Cite as: 590 U. S. ____ (2020) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

THOMAS ROGERS, ET AL. v. GURBIR GREWAL, 

ATTORNEY GENERAL OF NEW JERSEY, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

No. 18–824. Decided June 15, 2020 

The petition for a writ of certiorari is denied. 

JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins

as to all but Part II, dissenting from the denial of certiorari. 

The text of the Second Amendment protects “the right of 

the people to keep and bear Arms.” We have stated that 

this “fundamental righ[t]” is “necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778 

(2010). Yet, in several jurisdictions throughout the country, 

law-abiding citizens have been barred from exercising the

fundamental right to bear arms because they cannot show

that they have a “justifiable need” or “good reason” for doing 

so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review. This 

Court would almost certainly review the constitutionality

of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly

unlikely that the Court would allow a State to enforce a law 

requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment

rights, the Court simply looks the other way.

Petitioner Rogers is a law-abiding citizen who runs a 

business that requires him to service automated teller machines in high-crime areas. He applied for a permit to carry

his handgun for self-defense. But, to obtain a carry permit

in New Jersey, an applicant must, among other things, 
 

2 ROGERS v. GREWAL 

THOMAS, J., dissenting 

demonstrate “that he has a justifiable need to carry a handgun.” N. J. Stat. Ann. §2C:58–4(c) (West 2019 Cum. Supp.). 

For a “private citizen” to satisfy this “justifiable need” requirement, he must “specify in detail the urgent necessity 

for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by

issuance of a permit to carry a handgun.” Ibid.; see also 

N. J. Admin. Code §13:54–2.4 (2020). “Generalized fears for 

personal safety are inadequate.” In re Preis, 118 N. J. 564, 

571, 573 A. 2d 148, 152 (1990). Petitioner could not satisfy 

this standard and, as a result, his permit application was 

denied. With no ability to obtain a permit, petitioner is

forced to operate his business in high-risk neighborhoods

with no firearm for self-defense. 

Petitioner asks this Court to grant certiorari to determine

whether New Jersey’s near-total prohibition on carrying a 

firearm in public violates his Second Amendment right to

bear arms, made applicable to the States through the Fourteenth Amendment. See McDonald, 561 U. S., at 750; see 

id., at 806 (THOMAS, J., concurring in part and concurring 

in judgment). This case gives us the opportunity to provide

guidance on the proper approach for evaluating Second 

Amendment claims; acknowledge that the Second Amendment protects the right to carry in public; and resolve a 

square Circuit split on the constitutionality of justifiableneed restrictions on that right. I would grant the petition 

for a writ of certiorari. 

I 

It has been more than a decade since this Court’s decisions in McDonald v. Chicago, supra, and District of Columbia v. Heller, 554 U. S. 570 (2008). In the years since those 

decisions, lower courts have struggled to determine the 

proper approach for analyzing Second Amendment challenges. 
Cite as: 590 U. S. ____ (2020) 3 

THOMAS, J., dissenting 

Although our decision in Heller did not provide a precise

standard for evaluating all Second Amendment claims, it 

did provide a general framework to guide lower courts. In 

Heller, we recognized that “the Second Amendment . . . codified a pre-existing right.” Id., at 592. This right was “enshrined with the scope [it was] understood to have when the 

people adopted” it. Id., at 634. To determine that scope, we 

analyzed the original meaning of the Second Amendment’s

text as well as the historical understanding of the right. We 

noted that “limitation[s]” on the right may be supported by

“historical tradition,” but we declined to “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Id., at 626–627. Instead, we indicated 

that courts could conduct historical analyses for restrictions

in the future as challenges arose. Id., at 635. 

Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to

keep and bear arms. See, e.g., Mance v. Sessions, 896 F. 3d 

390, 394 (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh’g en banc); Tyler v. Hillsdale Cty. Sheriff ’s Dept., 

837 F. 3d 678, 702–703 (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago, 923 F. Supp. 

2d 1110, 1123 (ND Ill. 2012); Heller v. District of Columbia, 

670 F. 3d 1244, 1285 (CADC 2011) (Heller II) (Kavanaugh,

J., dissenting).

But, as I have noted before, many courts have resisted 

our decisions in Heller and McDonald. See Silvester v. 

Becerra, 583 U. S. ___, ___ (2018) (opinion dissenting from

denial of certiorari) (slip op., at 11). Instead of following the 

guidance provided in Heller, these courts minimized that 

decision’s framework. See, e.g., Gould v. Morgan, 907 F. 3d 

659, 667 (CA1 2018) (concluding that our decisions “did not 

provide much clarity as to how Second Amendment claims

should be analyzed in future cases”). They then “filled” the 
 

4 ROGERS v. GREWAL 

THOMAS, J., dissenting 

self-created “analytical vacuum” with a “two-step inquiry”

that incorporates tiers of scrutiny on a sliding scale. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, 700 F. 3d 185, 194 (CA5 2012); 

Powell v. Tompkins, 783 F. 3d 332, 347, n. 9 (CA1 2015) 

(compiling Circuit opinions adopting some form of the 

sliding-scale framework). 

Under this test, courts first ask “whether the challenged 

law burdens conduct protected by the Second Amendment.” 

United States v. Chovan, 735 F. 3d 1127, 1136 (CA9 2013). 

If so, courts proceed to the second step—determining the 

appropriate level of scrutiny. Ibid. To do so, courts generally consider “how close the law comes to the core of the 

Second Amendment right” and “the severity of the law’s

burden on the right.” Id., at 1138 (internal quotation marks 

omitted); see also, e.g., Gould, supra, at 670–671. Depending on their analysis of those two factors, courts then apply 

what purports to be either intermediate or strict scrutiny—

at least recognizing that Heller barred the application of

rational basis review. Chovan, supra, at 1137. 

This approach raises numerous concerns. For one, the 

courts of appeals’ test appears to be entirely made up. The 

Second Amendment provides no hierarchy of “core” and peripheral rights. And “[t]he Constitution does not prescribe 

tiers of scrutiny.” Whole Woman’s Health v. Hellerstedt, 579 

U. S. ___, ___ (2016) (THOMAS, J., dissenting) (slip op., at 

12); see also Heller II, supra, at 1283 (Kavanaugh, J., dissenting) (listing constitutional rights that are not subject to 

means-ends scrutiny). Moreover, there is nothing in our 

Second Amendment precedents that supports the application of what has been described as “a tripartite binary test 

with a sliding scale and a reasonable fit.” Duncan v. 

Becerra, 265 F. Supp. 3d 1106, 1117 (SD Cal. 2017), aff ’d,

742 Fed. Appx. 218 (CA9 2018).

Even accepting this test on its terms, its application has 

yielded analyses that are entirely inconsistent with Heller. 
Cite as: 590 U. S. ____ (2020) 5 

THOMAS, J., dissenting 

There, we cautioned that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” stating that our constitutional 

rights must be protected “whether or not future legislatures 

or (yes) even future judges think that scope too broad.” 554 

U. S., at 634–635. On that basis, we explicitly rejected the 

invitation to evaluate Second Amendment challenges under 

an “interest-balancing inquiry, with the interests protected 

by the Second Amendment on one side and the governmental public-safety concerns on the other.” Id., at 689 

(BREYER, J., dissenting). But the application of the test

adopted by the courts of appeals has devolved into just 

that.1 In fact, at least one scholar has contended that this 

interest-balancing approach has ultimately carried the day,

as the lower courts systematically ignore the Court’s actual

holding in Heller. See Rostron, Justice Breyer’s Triumph 

in the Third Battle Over the Second Amendment, 80 Geo. 

Wash. L. Rev. 703 (2012). With what other constitutional 

right would this Court allow such blatant defiance of its 

precedent?

Whatever one may think about the proper approach to

analyzing Second Amendment challenges, it is clearly time 

—————— 1See, e.g., Kachalsky v. County of Westchester, 701 F. 3d 81, 100 (CA2

2012) (deferring to the legislature’s conclusion that “public safety . . . outweighs the need to have a handgun for an unexpected confrontation”); 

New York State Rifle & Pistol Assn., Inc. v. New York, 883 F. 3d 45, 64 

(CA2 2018) (stating that a “review of state and local gun control” involves

a “balancing of the individual’s constitutional right to keep and bear

arms against the states’ obligation to ‘prevent armed mayhem’ ” (quoting 

Kachalsky, supra, at 96)), vacated and remanded, ante, p. ___; Gould v. 

Morgan, 907 F. 3d 659, 676 (CA1 2018) (stating that “courts must defer

to a legislature’s choices among reasonable alternatives” when the legislature has “take[n] account of the heightened needs of some individuals 

to carry firearms for self-defense and balance[d] those needs against the 

demands of public safety”); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013) 

(“refus[ing] . . . to intrude upon the sound judgment and discretion of the 

State of New Jersey” that only “those citizens who can demonstrate a 

‘justifiable need’ to do so” may carry handguns outside the home). 
 

6 ROGERS v. GREWAL 

THOMAS, J., dissenting 

for us to resolve the issue. 

II 

This case also presents the Court with an opportunity to

clarify that the Second Amendment protects a right to public carry. While some Circuits have recognized that the Second Amendment extends outside the home, see Wrenn v. 

District of Columbia, 864 F. 3d 650, 665 (CADC 2017); 

Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012), many 

have declined to define the scope of the right, simply assuming that the right to public carry exists for purposes of applying a scrutiny-based analysis, see Woollard v. Gallagher, 

712 F. 3d 865, 876 (CA4 2013); Drake v. Filko, 724 F. 3d 

426, 431 (CA3 2013); Kachalsky v. County of Westchester, 

701 F. 3d 81, 89 (CA2 2012).2 Other courts have specifically 

indicated that they would not interpret the Second Amendment to apply outside the home without further instruction

from this Court. United States v. Masciandaro, 638 F. 3d 

458, 475 (CA4 2011) (“On the question of Heller’s applicability outside the home environment, we think it prudent to 

await direction from the Court itself”); Williams v. State, 

417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011) (“If the Supreme Court . . . meant its holding [in Heller] to extend beyond home possession, it will need to say so more plainly”). 

We should provide the requested instruction. 

A 

The text of the Second Amendment guarantees that “the 

—————— 2 It is not clear how these courts can apply the made-up sliding scale 

test without determining the scope of the right. See Peruta v. County of 

San Diego, 742 F. 3d 1144, 1166 (CA9 2014) (noting that courts “must

fully understand the historical scope of the right before [they] can determine whether and to what extent the [challenged law] burdens the right 

or whether it goes even further and amounts to a destruction of the right

altogether” (internal quotation marks omitted)), vacated and reh’g en 

banc granted, 781 F. 3d 1106 (CA9 2015). 
 

 

Cite as: 590 U. S. ____ (2020) 7 

THOMAS, J., dissenting 

right of the people to keep and bear Arms, shall not be infringed.” As this Court explained in Heller, “[a]t the time 

of the founding, as now, to ‘bear’ meant to ‘carry.’” 554 

U. S., at 584. “When used with ‘arms,’ . . . the term has a 

meaning that refers to carrying for a particular purpose—

confrontation.” Ibid. Thus, the right to “bear arms” refers 

to the right 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 defensive action in a case of conflict with another person.’” Ibid. (quoting Muscarello v. 

United States, 524 U. S. 125, 143 (1998) (GINSBURG, J., dissenting); alterations and some internal quotation marks

omitted).

“The most natural reading of this definition encompasses 

public carry.” Peruta v. California, 582 U. S. ___, ___ (2017) 

(THOMAS, J., dissenting from denial of certiorari) (slip op., 

at 5). Confrontations, of course, often occur outside the 

home. See, e.g., Moore, supra, at 937 (noting that “most

murders occur outside the home” in Chicago). Thus, the 

right to carry arms for self-defense inherently includes the 

right to carry in public. This conclusion not only flows from

the definition of “bear Arms” but also from the natural use 

of the language in the text. As I have stated before, it is 

“extremely improbable that the Framers understood the 

Second Amendment to protect little more than carrying a 

gun from the bedroom to the kitchen.” Peruta, supra, at ___ 

(opinion dissenting from denial of certiorari) (slip op., at 5).

The meaning of the term “bear Arms” is even more evident when read in the context of the phrase “right . . . to 

keep and bear Arms.” U. S. Const., Amdt. 2. “To speak of 

‘bearing’ arms solely within one’s home . . . would conflate 

‘bearing’ with ‘keeping,’ in derogation of [Heller’s] holding

that the verbs codified distinct rights.” Drake, supra, at 444 

(Hardiman, J., dissenting); see also Moore, supra, at 936. 

In short, it would take serious linguistic gymnastics—and

a repudiation of this Court’s decision in Heller—to claim 
 

8 ROGERS v. GREWAL 

THOMAS, J., dissenting 

that the phrase “bear Arms” does not extend the Second

Amendment beyond the home. 

B 

Cases and treatises from England, the founding era, and 

the antebellum period confirm that the right to bear arms 

includes the right to carry in public. 

1 

“[T]he Second Amendment . . . codified a pre-existing 

right.” Heller, supra, at 592. So, as in Heller, my analysis

of the scope of that right begins with our country’s English 

roots. 

In 1328, during a time of political transition, the English

Parliament enacted the Statute of Northampton. The Statute provided that no man was permitted to “bring . . . force 

in affray of the peace, nor to 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.” Statute 

of Northampton 1328, 2 Edw. 3, ch. 3. On its face, the statute could be read as a sweeping ban on the carrying of arms.

However, both the history and enforcement of the statute 

reveal that it created a far more limited restriction. 

From the beginning, the scope of the Statute of Northampton was unclear. Some officers were ordered to arrest 

all persons that “go armed,” regardless of whether the

bearer was carrying arms peacefully. See Letter to Mayor

and Bailiffs of York (Jan. 30, 1334), in Calendar of the Close 

Rolls, Edward III, 1333–1337, p. 294 (H. Maxwell-Lyte ed. 

1898). Other officers, however, were ordered to arrest only 

“persons riding or going armed to disturb the peace.” Letter 

to Keeper and Justices of Northumberland (Oct. 28, 1332), 

in Calendar of the Close Rolls, Edward III, 1330–1333, p. 

610 (H. Maxwell-Lyte ed. 1898) (emphasis added). 

Whatever the initial breadth of the statute, it is clear that 

it was not strictly enforced in the ensuing centuries. To the 
 

 

 

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THOMAS, J., dissenting 

contrary, “[d]uring most of England’s history, maintenance

of an armed citizenry was neither merely permissive nor 

cosmetic but essential” because “[u]ntil late in the seventeenth century England had no standing army, and until

the nineteenth century no regular police force.” Malcom, 

The Right of the People To Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q. 285, 290 

(1983). Citizens were not only expected to possess arms, 

they were encouraged to maintain skills in the use of those

arms, which, of course, required carrying arms in public.

See, e.g., id., at 292 (describing King Henry VIII’s order requiring villages to maintain targets at which local men

were to practice shooting). 

The religious and political turmoil in England during the

17th century thrust the scope of the Statute of Northampton to the forefront. See J. Malcom, To Keep and Bear Arms

104–105 (1994) (hereinafter Malcolm). King James II, a 

Catholic monarch, sought to revive the Statute of Northampton as a weapon to disarm his Protestant opponents. 

Id., at 104. To this point, “[a]lthough men were occasionally

indicted for carrying arms to terrorize their neighbours, the 

strict prohibition [of the Statute of Northampton] had never 

been enforced.” Ibid. But, in November 1686, the Attorney 

General brought Sir John Knight—an opponent of James 

II—to trial before the King’s Bench. The information alleged that Knight violated the Statute of Northampton by 

“walk[ing] about the streets armed with guns, and [entering] into the church of St. Michael, in Bristol, in the time of

divine service, with a gun, to terrify the King’s subjects.” 

Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, 76. At 

trial, the Chief Justice of the King’s Bench stated that the

Statute of Northampton only “punish[ed] people who go

armed to terrify the King’s subjects.” Id., at 118, 87 Eng. 

Rep., at 76 (emphasis added). He explained that the Statute of Northampton was “almost gone in desuetudinem” for 

“now there be a general connivance to gentlemen to ride 
 

 

10 ROGERS v. GREWAL 

THOMAS, J., dissenting 

armed for their security.” Rex v. Sir John Knight, 1 Comb. 

38, 39, 90 Eng. Rep. 330 (1686). The Chief Justice also 

noted that only “where the crime shall appear to be malo

animo [i.e., with a wrongful intent,] it will come within the 

Act.” Ibid. In other words, the Statute of Northampton was

almost obsolete from disuse and prohibited only the carrying arms to terrify. Knight was ultimately acquitted.3 

James II’s attempts to disarm his opponents continued. 

Only two weeks after Knight’s acquittal, James II ordered 

general disarmaments of regions inhabited by his 

Protestant enemies under the auspices of the Game Act of 

1671. See Malcom 105–106. As we explained in Heller, 

“[t]hese experiences caused Englishmen to be extremely

wary of concentrated military forces run by the state and to

be jealous of their arms.” 554 U. S., at 593. 

In 1688, James II was deposed in an uprising which came

to be known as The Glorious Revolution. Soon thereafter, 

the English compiled the Declaration of Rights, which contained a list of grievances against James II and sought assurances from William and Mary that Protestants would 

not be disarmed. See Malcom 115. William and Mary accepted the Declaration of Rights, which was later codified

as the English Bill of Rights, agreeing that “the Subjects 

which are Protestants may have Arms for their Defence 

suitable to their Conditions, and as allowed by Law.” 1 Wm. 

& Mary, ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689). 

—————— 3At least one scholar has asserted that Sir John Knight was acquitted 

because he fell within the Statute of Northampton’s exception for the 

“King’s Officers and Ministers.” Charles, The Faces of the Second 

Amendment Outside the Home: History Versus Ahistorical Standards of 

Review, 60 Clev. St. L. Rev. 1, 28, 30 (2012) (internal quotation marks 

omitted). This assertion has been repudiated by subsequent scholarship.

See Kopel, The First Century of Right to Arms Litigation, 14 Geo. J. L.

& Pub. Pol’y 127, 135, n. 46 (2016); see also Young v. Hawaii, 896 F. 3d 

1044, 1064, n. 17 (CA9 2018), reh’g en banc granted, 915 F. 3d 681 (CA9 

2019). Moreover, regardless of the ground for acquittal, the Chief Justice’s pronouncement of law remains. 
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THOMAS, J., dissenting 

The Statute of Northampton remained in force following 

the codification of the English Bill of Rights, but the narrow 

interpretation of the statute adopted in Sir John Knight’s 

Case became blackletter law in England. Writing in 1716,

Serjeant William Hawkins, author of an influential English 

treatise, explained that “no wearing of Arms is within the

meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify

the People; from whence it seems clearly to follow, That 

Persons of Quality are in no Danger of Offending against 

this Statute by wearing common Weapons.” 1 Pleas of the 

Crown 136 (1716). Theodore Barlow, another legal commentator, also explained that “Wearing Arms, if not accompanied with Circumstances of Terror, is not within this 

Statute; therefore People of Rank and Distinction do not offend by wearing common Weapons.” The Justice of Peace: 

A Treatise Containing the Power and Duty of That Magistrate 12 (1745). Sir William Blackstone concluded the Statute of Northampton banned only the carrying of “dangerous

and unusual weapons.” Heller, supra, at 627 (internal quotation marks omitted). He explained that the right to arms

protected by the 1689 English Bill of Rights preserved “the 

natural right of resistance and self-preservation” and “the 

right of having and using arms for self-preservation and defence.” 1 Commentaries on the Laws of England 139–140

(1765); see also 2 id., at 412, n. 2 (E. Christian ed. 1794) 

(“[E]veryone is at liberty to keep or carry a gun, if he does 

not use it for the [illegal] destruction of game” (editor’s 

note)).

In short, although England may have limited the right to

carry in the 14th century, by the time of the founding, the

English right was “an individual right protecting against

both public and private violence.” Heller, supra, at 594 (emphasis added). And for purposes of discerning the original

meaning of the Second Amendment, it is this founding era 

understanding that is most pertinent. 
 

 

 

12 ROGERS v. GREWAL 

THOMAS, J., dissenting 

2 

Founding era legal commentators in America also understood the Second Amendment right to “bear Arms” to encompass the right to carry in public. 

St. George Tucker, in his 1803 American edition of Blackstone’s Commentaries, explained that the right to armed

self-defense is the “first law of nature.” 1 Blackstone’s Commentaries, App. 300. He described “the right of the people 

to keep and bear arms” as “the true palladium of liberty.” 

Ibid. Tucker makes clear that bearing arms in public was 

common practice at the founding: “In 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.” 5 id., at 19. 

Similarly, William Rawle, a member of the Pennsylvania 

Assembly that ratified the Bill of Rights, acknowledged the

right to carry arms in public. A View of the Constitution of 

the United States of America 125–126 (1825). Rawle noted 

that the right should not “be abused to the disturbance of 

the public peace” and explained that if a man carried arms

“attended with circumstances giving just reason to fear that 

he purposes to make an unlawful use of them,” he may be 

required “to give surety of the peace.” Id., at 126.4 But his 

general understanding appeared to mirror Hawkins’ articulation of the English right—public carry was permitted so

long as it was not done to terrify.

Other commentators took a similar view. James Wilson, 

a prominent Framer and one of the six original Justices of

the Supreme Court, understood founding era law to prohibit only the carrying of “dangerous and unusual weapons, 

—————— 4Lower courts looking to historical practice have concluded that, even 

in these circumstances, if a surety was provided or the accused was exempt from providing a surety, he could continue to bear arms in public. 

Wrenn v. District of Columbia, 864 F. 3d 650, 661 (CADC 2017) (explaining the application of surety laws); Young, 896 F. 3d, at 1061–1062. 
 

Cite as: 590 U. S. ____ (2020) 13 

THOMAS, J., dissenting 

in such a manner, as will naturally diffuse a terrour among 

the people.” 2 Lectures on Law, in Collected Works of 

James Wilson 1138 (K. Hall & M. Hall eds. 2007). Charles 

Humphreys, a law professor, reiterated “that in this country the constitution guarranties to all persons the right to 

bear arms” and that “it can only be a crime to exercise this

right in such a manner, as to terrify the people unnecessarily.” A Compendium of the Common Law in Force in 

Kentucky 482 (1822). 

3 

This view persisted in the early years of the Republic.

The majority of the relevant cases during the antebellum

period—many of which Heller relied on—support the understanding that the phrase “bear Arms” includes the right

to carry in public. 

In Bliss v. Commonwealth, 12 Ky. 90 (1822), the Kentucky Court of Appeals held that its state constitutional 

right to “bear arms” invalidated a concealed carry restriction. Id., at 91–92. The court stated that “whatever 

restrains the full and complete exercise of [the right to bear

arms], though not an entire destruction of it, is forbidden 

by the explicit language of the constitution.” Ibid. 

Eleven years after Bliss, Tennessee’s highest court interpreted its State Second Amendment analog in a similar 

manner in Simpson v. State, 13 Tenn. 356 (1833). In that 

case, a jury convicted Simpson of carrying arms “in a warlike manner . . . and to the great terror and disturbance of 

. . . good citizens.” Id., at 357. Simpson challenged the conviction, arguing that the State merely proved that he carried arms, not that he did so in a manner to provoke violence. Id., at 358. The State asserted that violence was not 

“essential” to support the conviction, pointing to a statement of Serjeant Hawkins regarding the English Statute of 

Northampton. Ibid. The court rejected the State’s argument. First, it noted that the State had selectively quoted 
 

14 ROGERS v. GREWAL 

THOMAS, J., dissenting 

Hawkins’ statement about “‘dangerous and unusual weapons,’” and that Hawkins actually explained that “persons of 

quality are in no danger of offending [the Statute of Northampton] by wearing their common weapons . . . in such 

places and upon occasions in which it is the common fashion 

to make use of them without causing the least suspicion of 

an intention to commit any act of violence or disturbance of 

the peace.” Id., at 358–359. Second, the court held that 

even assuming “that our ancestors adopted and brought 

over with them [the Statute of Northampton], or [a] portion

of the common law,” the state-law “right to keep and to bear

arms” “completely abrogated it.” Id., at 359–360 (internal

quotation marks omitted). 

In 1840, the Supreme Court of Alabama concluded that,

while the legislature could impose limitations on “the manner in which arms shall be borne,” it could not bar the right 

to bear arms in public for self-defense. State v. Reid, 1 Ala. 

612, 616–619. The court upheld a prohibition on the “practice of carrying weapons secretly.” Id., at 616 (internal quotation marks omitted). In doing so, however, the court recognized that there were limits to the State’s ability to

restrict the right to carry in public: “A statute which, under 

the pretence of regulating, amounts to a destruction of the 

right [to bear arms], 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 616–617. In the 

court’s view, “it is only when carried openly, that [arms] can

be efficiently used for defence.” Id., at 619. Thus, the court 

allowed some regulation of the form of carrying arms in

public, but it firmly concluded that the right to carry in public for self-defense could not be eliminated altogether. 

Other state courts adopted a similar view. In Nunn v. 

State, 1 Ga. 243 (1846), the Supreme Court of Georgia held 

that “seek[ing] to suppress the practice of carrying certain 

weapons secretly . . . is valid” but that “a prohibition against 

bearing arms openly is in conflict with the Constitution, and 
 

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THOMAS, J., dissenting 

void.” Id., at 251. And, in State v. Chandler, 5 La. 489 

(1850), the Supreme Court of Louisiana held that the State 

could ban concealed carry but that the “right to carry arms 

. . . in full open view” was “guaranteed by the Constitution

of the United States.” Id., at 489–490 (internal quotation 

marks omitted). 

These cases show that, with few exceptions,5 courts in the 

antebellum period understood the right to bear arms as including the right to carry in public for self-defense. 

C 

Finally, in the wake of the Civil War, “there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether 

and how to secure constitutional rights for newly free 

slaves.” Heller, 554 U. S., at 614. These discussions confirm that the Second Amendment right to bear arms was

understood to protect public carry at the time the Fourteenth Amendment was ratified.6 

As I have previously explained, “Southern anxiety about 

an uprising among the newly freed slaves peaked” after the 

Civil War. McDonald, 561 U. S., at 846 (opinion concurring 

in part and concurring in judgment). Acting on this fear,

States of the “old Confederacy” engaged in “systematic efforts” to disarm recently freed slaves and many of the 

180,000 blacks who served in the Union Army. Id., at 847 

—————— 5 In State v. Buzzard, 4 Ark. 18 (1842), the Supreme Court of Arkansas 

upheld a law that prohibited concealed carry. Id., at 27 (opinion of Ringo,

C. J.); id., at 32 (opinion of Dickinson, J.); but see id., at 34–35 (Lacy, J., 

dissenting). 6Although these discussions occurred well after the ratification of the

Bill of Rights, Heller treated them as “instructive” in determining the

meaning of the Second Amendment. 554 U. S., at 614. The discussions 

also inform our understanding of the right to keep and bear arms guaranteed by the Fourteenth Amendment as a privilege of American citizenship. See McDonald v. Chicago, 561 U. S. 742, 837 (2010) (THOMAS, J., 

concurring in part and concurring in judgment). 
 

 

16 ROGERS v. GREWAL 

THOMAS, J., dissenting 

(internal quotation marks omitted). “Throughout the

South, armed parties, often consisting of ex-Confederate

soldiers serving in the state militias, forcibly took firearms 

from newly freed slaves.” Id., at 772 (majority opinion). In 

addition, some States passed laws that explicitly prohibited 

blacks from carrying arms without a license (a requirement

not imposed on white citizens) or barred blacks from possessing arms altogether. See Cottrol & Diamond, The Second Amendment: Toward an Afro–Americanist Reconsideration, 80 Geo. L. J. 309, 344–345 (1991) (compiling laws 

from Alabama, Louisiana, and Mississippi).

The Federal Government acknowledged that these 

abuses violated blacks’ fundamental right to carry arms in

public. In 1866, a report of the Commissioner of the Freedmen’s Bureau recognized that “[t]he civil law [of Kentucky] 

prohibits the colored man from bearing arms” and concluded that such a restriction infringed “the right of the people to keep and bear arms as provided in the Constitution.” 

H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. 

Similarly, a circular in a congressional Report acknowledged that “in some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all

fire-arms found in the hands of the freedmen . . . in plain

and direct violation of their personal rights [to keep and

bear arms] as guaranteed by the Constitution of the United 

States.” Joint Comm. on Reconstruction, H. R. Rep. No. 30,

39th Cong., 1st Sess., 229 (1866) (Proposed Circular of Brigadier Gen. R. Saxton). The circular noted the “peaceful and

orderly conduct” of freed slaves when carrying arms, as well

as their need “to kill game for subsistence, and to protect 

their crops from destruction by birds and animals,” clearly

indicating that the bearing of arms occurs in public. Ibid. 

Finally, numerous Congressmen expressed dismay at the

denial of blacks’ rights to bear arms when discussing the 

Civil Rights Act of 1866, the Freedmen’s Bureau Act of

1866, and the Fourteenth Amendment. See Halbrook, The 
 

 

Cite as: 590 U. S. ____ (2020) 17 

THOMAS, J., dissenting 

Jurisprudence of the Second and Fourteenth Amendments,

4 Geo. Mason L. Rev. 1, 21–25 (1981).

The importance of the right to carry arms in public during Reconstruction and thereafter cannot be overstated. 

“The use of firearms for self-defense was often the only way 

black citizens could protect themselves from mob violence.” 

McDonald, 561 U. S., at 857 (opinion of THOMAS, J.). And, 

unfortunately, “[w]ithout federal enforcement of the inalienable right to keep and bear arms, . . . militias and mobs 

were tragically successful in waging a campaign of terror”

against Southern blacks. Id., at 856. On this record, it is 

clear that “the Framers of the Privileges or Immunities 

Clause and the ratifying-era public understood—just as the

Framers of the Second Amendment did—that the right to

keep and bear arms” encompassed the right to carry arms 

in public for self-defense. Id., at 858. 

In short, the text of the Second Amendment and the history from England, the founding era, the antebellum period, 

and Reconstruction leave no doubt that the right to “bear 

Arms” includes the individual right to carry in public in 

some manner. 

III 

Recognizing that the Constitution protects the right to

carry arms in public does not mean that there is a “right to 

. . . carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U. S., at 626. 

“The protections enumerated in the Second Amendment . . . 

are not absolute prohibitions against government regulation.” Voisine v. United States, 579 U. S. ___, ___ (2016) 

(THOMAS, J., dissenting) (slip op., at 17). States can impose 

restrictions on an individual’s right to bear arms that are

consistent with historical limitations. “Some laws, however, broadly divest an individual of his Second Amendment rights” altogether. Ibid. This case gives us the ideal

opportunity to at least begin analyzing which restrictions 
 

 

 

18 ROGERS v. GREWAL 

THOMAS, J., dissenting 

are consistent with the historical scope of the right to bear 

arms. 

It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless 

they can establish “good cause” or a “justifiable need” for 

doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a

restriction, which amounts to a “[b]a[n] on the ability of 

most citizens to exercise an enumerated right.” Wrenn, 864 

F. 3d, at 666. The Courts of Appeals are squarely divided 

on the constitutionality of these onerous “justifiable need” 

or “good cause” restrictions. The D. C. Circuit has held that 

a law limiting public carry to those with a “good reason to 

fear injury to [their] person or property” violates the Second 

Amendment. Wrenn, 864 F. 3d, at 655 (internal quotation 

marks omitted).7 By contrast, the First, Second, Third, and 

Fourth Circuits have upheld the constitutionality of licensing schemes with “justifiable need” or “good reason” requirements, applying what purported to be an intermediate

scrutiny standard. See Gould, 907 F. 3d, at 677; Kachalsky, 

701 F. 3d, at 101; Drake, 724 F. 3d, at 440; Masciandaro, 

638 F. 3d, at 460. 

“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’” Gee v. Planned Parenthood of Gulf Coast, Inc., 586 

U. S. ___, ___ (2018) (THOMAS, J., dissenting from denial of 

certiorari) (slip op., at 1) (quoting this Court’s Rule 10(a)).

The question whether a State can effectively ban most citizens from exercising their fundamental right to bear arms 

—————— 7A panel of the Ninth Circuit, in an exhaustive and scholarly opinion,

also held that a law violated the Second Amendment by limiting public 

carry to those with “ ‘urgency,’ ” “ ‘need,’ ” or a “ ‘reason to fear injury.’ ” 

Young, 896 F. 3d, at 1048. That decision, however, was vacated when a 

majority of the active judges on the Ninth Circuit voted to grant en banc 

review. See 915 F. 3d 681. 
Cite as: 590 U. S. ____ (2020) 19 

THOMAS, J., dissenting 

surely qualifies as such a matter. We should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to

all citizens. 

* * * 

This case gives us an opportunity to provide lower courts

with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is 

independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review. Rather than prolonging our decade-long 

failure to protect the Second Amendment, I would grant 

this petition.