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Peruta v. County of San Diego

United States Court of Appeals, Ninth Circuit

February 13, 2014

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

Argued and Submitted December 6, 2012 San Francisco, California

As Corrected March 24, 2014.

Counsel Amended March 4, 2014.

Page 1145

[Copyrighted Material Omitted]

Page 1146

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:09-cv-02371-IEG-BGS. Irma E. Gonzalez, Chief District Judge, Presiding.

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 briefs were Glenn S. McRoberts, Sean A. Brady, Anna M. Barvir, Clinton B. Monfort, 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 defendant-appellee William D. Gore. 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.

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 U.S. 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 U.S. LLP, Washington, D.C., and Jonathan E. Lowy and Daniel R. Vice, Brady Center to Prevent Gun Violence, Washington, D.C.

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.

Before: O'SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges. THOMAS, Circuit Judge, dissenting.

OPINION

Page 1147

O'SCANNLAIN, Circuit Judge.

We are called upon to decide whether a responsible, law-abiding 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 locations.[1] See 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).

Page 1148

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 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-carry licenses 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 Pistol Association Foundation, comprises many San Diego Country residents " in the same predicament 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

Page 1149

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.

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 impermissibly burdens their Second Amendment right to bear arms.

The Supreme Court's opinions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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... 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 tiered-scrutiny 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

Page 1150

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 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, 399 U.S. App. D.C. 314 (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's[2] ability to carry a gun 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

Page 1151

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, 51 S.Ct. 220, 75 L.Ed. 640 (1931)).

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 pre-ratification " 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 any manner 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." ).

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

Page 1152

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, 118 S.Ct. 1911, 141 L.Ed.2d 111 (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 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 six-shooter 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 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,

Page 1153

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., specially concurring) (quoting Heller, 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 self-defense 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 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 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

Page 1154

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 self-preservation 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 individual right protecting against both public and private violence." Id. (emphasis added). Although Blackstone elsewhere described a fourteenth-century English 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 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

Page 1155

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 late-eighteenth-century commentaries, the great weight of nineteenth-century precedent on the Second Amendment or its state-law analogues confirms the Heller -endorsed understanding of " bear Arms." [5] In 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 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

Page 1156

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 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 second-category 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 self-defense.

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 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

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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 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 second-category 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, 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

Page 1158

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 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 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

Page 1159

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 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).

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 of themselves, if necessary, and of their country,

Page 1160

without any tendency to secret advantages and unmanly assassinations.

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 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 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.

Page 1161

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." 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. Sandford, 60 U.S. 393, 15 L.Ed. 691 (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 Black 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 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

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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 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 (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 ...


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