have

“an appreciable impact on public safety and crime

prevention.” Id. at 97–98. It thus upheld New York’s

regulatory scheme, emphasizing that there was “general

reticence to invalidate the acts of [our] elected leaders.” Id.

at 100 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.

Ct. 2566, 2579 (2012)). Taking a similar approach, the Third

Circuit deferred to the legislature’s judgment that the

permitting regulations would serve its interest in ensuring

public safety even though “New Jersey [could not] present[]

[the court] with much evidence to show how or why its

legislators arrived at this predictive judgment.” Drake,

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

(clarifying that in actuality “New Jersey . . . provided no

evidence at all to support its proffered justification . . .”). 

And the Fourth Circuit, in a familiar vein, relied on the

legislature’s judgment that “reduc[ing] the number of

handguns carried in public” would increase public safety and

prevent crime, despite conflicting evidence on the issue. 

Woollard, 712 F.3d at 879–82.
64 PERUTA V. COUNTY OF SAN DIEGO

This is not an appropriate application of intermediate

scrutiny in at least two respects. First, the analysis in the

Second, Third, and Fourth Circuit decisions is near-identical

to the freestanding “interest-balancing inquiry” that Justice

Breyer proposed—and that the majority explicitly

rejected—in Heller. See Heller, 554 U.S. at 689–90 (Breyer,

J., dissenting) (proposing that in Second Amendment cases

the court should “ask[] whether the statute burdens a

protected interest in a way or to an extent that is out of

proportion to the statute’s salutary effects upon other

important governmental interests”); see also id. at 634–35

(majority opinion) (rejecting a “judge-empowering ‘interestbalancing inquiry’” as a test for the constitutionality of

Second Amendment regulations because “no other

enumerated constitutional right [had its] core protection . . .

subjected to [such] a freestanding” inquiry). All three courts

referenced, and ultimately relied upon, the state legislatures’

determinations weighing the government’s interest in public

safety against an individual’s interest in his Second

Amendment right to bear arms. See Kachalsky, 701 F.3d at

100 (deferring to the state legislature’s determination “that

limiting handgun possession to persons who have an

articuable basis for believing they will need the weapon for

self-defense is in the best interest of public safety and

outweighs the need to have a handgun for an unexpected

confrontation” (emphasis added)); see also Drake, 724 F.3d

at 439 (noting that “New Jersey has decided that this

somewhat heightened risk to the public may be outweighed

by the potential safety benefit to an individual with a

justifiable need to carry a handgun” (emphasis added)

(internal quotation marks omitted)); Woollard, 712 F.3d at

880 (relying on the state’s determination that “the good-andsubstantial-reason requirement ‘strikes a proper balance

between ensuring access to handgun permits for those who
PERUTA V. COUNTY OF SAN DIEGO 65

need them while preventing a greater-than-necessary

proliferation of handguns in public places that . . . increases

risks to public safety.’” (emphasis added)). As we previously

explained, such an approach ignores the Heller court’s

admonition that “the very enumeration of the right takes out

of the hands of government . . . the power to decide on a caseby-case basis whether the right is really worth insisting

upon.” Heller, 554 U.S. at 634; see also Drake, 724 F.3d at

457 (Hardiman, J., dissenting) (recognizing that the Heller

court “rejected this sort of balancing inquiry as inconsistent

with the very idea of constitutional rights”).

Our second disagreement with our sister circuits’

application of intermediate scrutiny relates to the high degree

of deference they afforded the state legislatures’ assessments

of the fit between the challenged regulations and the asserted

government interest they served. Although all three cite

Turner Broadcasting System, Inc. v. FCC (Turner II),

520 U.S. 180 (1997), for the proposition that courts must

afford deference to legislative findings, they apply this

premise in the wrong context. See Drake, 724 F.3d at

436–37; Woollard, 712 F.3d at 881; Kachalsky, 701 F.3d at

97. In Part II.A. of Turner, the Court applied deference to the

legislature’s judgment regarding the first portion of the

intermediate scrutiny analysis: whether there was a “real

harm” amounting to an important government interest and

“whether [the statutory provisions at issue] will alleviate it in

a material way.” Turner, 520 U.S. at 195. But in Part II.B,

when assessing “the fit between the asserted interests and the

means chosen to advance them,” the Court applied no such

deference. Id. at 213. Instead, it required the government to

prove that the statute did not burden the right “‘substantially

more . . . than is necessary to further’ [the government’s

legitimate] interests.” Id. at 214 (quoting Turner
66 PERUTA V. COUNTY OF SAN DIEGO

Broadcasting System, Inc. v. FCC (Turner I), 512 U.S. 622,

662 (1994)).

In Drake, Woollard, and Kachalsky, the government

failed to show that the gun regulations did not burden

“substantially more” of the Second Amendment right than

was necessary to advance its aim of public safety. Indeed, as

the district court noted in Woollard, the government could not

show that the challenged regulation served its needs any

better than a random rationing system, wherein gun permits

were limited to every tenth applicant. See also Drake,

724 F.3d at 455 (Hardiman, J., dissenting) (“[I]t is obvious

that the justifiable need requirement [in New Jersey]

functions as a rationing system designed to limit the number

of handguns carried in [the state].”). As that court so aptly

put it:

The Maryland statute’s failure lies in the

overly broad means by which it seeks to

advance this undoubtedly legitimate end. The

requirement that a permit applicant

demonstrate “good and substantial reason” to

carry a handgun does not, for example,

advance the interests of public safety by

ensuring that guns are kept out of the hands of

those adjudged most likely to misuse them,

such as criminals or the mentally ill. It does

not ban handguns from places where the

possibility of mayhem is most acute, such as

schools, churches, government buildings,

protest gatherings, or establishments that

serve alcohol. It does not attempt to reduce

accidents, as would a requirement that all

permit applicants complete a safety course. It
PERUTA V. COUNTY OF SAN DIEGO 67

does not even, as some other States’ laws do,

limit the carrying of handguns to persons

deemed “suitable” by denying a permit to

anyone “whose conduct indicates that he or

she is potentially a danger to the public if

entrusted with a handgun.”

Rather, the regulation at issue is a

rationing system. It aims, as Defendants

concede, simply to reduce the total number of

firearms carried outside of the home by

limiting the privilege to those who can

demonstrate “good reason” beyond a general

desire for self-defense.

. . . .

The challenged regulation does no more to

combat [the state’s public safety concerns]

than would a law indiscriminately limiting the

issuance of a permit to every tenth applicant.

The solution, then, is not tailored to the

problem it is intended to solve. Maryland’s

“good and substantial reason” requirement

will not prevent those who meet it from

having their guns taken from them, or from

accidentally shooting themselves or others, or

from suddenly turning to a life of crime. . . . If

anything, the Maryland regulation puts

firearms in the hands of those most likely to

use them in a violent situation by limiting the

issuance of permits to “groups of individuals

who are at greater risk than others of being the

victims of crime.”
68 PERUTA V. COUNTY OF SAN DIEGO

Woollard v. Sheridan, 863 F. Supp. 2d 462, 474–75 (D. Md.

2012) (internal citations and quotation marks omitted), rev'd

sub nom. Woollard, 712 F.3d at 865; see also City 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 regulation prohibiting the distribution of

commercial handbills and a government interest in safety and

esthetics and rejecting the city’s argument that it could show

“a close fit between its ban on newsracks dispensing

‘commercial handbills’ and its interest in safety and esthetics

because every decrease in the number of such dispensing

devices necessarily effect[ed] an increase in safety and an

improvement in the attractiveness of the cityscape.”).

In light of the states’ failure to demonstrate sufficient

narrow tailoring in Drake, Woollard, and Kachalsky, the gun

regulations at issue in those cases should have been struck

down even under intermediate scrutiny.

III

We conclude by emphasizing, as nearly every authority

on the Second Amendment has recognized, regulation of the

right to bear arms is not only legitimate but quite appropriate. 

We repeat Heller’s admonition that “nothing in our opinion

should be taken to cast doubt on longstanding prohibitions on

the possession”—or carriage—“of firearms by felons and the

mentally ill, or laws forbidding the carrying of firearms in

sensitive places such as schools and government buildings, or

laws imposing conditions and qualifications on the

commercial sale of arms.” Heller, 554 U.S. at 626–27. Nor

should anything in this opinion be taken to cast doubt on the

validity of measures designed to make the carrying of
PERUTA V. COUNTY OF SAN DIEGO 69

firearms for self-defense as safe as possible, both to the

carrier and the community.

We are well aware that, in the judgment of many

governments, the safest sort of firearm-carrying regime is one

which restricts the privilege to law enforcement with only

narrow exceptions. Nonetheless, “the enshrinement of

constitutional rights necessarily takes certain policy choices

off the table. . . . Undoubtedly some think that the Second

Amendment is outmoded in a society where our standing

army is the pride of our Nation, where well-trained police

forces provide personal security, and where gun violence is

a serious problem. That is perhaps debatable, but what is not

debatable is that it is not the role of this Court [or ours] to

pronounce the Second Amendment extinct.” Id. at 636. Nor

may we relegate the bearing of arms to a “second-class right,

subject to an entirely different body of rules than the other

Bill of Rights guarantees that we have held to be incorporated

into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.

The district court erred in denying the applicant’s motion

for summary judgment on the Second Amendment claim

because San Diego County’s “good cause” permitting

requirement impermissibly infringes on the Second

Amendment right to bear arms in lawful self-defense.22

REVERSED and REMANDED.

22 Because we reverse on the basis of the Second Amendment issue, we

do not reach any of Peruta’s other claims.
70 PERUTA V. COUNTY OF SAN DIEGO

THOMAS, Circuit Judge, dissenting:

In its landmark decision in Heller, the Supreme Court

held that a complete ban on handgun possession in the home

violated the Second Amendment. District of Columbia v.

Heller, 554 U.S. 570, 635 (2008). In doing so, it reminded us

that: “the right secured by the Second Amendment is not

unlimited” and that it “was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose.” Id. at 626. Significantly for our case, the

Court then specifically discussed restrictions on carrying

concealed weapons, explaining that “the majority of the 19thcentury courts to consider the question held that prohibitions

on carrying concealed weapons were lawful under the Second

Amendment or state analogues.” Id. The Court then

emphasized that “nothing in our opinion should be taken to

cast doubt on longstanding prohibitions,” which it labeled as

“presumptively lawful.” Id. at 626–27 & n.26. Heller’s

pronouncement is consistent with the Supreme Court’s prior

observation that “the right of the people to keep and bear

arms . . . is not infringed by laws prohibiting the carrying of

concealed weapons.” Robertson v. Baldwin, 165 U.S. 275,

281–82 (1897).

This case involves California’s “presumptively lawful”

and longstanding restrictions on carrying concealed weapons

in public and, more specifically, an even narrower question:

the constitutionality of San Diego County’s policy of

allowing persons who show good cause to carry concealed

firearms in public. When we examine the justification

provided for the policy, coupled with Heller’s direction, our

conclusion must be that the County’s policy is constitutional.
PERUTA V. COUNTY OF SAN DIEGO 71

Unfortunately, the majority never answers the question

posed. Instead, in a sweeping decision that unnecessarily

decides questions not presented, the majority not only strikes

down San Diego County’s concealed carry policy, but upends

the entire California firearm regulatory scheme. The majority

opinion conflicts with Heller, the reasoned decisions of other

Circuits, and our own case law.

Therefore, I must respectfully dissent.

I

We are not asked in this case to determine the reach of the

Second Amendment outside the home or to evaluate the

entirety of California’s handgun regulatory scheme. Rather,

the narrow questions presented in this case are: (1) Does the

scope of the Second Amendment extend to protect the

concealed carrying of handguns in public, and (2) if so, does

San Diego County’s policy of allowing public concealed

weapon carry upon a showing of good cause

unconstitutionally infringe on that right?

Second Amendment jurisprudence has rapidly evolved in

the last several years, commencing with the Supreme Court’s

groundbreaking decisions in Heller and McDonald v. City of

Chicago, 130 S. Ct. 3020 (2010). Although these cases are of

recent origin, Heller and McDonald, along with decisions of

our sister circuits, have provided an analytical framework for

examining Second Amendment challenges, which we

recently distilled in United States v. Chovan, 735 F.3d 1127,

1136 (9th Cir. 2013).

The Supreme Court has not as yet defined the extent to

which the Second Amendment applies outside the home, and
72 PERUTA V. COUNTY OF SAN DIEGO

that issue has been the subject of intense debate in the

intermediate appellate courts.1 As Judge Wilkinson has

observed, the question of the extent of the Second

Amendment’s reach beyond the home post-Heller is “a vast

terra incognita that courts should enter only upon necessity

and only then by small degree.” United States v.

Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson,

J., concurring).

In this changing landscape, with many questions

unanswered, our role as a lower court is “narrow and

constrained by precedent,” and our task “is simply to apply

the test announced by Heller to the challenged provisions.” 

Heller v. District of Columbia, 670 F.3d 1244, 1285 (D.C.

Cir. 2011) (“Heller II”).

In this case, we are not presented with a broad challenge

to restrictions on carrying firearms outside the home. Instead,

we are asked a much more circumscribed question concerning

regulation of public carry of concealed firearms. As the

Supreme Court emphasized in Heller, that issue has a much

different and unique history than the Second Amendment

challenge at issue in Heller, and the history of concealed

carry restrictions differs from the history of open carry

regulations. Those differences are crucial to resolution of the

issues in this case.

Simply put, concealed carry presents an entirely different

Second Amendment issue from possessing handguns in the

home for self-defense. As the Supreme Court recognized in

Heller, courts and state legislatures have long recognized the

1 Compare Moore v. Madigan, 702 F.3d 933, 935–36 (7th Cir. 2012)

with Moore, 702 F.3d at 944–49 (Williams, J., dissenting).
PERUTA V. COUNTY OF SAN DIEGO 73

danger to public safety of allowing unregulated, concealed

weapons to be carried in public. Indeed that danger formed

part of the rationale for allowing police “stop and frisks” in

Terry v. Ohio, 392 U.S. 1 (1968). As Justice Harlan observed

in that case, “[c]oncealed weapons create an immediate and

severe danger to the public.” Id. at 31–32.

Under Heller and Chovan, we employ a two-part inquiry

when reviewing Second Amendment challenges to firearm

regulations. “The first question is whether the challenged law

imposes a burden on conduct falling within the scope of the

Second Amendment’s guarantee.” Chovan, 735 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 seeks to determine whether the

conduct at issue was understood to be within the scope of the

right at the time of ratification.” Chester, 628 F.3d at 680. 

“If it was not, then the challenged law is valid.” Id. “If the

challenged regulation burdens conduct that was within the

scope of the Second Amendment as historically understood,

then we move to the second step of applying an appropriate

form of means-end scrutiny.” Id.

II

The first question is whether the challenged law imposes

a burden on conduct falling within the scope of the Second

Amendment’s guarantee. Chovan, 735 F.3d at 1134. The

Supreme Court has instructed that the core of the Second

Amendment is “the right of law-abiding, responsible citizens

to use arms in defense of hearth and home.” Heller, 554 U.S.
74 PERUTA V. COUNTY OF SAN DIEGO

at 635.2 Carrying concealed weapons in public by definition

does not inherently involve defense of hearth and home, so

the core of the Second Amendment is not implicated. Thus,

we must begin by examining the conduct at issue in this case

using the analysis prescribed by Heller and Chovan.

2

In post-Heller jurisprudence, nearly every other circuit that has

addressed this question has similarly identified the Second Amendment’s

core guarantee as the right of responsible, law-abiding adults to possess

usable firearms in their homes. See Kachalsky v. Cnty. of Westchester,

701 F.3d 81, 93 (2d Cir. 2012), cert. denied, 133 S. Ct. 1806 (2013)

(“Heller explains that the ‘core’ protection of the Second Amendment is

the right of law-abiding, responsible citizens to use arms in defense of

hearth and home.”) (some internal quotation marks and citation omitted);

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &

Explosives, 700 F.3d 185, 195 (5th Cir. 2012) (describing “a right at the

core of the Second Amendment” as “the right of a law-abiding,

responsible adult to possess and use a handgun to defend his or her home

and family”); United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012)

(“The core right recognized in Heller is the right of law-abiding,

responsible citizens to use arms in defense of hearth and home.”) (internal

quotation marks and citation omitted); Heller II, 670 F.3d at 1255

(explaining that the “core lawful purpose protected by the Second

Amendment” is that of “a person lawfully to acquire and keep a firearm,

including a handgun, for the purpose of self-defense in the home”)

(internal quotation marks and citation omitted); United States v. Barton,

633 F.3d 168, 170 (3d Cir. 2011) (“At the core of the Second Amendment

is the right of law-abiding, responsible citizens to use arms in defense of

hearth and home.”) (internal quotationmarks and citation omitted); United

States v. Chester, 628 F.3d 673, 676 (4th Cir. 2010) (explaining that

Heller “clearly staked out the core of the Second Amendment” as “the

right of law-abiding, responsible citizens to use arms in defense of hearth

and home”) (internal quotation marks and citation omitted); see also

Peterson v. Martinez, 707 F.3d 1197, 1218 (10th Cir. 2013) (Lucero, J.,

concurring separately); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d

1244, 1259 (11th Cir. 2012) (noting that the Heller Court “went to great

lengths to emphasize the special place that the home—an individual’s

private property—occupies in our society.”).
PERUTA V. COUNTY OF SAN DIEGO 75

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 citizen has a right under the Second Amendment

to carry a firearm in public for self-defense.” This is

certainly an important issue, but it is not the question we are

called upon to answer. The Plaintiffs are not seeking a

general license to carry firearms in public for selfdefense—they are seeking a license to carry concealed

firearms in public.

Properly identifying the “conduct at issue” is the lynchpin

of the two-step inquiry because the first question we ask, as

with all constitutional challenges based on enumerated rights,

is “whether the challenged law imposes a burden on conduct

falling within the scope of the Second Amendment’s

guarantee.” Id. (emphasis added). The Bill of Rights

guarantees that individuals may engage in specified protected

conduct. Challenges based on the Bill of Rights seek to

vindicate its guarantees by striking down laws that interfere

with protected conduct. In the context of firearm regulations,

“[t]he specific constitutional challenge thus delineates the

proper form of relief and clarifies the particular Second

Amendment restriction that is before us.” Peterson, 707 F.3d

at 1209.

Thus, the proper analytic approach is to answer the

historical inquiry as to whether carrying a concealed weapon

in public was understood to be within the scope of the right

protected by the Second Amendment at the time of

ratification. This examination must be approached with

caution, bearing in mind Justice Stevens’ admonition that
76 PERUTA V. COUNTY OF SAN DIEGO

“[i]t is not the role of federal judges to be amateur

historians.” McDonald, 130 S.Ct. at 3119 (Stevens, J.,

dissenting). Care is also required to avoid the danger inherent

in any exercise of historiography: that we assemble history to

fit a pre-conceived theory. As judges undertaking this

examination, we must also set aside any personal views we

may have on the important, but contentious, policy question

of firearm regulation.

B

Heller instructed us to look to the Second Amendment’s

historical background to understand its scope. 554 U.S. at

592; see also Chester, 628 F.3d at 680. In its own

consideration of the Second Amendment’s history, Heller

identified a catalogue of historical materials bearing on the

provision’s meaning. In examining those same

sources—from the history of the right in England to the

interpretations of nineteenth-century American courts and

commentators—we must conclude that carrying concealed

weapons has routinely been restricted, and has often been

outright banned. As the majority fairly acknowledges at

several points in its extensive historical survey, nearly every

source cited in Heller concluded that carrying concealed

weapons is not part of the right to bear arms and that

restrictions on carrying concealed weapons therefore do not

offend the Second Amendment.

Because of the importance attached to the historical

sources by the Supreme Court in Heller, it is necessary to

examine them in some detail.
PERUTA V. COUNTY OF SAN DIEGO 77

1

History of the Right to Bear Arms in England. Because

the Second Amendment “codified a right inherited from our

English ancestors,” the Supreme Court looked to the history

of the right in England to divine whether the Second

Amendment protected an individual or a collective right. 

Heller, 554 U.S. at 592–95, 599 (internal quotation marks and

citation omitted). A look at the same history suggests that the

“right inherited from our English ancestors” did not include

a right to carry concealed weapons in public. See id. at

592–95.

Restrictions on the carrying of open and concealed

weapons in public have a long pedigree in England. The

fourteenth-century Statute of Northampton provided that “no

man” shall “go nor ride armed by night nor by day, in fairs,

markets, nor in the presence 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 King’s pleasure.” 

2 Edw. 3, c. 3 (1328). In Sir John Knight’s Case, an English

court explained that the statute had two purposes. 87 Eng.

Rep. 75 (K.B. 1686). One “was to punish people who go

armed to terrify the King’s subjects.” Id. The other was to

codify the common law, which prohibited the described

conduct because it promoted the sense that “the King [was]

not able or willing to protect his subjects.” Id. Ultimately,

the court acquitted Sir John Knight under the statute’s

exception for the king’s ministers and servants and anyone

otherwise authorized “to keep the peace.” 2 Edw. 3, c. 3

(1328).

Following the enactment of the Statute of Northampton,

English monarchs repeatedly called on their officials to
78 PERUTA V. COUNTY OF SAN DIEGO

enforce it. See Patrick Charles, The Faces of the Second

Amendment Outside the Home: History Versus Ahistorical

Standards of Review, 60 Clev. St. L. Rev. 1, 13–30 (2012). 

For example, in 1579, Queen Elizabeth I called for the

enforcement of the Statute of Northampton and other laws

prohibiting the carrying of “Dagges, Pistolles, and such like,

not on[]ly in Cities and Townes, [but] in all partes of the

Realme in common high[ways], whereby her Majesties good

qu[i]et people, desirous to live in peaceable manner, are in

feare and danger of their lives.” Id. at 21 (internal quotation

marks and citation omitted). In 1594, the Queen again called

for the enforcement of gun control laws because her subjects

were being terrorized by the carrying of arms, including

concealed “pocket Dags,” in public. Id. at 22 (internal

quotation marks and citation omitted).

More than three centuries after the enactment of the

Statute of Northampton, William and Mary declared “[t]hat

the subjects which are Protestants may have arms for their

defence suitable to their Conditions, and as allowed byLaw.” 

1 W. & M., 2d sess., c. 2, § 7 (1689). This provision of the

English Bill of Rights “has long been understood to be the

predecessor to our Second Amendment.” Heller, 554 U.S. at

593. But despite England’s adoption of this right, the Statute

of Northampton remained in full force and was still

understood to sharply limit the freedom to carry arms in

public. In his guide for British constables, Robert Gardiner

interpreted the statute to mean that

if any Person shall Ride or go Arm’d

offensively . . . in Fairs or Markets or

elsewhere, by Day or by Night, in affray of

Her Majesties Subjects, and Breach of the

Peace; or wear or carry any Daggers, Guns
PERUTA V. COUNTY OF SAN DIEGO 79

or Pistols Charged; the Constable upon sight

thereof, may seize and take away their

Armour and Weapons, and have them

apprized as forfeited to Her Majesty.

Robert Gardiner, The Compleat Constable, 18–19 (1708)

(emphasis added). Notably, Gardiner distinguished between

going armed offensively in breach of the peace, on the one

hand, and merely wearing or carrying arms, on the other. Id.

This distinction suggests that he considered carryingweapons

in public a violation of the statute, regardless of whether

doing so actually breached the peace. Charles, supra, at

25–28. Blackstone confirmed this understanding:

The offense of riding or going armed with

dangerous or unusual weapons, is a crime

against the public peace, by terrifying the

good people of the land; and is particularly

prohibited by the Statute of Northampton,

upon pain of forfeiture of the arms, and

imprisonment during the king’s pleasure: in

like manner as, by the laws of Solon, every

Athenian was finable who walked about the

city in armour.

4 William Blackstone, Commentaries on the Laws of England

148–49 (1st ed. 1769) (citations omitted). According to

Blackstone, the Statute of Northampton proscribed the public

carrying of “dangerous or unusual” weapons because doing

so terrified the people. Id. Thus, in England, as in ancient

Athens, it was an offense simply to go armed—or, at least,

armed in a dangerous manner—in public areas. Id.
80 PERUTA V. COUNTY OF SAN DIEGO

Certainly, this history does not provide a ready or easy

answer to this case. Indeed, history—especially history as

old as that recited here—is often ambiguous or contradictory. 

Nonetheless, from what we know, we can be sure that “the

right we inherited from our English ancestors” left ample

leeway for restrictions on the public carrying of firearms in

the interest of public safety.

2

Post-Ratification Commentary. The Heller Court relied

heavily on the post-ratification commentary of St. George

Tucker, William Rawle, and Joseph Story. See 554 U.S. at

605–10. Unfortunately, these commentators revealed little of

their opinions about concealed weapons. Still, Rawle wrote

that the Second Amendment right “ought not . . . , in any

government, to be abused to the disturbance of the peace.” 

William Rawle, A View of the Constitution of the United

States 123 (1825). Heller cited this statement when it noted

that, “[f]rom Blackstone through the 19th-century cases,

commentators and courts routinelyexplained that the [Second

Amendment] right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for

whatever purpose.” 554 U.S. at 626. At the least, Heller’s

language suggests that there is room for restricting certain

manners of carrying firearms where they threaten public

peace and safety.

3

Pre-Civil War State Constitutions and Legislation. To

confirm its understanding of the Second Amendment’s

guarantee, the Heller Court looked to state legislation and

state constitutional provisions from the Founding Era and
PERUTA V. COUNTY OF SAN DIEGO 81

subsequent generations. 554 U.S. at 600–03. These same

sources support the conclusion that publicly carrying

concealed weapons falls outside the Second Amendment’s

scope.

By the Founding era, three of the original thirteen

states—Massachusetts, North Carolina, and Virginia—had

expressly adopted the Statute of Northampton. Charles,

supra, at 31–32 & n.166. There is no indication that in doing

so these states meant to exclude the longstanding

interpretations of the statute.

In the early nineteenth century,states increasingly limited

the carrying of concealed firearms.3 And “[m]ost states

enacted laws banning the carrying of concealed weapons.”

4

3

See Act of Mar. 25, 1813, 1813 La. Acts at 172; Act of Jan. 14, 1820,

ch. 23, 1820 Ind. Acts at 39; Act of Oct. 19, 1821, ch. XIII, 1821 Tenn.

Pub. Acts. 15 (“[E]ach and every person so degrading himself, by carrying

a dirk, sword cane, French knife, Spanish stiletto, belt or pocket pistols .

. . shall pay a fine.”); Act of Feb. 2 1838, 1838 Va. Acts. ch. 101, at 76

(making it unlawful for a person to “habitually or generally keep or carry

about his person any pistol, dirk, bowie knife, or any other weapon of the

like kind . . . hidden or concealed from common observation”); Act of

Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67–68; Act. of Mar. 18, 1859, 1859

Ohio Laws 56 (providing that “whoever shall carry a weapon or weapons,

concealed on or about his person, such as a pistol, bowie knife, dirk, or

any other dangerous weapon, shall be deemed guilty.”).

4

“See Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67–68; Act of Apr.

1, 1881, ch. 96, § 1, 1881 Ark. Acts at 191; Act of Feb. 1, 1881, 1881

Colo. Sess. Laws at 74; Act of Feb. 12, 1885, ch. 3620, 1885 Fla. Laws at

61; Act of Apr. 16, 1881, 1881 Ill. Laws at 73–74; Act of Jan. 14, 1820,

ch. 23, 1820 Ind. Acts at 39; 29 Ky. Gen.Stat. art. 29, § 1 (as amended

through 1880); Act of Mar. 25, 1813, 1813 La. Acts at 172; 1866 Md.

Laws, ch. 375, § 1; Neb. Gen.Stat., ch. 58, ch. 5, § 25 (1873); Act of Mar.

5, 1879, ch. 127, 1879 N.C. Sess. Laws at 231; N.D. Pen.Code § 457
82 PERUTA V. COUNTY OF SAN DIEGO

Kachalsky, 701 F.3d at 95; see also Saul Cornell & Nathan

DeDino, A Well Regulated Right: The Early American

Origins of Gun Control, 73 Ford. L. Rev. 487, 502–16

(2004). Georgia banned the sale of concealable weapons

altogether, and Tennessee promptly followed suit by banning

the sale of bowie knives. Act of Dec. 25, 1837, 1837 Ga.

Laws 90; Act of Jan. 27, 1838, ch. 137, 1837–38 Tenn. Pub.

Acts 200–01. Notably, some of these bans contained only

narrow exceptions, or no exceptions at all. For example,

Ohio’s concealed-carry ban allowed a narrow exception for

those carrying a weapon in connection with their lawful

employment where a “prudent man” would carry weapons in

defense of himself, his family, or his property. 1859 Ohio

Laws at 56–57. By contrast, Virginia’s ban had no

exceptions at all, even if the defendant was acting in selfdefense when using the concealed weapon. 1838 Va. Acts ch.

101 at 76.

4

Pre-Civil War Case Law. The HellerCourt relied heavily

on several early-nineteenth-century court cases interpreting

the Second Amendment and state analogues. 554 U.S. at

610–14. For example, when the Court pointed to prohibitions

on carrying concealed weapons as a prime example of how

“the right secured by the Second Amendment is not

unlimited,” it specifically cited the 1846 Georgia case Nunn

(1895); Act of Mar. 18, 1859, 1859 Ohio Laws at 56; Act of Feb. 18,

1885, 1885 Or. Laws at 33; Act of Dec. 24, 1880, no. 362, 1881 S.C. Acts

at 447; S.D. Terr. Pen.Code § 457 (1883); Act of Apr. 12, 1871, ch. 34,

1871 Tex. Gen. Laws at 25–27; Act of Oct. 20, 1870, ch. 349, 1870 Va.

Acts at 510; Wash.Code § 929 (1881); W. Va.Code, ch. 148, § 7 (1891).” 

Kachalsky, 701 F.3d at 95 n.21.
PERUTA V. COUNTY OF SAN DIEGO 83

v. State and the 1850 Louisiana case State v. Chandler. Id. at

626. Those cases, and others relied on in Heller, provide

some of the strongest evidence that the Second Amendment

does not protect the carrying of concealed firearms in public.

In State v. Mitchell, 3 Blackf. 229 (Ind. 1833), the Indiana

Supreme Court succinctly declared “that the statute of 1831,

prohibiting all persons, except travelers, from wearing or

carrying concealed weapons, is not unconstitutional.” Id.

In the 1840 case of State v. Reid, the defendant—who had

been convicted under Alabama’s Act of February 1, 1839,

which made it a crime for any person to “carry concealed

about his person, any species of fire arms” or “any other

deadlyweapon”—challenged his conviction underAlabama’s

arms-bearing constitutional guarantee. 1 Ala. 612, 614–15,

616 (1840) (cited in Heller, 554 U.S. at 629). The Alabama

Supreme Court began its analysis of the defendant’s

challenge by considering the history of the right to bear arms

in England, including the English Bill of Rights, which the

court considered to be the progenitor of the right to bear arms

in Alabama. Id. at 615. After examining this history, the

court held that Alabama’s concealed firearm ban did not

“trench upon the constitutional rights of the citizen.” Id. at

616. The court reasoned that Alabama’s Second Amendment

analogue “neither expressly nor by implication, denied to the

Legislature, the right to enact laws in regard to the manner in

which arms shall be borne.” Id. Just as the English Bill of

Rights allowed Parliament “to determine what arms shall be

borne and how,” the Alabama constitution permitted the

legislature to determine that carrying concealed weapons was

not a proper mode of exercising the right to bear arms. Id.

The majority cites Reid as support for the theory that a ban on

concealed weapons carry would not be permitted if
84 PERUTA V. COUNTY OF SAN DIEGO

restrictions on public carry went too far. But Reid plainly

does not stand for that proposition. It rejected the “evil

practice of carrying weapons secretly,” id. at 616, and

supported the power of the legislature to proscribe the

“manner in which arms shall be borne,” id. Reid cannot be

construed as supporting a Second Amendment right to carry

concealed weapons in public.

In the same year as Reid, the Tennessee Supreme Court

considered a similar challenge to the constitutionality of a law

criminalizing the carrying of concealed weapons. Aymette v.

State, 21 Tenn. 154 (1840) (cited in Heller, 554 U.S. at 613). 

As in Reid, the court first considered the history of the right

to bear arms in England, including the English Bill of Rights

under William and Mary. Id. at 156, 157. Based on this

history, the court concluded that the Tennessee legislature

was well within its powers to criminalize the carrying of

concealed weapons:

To hold that the Legislature could pass no law

upon this subject by which to preserve the

public peace, and protect our citizens from the

terror which a wanton and unusual exhibition

of arms might produce, or their lives from

being endangered by desperadoes with

concealed arms, would be to pervert a great

political right to the worst of purposes, and to

make it a social evil of infinitely greater

extent to society than would result from

abandoning the right itself.
PERUTA V. COUNTY OF SAN DIEGO 85

Id. at 159.5 The court’s opinion also included the following

passage, which is quite relevant in assessing its view of

legislative power:

Supose [sic] it were to suit the whim of a set

of ruffians to enter the theatre in the midst of

the performance, with drawn swords, guns,

and fixed bayonets, or to enter the church in

the same manner, during service, to the terror

of the audience, and this were to become

habitual; can it be that it would be beyond the

power of the Legislature to pass laws to

remedy such an evil? Surely not. . . . The

convention, in securing the public political

right in question, did not intend to take away

from the Legislature all power of regulating

the social relations of the citizens upon this

subject.

Id. at 159.

The majority concedes that Aymette does not support a

Second Amendment right to bear concealed weapons, but

argues that it is relevant to other Second Amendment rights. 

However, if the “conduct at issue” here–the right to bear

concealed weapons in public–is not protected by the Second

Amendment, the existence of other rights is not relevant to

our inquiry.

5 As the majority observes, the Supreme Court rejected Aymette’s

conclusion that the Second Amendment enshrined only a militia-centered

right. Heller, 554 U.S. at 613. However, the Court did not question

Aymette’s reasoning with respect to the validity of the state’s prohibition

on the carrying of concealed weapons. Id.
86 PERUTA V. COUNTY OF SAN DIEGO

In State v. Buzzard, 4 Ark. 18 (1842), the Arkansas

Supreme Court held that the Arkansas law banning the

wearing of concealed weapons was not contrary to either the

Arkansas or United States Constitution. Id. at 28. As the

Chief Justice wrote:

The act in question does not, in my judgment,

detract anything from the power of the people

to defend their free state and the established

institutions of the country. It inhibits only the

wearing of certain arms concealed. This is

simply a regulation as to the manner of

bearing such arms as are specified. The

practice of so bearing them the legislative

department of the government has determined

to be wrong, or at least inconsistent with

sound policy. So far, that department had a

discretion in regard to the subject, over which

the judiciary, as I conceive, has no control,

and therefore, the duty of the courts must be

the same, whether the policy of the law be

good or bad. In either event it is binding, and

the obligation of the courts to enforce its

provisions, when legally called upon to do so,

is imperative.

Id. at 27.

In the 1846 case of Nunn v. State, the defendant—who

had been convicted for carrying a pistol in violation of

Georgia’s Act of December 25, 1837—challenged his

conviction under the Second Amendment and Georgia’s

analogous constitutional provision. 1 Ga. at 245, 247 (cited

in Heller, 554 U.S. at 612, 626). After considering State v.
PERUTA V. COUNTY OF SAN DIEGO 87

Reid and the Kentucky case Bliss v. Commonwealth, the

Georgia Supreme Court concluded that a law prohibiting the

carrying of concealed weapons does not violate the right to

keep and bear arms. Nunn, 1 Ga. at 247, 251. Relying on

Reid, the court explained

that so far as the act of 1837 seeks to suppress

the practice of carrying certain weapons

secretly, . . . it is valid, inasmuch as it does

not deprive the citizen of his natural right of

self-defence, or of his constitutional right to

keep and bear arms. But that so much of it, as

contains a prohibition against bearing arms

openly, is in conflict with the Constitution,

and void . . . .

Id. at 251. Because the criminal charges had not specified the

manner in which the defendant carried his pistol, the court

reversed his conviction. Id.

Nunn plainly does not support the notion that bearing

concealed weapons falls within the protection of the Second

Amendment. It stands for precisely the opposite proposition. 

Nonetheless, the majority embraces Nunn as supporting other

Second Amendment rights. It argues that, if those other

rights are restricted, then the legislature could not prohibit

concealed carry. However, Nunn does not say that. Its

holding is that Georgia’s analogous constitutional protection

of the right to bear arms did not include the right to carry

concealed weapons.6

 

6 The majority also claims that a later Georgia case, Stockdale v. State,

32 Ga. 225 (1861), explained that “to ban both the open and concealed

carriage of pistols” ‘would be to prohibit the bearing of those arms’
88 PERUTA V. COUNTY OF SAN DIEGO

Finally, in State v. Chandler, the Louisiana Supreme

Court joined its counterparts in Alabama, Tennessee, and

Georgia to hold that a state law criminalizing the carrying of

concealed weapons did not conflict with the Second

Amendment. 5 La. Ann. 489, 490 (1850) (cited in Heller,

554 U.S. at 613, 626). According to the court, the statute

“became absolutely necessary to counteract a vicious state of

society, growing out of the habit of carrying concealed

weapons, and to prevent bloodshed and assassinations

committed upon unsuspecting persons.” Id. at 489–90. It

further explained that the statute

interfered with no man’s right to carry arms

. . . in full open view, which places men upon

an equality. This is the right guaranteed by

the Constitution of the United States, and

which is calculated to incite men to a manly

and noble defence of themselves, if necessary,

altogether.” This stretches Stockdale far beyond what it actually said. In

that case, the defendant had been charged with violating a statute that

forbade the carrying of concealed weapons. Id. at 226. The defendant

requested the judge to instruct the jury that he was not guilty so long as he

wore his pistol in such a way that other people could see that it was a

pistol. Id. The judge refused, and instead instructed the jury that the

defendant was guilty so long as any portion of his pistol was hidden from

view. Id. at 226–27. The Georgia Supreme Court reversed the

defendant’s conviction, holding that the trial judge’s instructions were

erroneous. Id. at 227–28. The court reasoned that it is impossible to carry

a pistol without concealing at least some portion of it, so requiring that

every inch of the pistol be exposed to view would make it practically

impossible to carry it, thereby violating Nunn’s admonition that any

regulation that practically prohibits a person from bearing arms openly is

unconstitutional. Id. at 227. Stockdale was a simple application ofNunn’s

clear holding, and the majority is wrong to attribute a different meaning

to it.
PERUTA V. COUNTY OF SAN DIEGO 89

and of their country, without any tendency to

secret advantages and unmanlyassassinations.

Id. at 490 (internal quotation marks omitted). Eight years

later, the Louisiana Supreme Court reaffirmed its holding,

explaining that the state’s concealed-carryban did not violate

the Second Amendment because it “prohibit[ed] only a

particular mode of bearing arms which is found dangerous to

the peace of society.” State v. Jumel, 13 La. Ann. 399,

399–400 (1858) (emphasis in original).

To be sure, there was at least one state high court whose

voice was out of tune with this nineteenth-century chorus. In

the 1822 case of Bliss v. Commonwealth, the Kentucky high

court reversed the defendant’s conviction for carrying a

concealed weapon (a sword in a cane). 12 Ky. at 93 (cited in

Heller, 554 U.S. at 585 n.9). The court held that under the

Kentucky constitution, any restraint or regulation on the right

to bear arms, including regulations on the manner of carry,

were void. Id. at 92, 93. Therefore, the court saw no

difference between acts forbidding the carrying of concealed

weapons and acts forbidding the carrying of weapons openly. 

Id.

But the reign of Bliss was short-lived in Kentucky. The

ruling was met with disbelief by the Kentucky legislature. 

Indeed, “[a] committee of the Kentucky House of

Representatives concluded that the state's Supreme Court had

misconstrued the meaning of the state's constitutional

provision on arms bearing.” Saul Cornell, The Early

American Origins of the Modern Gun Control Debate: The

Right to Bear Arms, Firearms Regulation, and the Lessons of

History, 17 Stan. L. & Pol'y Rev. 571, 586 (2006) (citing

Journal of the Kentucky House of Representatives 75.
90 PERUTA V. COUNTY OF SAN DIEGO

(Frankfort, Ky. 1837)). It issued a stinging criticism of Bliss. 

Id. And Kentucky eventually amended its constitution

specifically to overrule Bliss. See id. at 587; Ky. Const. of

1850 art. XIII, § 25 (“[T]he rights of the citizens to bear arms

in defence of themselves and the State shall not be

questioned; but the General Assembly may pass laws to

prevent persons from carrying concealed arms.”). As

Professor Cornell concluded, the holding of Bliss was

“bizarre and out of touch with mainstream legal and

constitutional thinking in the early Republic.” Cornell,

17 Stan. L. & Pol'y Rev. at 586.

Bliss was clearlya judicial outlier. The courts in Buzzard,

Reid, Aymette, and Nunn all considered Bliss’s conclusions

and expressly rejected them. Nunn, 1 Ga. at 247–48, 251;

Aymette, 21 Tenn. at 160; Reid, 1 Ala. at 617; Buzzard, 4 Ark.

25–26. Reid speculated that Bliss’s solitary position was the

result of the unique language of Kentucky’s constitution. 

1 Ala. at 619. Aymette more directly questioned the

correctness of Bliss’s reasoning, explaining that “there is a

manifest distinction” between carrying arms secretly and

carrying arms openly. 21 Tenn. at 160. Buzzard pointedly

disagreed with Bliss, observing:

However captivating such arguments may

appear upon a merely casual or superficial

view of the subject, they are believed to be

specious, and to rest upon premises at

variance with all the fundamental principles

upon which the government is based; and that,

upon a more mature and careful investigation,

as to the object for which the right was

retained their fallacy becomes evident. The

dangers to be apprehended from the existence
PERUTA V. COUNTY OF SAN DIEGO 91

and exercise of such right, not only to social

order, domestic tranquillity and the upright

and independent administration of the

government, but also to the established

institutions of the country, appears so obvious

as to induce the belief that they are present to

every intelligent mind, and to render their

statement here unnecessary.

4 Ark. 25–26.

In short, Bliss does not in any way alter the great weight

of early-nineteenth century cases holding that carrying

concealed weapons is conduct that falls outside the bounds of

Second Amendment protection.

5

Post-Civil War Legislation and Commentary. Even

though laws enacted after the Civil War were far removed

from the Founding Era, the Heller Court found them

instructive for discerning the Second Amendment’s nature. 

554 U.S. at 614. Likewise, the Court looked to post-Civil

War commentaries for illumination. Id. at 616–19. These

sources further cemented the understanding of the earlynineteenth-century courts that concealed carry is not

protected by the Second Amendment.

By the latter half of the nineteenth century, most states

had enacted bans or limitations on the carrying of concealed

weapons. See Kachalsky, 701 F.3d at 95 & n.21 (collecting

statutes). During that time, three states and one territory even

passed total bans on carrying of pistols, whether concealed or

open. Id. at 90 (citing Ch. 96, §§ 1–2, 1881 Ark. Acts at
92 PERUTA V. COUNTY OF SAN DIEGO

191–92; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Terr.

Comp. Laws, at 352; Act of Apr. 12, 1871, ch. 34, § 1, 1871

Tex. Gen. Laws at 25; Ch. 13, § 1, 1870 Tenn. Acts at 28).

Despite these widespread restrictions on the carrying of

concealed weapons, legal commentators saw no Second

Amendment violations. John Pomeroywrote that the Second

Amendment’s “inhibition is certainly not violated by laws

forbidding persons to carry dangerous or concealed

weapons.” John Norton Pomeroy, An Introduction to the

Constitutional Law of the United States 152–53 (1868) (cited

in Heller, 554 U.S. at 618). Like the Court in Heller, he

compared the Second Amendment to the First: “The clause is

analogous to the one securing freedom of speech and of the

press. Freedom, not license, is secured; the fair use, not the

libellous abuse, is protected.” Id.; see Heller, 554 U.S. at

618.

In his edition of Kent’s Commentaries, Justice Holmes

noted a “great difference of opinion” among the state courts

on whether prohibitions on carrying concealed weapons were

constitutional. 2 James Kent, Commentaries on American

Law *340 n.2 (Oliver Wendell Holmes, Jr. ed., 12th ed. 1873)

(cited in Heller, 554 U.S. at 618, 626). After summarizing

the state courts’ cases (including those discussed above), he

sided with the courts that found such prohibitions

constitutional: “As the practice of carrying concealed

weapons has been often so atrociously abused, it would be

very desirable, on principles of public policy, that the

respective legislatures should have the competent power to

secure the public peace, and guard against personal violence

by such a precautionary provision.” Id.
PERUTA V. COUNTY OF SAN DIEGO 93

George Chase, like Justice Holmes, concluded in The

American Students’ Blackstone (1884) that concealed

weapons bans were necessaryto ensure public safety, and that

they were widely deemed lawful: “[I]t is generally held that

statutes prohibiting the carrying of concealedweapons are not

in conflict with these constitutional provisions, since they

merely forbid the carrying of arms in a particular manner,

which is likely to lead to breaches of the peace and provoke

to the commission of crime, rather than contribute to public

or personal defence.” Chase, supra, at 85 n.11 (cited in

Heller, 554 U.S. at 626) (emphasis in original).

John Ordronaux wrote that although “[t]he right to bear

arms has always been the distinctive privilege of freemen,”

the Second Amendment does not limit a state’s power to

“enact[] laws regulating the manner in which arms may be

carried. Thus, the carrying of concealed weapons may be

absolutely prohibited without the infringement of any

constitutional right.” John Ordronaux, Constitutional

Legislation in the United States 241 (1891) (cited in Heller,

554 U.S. at 619) (some emphasis added).

In addition to these commentators cited in Heller, the

majority recognizes other commentators who concluded that

the Second Amendment was not concerned with concealed

carry. For example, HenryCampbell Black wrote simply that

“[t]he right to bear arms is not infringed by a state law

prohibiting the carrying of concealed deadly weapons.” 

Henry Campbell Black, Handbook of American

Constitutional Law 463 (1895). And the editor of an 1897

edition of Blackstone wrote that “the right of carrying arms

as secured by the U.S. Constitution, and generally by State

constitutions, does not include the habitual carrying of

concealed deadlyweapons byprivate individuals.” 1 William
94 PERUTA V. COUNTY OF SAN DIEGO

Blackstone, Commentaries on the Laws of England 144 n.91

(William Draper Lewis ed., 1897).

6

Given this extensive history, it is not surprising that in

1897 the Supreme Court endorsed the view that carrying

concealed weapons is not protected conduct under the Second

Amendment. Robertson, 165 U.S. at 281–82. In rejecting a

challenge under the Thirteenth Amendment, the Court noted

that the freedoms enumerated in the Bill of Rights are subject

to “certain well-recognized exceptions.” Id. at 281. As an

example of such a well-recognized exception, the Court

explained that “the right of the people to keep and bear arms

. . . is not infringed by laws prohibiting the carrying of

concealed weapons.” Id. at 281–82. Although this passage

is old, no case, including Heller, has ever called it into

question.

Most of our sister circuits that have considered the

question have reached similar conclusions. In Drake v. Filko,

724 F.3d 426 (3d Cir. 2013), the Third Circuit considered the

New Jersey Handgun Permit Law, which required persons

who wished to carry a handgun in public to apply for permit

and show “justifiable need.” Against a Second Amendment

challenge, the Third Circuit held that “the requirement that

applicants demonstrate a ‘justifiable need’ to publicly carry

a handgun for self-defense qualifies as a ‘presumptively

lawful,’ ‘longstanding’ regulation and therefore does not

burden conduct within the scope of the Second Amendment’s

guarantee. Id. at 429–30.

In Peterson, the Tenth Circuit considered a Second

Amendment challenge to Colorado’s concealed handgun
PERUTA V. COUNTY OF SAN DIEGO 95

licensing regime, which restricted the issuance of licenses to

Colorado residents. The Tenth Circuit concluded that

“[t]here can be little doubt that bans on the concealed

carrying of firearms are longstanding.” 707 F.3d at 1210. 

After conducting an historical analysis, the Court concluded

that “the Second Amendment does not confer a right to carry

concealed weapons.” Id. at 1211.

Although the Second Circuit did not reach the question of

the scope of the Second Amendment, it concluded that “state

regulation of the use of firearms in public was ‘enshrined

with[in] the scope’ of the Second Amendment when it was

adopted” and that “extensive state regulation of handguns has

never been considered incompatible with the Second

Amendment.” Kachalsky, 701 F.3d at 96, 100.

C

In sum, employing the analysis prescribed by the

Supreme Court, the answer to the historical inquiry is clear:

carrying a concealed weapon in public was not understood to

be within the scope of the right protected by the Second

Amendment at the time of ratification. This conclusion is in

accord with Heller’s recognition that there were

“longstanding prohibitions” on firearms that were

“presumptively lawful,” 544 U.S. at 626–27 & n.26, and the

Supreme Court’s observation in Robertson that “the right of

the people to keep and bear arms . . . is not infringed by laws

prohibiting the carrying of concealed weapons,” 165 U.S. at

281–82. See Peterson, 707 F.3d at 1211. Because the right

asserted is not protected by the Second Amendment, our

inquiry should be at an end: San Diego County’s good cause

requirement for a person to carry a concealed weapon in San

Diego County is constitutional. Chester, 628 F.3d at 680.
96 PERUTA V. COUNTY OF SAN DIEGO

III

Because the act of carrying concealed weapons in public

is not protected by the Second Amendment, it is unnecessary

to reach the second part of the Second Amendment inquiry. 

However, even if we were to assume that San Diego County’s

good cause requirement implicates the Second Amendment,

I would conclude that the San Diego County policy easily

passes constitutional muster.

The second Chovan inquiry is whether the challenged

government action survives means-end scrutiny under the

appropriate level of review. Chovan, 735 F.3d at 1136. In

Second Amendment analysis, the level of scrutiny depends on

“‘(1) how close the law comes to the core of the Second

Amendment right,’ and ‘(2) the severity of the law’s burden

on the right.’” Id. at 1138 (quoting Ezell v. City of Chicago,

651 F.3d 684, 703 (7th Cir. 2011)).

The core of the Second Amendment right is “the right of

law-abiding, responsible citizens to use arms in defense of

hearth and home.” Heller, 554 U.S. at 635. Carrying

concealed weapons in public does not implicate the core

right. Assuming, for argument’s sake, that the burden placed

in this case on whatever Second Amendment rights extend

outside the home is substantial, then application of

intermediate scrutiny is appropriate. Chovan, 735 F.3d at

1138.

Surviving intermediate scrutiny requires “(1) the

government’s stated objective to be significant, substantial,

or important; and (2) a reasonable fit between the challenged
PERUTA V. COUNTY OF SAN DIEGO 97

regulation and the asserted objective.” Id. at 1139 (citing

Chester, 628 F.3d at 683).7

The County claims that its application of the good cause

requirement protects the public peace and protects “the safety

of the public from unknown persons carrying concealed,

loaded firearms.” As the Supreme Court has repeatedlymade

clear, public safety and preventing crime are important,

indeed compelling, government interests. See, e.g., Schenk v.

Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997)

(public safety is a significant government interest); United

States v. Salerno, 481 U.S. 739, 750 (1987) (preventing crime

is a compelling government interest).

The County argues that the good cause requirement helps

protect public safety because it reduces the number of

concealed firearms circulating in public. According to the

County, reducing the number of guns carried in public

ensures public safety by, among other things:

• Limiting the lethality of violent crimes. According to

an expert declaration filed in support of the County’s

motion for summary judgment, even though the

general availability of guns may or may not influence

the absolute number of violent crimes, when guns are

7 We are not alone in this application. Other circuits that have

considered a restriction similar to the good cause requirement have applied

intermediate scrutiny. See Woollard v. Gallagher, 712 F.3d 865, 869, 876

(4th Cir. 2013) (applying intermediate scrutiny to a Maryland statute

requiring applicants to demonstrate a “good and substantial reason to

wear, carry, or transport a handgun” in order to obtain a license to do so);

Kachalsky, 701 F.3d at 96 (applying intermediate scrutiny to a New York

statute requiring applicants to demonstrate “proper cause” in order to

obtain a license to carry concealed handguns).
98 PERUTA V. COUNTY OF SAN DIEGO

used in such crimes it is much more likely that the

crime will result in the death of the victim.

• Limiting the ability of criminals to legally take

advantage of stealth and surprise.

• Protecting police officers and ensuring their practical

monopoly on armed force in public. According to the

County, more than ninety percent of police officers

who are killed in the line of duty are killed with guns.

• Limiting the danger to other members of the public. 

The decision to carry a concealed firearm in public

exposes other people to increased risk of injury or

death without their knowledge or control.

• Limiting the likelihood that minor altercations in

public will escalate into fatal shootings. 

The County presented data showing that the more guns

are carried in public, the more likely it is that violent crimes

will result in death and detailing the specific risks posed by

concealed weapons.

Obviously, the Plaintiffs disagree with the efficacy of the

policy to achieve these goals, and have marshaled evidence

challenging conventional wisdom about the correlation

between violence and the prevalence of handguns. But ours

is not the forum in which to resolve that debate. Rather, we

owe “substantial deference to the predictive judgments” of

legislative bodies. Turner Broad. Sys. Inc. v. FCC, 520 U.S.

180, 195 (1997). “In the context of firearm regulation, the

legislature is ‘far better equipped than the judiciary’ to make

sensitive public policy judgments (within constitutional
PERUTA V. COUNTY OF SAN DIEGO 99

limits) concerning the dangers in carrying firearms and the

manner to combat those risks.” Kachalsky, 701 F.3d at 97

(quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 665

(1994)). As the Second Circuit aptly explained, “[i]t is the

legislature’s job, not ours, to weigh conflicting evidence and

make policy judgments.” Id. at 99; accord Woollard,

712 F.3d at 881. Further, the test on the first step of

intermediate scrutiny only requires that “the government’s

stated objective to be significant, substantial, or important.” 

Chovan, 735 F.3d at 1139.

The second inquiry in an intermediate scrutiny analysis is

whether there is “a reasonable fit between the challenged

regulation and the asserted objective.” Id. First, as the

majority properly notes, California does not impose a

complete ban on the carrying of concealed weapons in public. 

Cal. Penal Code § 25400. A gun owner’s residence, place of

business, and private property are exempt from § 25400. Id.

at § 25605. Carrying a concealable firearm within a vehicle

is not a crime if the firearm is within a vehicle and is either

locked in the vehicle's trunk or in a locked container. Id. at

§ 25610. Peace officers, retired officers, military personnel,

and retired federal officers are permitted to carry concealed

weapons. Id. at §§ 25450, 25455, 25620, 25650. Hunters and

anglers may carry concealable firearms while hunting or

fishing. Id. at § 25640. Section 25400 does not apply to

transportation of firearms to or from gun shows or similar

events, id. at § 25535, nor does it apply to people practicing

shooting targets at established target ranges, whether public

or private, id. at 25635.8 And, of course, California is a

8 Carrying a concealable firearm is permitted in a number of other

circumstances. See generally id. at §§ 25450–25650.
100 PERUTA V. COUNTY OF SAN DIEGO

“may-issue” state, in which concealed public carry is allowed

with a proper permit. Id. § 26150.

Because of these exceptions, the California Court of

Appeal concluded that California’s concealed carry statutes

were “narrowly tailored to protect the public,” and did “not

substantially burden defendant’s exercise of his Second

Amendment right.” People v. Ellison, 196 Cal.App.4th 1342,

1351, 128 Cal.Rptr.3d 245, 252 (Cal.App. 2011).

Second, the San Diego County “good cause” permit

requirement itself does not preclude all carrying of concealed

weapons in public. It limits the risk to public safety by

reducing the number of guns in public circulation, but allows

those who will most likely need to defend themselves in

public to carry a handgun. In this way, the licensing scheme

is “oriented to the Second Amendment’s protections.” 

Kachalsky, 701 F.3d at 98. Of course, the good cause

requirement is not perfect. Not everyone who may ultimately

need the protection of a handgun may obtain a permit, and

there is a risk that some concealed-carry license holders may

misuse their firearms. But the good cause requirement does

not have to be perfect; indeed, it is unrealistic to expect any

regulatory measure to perfectly solve the problem to which it

is addressed, especially a problem as complex as gun

violence. Rather, under intermediate scrutiny, the challenged

regulation must strike a reasonable balance between the

burdened right and the public need. By granting concealedcarry licenses only to those who are known to need them for

self-defense, the good cause requirement strikes a reasonable

balance between individuals’ interest in self-defense and the

public’s interest in limiting the proliferation of handguns in

public spaces.
PERUTA V. COUNTY OF SAN DIEGO 101

When viewed objectively, the San Diego County “good

cause” policy easily survives intermediate scrutiny. The

government has identified significant, substantial, or

important objectives and provided a reasonable fit between

the challenged regulation and the asserted objective. 

Therefore, even if the Second Amendment protection were

extended to provide a right to carry concealed weapons in

public, the “good cause” San Diego County requirement

would still pass constitutional muster.

IV

Rather than employing the straightforward methodology

prescribed by Chovan, the majority wanders off in a different

labyrinthian path, both in its analysis of the Second

Amendment right at issue and its analysis of the government

regulation in question. In doing so, it conflicts with the

instruction of the Supreme Court, the holdings of our sister

circuits, and our own circuit precedent. It needlessly intrudes

and disrupts valid and constitutional legislative choices. I

must respectfully disagree with its approach.

A

The majority never answers the question as to whether

carrying concealed weapons in public is protected under the

Second Amendment. Rather, it engages in a broader circular

inquiry. It first exceeds the bounds of Heller by determining

that the Second Amendment protects at least some conduct

outside the home. It then reasons that because the Second

Amendment protects some conduct outside the home, states

may not completely prohibit carrying handguns outside the

home. The majority then examines the California regulatory

scheme and concludes that, because California bans open
102 PERUTA V. COUNTY OF SAN DIEGO

carry in most public areas, it must allow concealed carry

without the necessity of showing good cause. Therefore, it

reasons, San Diego County’s “good cause” requirement must

be unconstitutional.

1

The majority’s logical tapestry quickly unravels under

close examination. If carrying concealed firearms in public

falls outside the Second Amendment’s scope, then

nothing—not even California’s decision to restrict other,

protected forms of carry—can magically endow that conduct

with Second Amendment protection.

An analogy to the First Amendment context illustrates

this point. See Heller, 554 U.S. at 595 (analogizing the

Second Amendment to the First). There are, of course,

certain types of speech that do not fall within the protection

of the First Amendment, such as child pornography, obscene

material without serious literary, artistic, political, or

scientific value, “fighting words,” and speech that materially

assists a foreign terrorist organization.9If a state decided to

ban all protected First Amendment speech, would that bring

child pornography, obscenity, “fighting words,” and material

assistance to a foreign terrorist organization under the

protection of the First Amendment? Of course not. 

However, that is precisely the flawed reasoning that the

majority employs.

9

See New York v. Ferber, 458 U.S. 747, 764 (1982) (child

pornography); Roth v. United States, 354 U.S. 476, 484 (1957)

(obscenity); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)

(fighting words); Holder v. Humanitarian Law Project, 130 S. Ct. 2705,

2722–23 (2010) (material assistance to terrorists).
PERUTA V. COUNTY OF SAN DIEGO 103

The same logic applies in the Second Amendment

context. If certain conduct falls outside the scope of the

Second Amendment, then restrictions on that conduct are

valid, regardless of the regulatory landscape governing

different activities. Chester, 628 F.3d at 680. The majority

simply makes up the right out of whole cloth, or perhaps

more aptly put, no cloth. Regulation of unrelated conduct

cannot create a new right where none existed before.

Unsurprisingly, the majority does not—and cannot—cite

any authority that supports its assertion. It claims that several

nineteenth-century sources cited in Heller support its

proposition. As I have discussed, those sources support no

such proposition. In Chandler, the Louisiana Supreme Court

explained that a concealed weapons ban “interfered with no

man’s right to carry arms” under the Second Amendment,

which it defined as the right to carry arms “in full open

view.” 5 La. Ann. 489, 490 (1850). In Nunn, the Georgia

Supreme Court held that “[a] law which merely inhibits the

wearing of certain weapons in a concealed manner is valid.” 

1 Ga. 243, 243 (1846) (emphasis in original); see also id. at

251. In Reid, the Alabama Supreme Court explained that a

concealed-carry ban did not “come in collision with the

constitution” because itsought to “promote personal security”

by “inhibit[ing] the wearing of certain weapons, in such a

manner as is calculated to exert an unhappy influence upon

the moral feelings of the wearer, by making him less

regardful of the personal security of others.” 1 Ala. 612, 617

(1840). And George Chase’s American Students’ Blackstone

notes a consensus that “statutes prohibiting the carrying of

concealed weapons are not in conflict with these

constitutional provisions, since they merely forbid the

carrying of arms in a particular manner, which is likely to

lead to breaches of the peace and provoke to the commission
104 PERUTA V. COUNTY OF SAN DIEGO

of crime, rather than contribute to public or personal

defence.” 1 The American Students’ Blackstone 84 n.11

(George Chase ed. 1884) (emphasis in original).

Although all the nineteenth-century cases cited by the

majority cautioned against restrictions on the open carrying

of weapons, none of them–except the discredited, outlier

Bliss–suggests that restrictions on carrying concealed

weapons implicate the Second Amendment. See Chandler,

1 La. Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616–17. 

And nothing in these cases or Chase’s Blackstone even hints

that a restriction on carrying concealed weapons would

become invalid if restrictions were placed on open carry. 

Rather, they suggest that restrictions on concealed carry are

always valid, while there are limits to restrictions on open

carry.

The majority concedes that it is in conflict with the

Second, Third, and Fourth Circuits in Drake, Woollard, and

Kachalsky. However, it insists that it is in accord with the

Seventh Circuit’s decision in Moore. But Moore did not

involve a challenge to the implementation of a “good cause”

requirement to carry a concealed weapon in public. Rather,

it was a direct challenge to an Illinois law banning almost all

forms of carrying a loaded firearm outside the home and did

not involve “narrower, better tailored restrictions” such as the

one at issue here. See Moore v. Madigan, 708 F.3d 901, 904

(7th Cir. 2013) (Hamilton, J., dissenting from denial of

rehearing en banc).

2

The majority essentially concedes that the Plaintiffs’

challenge to San Diego County’s “good cause” policy fails
PERUTA V. COUNTY OF SAN DIEGO 105

unless we consider California’s regulatory scheme in its

entirety. According to the majority, the Plaintiffs’ challenge

“is not an attack trained on a restriction against concealed

carry as such, or viewed in isolation.” Rather, the Plaintiffs

“target[] the constitutionality of the entire scheme” of carry

regulation in California. Indeed, if California did not restrict

open carry, Plaintiffs would have no cause for complaint. 

And, of course, if California law permitted unrestricted

concealed public carry, there would be no case at all. It is by

California statute that local Sheriffs are invested with the

discretion to grant concealed carry permits. Plaintiffs’ real

quarrel is with the statute. Their theory is that the statutory

discretion afforded Sheriffs should be uniformly excised. 

Thus, by arguing that the Second Amendment compels the

County to interpret “good cause” to include a general desire

to carry a concealed gun, the Plaintiffs in reality are

challenging the constitutionality of the § 26150 good cause

provision. Their proposed remedy of preventing California

Counties from exercising discretion eliminates the statutory

“good cause” requirement and transforms it into a “no cause”

limitation for the general public. Thus, Plaintiffs’ complaint

and theory necessarily specifically calls into question the

constitutionality of state concealed carry law. Further, by

arguing that California is required to provide some outlet for

public carry of handguns, it indirectly implicates the

constitutionality of the entire California firearm regulation

scheme.

Although the constitutionality of the entire scheme is at

issue, the Plaintiffs did not name the State of California as a

defendant, and the Plaintiffs have not complied with Fed. R.

Civ. P. 5.1. Under that rule, if the state or one of its agents is

not a party to a federal court proceeding, “[a] party that files

a pleading . . . drawing into question the constitutionality of
106 PERUTA V. COUNTY OF SAN DIEGO

a . . . state statute must promptly” serve the state’s attorney

general with notice of the pleading and the constitutional

question it raises. Fed. R. Civ. P. 5.1(a). In addition, the

district court must certify to the state’s attorney general that

the constitutionality of the state statute has been questioned,

and must permit the state to intervene to defend it. Fed. R.

Civ. P. 5.1(b), (c); 28 U.S.C. § 2403. The rule protects the

public interest by giving the state an opportunity to voice its

views on the constitutionality of its own statutes. Oklahoma

ex rel. Edmondson v. Pope, 516 F.3d 1214, 1216 (10th Cir.

2008).

Given the real essence of the Plaintiffs’ argument, they

were required to comply with Fed. R. Civ. P. 5.1. They did

not. If we are to consider the constitutionality of the entire

California regulatory scheme, California should have been

afforded an opportunity to defend it. And, to the extent that

the majority strikes down the entirety of California firearm

regulations, it should have stayed the mandate to permit a

legislative response, as the Seventh Circuit did in Moore. 

708 F.3d at 942.

B

I must also respectfully disagree with the majority’s

analysis of the government regulation at issue, which directly

conflicts with our circuit precedent in Chovan.

1

The majority acknowledges that we, like our sister

circuits, employ a sliding-scale approach, where the level of

scrutiny we apply to a challenged law depends on how severe

a burden the law imposes on the “core” of the Second
PERUTA V. COUNTY OF SAN DIEGO 107

Amendment guarantee. Chovan, 735 F.3d at 1138; see, e.g.,

Kachalsky, 701 F.3d at 93; Heller, 670 F.3d at 1257; Ezell,

651 F.3d at 708; Chester, 628 F.3d at 682; United States v.

Reese, 627 F.3d 792, 801 (10th Cir. 2010); United States v.

Marzzarella, 614 F.3d 85, 96–97 (3d Cir. 2010). But 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. In doing so, it

directly conflicts with Chovan.

Despite whatever pedigree the majority claims for this

alternative approach, we are bound to follow the law of our

Circuit. Further, the majority approach has no support in

Heller. The Heller Court held only that the D.C. handgun

ban was unconstitutional “[u]nder any of the standards of

scrutiny that we have applied to enumerated constitutional

rights” because “[f]ew laws in the history of our Nation have

come close” to the severity of its restriction. Heller, 554 U.S.

at 628, 629. The Court did not expressly reject means-ends

scrutiny, and it is extremely unlikely that the Court rejected

by implication such a well-established method for assessing

the constitutionality of laws. Indeed, by taking care to

specifically rule out rational-basis scrutiny, the Court

necessarily implied that other, heightened levels of meansends scrutiny are appropriate. See Heller, 554 U.S. at 628

n.27.

The majority suggests that the Heller Court rejected any

means-ends scrutiny when it rejected Justice Breyer’s

“interest-balancing inquiry.” See 554 U.S. at 634–35; id. at

689–90 (Breyer, J., dissenting). However, the Court did no

such thing. Justice Breyer’s dissent advocated against

applying established tiers of scrutiny, preferring instead to

decide case-by-case whether a challenged law burdened the
108 PERUTA V. COUNTY OF SAN DIEGO

Second Amendment at all. Id. at 689 (Breyer, J., dissenting). 

The Heller Court dismissed this case-by-base inquiry, noting

that “[w]e know of no other enumerated constitutional right

whose core protection has been subjected to a freestanding

‘interest-balancing’ approach.” Id. at 634 (emphasis added). 

By this, the Heller Court did not disavow the means-ends

scrutiny framework for evaluating burdens on enumerated

rights, which has long been a fixture of constitutional rights

jurisprudence. See generally Adam Winkler, Scrutinizing the

Second Amendment, 105 Mich. L. Rev. 683 (2007); see also

Kachalsky, 701 F.3d at 99 n.23 (rejecting the argument that

“handgun possession in public has the ring of an absolute

constitutional right”). Rather, the Court meant only that

severe burdens on “core protections” would fail any level of

scrutiny and cannot be excused through the sort of

freewheeling interest-balancing approach Justice Breyer

proposed. Heller, 554 U.S. at 628 (“Under any of the

standards of scrutiny that we have applied to enumerated

constitutional rights, banning from the home the most

preferred firearm in the nation to keep and use for protection

of one’s home and family would fail constitutional muster.”)

(internal quotation marks, footnote, and citation omitted).

The majority’s new alternative approach to establishing

the appropriate level of scrutiny is unsupported in Supreme

Court precedent and is in direct conflict with our Circuit’s

precedent and the approach taken by our sister circuits.

2

The majority also errs in its alternative intermediate

scrutiny analysis. The majority acknowledges the Chovan

second step inquiry as to whether the government policy is a

reasonable fit between the challenged regulation and the
PERUTA V. COUNTY OF SAN DIEGO 109

asserted objective. But, rather than applying that analysis, it

substitutes the demanding and inappropriate least restrictive

means test.

There is no support for the application of a least

restrictive means test in Chovan, and our sister circuits have

repeatedly and emphatically recognized that, in this context,

intermediate scrutiny does not require the least restrictive

means available. See Masciandaro, 638 F.3d at 474

(“[I]ntermediate scrutiny does not require that a regulation be

the least intrusive means of achieving the relevant

government objective, or that there be no burden whatsoever

on the individual right in question.”); Heller, 670 F.3d at

1258 (explaining that under intermediate scrutiny, there must

be a tight fit “‘that employs not necessarily the least

restrictive means but . . . a means narrowly tailored to achieve

the desired objective’” (quoting Bd. of Trustees of the State

Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989)). In other

words, the fit between the good cause requirement and public

safety objectives must be “reasonable, not perfect.” 

Marzzarella, 614 F.3d at 98.

The majority also rejects Turner Broadcasting’s

admonition to afford “substantial deference to the predictive

judgments” of legislative bodies, Turner Broad. Sys. Inc. v.

FCC, 520 U.S. 180, 195 (1997), and criticizes our sister

circuits’ reliance on Turner Broadcasting.

However, “[i]n the context of firearm regulation, the

legislature is ‘far better equipped than the judiciary’ to make

sensitive public policy judgments.” Kachalsky, 701 F.3d at

97; see also Drake, 724 F.3d at 436–37; Woollard, 712 F.3d

at 881. This advice is particularly apt when we consider the

widely-varying state and local gun laws that are tailored to
110 PERUTA V. COUNTY OF SAN DIEGO

particular community needs. What law enforcement deems

a critical restriction in urban areas may not be as important in

rural portions of the country. Those sensitive policy

assessments are best made by the respective legislative

branches and, when permitted by statute, by local law

enforcement officials.10

Turner Broadcasting itself provides a sound rejoinder to

the majority: “Even in the realm of First Amendment

questions where Congress must base its conclusions upon

substantial evidence, deference must be accorded to its

findings as to the harm to be avoided and to the remedial

measures adopted for that end, lest we infringe on traditional

legislative authority to make predictive judgments when

enacting nationwide regulatory policy.” Turner, 520 U.S. at

196 (emphasis added).

Finally, the majority derides the good cause requirement

as nothing more than an arbitrary, overbroad rationing

system. In fact, the record supports the opposite conclusion. 

The County does not randomly allocate concealed-carry

licenses to people regardless of need. Instead, it makes the

best prediction possible of who actually needs firearms for

10 Indeed, the California State Sheriffs Association, the California Police

Chiefs Association, and the California Peace Officers Association note in

their amicus brief that the diversity of communities and regions in

California warrants the exercise of discretion by chief law enforcement

executives to determine, in the context of the issues presented in their

jurisdiction, the circumstances under which a concealed gun permit should

issue.
PERUTA V. COUNTY OF SAN DIEGO 111

self-defense, and grants concealed-carry licenses

accordingly.

11

V

A careful examination of the narrow questions before us

can only lead to the conclusion that San Diego County’s

“good cause” policy falls squarely within the Supreme

Court’s definition of “presumptively lawful regulatory

measures.” Heller, 554 U.S. at 626, 627 n.26, 636. There is

no need to reach any other issue presented in the case. In

dealing a needless, sweeping judicial blow to the public

safety discretion invested in local law enforcement officers

and to California’s carefully constructed firearm regulatory

scheme, the majority opinion conflicts with Supreme Court

11

I would also reject the Plaintiffs’ alternative equal protection claims. 

Their first claim is merely an attempt to bootstrap an equal protection

argument to their Second Amendment claim, so it is more appropriately

analyzed under the Second Amendment. Cf. Albright v. Oliver, 510 U.S.

266, 273 (1994); Orin v. Barclay, 272 F.3d 1207, 1213 n.3 (9thCir. 2001)

(holding that an equal protection claim was “no more than a First

Amendment claimdressed in equal protection clothing” and was therefore

“subsumed by, and co-extensive with” the former). As for their “class of

one” equal protection claim, the Plaintiffs did not establish a genuine issue

of material fact with regard to whether they were situated similarly to the

renewal applicants belonging to the Honorary Deputy Sheriff’s

Association (“HDSA”). See Village of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam) (recognizing a “class of one” equal

protection claim“where the plaintiff alleges that she has been intentionally

treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.”). The HDSA renewal

applicants documented specific threats or otherwise qualified forrenewals,

so they were not similarly situated. I would also reject Plaintiffs’

remaining due process and privileges & immunities claims because

Plaintiffs failed to “specifically and distinctly argue [them] in [their]

opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 978 (9th Cir. 1994).
112 PERUTA V. COUNTY OF SAN DIEGO

authority, the decisions of our sister circuits, and our own

circuit precedent.

I respectfully dissent.