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Range v. Attorney General

As gun rights have evolved in the United States, the Supreme Court has moved away from a means-end test and adopted a history-and-tradition framework for evaluating Second Amendment challenges.1 This framework requires that any firearm regulation be “consistent with this Nation’s historical tradition of firearm regulation.”2 Numerous federal courts have already used this test to swiftly strike down over a dozen state and federal laws cabining gun possession rights.3 Lower courts presented with challenges to felon-in-possession laws, however, have greatly differed over how to analogize firearm regulations of the Founding to the present.4 Recently, in Range v. Attorney General,5 the Third Circuit applied this test, as required under New York State Rifle & Pistol Association v. Bruen,6 and determined there were not historical analogues to stripping a nonviolent offender7 of his Second Amendment rights. The decision — the first of a federal circuit applying 18 U.S.C. § 922(g)(1) after Bruen8 — has raised questions about whether felon-in-possession laws are still “presumptively lawful.”9 Range narrowly decided that firearm disenfranchisement of convicted individuals “like Range” is unconstitutional.10 The Third Circuit’s inchoate “like Range” test underscores that the history-and-tradition test is difficult for evaluating challenges to felon-in-possession laws. By failing to directly grapple with the history-and-tradition test’s indeterminacy, the Third Circuit missed an opportunity to adopt a more definite standard of dangerousness as the “touchstone.”11

In August of 1995, Bryan Range pleaded guilty to one count of making a false statement to obtain food stamp assistance, in violation of title 62, section 481(a) of the Pennsylvania Consolidated Statutes.12 Mr. Range, around the time of the offense, earned about $300 per week.13 Mr. Range’s wife, Mrs. Range, filled out an application for food stamps, and on the application, Mr. Range’s income was omitted.14 Mr. Range accepted responsibility for the omission on the application.15

At that time, Mr. Range’s false statement was classified as a first-degree misdemeanor, punishable by a maximum of five years’ im­prisonment, under Pennsylvania law.16 Consequently, his conviction triggered the application of § 922(g)(1),17 but Mr. Range maintained that he was not informed by the prosecutor or judge that his pleading would result in a firearms possession ban.18 Unaware that he was barred, Mr. Range attempted to purchase a gun twice.19 He was unsuccessful both times, and upon further research, he realized his nonviolent conviction precluded him from possessing a gun.20

Mr. Range, alleging that § 922(g)(1) violated his Second Amendment rights, filed suit in the District Court for the Eastern District of Pennsylvania.21 Judge Pratter looked to the Third Circuit’s test in Binderup v. Attorney General22 to determine whether a crime is so serious as to warrant a ban on a felon’s possession of firearms. Judge Pratter found one factor — cross-jurisdictional consensus about the seriousness of crime — weighed in favor of the government.23 This was sufficient for the government to prevail at step one, so the court granted summary judgment for the government.24 Mr. Range appealed.25

The Third Circuit affirmed.26 In a per curiam opinion, Judges Shwartz, Krause, and Roth held that § 922(g)(1), as applied to Mr. Range, was constitutional.27 Between Mr. Range’s appeal and the Third Circuit hearing the case, the Supreme Court decided Bruen. Establishing a history-and-tradition test, Bruen abrogated the Third Circuit’s seriousness test from Binderup.28 The panel applied the Bruen history-and-tradition test — surveying the historical record of felon-in-possession laws in England and in the Founding era — which first looks at whether the Second Amendment covers the regulated conduct or individual and then second at whether there are historical analogues to the regulation.29 The Third Circuit determined that “§ 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.”30 Mr. Range successfully petitioned for the case to be reheard en banc.31

The Third Circuit, sitting en banc, reversed and remanded.32 Writing for the majority, Judge Hardiman33 applied the Bruen two-step test.

First, the majority determined that the Second Amendment applied to Mr. Range, notwithstanding his nonviolent misdemeanor conviction.34 The majority acknowledged that District of Columbia v. Heller,35 McDonald v. City of Chicago,36 and Bruen in dicta stated that only “law-abiding citizens,” not “the people” writ large, are protected under the Second Amendment, but the majority discussed how “the people” is used not only in the Second Amendment but also throughout the Constitution.37 If Mr. Range were not included as “the people” in the Second Amendment context, then he would be precluded from other rights as well.38 The majority also found that limiting Second Amendment rights to only those who are “law-abiding, responsible citizens” would be too vague and broad.39 The majority ultimately held that Mr. Range was one of “the people” whom the Second Amendment protects.40 Next, the Third Circuit concluded its analysis of Bruen’s first step by ruling that § 922(g)(1) regulates Second Amendment conduct, and that Mr. Range’s desire to possess firearms to hunt and for self-defense fell within the scope of the Second Amendment right under Heller.41

Second, the majority looked at whether § 922(g)(1) is a firearm regulation consistent with the nation’s history and tradition.42 The government relied on the dicta in Heller saying that there is a “longstanding” history of felon-in-possession laws, Justice Kavanaugh’s concurrence in Bruen stating that felon-in-possession laws are “presumptively lawful,” and the 1961 amendments to the Federal Firearms Act43 to support its contention that there is a history and tradition of felon-in-possession regulations.44at 103–06. The majority found this support unconvincing because the “longstanding” firearm regulation initially only applied to violent offenders, which Mr. Range was not, and because the “1961 iteration of § 922(g)(1)” was passed too recently (that is, 170 years after the ratification of the Second Amendment) to be “longstanding.”45 The government also pointed to historical firearm laws that disen­franchised those who were distrusted — Loyalists, Native Americans, Quakers, Catholics, and Blacks — but the majority determined that Mr. Range was not part of a similar group like those regulated in the Founding era.46 The majority also concluded that the government’s argument that even nonviolent offenses were considered serious and punishable by death was not related to the issue in front of them.47 Lastly, the majority held that the government’s citation to persuasive authorities was unconvincing because those opinions were handed down before Bruen abrogated prior tests.48 Therefore, the court ruled that the government did not meet its burden of establishing that § 922(g)(1), as applied to Mr. Range, was consistent with the history and tradition of American firearms regulation.49 The Third Circuit reversed the judgment of the district court and remanded so that the district court could grant declaratory judgment in favor of Mr. Range.50

Judge Porter concurred.51 He wrote separately to offer reasoning as to why there were no historical laws like § 922(g)(1).52

Judge Ambro, joined by Judges Greenaway, Jr., and Montgomery-Reeves, also concurred.53 Judge Ambro emphasized that § 922(g)(1) remained “presumptively lawful” as a mechanism of regulating those who are a threat to society.54

Judge Shwartz, joined by Judge Restrepo, dissented.55 She critiqued the majority’s treatment of precedent and historical analogues to § 922(g)(1). She also argued there was a tradition of regulating those deemed to be disloyal or disrespectful of the law.56

Judge Krause also dissented.57 She underscored that the historical record supports disarming those who disrespect the law and posited that the majority could have made a narrower ruling.58

Lastly, Judge Roth also dissented.59 She argued that § 922(g)(1) is consistent with historical firearm regulations.60

Range, unprecedentedly, held there is not a historical basis for disenfranchising a nonviolent offender, arguably “without articulating any principles mediating historical and modern laws.”61 The court reached the right conclusion that Mr. Range should not be barred from possessing firearms, but the majority’s narrow “like Range” test neglected to provide any guidance about “[w]hat specifically is it about Range that exempts him — and going forward, those ‘like [him]’ — from § 922(g)(1)’s enforcement.”62 As Judge Krause identified, if the “like Range” test is about whether the underlying conviction was for a nonviolent offense or whether the convicted individual has exhibited law-abiding behavior, then this standard is severely flawed.63 If, on the other hand, the “like Range” test is really about dangerousness, the court has punted on adopting this standard.

The majority notably did not rely on Mr. Range’s argument “that because ‘there is no historical tradition of disarming nonviolent felons,’ dangerousness is the ‘touchstone.’”64 The majority found that it “need not decide this dispute today because the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.”65 Rather than set forth an indeterminate “like Range” standard, the Court should have interpreted § 922(g)(1) as analogous to historical firearm regulations of those who were perceived to be “dangerous.” Adopting a “dangerousness” framework, which comports with Bruen, would provide courts with a clearer way to analogize § 922(g) challenges, which could allow for more individuals with criminal records to regain their Second Amendment rights.

Bruen required the Range court to analogize Mr. Range’s nonviolent offense to historical regulations of similar conduct.66 According to scholars, there is a long tradition of regulating gun ownership of those who were deemed to be dangerous, disloyal, and untrustworthy.67 Importantly, “there is no historical justification for completely and forever depriving peaceable citizens — even nonviolent felons — of the right to keep and bear arms.”68 The majority correctly held that there is no historical basis for disenfranchising Mr. Range. Mr. Range’s conduct should certainly not be seen as being dangerous or disloyal, and his one-time criminal offense for food stamp fraud should not render him as permanently non-law-abiding. The fact that the opinions in Range drew upon the same history and reached different conclusions underscores the challenge of interpreting historical analogues.69 While historical interpretation will often be debated, a dangerousness framework can provide clearer guidance on how judges should analogize modern Second Amendment regulations to those of the past. Judges, then, could more uniformly analyze the permissible scope of § 922(g)(1). Consequently, courts could rule that more individuals with criminal re­cords, such as Mr. Range, should regain their Second Amendment rights.

The court’s lack of unanimity on how to interpret historical analogues may speak to a definitional issue — in which case, solely relying upon concepts like “violent” and “law-abiding” may be misplaced. As Judge Krause already articulated, interpreting the “like Range” test to mean “law-abiding” or nonviolent is “confounding” and “unworkable.”70 For one, considering a convicted person to be law-abiding is indeed counterintuitive.71 Judge Krause also underscored the difficulty in classifying what a violent crime is.72 Judge Ambro’s “threat to society” framework73 is similarly faulty because such a standard is seemingly arbitrary. For example, are “thieves,” as Judge Ambro posited,74 really a threat to society? Is a shoplifter? If so, Mr. Range, who was convicted of fraud, could be a thief. In fact, under Judge Ambro’s formulation, most white-collar offenders75 would be barred from firearm possession. However, there is no history before the 1960s that supports disenfranchising those who are “nonviolent.”76 In contrast, focusing on dangerousness, rather than on the overinclusive and indeterminate concepts of “violence” and “law-abiding” to disenfranchise those who are threats to society, aligns more closely with the history of firearm regulations. Moreover, defining a violent offense is also a “political act” that is laden with racism and classism.77 “Dangerousness” arguably can be determined through more standardized metrics.

By framing the history-and-tradition test as an inquiry into “dangerousness,” courts would not have to rely only on subjective78 determinations. Furthermore, courts would not have to rely on an individual’s criminal record, which would be a welcome departure since a violent con­viction is not a reliable predictor of future dangerousness.79 Data reveal that individuals who were released from state prison for drug offenses were more likely to be rearrested for a violent offense than were individuals released for homicide or sexual assault.80 The evidence shows that “people convicted of violent and sexual offenses are actually among the least likely to be rearrested.”81 A person who was convicted for a violent offense is not inherently “dangerous” once released back into society.82 Thus, a conviction is not a reliable predictor of future dangerousness.

Rather, there is a body of research that reveals what factors are and are not accurate predictors of future “dangerousness.”83 Data-informed determinations of “dangerousness” can serve as guidelines for judges when ascertaining whether a specific individual with a criminal conviction or a class of individuals with the same criminal conviction has Second Amendment rights. Although far from perfect,84 risk assessment tools can be used to provide a more objective (i.e., data-driven and consistent) evaluation of who may be dangerous.85 Demographic factors like age, for example, have historically been reliable predictors of future violent convictions.86 Courts, however, must be cognizant that risk assessment tools have been imbued with systemic racism.87

These factors can also help distinguish why certain convicted offenders, such as domestic abusers, maybe should be treated differently. For example, there is some evidence that ties firearm possession and a history of domestic violence to future dangerousness.88 Thus, notions of “dangerousness” can ease concerns held by those like Judges Krause and Shwartz, who worried that under the “like Range” test all felon-in-possession laws are essentially unlawful. Though flawed, data-informed notions of dangerousness can guide courts in determining which individuals with criminal records still have Second Amendment rights.

While the holding of Range comports with Bruen’s history-and-tradition test, the “like Range” standard provides little guidance for courts on how to analogize historical laws to § 922(g)(1).89 Until the Supreme Court clarifies the extent to which felon-in-possession laws are lawful, or overturns the Bruen history-and-tradition test, courts can and should evaluate modern felon-in-possession laws through the framework of dangerousness. But even when considering “dangerousness” as part of a Bruen history-and-tradition analysis, courts should be careful to remain critical, ensuring that such assessments do not reflect race or class biases. If courts adopt and vigilantly apply a dangerousness framework, many individuals with criminal convictions can have their Second Amendment rights rightfully restored under Bruen. source

Range v. AG and the Shifting Unconstitutionality of Gun Regulation in the US

On June 6, 2023, an en banc panel of the United States Court of Appeals for the Third Circuit ruled that 18 U.S.C. §922(g)(1), the “felon in possession of a firearm” statute, is unconstitutional as applied to one individual, Bryan Range. While the decision purports to be “a narrow one[,]” the rationale that underpins the decision calls into question whether statutes prohibiting those convicted of crimes punishable by more than one year in prison continue to pass constitutional muster. This article summarizes the series of events and decisions that led to Range, explains why the Range decision has important and broad implications on society, and predicts where courts may ultimately draw the line in the burgeoning struggle between Second Amendment rights and firearm regulation.

As to the case at hand, Range’s offense was about as innocuous as a crime that triggers the felon in possession statute can be. In 1995, Range, who at the time earned between $9.00 and $9.50 per hour while raising three children, underreported his income to qualify for food stamps. Range received the food stamps and when his false underreporting was discovered, had been improperly enriched by $2,458. Range served three years’ probation without incident.

While Range did not spend any time in prison, the crime of making false statements in order to obtain food stamps could have been punishable for up to five years imprisonment under the relevant Pennsylvania statute. Therefore, pursuant to§922(g)(1), which strips felons of their right to possess firearms  if they face more than one year in prison (or in certain circumstances, those convicted of a state misdemeanor with a potential sentence of more than two years), Range was forever ineligible to own a gun. Range purports to have learned about this restriction for the first time when he attempted to purchase a deer-hunting rifle in 1998.

Prior to the US Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, and generally speaking, for the 61 years since the current version of §922(g) has been codified, an analysis of Range’s case would have required some discussion of the means-ends scrutiny of the law at issue. That is to say in the basest terms, whether the challenged firearm law struck an appropriate balance between the Second Amendment right of the felon versus the need for public safety. Since the US Supreme Court’s decision in United States v. Heller, the Third Circuit Court of Appeals performed this analysis using what it called a “multifactored seriousness inquiry.” Under that test, the government probably could not strip an individual of his or her right to possess a firearm for jaywalking but could (and obviously did), strip people of their Second Amendment rights for things like making false statements to the government.

Both parties in Range conceded that the seriousness inquiry is kaput. Instead, and as set forth in Bruen, “the government may not simply posit that the [firearms] regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Stated differently, whether a firearm restriction comports with the Second Amendment is no longer dependent on whether the law makes good policy sense or promotes an important need but rather whether a comparator to the regulation can be found in this Nation’s historical firearm laws.

To perform this analysis, the Court held that lower courts must determine whether the firearm restriction is consistent with this Nation’s history and tradition by reasoning through analogy, which the Court notes is a “commonplace task for any lawyer or judge.” To provide further guidance, the Court stated that the historical analysis requires determining whether the historical regulation and the present-day regulation are “relevantly similar,” adding, “a green truck and a green hat are relevantly similar if one’s metric is ‘things that are green.’  They are not relevantly similar if the applicable metric is ‘things you can wear.’”

Notably, Bruen involved a challenge to a New York State statute that required an individual to show a “special need for self-protection distinguishable from that of the general community” in order to obtain a license to carry a handgun in public. While holding the New York statute unconstitutional, the Court provided no real guidance as to how this analysis would differ – if at all – when considering the §922(g) felon in possession statutes. To say this caused issues in the lower courts would be an understatement.

For instance, in U.S. v. Bullock, the United States District Court for the Southern District of Mississippi punched up at the Supreme Court, noting, “a serious disconnect between the legal and historical communities,” and stating “[t]his Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians. We lack both the methodological and substantive knowledge that historians possess.” Likewise, in U.S. v. Holden, the Northern District of Indiana thought that Bruen left him no choice but to invalidate a portion of §922 unconstitutional, while noting “an earnest hope that its author has misunderstood [Bruen].” Even in the case of Bryan Range, a three-judge panel of the Third Circuit unanimously held that dispossessing him of a firearm is constitutional because while “modern-day regulation is not a dead ringer for historical precursors[,] . . . [it] may be analogous enough to pass constitutional muster,” before being overruled 11-4 by an en banc panel.

This brings us to the importance of Range. While the decision purports to do nothing more than to allow Bryan Range, a Pennsylvanian who served a probation sentence in the 1990s for lying to qualify for food stamps, to obtain a firearm, the implications of that decision are enormous. As stated by Judge Schwartz in dissent, “[t]oday, the Majority of our Court has decided that an individual convicted of fraud cannot be barred from possessing a firearm. While my colleagues state that their opinion is narrow, the analytical framework they have applied to reach their conclusion renders most, if not all, felon bans unconstitutional.”

The reason for this is in the details. The majority opinion held that “the Government did not carry its burden to provide a historical analogue to permanently disarm someone like Range, whether grounded in dangerousness or not.” Given that Bruen requires the government to point to a historical analogue to uphold any firearm restriction, the natural (and still open question) is whether a sufficient historical analogue exists for any crime requiring dispossession under §922(g). A close reading of the case would seem to suggest that no historical analogue exists for at least non-violent offenses, but exactly where this line may be drawn has yet to be decided.

According to the United States Sentencing Commission, 7,454 people were convicted of §922(g) offenses in 2021, and 96.9% of those convictions resulted in custodial sentences, many of which were lengthy terms of imprisonment. A great number of the approximately 20,000 – 30,000 people currently serving time in federal prison for §922(g) violations will surely file a writ of habeas corpus to challenge whether their crime of conviction is constitutional. If the answer to that question is no, the likely result is that those people will be released or (in the event of individuals who were convicted of multiple crimes at the same trial, including a §922(g) offense), will receive a new trial. The same is true of individuals serving in state prisons for violations of state analogues to §922(g).

Further, the decision will affect people like Range himself, whose sentences are behind them, but they are nonetheless prohibited from owning or possessing a firearm. While the number of individuals currently serving time for a §922(g) violation is in the tens of thousands, the number of people who have been stripped of their right to possess a firearm as a result of a criminal conviction (or in some instance because of a misdemeanor domestic violence conviction), could reach the low millions. Regardless of one’s personal beliefs on gun ownership, the potential impact of arming a million or more Americans is not negligible.

Ultimately, the Supreme Court will have to decide where the line between constitutional and unconstitutional lies. Justice Kavanaugh, joined by Chief Justice Roberts, seemed to anticipate this issue in their Bruen concurrence when they noted that felony-dispossession is “presumptively lawful.” Therefore, an escape hatch may exist for the Court to outright distinguish Bruen from felony dispossession cases by applying a different analysis. Still another option would be a clear rule that §922(g) is unconstitutional when applied to non-violent offenders, which would likely require finding some historical analogue to support the proposition that a certain indicia of dangerousness warrants dispossession.

Defining the bounds of constitutionality under the current test is no easy task.  As when comparing green hats and green trucks, whether a historical regulation provides a relevant analogue to a present-day law will depend on the specifics of the comparison at hand. In the instance of §922(g), the Range majority decision references crimes as diverse as using profane language on the radio, returning out-of-state bottles or cans to a Michigan recycling center, and library theft of more than $150. It is a difficult to imagine the same historical proxy can be used to define the bounds of those crimes and the innumerable other acts that modern society criminalizes.

Range and Bruen make clear that policy has no place in Second Amendment jurisprudence and that history reigns supreme. While the implication of this line of cases has yet to be fully realized, many longstanding gun laws clearly rest on shaky constitutional ground, particularly those with no clear historical comparator. As we wait for the Supreme Court to clarify the nuances of the Bruen test as applied to a wider-range of gun laws, one thing is clear: legislators looking to regulate guns in a way that withstands constitutional scrutiny would be wise to consult The Pennsylvania Gazette or Poor Richard’s Almanack and not the current headlines.

David Rodkey is the former Managing Editor of JURIST and an Associate Attorney at the Philadelphia-based law firm Dilworth Paxson LLP. His practice areas are wide-ranging and include general commercial law, constitutional law, white-collar defense, and post-conviction relief. He was part of a two-person team that successfully obtained a compassionate release in United States v. Chi Fai Wong, which is believed to be the first case in US history where a federal court granted compassionate release to an individual serving life in prison. 

source

Other Important 2nd Amendment Cases

felons can posses gun cases

Federal Judge Tosses Gun Possession Case Against Convicted Felon United States v. Bullock

Third Circuit Holds that a Nonviolent felon May Not Be Stripped of Second Amendment Rights.

Convicted felons have Second Amendment right to own guns, Louisville judge rules

Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights

RANGE v. ATTORNEY GENERAL UNITED STATES (2022)

United States Court of Appeals, Third Circuit.

Bryan David RANGE, Appellant v. ATTORNEY GENERAL UNITED STATES of America; Regina Lombardo, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives

No. 21-2835

Decided: November 16, 2022

Before: SHWARTZ, KRAUSE and ROTH, Circuit Judges

Michael P. Gottlieb (ARGUED), Vangrossi & Recchuiti, 319 Swede Street, Norristown, PA 19401, Counsel for Appellant Kevin B. Soter (ARGUED), Mark B. Stern, United States Department of Justice, Civil Division, Room 7222, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Counsel for Appellee Joseph G.S. Greenlee (ARGUED), Firearms Policy Coalition Action, 5550 Painted Mirage Road, Suite 320, Las Vegas, NV 89149, Counsel for Amicus Appellant

OPINION

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[ ] on the possession of firearms by felons.” Id. at 626, 128 S.Ct. 2783.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a). He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, ––– U.S. ––––, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). We disagree. Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition. Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government.

I. Factual and Procedural Background

In 1995, Range pleaded guilty to making false statements about his income to obtain $2,458 of food stamp assistance in violation of 62 Pa. Cons. Stat. § 481(a), a conviction that was then classified as a misdemeanor punishable by up to five years’ imprisonment.1 Range was sentenced to three years’ probation, $2,458 in restitution, $288.29 in costs, and a $100 fine. He has paid the fine, costs, and restitution.

Congress has deemed it “unlawful for any person ․ who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year”—the definition of a felony under both federal law, 18 U.S.C. § 3156(a)(3), and traditional legal principles, see Felony, Black’s Law Dictionary (11th ed. 2019)—to “possess in or affecting commerce, any firearm or ammunition.”2 18 U.S.C. § 922(g)(1). In deference to state legislatures, Congress also raised the bar for “any State offense classified by the laws of the State as a misdemeanor” by excluding from the prohibition those misdemeanors “punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B).3 Put differently, it treated state misdemeanors punishable by more than two years’ imprisonment as felony-equivalent offenses. As the maximum punishment for Range’s offense was five years’ imprisonment, his conviction subjected him to § 922(g)(1).

Three years after his conviction, Range attempted to purchase a firearm but was “rejected by the instant background check system.” App. 46, 68, 203. Range’s wife subsequently bought him a deer-hunting rifle, and when that rifle was destroyed in a house fire, she bought him another.4 Sometime in 2010 or 2011, believing his first rejection was an error, Range again attempted to purchase a firearm. Again, he was rejected by the instant background check system. Several years after this rejection, Range “researched the matter” and learned that he was barred from purchasing and possessing firearms because of his welfare fraud conviction. App. 46, 205–06. Having “realize[d] that [he] was not allowed to possess a firearm,” he sold his deer hunting rifle to a firearms dealer. App. 201.

Range has hunted regularly for at least twenty years, most frequently using a bow or a muzzleloader. During the years that he possessed a deer hunting rifle, he routinely hunted with it on the first morning and the two Saturdays of each two-week season. He maintained a Pennsylvania hunting license at the time he filed his lawsuit and averred in deposition testimony that if not barred by § 922(g)(1), he would “for sure” purchase another hunting rifle and “maybe a shotgun” for self-defense in his own home. App. 46, 184, 197, 198, 200–02, 210.

In 2020, Range filed suit in the Eastern District of Pennsylvania, seeking a declaratory judgment that § 922(g) violates the Second Amendment as applied to him, as well as an injunction to bar its enforcement against him. Both Range and the Government moved for summary judgment. The District Court applied the two-step test that this Court adopted in United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) and amplified in Binderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016) (en banc), which asks whether (1) a regulation burdens conduct protected by the right to keep and bear arms, and (2) if so, whether that regulation survives means-end scrutiny, id. at 346 (quoting Marzzarella, 614 F.3d at 89). Applying Binderup, the District Court concluded that Range’s challenge failed at step one because the Second Amendment does not protect “unvirtuous citizens,” including any person convicted of “a serious offense,” id. at 349, and Range’s offense qualified as serious under the factors we had identified. The District Court therefore granted the Government’s motion for summary judgment, and this appeal followed.

While Range’s appeal was pending, the Supreme Court issued Bruen, rejecting the means-end component of the second step of Marzzarella and Binderup and holding the first step was “broadly consistent with Heller” to the extent it focused on “the Second Amendment’s text, as informed by history.” 142 S. Ct. at 2127. The Government filed a letter pursuant to Federal Rule of Appellate Procedure 28(j), contending that Range’s Second Amendment challenge still must fail under Bruen’s framework. Range responded with his own Rule 28(j) letter, underscoring Bruen’s emphasis on history and asserting “there is no history in 1791 that given the facts of Mr. Range’s case that he would be disarmed and prevented from owning and possessing firearms.” Dkt. No. 41 at 2. The panel ordered supplemental briefing on (1) Bruen’s impact, if any, on the multifactor analysis developed in Binderup and Holloway v. Attorney General, 948 F.3d 164 (3d Cir. 2020); (2) whether Bruen shifts the burden to the Government to prove that the challenger is outside the scope of those entitled to Second Amendment rights, and whether the Government has met that burden here; and (3) whether we should remand this matter to the District Court.5

In supplemental briefing on the effect of Bruen, Range argues that the history and tradition of the Second Amendment demonstrates that only individuals with a dangerous propensity for violence, as opposed to peaceful citizens like him, can be disarmed. Amici filed a brief on Range’s behalf, echoing his contention that “[t]he historical tradition of disarming dangerous persons provides no justification for disarming Range.” Amicus Br. 26. The Government urges us to reject a narrow focus on dangerousness, reaffirm our holdings in Binderup and subsequent cases that the Second Amendment extends only to people considered “virtuous citizens,” and therefore hold that there is a longstanding tradition of disarming citizens who are not law-abiding.

With the benefit of Bruen, cases applying Bruen,6 and the parties’ briefing and arguments, we turn to the merits of Range’s appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District Court’s order granting summary judgment de novo, see Mylan Inc. v. SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013), viewing the facts and making all reasonable inferences in the non-movant’s favor, see Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266–67 (3d Cir. 2005). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the non-moving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”7 See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. Bruen’s Doctrinal Impact

Applying Bruen’s historical focus, we conclude § 922(g)(1) comports with legislatures’ longstanding authority and discretion to disarm citizens unwilling to obey the government and its laws, whether or not they had demonstrated a propensity for violence. We proceed in two parts. We begin by explaining how the Supreme Court replaced our two-step framework with a distinct test focused on the text and history of the Second Amendment. Next, we examine disarmament laws from the seventeenth to the nineteenth centuries to determine whether Range’s disarmament fits within the nation’s history and tradition of the right to keep and bear arms.

A. Post-Bruen Standard for Second Amendment Challenges

The Supreme Court’s decision in Bruen modifies our prior test for analyzing Second Amendment challenges to 18 U.S.C. § 922(g)(1).

Before Bruen, we analyzed Second Amendment challenges under a two-part test that was eventually adopted by most of our sister Circuits. Marzzarella, 614 F.3d at 89; see also Binderup, 836 F.3d at 346 (“Nearly every court of appeals has cited Marzzarella favorably.”). At the first step, we considered whether the challenged law burdened conduct within the scope of the Second Amendment. Marzzarella, 614 F.3d at 89. In examining this subject, we observed that “the right to bear arms was tied to the concept of a virtuous citizenry and that accordingly, the government could disarm ‘unvirtuous citizens[,]” including “any person who has committed a serious criminal offense, violent or nonviolent.”8 Binderup, 836 F.3d at 348 (quoting United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010)); see also Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783. If the first step was met, we proceeded to the second step and assessed whether the regulation withstood means-end scrutiny. Marzzarella, 614 F.3d at 89.

Bruen, however, abrogated Binderup’s two-step inquiry and directed the federal courts, in a single step, to look to the Second Amendment’s text and “the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2126, 2130; see also Frein v. Pa. State Police, 47 F.4th 247, 254, 256 (3d Cir. 2022) (recognizing Bruen abrogated our two-step framework).9 “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Bruen, 142 S. Ct. at 2126 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)). Additionally, because “the Constitution presumptively protects [individual] conduct” covered by “the Second Amendment’s plain text,” the Court explained, the government has the burden of justifying its regulation of that conduct by demonstrating “not simply [ ] that the regulation promotes an important interest,” but that “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id.10

Under Bruen, the question is whether the regulation at issue is “relevantly similar” to regulations at the Founding. Id. at 2132 (quoting Cass R. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993)). To make that determination, we must employ “analogical reasoning” and compare “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id. at 2132–33. Specifically, the government must “identify a well-established and representative historical analogue, not a historical twin.” Id. at 2133. “So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Id.

Bruen does not preclude our review of Range’s appeal on the record before us. Bruen did not address the substantive issues that we must now determine. Unlike the open-carry licensing regime in Bruen that created a conduct-based constraint on public carry, § 922(g)(1) imposes a status-based restriction—namely, a possession ban on those convicted of crimes punishable by more than one year in prison or by more than two years in prison in the case of state law misdemeanors. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1443 (2009) (distinguishing between “what,” “who,” “where,” “how,” and “when” firearm restrictions). Despite that difference, Bruen still requires us to assess whether the Government has demonstrated through relevant historical analogues that § 922(g)(1) “is consistent with this Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2134. As set forth below, the historical record shows that legislatures had broad discretion to prohibit those who did not respect the law from having firearms. Our assessment confirms that individuals like Range, who commit felonies and felony-equivalent offenses, are not part of “the people” whom the Second Amendment protects. Therefore, § 922(g)(1) as applied to Range is constitutional under the Second Amendment.

B. Scope of Second Amendment Rights in Historical Perspective

As instructed by Bruen, we begin our analysis with the text of the Second Amendment, which protects “the right of the people to keep and bear Arms,” U.S. Const. amend. II, and consider if Range, as a felon equivalent under 18 U.S.C. § 921(a)(20)(B), is among those protected by the Amendment. Cf. Binderup, 836 F.3d at 357 (Hardiman, J., concurring in part) (“[T]he Founders understood that not everyone possessed Second Amendment rights. These appeals require us to decide who count among ‘the people’ entitled to keep and bear arms.”); United States v. Quiroz, No. 22-CR-00104, ––– F.Supp.3d ––––, ––––, 2022 WL 4352482, at *10 (W.D. Tex. Sept. 19, 2022) (explaining “this Nation does have a historical tradition of excluding specific groups from the rights and powers reserved to ‘the people’ ”).

The language of Bruen provides three insights into pertinent limits on “the people” whom the Second Amendment protects. First, the majority characterized the holders of Second Amendment rights as “law-abiding” citizens no fewer than fourteen times. Bruen, 142 S. Ct. at 2122, 2125, 2131, 2133–34, 2135 n.8, 2138 & n.9, 2150, 2156; accord Heller, 554 U.S. at 625, 635, 128 S.Ct. 2783. These included its holding that the New York statute “violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms,” Bruen, 142 S. Ct. at 2156, its explanation that the Second Amendment “ ‘elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense,” id. at 2131 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783), and its instruction to identify historical analogues to modern firearm regulations by assessing “how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” id. at 2133.11 The Court also quoted nineteenth-century sources extending the right to keep and bear arms to “all loyal and well-disposed inhabitants,” and disarming any person who made “an improper or dangerous use of weapons.” Id. at 2152 (emphasis added) (quoting Cong. Globe, 39th Cong., 1st Sess., at 908–909; and Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865).

Second, the Court clarified that, despite the infirmity of New York’s discretionary may-issue permitting regime, “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes ․ [,] which often require applicants to undergo a [criminal] background check” and “are designed to ensure only that those bearing arms in the jurisdiction are, in fact ‘law-abiding, responsible citizens.’ ” Id. at 2138 n.9 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). These criminal background checks that the Court indicated are constitutional are not limited to violent offenses; shall-issue statutes typically disqualify any person “prohibited from possessing a firearm under federal law.” Wash. Rev. Code Ann. § 9.41.070(1)(a) (2021); accord Colo. Rev. Stat. Ann. § 18-12-203(1)(c) (2021); Kan. Stat. Ann. § 75-7c04(a)(2) (2021); Miss. Code. Ann. § 45-9-101(2)(d) (2022); N.H. Rev. Stat. Ann. § 159:6(I)(a) (2021); N.C. Gen. Stat. Ann. § 14-415.12(b)(1) (2022).

Third, neither Bruen nor either of the Court’s earlier explanations of the individual right to keep and bear arms casts doubt on § 922(g)(1). To the contrary, Justice Scalia’s majority opinion in Heller twice described “prohibitions on the possession of firearms by felons” as both “longstanding” and “presumptively lawful[.]” 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783.12 Writing for the McDonald plurality, Justice Alito “repeat[ed] those assurances.” 561 U.S. at 786, 130 S.Ct. 3020. In Bruen, Justice Thomas’s majority opinion acknowledged that the right to keep and bear arms is “subject to certain reasonable, well-defined restrictions,” Bruen, 142 S. Ct. at 2156 (citing Heller, 554 U.S. at 581, 128 S.Ct. 2783), and the concurrences by Justices Alito and Kavanaugh, the latter joined by the Chief Justice, echoed the Court’s assertions in Heller and McDonald. Id. at 2162 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 626–27 & n.26, 128 S.Ct. 2783); id. at 2157 (Alito, J., concurring); see also United States v. Coombes, No. 22-CR-00189, ––– F.Supp.3d ––––, ––––, 2022 WL 4367056, at *9 (N.D. Okla. Sept. 21, 2022) (“[T]he Bruen majority did not abrogate its prior statements in Heller and McDonald.”).

Thus, although the Supreme Court has not provided an “exhaustive historical analysis ․ of the full scope of the Second Amendment,” Bruen, 142 S. Ct. at 2128; Heller, 554 U.S. at 626, 128 S.Ct. 2783, Heller, McDonald, and Bruen provide a window into the Court’s view of the status-based disarmament of criminals: that this group falls outside “the people”—whether or not their crimes involved violence—and that § 922(g)(1) is well-rooted in the nation’s history and tradition of firearm regulation.13

Our Court’s own review of the historical record supports the Supreme Court’s understanding: Those whose criminal records evince disrespect for the law are outside the community of law-abiding citizens entitled to keep and bear arms.14 Our previous decisions, endorsed by several sister courts of appeals, have expressed a related view in terms of the theory of “civic virtue.”15 See, e.g., Folajtar v. Att’y Gen., 980 F.3d 897, 902 (3d Cir. 2020); Binderup, 836 F.3d at 348; United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir. 2012); United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010). Moreover, as detailed below, the pertinent historical periods were replete with laws “relevantly similar” to the modern prohibition on felon firearm possession because they categorically disqualified people from possessing firearms based on a judgment that certain individuals were untrustworthy parties to the nation’s social compact.16

The Bruen Court warned that “not all history is created equal” and catalogued the sources that are most probative of the right’s original meaning. 142 S. Ct. at 2136. Emphasizing that the right codified in the Second Amendment was a “pre-existing right,” the Court saw particular relevance in “English history dating from the late 1600s, along with American colonial views leading up to the founding.” Id. at 2127 (citing Heller, 554 U.S. at 595, 128 S.Ct. 2783).17 The Court made this same point in Heller. 554 U.S. at 592, 128 S.Ct. 2783. The Bruen Court also found highly relevant post-ratification practices from the late eighteenth and early nineteenth centuries. See Bruen, 142 S. Ct. at 2136. In contrast, although the Court considered history from Reconstruction to the late nineteenth century, it underscored that it did so merely to confirm its conclusions and that evidence from this period is less informative. See id. at 2137.

1. England’s Restoration and Glorious Revolution

We begin with the late seventeenth century, when the English government repeatedly disarmed individuals whose conduct indicated a disrespect for the sovereign and its dictates. Also, the advent of the English Bill of Rights during this period confirmed Parliament’s authority to delineate which members of the community could “have arms ․ by Law.” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689).

In the contentious period following the English Civil War, the restored Stuart monarchs disarmed nonconformist (i.e., non-Anglican) Protestants. See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 45 (1994) (describing how Charles II “totally disarmed ․ religious dissenters”); Amicus Br. 6 (“Leading up to the Glorious Revolution of 1688, ․ nonAnglican [sic] Protestants were often disarmed.”). The reason the Crown seized nonconformists’ weapons, according to Amici, is that non-Anglican Protestants were dangerous. But the notion that every disarmed nonconformist was dangerous defies common sense. Moreover, Amici’s resort to dangerousness as the sole explanation for this measure ignores Anglicans’ well-documented concern that nonconformists would not obey the King and abide by the law.

By definition, nonconformists refused to participate in the Church of England, an institution headed by the King as a matter of English law. See Church of England, BBC (June 30, 2011), https://www.bbc.co.uk/religion/religions/christianity/cofe/cofe_1.shtml (describing “the Act of Supremacy” enacted during the reign of Henry VIII). Indeed, many refused to take mandatory oaths recognizing the King’s sovereign authority over matters of religion. See Frederick B. Jonassen, “So Help Me?”: Religious Expression and Artifacts in the Oath of Office and the Courtroom Oath, 12 Cardozo Pub. L., Pol’y & Ethics J. 303, 322 (2014) (describing Charles II’s reinstation of the Oath of Supremacy); Caroline Robbins, Selden’s Pills: State Oaths in England, 1558–1714, 35 Huntington Lib. Q. 303, 314–15 (1972) (discussing nonconformists’ refusal to take such oaths). Anglicans, in turn, accused nonconformists of believing that their faith exempted them from obedience to the law. See Christopher Haigh, ‘Theological Wars’: ‘Socinians’ v. ‘Antinomians’ in Restoration England, 67 J. Ecclesiastical Hist. 325, 326, 334 (2016). In short, the historical record suggests nonconformists as a group were disarmed because their religious status was viewed as a proxy for disobedience to the Crown’s sovereign authority and disrespect for the law, placing them outside the civic community of law-abiding citizens.

Even when Protestants’ right to keep arms was restored, it was expressly made subject to the discretion of Parliament. One year after the Glorious Revolution of 1688 replaced the Catholic King James II with William of Orange and Mary, James’s Protestant daughter, see Alice Ristroph, The Second Amendment in a Carceral State, 116 Nw. U. L. Rev. 203, 228 (2021), Parliament enacted the English Bill of Rights, which declared: “Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law,” 1 W. & M., Sess. 2, ch. 2, § 7 (Eng. 1689) (emphasis added). Thus, this declaration, which the Supreme Court has described as the “predecessor to our Second Amendment,” Bruen, 142 S. Ct. at 2141 (quoting Heller, 554 U.S. at 593, 128 S.Ct. 2783), reveals the “historical understanding,” id. at 2131, that the legislature—Parliament—had the power and discretion to determine who was sufficiently loyal and law-abiding to exercise the right to bear arms. Cf. Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 47–48 (2000) (explaining how the English Bill of Rights preserved Parliament’s authority to limit who could bear arms).

In 1689, Parliament enacted a status-based restriction forbidding Catholics who refused to take an oath renouncing their faith from owning firearms, except as necessary for self-defense. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688); see Malcolm, supra, at 123. Proponents of the view that disarmament depended exclusively on dangerousness have argued that Catholics categorically posed a threat of violence at this time. See Kanter v. Barr, 919 F.3d 437, 457 (7th Cir. 2019) (Barrett, J., dissenting); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 723 (2009). Again, however, this interpretation not only rests on the implausible premise that all Catholics were violent, but also ignores the more likely historical reason for disarming this entire group: their perceived disrespect for and disobedience to the Crown and English law. That is manifest in the statute’s oath requirement. When individuals swore that they rejected the tenets of Catholicism, their right to own weapons was restored. An Act for the Better Securing the Government by Disarming Papists and Reputed Papists, 1 W. & M., Sess. 1, ch. 15 (Eng. 1688).

Disavowal of religious tenets hardly demonstrated that the swearing individual no longer had the capacity to commit violence; rather, the oath was a gesture of allegiance to the English government and an assurance of conformity to its laws. Likewise, contemporaneous arguments against tolerating Catholicism contended that Catholics’ faith subverted the rule of law by placing the dictates of a “foreign power,” i.e., the Pope, before English legal commands. See Diego Lucci, John Locke on Atheism, Catholicism, Antinomianism, and Deism, 20 Etica & Politica/Ethics & Pol. 201, 228–29 (2018). The disarmament of Catholics in 1689 thus provides another example of the seizure of weapons from individuals whose status demonstrated, not a proclivity for violence, but rather a disregard for the legally binding decrees of the sovereign.

2. Colonial America

The earliest firearm legislation in colonial America prohibited Native Americans, Black people, and indentured servants from owning firearms.18 See Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607–1794, 16 Law & Hist. Rev. 567, 578–79 (1998). Amici contend that these restrictions affected individuals outside the political community and so cannot serve as analogues to contemporary restraints on citizens like Range. Amicus Br. 30–31; see also Carpio-Leon, 701 F.3d at 978 n.1 (concluding such individuals may not have been part of “the people” at the Founding). But even accepting Amici’s argument, colonial history furnishes numerous examples in which full-fledged members of the political community as it then existed—i.e., free, Christian, white men—were disarmed due to conduct evincing inadequate faithfulness to the sovereign and its laws.

During the late 1630s, for example, an outspoken preacher in Boston named Anne Hutchinson challenged the Massachusetts Bay government’s authority over spiritual matters and instead advocated personal relationships with the divine. See Edmund S. Morgan, The Case Against Anne Hutchinson, 10 New Eng. Q. 635, 637–38, 644 (1937). Governor John Winthrop accused Hutchinson and her followers of being Antinomians, those who viewed their salvation as exempting them from the law, and banished her. Id. at 648; Ann Fairfax Withington & Jack Schwartz, The Political Trial of Anne Hutchinson, 51 New Eng. Q. 226, 226 (1978). The colonial government also disarmed at least fifty-eight of Hutchinson’s supporters, not because those supporters had demonstrated a propensity for violence, but “to embarrass the offenders,” as they were forced to personally deliver their arms to the authorities in an act of public submission. James F. Cooper, Jr., Anne Hutchinson and the “Lay Rebellion” Against the Clergy, 61 New Eng. Q. 381, 391 (1988). Disarming Hutchinson’s supporters, in other words, served to shame colonists whose disavowal of the rule of law placed them outside the Puritan’s civic community and obedience to the commands of the government. Cf. John Felipe Acevedo, Dignity Takings in the Criminal Law of Seventeenth-Century England and the Massachusetts Bay Colony, 92 Chi.-Kent L. Rev. 743, 761 (2017) (describing other shaming punishments used at the time, including scarlet letters).

Likewise, Catholics in the American colonies (as in Britain) were subject to disarmament without demonstrating a proclivity for violence. It is telling that, notwithstanding Maryland’s genesis as a haven for persecuted English Catholics, see Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1424 (1990), Maryland—as well as Virginia and Pennsylvania—confiscated firearms from their Catholic residents during the Seven Years’ War, see Bellesiles, supra, at 574; Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 Wyo. L. Rev. 249, 263 (2020). That decision was not in response to violence; to the contrary, Catholics had remained peaceable even when the colony’s Anglican Protestants took control of its government and required Catholics to take oaths recognizing the legal authority of the Crown, rather than the Pope, over matters of religion. See Michael Graham, S.J., Popish Plots: Protestant Fears in Early Colonial Maryland, 1676–1689, 79 Cath. Hist. Rev. 197, 197 (1993) (“[L]ittle sustained opposition to [the Anglican leadership] crystallized within the colony. What the Protestant Associators had done ․ was widely accepted.”); Denis M. Moran, Anti-Catholicism in Early Maryland Politics: The Protestant Revolution, 61 Am. Cath. Hist. Soc’y 213, 235 (1950) (explaining how the oaths “asserted the king’s supremacy in spiritual as well as in temporal matters”). In sum, Protestants in the colonies—as in England—disarmed Catholics not because they uniformly posed a threat of armed resistance, but rather because the Protestant majorities in those colonies viewed Catholics as defying sovereign authority and communal values.

3. Revolutionary War

Revolutionary-era history furnishes other examples of legislatures disarming non-violent individuals because their actions evinced an unwillingness to comply with the legal norms of the nascent social compact.19

John Locke—whose views profoundly influenced the American revolutionaries 20 —argued that the replacement of individual judgments of what behavior is transgressive with communal norms is an essential characteristic of the social contract. See John Locke, Two Treatises of Government § 163 (Thomas I. Cook, ed., Hafner Press 1947) (reasoning “there only is political society where every one of the members hath quitted his natural power [to judge transgressions and] resigned it up into the hands of the community”). Members of a social compact, he explained, have a civic obligation to comply with communal judgments regarding proper behavior.21

In the newly proclaimed states, compliance with that civic obligation translated to entitlement to keep and bear arms, with many of the newly independent states enacting statutes that required individuals, as a condition of keeping their arms, to commit to the incipient social compact by swearing fidelity to the revolutionary regime.22 See Robert H. Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 Law & Hist. Rev. 139, 158 (2007).

In Connecticut, for example, as hostilities with Britain worsened, colonists denounced loyalists’ dereliction of their duties to the civic community. The people of Coventry passed a resolution in 1774 stating loyalists were “unworthy of that friendship and esteem which constitutes the bond of social happiness, and ought to be treated with contempt and total neglect.” G.A. Gilbert, The Connecticut Loyalists, 4 Am. Hist. Rev. 273, 280 (1899) (describing this resolution as “a fair sample of most of the others passed at this time”). “Committees of Inspection” publicized the names and addresses of suspected loyalists in local newspapers, describing them as “persons held up to public view as enemies to their country,” id. at 280–81, and in 1775, this stigmatization of individuals suspected of infidelity to the inchoate United States culminated in a statute prohibiting anyone who defamed resolutions of the Continental Congress from keeping arms, voting, or serving as a civil official, see id. at 282.

Pennsylvania likewise disarmed non-violent individuals who were unwilling to abide by the newly sovereign state’s legal norms. The legislature enacted a statute in 1777 requiring all white male inhabitants above the age of eighteen to swear to “be faithful and bear true allegiance to the commonwealth of Pennsylvania as a free and independent state,” Act of June 13, 1777, § 1 (1777), 9 The Statutes at Large of Pennsylvania from 1652–1801 110, 111 (William Stanley Ray ed., 1903), and providing that those who failed to take the oath—without regard to dangerousness or propensity for physical violence—“shall be disarmed” by the local authorities, id. at 112–13, § 3.

This statute is particularly instructive because Pennsylvania’s 1776 state constitution protected the people’s right to bear arms. See Cornell, Don’t Know Much About History, supra, at 670–71; Marshall, supra, at 724. Yet Pennsylvania’s loyalty oath law deprived sizable numbers of pacifists of that right because oath-taking violated the religious convictions of Quakers, Mennonites, Moravians, and other groups. Jim Wedeking, Quaker State: Pennsylvania’s Guide to Reducing the Friction for Religious Outsiders Under the Establishment Clause, 2 N.Y.U. J.L. & Liberty 28, 51 (2006); see also Thomas C. McHugh, Moravian Opposition to the Pennsylvania Test Acts, 1777 to 1789, at 49–50 (Sept. 7, 1965) (M.A. thesis, Lehigh University) (on file with the Leigh Preserve Institutional Repository). So while Amici contend that individuals disarmed under loyalty oath statutes “posed a grave danger and were often violent,” Amicus Br. 12, Pennsylvania’s disarmament of this sizable portion of the state’s populace cannot be explained on that ground. See Heller, 554 U.S. at 590, 128 S.Ct. 2783 (“Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever․”); cf. Folajtar, 980 F.3d at 908 n.11 (explaining “[r]efusing to swear an oath” does not “qualify as dangerous”).

Instead, the Pennsylvania legislature forbade Quakers and other religious minorities from keeping arms because their refusal to swear allegiance demonstrated that they would not submit to communal judgments embodied in law when it conflicted with personal conviction. See Wedeking, supra, at 51–52 (describing how Quakers were “penal[ized] for allegiance to their religious scruples over the new government”). The act, in other words, was “an effort by Pennsylvania’s Constitutionalist party to restrictively define citizenship”—i.e., what eventually became “the people”—“to those capable of displaying the requisite virtue.” Cornell, Don’t Know Much About History, supra, at 671.

Exercising its broad authority to disarm individuals who disrespected the rule of law, Virginia’s General Assembly also passed a loyalty oath statute in 1777. An Act to Oblige the Free Male Inhabitants of this State Above a Certain Age to Give Assurance of Allegiances to the Same, and for Other Purposes ch. III (1777), 9 Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619 281, 281 (William W. Hening ed., 1821). That law disarmed “all free born male inhabitants of this state, above the age of sixteen years, except imported servants during the time of their service” who refused to swear their “allegiance and fidelity” to the state. Id. But these individuals could not have been considered dangerous spies or threats of violence: the statute still required disarmed individuals to attend militia trainings and run drills without weapons, id. at 282—an indignity previously inflicted upon free Black men, Churchill, supra, at 160. Instead, this use of disarmament as a method of public humiliation reveals the statute’s true social function: distinguishing those unwilling to follow the dictates of the new government from law-abiding members of the civic community.

In sum, the “how and why,” Bruen, 142 S. Ct. at 2133, of these oath statutes’ burden on the right to bear arms teaches us two things about the historical understanding of status-based prohibitions. First, in keeping with Locke’s view that compliance with communal judgment is an inextricable feature of political society, these laws “defined membership of the body politic” by disarming individuals whose refusal to take these oaths evinced not necessarily a propensity for violence, but rather a disrespect for the rule of law and the norms of the civic community. Churchill, supra, at 158. Second, legislatures were understood to have the authority and broad discretion to decide when disobedience with the law was sufficiently grave to exclude even a non-violent offender from the people entitled to keep and bear arms. Cf. Dru Stevenson, In Defense of Felon-in-Possession Laws, 43 Cardozo L. Rev. 1573, 1586 (2022) (“[T]he founders thought the legislature should decide which groups pose a threat to the social order or the community.”).

4. Ratification Debates

The ensuing deliberations over whether to ratify the Constitution similarly illustrate the Founding generation’s understanding of legislatures’ power and discretion over disarmament of those not considered law-abiding.

In Pennsylvania, debates between the Federalists and Anti-Federalists “were among the most influential and widely distributed of any essays published during ratification.” Saul Cornell, Commonplace or Anachronism: The Standard Model, the Second Amendment, and the Problem of History in Contemporary Constitutional Theory, 16 Const. Comment. 221, 227 (1999). Those essays included “The Dissent of the Minority,” which was published by the state’s Anti-Federalist delegates, id. at 232–33, and which the Supreme Court has viewed as “highly influential” to the adoption of the Second Amendment, Heller, 554 U.S. at 604, 128 S.Ct. 2783. The amendment proposed by the Dissent of the Minority stated:

[T]he people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.

2 Bernard Schwartz, The Bill of Rights: A Documentary History 665 (1971) (emphasis added).

As the Dissent of the Minority’s proposal makes clear, members of the Founding generation viewed “[c]rimes committed—violent or not—[as] ․ an independent ground for exclusion from the right to keep and bear arms.” Binderup, 836 F.3d at 349 (quotation omitted); see also Folajtar, 980 F.3d at 908–09. Amici insist that the proposal’s crime and danger clauses must be read together as authorizing the disarmament of dangerous criminals only. See Amicus Br. 16; see also Greenlee, supra at 267; Binderup, 836 F.3d at 367 (Hardiman, J., concurring in part). But the Dissent of the Minority’s use of the disjunctive “or” refutes this counterargument: The dissenters distinguished between criminal convictions and dangerousness, and provided that either could support disarmament. See, e.g., United States v. Woods, 571 U.S. 31, 45–46, 134 S.Ct. 557, 187 L.Ed.2d 472 (2013) (explaining the “ordinary use” of “or” “is almost always disjunctive”—i.e., “the words that it connects are to ‘be given separate meanings’ ”) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979)).

The Dissent of the Minority therefore comports with the longstanding tradition in English and American law of disarming even non-violent individuals whose actions demonstrated a disrespect for the rule of law as embodied in the sovereign’s binding norms.

5. Other Non-Violent Offenses

Punishments meted out for a variety of non-violent offenses between the seventeenth and nineteenth centuries provide additional support for legislatures’ authority to disarm even non-violent offenders.

Historically, several non-violent felonies were punishable by death and forfeiture of the perpetrator’s entire estate. See Folajtar, 980 F.3d at 904–05. As the Government observes, those offenses included larceny, repeated forgery, and false pretenses—all of which involve deceit or the wrongful deprivation of another’s property and closely resemble Range’s welfare fraud offense. Appellees’ Supp. Br. 7–8.23 A fortiori, given the draconian punishments that traditionally could be imposed for these types of non-violent felonies, the comparatively lenient consequence of disarmament under 18 U.S.C. § 922(g)(1) is permissible.24

Additionally, legislatures in the American colonies and United States authorized the seizure of firearms from individuals who committed non-violent, misdemeanor hunting offenses.25 In 1652, New Netherlands passed an ordinance that forbid “firing within the jurisdiction of this city [of New Amsterdam] or about the Fort, with any guns at Partridges or other Game that may by chance fly within the city, on pain of forfeiting the Gun ․” 1652 N.Y. Laws 138. A 1745 North Carolina law prohibited nonresidents from hunting deer in “the King’s Wast” and stated that any violator “shall forfeit his gun” to the authorities. Act of Apr. 20, ch. III (1745), 23 Acts of the North Carolina General Assembly 218, 219 (1805). New Jersey enacted a statute “for the preservation of deer, and other game” in 1771 that punished non-residents caught trespassing with a firearm by seizing the individuals’ guns. 1771 N.J. Laws 19–20.

State legislatures continued to enact such laws after the Revolution. To protect the sheep of Naushon Island, Massachusetts passed a statute requiring armed trespassers on the island to forfeit their guns.26 An Act for the Protection and Security of the Sheep and Other Stock on Tarpaulin Cove Island, Otherwise Called Naushon Island, and on Nennemessett Island, and Several Small Islands Contiguous, Situated in the County of Dukes County § 2 (1790), 1 Private and Special Statutes of the Commonwealth of Massachusetts 258, 259 (Manning & Loring ed., 1805). Virginia and Maryland punished individuals who hunted wild fowl on rivers at night by seizing their guns. 1832 Va. Acts 70; 1838 Md. Laws 291–92. And Delaware law required non-residents who hunted wild geese on the state’s waterways to forfeit their guns, even though the statute specified that this hunting offense was a misdemeanor. 12 Del. Laws 365 (1863).

As these centuries of hunting statutes show, legislatures repeatedly exercised their authority to decide when non-violent offenses were sufficiently grave transgressions to justify limiting violators’ ability to keep and bear arms.27

* * * * *

We draw three critical lessons from the historical record examined above. First, legislatures traditionally used status-based restrictions to disqualify categories of persons from possessing firearms. Second, they did so not merely based on an individual’s demonstrated propensity for violence, but rather to address the threat purportedly posed by entire categories of people to an orderly society and compliance with its legal norms. Third, legislatures had, as a matter of separated powers, both authority and broad discretion to determine when individuals’ status or conduct evinced such a threat sufficient to warrant disarmament.28

IV. Range’s Claims

Having identified the appropriate test and reviewed the historical evidence in this area, we now turn to Range’s claims.

Range committed an offense that Pennsylvania has classified as a misdemeanor punishable by more than two years’ imprisonment, 62 Pa. Cons. Stat. § 481(a), and Congress has concluded is sufficiently serious to exclude Range from the body of law-abiding, responsible citizens entitled to keep and bear arms, see 18 U.S.C. §§ 921(a)(20)(B), 922(g)(1).29 That determination fits comfortably within the longstanding tradition of legislation disarming individuals whose actions evince a disrespect for the rule of law. Interpreting the text of the Second Amendment in light of the right’s “historical background,” Bruen, 142 S. Ct. at 2127 (quoting Heller, 554 U.S. at 592, 128 S.Ct. 2783), we conclude that Range’s criminal conviction placed him beyond the ambit of “the people” protected by the Second Amendment.

Range asserts that “[t]he Government has failed to meet its burden of proving that the plaintiff’s conviction places him outside the scope of those entitled to Second Amendment rights based on the historical analysis of those who can be disarmed.”30 Appellant’s Supp. Br. 1. Notwithstanding the historical evidence surveyed above, Range contends that his disarmament is inconsistent with the nation’s tradition of firearm regulation “because he is not dangerous.” Opening Br. 28. Echoing positions expressed by some judges, Amici agree, arguing “English and American tradition support firearm prohibitions on dangerous persons” but “[t]here is no tradition of disarming peaceable citizens.” Amicus Br. 2; see Folajtar, 980 F.3d at 912 (Bibas, J., dissenting); Kanter, 919 F.3d at 451 (Barrett, J., dissenting); Binderup, 836 F.3d at 369 (Hardiman, J., concurring in part). Our review of the historical record convinces us otherwise. Non-violent individuals were repeatedly disarmed between the seventeenth and nineteenth centuries because legislatures determined that those individuals lacked respect for the rule of law and thus fell outside the community of law-abiding citizens. That longstanding tradition refutes Range’s constrictive account of Anglo-American history as prohibiting the government from disarming non-violent individuals.

Amici offer a few statutes that purportedly prove legislatures’ inability to disarm non-violent offenders, but these laws confirm our view. Specifically, Amici cite a 1785 Massachusetts law that forbid tax collectors and sheriffs from embezzling tax revenue. Amicus Br. 32 (citing 1785 Mass. Laws 516).31 Although the statute permitted estate sales to recover embezzled funds, “the necessities of life—including firearms—could not be sold.” Id. Likewise, Amici discuss a 1650 Connecticut law exempting weapons from execution in civil actions and four statutes providing similar protections for militia arms. Id. at 33 (citing The Public Records of the Colony of Connecticut, Prior to the Union with New Haven Colony, May 1665, at 537 (J. Hammond Trumbull ed., 1850); 1 Stat. 271, § 1 (1792); Archives of Maryland Proceedings and Acts of the General Assembly of Maryland, at 557 (William Hand Browne ed., 1894); An Act for Settling the Militia ch. XXIV (1705), 3 Statutes at Large: Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619 335, 339 (William W. Hening ed., 1823); An Act for the Settling and Better Regulation of the Militia ch. II (1723), 4 Statutes at Large: Being a Collection of all the Laws of Virginia from the First Session of the Legislature, in the Year 1619 118, 121 (William W. Hening ed., 1820). But Amici place more weight on those laws than they can rightly bear. The fact that legislatures did not always exercise their authority to seize the arms of individuals who violated the law does not show that legislatures never could do so. Rather, these laws underscore legislatures’ power and discretion to determine when disarmament is warranted. And, as detailed above, Range and Amici’s contention that legislatures lacked the authority to disarm non-violent individuals “flatly misreads the historical record.” Heller, 554 U.S. at 603, 128 S.Ct. 2783.

We believe the Supreme Court’s repeated characterization of Second Amendment rights as belonging to “law-abiding” citizens supports our conclusion that individuals convicted of felony-equivalent crimes, like Range, fall outside “the people” entitled to keep and bear arms.32 See, e.g., Bruen, 142 S. Ct. at 2122; Heller, 554 U.S. at 635, 128 S.Ct. 2783. As Judge Hardiman explained in his Binderup concurrence, Second Amendment challenges to § 922(g)(1) “require us to decide who count among ‘the people’ entitled to keep and bear arms” because “the Founders understood that not everyone possessed Second Amendment rights.” 836 F.3d at 357 (Hardiman, J., concurring in part); see also Oral Arg. at 49:54 (Amici discussing which individuals fall outside “the people”). Focusing our inquiry on the meaning of “the people” also comports with the Lockean principles that animated Founding-era disarmaments of individuals whose unwillingness to abide by communal norms placed them outside political society. Cf. Heller, 554 U.S. at 580, 128 S.Ct. 2783 (suggesting “the people” refers to “all members of the political community” (emphasis added)); Cornell, Don’t Know Much About History, supra, at 671 (contending the right to keep and bear arms was historically “limited to those members of the polity who were deemed capable of exercising it in a virtuous manner”).

But even if we were to adopt the contrary view, treating Range as covered by “the Second Amendment’s plain text[,]” Bruen, 142 S. Ct. at 2126, would “yield the same result,” Kanter, 919 F.3d at 452 (Barrett, J., dissenting). Bruen requires the Government to (1) provide relevant historical analogues demonstrating a traditional basis for disarming those who commit felonies and felony-equivalent crimes, and (2) show that the challenger was convicted of a felony or felony-equivalent offense. Cf. Charles, No. 22-CR-154, ––– F.Supp.3d at ––––, 2022 WL 4913900, at *9 (“[R]eading Bruen robotically would require the Government in an as-applied challenge[ ] to find an analogy specific to the crime charged․ That’s absurd.”).

The Government has satisfied its burden on both prongs. First, as discussed above, our Nation’s tradition of firearm regulation permits the disarmament of those who committed felony or felony-equivalent offenses. See Holloway, 948 F.3d at 172 (“We ‘presume the judgment of the legislature is correct and treat any crime subject to § 922(g)(1) as disqualifying unless there is a strong reason to do otherwise.’ ” (quoting Binderup, 836 F.3d at 351)). The Government has established as much through its detailed discussion of our pre-Bruen jurisprudence concerning the “the historical justification for stripping felons [of Second Amendment rights], including those convicted of offenses meeting the traditional definition of a felony.” Appellees’ Supp. Br. 2–3, 7 (quoting Binderup, 836 F. 3d at 348); see also Answering Br. 11–12.

The Government has also shown that Range was convicted of a felony or felony-equivalent offense. Range pleaded guilty to welfare fraud in violation of 62 Pa. Cons. Stat. § 481(a), a misdemeanor punishable by up to five years’ imprisonment. Range’s conviction therefore qualifies as a felony-equivalent offense under both federal law, 18 U.S.C. § 921(a)(20)(B), and traditional legal principles, see Felony, Black’s Law Dictionary (11th ed. 2019). Accordingly, Range may be disarmed consistent with the Second Amendment. See Answering Br. at 16 (citing Hamilton v. Pallozzi, 848 F.3d 614, 627 (4th Cir. 2017))

V. Conclusion

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community. He has committed an offense evincing disrespect for the rule of law. As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

For the above reasons, we will affirm the judgment of the District Court.

FOOTNOTES

FOOTNOTE.

1.   In 2018, Pennsylvania amended § 481(b) so that welfare fraud involving “$1,000 or more” in fraudulently obtained assistance became a “[f]elony of the third degree.” 62 Pa. Cons. Stat. § 481(b) (2018). However, the parties agree that the offense’s categorization at the time of Range’s guilty plea controls for purposes of our analysis.

2.   Congress exercised its discretion to exclude certain categories of offenses from this ban, such as “antitrust violations, unfair trade practices, restraints of trade, or other similar offenses[.]” 18 U.S.C. § 921(a)(20)(A).

3.   For ease of reference, we use the term “felony-equivalent” to refer to these misdemeanors. We do not address whether individuals convicted of misdemeanors carrying lesser punishments can be disarmed consistent with the Second Amendment.

4.   A shotgun that Range’s father had given him as a teenager was also destroyed in the fire. After his father died in 2008, Range came into possession of his father’s pistol, but gave it away within a month.

5.   The relevant factual record has been fully developed, and the appeal raises “purely legal questions upon which an appellate court exercises plenary review,” Comite’ De Apoyo A Los Trabajadores Agricolas v. Perez, 774 F.3d 173, 187 (3d Cir. 2014) (quoting Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 159 (3d Cir. 1998)), so we can apply Bruen and resolve this matter without remand, see Hudson, 142 F.3d at 159.

6.   Although we appear to be the first Court of Appeals to address the constitutionality of 18 U.S.C. § 922(g)(1) since the Supreme Court decided Bruen, a number of district courts have done so. See United States v. Young, No. 22-CR-54, 2022 WL 16829260, at *11 (W.D. Pa. Nov. 7, 2022); United States v. Minter, No. 22-CR-135, 2022 WL 10662252, at *6–7 (M.D. Pa. Oct. 18, 2022); United States v. Trinidad, No. 21-CR-398, 2022 WL 10067519, at *3 (D.P.R. Oct. 17, 2022); United States v. Raheem, No. 20-CR-61, 2022 WL 10177684, at *3 (W.D. Ky. Oct. 17, 2022); United States v. Carrero, No. 22-CR-30, ––– F.Supp.3d ––––, ––––, 2022 WL 9348792, at *3 (D. Utah Oct. 14, 2022); United States v. Riley, No. 22-CR-163, ––– F.Supp.3d ––––, ––––, ––––, 2022 WL 7610264, at *10, *13 (E.D. Va. Oct. 13, 2022); United States v. Price, No. 22-CR-97, ––– F.Supp.3d ––––, ––––, 2022 WL 6968457, at *9 (S.D.W. Va. Oct. 12, 2022); United States v. Daniels, No. 3-CR-83, 2022 WL 5027574, at *4 (W.D.N.C. Oct. 4, 2022); United States v. Charles, No. 22-CR-154, ––– F.Supp.3d ––––, ––––, 2022 WL 4913900, at *11 (W.D. Tex. Oct. 3, 2022); United States v. Siddoway, No. 21-CR-205, 2022 WL 4482739, at *2 (D. Idaho Sept. 27, 2022); United States v. Collette, No. 22-CR-141, ––– F.Supp.3d ––––, ––––, 2022 WL 4476790, at *8 (W.D. Tex. Sept. 25, 2022); United States v. Coombes, No. 22-CR-189, ––– F.Supp.3d ––––, ––––, ––––, 2022 WL 4367056, at *8, *11 (N.D. Okla. Sept. 21, 2022); United States v. Hill, No. 21-CR-107, ––– F.Supp.3d ––––, ––––, 2022 WL 4361917, at *3 (S.D. Cal. Sept. 20, 2022); see also United States v. Ridgeway, No. 22-CR-175, 2022 WL 10198823, *2 (S.D. Cal. Oct. 17, 2022); United States v. Cockerham, No. 21-CR-6, 2022 WL 4229314, at *2 (S.D. Miss. Sept. 13, 2022); United States v. Jackson, No. CR 21-51, 2022 WL 4226229, at *3 (D. Minn. Sept. 13, 2022); United States v. Burrell, No. 21-20395, 2022 WL 4096865, at *3 (E.D. Mich. Sept. 7, 2022); United States v. Ingram, No. 18-CR-557, ––– F.Supp.3d ––––, ––––, 2022 WL 3691350, at *3 (D.S.C. Aug. 25, 2022).

7.   While Range’s standing to bring this claim was not challenged by Government nor discussed by the District Court, “we have ‘an independent duty to satisfy ourselves of our jurisdiction ․’ ” Bedrosian v. IRS, 912 F.3d 144, 149 (3d Cir. 2018) (quoting Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 269 (3d Cir. 2013)). The party invoking federal jurisdiction must establish the three elements forming “the irreducible constitutional minimum of standing”: injury in fact, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “When an individual is subject to [threatened enforcement of a law], an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014). Here, Range met his burden by showing that the Government’s prohibition twice thwarted him from purchasing a firearm and by averring that he would purchase a hunting rifle but for § 922(g)(1). See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (“The formal process of application and denial, however routine, makes the injury to [the petitioner’s] alleged constitutional interest concrete and particular.”), aff’d sub nom. District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); Dearth v. Holder, 641 F.3d 499, 503 (D.C. Cir. 2011) (affirming that the petitioner suffered a cognizable injury where “the federal regulatory scheme thwarts his continuing desire to purchase a firearm”).

8.   On that point, Judge Ambro’s three-judge plurality in Binderup was joined by the seven judges who signed onto Judge Fuentes’s partial concurrence and partial dissent. See Binderup, 836 F.3d at 348–49; id. at 387, 389–90 (Fuentes, J., concurring in part). Judge Hardiman, joined by four other judges, concurred in part and concurred in the judgment. Id. at 357 (Hardiman, J., concurring in part). Judge Hardiman reasoned that under “traditional limitations on the right to keep and bear arms” legislatures could disarm only individuals with a “demonstrated proclivity for violence.” Id.; see also Folajtar v. Att’y Gen., 980 F.3d 897, 912 (3d Cir. 2020) (Bibas, J., dissenting) (stating that “the historical limits on the Second Amendment” permitted legislatures to disarm felons “only if they are dangerous”), cert. denied sub nom. Folajtar v. Garland, ––– U.S. ––––, 141 S. Ct. 2511, 209 L.Ed.2d 546 (2021).

9.   Given Bruen’s focus on history and tradition, Binderup’s multifactored seriousness inquiry no longer applies. In the context of a challenge based upon the challenger’s status post-Binderup, Bruen requires consideration of whether there is a historical foundation for governmental restrictions on firearms possession based on the challenger’s specific status. If that status changes, then the law would no longer apply to that person. Thus, there is still room for “as-applied” challenges even after Bruen.

10.   In Binderup, we had imposed the burden at step one on the challenger, rather than on the government, 836 F.3d at 347, but after Bruen, we note that the government must now meet this burden in the district court, see 142 S. Ct. at 2126 (citing United States v. Boyd, 999 F.3d 171, 185 (3d Cir. 2021)). Because Bruen came down after the Government made its case in the District Court, we look to its filings in the District Court as well as its supplemental briefs on Bruen’s impact to find that it has met its burden.

11.   See also Bruen 142 S. Ct. at 2122 (“[T]he Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.”); id. (“[O]rdinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”); id. at 2125 (explaining petitioners were “law-abiding, adult citizens”); id. at 2133 (describing New York’s argument that “sensitive places where the government may lawfully disarm law-abiding citizens include all places where people typically congregate” (quotations omitted)); id. at 2134 (reiterating that petitioners are “two ordinary, law-abiding, adult citizens”); id. at 2135 n.8 (“[I]n light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense.”); id. at 2138 (“Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.”); id. at 2138 n.9 (noting shall-issue public carry licensing laws “do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry” but rather “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens” (quotation omitted)); id. at 2150 (observing “none [of the historical regulations surveyed] operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose”); id. at 2156 (“Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to demonstrate a special need for self-protection distinguishable from that of the general community in order to carry arms in public.” (quotations omitted)).

12.   We note that Congress enacted the federal felon-in-possession statute in 1938 and extended it to non-violent offenses in 1961. See United States v. Booker, 644 F.3d 12, 24 (1st Cir. 2011); cf. Freedom from Religion Found., Inc. v. County of Lehigh, 933 F.3d 275, 283 (3d Cir. 2019) (describing a 75-year-old religious symbol as part of “our Nation’s public tradition” and therefore “entitled ․ to a ‘strong presumption of constitutionality’ ” under the First Amendment (quoting Am. Legion v. Am. Humanist Ass’n, ––– U.S. ––––, 139 S. Ct. 2067, 2085, 204 L.Ed.2d 452 (2019))). As explained below, however, the history and tradition of disarming those who have committed offenses demonstrating disrespect for the rule of law dates back to at least the seventeenth century.

13.   It remains the case, of course, that the executive branch also has authority to impose firearms-related directives and regulations consistent with the history and tradition, e.g., in the form of executive orders or through ATF or local executive agencies.

14.   By no means do we suggest that legislatures have carte blanche to disarm anyone who commits any crime. Rather, we decide only that the disarmament of individuals convicted of felony and felony-equivalent offenses comports with the Second Amendment.

15.   Numerous works of legal scholarship have espoused the civic virtue theory of the Second Amendment. See, e.g., Don B. Kates & Clayton E. Cramer, Second Amendment Limitations and Criminological Considerations, 60 Hastings L.J. 1339, 1360 (2008); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 492 (2004); Saul Cornell, “Don’t Know Much About History”: The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 672 (2002) [hereinafter Cornell, Don’t Know Much About History]; David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588, 626 (2000); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 L. & Contemp. Probs. 143, 146 (1986); Anthony J. Zarillo III, Comment, Going off Half-Cocked: Opposing as-Applied Challenges to the “Felon-in-Possession” Prohibition of 18 U.S.C. § 922(g)(1), 126 Penn St. L. Rev. 211, 238 (2021). We concur with the civic virtue theory inasmuch as a person’s lack of virtue in the eyes of the community served as a proxy for willingness to disobey the law.

16.   See Folajtar, 980 F.3d at 911 (“Legislatures have always regulated the right to bear arms.”).

17.   When assessing Founding-era precedents, we must assume they derive from a coherent understanding of the right to keep and bear arms shared among the American populace. See Heller, 554 U.S. at 604–05, 128 S.Ct. 2783 (“[T]hat different people of the founding period had vastly different conceptions of the right to keep and bear arms ․ simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties.”).

18.   The status-based regulations of this period are repugnant (not to mention unconstitutional), and we categorically reject the notion that distinctions based on race, class, and religion correlate with disrespect for the law or dangerousness. We cite these statutes only to demonstrate legislatures had the power and discretion to use status as a basis for disarmament, and to show that status-based bans did not historically distinguish between violent and non-violent members of disarmed groups.

19.   Again, we cite the repugnant, status-based regulations of an earlier period—disarming individuals on the basis of political affiliation or non-affiliation—merely to demonstrate the Nation’s tradition of imposing categorical, status-based bans on firearm possession.

20.   See Thad W. Tate, The Social Contract in America, 1774–1787: Revolutionary Theory as a Conservative Instrument, 22 Wm. & Mary Q. 375, 376 (1965); see also Gundy v. United States, ––– U.S. ––––, 139 S. Ct. 2116, 2133, 204 L.Ed.2d 522 (2019) (Gorsuch, J., dissenting) (observing “John Locke [was] one of the thinkers who most influenced the framers[ ]”).

21.   Locke based this duty on the consent of those within the political society; however, he contended that mere presence in a territory constituted tacit consent to the laws of the reigning sovereign. See Locke, supra, § 119 (“[I]t is to be considered what shall be understood to be a sufficient declaration of a man’s consent to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent which will concern our present case․ [E]very man that hath any possessions or enjoyment of any part of the dominions of any government doth thereby give his tacit consent and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land to him and his heirs for ever, or a lodging only for a week, or whether it be barely travelling freely on the highway; and, in effect, it reaches as far as the very being of anyone within the territories of that government.”).

22.   We cite these laws as evidence of the original understanding of the Second Amendment and the traditions concerning firearms regulation in historical context. Of course, our social and political awareness has obviously evolved significantly since that time, and by today’s standards, the concept of restricting fundamental rights based on political affiliation would be repugnant to the Constitution, including the First Amendment.

23.   See Answering Br. 15 (citing 1 Wayne R. LaFave, Substantive Criminal Law § 2.1(b) (3d ed. 2017); Francis Bacon, Preparation for the Union of Laws of England and Scotland, in 2 The Works of Francis Bacon 160, 163–64 (Basil Montagu ed., Cary & Hart 1844); and 2 Jens David Olin, Wharton’s Criminal Law § 28:2 (16th ed. 2021)).

24.   The Kanter dissent takes issue with this analysis in part because the death penalty was not always imposed. 919 F.3d at 458–62 (Barrett, J., dissenting). How punishments were meted out is beside the point. What matters is the exposure. See id. at 459 (“[M]any crimes remained eligible for the death penalty ․”).

25.   We appreciate that these laws involved the isolated disarmament of the firearm involved in the offense, not a ban on possession as in the other laws we discuss above. Nevertheless, they support the notion that legislatures’ power to strip citizens of their arms was not limited to cases involving violent persons or offenses.

26.   A plaintiff suing the trespasser could alternatively seek the value of the trespasser’s firearms. An Act for the Protection and Security of the Sheep and Other Stock on Tarpaulin Cove Island, Otherwise Called Naushon Island, and on Nennemessett Island, and Several Small Islands Contiguous, Situated in the County of Dukes County § 2 (1790), 1 Private and Special Statutes of the Commonwealth of Massachusetts 258, 259 (Manning & Loring ed., 1805).

27.   We note that history and tradition may indicate that pretextual disarmament is inconsistent with the Second Amendment. Cf. 1 William Blackstone, Commentaries app. *300 (St. George Tucker ed., Birch & Small 1803) (decrying how “[i]n England, the people have been disarmed, generally, under the specious pretext of preserving the game”); Drummond v. Robinson Twp., 9 F.4th 217, 227–29 (3d Cir. 2021). Range does not claim his conviction was pretextual, however, so we leave the issue for another day.

28.   Deference to state legislatures not only accords with longstanding national tradition, but also respects state legislatures’ unique ability to channel local concerns and values into criminal law. See Joshua M. Divine, Statutory Federalism and Criminal Law, 106 Va. L. Rev. 127, 188 (2020) (“[F]ederal reliance on state law disturbs uniformity by baking into federal law variations in state law. But far from being a downside, regional disparity is an asset.”); see also Paul H. Robinson & Tyler Scot Williams, Mapping American Criminal Law: Variations Across the 50 States 4 (2018) (surveying state variation in the incorporation of desert, deterrence, and incapacitation norms into their criminal laws). There is good reason that the criminal codes of arid states like Nevada and Colorado include offenses like diverting irrigation water, Nev. Rev. Stat. § 207.225 (2021), and causing prairie fires, Colo. Rev. Stat. § 18-13-109 (2022), which the code of a state like Maryland does not.In addition to preserving federalism and the separation of powers, upholding legislative determinations of when crimes are sufficiently serious to warrant disarmament avoids forcing “judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] experience’ in the field.” Bruen, 142 S. Ct. at 2130 (quoting McDonald, 561 U.S. at 790–91, 130 S.Ct. 3020). And as explained above, judicial determinations of when a crime is sufficiently violent have proven infeasible to apply in other contexts. See Binderup, 836 F.3d at 410 (Fuentes, J., concurring in part).

29.   Some of our esteemed colleagues have expressed concerns about the breadth of state offenses that trigger disarmament under 18 U.S.C. § 922(g)(1). Binderup, 836 F.3d at 372 n.20 (Hardiman, J., concurring in part); Folajtar, 980 F.3d at 921 (Bibas, J., dissenting). But we do not perceive any inherent absurdity in a state’s interest in punishing drug offenders, see Ariz. Rev. Stat. Ann. § 13–3405, or individuals who abuse public services like recycling programs, see Mich. Comp. Laws Ann. § 445.574a(1)(d), or libraries, see 18 Pa. Cons. Stat. Ann. § 3929.1. Indeed, enforcement of the laws cited by our colleagues illustrates why legislatures have chosen to designate them as felonies. Cf. United States v. Bocook, 59 F.3d 167, 167 (4th Cir. 1995) (describing a prosecution for uttering obscene language by means of radio communication when a defendant “broadcast[s] unauthorized radio messages to aircraft and air traffic controllers” in which he “used obscene language, harassed a female air traffic controller, made threats to shoot down aircraft, and transmitted recorded music, weather reports, and warnings about his own activities”).

30.   Moreover, in his supplemental brief, Range appears to raise the issue that a permanent ban on firearm possession lacks a historical basis. See Appellant’s Supp. Br. 3–4. As to arguments concerning the duration of a ban, Congress has addressed it in two ways. First, Congress has exempted any person whose conviction “has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored” from disarmament. § 921(a)(20). Second, Congress also permitted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to restore individuals’ ability to possess firearms upon consideration of their personal circumstances, criminal record, and the public interest. 18 U.S.C. § 925(c). But these assessments proved so resource intensive for ATF that Congress has refused to fund the program since 1992. See Logan v. United States, 552 U.S. 23, 28 n.1, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007); S. Rep. No. 102-353 (1992). As we previously noted, “[i]f [the petitioner] and others in his position wish to seek recourse, it is to the legislature, and not to the judiciary, that efforts should be directed.” Folajtar, 980 F.3d at 911; Binderup, 836 F.3d at 402-03 (Fuentes, J., concurring in part and dissenting in part).

31.   We note that Amici cited to a 1786 Massachusetts law, but the language Amici references comes from Chapter 46 of the 1785 Act of Massachusetts.

32.   A concern with which district courts have wrestled when assessing the constitutionality of 18 U.S.C. § 922(g)(1) after Bruen is that interpreting “the people” in the Second Amendment to exclude individuals convicted of offenses would deviate from that phrase’s meaning in the First and Fourth Amendments. Cf. Collette, 22-CR-141, ––– F.Supp.3d at ––––, 2022 WL 4476790, at *8 (“[T]his Nation has a longstanding tradition of exercising its right—as a free society—to exclude from ‘the people’ those who squander their rights for crimes and violence.”), with Coombes, No. 22-CR-189, ––– F.Supp.3d at ––––, 2022 WL 4367056, at *4 (“[T]he court declines to carve out felons from the scope of the Second Amendment’s protection of ‘the people.’ ”). But Justice Stevens’s dissent leveled that very criticism against the Heller majority: “[T]he Court limits the protected class to ‘law-abiding, responsible citizens.’ But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.” 554 U.S. at 644, 128 S.Ct. 2783 (Stevens, J., dissenting). However, our reasoning applies solely to the Second Amendment and does not imply any limitation on the rights of individuals convicted of felony and felony-equivalent offenses under other provisions of the Constitution. source

Other Important 2nd Amendment Cases

felons can posses gun cases

 

Federal Judge Tosses Gun Possession Case Against Convicted Felon United States v. Bullock

Third Circuit Holds that a Nonviolent felon May Not Be Stripped of Second Amendment Rights.

 

]]> massachusetts vs dean f donnell https://goodshepherdmedia.net/massachusetts-vs-dean-f-donnell/ Tue, 22 Aug 2023 19:11:04 +0000 https://goodshepherdmedia.net/?p=15639

Massachusetts vs Dean F Donnell 2211cr2835

Jared sometimes gets over-enthusiastic but this appears to be 100% solid. Case is Commonwealth of Massachusetts v Dean F. Donnell, opinion is dated 8/3/23 by judge John F Coffey, listed in the last page as Associate Justice. Appears to come out of Middlesex MA. If anybody can find me a PDF of the final order and if possible, motions by the defense that led to this (or at least the defense attorney’s name) I’d be much obliged.

The winning argument appears to be based on Bruen. Reconstructing it as best I can from the judges order, defense argued that there is no text history or tradition of barring people from defensive arms in one state merely because they come from another state. I don’t see any evidence that my three other favorite arguments were used:

  • Making somebody get somewhere around 18 permits total to get national carry rights violates the bans on excessive fees and excessive delays in the access to carry rights found at Bruen footnote 9. It absolutely detonates those bans.

  • Saenz v Roe 1999 (US Supreme Court) bans states from discriminating against visiting residents of other states. (This would not be an issue in Massachusetts regardless because it is possible for somebody from New Hampshire or another state like mine in Alabama to obtain a Massachusetts carry permit.)

  • The MA permit processes still contain subjective elements such as letters of reference banned in Bruen footnote 9 via the citation to Shuttlesworth v Birmingham 1969. In other words, if this guy would have been forced to jump through banned subjective hoops to carry in MA, he was under no obligation to do that. The proof is in the Shuttlesworth case itself; the Reverend Fred Shuttlesworth was legally required to get a permit for a demonstration (a constitutional right) involving subjective standards; he didn’t get the permit, ran the protest anyway, was criminally charged and convicted in State Court and then the US Supreme Court cleared him of all charges because everything that happened to him was unconstitutional: subjective standards when accessing to a basic civil right are absolutely forbidden in that 1969 case.

Lowell (MA) District Court No. 2211CR2835 Middlesex VS Dean F. Donnell case from Guns and Gadgets says MA law allowing prosecution for NH carry permit holders for crossing into MA unconstitutional.

 

]]> US v. Jessie Bullock – Gun Possession & Convicted Felons https://goodshepherdmedia.net/us-v-jessie-bullock-gun-possession-convicted-felons/ Mon, 03 Jul 2023 17:44:11 +0000 https://goodshepherdmedia.net/?p=14830 US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

UNITED STATES OF AMERICA, v. JESSIE BULLOCK 

Supreme Court of Mississippi.

Jesse Roland BULLOCK, Jr. v. STATE of Mississippi.

 

No. 1999-CP-01667-SCT.

Decided: September 14, 2000

BEFORE BANKS, P.J., WALLER AND DIAZ, JJ. Jesse Roland Bullock, Appellant, pro se. Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

¶ 1. This matter is before the Court on appeal from the judgment of the Circuit Court of Marion County dismissing Jesse Roland Bullock, Jr.’s Petition for Post Conviction Relief.   Because Bullock’s petition is time barred, we affirm.

I.

¶ 2. Jesse Roland Bullock, Jr. pled guilty in October of 1991 to manslaughter and aggravated assault.   On November 1, 1991 he was sentenced to twenty years for manslaughter and twenty years for aggravated assault, with ten years of the aggravated assault to run concurrently with the sentence for manslaughter and ten years to run consecutively.

¶ 3. In August of 1999, Bullock filed a Motion for Post-Conviction Relief.   The circuit court dismissed the motion as procedurally barred.   Bullock filed a timely notice of appeal.

II.

WHETHER THE LOWER COURT ERRED BY RULING THAT THE APPELLANT’S MOTION FOR POST-CONVICTION COLLATERAL RELIEF IN TRIAL COURT WAS BARRED UNDER MISS. CODE ANN. § 99-39-5(2)?

¶ 4. Bullock’s motion for post-conviction relief was barred by Miss.Code Ann. § 99-39-5(2) (1994).   Pursuant to § 99-39-5(2) a defendant has three years after being sentenced to bring an action.  Miss.Code Ann. § 99-39-5(2).   The statute also establishes three exceptions to the three-year time bar.  Luckett v. State, 582 So.2d 428, 430 (Miss.1991).   However, Bullock does not fit under any of the exceptions.

III.

WHETHER THE COURT ERRED IN RULING THAT THERE WAS NO EVIDENCE TO SUPPORT THE APPELLANT’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?

¶ 5. Were we to reach the merits of Bullock’s claim of ineffective assistance of counsel, we would conclude that there was not enough evidence in the record to support this claim.   See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

IV.

¶ 6. Accordingly, the circuit court’s judgment is affirmed.

¶ 7. DISMISSAL OF POST CONVICTION RELIEF AFFIRMED.

BANKS, Presiding Justice, for the Court:

PRATHER, C.J., PITTMAN, P.J., McRAE, SMITH, MILLS, WALLER, COBB AND DIAZ, JJ., CONCUR. source

 

 

US, v. Jessie Bullock – Gun Possession & Convicted Felons

Being convicted of a felony–even a violent one–is not enough to deprive someone of their Second Amendment rights for life, a federal judge has ruled.

U.S. District Judge Carlton Reeves, an Obama appointee, dismissed a felon-in-possession of a firearm prosecution against Jesse Bullock, a Mississippi man, on Wednesday. Judge Reeves ruled that the federal government failed to meet its burden of showing that the historical tradition of firearms regulation supported permanently disarming Bullock for his past crimes, as required under the Supreme Court’s latest precedent.

“The government’s arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him,” Judge Reeves wrote in United States v. Bullock. “In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s‐era gun licensing law. That was not enough. Bruen requires no less skepticism here, where the challenged law is even younger.”

The ruling marks the first U.S. District Court to strike down the federal prohibition on convicted felons possessing firearms—18 U.S.C. § 922(g)(1). Though its opinion only extends to the defendant Bullock, it will undoubtedly add fuel to the growing legal fire over who can be prohibited from purchasing or possessing firearms following the Supreme Court’s decision in 2022’s New York State Rifle and Pistol Association v Bruen. It could also help motivate the Supreme Court to step in and further expound on where the limits of Second Amendment protections lie.

To date, federal courts have been split over whether the Second Amendment protects non-violent felons, unlawful drug users, persons under felony indictment, and those subject to a domestic violence restraining order.

Judge Reeves made headlines in November of last year when he was first assigned to hear Bullock’s case and consider whether or not he could be disarmed. He publicly chastised the Supreme Court for its legal test outlined in the Bruen decision and its emphasis on history in reaching outcomes.

“This Court is not a trained historian. The Justices of the Supreme Court, distinguished as they may be, are not trained historians,” he wrote in an opinion ordering the Department of Justice to brief him on whether he needed to appoint a historian to decide the case. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.”

He was no less forceful in his criticism of the High Court and its Bruen decision in his 77-page dismissal opinion on Wednesday.

“In Second Amendment cases, though, the pyramid is turned on its head,” Reeves wrote. “The trial record can be nonexistent. None of the history is ‘tested in an adversarial proceeding,’ and there may be no factual findings that ordinarily would receive some form of deference. The appellate courts do the best with the briefs they have, but all that matters is the Supreme Court’s historical review, conducted de novo as a legal rather than a factual question, with dozens of amicus briefs never before seen by another court. Is this the best way of doing justice?”

Nevertheless, under the test spelled out by the Bruen decision, Reeves found that the government failed to demonstrate a historical tradition of permanently disarming felons. Instead, he noted that the government simply pointed to Supreme Court dicta or the “more than 120 U.S. District Court decisions” that have upheld the felon-in-possession ban since Bruen to show that it is presumptively constitutional, which he said was insufficient.

“The government’s citation to the mere volume of cases is not enough,” Reeves wrote. “The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a ‘well‐established and representative historical analogue’ from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.”

The case centered around Jessie Bullock, who, in 1992, was convicted of aggravated assault and manslaughter for a “deadly bar fight.” He served 15 years in prison. He also was convicted of fleeing law enforcement and attempted aggravated assault of a law enforcement officer in 2015 and received a five-year suspended sentence. In 2018, he was indicted for knowingly possessing a firearm as a convicted felon, but he was not arrested until 2020. After a series of pandemic-related delays, Bullock was finally set to go to trial over the gun charge in August 2022 before he filed a motion to have his charge dismissed in light of Bruen.

Judge Reeves conducted his own review of the reasoning and laws cited in dozens of other post-Bruen cases challenging prohibited person restrictions but found there was no clear analog for the punishment Bullock received. And he said the government, who had the burden to prove the law was consistent with American tradition, didn’t provide enough evidence to change his analysis.

“[T]he plain text of the Second Amendment covers Mr. Bullock’s conduct—possession of ordinary firearms in the home—and therefore presumptively protects him,” Reeves wrote.

While much of the opinion was spent criticizing the Supreme Court’s view of the Second Amendment and its new test for applying it, Judge Reeves ultimately said the high standard might be justified.

“Maybe the Supreme Court is correct that in this country, to ‘secure the Blessings of Liberty to ourselves and our Posterity,’ the government should have the burden of justifying itself when it deprives people of their constitutional rights,” he wrote. “Perhaps the Court is also correct that constitutional rights should be defined expansively.”

However, he also said the Court has not consistently protected other constitutionally-guaranteed rights to the same degree. He argued that the right to a speedy trial, the right to a writ of habeas corpus, and the right to vote have all been whittled down while gun rights have been restored.

“In breathing new life into the Second Amendment, though, the Court has unintentionally revealed how it has suffocated other fundamental Constitutional rights,” Reeves wrote. “Americans are waiting for Heller and Bruen’s reasoning to reach the rest of the Constitution.”

The Department of Justice declined to comment on the ruling or its plans for an appeal. source

https://youtu.be/1wlxWI0rL6w

 

 

Another Judge Chips Away at Laws Barring Felons From Owning Guns

Now both a violent and nonviolent felon have been found by lower courts to have a Second Amendment right to own weapons. The Supreme Court will likely consider the issue in the near future.

The law barring felons from owning firearms suffered another significant judicial blow in a decision yesterday in U.S. v. Bullock. Generally knows as the “felon in possession law,” U.S. Code 922(g)(1) prohibits firearm ownership for those found guilty of a crime punishable by imprisonment for a term exceeding one year. Jessie Bullock filed a motion in August 2022 to have such charges against him dismissed, and Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi granted that motion yesterday.

Bullock had served about 15 years in state prison for manslaughter and aggravated assault after killing someone in a 1992 bar fight. The government indicted him in 2018, when he was 57 years old, for possessing a firearm despite his felon status, and wanted to give him another 10 years.

As Reeves sums up the history of Bullock’s felon-in-possession case, a magistrate judge thought it was “‘downright silly’ to claim that Mr. Bullock ‘poses a danger to his wife, contrary to her own sworn testimony, contrary to the time that he’s been out on bond from this very incident’….Mr. Bullock has remained on bond ever since, without incident.”

Bullock’s claim, as Reeves put it, is that since he “finished serving his sentence long ago, and the available evidence indicates that the firearm the government complains of was kept in the sanctity of his home,” the charge against him violated his Second Amendment right to keep and bear arms.

Reeves explicitly says that his decision involves an “as applied” challenge to 922(g)(1). He states outright that despite dismissing the case against Bullock, “the federal government may continue to prosecute other persons for violating § 922(g)(1).”

Still, the arguments he presents make a strong case for saying the law is unconstitutional in its entirety as written.

Reeves’ reasoning is based on the 2022 Bruen decision, which overturned some New York restrictions on the public carrying of weapons. That case declared that to stand up under Second Amendment scrutiny, a law must be “consistent with this Nation’s historical tradition of firearm regulation.” (Reeves makes it clear with near-sarcasm throughout the decision that he wishes the Supreme Court had not set the precedent requiring him to dismiss the case against Bullock; he has done this kind of “you idiots in the Supreme Court made me do this ridiculous thing” decision making in an earlier case upholding qualified immunity for a police officer, as Billy Binion reported here at Reason in 2020.)

Reeves cannot help (though he clearly would like to) but notice that the 120 previous U.S. district court cases the federal government relied on to prove that such laws are totally constitutional do not adequately demonstrate the required post-Bruen “historical tradition” to prop up the law. “In none of those cases did the court possess an amicus brief from a historian. And in none of those cases did the court itself appoint an independent expert to help sift through the historical record,” Reeves notes.

Reeves also spells out later in his decision that the Justice Department has itself admitted in filings in other cases that the felon-in-possession law is, as stated in particular in an appellee brief in U.S. v. Pettengill, “firmly rooted in the twentieth century and likely bears little resemblance to laws in effect at the time the Second Amendment was ratified.”

The facts that lead Reeves to toss the case against Bullock are surprisingly simple: “The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868—the years the Second and Fourteenth Amendments were ratified. The government’s brief in this case does not identify a ‘well‐established and representative historical analogue’ from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense.”

That bald statement does imply to this layman that the law should not be able to stand any constitutional scrutiny, though Reeves insists he’s not saying that. His granting an actual violent felon, Bullock, the right not to be prosecuted for owning a gun follows on a June en banc decision from the 3rd Circuit in the case of Range v. Attorney General. That decision found the law unconstitutional as applied to a particular nonviolent felon who had merely lied on a food stamp application and never actually spent a day in jail—though he could have been sent up for more than a year, per 922(g)(1).

Reeves says there might be room for states to do things the federal government should not, or to legitimately keep certain felons from owning guns, even after Bruen; he posits that “American history might support state‐level felon disarmament laws; that at least would align with principles of federalism. It might support disarmament of persons adjudicated to be dangerous….And it likely does support disarmament of persons convicted of death‐eligible offenses. The power to take someone’s life necessarily includes the lesser power to disarm them.”

Reeves made news in this case last November by passive-aggressively complaining that he might need to appoint a historian to assist him in understanding the case, since the Bruen decision requires him to “play historian in the name of constitutional adjudication.” Neither party in the case agreed that this was necessary; Bullock’s team asserted that it was the government’s burden to prove the historical validity of the felon possession laws, and the government just insisted that “the prohibition against felons possessing firearms is so thoroughly established as to not require detailed exploration of the historical record.”

Reeves did not agree.

To preview how the Supreme Court might ultimately consider the issue Reeves’ decision has brought to renewed prominence, he quotes extensively from a pre–Supreme Court dissent from now-Justice Amy Coney Barrett in the 2019 7th Circuit decision Kanter v. Barr, in which she agrees that sweeping prohibitions on all felons, though possibly not demonstrably dangerous ones, should not stand under the Second Amendment. (Rickey Kanter got a Trump pardon.) Elsewhere in Reeves’ decision in Bullock, the judge quotes Bruen concurrences from Justices Samuel Alito and Brett Kavanaugh in which they both say out loud that Bruen in and of itself did not cast doubt on existing laws prohibiting felons from owning guns. Reeves thinks references by Justice Antonin Scalia in the 2008 Heller decision (which first established that the Second Amendment meant individual citizens had a right to keep commonly owned weapons for self-defense in the home; Bruen extended that to public carrying) to “law abiding, responsible citizens” are mere dicta with no power to prevent a decision like his.

Reeves goes on to somewhat slyly speculate about how the Supreme Court might look upon what he’s done, while concluding that “this Court will refrain from counting the Justices’ votes today.”

But Reeves does explain that “another common method of denying these motions”—that is, previous motions such as Bullock’s that did not succeed—”is to tally the felon‐in‐possession votes implied by Bruen‘s concurrences and dissent. Recall that in these separate opinions, six Justices endorsed felon disarmament. Five of those Justices are still on the Court. As a result, some district courts have assumed that as a simple matter of realpolitik, there is no chance the Supreme Court will find § 922(g)(1) unconstitutional in a future case….It certainly is tempting for busy trial judges to try and resolve complicated issues via this kind of calculation. But this Court cannot honor an advisory opinion on an issue that was not before the Supreme Court.”

Some facts about felon-in-possession laws from FY 2021 from the U.S. Sentencing Commission (USSC): 7,454 such convictions came before the USSC, and the number from 2017 through 2021 was always over 6,000 a year.

Over 97 percent of such violators were men, 56 percent were black, 95 percent were U.S. citizens, and their average age was 34. Over 96 percent of such offenders were sentenced to prison, with an average sentence of 60 months.

Through a complicated point system, the USSC divides offenders’ “criminal history category” into six categories; of those sentences under 922(g)(1), 39 percent were in one of the three lower categories.

While the figures cannot be known for certain, one analysis surmises up to 100,000 convicted felons in the U.S. still own guns, despite the fact that the federal government insists (and most courts agree) that it is categorically illegal to do so—although this Bullock decision and the 3rd Circuit’s Range decision are chipping away at that certainty. source

Judge doesn’t need historian to review gun law, say prosecutors, defense counsel

U.S. District Judge Carlton Reeves appears before the U.S. Senate Judiciary Committee in Washington, D.C., on June 8, 2022. U.S. Senate/Handout via
U.S. District Judge Carlton Reeves appears before the U.S. Senate Judiciary Committee in Washington, D.C., on June 8, 2022. U.S. Senate/Handout via

Prosecutors and defense lawyers are in rare agreement that a federal judge in Mississippi should not take the unusual step of appointing a historian to help him decide whether a federal firearms law complies with the U.S. Supreme Court’s landmark ruling in June expanding gun rights.

The opposing sides in briefs filed on Monday laid out their views after U.S. District Judge Carlton Reeves in a blistering opinion in October criticized the Supreme Court’s ruling, which changed the framework courts must use to evaluate gun regulations.

That decision, New York State Rifle & Pistol Association v. Bruen, declared for the first time that the U.S. Constitution’s 2nd Amendment protects an individual’s right to carry a handgun in public for self-defense. The 6-3 ruling powered by the court’s conservative majority instructed courts going forward to undertake a review of history to determine if gun restrictions are “consistent with the Nation’s historical tradition of firearm regulation.”

The ruling has led to a series of lower-court decisions declaring various gun restrictions unconstitutional and provided the grounds for a criminal defendant before Reeves in Jackson, Mississippi, Jesse Bullock, to challenge the federal ban on felons possessing firearms.

In an Oct. 27 opinion, Reeves, an appointee of former Democratic President Barack Obama, faulted the Supreme Court’s history requirement, saying he and other judges were not “trained historians.”

“And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791,” Reeves, who is Black, wrote. “Yet we are now expected to play historian in the name of constitutional adjudication.”

Reeves then asked the parties whether he should appoint a historian as a consultant to help him “identify and sift through authoritative sources on founding‐era firearms restrictions” as he weighed tossing the criminal case against Bullock.

But in filings late Monday, both sides said a historian was “unnecessary,” with prosecutors saying the judge should look to the parties themselves to provide support for their positions on whether the statute is constitutional.

Bullock’s lawyer, Assistant Federal Public Defender Michael Scott, said appointing a historian would wrongly relieve the government of its burden to establish the law was constitutional.

Prosecutors in the U.S. Department of Justice also raised a prospect they did not desire: Other judges following Reeves’ lead.

“The prospect of judges in all 94 federal judicial districts retaining a historian would be an expensive proposition and a departure from the typical reliance on the parties to provide support for their legal positions,” prosecutors wrote.

The case is United States v. Bullock, U.S. District Court for the Southern District of Mississippi, No. 3:18-cr-00165.

For the United States: Gaines Cleveland and Jessica Terrill of the U.S. Attorney’s Office for the Southern District of Mississippi

For Bullock: Michael Scott of the Office of the Public Defender

source

The Reeves Process

A federal judge in Mississippi takes up the Supreme Court’s challenge to ‘play historian.’

What a constitutional contest is opened by the remarks of Judge Carlton Reeves of the United States District Court at Jackson, Mississippi. His Honor is complaining that the justices of the Supreme Court want the lower courts to “play historian.” This arises because of Justice Clarence Thomas’s remarks about the Second Amendment, and now Judge Reeves is talking about hiring a historian to fight — so to speak — fire with fire.

In New York State Rifle & Pistol Association v. Bruen, Justice Thomas signaled that only restrictions “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster. The justice offered his own historical precis as ballast to the majority’s holding that the Empire State’s permitting regulations on concealed carry were unconstitutionally arduous. We look, the justice instructed, to “history and tradition.”

It fell to Judge Reeves to parse what this ruling issued from the constitutional mountaintop signified for the case he was adjudicating in the statutory valley. It was a case that concerned the ability of convicted felons to bear arms. He lamented that the Nine conscripted him to “play historian in the name of constitutional adjudication” and, in a seeming swipe, suggested that the “justices of the Supreme Court, as distinguished as they may be, are not trained historians.” source

Learn more about your gun rights:

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

New York State Rifle and Pistol Association v. Bruen

]]> Can a Convicted Felon Own a Gun in CA? https://goodshepherdmedia.net/can-a-convicted-felon-own-a-gun-in-ca/ Fri, 09 Jun 2023 07:28:55 +0000 https://goodshepherdmedia.net/?p=14612 Can a Convicted Felon Own a Gun in CA?

How Long Before a Convicted Felon Can Own a Gun in California?

Restoring gun rights in California is not easy, and often it is not even possible. Theoretically, if you are convicted of any felony, then you are subject to a lifetime ban.

Conviction of certain misdemeanors also results in a lifetime ban, while conviction of other misdemeanors results in a ban of only ten years.

Nevertheless, there are two loopholes that will allow you to recover your gun rights under certain very limited circumstances.

Loophole #1: Converting A “Wobbler” Offense To A Misdemeanor After The Fact

A “wobbler” offense is an offense that can be charged as either a misdemeanor or as a felony, depending on the circumstances.

The receipt of stolen property is an example of an offense that is considered a “wobbler” offense in California, depending on the value of the stolen property that you received.

One way to regain your gun rights in California is to convert a “wobbler” offense from a felony to a misdemeanor. Under certain circumstances it is possible to do this after you have already been convicted of a felony, so you will no longer be a convicted felon.

If you do this, the extent of your loss of gun rights will depend on the penalties for that particular misdemeanor. In other words, you might become eligible to own a gun again.

Loophole #2: Seek A Pardon From The Governor Of California

A pardon relieves you from any further penalty for a crime. If you are in prison, for example, you can walk free with a pardon. A pardon does not exonerate you from the crime.

It only relieves you of its consequences. Remember, the Governor of California can only pardon you for a state law offense, not for a federal offense. Likewise, only the governor is qualified to pardon you for a state law offense.

The governor enjoys nearly 100 percent discretion in the decision of whether to issue you a pardon. In most cases, you must have lived in California for at least seven years.

You must also have been free of involvement in any criminal activity for at least 10 years. The governor can deny your pardon request for almost any reason, or for no reason at all.

If you live in California: Petition the Superior Court for a pardon

If you live in California, you must undergo a two-step process:

  • Submit a petition to a California Superior Court for a California certificate of rehabilitation. This is not a pardon, but you can use it to qualify for a pardon.
  • If the Superior Court grants your petition, your California certificate of rehabilitation will become a petition for a pardon from the governor.

If you live outside of California: Apply directly to the Governor for a pardon

If you live outside of California, you cannot seek a pardon by petitioning a Superior Court for a California certificate of rehabilitation. Instead, you must apply directly to the Governor’s Office.

When You Cannot Recover Your Gun Rights

No legal loophole can restore your right to own a gun in California if you committed a felony involving:

  • Domestic violence, or
  • The use of a “dangerous weapon” (not necessarily a gun).

Check the laws of other states to see whether you can possess a gun outside of California. source

How Can A Convicted Felon Receive Firearm Rights?

The Second Amendment of the U.S. Constitution guarantees the right of all U.S. citizens to bear arms except in certain circumstances. One of these circumstances is if you are a convicted felon. Felons often find it difficult to have applications for firearm rights accepted, especially if they were convicted of violent crimes. For felons with a criminal record, it is harder but not impossible to legally own a gun. They just need to go through the necessary bureaucratic and legislative processes. So, how can a convicted felon receive firearm rights?

State vs. Federal Gun Restoration Laws

Under federal law, convicted felons lose their firearm rights, which is a decision that stemmed from a law developed in 1934. At that time, the federal government mandated that no person convicted of a felony involving violence would be able to have his or her firearm rights restores. Since the Gun Control Act was passed in 1968, anyone convicted of a felony – whether or not it involved violence – loses his or her firearm rights.

However, state laws may differ from those at the federal level. Varying state by state, gun restoration laws offer convicted felons opportunities to regain their firearm rights, and in some places, it is easier than others.

For instance, in Indiana, a person can petition to the courts to have their firearm rights restored, and in Kentucky, a convicted felon can apply for expungement – but not until five years after his or her sentence has been completed.

All in all, if you are looking to have your firearms rights restored, be sure to look into your state’s laws to ensure you are proceeding legally, with the correct information.

Step One: Figure Out Who Charged You With The Crime

Depending on whether the felony was a state or federal offense, a convicted felon’s process of getting the rights to bear arms will vary. This is known as adjudication and will involve contacting the Department of Justice in the state or one of several federal agencies.

Ways to getting Firearm Rights Restored

Many states and agencies have an existing form for felons to apply to have their civil rights restored. Generally speaking, these forms will only be accepted if the person can prove that their life has changed and that they are reformed. The person may be required to show proof such as a steady job and ties to the community, and they may need to wait a significant amount of time before being allowed to apply. The process involves finding this form and filing it with the appropriate authorities.

Receive Firearm Rights

1. Felony Expungement

As previously stated, some states will allow convicted felons a second chance. Apply for felony expungement means the felon’s criminal records will be erased (as though the crime never happened), thus restoring his or her rights to purchase and carry a firearm (if applicable in his or her state of residence).

Check your state’s website to determine what makes someone eligible for expungement, and discuss further with an attorney that is able to analyze your particular situation. If you are eligible for expungement in your state, you must first file a petition with the courthouse.

After the proceedings, your record may be expunged, in which case you may be able to restore your firearm rights.

2. Petition for Restoration of Firearm Rights

Lastly, in some states, you may be eligible for a Petition of Restoration of Firearm Rights. Typically, the state will only consider you if you were charged with a crime unrelated to violence.

3. Governor’s Pardon

Several states like California, Louisiana, New Jersey, New York, and Oklahoma will restore a convicted felon’s firearm rights if he or she receives a governor’s pardon. To receive a Governor’s Pardon, you must apply through your state of residence – but only if you are eligible.

Here’s how to apply for a Governor’s Pardon.

4. Federal Pardon

The only other federal recourse is to petition for a presidential pardon. This process requires the assistance of a lawyer and can restore a variety of civil rights including the right to hold public office in addition to the right to bear arms.

How Can A Convicted Felon Receive Firearm Rights

Potential Pitfalls

It is easier to get civil rights restored if a felony conviction was given by a state court rather than a federal court. However, a problem arises when state laws conflict with federal laws, which are often stricter and may take precedence even if the conviction was ruled by state authorities.

If this is the case or if a felon had his conviction given by a federal agency, they will have to file with the:

  • U.S. Attorney General’s office
  • The Bureau of Alcohol, Tobacco, and Firearms

 

The agency will then review an application to restore the rights to bear arms. The problem then becomes that this agency is notorious for simply failing to review the documents, leaving former convicts in a sort of legal limbo while waiting for their firearm rights to be restored. This is the case even if felons were not guilty of violent crime convictions. source

How to Restore Your Gun Rights After a Criminal Conviction

California’s firearms laws are strict and federal laws are even stricter. If you are convicted of a felony or certain misdemeanors, you will lose your right to possess a gun in California.

You also may not own or possess a gun if you are:

  • addicted to narcotics drugs,
  • mentally ill,
  • involuntarily committed on a psychiatric hold twice in one year,
  • under the age of 18,
  • prohibited from possessing a gun by court order or as a condition of probation, or
  • prohibited by federal law from possessing a gun.

Conviction of a felony results in a lifetime ban on gun possession.

Conviction on most misdemeanor charges does not prohibit you from having a gun. But a few weapons-related misdemeanor convictions do subject you to a lifetime ban. Two convictions for brandishing a firearm… or just one conviction for assault with a firearm conviction…will cost you your gun rights for life.

In addition, approximately 40 misdemeanors carry a 10-year firearms ban. These include:

  • assault,
  • battery,
  • brandishing a weapon, and
  • making criminal threats.

Restoring your Second Amendment right to bear arms can be difficult and complicated. We urge you to read the full article, below, for complete information.

In general, however, it may be possible for your gun rights to be restored following a conviction as long as it was not for:

  • a felony involving a dangerous weapon, or
  • a crime of domestic violence.

There are two basic ways to have gun rights restored after an eligible conviction:

  1. by having a “wobbler” felony reduced to a misdemeanor, or
  2. by receiving a pardon from the California governor.

A “wobbler” is an offense that can be charged as either a felony or a misdemeanor. If you were convicted of a wobbler as a felony, you can petition the court to have it reduced to a misdemeanor. Once your felony is reduced you will be subject only to the restriction — if any — that the crime carries as a misdemeanor.

The second way to have your Second Amendment right to bear arms restored after a California conviction is through a pardon by the governor.

You must apply directly to the governor for a pardon if:

  • you live outside California, or
  • you were convicted of certain misdemeanor sex offenses.

Otherwise, obtaining a pardon is a two-step process:

  1. Petition the superior court for a California Certificate of Rehabilitation.
  2. If the petition is granted, it automatically becomes a petition for a pardon from the California Governor.

California’s governor has complete discretion to grant or deny pardon requests. Generally, applicants must have resided for a minimum of seven years in California. They must also have had no criminal involvement for at least 10 years.

We are a criminal defense firm with offices throughout California and Nevada. As former cops and prosecutors, we have first-hand knowledge of California’s gun laws. And we know what it takes to restore your right to bear arms.

1. California Firearms Restrictions

Before we discuss how to restore your gun rights, let’s review what can make you lose them in the first place.

California law does not require most adults to obtain a license to purchase, receive, own, or possess a gun.

Five categories of individuals, however, are banned from exercising gun rights in California:

  1. felons (that is, anyone convicted of any felony offense in any jurisdiction);
  2. persons convicted of certain misdemeanor offenses (see below);
  3. narcotics addicts;
  4. persons who suffer from mental illness; and
  5. minors (anyone under 18).

Let’s take a closer look at each of these categories.

1.1. Lifetime ban — felonies and weapons-related misdemeanors

Penal Code 29800 PC is California’s “felon with a firearm” law. It imposes a lifetime firearms ban on anyone who has been convicted of a felony offense in any state or country.

This lifetime ban also applies to people with certain misdemeanor convictions:

  1. people with two or more misdemeanor convictions for Penal Code 417(a)(2) PC, California’s “brandishing a firearm” law; and
  2. people with just one misdemeanor conviction for:

The lifetime ban also applies to minors who were convicted of any of the above offenses when tried as adults.

1.2. 10-year ban – specified misdemeanors

Generally speaking, a misdemeanor conviction does not trigger a gun restriction. However, under California Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

They are:

1.2.1. Assault

1.2.2. Battery

1.2.3. Domestic violence

1.2.4. Peace officers

1.2.5. Threats and intimidation

  • Penal Code 422 PC — criminal threats.
  • Penal Code 71 and Penal Code 76 – threats to public officials and/or their families.
  • Penal Code 136.1  — intimidation of witnesses and victims.
  • Penal Code 136.5  — possession of a deadly weapon with intent to use it to intimidate witnesses.
  • Penal Code 140  — threats of force against witnesses, victims or informants.

1.2.6. Weapons / ammunition offenses

1.2.6.1. Brandishing a weapon:
1.2.6.2. Discharging a firearm
1.2.6.3. Possession of weapons
  • Penal Code 171b — possession of weapons in public buildings or meetings.
  • Penal Code 171c(a)(1) — possession of a loaded firearm within the state capitol or legislative offices.
  • Penal Code 171d — possession of a loaded firearm within the governor’s mansion or the residence of state officials.
  • Penal Code 626.9 — possession of a firearm in a school zone.
  • Penal Code 17500 — possession of a deadly weapon with the intent to commit assault.
  • Penal Code 17510 — possession of a deadly weapon or firearm while picketing.
  • Penal Code 25300 — criminal possession of a firearm (possession of a firearm in a public place while masked).
  • Penal Code 25800 — armed criminal action (possession of a firearm with the intent to commit a felony).
  • Penal Code 30315 — possession of metal-piercing or armor-piercing ammunition.
  • Penal Code 32625 — possession of a machine gun.
  • Welfare and Institutions Code 8100 — possession of a firearm or deadly weapon by certain persons with mental disorders.
  • Welfare and Institutions Code 8103 — possession of a firearm or deadly weapon by mentally disordered sex offenders or persons adjudged to be a danger to others.
1.2.6.4. Sale or transfer of weapons
  • Penal Code 186.28 — sale or transfer of a firearm to a gang member for use in a felony.
  • Former Penal Code 12100(a) — sale of concealable firearms to juveniles.
  • Penal Code 27510 — sale or transfer of a firearm to a person under 18.
  • Welfare and Institutions Code 8101 — sale or transfer of a firearm or deadly weapon to certain persons with mental disorders.
  • Welfare and Institutions Code 871.5 and 1001.5 — bringing or sending a firearm into a juvenile hall or camp or a Youth Authority institution.
  • Penal Code 27590(c) — illegal sale or transfer of a firearm.

You may petition the court to have gun rights restored before the 10-year period is up if:

  • you were convicted of one of the above misdemeanors prior to its being added to Penal Code 29805 PC, and
  • you do not have a previous conviction under Section 29805, no matter when the prior conviction occurred.

You may petition for this relief on a one-time basis only. The court may grant it if it finds that you are likely to use a firearm in a “safe and lawful manner.”

1.3. Narcotics addicts

People who are addicted to a narcotic drug are prohibited from possessing firearms.

Federal law imposes a ban on this category of persons as well (see below).

If you are “addicted” to a narcotic drug, it means that you are both emotionally and physically dependent on the drug and have an increased tolerance to its effects.

1.4. People suffering from mental illness

People with a mental illness are banned from possessing firearms as follows:

  • during any period in which they are receiving voluntary in-patient treatment for being a danger to themselves or others;
  • while under a conservatorship because gravely disabled as a result of a mental disorder or impairment by chronic alcoholism;
  • for 6 months following a serious threat of physical violence against a reasonably identifiable victim or victims;
  • for a period of five years following release from an involuntary commitment to a mental hospital for being a danger to oneself or others;
  • for life after two involuntary commitments in a year; or
  • for an indefinite period of time if they fall into one of the categories set forth below.

People banned for an indefinite period may not have a gun until they receive a certificate stating that they are no longer a threat to society. After receiving their certificate, such people may petition to have their gun rights restored.

The people subject to this requirement are:

  • those adjudicated by a court of any state to be a danger to others because of a mental disorder or mental illness,
  • those adjudicated by a court of any state to be a mentally disordered sex offender;
  • people declared incompetent to stand trial; and
  • those who have pleaded not guilty to a non-violent crime by reason of insanity.

People who have pleaded not guilty to certain violent crimes by reason of insanity are subject to a lifetime ban on firearm possession.

Such crimes include (but are not limited to):

  • murder,
  • mayhem,
  • rape,
  • residential burglary,
  • arson of an inhabited dwelling, and
  • other felonies involving death or great bodily injury.

Note that federal law imposes its own restrictions on this class of individuals as well.

Thus certain people subject only to a five-year restriction in California may face a lifetime ban under federal law.

Please see Section 2, below, for a more complete discussion of federal law. Also, see California Assembly Bill 1968 (2018).

1.5. Minors

Minors are prohibited from owning, possessing, purchasing, or receiving guns. Unless subject to another firearm restriction, people may first possess guns as follows:

  • rifles and shotguns: once they reach the age of 18, and
  • handguns: once they reach the age of 21.

Minors who have been convicted of certain offenses and are adjudged a ward of the juvenile court as a result of their conviction may not possess a firearm until the age of 30.

Such offenses include (but are not limited to):

1.6. Those under court-imposed restrictions

California courts have the right to impose additional firearms restrictions under two scenarios.

The first is when a judge revokes your gun rights as a specific condition of California probation. The second is when you are the subject of a court-issued protective order.

While you are subject to such restrictions, you are prohibited from owning, possessing, purchasing, or receiving a firearm.

1.7. Personal firearms eligibility check

It is possible to check your firearms eligibility status with the California Department of Justice.

You do not need to disclose your possession of any firearm in order to do so.

The cost for such an eligibility check is $20. The Personal Firearms Eligibility Check Application form is available on the DOJ’s website.

2. Federal Gun Restrictions

2.1. People prohibited from owning a gun under federal law

Federal law imposes its own set of firearms restrictions on certain classes of people.

You are prohibited under federal law from possessing a gun if:

you are under indictment for, or have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

  • you are a fugitive from justice;
  • you are an unlawful user of or addicted to any controlled substance;
  • you have been adjudicated as a mental defective or have been committed to any mental institution;
  • you are unlawfully in the United States;
  • you have been discharged from the Armed Forces under dishonorable conditions;
  • you have renounced your U.S. citizenship;
  • you are subject to a protective order for stalking or representing a threat to an intimate partner or child; or
  • you have been convicted in any court of a misdemeanor crime of domestic violence.

2.2. The conflict between federal and California law

Many of these federal firearms restrictions are identical to those imposed by California law. However, when federal and California gun laws conflict, the federal laws prevail. In such a case, California gun laws may as well not even exist.

2.2.1. Misdemeanor crimes of domestic violence

One area in which differences arise is after a conviction for a misdemeanor crime of domestic violence (“MCDV”).

State law restores California gun rights to an individual convicted of MCDV once a 10-year restriction expires. However, federal law imposes a lifetime firearms ban after such a conviction.

At present, the only way to remove a federal firearms ban is by Presidential pardon. However, presidential pardons are rarely granted.

As a practical matter, therefore, if you are convicted of MCDV in any court, you will never be able to possess a gun legally in California. The only way to avoid the federal lifetime ban is to avoid a domestic violence conviction in the first place.

For a more complete discussion, visit our page on domestic violence convictions & California gun rights.

2.2.2. Mental illness

California and federal law also conflict in their treatment of mental illness.

California law imposes a five-year firearms ban following involuntary commitment for being a danger to oneself or others.

But federal law provides a lifetime ban on gun ownership by anyone adjudicated a mental defective or committed to a mental institution. As a result, once you have been admitted to a mental institution, it is not possible for you to possess a gun legally in California or anywhere else.

attorney speaking with client in jail

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights.

3. How to restore your California gun rights

If you have been convicted of a California felony involving a dangerous weapon, there is no way to restore your firearms rights.   California law defines “dangerous weapon” as any weapon, instrument, or object capable of being used to inflict great bodily injury or death.

And, as noted, federal law prevents California from restoring your gun rights under certain circumstances, including (without limitation):

  • you have been convicted of a crime of domestic violence,
  • you have been adjudicated a mental defective or confined to an institution, or you are an abuser or unlawful user of a controlled substance.

Otherwise, depending on the type of conviction, there are two ways to restore your California gun rights:

  1. by reducing a felony “wobbler” conviction to a misdemeanor, or
  2. by obtaining a California gubernatorial pardon.

3.1. Reducing a felony “wobbler” to a misdemeanor

A “wobbler” offense is a crime that can be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.

If you were convicted of a qualifying felony wobbler, you can regain your gun rights by reducing your California felony to a misdemeanor.

For the most part, qualifying wobblers are those for which you were sentenced to county jail and/or probation.

The following are not qualifying offenses:

  • “straight” felonies… that is, crimes that may only be charged as a felony;
  • felonies involving the use of a dangerous weapon;
  • felonies for which you were sentenced to California prison;
  • misdemeanors that subject you to a 10-year gun restriction;
  • domestic violence convictions; and
  • drug offenses that classify you as a “narcotics addict.”

Eligible felony wobbler charges can be reduced at any time. Thus you can file a petition if:

  • you were convicted of a wobbler felony and are still on probation (although you will first need to file a petition to have your probation terminated);
  • you were convicted of a felony and are done with probation and/or county jail time; or
  • you were convicted of a felony and were never given any probation at all but were sentenced to county jail.

If the court reduces your felony to a misdemeanor, your right to possess a firearm will generally be restored. However, if the misdemeanor is one that subjects you to a ten-year gun restriction, you will need to wait out the ten years before you may possess a gun.

3.2. California Certificate of Rehabilitation / Governor’s pardon

The second way to restore your California gun rights is by a pardon from California’s governor.

Not all pardons restore gun rights. The pardon must specifically be “full and unconditional,” or provide you are entitled to exercise the right to possess a gun.

A pardon is not the same as an expungement. A pardon will not seal or erase your criminal record or the record of your conviction.   It can, however, restore to you certain rights, including (without limitation) the right to possess a gun.

3.2.1. Who is eligible to apply for a California gubernatorial pardon?

If you were convicted of a California felony that is ineligible for reduction to a misdemeanor, you may be able to receive a gubernatorial pardon. People convicted of misdemeanor sex crimes are also eligible.

The main requirement for a gubernatorial pardon is exemplary behavior for a long period of time. Generally, an application for a pardon will not be considered unless you have been discharged from probation or parole for at least 10 years without further criminal activity during that period.

Only California crimes may be pardoned by California’s governor.

If you were convicted in another state, you must apply for a pardon in that state. If convicted of a felony under federal law, you must apply for a Presidential pardon.

3.2.2. California Certificate of Rehabilitation

A Certificate of Rehabilitation (“COR”) is a court order that declares you rehabilitated of your crime. If you meet the following criteria, you must apply for a COR before seeking a pardon:

  1. you were convicted of a California felony, and
  2. you currently reside in California.

A Certificate of Rehabilitation does not, by itself, restore California gun rights. You must still receive a gubernatorial pardon.  If you are granted a COR, it automatically becomes an application for a California governor’s pardon. You do not need to do anything more.

Application for a Certificate of Rehabilitation is made to the superior court in the county where you live. To apply, you must have resided in California for at least five (5) years  after the earliest of:

  1. discharge from custody due to completion of your sentence, or
  2. your release on parole or probation…

plus…

an additional period of two (2) to five (5) years, depending on the underlying offense.

You are not eligible for a California Certificate of Rehabilitation if:

  • you are serving mandatory life parole,
  • you were committed under a death sentence, or
  • you committed certain sex acts with a child.

3.2.3. Application for a direct pardon

If you are ineligible for a Certificate of Rehabilitation, you may apply for a direct pardon.

This procedure is used primarily by people who:

  1. were convicted of a crime in California and now reside outside the state, or
  2. people who have been convicted of specified misdemeanor sex offenses.

An application for a direct pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years. You must also not have had any further criminal activity during that period.

Upon demonstration of truly exceptional circumstances… such as actual innocence… the 10-year rule may be waived.

Applications for a direct pardon are available at the California Governor’s website. You may also request an application by writing to:

Governor’s Office

State Capitol

Attention: Legal Affairs

Sacramento, CA 95814

After you have completed the application, you must send the Notice of Intent to Apply for Executive Clemency to the district attorney of each county in which you were convicted. This is a legally-required notice.

The District Attorney will return the notice to the Governor’s Office and send you an acknowledgment. Once you receive it, you can return the completed application to the Governor’s Office at the address listed above.

3.2.4. Governor’s discretion re: the issuance of pardons

The governor has complete discretion in deciding whether to grant a pardon. This is true for both direct pardons and pardons after issuance of a Certificate of Rehabilitation.

An exception is if you have two (2) or more felony convictions. In such a case, the Governor of California may not grant you a pardon… unless… a majority of justices of the California Supreme Court recommend one. The Governor has no obligation, however, to seek such a recommendation from the court.

As noted, not all pardons restore gun rights. The pardon must specifically provide you are entitled to exercise the right to possess a gun.

3.3. Expungement of a California criminal record

Expungement of a criminal record in California does not remove the ban on owning or possessing firearms.

Expungement refers to the process of:

  1. withdrawing a plea of guilty or no contest, and
  2. having the case dismissed, after successful completion of probation  … or, if applicable… jail and parole.

The main benefit of expungement is that you do not have to disclose an expunged conviction on most job applications.   But, as noted, expungement does not restore gun rights. If you wish to possess a gun following expungement of a criminal record, you must still follow the steps set forth above.

In addition, not all offenses can be expunged. If you were sent to California state prison, or you are guilty of a serious sex offense, you do not qualify for expungement. source

Legal References:

  1. Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
  2. California Penal Code 25605 (b) — No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of any citizen of the United States or legal resident over the age of 18 years who resides or is temporarily within this state, and who is not within the excepted classes prescribed by Chapter 2 (commencing with Section29800) or Chapter 3 (commencing with Penal Code Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and InstitutionsCode, to purchase, own, possess, keep, or carry, either openly or concealed, a handgun within the citizen’s or legal resident’s place of residence, place of business, or on private property owned or lawfully possessed by the citizen or legal resident.
  3. But see California Penal Code 29800(c) — Subdivision (a) shall not apply to a person who has been convicted of a felony under the laws of the United States unless either of the following criteria is satisfied:
    (1) Conviction of a like offense under California law can only result in imposition of felony punishment.
    (2) The defendant was sentenced to a federal correctional facility for more than 30 days, or received a fine of more than one thousand dollars ($1,000), or received both punishments.
  4. California Penal Code 29800 PC(a) –
    (1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Penal Code 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
    (2) Any person who has two or more convictions for violating paragraph (2) of subdivision (a) of Section 417 and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
  5. California Penal Code 29800(b) — Notwithstanding subdivision (a), any person who has been convicted of a felony or of an offense enumerated in Section 23515, when that conviction results from certification by the juvenile court for prosecution as an adult in an adult court under Section 707 of the Welfare and Institutions Code, and who owns or has in possession or under custody or control any firearm is guilty of a felony.
  6. California Penal Code 29805 PC. Except as provided in Section 29855 or subdivision (a) ofSection 29800, any person who has been convicted of a misdemeanorviolation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) ofSection 148, Section 171b, paragraph (1) of subdivision (a) ofSection 171c, 171d, 186.28, 240, 241, 242, 243, 243.4, 244.5, 245,245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, or830.95, subdivision (a) of former Section 12100, as that section readat any time from when it was enacted by Section 3 of Chapter 1386 ofthe Statutes of 1988 to when it was repealed by Section 18 ofChapter 23 of the Statutes of 1994, Section 17500, 17510, 25300,25800, 30315, or 32625, subdivision (b) or (d) of Section 26100, orSection 27510, or Section 8100, 8101, or 8103 of the Welfare andInstitutions Code, any firearm-related offense pursuant to Sections871.5 and 1001.5 of the Welfare and Institutions Code, or of theconduct punished in subdivision (c) of Section 27590, and who, within10 years of the conviction, owns, purchases, receives, or has inpossession or under custody or control, any firearm is guilty of apublic offense, which shall be punishable by imprisonment in a countyjail not exceeding one year or in the state prison, by a fine notexceeding one thousand dollars ($1,000), or by both that imprisonmentand fine. The court, on forms prescribed by the Department ofJustice, shall notify the department of persons subject to this section. However, the prohibition in this section may be reduced, eliminated, or conditioned as provided in Section 29855 or 29860.
  7. See same.
  8. California Penal Code 29860 PC.
  9. Same.
  10. Same.
  11. California Penal Code 29800(a)(1), endnote 4, above.
  12. 18 United States Code 922(d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
  13. People v. O’Neil (1965) 62 Cal.2d 748, 750. (“…we must reverse the judgment and remand the cause for a determination of whether the defendant is ‘addicted’ to the use of narcotics as we have defined that term in People v. Victor (1965) 62 A.C. 290, 312-315, 42 Cal.Rptr. 199, 398 P.2d 391; i. e., whether he exhibits the three characteristics of the addiction process: (1) ‘emotional dependence’ on the drug, (2) an increased ‘tolerance’ to its effects, and (3) ‘physical dependence’ manifested by withdrawal symptoms upon sudden termination of drug intake.”)
  14. California Welfare and Institutions Code 8100(a).
  15. California Welfare and Institutions Code 8103(e)(1).
  16. California Welfare and Institutions Code 8100(b)(1).
  17. California Welfare and Institutions Code 8103(f)(1).
    See also California Welfare and Institutions Code 5150 regarding involuntary commitment.
  18. California Welfare and Institutions Code 8103(a)(1).
  19. Same.
  20. California Welfare and Institutions Code 8103(d)(1).
  21. California Welfare and Institutions Code 8103(c)(1).
  22. California Welfare and Institutions Code 8103(b)(1).
  23. The full list of crimes under California Welfare and Institutions Code 8103(b)(1) is: murder, mayhem, kidnapping (if the victim suffers intentionally inflicted great bodily injury), carjacking or robbery (if the victim suffers great bodily injury), arson of an inhabited dwelling or trailer coach, rape, first degree (residential) burglary, assault with intent to commit murder, assault with intent to commit mayhem or sex crimes (if the victim suffers great bodily injury), reckless or willful possession or explosion of an explosive device, and any felony involving death or great bodily injury, or an act which poses a serious threat of bodily harm to another person.
  24. 18 United States Code 922 (d) — It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person…(4) has been adjudicated as a mental defective or has been committed to any mental institution.
  25. Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270.17; or certified under Welfare and Institutions Code sections 5250, 5260, or 5270.17, may be subject to a lifetime prohibition pursuant to federal law. See California Department of Justice, Bureau of Firearms, Firearms Prohibiting Categories.
  26. California Attorney General’s Firearms Website, Frequently Asked Questions — Sales and Transfers of Firearms. “Although there are exceptions, generally all firearms purchasers must be at least 18 years of age to purchase a long gun (rifle or shotgun) and 21 years of age to purchase a handgun (pistol or revolver).”
  27. California Penal Code 29820 PC.
  28. California Penal Code 29815 PC.
  29. California Penal Code 29825 PC. See also California Penal Code 1203.1 (j) — The court may impose…other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer…See also People v. Lent (1975) 15 Cal.3d 481, 486. (“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality…’” [citation omitted.])
  30. California Penal Code 30105 PC.
  31. See same.
  32. Note that the federal gun ban applies to anyone who has been convicted of a crime that carries more than a year in prison whether or not that person actually served more than a year in prison. See California Penal Code 29800(c)(2).
  33. 18 United States Code 922(d).
  34. See Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms – Frequently Asked Questions; Office of Legislative Research, Research Report 2008-R-0617, Restoration of Right to Carry Firearms Under Federal Law, November 10, 2008.
  35. See endnote 17, above.
  36. 18 USC 922(d).
  37. California Penal Code 4854 PC. In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 17800 and 23510 and Chapter 2 (commencing withSection 29800) of Division 9 of Title 4 of Part 6 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.
  38. See e.g., Judicial Council of California criminal Jury Instructions (2012) CALCRIM 511 and 3145:
    [A dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.]
    [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
  39. 18 USC 922(d).
  40. See People v. Gilbreth (2007) 156 Cal.App.4th 53. (” ‘[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor ‘for all purposes.’ This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring.’ (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant’s possession of a firearm by a convicted felon must be reversed.”).
  41. See State of California, Office of the Governor, How to Apply for a Pardon.
  42. California  Penal Code 1203.3.
  43. California  Penal Code 1203.4.
  44. California  Penal Code 1203.4a.
  45. California Penal Code 4854, endnote 37, above.
  46. See How to Apply for a Pardon, endnote 41, above.
  47. The Supremacy Clause of the United States constitution, Article VI, provides:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  48. See the United States Department of Justice, Office of the Pardon Attorney, Pardon Information and Instructions.
  49. See California Penal Code 4852.01-4852.21.
    See also, How to Apply for a Pardon, endnote 41, above.
  50. People discharged or released on parole prior to May 13, 1943 and not incarcerated in a state penal institution since, have a three (3) year residency requirement. See California Penal Code 4852.01 PC (a).
  51. California Penal Code 4852.03.
    (a) The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner. For purposes of this chapter, the period of rehabilitation shall constitute five years’ residence in this state, plus a period of time determined by the following rules:
    (1) To the five years there shall be added four years in the case of any person convicted of violating Section 187, 209, 219, 4500, or18755 of this code, or subdivision (a) of Section 1672 of the military and Veterans Code, or of committing any other offense which carries a life sentence.
    (2) To the five years there shall be added five years in the case of any person convicted of committing any offense or attempted offense for which sex offender registration is required pursuant to section 290, except for convictions for violations of subdivision(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or314. For those convictions, two years shall be added to the five years imposed by this section.
    (3) To the five years there shall be added two years in the case of any person convicted of committing any offense that is not listed in paragraph (1) or paragraph (2) and that does not carry a life sentence.
    (4) The trial court hearing the application for the certificate of rehabilitation may, if the defendant was ordered to serve consecutive sentences, order that his or her statutory period of rehabilitation be extended for an additional period of time which when combined with the time already served will not exceed the period prescribed by statute for the sum of the maximum penalties for all the crimes.
    (5) Any person who was discharged after completion of his or her term or was released on parole before May 13, 1943, is not subject to the periods of rehabilitation set forth in these rules.
    (b) Unless and until the period of rehabilitation, as stipulated in this section, has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court. Any certificate of rehabilitation that is issued and under which the petitioner has not fulfilled the requirements of this chapter shall be void.
    (c) A change of residence within this state does not interrupt the period of rehabilitation prescribed by this section.
  52. California Penal Code 4852.01(d) — This chapter shall not apply to persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section288, subdivision (c) of Section 287, Section 288.5, or subdivision(j) of Section 289, or persons in the military service.
  53. California Penal Code 4852.01(e) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
    See also How to Apply for a Pardon, endnote 41, above.
  54. See California Penal Code 4852.01(d), endnote 52, above.
    See also California Penal Code 290, the “Sex Offender Registration Act,” which sets forth the sex crimes subject to PC 4852.01(d).
  55. Same.
  56. Same.
    See also California Penal Code 4852.01(e).
  57. See, How to Apply for a Pardon, endnote 41, above.
  58. See same.
  59. Penal Code 4852.16 — The certified copy of a certificate of rehabilitation transmitted to the Governor shall constitute an application for a full pardon upon receipt of which the Governor may, without any further investigation, issue a pardon to the person named therein, except that, pursuant to Section 8 of Article V of the Constitution,the Governor shall not grant a pardon to any person twice convicted of felony, except upon the written recommendation of a majority of the judges of the Supreme Court.
  60. People v. Ansell (2001) 25 Cal.4th 868, 891. (“However, regardless of which statutory application procedure is used, and notwithstanding any recommendation by the superior court, the pardon decision is discretionary, and rests ultimately with the Governor.”)
    See also California Penal Code 4800 PC — Constitutional authority. (“The general authority to grant reprieves, pardons and commutations of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California.”)
    See also California Constitution, Article V, Section 8(a) — Subject to application procedures provided by statute, the Governor, on conditions the Governor deems proper, may grant a reprieve, [California Governor’s] pardon, and commutation, after sentence, except in case of impeachment. The Governor shall report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor may not grant a pardon or commutation to a person twice convicted of a felony except on the recommendation of the Supreme Court, 4 judges concurring.
    See also California Penal Code 4802 PC — In the case of a person twice convicted of felony, the application for pardon or commutation of sentence shall be made directly to the Governor, who shall transmit all papers and documents relied upon in support of and in opposition to the application to the Board of Prison Terms.
    See also California Penal Code 4813 PC — In the case of applications of persons twice convicted of a felony, the Board of Prison Terms, after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.
    See also How to Apply for a Pardon, endnote 41, above.
  61. California Penal Code 4854 PC, endnote 37, above.
  62. California Penal Code 1203.4(a)(2) [felony convictions] and 1203.4a(c)(2) [misdemeanor convictions] both provide that: “Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of title 4 of Part 6 [California’s felon with a firearm law].”)
  63. California Penal Code 1203.4(a).
  64. Same.
  65. Same.
    For more information, please see our article on the Consequences of a Felony Conviction.
  66. California Penal Code 1203.4(b) — subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Vehicle Code 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287, Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
  67. Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s firearm laws and restoring your Nevada gun rights. Their Nevada law offices are located in Reno and Las Vegas.

RESTORE YOUR CALIFORNIA GUN RIGHTS

Being convicted of a crime under California State law can impact your Second Amendment right to keep and bear arms under both California and federal law. In general, a conviction for any felony offense will result in a lifetime ban on your ability to possess or own a gun.

Certain misdemeanors, such as those involving domestic violence or even drug offenses, may also result in temporary or lifetime bans depending on the conduct which gave rise to the conviction. In addition, you can’t legally own or possess a gun if you are addicted to drugs, under 18 years old, suffering from mentally illness, prohibited by court order as a condition of probation.

The California and federal laws concerning gun restrictions is complex, and require fact-specific analysis on a case-by-case basis to determine if any apply. Below you will find an overview of some of the options to restore your gun rights after they have been restricted due to California criminal conviction.

In general, there are two basic options to have your gun rights restored after a conviction. They include having your felony case reduced to a misdemeanor and receiving a pardon from the Governor of California.

It should be noted that while a reduction of your offense to a misdemeanor may provide relief under California state law, federal law does not recognize the effects of either post-conviction reductions of the level of offense or expungements pursuant to Penal Code Section 1203.4.

As almost all gun purchases occur through federally-licensed firearms dealers, the practical reality is that a federal ban on ownership will prohibit any ownership, even if gun rights are restored under California state law.  Based on our experience, only a pardon from the governor of California is effective at restoring your pardon under federal law as a pardon renders the conviction a legal nullity.

It should also be noted our law firm does not handle this type of work, but this is the law in the area of restoring gun rights. We refer people to the Los Angeles County Bar Association and the San Fernando Valley Bar for further information and any work on the matter.

CALIFORNIA STATE LAW

Under California law, a Penal Code 17(b) reduction of a felony charge to a misdemeanor is usually the quickest and easiest to obtain option for restoring your gun rights under California law. Note that, as discussed below, these reductions will likely not impact the federal gun restrictions which may apply to your case.

Penal Code 17(b) reductions result in the prior felony conviction being treated as a misdemeanor for all purposes, including the prohibition against felons possessing firearms. Once a court has reduced a wobbler to a misdemeanor pursuant to section 17, the crime is thereafter regarded as a misdemeanor for all purposes.

This unambiguous language means what it says, and unless the Legislature states otherwise, a defendant stands convicted of a misdemeanor, not a felony case.

FEDERAL LAW

Federal law often overlaps with California law with respect to those individuals whose gun rights are restricted or removed completely due to prior convictions. The most common restriction which gives rise to federal prosecutions is felon in possession.

Federal law prohibits the possession or ownership of a firearm by felons, which it defines as anyone convicted in any court of an offense punishable by more than one year. Notice the two possibly counterintuitive points about this rule:

  • Your conviction may have come from any court. You do not need to be convicted of a federal felony to lose your gun rights under federal law; and
  • The crime need only be punishable by more than a year.

If you were granted probation or sentenced to only a few days in jail, but the statute under which you were convicted can possibly result in 366 days or more of confinement, you may lose your gun rights for life under federal law.

There is an exception to this rule for State crimes classified as misdemeanors which are punishable by less than two years in jail. Contact a Los Angeles criminal defense attorney from our office for more information.

Unfortunately, federal courts have held that Section 17(b) reductions, as discussed above, do not restore federal gun rights. In general, the courts will look to the original charge of conviction and, if it is even possible to be sentenced to greater than one year, the gun ban will apply.

This affects many California defendants who have been convicted of “wobblers.” In California, a wobbler is a crime which may be charged as either a misdemeanor or a felony.  Section 17(b) is often used after the fact to reduce a felony conviction to the misdemeanor version of the same crime.  While these reductions still provide substantial benefits to the defendant under California law, restoration of federal gun rights is not one of them.

The federal firearm restriction does contain an exception for convictions which have been expunged, but specifies that the exception does not apply if the State law expungement procedure does not restore gun rights.

Once again, California residents are unlucky as Penal Code 1203.4, the expungement provision, explicitly states that it does not restore gun rights to those whose cases are dismissed pursuant to its provisions. Therefore, the federal exception for expunged convictions does not apply.

PARDON FROM CALIFORNIA GOVERNOR

There is only one relatively certain way to restore your federal gun rights: obtain a pardon. Pardons can be obtained from either the Governor of California or the President of the United States. In both cases, discretion over whether to grant a pardon rests entirely with the chief executive.

Who is eligible for a California gubernatorial pardon? Defendants who have been convicted of a California felony that are ineligible for reduction to a misdemeanor may be able to receive a gubernatorial pardon. Individuals convicted of misdemeanor sex crimes are also eligible.

Typically, the main requirement for a California gubernatorial pardon is exemplary behavior over a long period of time. An application for a pardon will not normally be considered unless you have been discharged from probation or parole for at least 10 years without any criminal activity during that time frame. If convicted of a felony under federal law, you must apply for a Presidential pardon. source

How Do I Restore My Firearm Rights Under Federal Law?

A felony conviction or a domestic violence conviction results in a state and federal firearm ban.  To buy a gun, you have to pass a state and federal background check.

Therefore, to fully restore your gun rights, you have to restore your firearm rights under both state and federal law.

Do I lose my federal gun rights if I was convicted of a felony in Washington state court?

Yes. 

Under the federal Gun Control Act of 1968, you cannot possess a firearm under federal law if you have been convicted of a crime “in any court” that carries a maximum punishment in any court that carries a maximum possible punishment of more than one (1) year in prison (18 U.S.C. 922(g)(1)).

In practice, this means that anyone convicted of a felony in state or federal court cannot own a possess a firearm under federal law.

Can I restore my federal gun rights in federal court?

No.

You can restore your state gun rights in state court, so you might naturally assume that you can restore your federal gun rights in federal court.  But the answer is no.  Why?

Under 18 U.S.C. 925(c), you can apply to the Bureau of Alcohol, Tobacco & Firearms to restore your gun rights.  And if your application is denied, then you can seek judicial review in federal court.

But since 1992, Congress barred ATF from spending money to review and investigate a felon’s application to restore gun rights.  Then, later, the U.S. Supreme Court ruled that “no action” does not equal a “denial.”  In other words, no denial equals no right to go to federal court.

How do I restore my federal gun rights if I have a federal conviction?

Because you can’t go to federal court (see above), a presidential pardon is essentially the only way to restore your federal firearm rights if you’ve been convicted of a federal felony.

In practice, therefore, you have very little chance of ever fully restoring your gun rights with a federal felony.

Can I restore my federal gun rights in Washington state court?

Yes. 

Under 18 U.S.C. 921(a)(20), a felony conviction does not prevent you from possessing a firearm if your civil rights have been restored or your conviction has ben vacated.  To restore your civil rights, however, you don’t go to federal court.  You go to state court.

A felony conviction three important rights: (1) the right to vote; (2) the right to serve on a jury; and (3) the right to hold public office.

In Washington, felons regain their civil rights after completing their sentence.  This typically requires serving all jail time and paying all court costs.  Once this happens, the court issues a Certificate of Discharge.

Example: You are convicted of felony drug trafficking in King County Superior Court.  You complete your sentence, and the Court issues you a Certificate of Discharge.  You cannot be federally prosecuted for possessing a firearm.

Keep in mind, however, that under Washington state law, a Certificate of Discharge does not restore your right to possess firearms.  You have to file a separate motion to restore your state gun rights in superior court.

If I restore my gun rights in Washington, are my federal gun rights automatically restored?

Not necessarily. 

In Washington, you can restore your gun rights without having to fully restore your other civil rights.  In that case, you would be eligible to possess a gun under state law but could still be prosecuted under federal law.

Example: You are convicted of a felony in Vancouver.  In 2019, you restore your state gun rights in Clark County Superior Court, although you still owe fines for the felony.  Because you still owe money, you have not completed your felony sentence, which means you are not entitled to a Certificate of Discharge, which means you have not restored your civil rights in Washington, which means that you can still be prosecuted under federal law.

Additionally, if you have felony convictions in multiple states, you may have to restore your gun rights in different states to restore your federal gun rights.

Can I restore my firearm rights if I’ve been committed to a mental health facility?

No.

Under 18 U.S.C. 922(g)(4), you cannot own or possess a firearm if you have been “adjudicated as a mental defective” or has “been committed to a mental institution.”

Under Washington State law (RCW 9.41.047), you also lose your firearm rights

You can, however, restore your firearm rights under Washington State law (RCW 9.41.047) for the exact same reason.

So what does mean in practice?  It means you can possess a firearm under state law (i.e. you cannot be prosecuted under state law for possessing a firearm).  But because you are not eligible under federal law, you will not be able to pass a federal background check or be eligible for concealed pistol license (CPL).

The Ninth Circuit Court of Appeals made this clear in a recent case in March 2020.

In Mai v. United States, the Court compared the two applicable statutes–RCW 9.41.047 and 18 U.S.C. 1922(g)(4)–and ruled that the federal law is more strict than the state law.

For example:  Washington law requires a a judge to find that a person “no longer presents a substantial danger” to others whereas federal law requires a judge to determination that a person “will not be likely to act in a manner dangerous to public safety.”

In other words, you could be a danger and be ineligible to possess firearms under federal law but not be a substantial danger and therefore be eligible to possess firearms under Washington law.

But that’s not all.  There’s no way for a Washington resident to overcome the federal legal barrier under 1922(g)(4).  Here’s why.

In some states, you can petition the local government to sign an order stating that you have overcome the federal legal barrier.  But the federal government won’t recognize the state order unless the state order complies with federal law, and as the Ninth Circuit ruled, Washington’s state program doesn’t.

Is a courts martial conviction considered a federal conviction?

Yes.  

In the military, courts-martial are trials that try members of the U.S. military for crimes under the Uniform Code of Military Justice (UCMJ).  The UCMJ is federal law, enacted by Congress, and lists all criminal offenses under military law.  Think of the UCMJ as the equivalent of all the RCWs in Washington State.

For this reason, a courts-martial conviction is effectively a federal conviction, not a state conviction.  A conviction at a general court-martial, for example, is equivalent to a felony conviction in a U.S. federal district court. source

]]> Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi https://goodshepherdmedia.net/fifth-circuit-strikes-down-domestic-violence-prohibitor-in-united-states-v-rahimi/ Wed, 07 Jun 2023 06:47:33 +0000 https://goodshepherdmedia.net/?p=14579 Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi

On February 2, a Fifth Circuit panel ruled in United States v. Rahimi, striking down the federal law prohibiting gun possession by anyone subject to a domestic violence restraining order issued after notice and a court hearing.  A district judge in Texas previously held 18 U.S.C. § 922(g)(8) unconstitutional in November, in a decision we covered here, as did a district judge in Kentucky the same day that Rahimi was issued; at least one other district court has upheld the prohibition as “consistent with the longstanding and historical prohibition on the possession of firearms by felons.”  The decision in Rahimi is currently the sole published circuit court opinion applying Bruen, after the Third Circuit’s panel decision in Range v. Attorney General, upholding the felon prohibitor, was vacated for rehearing ­en banc last month.

[NOTE: On March 2, the Fifth Circuit panel withdrew its prior opinion and filed a revised opinion, which reaches the same result regarding the constitutionality of 922(g)(8).]

A different Fifth Circuit panel initially rejected Rahimi’s challenge to 922(g)(8) in an unpublished per curiam decision issued on June 8, 2022, about two weeks before Bruen was decided.  The earlier decision merely noted that the Second Amendment claim was foreclosed by binding Fifth Circuit precedent upholding 922(g)(8) under the hybrid test rejected by Bruen (Jake covered that decision in United States v. McGinnis here).  After Bruen, the Fifth Circuit ordered that the prior panel decision be withdrawn, the parties filed additional briefs addressing the impact of Bruen, and the case was re-argued before a new panel.

The new decision was written by Judge Cory Wilson, who was appointed to the Fifth Circuit in 2020.  Writing for a unanimous panel, Judge Wilson first summarized the facts.  The defendant-appellant “was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after [his] alleged assault of his ex-girlfriend.”  Rahimi proceeded to become “involved in five shootings in and around Arlington, Texas,” including multiple road-rage incidents in which he discharged a weapon.  Police identified him as a suspect and searched his home, and he was charged with possessing weapons while subject to the protective order in violation of federal law.

The opinion next addressed the government’s argument that the Second Amendment only applies to “law abiding, responsible citizens.”  The decision largely endorses Justice Barrett’s dissent in Kanter v. Barr, opining that the Second Amendment right extends initially to all members of the “political community” (quoting Heller) and that the references to “law-abiding,” “responsible,” and “ordinary” citizens in Heller and Bruen “do[] not add an implied gloss that constricts the Second Amendment’s reach.”  Judge Wilson also noted that, as Justice Barrett has observed, “the deprivation [of a right normally] occurs because of state action.”  Finally, the opinion asked whether “speeders” or “[p]olitical nonconformists” could be stripped of their Second Amendment rights entirely under a “law-abiding-only” theory.

The opinion then summarized and applied Bruen’s historical-tradition test.  At the “plain text” step, Judge Wilson held that “possession of a pistol and a rifle easily falls within the purview of the Second Amendment.”  Next, he turned to the central question of “whether § 922(g)(8) falls within th[e nation’s] historical tradition, or outside of it,” which requires an evaluation of whether proposed analogues imposed “comparable burdens” and were “comparatively justified,” when contrasted to the modern law.  The decision considered, and rejected in turn, three potential categories of historical analogues offered by the government: “(1) English and American laws (and sundry unadopted proposals to modify the Second Amendment) providing for disarmament of ‘dangerous’ people, (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.”

First, laws that disarmed those considered dangerous at the time were either too old (as with the English Militia Act of 1662), were primarily focused on preventing rebellions or maintaining the social order rather than ensuring public safety, “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” or were minority proposals in state ratifying conventions that were ultimately not adopted.  Second, the early colonial successors of the Statute of Northampton that criminalized “going armed to terrify the King’s subjects” (or some variation thereof) generally did not require guns to be forfeited as a penalty, were aimed only at “curbing terroristic or riotous behavior,” and disarmed individuals only after a full criminal (not civil) proceeding.  Third, the opinion observed that surety statutes were “closer to being ‘relevantly similar’ to § 922(g)(8)” because they were similarly based on an individualized assessment of dangerousness and “required only a civil proceeding, not a criminal conviction.”  However, Judge Wilson ultimately found that surety laws did not comparably burden the right to carry because they only required posting of a bond, and not gun forfeiture.  Therefore, the panel struck down 922(g)(8) as unconstitutional, while observing that any consideration of the law’s “salutary policy goals” is now foreclosed by Bruen.

Judge James Ho wrote a separate concurrence in which he asserted that “the Second Amendment has too often been denigrated as ‘a second-class right’” and said he was “pleased to concur” in a decision that “dutifully follows the framework recently set forth in N.Y. State Rifle.”  The thrust of the concurrence was, seemingly, to emphasize that existing criminal statutes (including laws that criminalize threatening behavior) are sufficient to address the potential use of guns in domestic violence, in Judge Ho’s view—this view could have major consequences for extreme risk protection, or “red flag,” laws, which are similarly issued after a civil, not a criminal, proceeding.

A major theme of both the decision and the concurrence seems to be the distinction between disarming someone based solely on a civil proceeding versus disarming convicted felons and misdemeanants and detaining dangerous criminals pre-trial. (The earlier district court decision in United States v. Quiroz, which Jake covered here, similarly emphasized that those under indictment can still vote, but convicted felons cannot).  The panel opinion noted that “[t]he distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history,” and that 922(g)(8) disarms individuals “subject merely to civil process.”  Judge Ho’s concurrence heavily implies that the U.S. never contravenes any constitutional right without criminal process: “when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime.”

But the Supreme Court has long held that states may utilize a “clear and convincing” standard for involuntary civil commitment proceedings.  That’s a slightly higher evidentiary bar than the one used at Rahimi’s restraining order hearing (most likely, preponderance of the evidence), but the deprivation (commitment of the individual to an institution) is also certainly more severe.  Consider also that those indicted for a criminal offense are often detained pre-trial based on a showing by “preponderance of the evidence” that they pose a flight risk.  It’s clear that our nation has historically allowed significant restraints on even more basic rights without “the fundamental protections that our Constitution affords to those accused of a crime.”

The restraining order in Rahimi’s case was effective for two years from the date of issue, and it appears to be a permanent protective order—which are issued in Texas after notice and a hearing, and which require the family court to find that “(1) family violence has occurred; and (2) family violence is likely to occur in the future.”  There may be legitimate concerns about ex parte temporary restraining orders, which normally use a lower evidentiary standard and, of course, are issued without prior notice to the accused; and some states do prohibit those subject to ex parte TROs from possessing firearms.  A disgruntled fan infamously obtained such an order against David Letterman in 2005, despite having no evidence to support her allegations, although reliable empirical data on the use and misuse of ex parte TROs is elusive (for one perspective, see this 2014 law review article).  But 922(g)(8) does not cover orders issued without notice and a hearing, and the family judge in Rahimi’s case conducted a hearing, weighed the evidence, and issued a restraining order for the maximum time permitted by state law without special additional factual findings.

I’m really not sure what to make of the panel’s choice to distinguish colonial-era “dangerousness” laws because those laws “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.”  That’s certainly a difference between the potential historical analogue and 922(g)(8), but it’s hard to see why the difference should hold any legal significance.  The panel’s approach here suggests that the federal government would be on more solid ground if took a less-tailored approach to the problem—then, the modern law would work in a similar way to the potential historical analogue.  Say, for example, that domestic violence is most likely to occur among young, low-income people in densely-populated areas.  If the federal government decided to prohibit all individuals below a certain age and income level who live in a densely-populated area from possessing a firearm, with the stated goal of reducing gun-involved domestic violence, under the analysis in Rahimi that law is seemingly more likely to survive a Second Amendment challenge post-Bruen than 922(g)(8).  The “individualized” piece of 922(g)(8)—the fact that the law only disarms those individuals against whom a protective order is entered after notice and a civil hearing—makes the law constitutionally suspect, in the panel’s view, because it is non-analogous to historical laws that were less targeted.

I don’t think the panel actually intends to endorse a less-individualized approach to dealing with the problem along the lines described above.  But it’s hard to read the decision in a way that doesn’t shackle modern legislators to historical regulatory choices nearly absolutely.  If historical legislatures didn’t conceive of a certain regulation, a modern legislature can’t enact that regulation.  And, if historical legislatures regulated in a way that, today, we accept sweeps far too broadly or was based on improper stereotypes, modern legislatures are also powerless to address similar problems in a more-tailored or individualized way.  That would be a truly odd result.  In this vein, Rahimi quotes extensively from Bruen but notably omits the majority’s observation that “cases implicating unprecedented societal concerns . . . may require a more nuanced approach,” and any discussion of whether modern concern for preventing domestic violence is “unprecedented” or what it means to conduct a “more nuanced” inquiry.

Finally, Bruen emphasized that may-issue licensing was on the books in only a small number of states—that fact clearly held some relevance for the majority, but how it actually factors into the analysis of Second Amendment claims going forward is unclear.  It’s notable, however, that Justice Kavanaugh and Chief Justice Roberts—two key votes in the event that this case (or a similar challenge) goes up to the Supreme Court in the coming years—devoted substantial space in their Bruen concurrence to the following points:  (1) that New York’s approach was an outlier in terms of the prevailing nationwide approach to concealed-carry licensing, and (2) that their decision to join the majority turned to some degree on the fact that New York gave “unchanneled discretion [to] licensing officials.”  By one count, 28 states currently prohibit those subject to a domestic violence restraining order issued after notice and a hearing from possessing firearms, and another 15 states authorize such an individual to be disarmed if certain additional conditions are met.  There’s clearly no discretion involved here—an individual either is, or is not, subject to a disqualifying order. source

 

Learn More on 2nd Amendment Cases for Weed and other things you may care about:

Federal Judge Rules Gun Ban for Weed Smokers Unconstitutional Feb 2023

Another Court Strikes Cannabis Gun Control Law – United States v. Daniels Aug 2023

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi June 2023

 

 

CHANGES TO GUN LAWS ARE A-BRUEN: SOLIDIFYING THE SECOND AMENDMENT IN THE FIFTH CIRCUIT

After his suspected involvement in five shootings in a Dallas, Texas suburb, police found multiple weapons in Zackey Rahimi’s residence. But, Rahimi was prohibited from owning those weapons because he was subjected to a civil protective order restraining him from contact with his ex-girlfriend and their child. As such, Rahimi was indicted and pled guilty to “possessing a firearm while under a domestic violence restraining order[,] in violation of 18 U.S.C. § 922(g)(8).”

On appeal, Rahimi challenged the constitutionality of § 922(g)(8). Though the initial Fifth Circuit panel held that his argument was foreclosed by its prior case law, the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen forced the prior panel to withdraw its opinion and reconsider the case. In the second hearing conducted by a new panel, Rahimi argued twofold: first, that Bruen altered Fifth Circuit precedent foreclosing his argument, and second, that § 922(g)(8) was unconstitutional under Bruen.

To the first point, the Fifth Circuit held that Bruen requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” thereby rejecting means-end scrutiny and fundamentally transforming constitutional analysis surrounding the Second Amendment.

Substantively, the Fifth Circuit first recognized that Rahimi is still entitled to Second Amendment protection despite his criminality, reasoning that the Second Amendment cannot be treated differently than other individual rights (and in that vein, cannot be limited). Because the court found that Rahimi possessed the right to own a gun like every other American, § 922(g)(8)’s constraint could only stand if the government proved the regulation’s consistency with “relevantly similar” purpose and procedure for historical practice regulating firearms. Specifically, Rahimi’s right to own a gun would be forfeited if “his conduct ran afoul of a ‘lawful regulatory measure.’”

Ultimately, the court held that no relevantly similar historical regulations existed to justify § 922(g)(8)’s prohibition on the possession of firearms for the goal of protecting a person from domestic gun abuse by a “credible threat.” The court reasoned that despite facial similarities to past practices regulating on the basis of “dangerousness,” historical regulations generally disarmed dangerous classes, not specific individuals. Therefore, the Fifth Circuit held that § 922(g)(8) is outside the scope of firearm regulations traditionally consistent with the Second Amendment.

The Fifth Circuit’s decision ultimately strengthens the Second Amendment while leaving a legal void for public safety initiatives specifically related to domestic violence. While the court noted that the statute serves a “laudable policy goal,” its focus on historical context promises to continue to change the perspective on gun laws post-Bruen. Given its impact on federal law, Attorney General Merrick Garland has indicated that the Supreme Court is likely to take up review, which opens the door for needed clarity on a fundamental constitutional issue. source

 

United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023)

5th Circuit Court Rejects Concept of Progress and Arms Domestic Abusers

The current Supreme Court’s precedent locks the law (but not our guns!) away in the past forever.

Earlier this week, we took a little trip to New Orleans to look into the wingnut terrarium that is the 5th Circuit Court of Appeals, the place where bad ideas receive lifesaving CPR and good ideas are left to die by the side of the road. They couldn’t wait a week to give us another vivid example.

For 30 years, a federal law has banned people under restraining orders from possessing firearms. Let us pause for a moment to contemplate how much sense this law makes. Ah, but 30 years? Not so fast, sayeth the 5th Circuit. From CNN:

The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing. “Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said[…]The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence.

The 5th Circuit panel was not persuaded by the historical parallels put forward by the US Justice Department, which was defending the conviction of a person who possessed a firearm while under a domestic violence restraining order that had been imposed after he was accused of assaulting his ex-girlfriend. The Justice Department argued that the domestic violence law was analogous to 17th-and 18th century regulations that disarmed “dangerous” persons. “The purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another,” the 5th Circuit opinion read. “Therefore, laws disarming ‘dangerous’ classes of people are not ‘relevantly similar’” to “serve as historical analogues.”

Let us pause again and consider the swamp of absurdity upon which the Justice Department was forced to argue its case, courtesy of the carefully constructed conservative majority on the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen. The DOJ had to find historical analogs from the 17th and 18th Century in order to prevail, which it was never going to do anyway because the 5th Circuit is thick with larval Scalias. Domestic violence has been with us always, but can we all at least agree that our understanding of domestic violence has improved since the early days of the Washington administration? Jeebus H. Christmas, we are through the looking glass, and the bedroom wall behind it as well.

The Justice Department signaled Thursday night that it plans to appeal the ruling. Attorney General Merrick Garland said in a statement that Congress had determined the statute “nearly 30 years ago…Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said. The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal.

Guns or knives, General Garland? Unless the DOJ has a medium on salary who can conjure up Mercy Otis Warren, Abigail Adams, or Mary Wollstonecraft to carry its argument, I don’t hold out much hope for the 21st Century under either alternative.

Maybe they all should go backto powdered wigs and waistcoats. source

Zackey Rahimi

FILE – A man walks in front of the 5th U.S. Circuit Court of Appeals on Jan. 7, 2015, in New Orleans. A federal appeals court cleared the way Friday, Aug. 19, 2022, for a lawsuit to proceed against guards and officials at a privately run north Louisiana jail where an inmate died with a fractured skull in 2015. The lawsuit includes allegations that guards at Monroe’s Richwood Correctional Center sometimes beat and pepper-sprayed handcuffed prisoners in an area where there were no security cameras. (AP Photo/Jonathan Bachman, File)

Rahimi is accused of being involved in five shootings in the Arlington area from December 2020 to January 2021.

Police said he fired multiple shots with an AR-15 rifle at the home of a person where he’d sold narcotics on Dec. 1. The next day, he was in a car accident, and police say he shot at the other driver. Rahimi allegedly fled the scene and came back a second time to shoot at the other driver’s car.

He was accused of shooting at a constable’s car Dec. 22 and firing multiple shots into the air at a Whataburger after his friend’s credit card was declined on Jan. 7.

Arlington police officers served a warrant at Rahimi’s home. They reported finding a .45-caliber pistol, .308-caliber rifle, pistol and rifle magazines, ammunition and about $20,000 in cash. Police said they also found a copy of a protective order against Rahimi in the home from February 2020. Rahimi was accused of assaulting the mother of his child.

Protective orders must fulfill three requirements for federal charges to be filed under the Violence Against Women Act: The person must be notified of a hearing and have the opportunity to respond. The order also must forbid harassing, stalking or threatening an intimate partner or their child and have proof of a credible threat.

Federal prosecutors determined that Rahimi’s case met all the requirements, and he was indicted by a federal grand jury in the Northern District of Texas. The charge is punishable by up to ten years in prison.

Rahimi moved to dismiss the indictment, arguing that the domestic violence law violated his Second Amendment rights. A federal district court denied that motion noting that the 5th Circuit upheld that law in a 2021 case. The 5th Circuit affirmed that decision, so Rahimi then pleaded guilty. He was sentenced to 73 months imprisonment followed by three years of supervised release.

The Supreme Court released a ruling that prompted the 5th Circuit to revisit its decision. The lower court ended up reversing its previous ruling and vacated Rahimi’s conviction.

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees,” the ruling said.

 

A new legal framework

The 5th Circuit looked at the Rahimi case again after a 2022 ruling from the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen. The Supreme Court ruled in that case that gun regulations need historical precedent from when the constitution was written.

Eric Ruben, an assistant professor at Southern Methodist University’s Dedman School of Law, said courts are having to look back centuries to find legal precedent.

“The modern-day court — addressing a modern-day law, addressing modern-day problems — has to find a historical analog from the late 1700s or maybe into the 1800s before it can uphold the modern law,” Ruben said.

Ruben testified at a Senate committee hearing after Bruen about gun safety. He said courts are bringing in historians to help interpret gun laws.

Ruben said Bruen’s framework is unprecedented. He said there’s “no other areas of constitutional rights” law that requires courts to draw analogies to 18th and 19th century laws as the sole way to prove constitutionality.

He also said the Supreme Court’s ruling lacks clarity because courts have applied the same laws from history in different ways. Both the 3rd and 8th Circuit Courts of Appeals ruled in previous cases that there was historic precedent for the current federal law because of a history of disarming dangerous people.

The government cited some of those same laws in its legal arguments in the Rahimi case. The 5th Circuit ruled that those laws weren’t enough of a clear historic precedent to allow for disarming people who are subject to protective orders.

“They disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” the court said.

The Department of Justice raised these diverging rulings on the same historic laws in its petition to the Supreme Court. The justice department wants the court to take up the Rahimi case and uphold the law, overturning the 5th Circuit’s ruling. source

Appeals court strikes down gun ban for people with domestic violence restraining orders

 

An appeals court panel on Thursday struck down a federal law banning people who have domestic violence restraining orders from possessing firearms.

The 5th Circuit three-judge panel, all nominated by Republican presidents, ruled that the law was no longer constitutional under the Supreme Court’s landmark expansion of Second Amendment rights last summer.

The Supreme Court justices ruled in the June New York State Rifle & Pistol Association v. Bruen decision that firearm regulations must be consistent with the nation’s historical tradition, and that lower courts could no longer weigh the societal benefits of the policies.

That shift proved fatal for the law, which was upheld previously and prohibited those under domestic violence court orders from possessing firearms.

Zackey Rahimi, who previously pled guilty to charges under the provision, appealed his conviction after the high court’s decision.

“Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated,” Judge Cory Wilson, a nominee of former President Trump, wrote.

Wilson and the other two judges, appointed by Trump and former President Reagan, pushed back on the Justice Department’s array of examples attempting to show a historical analogue for the law.

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history and tradition of the Second Amendment, that statute is consitutional,” Attorney General Merrick Garland said in a statement. “Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

The panel also rejected arguments that Rahimi was not entitled to Second Amendment protections because he was neither responsible nor law-abiding.

The challenge arose after Rahimi was found in possession of firearms while under a restraining order for allegedly assaulting his ex-girlfriend.“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” Wilson wrote.

The ruling marks one of the first major circuit court decisions after the Bruen ruling, which has shifted the landscape for legal battles over firearms.

Gun control and gun rights advocates are battling in the courts over new laws that ban firearms in so-called sensitive locations, pose restrictions for obtaining permits and increase liability for gun manufacturers.

Legal Analysis: Firearms and Protection Orders in US v Rahimi

On February 2, 2023, the Fifth Circuit Court of Appeals issued a decision causing alarm nationwide among advocates for survivors of domestic violence. U.S. v. Rahimi, No. 21-11001 (5th Cir. 2023). To be clear, the Fifth Circuit Court of Appeals does not set precedent applicable to interpreting federal law outside its own jurisdiction covering Texas, Mississippi, and Louisiana. In other words, the decision does not govern how Minnesota applies law. However, the decision represents how one federal judicial circuit withdrew its own prior analysis of relevant law after a recent U.S. Supreme Court decision. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022); see also Rahimi at 2. The decision reinforces the Minnesota Elder Justice Center’s mission to mobilize communities to prevent and alleviate abuse, as well as its value of openhearted collaboration.

The Fifth Circuit Court of Appeals decision finds unconstitutional a federal law prohibiting individuals subject to restraining order from possession firearms. Rahimi at 2. The decision’s reasoning emphasizes the need for collaboration and engagement from both the criminal justice system and community-based organizations in addressing the needs of individuals experiencing domestic violence at any age. See Rahimi at 21. The court correctly identifies the court proceedings for restraining orders as civil. A civil proceeding is one initiated by individuals or non-governmental entities. A civil proceeding contrasts with a criminal proceeding, which is initiated by a governmental entity on behalf of the public it serves. The Fifth Circuit Court of Appeals considered a law prohibiting firearm possession by individuals subject to restraining orders as unconstitutional because, without the procedural rights accorded in criminal law, the law is an “outlier that our ancestors would have never accepted.” Id. at 22, quoting Bruen at 21. A concurring opinion reminds readers that criminal law allows for “the incarceration of those who criminally threaten, but have not (yet) committed, violence.” Rahimi at 24. For example, law enforcement and prosecutors’ offices may engage in violence prevention on charges of terroristic threats. In closing its decision, the panel of judges prioritized a token of praise for the federal law deemed unconstitutional, identifying that it “embodies salutary policy goals to protect vulnerable people in our society.” Rahimi at 22. Nonetheless, the decision is a source of pain, anger, and uncertainty among those leaning on civil remedies for protecting individuals for whom criminal remedies have not seemed sufficiently expedient or effective.

The Minnesota Elder Justice Center will continue to include harassment restraining orders and order for protection among the remedies suggested and offered to individuals who contact us for help alleviating abuse. Meanwhile, we take seriously the Fifth Circuit Court of Appeal interpretation that makes collaboration with our partners in law enforcement and prosecutors’ offices indispensable in restricting firearm access from individuals presenting provable threat to the safety and security of vulnerable and older adults.

By Laura Orr, Staff Attorney

Minnesota Elder Justice Center

 

Learn more about your gun rights:

Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi

US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

New York State Rifle and Pistol Association v. Bruen

 

 

 

]]> NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights https://goodshepherdmedia.net/nra-challenges-illinois-semiautomatic-gun-ban-in-court-blatant-violation-of-second-amendment-rights/ Wed, 11 Jan 2023 07:52:24 +0000 https://goodshepherdmedia.net/?p=9662 NRA challenges Illinois semiautomatic gun ban in court: ‘Blatant violation’ of Second Amendment rights

NRA says it will not ‘stand by while activist politicians pass unconstitutional laws’

By Emma Colton | Fox News

EXCLUSIVE — The National Rifle Association (NRA) filed a lawsuit Tuesday against the state of Illinois over its recent gun control law that the group says is “unconstitutional” and a “blatant violation” of constitutional rights.

“The NRA will not stand by while activist politicians pass unconstitutional laws that do nothing to promote public safety. We sued the state of Illinois because this new law is a blatant violation of Americans’ Second Amendment rights,” Jason Ouimet, executive director of the NRA Institute for Legislative Action (NRA-ILA), told Fox News Digital.

The Illinois Senate passed its version of the Protect Illinois Communities Act earlier this month, banning so-called assault weapons and high-capacity magazines from being manufactured or sold in the state.

Gov. J.B. Pritzker then signed the bill into law, prohibiting the manufacture and sale of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate. The law also requires residents to register their banned firearms.

“The Supreme Court has repeatedly ruled that the Second Amendment protects firearms that are in common use,” Ouimet continued in his comment to Fox News Digital. “AR-15s are the most popular rifle in America with millions being lawfully used every day. In fact, in 2020, more than three times as many AR-15s were sold as Ford F150s. Further, less than 2 percent of all gun crime is committed with these types of rifles. The governor signed this bill to advance a political agenda, not to protect his constituents.”

AR-15-style rifles are on display at Freddie Bear Sports in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak / Chicago Tribune / Tribune News Service via Getty Images)

Ouimet was citing a federal judge in California who ruled in 2021 that California’s ban on so-called assault weapons was unconstitutional and that F-150 pickup trucks were wildly popular in 2018, with 909,330 vehicles sold, but that “twice as many modern rifles were sold the same year.”

Ouimet added in a comment to Fox News Digital, which comes two weeks after the Illinois legislation was signed into law, that the “NRA has worked diligently to put together the strongest lawsuit possible.”

“While some rush to file litigation first out of the gate, we work to file the strongest legal challenge, one that will withstand the lengthy litigation process,” he said. “We filed Bruen (New York State Rifle & Pistol Association Inc. v. Bruen) in February 2018, and the Supreme Court did not issue its ruling on that case until June 2022. We know firsthand that filing the right suit is paramount to making sure that we have the best chance at the best outcome for our members and gun owners.”

The NRA and other Second Amendment advocates have argued that the ban targets commonly owned and purchased firearms and magazines, thus violating the Constitution.

More than six dozen sheriffs have also come out against the law, vowing to defy the bans they have also characterized as unconstitutional.

National Rifle Association Executive Vice President Wayne LaPierre speaks during the NRA-ILA meeting at the George R. Brown Convention Center, May 27, 2022, in Houston. (AP Photo / Michael Wyke)

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a recent Facebook post.

“One of those rights enumerated is the right of the people to KEEP and BEAR ARMS provided under the 2nd Amendment. The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

Illinois Gov. J.B. Pritzker (AP Photo / Charles Rex Arbogast / File)

The sheriff of DuPage County, Jim Mendrick,added in his own statement this month: “Neither myself nor my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law-abiding individuals that have been arrested solely with non-compliance of this Act.”

He is now coming under fire from lawmakers who say he doesn’t have the authority to override laws.

Mendrick fired back, saying that “there is absolutely nothing that we are doing or not doing that would make a mass shooting more accessible in DuPage County.”

“In fact, I have asked on multiple occasions to increase penalties on all existing gun crimes, but it does not appear that they want to have that conversation. They seem more concerned with lawful gun owners than people illegally possessing guns,” the sheriff added.

Pritzker’s office slammed the sheriffs for vowing to not enforce the law in a comment to Fox News Digital last week, calling their statements “political grandstanding at its worst.”

“The assault weapons ban is the law of Illinois,” Pritzker’s office told Fox News Digital on Monday. “The General Assembly passed the bill and the governor signed it into law to protect children in schools, worshippers at church and families at parades from the fear of sudden mass murder.”

“Sheriffs have a constitutional duty to uphold the laws of the state, not pick and choose which laws they support and when. We’re confident that this law will hold up to any future legal challenges, but again, it is the current law of our state. Anyone who advocates for law, order, and public safety and then refuses to follow the law is in violation of their oath of office,” the governor’s office said.

 

Dozens of Illinois sheriffs vow to defy governor’s assault weapons ban

Gov. Pritzker signed gun-control legislation into law earlier this month

By Emma Colton | Fox News

More than six dozen Illinois sheriffs have vowed to defy a gun-control law signed by Democratic Gov. J.B. Pritzker that bans semiautomatic rifles.

“Part of my duties that I accepted upon being sworn into office was to protect the rights provided to all of us, in the Constitution,” Edwards County Sheriff Darby Boewe said in a Facebook post.

“One of those rights enumerated is the right of the people to KEEP and BEAR ARMS provided under the 2nd Amendment. The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

Boewe is one of at least 74 sheriff offices that have posted statements in opposition of the law, according to ABC News.

The Illinois Senate passed its version of the “Protect Illinois Communities Act” last Monday. The bill bans assault weapons and high-capacity magazines from being manufactured or sold in the state. Pritzker signed the bill into law last Tuesday, banning the manufacturing and sale of types of semiautomatic rifles and pistols, .50-caliber guns, as well as attachments that can increase a gun’s fire rate.

AR-15-style rifles are on display at Freddie Bear Sports gun shop in Tinley Park, Illinois, on Aug. 8, 2019. (Zbigniew Bzdak/Chicago Tribune/Tribune News Service via Getty Images)

The Illinois Sheriff’s Association said in a statement that it opposed the bill since its inception.

“We, as a representative of chief law enforcement officials throughout Illinois, are very concerned and disturbed by the ongoing and escalating violence throughout our State and Country,” the statement, released Wednesday, said.

“We are always supportive of new tools, techniques and laws that assist us in preventing and holding accountable those that wage efforts of harm and violence on others. However, this new law does not do that.”

Illinois Gov. J.B. Pritzker (AP Photo/Charles Rex Arbogast/File)

Richland County Sheriff Andrew R. Hires said in a Facebook post that “The right to keep and bear arms for defense of life, liberty and property is regarded as an inalienable right by the people.”

“I, among many others, believe that HB 5471 is a clear violation of the 2nd Amendment to the US Constitution,” Hires said.

There are at least 102 sheriff’s offices in Illinois. The 74 offices vowing to defy the new law will affect roughly 30% of residents in the state, according to ABC News.

The Illinois State Capitol (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images/File)

Cook County, the state’s most populous county that is home to about 40% of the Illinois population, has not spoken out against the law.

Pritzker said during an interview on MSNBC last week that sheriffs opposing the law are taking part in “political grandstanding.”

“It’s our state police and law enforcement across the state that will, in fact, enforce this law, and these outlier sheriffs will comply or, frankly, they’ll have to answer to the voters,” Pritzker said.

His office added in comment to Fox News Digital on Monday that “sheriffs have a constitutional duty to uphold the laws of the state.”

“This is political grandstanding at its worst.  The assault weapons ban is the law of Illinois. The General Assembly passed the bill and the Governor signed it into law to protect children in schools, worshippers at church, and families at parades from the fear of sudden mass murder,” a Pritzker spokesperson said.

“Sheriffs have a constitutional duty to uphold the laws of the state, not pick and choose which laws they support and when. We’re confident that this law will hold up to any future legal challenges, but again, it is the current law of our state. Anyone who advocates for law, order, and public safety and then refuses to follow the law is in violation of their oath of office.”

Fox News’ Greg Wehner contributed to this report.

Semiautomatic weapons ban becomes Illinois law

Opponents vow to challenge the IL legislature’s sweeping gun ban in court

Illinois banned the sale or possession of semiautomatic weapons Tuesday when Gov. J.B. Pritzker signed legislation driven largely by the killing of seven people at a 4th of July parade last year in the Chicago suburb of Highland Park.

Pritzker acted without hesitation after the House voted 68-41 to make Illinois the ninth state, as well as Washington, D.C., to prohibit the sale or possession of semiautomatic weapons. The vote concurred with a plan the Senate OK’d Monday night.

Pritzker, who was sworn into his second term on Monday, celebrated the culmination of what he described as a four-year struggle against “the powerful forces” of gun advocacy groups.

“We will keep fighting — bill by bill, vote by vote, and protest by protest — to ensure that future generations only hear about massacres like Highland Park, Sandy Hook, and Uvalde in their textbooks,” Pritzker said in a statement.

In his inaugural address Monday, the Democrat abhorred not only the Highland Park mass shooting that also left 30 injured, but frequent gun violence in Chicago, notably the gun play that killed two 16-year-olds and injured two others last month at Benito Juarez High School on Chicago’s west side.

Critics warn the governor’s signature will trigger court challenges, which will ultimately overturn the law as a violation of the 2nd Amendment.

Ed Sullivan, a lobbyist for the Illinois State Rifle Association, said legal action will be swift. Senate President Don Harmon closed debate on Senate action Monday night by boldly declaring to critics, “See you in court.” The ISRA responded, “Challenge accepted.”

State Republicans, whose 45 seats dropped by five with a new General Assembly taking over on Wednesday, were left snarling during debate. Rep. Blaine Wilhour of Beecher City, 97 miles northeast of St. Louis, snidely complained that Democrats “despise our Founders.”

“A government willing to defy our Constitution is a government that is completely out of control. So you can sit here and dictate whatever you want today,” Wilhour said. “But I can tell you that we will not comply and you’re not going to do a darn thing about it because the law, the Constitution and the founding principles are on our side.”

The legislation bans dozens of specific brands or types of rifles and handguns, .50-caliber guns, attachments and rapid-firing devices. No rifle will be allowed to accommodate more than 10 rounds, with a 15-round limit for handguns.

Those who already own such guns will have to register them, including serial numbers, with the Illinois State Police. The new law enables merchants to sell or return current stock and Illinois-based manufacturers can sell their wares outside Illinois or to law enforcement.

A semiautomatic weapons ban passed by the Illinois legislature was signed into law by Gov. J.B. Pritzker on Tuesday. (Fox News)

Speaker Emanuel “Chris” Welch introduced his mother, Willie Mae Welch, who was with him on the House floor. Welch told how, as a teenager in 1985, his mother’s sister was fatally shot while sitting in a car outside her church. Welch’s aunt had three young girls. His parents, despite having three boys of their own, took them in. No assailant was ever apprehended.

“It’s time that we protect Illinois communities,” Welch said. “It’s time that we protect Illinois families. Let’s end families having to change overnight. Let’s not lose any more brothers and sisters, children to gun violence.”

Welch, a Democrat from the Chicago suburb of Hillside, took the lead on the measure from the original sponsor, Rep. Bob Morgan, a Democrat from suburban Deerfield who was participating in the Highland Park parade when the shooting began.

Eight states and the District of Columbia currently have bans on semiautomatic weapons, according to Tanya Schardt, working in favor of the legislation for the Brady Campaign. They differ in their definitions of semiautomatic weapons, but generally they ban 10-round clips for long guns and handguns. The bans have survived constitutional challenges in scores of courts, she said.

Five states — California, Connecticut, Hawaii, New Jersey and New York — require registration of guns purchased previous to the law, Schardt said. The other three states with bans are Delaware, Maryland and Massachusetts.

Registration often angers current owners but most tolerate the collection of information, Schardt said.

The legislation also provides protection. If police stop a car driven by a semiautomatic gun owner, for example, they can instantly check to ensure it’s legally owned. And it allows law enforcement to trace a gun that, for example, is stolen and used in a crime.

The Senate changed Morgan’s initial proposal, but compromised on changes the House could accept. For example, Morgan proposed raising the age to 21 for obtaining a Firearm Owners Identification card, but the current version allows those younger to get one with parental permission.

source

Second Amendment groups warn of Illinois gun control bill heading to governor’s desk

Gun Owners of America said Illinois lawmakers are ‘bending and ignoring the constitution’

 

Gun rights groups are promising to fight a proposed semiautomatic weapons ban in Illinois after the state Senate advanced gun control legislation championed by Democrats.

The Illinois Senate on Monday passed its version of the “Protect Illinois Communities Act,” which would ban so-called assault weapons and high-capacity magazines from being manufactured or sold in the state. The bill also makes devices intended to increase the rate-of-fire of semiautomatic weapons illegal, and increases the duration of a firearm restraining order from six months up to one year under the state’s red flag law.

“Gun violence is an epidemic that is plaguing every corner of this state and the people of Illinois are demanding substantive action,” said Democratic Senate President Don Harmon. “With this legislation we are delivering on the promises Democrats have made and, together, we are making Illinois’ gun laws a model for the nation.”

The legislation would ban the manufacture or possession of dozens of brands and types of rapid-fire rifles and pistols, .50-caliber guns and attachments that enhance a weapon’s firepower. Those who currently own such guns would not be required to surrender them but would have to register them with the Illinois State Police — including serial numbers, a provision initially removed by the Senate but restored after House proponents’ objections.

Gov. J.B. Pritzker speaks after being sworn in for a second term Monday, Jan. 9, 2023, during the inauguration ceremony at the Bank of Springfield Center in Springfield, Illinois. (Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images)

Merchants, who are federally licensed to sell such weapons, would be able to dispose of their current inventory by returning them to manufacturers or selling them.

In total, the bill would ban the future sale of nearly 100 different kinds of semi-automatic pistols, shotguns and rifles, which the legislation defines as “assault weapons.”

The National Rifle Association and other Second Amendment advocates say the legislation bans many commonly-owned rifles and goes beyond previous attempts to outlaw certain firearms.

“Not only does this tyrannical proposition infringe on the rights of all Illinois citizens, but it is also extremely dangerous,” Gun Owners of America said in a call to action opposing the bill.

The Illinois State Capitol on Jan. 6, 2022, in Springfield, Illinois. (Armando L. Sanchez/Chicago Tribune/Tribune News Service via Getty Images)

“These commonly owned semi-automatic firearms are used countless times every year to save lives and deter crime. Banning them will only prevent law-abiding citizens from purchasing the best firearm to defend themselves. Not to mention, the requirement to register currently owned firearms is vehemently unconstitutional,” the group argued.

The Illinois State Rifle Association said a more apt title for the bill would be, “bending and ignoring the constitution in an effort to take away your Second Amendment rights to bear arms in Illinois.” The group has said it will take legal action if the bill becomes law.

An empty chairs and bicycles remain near the scene of the shooting in Highland Park, Illinois, on July 5, 2022. (Photo by Jacek Boczarski/Anadolu Agency via Getty Images)

A ban on semiautomatic weapons was a campaign priority for Illinois Gov. J.B. Pritzker, particularly after a gunman killed seven people and injured 30 others in a July 4th parade shooting in the Chicago suburb of Highland Park.

Republican lawmakers were opposed to the bill, but were overwhelmingly outnumbered in the 34-20 vote Monday. State Sen. Darren Bailey, a former GOP candidate for governor, predicted the Illinois Supreme Court would find the measure unconstitutional and said he and “millions of other gun owners in this state will not comply.”

Harmon welcomed challenges to the law in remarks on the state Senate floor Monday.

“The weapons on this list are designed to do one thing and one thing only: kill people in a horribly brutal, vicious way,” he said, adding, “we’ll see you in court.”

The Protect Illinois Communities Act must go back to the state House for reconciliation before it is sent to Gov. Pritzker’s desk.

The Associated Press contributed to this report.

Chris Pandolfo

By Chris Pandolfo | Fox News

]]> FBI Secretly Abused Powers Stripped Americans of Their Gun Rights https://goodshepherdmedia.net/fbi-secretly-abused-powers-stripped-americans-of-their-gun-rights/ Fri, 09 Dec 2022 07:59:11 +0000 https://goodshepherdmedia.net/?p=5505 FBI used secret powers to strip more Americans of their gun rights, documents reveal

EXCLUSIVE — The FBI has secretly stripped eight more people of their rights to own, use, or purchase firearms , according to internal FBI documents obtained by the Washington Examiner.

Rep. Marjorie Taylor Greene (R-GA) and over a dozen GOP members of Congress in October demanded that the FBI and Justice Department hand over proof that the FBI is no longer waiving people’s gun rights with internal forms, which the Daily Caller uncovered in September had been signed by 15 people. Now, the Washington Examiner has obtained eight heavily redacted signed forms — indicating a more widespread bureau effort than previously known to target the Second Amendment rights of law-abiding citizens.

“Americans can’t simply sign their constitutional rights away, even to the FBI,” Rep. Michael Cloud (R-TX), who signed the October letter, told the Washington Examiner. “As Republicans enter a House majority, we must use our investigative power to put a check on federal agencies who have proven to be eager and willing to crack down on Americans’ right to keep and bear arms.”

Screenshot/one FBI form obtained by the Washington Examiner

Through the forms, the FBI asked signatories to identify as a “danger” to themselves or others or lacking the “mental capacity adequately to contract or manage” their lives. The forms were presented by the FBI to people at their homes and in other undisclosed locations beginning in at least 2016 and until December 2019, when the FBI claims it was discontinued.

While two of the new eight forms have redacted dates for when they were signed, the other six are dated between March 2018 and April 2019.

The signed forms were obtained by Gun Owners of America, a firearms rights group, as part of its Freedom of Information Act lawsuit against the bureau to compel the disclosure of records. They were then shared with the Washington Examiner.

Second Amendment attorneys, as well as GOA, said the existence of the forms, which register signatories into the FBI’s National Instant Criminal Background Check System, leaves unanswered legal questions.

This includes the question of whether the form is legal in the first place — given that it did not move through the process mandated under federal law for government agencies to receive approval from the Office of Management and Budget before obtaining information from the public.

It also remains unclear how the FBI’s usage of the NICS forms aligns with the Gun Control Act of 1968, which outlines how someone may be barred from owning guns if he or she is “adjudicated as a mental defective or has been committed to a mental institution.”

But the act does not say people can rule themselves unfit to own firearms.

“The act is clear, and it says ‘adjudicated,'” John Harris, a lawyer who directs the Tennessee Firearms Association, told the Washington Examiner.

Like the NICS forms previously reported on, the latest batch obtained by the Washington Examiner does not list the names of signatories. The prior forms were accompanied by documents showing that the FBI used them in Massachusetts , Michigan, and Maine.

But it is unclear where the eight new forms were signed.

It is also unclear what sort of background the people who signed the eight forms had. The forms reported on prior included records showing that signatories were those who allegedly made violent threats in person, in online chat rooms, and on social media.

“While the initial reports were alarming enough, as GOA dug deeper, things just kept getting worse,” Erich Pratt, senior vice president of GOA, told the Washington Examiner. “We thank Ms. Greene and all the members who joined her in demanding answers for this damning breach of the public trust, and we look forward to assisting in any possible way as investigations into this matter develop in Congress.”

The existence of more signed forms could further compel House Republicans, who will have a chamber majority, to investigate the FBI’s usage of them in the next Congress. Rep. Jim Jordan (R-OH), who is poised to become chairman of the House Judiciary Committee, said in September that he was planning oversight in connection to the forms and other alleged bureau issues.

“This is part of the political nature of the Justice Department,” Jordan said at the time. “Next Congress, we are definitely looking into the whole political nature.”

Rep. Andrew Clyde (R-GA) sponsored a resolution in November that would demand that Attorney General Merrick Garland provide records on the FBI forms. However, Democrats on the House Judiciary Committee rejected that measure on Wednesday, the Washington Examiner reported.

The vote occurred during a hearing in which committee members debated a bill sponsored by Rep. Pramila Jayapal (D-WA) called the Preventing Suicide Through Voluntary Firearm Purchase Delay Act.

Jayapal’s bill, which is co-sponsored by Reps. Ken Buck (R-CO), John Curtis (R-UT), and Raja Krishnamoorthi (D-IL), would legally permit people to add themselves to the NICS database — thereby forfeiting their rights to own, use, or buy firearms.

The bill demonstrates the glaring problem with the FBI previously obtaining signatures on its forms since lawmakers are essentially recognizing there needs to be congressional approval to engage in what the FBI already did, according to Aidan Johnston, director of federal affairs at GOA.

“The FBI just made something up and began implementing it,” Johnston said. “It has deprived these people of their rights by some made-up unconstitutional process.”

The FBI declined a request for comment. cited https://www.washingtonexaminer.com/restoring-america/fairness-justice/fbi-used-secret-powers-to-strip-more-americans-of-their-gun-rights-documents-reveal

‘Deep State mentality’: Secret Service, ICE secretly coordinated with FBI to strip gun rights, emails show

EXCLUSIVE — The Secret Service and the Immigration and Customs Enforcement secretly coordinated with the FBI to strip U.S. citizens of their rights to own, use, or even buy firearms, according to internal emails obtained by the Washington Examiner.

Behind closed doors and without congressional approval, the FBI has stripped gun rights from at least 23 people with internal forms, the Washington Examiner reported. However, Secret Service and ICE, two agencies under the Department of Homeland Security, have also quietly used these same forms, emails show.

The emails were first obtained by the firearms rights group Gun Owners of America amid its Freedom of Information Act lawsuit against the FBI and shared with the Washington Examiner. They demonstrate a more widespread effort than was previously known by the federal government to use the forms, which the Daily Caller revealed in September had been presented between 2016 and 2019 by FBI agents to people at their homes in Maine, Michigan, and Massachusetts, as well as in other undisclosed locations.Signatories were registered with the FBI’s National Instant Criminal Background Check System and asked to declare that they were a “danger” to themselves or other people or lacking the “mental capacity adequately to contract” their lives. Many of the people targeted by the FBI in the past had reportedly made violent threats on social media, in chat rooms, and in person, internal records show.

“Good evening [redacted],” a Secret Service employee wrote to an FBI employee on March 30, 2018. “Attached is a NICS self-submission form for [redacted] (DOB: [redacted].”

“His USSS case number is 127-679-0044105,” the email continued, noting it was sent from a supervisory protective intelligence research specialist. “If you have any questions, please let me know. Thank you.”

The email was attached with a form intended to waive the gun rights of the signatory, records show. The Washington Examiner was unable to verify the date that the form was signed.

Separately, an email from June 4, 2018, also sheds light on the Secret Service’s usage of the form. A Secret Service employee wrote to an FBI employee: “Can you please enter [redacted] into NICS and advise me when it has been entered. Thank you.”

Rep. Andrew Clyde (R-GA) told the Washington Examiner he wants to know if more federal agencies have used the NICS forms. The congressman put forth a resolution in November, which Democrats rejected on Wednesday, that would request Attorney General Merrick Garland turn over documents in connection to the forms.

“It’s just really, really concerning,” said Clyde.

“Is Veterans Affairs using this form to try and get veterans to self-report and deny themselves their Second Amendment right?” he asked. “That needs to be discovered. We need to investigate that. In the majority, I think it becomes a valid question and a valid investigation, and I think we need to spotlight that.”

The other set of emails obtained by the Washington Examiner pertains to ICE, an agency tasked with protecting the border and stopping illegal immigration.

On March 26, 2019, an undisclosed ICE employee wrote to a NICS liaison specialist, “Please see attached signed form.”

In response, the specialist wrote back 10 minutes later, “Entered,” to which the ICE employee said, “Awesome!”

Ken Cuccinelli, who was a top DHS official under former President Donald Trump, told the Washington Examiner he finds it “shocking” that ICE appears to have used the FBI forms. This is because ICE and the FBI have different areas of focus, he said.

“It certainly suggests to me that a certain type of agent is talking across the federal spectrum,” said Cuccinelli, the former attorney general of Virginia. “They were doing it when they had to know their leadership would have opposed it. It really speaks to the rogue nature of the ‘Deep State’ mentality.”

The revelation that more agencies had involvement with the NICS forms comes after the Washington Examiner reported that the FBI stripped eight more people of their gun rights between March 2018 and April 2019. There has never been any indication that ICE used the forms. However, prior emails obtained by the Daily Caller indicated that the Secret Service obtained NICS forms from an FBI employee.

Those emails also indicated that the Social Security Administration had obtained NICS forms from an FBI employee.

It is unclear how the FBI identified all of the signatories, though some forms include investigative records detailing federal investigations. The FBI has claimed usage of the form was discontinued in 2019.

“It might not be surprising in the Biden administration, but it’s pretty obviously shocking under a Trump administration,” Cuccinelli said.

The existence of the signed forms leaves a variety of unanswered legal questions, according to Second Amendment attorneys. Notably, the document itself did not move through a process required under federal law for government agencies to receive approval from the Office of Management and Budget before obtaining information from the public.

House Republicans have told the Washington Examiner they will investigate the FBI over the NICS forms next Congress. In October, Rep. Marjorie Taylor Greene (R-GA) and over a dozen members urged FBI Director Christopher Wray and Garland to provide evidence that the FBI is no longer using the forms.

Rep. Jim Jordan (R-OH), who is poised to become chairman of the influential House Judiciary Committee, said on Saturday that “nothing is off the table,” including subpoenas, in terms of investigating the FBI over the forms.

“We may need to figure out who OK’d this program,” Jordan told the Washington Examiner. “Who, in fact, were the agents going out actually implementing this program? Because we may need to talk to them to figure out how this all got started.”

“How did they decide which people to go after?” Jordan asked.

The FBI’s secret usage of the NICS forms has grown increasingly relevant in the halls of Congress. Rep. Pramila Jayapal (D-WA) and other members are looking to pass legislation granting a pathway for people to waive their gun rights and add themselves to the NICS database.

Jordan and other members, including Reps. Dan Bishop of North Carolina and Thomas Massie of Kentucky, have said the legislative push is evidence that the FBI acted inappropriately. This is because it shows the bureau actually needed congressional approval to strip people’s gun rights with the forms, they say.

“What we’re looking at is evidence that the FBI went off on their own and wrote the bill and implemented the bill that you are trying to pass here today, or did pass, and will try to pass on the floor,” said Massie on Wednesday.

Story by Gabe Kaminsky 

]]> New York State Rifle and Pistol Association v. Bruen – Gun Ruling – 2nd Amendment https://goodshepherdmedia.net/new-york-state-rifle-and-pistol-association-v-bruen/ Wed, 29 Dec 2021 08:00:01 +0000 https://goodshepherdmedia.net/?p=2980 New York State Rifle and Pistol Association v. Bruen

What the Supreme Court’s new gun rights ruling means

Justice Clarence Thomas opened the floodgates for all sorts of gun safety laws to be challenged in federal court.

The 6-3 Supreme Court decision striking down a type of gun carry restriction embraced by only six states, will have the effect of making all sorts of regulations all across the country vulnerable to new legal challenges.

Thomas changed the test courts are to use when analyzing the constitutionality of such regulations. Only firearm regulations that are “consistent with this Nation’s historical tradition” comply with Second Amendment’s protections, he wrote, in an assertion that puts in jeopardy any restriction that does not have a historical parallel to the nation’s founding.

This new standard will change the legal playing field around gun laws.

There are cases already in motion where courts will now adjust their approach and raise the threshold that governments will have to overcome in defending their gun safety laws. The ruling will also likely prompt a bevy of new legal challenges, with gun rights proponents now able to push more aggressive arguments for why a restriction should be struck down.

Up for grabs is not just public carry laws like the New York regime before the court. Virtually any other type of gun regulation, including age-based regulations, restrictions on certain types of firearms and limits on high-capacity magazines, will now be viewed by courts in a harsher light.

The old test versus the new test

In the fallout of a case called District of Columbia v Heller – a landmark 2008 ruling where the Supreme Court established that the Second Amendment protect an individual’s right to bear arms – appeals courts across the country had coalesced around a two-step legal approach for analyzing the constitutionality of a gun regulation.

Lower courts have looked at, first, whether the regulated activity falls within the scope of conduct protected by the Second Amendment. If it did, then they assessed whether the regulation’s means justified its ends.

“Despite the popularity of this two-step approach, it is one step too many,” Thomas wrote Thursday, calling the second step inconsistent with the Supreme Court’s previous gun rights precedents.

“Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” Thomas said.

Courts are required to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding,” Thomas said.

For instance, he wrote, if a gun law is addressing a societal problem that also existed in the 18th century, it is evidence that the modern law is unconstitutional if there was no similar regulation then. Likewise, he said, if that societal problem was historically addressed using a type of regulation different than the one now before a court, that is also evidence that the modern law is unconstitutional.

“When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are ‘relevantly similar,’” Thomas wrote.

What the ruling puts in jeopardy

Thursday’s ruling means that for a court to find any type of gun law constitutional, it will have to be consistent with how firearms were regulated historically.

That means states and localities will run into legal trouble whenever they try to enact a gun law that does not have a historical parallel, particularly if the problem the law is trying to address a problem that arguably has existed for generations.

This analysis will apply to the gun law cases that have already been appealed to the Supreme Court, which include challenges to California’s ban on magazines holding more than 10 rounds, Maryland’s ban on assault weapons, and a challenge to federal bump stock ban put in place by the Bureau of Alcohol, Tobacco, Firearms, and Explosives under former President Donald Trump. The high court may opt to take up those cases, or it might send them back down to lower courts with instructions that the laws are reexamined under Thursday’s ruling.

The New York decision will also likely affect what happens next in a California case, where the state’s prohibition on keeping people under the age of 21 from purchasing certain semi-automatic weapons was struck down by a conservative-leaning 9th Circuit panel.

It also may have implications for the federal gun safety package Congress is poised to pass, if and when those modest gun safety measures are challenged in court.

And a whole host of long-existing laws might be confronted with new lawsuits bolstered by the conservative justices’ new, less generous test. The New York law had been in place for more than 100 years before the Supreme Court struck it down.

Restrictions on ‘sensitive places’

Thomas’ opinion touched on how courts might view one type of restriction: restrictions on bringing firearms into sensitive places, as defenders of New York’s law pointed to that as a concern motivating its limits on public carry.

“Although the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited – e.g., legislative assemblies, polling places, and courthouses – we are also aware of no disputes regarding the lawfulness of such prohibitions,” Thomas said. “We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment.

But regulations for “sensitive places” that reached beyond those historical parallels might be constitutionally problematic, Thomas’ opinion suggested.

“It is true that people sometimes congregate in ‘sensitive places,’ and it is likewise true that law enforcement professionals are usually presumptively available in those locations,” Thomas said. “But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”

Thomas’ opinion also declined to resolve a “scholarly debate” over whether, when analyzing the historical context around modern gun laws, courts should be looking at 1791, the birthdate of the Second Amendment, or 1868, when the 14th Amendment was ratified. In a solo concurrence, Justice Amy Coney Barrett put her thumb on the scale for the earlier date, asserting that Thursday’s “decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.”

Liberals say new test will let judges to “cloak” policy preference in “history.”

Justice Stephen Breyer, in a dissent joined by the other liberals, said the “history-only approach” is both legally flawed and ripe with “practical problems.”

“Laws addressing repeating crossbows, launcegays, dirks, dagges, skeines, stilladers, and other ancient weapons will be of little help to courts confronting modern problems,” Breyer wrote. “And as technological progress pushes our society ever further beyond the bounds of the Framers’ imaginations, attempts at ‘analogical reasoning’ will become increasingly tortured. In short, a standard that relies solely on history is unjustifiable and unworkable.”

Breyer called Thomas’ opinion “deeply impractical.”

“It imposes a task on the lower courts that judges cannot easily accomplish,” Breyer wrote.

“The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions,” Breyer added, pointing to the research resources such an approach requires, how judges will choose which historians to rely on, and what courts are to make of new developments in historical research.

“And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” Breyer wrote.

The majority, he added, gives judges license to reject certain evidence in a way that will allow them “to pick their friends out of history’s crowd.”

He said that, at the time of the nation’s founding, even the country’s largest cities, like New York, had very small populations compared to today, while the vast majority of Americans lived on farms or in small towns.

Addressing Thomas’ examples of historically consistent “sensitive places,” Breyer asked what that meant for “subways, nightclubs, movie theaters, and sports stadiums?”

“The Court does not say,” Breyer wrote. source

 

New York State Rifle and Pistol Association v. Bruen

The Gun Ruling that could Free the Second Amendment in Every State

 

 

Learn more about your gun rights:

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US, v. Jessie Bullock – Federal Judge Tosses Gun Possession Case Against Convicted Felon

New York State Rifle and Pistol Association v. Bruen

 

 

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 20–843. Argued November 3, 2021—Decided June 23, 2022 The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. N. Y. Penal Law Ann. §400.00(2)(f ). An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257. Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement. Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and
injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior decision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.” Id., at 96.

 

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Syllabus
Held: New York’s proper-cause requirement violates the Fourteenth
Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and
bear arms in public for self-defense. Pp. 8–63.
(a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v.
Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth
Amendments protect an individual right to keep and bear arms for
self-defense. Under Heller, when the Second Amendment’s plain text
covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government
must demonstrate that the regulation is consistent with the Nation’s
historical tradition of firearm regulation. Pp. 8–22.
(1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. The Court rejects that two-part approach as having one step too many. Step one is
broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in
the Second Amendment context. Heller’s methodology centered on
constitutional text and history. It did not invoke any means-end test
such as strict or intermediate scrutiny, and it expressly rejected any
interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
(2) Historical analysis can sometimes be difficult and nuanced,
but reliance on history to inform the meaning of constitutional text is
more legitimate, and more administrable, than asking judges to “make
difficult empirical judgments” about “the costs and benefits of firearms
restrictions,” especially given their “lack [of] expertise” in the field.
McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts
tasked with making difficult empirical judgments regarding firearm
regulations under the banner of “intermediate scrutiny” often defer to
the determinations of legislatures. While judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the
people,” and it “surely elevates above all other interests the right of
law-abiding, responsible citizens to use arms” for self-defense. Heller,
554 U. S., at 635. Pp. 15–17.
(3) The test that the Court set forth in Heller and applies today
requires courts to assess whether modern firearms regulations are
consistent with the Second Amendment’s text and historical understanding. Of course, the regulatory challenges posed by firearms today
are not always the same as those that preoccupied the Founders in
1791 or the Reconstruction generation in 1868. But the Constitution

 

Cite as: 597 U. S. ____ (2022) 3
Syllabus
can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the
understandings of those who ratified it. See, e.g., United States v.
Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller
at least one way in which the Second Amendment’s historically fixed
meaning applies to new circumstances: Its reference to “arms” does not
apply “only [to] those arms in existence in the 18th century.” 554 U. S.,
at 582.
To determine whether a firearm regulation is consistent with the
Second Amendment, Heller and McDonald point toward at least two
relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Because
“individual self-defense is ‘the central component’ of the Second
Amendment right,” these two metrics are “ ‘central’ ” considerations
when engaging in an analogical inquiry. McDonald, 561 U. S., at 767
(quoting Heller, 554 U. S., at 599).
To be clear, even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such
as schools and government buildings” to determine whether modern
regulations are constitutionally permissible. Id., at 626. That said,
respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan
a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.
(b) Having made the constitutional standard endorsed in Heller
more explicit, the Court applies that standard to New York’s propercause requirement. Pp. 23–62.
(1) It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the
Second Amendment protects. See Heller, 554 U. S., at 580. And no
party disputes that handguns are weapons “in common use” today for
self-defense. See id., at 627. The Court has little difficulty concluding
also that the plain text of the Second Amendment protects Koch’s and
Nash’s proposed course of conduct—carrying handguns publicly for
self-defense. Nothing in the Second Amendment’s text draws a
home/public distinction with respect to the right to keep and bear
arms, and the definition of “bear” naturally encompasses public carry.
Moreover, the Second Amendment guarantees an “individual right to
possess and carry weapons in case of confrontation,” id., at 592, and
confrontation can surely take place outside the home. Pp. 23–24.

 

 

 

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Syllabus
(2) The burden then falls on respondents to show that New York’s
proper-cause requirement is consistent with this Nation’s historical
tradition of firearm regulation. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But
when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them.” Heller, 554
U. S., at 634–635. The Second Amendment was adopted in 1791; the
Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these
principles in mind, the Court concludes that respondents have failed
to meet their burden to identify an American tradition justifying New
York’s proper-cause requirement. Pp. 24–62.
(i) Respondents’ substantial reliance on English history and
custom before the founding makes some sense given Heller’s statement
that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” 554 U. S., at 599. But the Court finds that history
ambiguous at best and sees little reason to think that the Framers
would have thought it applicable in the New World. The Court cannot
conclude from this historical record that, by the time of the founding,
English law would have justified restricting the right to publicly bear
arms suited for self-defense only to those who demonstrate some special need for self-protection. Pp. 30–37.
(ii) Respondents next direct the Court to the history of the Colonies and early Republic, but they identify only three restrictions on
public carry from that time. While the Court doubts that just three
colonial regulations could suffice to show a tradition of public-carry
regulation, even looking at these laws on their own terms, the Court is
not convinced that they regulated public carry akin to the New York
law at issue. The statutes essentially prohibited bearing arms in a
way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.” See 554 U. S., at 627.
Whatever the likelihood that handguns were considered “dangerous
and unusual” during the colonial period, they are today “the quintessential self-defense weapon.” Id., at 629. Thus, these colonial laws
provide no justification for laws restricting the public carry of weapons
that are unquestionably in common use today. Pp. 37–42.
(iii) Only after the ratification of the Second Amendment in
1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories:
common-law offenses, statutory prohibitions, and “surety” statutes.
None of these restrictions imposed a substantial burden on public
carry analogous to that imposed by New York’s restrictive licensing
regime.

Cite as: 597 U. S. ____ (2022) 5
Syllabus
Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of “affray” or going armed “to the terror
of the people” continued to impose some limits on firearm carry in the
antebellum period. But there is no evidence indicating that these common-law limitations impaired the right of the general population to
peaceable public carry.
Statutory Prohibitions. In the early to mid-19th century, some
States began enacting laws that proscribed the concealed carry of pistols and other small weapons. But the antebellum state-court decisions upholding them evince a consensus view that States could not
altogether prohibit the public carry of arms protected by the Second
Amendment or state analogues.
Surety Statutes. In the mid-19th century, many jurisdictions began
adopting laws that required certain individuals to post bond before
carrying weapons in public. Contrary to respondents’ position, these
surety statutes in no way represented direct precursors to New York’s
proper-cause requirement. While New York presumes that individuals have no public carry right without a showing of heightened need,
the surety statutes presumed that individuals had a right to public
carry that could be burdened only if another could make out a specific
showing of “reasonable cause to fear an injury, or breach of the peace.”
Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime,
a showing of special need was required only after an individual was
reasonably accused of intending to injure another or breach the peace.
And, even then, proving special need simply avoided a fee.
In sum, the historical evidence from antebellum America does
demonstrate that the manner of public carry was subject to reasonable
regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs
from carrying arms in public for that purpose. Pp. 42–51.
(iv) Evidence from around the adoption of the Fourteenth
Amendment also does not support respondents’ position. The “discussion of the [right to keep and bear arms] 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, generally
demonstrates that during Reconstruction the right to keep and bear
arms had limits that were consistent with a right of the public to peaceably carry handguns for self-defense. The Court acknowledges two
Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex.
455—that approved a statutory “reasonable grounds” standard for
public carry analogous to New York’s proper-cause requirement. But
these decisions were outliers and therefore provide little insight into
how postbellum courts viewed the right to carry protected arms in public. See Heller, 554 U. S., at 632. Pp. 52–58.

 

 

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Syllabus
(v) Finally, respondents point to the slight uptick in gun regulation during the late-19th century. As the Court suggested in Heller,
however, late-19th-century evidence cannot provide much insight into
the meaning of the Second Amendment when it contradicts earlier evidence. In addition, the vast majority of the statutes that respondents
invoke come from the Western Territories. The bare existence of these
localized restrictions cannot overcome the overwhelming evidence of
an otherwise enduring American tradition permitting public carry.
See Heller, 554 U. S., at 614. Moreover, these territorial laws were
rarely subject to judicial scrutiny, and absent any evidence explaining
why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform
“the origins and continuing significance of the Amendment.” Ibid.; see
also The Federalist No. 37, p. 229. Finally, these territorial restrictions deserve little weight because they were, consistent with the
transitory nature of territorial government, short lived. Some were
held unconstitutional shortly after passage, and others did not survive
a Territory’s admission to the Union as a State. Pp. 58–62.
(vi) After reviewing the Anglo-American history of public carry,
the Court concludes that respondents have not met their burden to
identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions,
American governments simply have not broadly prohibited the public
carry of commonly used firearms for personal defense. Nor have they
generally required law-abiding, responsible citizens to “demonstrate a
special need for self-protection distinguishable from that of the general
community” to carry arms in public. Klenosky, 75 App. Div. 2d, at 793,
428 N. Y. S. 2d, at 257. P. 62.
(c) The constitutional right to bear arms in public for self-defense is
not “a second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780
(plurality opinion). The exercise of other constitutional rights does not
require individuals to demonstrate to government officers some special
need. The Second Amendment right to carry arms in public for selfdefense is no different. New York’s proper-cause requirement violates
the Fourteenth Amendment by preventing law-abiding citizens with
ordinary self-defense needs from exercising their right to keep and
bear arms in public. Pp. 62–63.
818 Fed. Appx. 99, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J.,
filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in
which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion.
BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN,
JJ., joined.

 

_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 20–843
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN
HIS OFFICIAL CAPACITY AS SUPERINTENDENT
OF NEW YORK STATE POLICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
JUSTICE THOMAS delivered the opinion of the Court.
In District of Columbia v. Heller, 554 U. S. 570 (2008),
and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect
the right of an ordinary, law-abiding citizen to possess a
handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for
their self-defense. We too agree, and now hold, consistent
with Heller and McDonald, that the Second and Fourteenth
Amendments protect an individual’s right to carry a handgun for self-defense outside the home.
The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry
handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria.
But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s
showing of some additional special need. Because the State

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.
I
A
New York State has regulated the public carry of handguns at least since the early 20th century. In 1905, New
York made it a misdemeanor for anyone over the age of 16
to “have or carry concealed upon his person in any city or
village of [New York], any pistol, revolver or other firearm
without a written license . . . issued to him by a police magistrate.” 1905 N. Y. Laws ch. 92, §2, pp. 129–130; see also
1908 N. Y. Laws ch. 93, §1, pp. 242–243 (allowing justices
of the peace to issue licenses). In 1911, New York’s “Sullivan Law” expanded the State’s criminal prohibition to the
possession of all handguns—concealed or otherwise—without a government-issued license. See 1911 N. Y. Laws ch.
195, §1, p. 443. New York later amended the Sullivan Law
to clarify the licensing standard: Magistrates could “issue
to [a] person a license to have and carry concealed a pistol
or revolver without regard to employment or place of possessing such weapon” only if that person proved “good
moral character” and “proper cause.” 1913 N. Y. Laws ch.
608, §1, p. 1629.
Today’s licensing scheme largely tracks that of the early
1900s. It is a crime in New York to possess “any firearm”
without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a
felony offense, and one year in prison or a $1,000 fine for a
misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West
2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and
(3)(b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Meanwhile, possessing a loaded firearm outside one’s home or
place of business without a license is a felony punishable by

Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
up to 15 years in prison. §§265.03(3) (West 2017),
70.00(2)(c) and (3)(b), 80.00(1)(a).
A license applicant who wants to possess a firearm at
home (or in his place of business) must convince a “licensing
officer”—usually a judge or law enforcement officer—that,
among other things, he is of good moral character, has no
history of crime or mental illness, and that “no good cause
exists for the denial of the license.” §§400.00(1)(a)–(n)
(West Cum. Supp. 2022). If he wants to carry a firearm
outside his home or place of business for self-defense, the
applicant must obtain an unrestricted license to “have and
carry” a concealed “pistol or revolver.” §400.00(2)(f ). To
secure that license, the applicant must prove that “proper
cause exists” to issue it. Ibid. If an applicant cannot make
that showing, he can receive only a “restricted” license for
public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. See, e.g., In re O’Brien, 87 N. Y. 2d 436, 438–439, 663
N. E. 2d 316, 316–317 (1996); Babernitz v. Police Dept. of
City of New York, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d
309, 311 (1978); In re O’Connor, 154 Misc. 2d 694, 696–698,
585 N. Y. S. 2d 1000, 1003 (Westchester Cty. 1992).
No New York statute defines “proper cause.” But New
York courts have held that an applicant shows proper cause
only if he can “demonstrate a special need for self-protection
distinguishable from that of the general community.” E.g.,
In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257
(1980). This “special need” standard is demanding. For example, living or working in an area “‘noted for criminal activity’” does not suffice. In re Bernstein, 85 App. Div. 2d
574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York
courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.”
In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d
80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199,
201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York

 

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
City Police Department’s requirement of “‘extraordinary
personal danger, documented by proof of recurrent threats
to life or safety’” (quoting 38 N. Y. C. R. R. §5–03(b))).
When a licensing officer denies an application, judicial review is limited. New York courts defer to an officer’s application of the proper-cause standard unless it is “arbitrary
and capricious.” In re Bando, 290 App. Div. 2d 691, 692,
735 N. Y. S. 2d 660, 661 (2002). In other words, the decision
“must be upheld if the record shows a rational basis for it.”
Kaplan, 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The
rule leaves applicants little recourse if their local licensing
officer denies a permit.
New York is not alone in requiring a permit to carry a
handgun in public. But the vast majority of States—43 by
our count—are “shall issue” jurisdictions, where authorities
must issue concealed-carry licenses whenever applicants
satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.1 Meanwhile, only six
—————— 1See Ala. Code §13A–11–75 (Cum. Supp. 2021); Alaska Stat.
§18.65.700 (2020); Ariz. Rev. Stat. Ann. §13–3112 (Cum. Supp. 2021);
Ark. Code Ann. §5–73–309 (Supp. 2021); Colo. Rev. Stat. §18–12–206
(2021); Fla. Stat. §790.06 (2021); Ga. Code Ann. §16–11–129 (Supp.
2021); Idaho Code Ann. §18–3302K (Cum. Supp. 2021); Ill. Comp. Stat.,
ch. 430, §66/10 (West Cum. Supp. 2021); Ind. Code §35–47–2–3 (2021);
Iowa Code §724.7 (2022); Kan. Stat. Ann. §75–7c03 (2021); Ky. Rev. Stat.
Ann. §237.110 (Lexis Cum. Supp. 2021); La. Rev. Stat. Ann. §40:1379.3
(West Cum. Supp. 2022); Me. Rev. Stat. Ann., Tit. 25, §2003 (Cum. Supp.
2022); Mich. Comp. Laws §28.425b (2020); Minn. Stat. §624.714 (2020);
Miss. Code Ann. §45–9–101 (2022); Mo. Rev. Stat. §571.101 (2016); Mont.
Code Ann. §45–8–321 (2021); Neb. Rev. Stat. §69–2430 (2019); Nev. Rev.
Stat. §202.3657 (2021); N. H. Rev. Stat. Ann. §159:6 (Cum. Supp. 2021);
N. M. Stat. Ann. §29–19–4 (2018); N. C. Gen. Stat. Ann. §14–415.11
(2021); N. D. Cent. Code Ann. §62.1–04–03 (Supp. 2021); Ohio Rev. Code
Ann. §2923.125 (2020); Okla. Stat., Tit. 21, §1290.12 (2021); Ore. Rev.
Stat. §166.291 (2021); 18 Pa. Cons. Stat. §6109 (Cum. Supp. 2016); S. C.
Code Ann. §23–31–215(A) (Cum. Supp. 2021); S. D. Codified Laws §23–
7–7 (Cum. Supp. 2021); Tenn. Code Ann. §39–17–1366 (Supp. 2021); Tex.
Govt. Code Ann. §411.177 (West Cum. Supp. 2021); Utah Code §53–5–

 

Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
States and the District of Columbia have “may issue” licensing laws, under which authorities have discretion to deny
concealed-carry licenses even when the applicant satisfies
the statutory criteria, usually because the applicant has not
demonstrated cause or suitability for the relevant license.
Aside from New York, then, only California, the District of
Columbia, Hawaii, Maryland, Massachusetts, and New
——————
704.5 (2022); Va. Code Ann. §18.2–308.04 (2021); Wash. Rev. Code
§9.41.070 (2021); W. Va. Code Ann. §61–7–4 (2021); Wis. Stat. §175.60
(2021); Wyo. Stat. Ann. §6–8–104 (2021). Vermont has no permitting
system for the concealed carry of handguns. Three States—Connecticut,
Delaware, and Rhode Island—have discretionary criteria but appear to
operate like “shall issue” jurisdictions. See Conn. Gen. Stat. §29–28(b)
(2021); Del. Code, Tit. 11, §1441 (2022); R. I. Gen. Laws §11–47–11
(2002). Although Connecticut officials have discretion to deny a
concealed-carry permit to anyone who is not a “suitable person,” see
Conn. Gen. Stat. §29–28(b), the “suitable person” standard precludes
permits only to those “individuals whose conduct has shown them to be
lacking the essential character of temperament necessary to be entrusted
with a weapon.” Dwyer v. Farrell, 193 Conn. 7, 12, 475 A. 2d 257, 260
(1984) (internal quotation marks omitted). As for Delaware, the State
has thus far processed 5,680 license applications and renewals in fiscal
year 2022 and has denied only 112. See Del. Courts, Super. Ct., Carrying
Concealed Deadly Weapon (June 9, 2022), https://courts.delaware.gov/
forms/download.aspx?ID=125408. Moreover, Delaware appears to have
no licensing requirement for open carry. Finally, Rhode Island has a
suitability requirement, see R. I. Gen. Laws §11–47–11, but the Rhode
Island Supreme Court has flatly denied that the “[d]emonstration of a
proper showing of need” is a component of that requirement. Gadomski
v. Tavares, 113 A. 3d 387, 392 (2015). Additionally, some “shall issue”
jurisdictions have so-called “constitutional carry” protections that allow
certain individuals to carry handguns in public within the State without
any permit whatsoever. See, e.g., A. Sherman, More States Remove Permit Requirement To Carry a Concealed Gun, PolitiFact (Apr. 12, 2022),
https://www.politifact.com/article/2022/apr/12/more-states-remove-permit-requirement-carry-concea/ (“Twenty-five states now have permitless
concealed carry laws . . . The states that have approved permitless carry
laws are: Alabama, Alaska, Arizona, Arkansas, Idaho, Indiana, Iowa,
Georgia, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New
Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee,
Texas, Utah, Vermont, West Virginia, and Wyoming”).

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
Jersey have analogues to the “proper cause” standard.2 All
of these “proper cause” analogues have been upheld by the
Courts of Appeals, save for the District of Columbia’s, which
has been permanently enjoined since 2017. Compare Gould
v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v.
County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake
v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v.
Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Hawaii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn
v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017).
B
As set forth in the pleadings below, petitioners Brandon
Koch and Robert Nash are law-abiding, adult citizens of
Rensselaer County, New York. Koch lives in Troy, while
Nash lives in Averill Park. Petitioner New York State Rifle
& Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members.
In 2014, Nash applied for an unrestricted license to carry
a handgun in public. Nash did not claim any unique danger
to his personal safety; he simply wanted to carry a handgun
for self-defense. In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only. In late
2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood. After an informal hearing, the licensing officer denied the request. The officer reiterated that Nash’s existing
license permitted him “to carry concealed for purposes of off
—————— 2See Cal. Penal Code Ann. §26150 (West 2021) (“Good cause”); D. C.
Code §§7–2509.11(1) (2018), 22–4506(a) (Cum. Supp. 2021) (“proper reason,” i.e., “special need for self-protection”); Haw. Rev. Stat. §§134–2
(Cum. Supp. 2018), 134–9(a) (2011) (“exceptional case”); Md. Pub. Saf.
Code Ann. §5–306(a)(6)(ii) (2018) (“good and substantial reason”); Mass.
Gen. Laws, ch. 140, §131(d) (2020) (“good reason”); N. J. Stat. Ann.
§2C:58–4(c) (West Cum. Supp. 2021) (“justifiable need”).

Cite as: 597 U. S. ____ (2022) 7
Opinion of the Court
road back country, outdoor activities similar to hunting,”
such as “fishing, hiking & camping etc.” App. 41. But, at
the same time, the officer emphasized that the restrictions
were “intended to prohibit [Nash] from carrying concealed
in ANY LOCATION typically open to and frequented by the
general public.” Ibid.
Between 2008 and 2017, Koch was in the same position
as Nash: He faced no special dangers, wanted a handgun
for general self-defense, and had only a restricted license
permitting him to carry a handgun outside the home for
hunting and target shooting. In late 2017, Koch applied to
a licensing officer to remove the restrictions on his license,
citing his extensive experience in safely handling firearms.
Like Nash’s application, Koch’s was denied, except that the
officer permitted Koch to “carry to and from work.” Id., at
114.
C
Respondents are the superintendent of the New York
State Police, who oversees the enforcement of the State’s
licensing laws, and a New York Supreme Court justice, who
oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory
and injunctive relief under Rev. Stat. 1979, 42 U. S. C.
§1983, alleging that respondents violated their Second and
Fourteenth Amendment rights by denying their unrestrictedlicense applications on the basis that they had failed to
show “proper cause,” i.e., had failed to demonstrate a
unique need for self-defense.
The District Court dismissed petitioners’ complaint and
the Court of Appeals affirmed. See 818 Fed. Appx. 99, 100
(CA2 2020). Both courts relied on the Court of Appeals’
prior decision in Kachalsky, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the
requirement was “substantially related to the achievement
of an important governmental interest.” Id., at 96.

8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution. 593 U. S. ___ (2021).
II
In Heller and McDonald, we held that the Second and
Fourteenth Amendments protect an individual right to
keep and bear arms for self-defense. In doing so, we held
unconstitutional two laws that prohibited the possession
and use of handguns in the home. In the years since, the
Courts of Appeals have coalesced around a “two-step”
framework for analyzing Second Amendment challenges
that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In
keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its
regulation, the government may not simply posit that the
regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this
Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
“unqualified command.” Konigsberg v. State Bar of Cal.,
366 U. S. 36, 50, n. 10 (1961).3
—————— 3Rather than begin with its view of the governing legal framework, the
dissent chronicles, in painstaking detail, evidence of crimes committed
by individuals with firearms. See post, at 1–9 (opinion of BREYER, J.).
The dissent invokes all of these statistics presumably to justify granting
States greater leeway in restricting firearm ownership and use. But, as
Members of the Court have already explained, “[t]he right to keep and
bear arms . . . is not the only constitutional right that has controversial
public safety implications.” McDonald v. Chicago, 561 U. S. 742, 783
(2010) (plurality opinion).

Cite as: 597 U. S. ____ (2022) 9
Opinion of the Court
A
Since Heller and McDonald, the two-step test that Courts
of Appeals have developed to assess Second Amendment
claims proceeds as follows. At the first step, the government may justify its regulation by “establish[ing] that the
challenged law regulates activity falling outside the scope
of the right as originally understood.” E.g., Kanter v. Barr,
919 F. 3d 437, 441 (CA7 2019) (internal quotation marks
omitted). But see United States v. Boyd, 999 F. 3d 171, 185
(CA3 2021) (requiring claimant to show “‘a burden on conduct falling within the scope of the Second Amendment’s
guarantee’”). The Courts of Appeals then ascertain the
original scope of the right based on its historical meaning.
E.g., United States v. Focia, 869 F. 3d 1269, 1285 (CA11
2017). If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, “then the
analysis can stop there; the regulated activity is categorically unprotected.” United States v. Greeno, 679 F. 3d 510,
518 (CA6 2012) (internal quotation marks omitted). But if
the historical evidence at this step is “inconclusive or suggests that the regulated activity is not categorically unprotected,” the courts generally proceed to step two. Kanter,
919 F. 3d, at 441 (internal quotation marks omitted).
At the second step, courts often analyze “how close the
law comes to the core of the Second Amendment right and
the severity of the law’s burden on that right.” Ibid. (internal quotation marks omitted). The Courts of Appeals generally maintain “that the core Second Amendment right is
limited to self-defense in the home.” Gould, 907 F. 3d, at
671 (emphasis added). But see Wrenn, 864 F. 3d, at 659
(“[T]he Amendment’s core generally covers carrying in public for self defense”). If a “core” Second Amendment right is
burdened, courts apply “strict scrutiny” and ask whether
the Government can prove that the law is “narrowly tailored to achieve a compelling governmental interest.” Kolbe
v. Hogan, 849 F. 3d 114, 133 (CA4 2017) (internal quotation

 

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marks omitted). Otherwise, they apply intermediate scrutiny and consider whether the Government can show that
the regulation is “substantially related to the achievement
of an important governmental interest.” Kachalsky, 701
F. 3d, at 96.4 Both respondents and the United States
largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right. See
Brief for Respondents 37; Brief for United States as Amicus
Curiae 4.
B
Despite the popularity of this two-step approach, it is one
step too many. Step one of the predominant framework is
broadly consistent with Heller, which demands a test rooted
in the Second Amendment’s text, as informed by history.
But Heller and McDonald do not support applying meansend scrutiny in the Second Amendment context. Instead,
the government must affirmatively prove that its firearms
regulation is part of the historical tradition that delimits
the outer bounds of the right to keep and bear arms.
1
To show why Heller does not support applying means-end
scrutiny, we first summarize Heller’s methodological approach to the Second Amendment.
In Heller, we began with a “textual analysis” focused on
—————— 4See Association of N. J. Rifle & Pistol Clubs, Inc. v. Attorney General
N. J., 910 F. 3d 106, 117 (CA3 2018); accord, Worman v. Healey, 922 F. 3d
26, 33, 36–39 (CA1 2019); Libertarian Party of Erie Cty. v. Cuomo, 970
F. 3d 106, 127–128 (CA2 2020); Harley v. Wilkinson, 988 F. 3d 766, 769
(CA4 2021); National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 194–195 (CA5 2012);
United States v. Greeno, 679 F. 3d 510, 518 (CA6 2012); Kanter v. Barr,
919 F. 3d 437, 442 (CA7 2019); Young v. Hawaii, 992 F. 3d 765, 783 (CA9
2021) (en banc); United States v. Reese, 627 F. 3d 792, 800–801 (CA10
2010); GeorgiaCarry.Org, Inc. v. Georgia, 687 F. 3d 1244, 1260, n. 34
(CA11 2012); United States v. Class, 930 F. 3d 460, 463 (CADC 2019).

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the “‘normal and ordinary’” meaning of the Second Amendment’s language. 554 U. S., at 576–577, 578. That analysis
suggested that the Amendment’s operative clause—“the
right of the people to keep and bear Arms shall not be infringed”—“guarantee[s] the individual right to possess and
carry weapons in case of confrontation” that does not depend on service in the militia. Id., at 592.
From there, we assessed whether our initial conclusion
was “confirmed by the historical background of the Second
Amendment.” Ibid. We looked to history because “it has
always been widely understood that the Second Amendment . . . codified a pre-existing right.” Ibid. The Amendment “was not intended to lay down a novel principle but
rather codified a right inherited from our English ancestors.” Id., at 599 (alterations and internal quotation
marks omitted). After surveying English history dating
from the late 1600s, along with American colonial views
leading up to the founding, we found “no doubt, on the basis
of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id., at
595.
We then canvassed the historical record and found yet
further confirmation. That history included the “analogous
arms-bearing rights in state constitutions that preceded
and immediately followed adoption of the Second Amendment,” id., at 600–601, and “how the Second Amendment
was interpreted from immediately after its ratification
through the end of the 19th century,” id., at 605. When the
principal dissent charged that the latter category of sources
was illegitimate “postenactment legislative history,” id., at
662, n. 28 (opinion of Stevens, J.), we clarified that “examination of a variety of legal and other sources to determine
the public understanding of a legal text in the period after
its enactment or ratification” was “a critical tool of constitutional interpretation,” id., at 605 (majority opinion).
In assessing the postratification history, we looked to four

 

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different types of sources. First, we reviewed “[t]hree important founding-era legal scholars [who] interpreted the
Second Amendment in published writings.” Ibid. Second,
we looked to “19th-century cases that interpreted the Second Amendment” and found that they “universally support
an individual right” to keep and bear arms. Id., at 610.
Third, we examined the “discussion of the Second Amendment in Congress and in public discourse” after the Civil
War, “as people debated whether and how to secure constitutional rights for newly freed slaves.” Id., at 614. Fourth,
we considered how post-Civil War commentators understood the right. See id., at 616–619.
After holding that the Second Amendment protected an
individual right to armed self-defense, we also relied on the
historical understanding of the Amendment to demark the
limits on the exercise of that right. We noted that, “[l]ike
most rights, the right secured by the Second Amendment is
not unlimited.” Id., at 626. “From Blackstone through the
19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” Ibid. For example, we found it “fairly
supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” that the Second
Amendment protects the possession and use of weapons
that are “‘in common use at the time.’” Id., at 627 (first
citing 4 W. Blackstone, Commentaries on the Laws of England 148–149 (1769); then quoting United States v. Miller,
307 U. S. 174, 179 (1939)). That said, we cautioned that we
were not “undertak[ing] an exhaustive historical analysis
today of the full scope of the Second Amendment” and
moved on to considering the constitutionality of the District
of Columbia’s handgun ban. 554 U. S., at 627.
We assessed the lawfulness of that handgun ban by scrutinizing whether it comported with history and tradition.
Although we noted that the ban “would fail constitutional

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muster” “[u]nder any of the standards of scrutiny that we
have applied to enumerated constitutional rights,” id., at
628–629, we did not engage in means-end scrutiny when
resolving the constitutional question. Instead, we focused
on the historically unprecedented nature of the District’s
ban, observing that “[f]ew laws in the history of our Nation
have come close to [that] severe restriction.” Id., at 629.
Likewise, when one of the dissents attempted to justify the
District’s prohibition with “founding-era historical precedent,” including “various restrictive laws in the colonial period,” we addressed each purported analogue and concluded
that they were either irrelevant or “d[id] not remotely burden the right of self-defense as much as an absolute ban on
handguns.” Id., at 631–632; see id., at 631–634. Thus, our
earlier historical analysis sufficed to show that the Second
Amendment did not countenance a “complete prohibition”
on the use of “the most popular weapon chosen by Americans for self-defense in the home.” Id., at 629.
2
As the foregoing shows, Heller’s methodology centered on
constitutional text and history. Whether it came to defining
the character of the right (individual or militia dependent),
suggesting the outer limits of the right, or assessing the
constitutionality of a particular regulation, Heller relied on
text and history. It did not invoke any means-end test such
as strict or intermediate scrutiny.
Moreover, Heller and McDonald expressly rejected the
application of any “judge-empowering ‘interest-balancing
inquiry’ that ‘asks whether the statute burdens a protected
interest in a way or to an extent that is out of proportion to
the statute’s salutary effects upon other important governmental interests.’” Heller, 554 U. S., at 634 (quoting id., at
689–690 (BREYER, J., dissenting)); see also McDonald, 561
U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—“judges to assess

14 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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the costs and benefits of firearms restrictions” under
means-end scrutiny). We declined to engage in means-end
scrutiny because “[t]he very enumeration of the right takes
out of the hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis
whether the right is really worth insisting upon.” Heller,
554 U. S., at 634. We then concluded: “A constitutional
guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Ibid.
Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States
now urge us to adopt. Dissenting in Heller, JUSTICE
BREYER’s proposed standard—“ask[ing] whether [a] statute
burdens a protected interest in a way or to an extent that is
out of proportion to the statute’s salutary effects upon other
important governmental interests,” id., at 689–690 (dissenting opinion)—simply expressed a classic formulation of
intermediate scrutiny in a slightly different way, see Clark
v. Jeter, 486 U. S. 456, 461 (1988) (asking whether the challenged law is “substantially related to an important government objective”). In fact, JUSTICE BREYER all but admitted
that his Heller dissent advocated for intermediate scrutiny
by repeatedly invoking a quintessential intermediatescrutiny precedent. See Heller, 554 U. S., at 690, 696, 704–
705 (citing Turner Broadcasting System, Inc. v. FCC, 520
U. S. 180 (1997)). Thus, when Heller expressly rejected that
dissent’s “interest-balancing inquiry,” 554 U. S., at 634 (internal quotation marks omitted), it necessarily rejected intermediate scrutiny.5
—————— 5The dissent asserts that we misread Heller to eschew means-end scrutiny because Heller mentioned that the District of Columbia’s handgun
ban “would fail constitutional muster” “[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional rights.” Heller, 554 U. S., at 628–629; see post, at 23 (opinion of BREYER, J.). But
Heller’s passing observation that the District’s ban would fail under any
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Opinion of the Court
In sum, the Courts of Appeals’ second step is inconsistent
with Heller’s historical approach and its rejection of meansend scrutiny. We reiterate that the standard for applying
the Second Amendment is as follows: When the Second
Amendment’s plain text covers an individual’s conduct, the
Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of
firearm regulation. Only then may a court conclude that
the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U. S., at
50, n. 10.
C
This Second Amendment standard accords with how we
protect other constitutional rights. Take, for instance, the
freedom of speech in the First Amendment, to which Heller
repeatedly compared the right to keep and bear arms. 554
U. S., at 582, 595, 606, 618, 634–635. In that context,
“[w]hen the Government restricts speech, the Government
bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc.,
529 U. S. 803, 816 (2000); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases,
that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See
Illinois ex rel. Madigan v. Telemarketing Associates, Inc.,
538 U. S. 600, 620, n. 9 (2003). And to carry that burden,
the government must generally point to historical evidence
about the reach of the First Amendment’s protections. See,
——————
heightened “standar[d] of scrutiny” did not supplant Heller’s focus on
constitutional text and history. Rather, Heller’s comment “was more of
a gilding-the-lily observation about the extreme nature of D.C.’s law,”
Heller v. District of Columbia, 670 F. 3d 1244, 1277 (CADC 2011) (Kavanaugh, J., dissenting), than a reflection of Heller’s methodology or
holding.

 

16 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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e.g., United States v. Stevens, 559 U. S. 460, 468–471 (2010)
(placing the burden on the government to show that a type
of speech belongs to a “historic and traditional categor[y]”
of constitutionally unprotected speech “long familiar to the
bar” (internal quotation marks omitted)).
And beyond the freedom of speech, our focus on history
also comports with how we assess many other constitutional claims. If a litigant asserts the right in court to “be
confronted with the witnesses against him,” U. S. Const.,
Amdt. 6, we require courts to consult history to determine
the scope of that right. See, e.g., Giles v. California, 554
U. S. 353, 358 (2008) (“admitting only those exceptions [to
the Confrontation Clause] established at the time of the
founding” (internal quotation marks omitted)). Similarly,
when a litigant claims a violation of his rights under the
Establishment Clause, Members of this Court “loo[k] to history for guidance.” American Legion v. American Humanist
Assn., 588 U. S. ___, ___ (2019) (plurality opinion) (slip op.,
at 25). We adopt a similar approach here.
To be sure, “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making
nuanced judgments about which evidence to consult and
how to interpret it.” McDonald, 561 U. S., at 803–804
(Scalia, J., concurring). But reliance on history to inform
the meaning of constitutional text—especially text meant
to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to “make
difficult empirical judgments” about “the costs and benefits
of firearms restrictions,” especially given their “lack [of] expertise” in the field. Id., at 790–791 (plurality opinion).6
—————— 6The dissent claims that Heller’s text-and-history test will prove unworkable compared to means-end scrutiny in part because judges are relatively ill equipped to “resolv[e] difficult historical questions” or engage
in “searching historical surveys.” Post, at 26, 30. We are unpersuaded.
The job of judges is not to resolve historical questions in the abstract; it
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Opinion of the Court
If the last decade of Second Amendment litigation has
taught this Court anything, it is that federal courts tasked
with making such difficult empirical judgments regarding
firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But
while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is
not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other
interests the right of law-abiding, responsible citizens to
use arms” for self-defense. Heller, 554 U. S., at 635. It is
this balance—struck by the traditions of the American people—that demands our unqualified deference.
D
The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and
historical understanding. In some cases, that inquiry will
be fairly straightforward. For instance, when a challenged
regulation addresses a general societal problem that has
persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent
with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through
materially different means, that also could be evidence that
——————
is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules”
to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law
of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n
our adversarial system of adjudication, we follow the principle of party
presentation.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020)
(slip op., at 3). Courts are thus entitled to decide a case based on the
historical record compiled by the parties.

18 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations
during this timeframe, but those proposals were rejected on
constitutional grounds, that rejection surely would provide
some probative evidence of unconstitutionality.
Heller itself exemplifies this kind of straightforward historical inquiry. One of the District’s regulations challenged
in Heller “totally ban[ned] handgun possession in the
home.” Id., at 628. The District in Heller addressed a perceived societal problem—firearm violence in densely populated communities—and it employed a regulation—a flat
ban on the possession of handguns in the home—that the
Founders themselves could have adopted to confront that
problem. Accordingly, after considering “founding-era historical precedent,” including “various restrictive laws in the
colonial period,” and finding that none was analogous to the
District’s ban, Heller concluded that the handgun ban was
unconstitutional. Id., at 631; see also id., at 634 (describing
the claim that “there were somewhat similar restrictions in
the founding period” a “false proposition”).
New York’s proper-cause requirement concerns the same
alleged societal problem addressed in Heller: “handgun violence,” primarily in “urban area[s].” Ibid. Following the
course charted by Heller, we will consider whether “historical precedent” from before, during, and even after the
founding evinces a comparable tradition of regulation. Id.,
at 631. And, as we explain below, we find no such tradition
in the historical materials that respondents and their amici
have brought to bear on that question. See Part III–B, infra.
While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes
may require a more nuanced approach. The regulatory
challenges posed by firearms today are not always the same
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as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—
“intended to endure for ages to come, and consequently, to
be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can,
and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v.
Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that]
would have been considered a ‘search’ within the meaning
of the Fourth Amendment when it was adopted”).
We have already recognized in Heller at least one way in
which the Second Amendment’s historically fixed meaning
applies to new circumstances: Its reference to “arms” does
not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582. “Just as the First Amendment
protects modern forms of communications, and the Fourth
Amendment applies to modern forms of search, the Second
Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (citations omitted).
Thus, even though the Second Amendment’s definition of
“arms” is fixed according to its historical understanding,
that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts,
577 U. S. 411, 411–412 (2016) (per curiam) (stun guns).
Much like we use history to determine which modern
“arms” are protected by the Second Amendment, so too does
history guide our consideration of modern regulations that
were unimaginable at the founding. When confronting such
present-day firearm regulations, this historical inquiry that
courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all

20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm
regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything
else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which
are not,” F. Schauer & B. Spellman, Analogy, Expertise,
and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar
if one’s metric is “things that are green.” See ibid. They
are not relevantly similar if the applicable metric is “things
you can wear.”
While we do not now provide an exhaustive survey of the
features that render regulations relevantly similar under
the Second Amendment, we do think that Heller and
McDonald point toward at least two metrics: how and why
the regulations burden a law-abiding citizen’s right to
armed self-defense. As we stated in Heller and repeated in
McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561
U. S., at 767 (quoting Heller, 554 U. S., at 599); see also id.,
at 628 (“the inherent right of self-defense has been central
to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden
on the right of armed self-defense and whether that burden
is comparably justified are “‘central’” considerations when
engaging in an analogical inquiry. McDonald, 561 U. S., at
767 (quoting Heller, 554 U. S., at 599).7
—————— 7This does not mean that courts may engage in independent meansend scrutiny under the guise of an analogical inquiry. Again, the Second
Amendment is the “product of an interest balancing by the people,” not
the evolving product of federal judges. Heller, 554 U. S., at 635 (emphasis altered). Analogical reasoning requires judges to apply faithfully the
balance struck by the founding generation to modern circumstances, and
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To be clear, analogical reasoning under the Second
Amendment is neither a regulatory straightjacket nor a
regulatory blank check. On the one hand, courts should not
“uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the
other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modernday regulation is not a dead ringer for historical precursors,
it still may be analogous enough to pass constitutional muster.
Consider, for example, Heller’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings.” 554
U. S., at 626. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where
weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also
aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive
Places” Doctrine, 13 Charleston L. Rev. 205, 229–236, 244–
247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that
these locations were “sensitive places” where arms carrying
could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and
analogous sensitive places are constitutionally permissible.
Although we have no occasion to comprehensively define
——————
contrary to the dissent’s assertion, there is nothing “[i]roni[c]” about that
undertaking. Post, at 30. It is not an invitation to revise that balance
through means-end scrutiny.

22 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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“sensitive places” in this case, we do think respondents err
in their attempt to characterize New York’s proper-cause
requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm
law-abiding citizens include all “places where people typically congregate and where law-enforcement and other
public-safety professionals are presumptively available.”
Brief for Respondents 34. It is true that people sometimes
congregate in “sensitive places,” and it is likewise true that
law enforcement professionals are usually presumptively
available in those locations. But expanding the category of
“sensitive places” simply to all places of public congregation
that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second
Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail
below. See Part III–B, infra. Put simply, there is no historical basis for New York to effectively declare the island
of Manhattan a “sensitive place” simply because it is
crowded and protected generally by the New York City Police Department.
Like Heller, we “do not undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.”
554 U. S., at 626. And we acknowledge that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.” Heller v.
District of Columbia, 670 F. 3d 1244, 1275 (CADC 2011)
(Kavanaugh, J., dissenting). “But that is hardly unique to
the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution.”
Ibid. We see no reason why judges frequently tasked with
answering these kinds of historical, analogical questions
cannot do the same for Second Amendment claims.

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III
Having made the constitutional standard endorsed in
Heller more explicit, we now apply that standard to New
York’s proper-cause requirement.
A
It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people”
whom the Second Amendment protects. See Heller, 554
U. S., at 580. Nor does any party dispute that handguns
are weapons “in common use” today for self-defense. See
id., at 627; see also Caetano, 577 U. S., at 411–412. We
therefore turn to whether the plain text of the Second
Amendment protects Koch’s and Nash’s proposed course of
conduct—carrying handguns publicly for self-defense.
We have little difficulty concluding that it does. Respondents do not dispute this. See Brief for Respondents 19. Nor
could they. Nothing in the Second Amendment’s text draws
a home/public distinction with respect to the right to keep
and bear arms. As we explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the
right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and
carry weapons in case of confrontation.” 554 U. S., at 592.
Heller further confirmed that 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.” Id., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted).
This definition of “bear” naturally encompasses public
carry. Most gun owners do not wear a holstered pistol at
their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their
home, at the ready for self-defense, most do not “bear” (i.e.,

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carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home
would nullify half of the Second Amendment’s operative
protections.
Moreover, confining the right to “bear” arms to the home
would make little sense given that self-defense is “the central component of the [Second Amendment] right itself.”
Heller, 554 U. S., at 599; see also McDonald, 561 U. S., at
767. After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” Heller, 554 U. S., at 592, and confrontation can
surely take place outside the home.
Although we remarked in Heller that the need for armed
self-defense is perhaps “most acute” in the home, id., at 628,
we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the
home than in it. See Moore v. Madigan, 702 F. 3d 933, 937
(CA7 2012) (“[A] Chicagoan is a good deal more likely to be
attacked on a sidewalk in a rough neighborhood than in his
apartment on the 35th floor of the Park Tower”). The text
of the Second Amendment reflects that reality.
The Second Amendment’s plain text thus presumptively
guarantees petitioners Koch and Nash a right to “bear”
arms in public for self-defense.
B
Conceding that the Second Amendment guarantees a
general right to public carry, contra, Young, 992 F. 3d, at
813, respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a nonspeculative need for armed self-defense in those areas,”
Brief for Respondents 19 (citation omitted).8 To support
—————— 8The dissent claims that we cannot answer the question presented
without giving respondents the opportunity to develop an evidentiary
record fleshing out “how New York’s law is administered in practice, how

 

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Opinion of the Court
that claim, the burden falls on respondents to show that
New York’s proper-cause requirement is consistent with
this Nation’s historical tradition of firearm regulation.
Only if respondents carry that burden can they show that
the pre-existing right codified in the Second Amendment,
and made applicable to the States through the Fourteenth,
does not protect petitioners’ proposed course of conduct.
Respondents appeal to a variety of historical sources from
the late 1200s to the early 1900s. We categorize these periods as follows: (1) medieval to early modern England;
(2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th
and early-20th centuries.
We categorize these historical sources because, when it
comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the
scope they were understood to have when the people
adopted them.” Heller, 554 U. S., at 634–635 (emphasis
added). The Second Amendment was adopted in 1791; the
——————
much discretion licensing officers in New York possess, or whether the
proper cause standard differs across counties.” Post, at 20. We disagree.
The dissent does not dispute that any applicant for an unrestricted concealed-carry license in New York can satisfy the proper-cause standard
only if he has “ ‘ “a special need for self-protection distinguishable from
that of the general community.” ’ ” Post, at 13 (quoting Kachalsky v.
County of Westchester, 701 F. 3d 81, 86 (CA2 2012)). And in light of the
text of the Second Amendment, along with the Nation’s history of firearm
regulation, we conclude below that a State may not prevent law-abiding
citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense. See infra, at 62. That conclusion
does not depend upon any of the factual questions raised by the dissent.
Nash and Koch allege that they were denied unrestricted licenses because they had not “demonstrate[d] a special need for self-defense that
distinguished [them] from the general public.” App. 123, 125. If those
allegations are proven true, then it simply does not matter whether licensing officers have applied the proper-cause standard differently to
other concealed-carry license applicants; Nash’s and Koch’s constitutional rights to bear arms in public for self-defense were still violated.

26 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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Fourteenth in 1868. Historical evidence that long predates
either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening
years. It is one thing for courts to “reac[h] back to the 14th
century” for English practices that “prevailed up to the ‘period immediately before and after the framing of the Constitution.’” Sprint Communications Co. v. APCC Services,
Inc., 554 U. S. 269, 311 (2008) (ROBERTS, C. J., dissenting).
It is quite another to rely on an “ancient” practice that had
become “obsolete in England at the time of the adoption of
the Constitution” and never “was acted upon or accepted in
the colonies.” Dimick v. Schiedt, 293 U. S. 474, 477 (1935).
As with historical evidence generally, courts must be
careful when assessing evidence concerning English
common-law rights. The common law, of course, developed
over time. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 533, n. 28 (1983); see also Rogers v.
Tennessee, 532 U. S. 451, 461 (2001). And English commonlaw practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers
of our own Constitution. Even “the words of Magna
Charta”—foundational as they were to the rights of America’s forefathers—“stood for very different things at the
time of the separation of the American Colonies from what
they represented originally” in 1215. Hurtado v. California, 110 U. S. 516, 529 (1884). Sometimes, in interpreting
our own Constitution, “it [is] better not to go too far back
into antiquity for the best securities of our liberties,” Funk
v. United States, 290 U. S. 371, 382 (1933), unless evidence
shows that medieval law survived to become our Founders’
law. A long, unbroken line of common-law precedent
stretching from Bracton to Blackstone is far more likely to
be part of our law than a short-lived, 14th-century English
practice.
Similarly, we must also guard against giving postenactment history more weight than it can rightly bear. It is true
Cite as: 597 U. S. ____ (2022) 27
Opinion of the Court
that in Heller we reiterated that evidence of “how the Second Amendment was interpreted from immediately after its
ratification through the end of the 19th century” represented a “critical tool of constitutional interpretation.” 554
U. S., at 605. We therefore examined “a variety of legal and
other sources to determine the public understanding of [the
Second Amendment] after its . . . ratification.” Ibid. And,
in other contexts, we have explained that “‘a regular course
of practice’ can ‘liquidate & settle the meaning of ’ disputed
or indeterminate ‘terms & phrases’” in the Constitution.
Chiafalo v. Washington, 591 U. S. ___, ___ (2020) (slip op.,
at 13) (quoting Letter from J. Madison to S. Roane (Sept. 2,
1819), in 8 Writings of James Madison 450 (G. Hunt ed.
1908)); see also, e.g., Houston Community College System v.
Wilson, 595 U. S. ___, ___ (2022) (slip op., at 5) (same); The
Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison);
see generally C. Nelson, Stare Decisis and Demonstrably
Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W.
Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1
(2019). In other words, we recognize that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice
should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning, 573 U. S. 513,
572 (2014) (Scalia, J., concurring in judgment); see also Myers v. United States, 272 U. S. 52, 174 (1926); Printz v.
United States, 521 U. S. 898, 905 (1997).
But to the extent later history contradicts what the text
says, the text controls. “‘[L]iquidating’ indeterminacies in
written laws is far removed from expanding or altering
them.” Gamble v. United States, 587 U. S. ___, ___ (2019)
(THOMAS, J., concurring) (slip op., at 13); see also Letter
from J. Madison to N. Trist (Dec. 1831), in 9 Writings of
James Madison 477 (G. Hunt ed. 1910). Thus, “postratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text

28 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
obviously cannot overcome or alter that text.” Heller, 670
F. 3d, at 1274, n. 6 (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___
(2020) (slip op., at 15).
As we recognized in Heller itself, because post-Civil War
discussions of the right to keep and bear arms “took place
75 years after the ratification of the Second Amendment,
they do not provide as much insight into its original meaning as earlier sources.” 554 U. S., at 614; cf. Sprint Communications Co., 554 U. S., at 312 (ROBERTS, C. J., dissenting)
(“The belated innovations of the mid- to late-19th-century
courts come too late to provide insight into the meaning of
[the Constitution in 1787]”). And we made clear in Gamble
that Heller’s interest in mid- to late-19th-century commentary was secondary. Heller considered this evidence “only
after surveying what it regarded as a wealth of authority
for its reading—including the text of the Second Amendment and state constitutions.” Gamble, 587 U. S., at ___
(majority opinion) (slip op., at 23). In other words, this
19th-century evidence was “treated as mere confirmation of
what the Court thought had already been established.”
Ibid.
A final word on historical method: Strictly speaking, New
York is bound to respect the right to keep and bear arms
because of the Fourteenth Amendment, not the Second.
See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7
Pet. 243, 250–251 (1833) (Bill of Rights applies only to the
Federal Government). Nonetheless, we have made clear
that individual rights enumerated in the Bill of Rights and
made applicable against the States through the Fourteenth
Amendment have the same scope as against the Federal
Government. See, e.g., Ramos v. Louisiana, 590 U. S. ___,
___ (2020) (slip op., at 7); Timbs v. Indiana, 586 U. S. ___,
___–___ (2019) (slip op., at 2–3); Malloy v. Hogan, 378 U. S.
1, 10–11 (1964). And we have generally assumed that the
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Opinion of the Court
scope of the protection applicable to the Federal Government and States is pegged to the public understanding of
the right when the Bill of Rights was adopted in 1791. See,
e.g., Crawford v. Washington, 541 U. S. 36, 42–50 (2004)
(Sixth Amendment); Virginia v. Moore, 553 U. S. 164, 168–
169 (2008) (Fourth Amendment); Nevada Comm’n on Ethics v. Carrigan, 564 U. S. 117, 122–125 (2011) (First
Amendment).
We also acknowledge that there is an ongoing scholarly
debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its
scope (as well as the scope of the right against the Federal
Government). See, e.g., A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, ReSpeaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (manuscript, at 2), https://papers.ssrn
.com/sol3/papers.cfm?abstract_id=3766917 (“When the people adopted the Fourteenth Amendment into existence,
they readopted the original Bill of Rights, and did so in a
manner that invested those original 1791 texts with new
1868 meanings”). We need not address this issue today because, as we explain below, the public understanding of the
right to keep and bear arms in both 1791 and 1868 was, for
all relevant purposes, the same with respect to public carry.
* * *
With these principles in mind, we turn to respondents’
historical evidence. Throughout modern Anglo-American
history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner
of carry, or the exceptional circumstances under which one
could not carry arms. But apart from a handful of late19th-century jurisdictions, the historical record compiled by
respondents does not demonstrate a tradition of broadly

30 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
prohibiting the public carry of commonly used firearms for
self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who
demonstrate a special need for self-defense.9 We conclude
that respondents have failed to meet their burden to identify an American tradition justifying New York’s propercause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional.
1
Respondents’ substantial reliance on English history and
custom before the founding makes some sense given our
statement in Heller that the Second Amendment “codified
a right ‘inherited from our English ancestors.’” 554 U. S.,
at 599 (quoting Robertson v. Baldwin, 165 U. S. 275, 281
(1897)); see also Smith v. Alabama, 124 U. S. 465, 478
—————— 9To be clear, nothing in our analysis should be interpreted to suggest
the unconstitutionality of the 43 States’ “shall-issue” licensing regimes,
under which “a general desire for self-defense is sufficient to obtain a
[permit].” Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J.,
dissenting). Because these licensing regimes do not require applicants
to show an atypical need for armed self-defense, they do not necessarily
prevent “law-abiding, responsible citizens” from exercising their Second
Amendment right to public carry. District of Columbia v. Heller, 554
U. S. 570, 635 (2008). Rather, it appears that these shall-issue regimes,
which often require applicants to undergo a background check or pass a
firearms safety course, are designed to ensure only that those bearing
arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.”
Ibid. And they likewise appear to contain only “narrow, objective, and
definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of
facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify
proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait
times in processing license applications or exorbitant fees deny ordinary
citizens their right to public carry.
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(1888). But this Court has long cautioned that the English
common law “is not to be taken in all respects to be that of
America.” Van Ness v. Pacard, 2 Pet. 137, 144 (1829)
(Story, J., for the Court); see also Wheaton v. Peters, 8 Pet.
591, 659 (1834); Funk, 290 U. S., at 384. Thus, “[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and
adopted,” not as they existed in the Middle Ages. Ex parte
Grossman, 267 U. S. 87, 108–109 (1925) (emphasis added);
see also United States v. Reid, 12 How. 361, 363 (1852).
We interpret the English history that respondents and
the United States muster in light of these interpretive principles. We find that history ambiguous at best and see little
reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative
to defend New York’s proper-cause requirement.
To begin, respondents and their amici point to several
medieval English regulations from as early as 1285 that
they say indicate a longstanding tradition of restricting the
public carry of firearms. See 13 Edw. 1, 102. The most
prominent is the 1328 Statute of Northampton (or Statute),
passed shortly after Edward II was deposed by force of arms
and his son, Edward III, took the throne of a kingdom where
“tendency to turmoil and rebellion was everywhere apparent throughout the realm.” N. Trenholme, The Risings in
the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650,
651 (1901). At the time, “[b]ands of malefactors, knights as
well as those of lesser degree, harried the country, committing assaults and murders,” prompted by a more general
“spirit of insubordination” that led to a “decay in English
national life.” K. Vickers, England in the Later Middle
Ages 107 (1926).
The Statute of Northampton was, in part, “a product of
. . . the acute disorder that still plagued England.” A. Verduyn, The Politics of Law and Order During the Early

32 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993). It
provided that, with some exceptions, Englishmen could not
“come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no
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, upon
pain to forfeit their Armour to the King, and their Bodies to
Prison at the King’s pleasure.” 2 Edw. 3 c. 3 (1328).
Respondents argue that the prohibition on “rid[ing]” or
“go[ing] . . . armed” was a sweeping restriction on public
carry of self-defense weapons that would ultimately be
adopted in Colonial America and justify onerous publiccarry regulations. Notwithstanding the ink the parties spill
over this provision, the Statute of Northampton—at least
as it was understood during the Middle Ages—has little
bearing on the Second Amendment adopted in 1791. The
Statute of Northampton was enacted nearly 20 years before
the Black Death, more than 200 years before the birth of
Shakespeare, more than 350 years before the Salem Witch
Trials, more than 450 years before the ratification of the
Constitution, and nearly 550 years before the adoption of
the Fourteenth Amendment.
The Statute’s prohibition on going or riding “armed” obviously did not contemplate handguns, given they did not
appear in Europe until about the mid-1500s. See K. Chase,
Firearms: A Global History to 1700, p. 61 (2003). Rather, it
appears to have been centrally concerned with the wearing
of armor. See, e.g., Calendar of the Close Rolls, Edward III,
1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed.
1898); id., at 243 (May 28, 1331); id., Edward III, 1327–
1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond
armor, it applied to such weapons as the “launcegay,” a 10-
to 12-foot-long lightweight lance. See 7 Rich. 2 c. 13 (1383);
20 Rich. 2 c. 1 (1396).
The Statute’s apparent focus on armor and, perhaps,
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Opinion of the Court
weapons like launcegays makes sense given that armor and
lances were generally worn or carried only when one intended to engage in lawful combat or—as most early violations of the Statute show—to breach the peace. See, e.g.,
Calendar of the Close Rolls, Edward III, 1327–1330, at 402
(July 7, 1328); id., Edward III, 1333–1337, at 695 (Aug. 18,
1336) (1898). Contrast these arms with daggers. In the
medieval period, “[a]lmost everyone carried a knife or a
dagger in his belt.” H. Peterson, Daggers and Fighting
Knives of the Western World 12 (2001). While these knives
were used by knights in warfare, “[c]ivilians wore them for
self-protection,” among other things. Ibid. Respondents
point to no evidence suggesting the Statute applied to the
smaller medieval weapons that strike us as most analogous
to modern handguns.
When handguns were introduced in England during the
Tudor and early Stuart eras, they did prompt royal efforts
at suppression. For example, Henry VIII issued several
proclamations decrying the proliferation of handguns, and
Parliament passed several statutes restricting their possession. See, e.g., 6 Hen. 8 c. 13, §1 (1514); 25 Hen. 8 c. 17, §1
(1533); 33 Hen. 8 c. 6 (1541); Prohibiting Use of Handguns
and Crossbows (Jan. 1537), in 1 Tudor Royal Proclamations
249 (P. Hughes & J. Larkin eds. 1964). But Henry VIII’s
displeasure with handguns arose not primarily from concerns about their safety but rather their inefficacy. Henry
VIII worried that handguns threatened Englishmen’s proficiency with the longbow—a weapon many believed was
crucial to English military victories in the 1300s and 1400s,
including the legendary English victories at Crécy and Agincourt. See R. Payne-Gallwey, The Crossbow 32, 34
(1903); L. Schwoerer, Gun Culture in Early Modern England 54 (2016) (Schwoerer).
Similarly, James I considered small handguns—called
dags—“utterly unserviceable for defence, Militarie practise,
or other lawful use.” A Proclamation Against Steelets,

 

34 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
Pocket Daggers, Pocket Dagges and Pistols (R. Barker
printer 1616). But, in any event, James I’s proclamation in
1616 “was the last one regarding civilians carrying dags,”
Schwoerer 63. “After this the question faded without explanation.” Ibid. So, by the time Englishmen began to arrive
in America in the early 1600s, the public carry of handguns
was no longer widely proscribed.
When we look to the latter half of the 17th century, respondents’ case only weakens. As in Heller, we consider
this history “[b]etween the [Stuart] Restoration [in 1660]
and the Glorious Revolution [in 1688]” to be particularly instructive. 554 U. S., at 592. During that time, the Stuart
Kings Charles II and James II ramped up efforts to disarm
their political opponents, an experience that “caused Englishmen . . . to be jealous of their arms.” Id., at 593.
In one notable example, the government charged Sir John
Knight, a prominent detractor of James II, with violating
the Statute of Northampton because he allegedly “did walk
about the streets armed with guns, and that he went 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 (K. B. 1686).
Chief Justice Holt explained that the Statute of Northampton had “almost gone in desuetudinem,” Rex v. Sir John
Knight, 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686),
meaning that the Statute had largely become obsolete
through disuse.10 And the Chief Justice further explained
—————— 10Another medieval firearm restriction—a 1541 statute enacted under
Henry VIII that limited the ownership and use of handguns (which could
not be shorter than a yard) to those subjects with annual property values
of at least £100, see 33 Hen. 8 c. 6, §§1–2—fell into a similar obsolescence.
As far as we can discern, the last recorded prosecutions under the 1541
statute occurred in 1693, neither of which appears to have been successful. See King and Queen v. Bullock, 4 Mod. 147, 87 Eng. Rep. 315 (K. B.
1693); King v. Litten, 1 Shower, K. B. 367, 89 Eng. Rep. 644 (K. B. 1693).
It seems that other prosecutions under the 1541 statute during the late
1600s were similarly unsuccessful. See King v. Silcot, 3 Mod. 280, 280–
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that the act of “go[ing] armed to terrify the King’s subjects”
was “a great offence at the common law” and that the Statute of Northampton “is but an affirmance of that law.” 3
Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added).
Thus, one’s conduct “will come within the Act,”—i.e., would
terrify the King’s subjects—only “where the crime shall appear to be malo animo,” 1 Comb., at 39, 90 Eng. Rep., at
330, with evil intent or malice. Knight was ultimately acquitted by the jury.11
——————
281, 87 Eng. Rep. 186 (K. B. 1690); King v. Lewellin, 1 Shower, K. B. 48,
89 Eng. Rep. 440 (K. B. 1689); cf. King and Queen v. Alsop, 4 Mod. 49,
50–51, 87 Eng. Rep. 256, 256–257 (K. B. 1691). By the late 1700s, it was
widely recognized that the 1541 statute was “obsolete.” 2 R. Burn, The
Justice of the Peace, and Parish Officer 243, n. (11th ed. 1769); see also,
e.g., The Farmer’s Lawyer 143 (1774) (“entirely obsolete”); 1 G. Jacob,
Game-Laws II, Law-Dictionary (T. Tomlins ed. 1797); 2 R. Burn, The
Justice of the Peace, and Parish Officer 409 (18th ed. 1797) (calling the
1541 statute “a matter more of curiosity than use”).
In any event, lest one be tempted to put much evidentiary weight on
the 1541 statute, it impeded not only public carry, but further made it
unlawful for those without sufficient means to “kepe in his or their
houses” any “handgun.” 33 Hen. 8 c. 6, §1. Of course, this kind of limitation is inconsistent with Heller’s historical analysis regarding the Second Amendment’s meaning at the founding and thereafter. So, even if a
severe restriction on keeping firearms in the home may have seemed appropriate in the mid-1500s, it was not incorporated into the Second
Amendment’s scope. We see little reason why the parts of the 1541 statute that address public carry should not be understood similarly.
We note also that even this otherwise restrictive 1541 statute, which
generally prohibited shooting firearms in any city, exempted discharges
“for the defence of [one’s] p[er]son or house.” §4. Apparently, the paramount need for self-defense trumped the Crown’s interest in firearm suppression even during the 16th century. 11The dissent discounts Sir John Knight’s Case, 3 Mod. 117, 87 Eng.
Rep. 75, because it only “arguably” supports the view that an evil-intent
requirement attached to the Statute of Northampton by the late 1600s
and early 1700s. See post, at 37. But again, because the Second Amendment’s bare text covers petitioners’ public carry, the respondents here
shoulder the burden of demonstrating that New York’s proper-cause requirement is consistent with the Second Amendment’s text and historical scope. See supra, at 15. To the extent there are multiple plausible

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Just three years later, Parliament responded by writing
the “predecessor to our Second Amendment” into the 1689
English Bill of Rights, Heller, 554 U. S., at 593, guaranteeing that “Protestants . . . may have Arms for their Defence
suitable to their Conditions, and as allowed by Law,” 1 Wm.
& Mary c. 2, §7, in 3 Eng. Stat. at Large 417 (1689). Although this right was initially limited—it was restricted to
Protestants and held only against the Crown, but not Parliament—it represented a watershed in English history.
Englishmen had “never before claimed . . . the right of the
individual to arms.” Schwoerer 156.12 And as that individual right matured, “by the time of the founding,” the right
to keep and bear arms was “understood to be an individual
right protecting against both public and private violence.”
Heller, 554 U. S., at 594.
To be sure, the Statute of Northampton survived both Sir
John Knight’s Case and the English Bill of Rights, but it
was no obstacle to public carry for self-defense in the decades leading to the founding. Serjeant William Hawkins,
in his widely read 1716 treatise, confirmed 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.” 1 Pleas of the Crown 136. To
illustrate that proposition, Hawkins noted as an example
that “Persons of Quality” were “in no Danger of Offending
against this Statute by wearing common Weapons” because, in those circumstances, it would be clear that they
——————
interpretations of Sir John Knight’s Case, we will favor the one that is
more consistent with the Second Amendment’s command. 12Even Catholics, who fell beyond the protection of the right to have
arms, and who were stripped of all “Arms, Weapons, Gunpowder, [and]
Ammunition,” were at least allowed to keep “such necessary Weapons as
shall be allowed . . . by Order of the Justices of the Peace . . . for the Defence of his House or Person.” 1 Wm. & Mary c. 15, §4, in 3 Eng. Stat. at
Large 399 (1688).
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had no “Intention to commit any Act of Violence or Disturbance of the Peace.” Ibid.; see also T. Barlow, The Justice of
Peace 12 (1745). Respondents do not offer any evidence
showing that, in the early 18th century or after, the mere
public carrying of a handgun would terrify people. In fact,
the opposite seems to have been true. As time went on, “domestic gun culture [in England] softened” any “terror” that
firearms might once have conveyed. Schwoerer 4. Thus,
whatever place handguns had in English society during the
Tudor and Stuart reigns, by the time we reach the 18th century—and near the founding—they had gained a fairly secure footing in English culture.
At the very least, we cannot conclude from this historical
record that, by the time of the founding, English law would
have justified restricting the right to publicly bear arms
suited for self-defense only to those who demonstrate some
special need for self-protection.
2
Respondents next point us to the history of the Colonies
and early Republic, but there is little evidence of an early
American practice of regulating public carry by the general
public. This should come as no surprise—English subjects
founded the Colonies at about the time England had itself
begun to eliminate restrictions on the ownership and use of
handguns.
In the colonial era, respondents point to only three restrictions on public carry. For starters, we doubt that three
colonial regulations could suffice to show a tradition of public-carry regulation. In any event, even looking at these
laws on their own terms, we are not convinced that they
regulated public carry akin to the New York law before us.
Two of the statutes were substantively identical. Colonial Massachusetts and New Hampshire both authorized
justices of the peace to arrest “all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or

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go armed Offensively . . . by Night or by Day, in Fear or Affray of Their Majesties Liege People.” 1692 Mass. Acts and
Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1.
Respondents and their amici contend that being “armed offensively” meant bearing any offensive weapons, including
firearms. See Brief for Respondents 33. In particular, respondents’ amici argue that “‘offensive’” arms in the 1600s
and 1700s were what Blackstone and others referred to as
“‘dangerous or unusual weapons,’” Brief for Professors of
History and Law as Amici Curiae 7 (quoting 4 Blackstone,
Commentaries, at 148–149), a category that they say included firearms, see also post, at 40–42 (BREYER, J., dissenting).
Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any
class of firearms, they merely codified the existing commonlaw offense of bearing arms to terrorize the people, as had
the Statute of Northampton itself. See supra, at 34–37. For
instance, the Massachusetts statute proscribed “go[ing]
armed Offensively . . . in Fear or Affray” of the people, indicating that these laws were modeled after the Statute of
Northampton to the extent that the statute would have
been understood to limit public carry in the late 1600s.
Moreover, it makes very little sense to read these statutes
as banning the public carry of all firearms just a few years
after Chief Justice Holt in Sir John Knight’s Case indicated
that the English common law did not do so.
Regardless, even if respondents’ reading of these colonial
statutes were correct, it would still do little to support restrictions on the public carry of handguns today. At most,
respondents can show that colonial legislatures sometimes
prohibited the carrying of “dangerous and unusual weapons”—a fact we already acknowledged in Heller. See 554
U. S., at 627. Drawing from this historical tradition, we explained there that the Second Amendment protects only the
carrying of weapons that are those “in common use at the
Cite as: 597 U. S. ____ (2022) 39
Opinion of the Court
time,” as opposed to those that “are highly unusual in society at large.” Ibid. (internal quotation marks omitted).
Whatever the likelihood that handguns were considered
“dangerous and unusual” during the colonial period, they
are indisputably in “common use” for self-defense today.
They are, in fact, “the quintessential self-defense weapon.”
Id., at 629. Thus, even if these colonial laws prohibited the
carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no
justification for laws restricting the public carry of weapons
that are unquestionably in common use today.
The third statute invoked by respondents was enacted in
East New Jersey in 1686. It prohibited the concealed carry
of “pocket pistol[s]” or other “unusual or unlawful weapons,” and it further prohibited “planter[s]” from carrying all
pistols unless in military service or, if “strangers,” when
traveling through the Province. An Act Against Wearing
Swords, &c., ch. 9, in Grants, Concessions, and Original
Constitutions of the Province of New Jersey 290 (2d ed.
1881) (Grants and Concessions). These restrictions do not
meaningfully support respondents. The law restricted only
concealed carry, not all public carry, and its restrictions applied only to certain “unusual or unlawful weapons,” including “pocket pistol[s].” Ibid. It also did not apply to all pistols, let alone all firearms. “Pocket pistols” had barrel
lengths of perhaps 3 or 4 inches, far smaller than the 6-inch
to 14-inch barrels found on the other belt and hip pistols
that were commonly used for lawful purposes in the 1600s.
J. George, English Pistols and Revolvers 16 (1938); see also,
e.g., 14 Car. 2 c. 3, §20 (1662); H. Peterson, Arms and Armor
in Colonial America, 1526–1783, p. 208 (1956) (Peterson).
Moreover, the law prohibited only the concealed carry of
pocket pistols; it presumably did not by its terms touch the

40 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
open carry of larger, presumably more common pistols, except as to “planters.”13 In colonial times, a “planter” was
simply a farmer or plantation owner who settled new territory. R. Lederer, Colonial American English 175 (1985);
New Jersey State Archives, J. Klett, Using the Records of
the East and West Jersey Proprietors 31 (rev. ed. 2014),
https://www.nj.gov/state/archives/pdf/proprietors.pdf. While
the reason behind this singular restriction is not entirely
clear, planters may have been targeted because colonial-era
East New Jersey was riven with “strife and excitement” between planters and the Colony’s proprietors “respecting titles to the soil.” See W. Whitehead, East Jersey Under the
Proprietary Governments 150–151 (rev. 2d ed. 1875); see
also T. Gordon, The History of New Jersey 49 (1834).
In any event, we cannot put meaningful weight on this
solitary statute. First, although the “planter” restriction
may have prohibited the public carry of pistols, it did not
prohibit planters from carrying long guns for self-defense—
including the popular musket and carbine. See Peterson
41. Second, it does not appear that the statute survived for
very long. By 1694, East New Jersey provided that no slave
“be permitted to carry any gun or pistol . . . into the woods,
or plantations” unless their owner accompanied them.
Grants and Concessions 341. If slave-owning planters were
prohibited from carrying pistols, it is hard to comprehend
why slaves would have been able to carry them in the
planter’s presence. Moreover, there is no evidence that the
1686 statute survived the 1702 merger of East and West
New Jersey. See 1 Nevill, Acts of the General Assembly of
the Province of New-Jersey (1752). At most eight years of
—————— 13Even assuming that pocket pistols were, as East Jersey in 1686
deemed them, “unusual or unlawful,” it appears that they were commonly used at least by the founding. See, e.g., G. Neumann, The History
of Weapons of the American Revolution 150–151 (1967); see also H. Hendrick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun
Safety and Forensics 44 (2008).
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Opinion of the Court
history in half a Colony roughly a century before the founding sheds little light on how to properly interpret the Second Amendment.
Respondents next direct our attention to three late-18thcentury and early-19th-century statutes, but each parallels
the colonial statutes already discussed. One 1786 Virginia
statute provided that “no man, great nor small, [shall] go
nor ride armed by night nor by day, in fairs or markets, or
in other places, in terror of the Country.” Collection of All
Such Acts of the General Assembly of Virginia ch. 21, p. 33
(1794).14 A Massachusetts statute from 1795 commanded
justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go
armed offensively, to the fear or terror of the good citizens
of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2,
p. 436, in Laws of the Commonwealth of Massachusetts.
And an 1801 Tennessee statute likewise required any person who would “publicly ride or go armed to the terror of the
people, or privately carry any dirk, large knife, pistol or any
other dangerous weapon, to the fear or terror of any person”
to post a surety; otherwise, his continued violation of the
law would be “punished as for a breach of the peace, or riot
at common law.” 1801 Tenn. Acts pp. 260–261.
A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads
“fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See
supra, at 34–35. Respondents give us no reason to think
that the founding generation held a different view. Thus,
all told, in the century leading up to the Second Amendment
—————— 14The Virginia statute all but codified the existing common law in this
regard. See G. Webb, The Office and Authority of a Justice of Peace 92
(1736) (explaining how a constable “may take away Arms from such who
ride, or go, offensively armed, in Terror of the People”).

42 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.
3
Only after the ratification of the Second Amendment in
1791 did public-carry restrictions proliferate. Respondents
rely heavily on these restrictions, which generally fell into
three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to the
burden created by New York’s restrictive licensing regime.
Common-Law Offenses. As during the colonial and
founding periods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose
some limits on firearm carry in the antebellum period. But
as with the earlier periods, there is no evidence indicating
that these common-law limitations impaired the right of
the general population to peaceable public carry.
For example, the Tennessee attorney general once
charged a defendant with the common-law offense of affray,
arguing that the man committed the crime when he
“‘arm[ed] himself with dangerous and unusual weapons, in
such a manner as will naturally cause terror to the people.’”
Simpson v. State, 13 Tenn. 356, 358 (1833). More specifically, the indictment charged that Simpson “with force and
arms being arrayed in a warlike manner . . . unlawfully,
and to the great terror and disturbance of divers good citizens, did make an affray.” Id., at 361. The Tennessee Supreme Court quashed the indictment, holding that the Statute of Northampton was never part of Tennessee law. Id.,
at 359. But even assuming that Tennesseans’ ancestors
brought with them the common law associated with the
Statute, the Simpson court found that if the Statute had

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Opinion of the Court
made, as an “independent ground of affray,” the mere arming of oneself with firearms, the Tennessee Constitution’s
Second Amendment analogue had “completely abrogated
it.” Id., at 360. At least in light of that constitutional guarantee, the court did not think that it could attribute to the
mere carrying of arms “a necessarily consequent operation
as terror to the people.” Ibid.
Perhaps more telling was the North Carolina Supreme
Court’s decision in State v. Huntly, 25 N. C. 418 (1843) (per
curiam). Unlike the Tennessee Supreme Court in Simpson,
the Huntly court held that the common-law offense codified
by the Statute of Northampton was part of the State’s law.
See 25 N. C., at 421–422. However, consistent with the
Statute’s long-settled interpretation, the North Carolina
Supreme Court acknowledged “that the carrying of a gun”
for a lawful purpose “per se constitutes no offence.” Id., at
422–423. Only carrying for a “wicked purpose” with a “mischievous result . . . constitute[d a] crime.” Id., at 423; see
also J. Haywood, The Duty and Office of Justices of Peace
10 (1800); H. Potter, The Office and Duties of a Justice of
the Peace 39 (1816).15 Other state courts likewise recognized that the common law did not punish the carrying of
—————— 15The dissent concedes that Huntly, 25 N. C. 418, recognized that citizens were “ ‘at perfect liberty’ to carry for ‘lawful purpose[s].’ ” Post, at
42 (quoting Huntly, 25 N. C., at 423). But the dissent disputes that such
“lawful purpose[s]” included self-defense, because Huntly goes on to
speak more specifically of carrying arms for “business or amusement.”
Id., at 422–423. This is an unduly stingy interpretation of Huntly. In
particular, Huntly stated that “the citizen is at perfect liberty to carry
his gun” “[f]or any lawful purpose,” of which “business” and “amusement”
were then mentioned. Ibid. (emphasis added). Huntly then contrasted
these “lawful purpose[s]” with the “wicked purpose . . . to terrify and
alarm.” Ibid. Because there is no evidence that Huntly considered selfdefense a “wicked purpose,” we think the best reading of Huntly would
sanction public carry for self-defense, so long as it was not “in such [a]
manner as naturally will terrify and alarm.” Id., at 423.

44 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
deadly weapons per se, but only the carrying of such weapons “for the purpose of an affray, and in such manner as to
strike terror to the people.” O’Neil v. State, 16 Ala. 65, 67
(1849). Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally
free to do so.
Statutory Prohibitions. In the early to mid-19th century,
some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts
to consider the question held that [these] prohibitions on
carrying concealed weapons were lawful under the Second
Amendment or state analogues.” 554 U. S., at 626. Respondents unsurprisingly cite these statutes16—and decisions upholding them17—as evidence that States were historically free to ban public carry.
In fact, however, the history reveals a consensus that
States could not ban public carry altogether. Respondents’
—————— 16Beginning in 1813 with Kentucky, six States (five of which were in
the South) enacted laws prohibiting the concealed carry of pistols by
1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts
p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76;
1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that
appeared to prohibit both concealed and open carry, see 1837 Ga. Acts
§§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibition could not extend to open carry consistent with the Second Amendment. See infra, at 45–46. Between 1846 and 1859, only one other State,
Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, meanwhile, enacted in 1821 a broader law that prohibited carrying, among
other things, “belt or pocket pistols, either public or private,” except
while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of
Florida prohibited concealed carry during this same timeframe. See
1835 Terr. of Fla. Laws p. 423. 17See State v. Mitchell, 3 Blackf. 229 (Ind. 1833); State v. Reid, 1 Ala.
612, 616 (1840); State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, 1 Ga.
243 (1846); State v. Chandler, 5 La. 489 (1850); State v. Smith, 11 La.
633 (1856); State v. Jumel, 13 La. 399 (1858). But see Bliss v. Commonwealth, 12 Ky. 90 (1822). See generally 2 J. Kent, Commentaries on
American Law *340, n. b.
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Opinion of the Court
cited opinions agreed that concealed-carry prohibitions
were constitutional only if they did not similarly prohibit
open carry. That was true in Alabama. See State v. Reid,
1 Ala. 612, 616, 619–621 (1840).18 It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850).19 Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See
Bliss v. Commonwealth, 12 Ky. 90 (1822).20
The Georgia Supreme Court’s decision in Nunn v. State,
1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837
statute broadly prohibited “wearing” or “carrying” pistols
“as arms of offence or defence,” without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To
the extent the 1837 Act prohibited “carrying certain weapons secretly,” the court explained, it was “valid.” Nunn, 1
—————— 18See Reid, 1 Ala., at 619 (holding that “the Legislature cannot inhibit
the citizen from bearing arms openly”); id., at 621 (noting that there was
no evidence “tending to show that the defendant could not have defended
himself as successfully, by carrying the pistol openly, as by secreting it
about his person”). 19See, e.g., Chandler, 5 La., at 490 (Louisiana concealed-carry prohibition “interfered with no man’s right to carry arms (to use its words) ‘in
full open view,’ which places men upon an equality”); Smith, 11 La., at
633 (The “arms” described in the Second Amendment “are such as are
borne by a people in war, or at least carried openly”); Jumel, 13 La., at
399–400 (“The statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a
particular mode of bearing arms which is found dangerous to the peace
of society”). 20With respect to Indiana’s concealed-carry prohibition, the Indiana
Supreme Court’s reasons for upholding it are unknown because the court
issued a one-sentence per curiam order holding the law “not unconstitutional.” Mitchell, 3 Blackf., at 229. Similarly, the Arkansas Supreme
Court upheld Arkansas’ prohibition, but without reaching a majority rationale. See Buzzard, 4 Ark. 18. The Arkansas Supreme Court would
later adopt Tennessee’s approach, which tolerated the prohibition of all
public carry of handguns except for military-style revolvers. See, e.g.,
Fife v. State, 31 Ark. 455 (1876).

46 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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Ga., at 251. But to the extent the Act also prohibited “bearing arms openly,” the court went on, it was “in conflict with
the Constitutio[n] and void.” Ibid.; see also Heller, 554
U. S., at 612. The Georgia Supreme Court’s treatment of
the State’s general prohibition on the public carriage of
handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.
Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821
Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe,
see Heller, 554 U. S., at 629. That said, when the Tennessee
Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn.
Acts ch. 13, §1, p. 28, the court read this language to permit
the public carry of larger, military-style pistols because any
categorical prohibition on their carry would “violat[e] the
constitutional right to keep arms.” Andrews v. State, 50
Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629 (discussing Andrews).21
All told, these antebellum state-court decisions evince a
consensus view that States could not altogether prohibit the
public carry of “arms” protected by the Second Amendment
or state analogues.22
—————— 21Shortly after Andrews, 50 Tenn. 165, Tennessee codified an exception to the State’s handgun ban for “an[y] army pistol, or such as are
commonly carried and used in the United States Army” so long as they
were carried “openly in [one’s] hands.” 1871 Tenn. Pub. Acts ch. 90, §1;
see also State v. Wilburn, 66 Tenn. 57, 61–63 (1872); Porter v. State, 66
Tenn. 106, 107–108 (1874). 22The Territory of New Mexico made it a crime in 1860 to carry “any
class of pistols whatever” “concealed or otherwise.” 1860 Terr. of N. M.
Laws §§1–2, p. 94. This extreme restriction is an outlier statute enacted
by a territorial government nearly 70 years after the ratification of the
Bill of Rights, and its constitutionality was never tested in court. Its
value in discerning the original meaning of the Second Amendment is
insubstantial. Moreover, like many other stringent carry restrictions

Cite as: 597 U. S. ____ (2022) 47
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Surety Statutes. In the mid-19th century, many jurisdictions began adopting surety statutes that required certain
individuals to post bond before carrying weapons in public.
Although respondents seize on these laws to justify the
proper-cause restriction, their reliance on them is misplaced. These laws were not bans on public carry, and they
typically targeted only those threatening to do harm.
As discussed earlier, Massachusetts had prohibited riding or going “armed offensively, to the fear or terror of the
good citizens of this Commonwealth” since 1795. 1795
Mass. Acts and Laws ch. 2, at 436, in Laws of the Commonwealth of Massachusetts. In 1836, Massachusetts enacted
a new law providing:
“If any person shall go armed with a dirk, dagger,
sword, pistol, or other offensive and dangerous weapon,
without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace,
be required to find sureties for keeping the peace, for a
term not exceeding six months, with the right of appealing as before provided.” Mass. Rev. Stat., ch. 134,
§16.
In short, the Commonwealth required any person who was
reasonably likely to “breach the peace,” and who, standing
accused, could not prove a special need for self-defense, to
post a bond before publicly carrying a firearm. Between
1838 and 1871, nine other jurisdictions adopted variants of
——————
that were localized in the Western Territories, New Mexico’s prohibition
ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that “[t]he people have the right to bear
arms for their security and defense, but nothing herein shall be held to
permit the carrying of concealed weapons.” N. M. Const., Art. II, §6
(1911); see infra, at 61.

48 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
the Massachusetts law.23
Contrary to respondents’ position, these “reasonablecause laws” in no way represented the “direct precursor” to
the proper-cause requirement. Brief for Respondents 27.
While New York presumes that individuals have no public
carry right without a showing of heightened need, the
surety statutes presumed that individuals had a right to
public carry that could be burdened only if another could
make out a specific showing of “reasonable cause to fear an
injury, or breach of the peace.” Mass. Rev. Stat., ch. 134,
§16 (1836).24 As William Rawle explained in an influential
treatise, an individual’s carrying of arms was “sufficient
cause to require him to give surety of the peace” only when
“attended with circumstances giving just reason to fear that
he purposes to make an unlawful use of them.” A View of
the Constitution of the United States of America 126 (2d ed.
1829). Then, even on such a showing, the surety laws did
not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer “could go
on carrying without criminal penalty” so long as he
“post[ed] money that would be forfeited if he breached the
peace or injured others—a requirement from which he was
exempt if he needed self-defense.” Wrenn, 864 F. 3d, at 661.
Thus, unlike New York’s regime, a showing of special
need was required only after an individual was reasonably
accused of intending to injure another or breach the peace.
And, even then, proving special need simply avoided a fee
rather than a ban. All told, therefore, “[u]nder surety laws
—————— 23See 1838 Terr. of Wis. Stat. §16, p. 381; Me. Rev. Stat., ch. 169, §16
(1840); Mich. Rev. Stat., ch. 162, §16 (1846); 1847 Va. Acts ch. 14, §16;
Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat. ch. 16, §17,
p. 220; D. C. Rev. Code ch. 141, §16 (1857); 1860 Pa. Laws p. 432, §6;
W. Va. Code, ch. 153, §8 (1868). 24 It is true that two of the antebellum surety laws were unusually
broad in that they did not expressly require a citizen complaint to trigger
the posting of a surety. See 1847 Va. Acts ch. 14, §16; W. Va. Code, ch.
153, §8 (1868).
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. . . everyone started out with robust carrying rights” and
only those reasonably accused were required to show a special need in order to avoid posting a bond. Ibid. These antebellum special-need requirements “did not expand carrying for the responsible; it shrank burdens on carrying by
the (allegedly) reckless.” Ibid.
One Court of Appeals has nonetheless remarked that
these surety laws were “a severe constraint on anyone
thinking of carrying a weapon in public.” Young, 992 F. 3d,
at 820. That contention has little support in the historical
record. Respondents cite no evidence showing the average
size of surety postings. And given that surety laws were
“intended merely for prevention” and were “not meant as
any degree of punishment,” 4 Blackstone, Commentaries,
at 249, the burden these surety statutes may have had on
the right to public carry was likely too insignificant to shed
light on New York’s proper-cause standard—a violation of
which can carry a 4-year prison term or a $5,000 fine. In
Heller, we noted that founding-era laws punishing unlawful
discharge “with a small fine and forfeiture of the weapon
. . . , not with significant criminal penalties,” likely did not
“preven[t] a person in the founding era from using a gun to
protect himself or his family from violence, or that if he did
so the law would be enforced against him.” 554 U. S., at
633–634. Similarly, we have little reason to think that the
hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in
the 19th century.
Besides, respondents offer little evidence that authorities
ever enforced surety laws. The only recorded case that we
know of involved a justice of the peace declining to require
a surety, even when the complainant alleged that the armsbearer “‘did threaten to beat, wou[n]d, mai[m], and kill’”
him. Brief for Professor Robert Leider et al. as Amici Curiae 31 (quoting Grover v. Bullock, No. 185 (Worcester Cty.,

50 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case
Law in Context, 125 Yale L. J. Forum 121, 130, n. 53 (2015).
And one scholar who canvassed 19th-century newspapers—
which routinely reported on local judicial matters—found
only a handful of other examples in Massachusetts and the
District of Columbia, all involving black defendants who
may have been targeted for selective or pretextual enforcement. See R. Leider, Constitutional Liquidation, Surety
Laws, and the Right To Bear Arms 15–17, in New Histories
of Gun Rights and Regulation (J. Blocher, J. Charles, & D.
Miller eds.) (forthcoming); see also Brief for Professor Robert Leider et al. as Amici Curiae 31–32. That is surely too
slender a reed on which to hang a historical tradition of restricting the right to public carry.25
Respondents also argue that surety statutes were severe
restrictions on firearms because the “reasonable cause to
fear” standard was essentially pro forma, given that
“merely carrying firearms in populous areas breached the
peace” per se. Brief for Respondents 27. But that is a counterintuitive reading of the language that the surety statutes
actually used. If the mere carrying of handguns breached
the peace, it would be odd to draft a surety statute requiring
a complainant to demonstrate “reasonable cause to fear an
injury, or breach of the peace,” Mass. Rev. Stat., ch. 134,
§16, rather than a reasonable likelihood that the armsbearer carried a covered weapon. After all, if it was the nature of the weapon rather than the manner of carry that
—————— 25The dissent speculates that the absence of recorded cases involving
surety laws may simply “show that these laws were normally followed.”
Post, at 45. Perhaps. But again, the burden rests with the government
to establish the relevant tradition of regulation, see supra, at 15, and,
given all of the other features of surety laws that make them poor analogues to New York’s proper-cause standard, we consider the barren record of enforcement to be simply one additional reason to discount their
relevance.
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was dispositive, then the “reasonable fear” requirement
would be redundant.
Moreover, the overlapping scope of surety statutes and
criminal statutes suggests that the former were not viewed
as substantial restrictions on public carry. For example,
when Massachusetts enacted its surety statute in 1836, it
reaffirmed its 1794 criminal prohibition on “go[ing] armed
offensively, to the terror of the people.” Mass. Rev. Stat., ch.
85, §24. And Massachusetts continued to criminalize the
carrying of various “dangerous weapons” well after passing
the 1836 surety statute. See, e.g., 1850 Mass. Acts ch. 194,
§1, p. 401; Mass. Gen. Stat., ch. 164, §10 (1860). Similarly,
Virginia had criminalized the concealed carry of pistols
since 1838, see 1838 Va. Acts ch. 101, §1, nearly a decade
before it enacted its surety statute, see 1847 Va. Acts ch.
14, §16. It is unlikely that these surety statutes constituted
a “severe” restraint on public carry, let alone a restriction
tantamount to a ban, when they were supplemented by direct criminal prohibitions on specific weapons and methods
of carry.
To summarize: The historical evidence from antebellum
America does demonstrate that the manner of public carry
was subject to reasonable regulation. Under the common
law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety
statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public
carry—concealed carry—so long as they left open the option
to carry openly.
None of these historical limitations on the right to bear
arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with
ordinary self-defense needs from carrying arms in public for
that purpose.

 

52 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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4
Evidence from around the adoption of the Fourteenth
Amendment also fails to support respondents’ position. For
the most part, respondents and the United States ignore
the “outpouring of discussion of the [right to keep and bear
arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for
newly free slaves” after the Civil War. Heller, 554 U. S., at
614. Of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is
respondents’ burden. Nevertheless, we think a short review
of the public discourse surrounding Reconstruction is useful
in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.
A short prologue is in order. Even before the Civil War
commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393
(1857), Chief Justice Taney offered what he thought was a
parade of horribles that would result from recognizing that
free blacks were citizens of the United States. If blacks
were citizens, Taney fretted, they would be entitled to the
privileges and immunities of citizens, including the right
“to keep and carry arms wherever they went.” Id., at 417
(emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that
public carry was a component of the right to keep and bear
arms—a right free blacks were often denied in antebellum
America.
After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted.
This Court has already recounted some of the Southern
abuses violating blacks’ right to keep and bear arms. See
McDonald, 561 U. S., at 771 (noting the “systematic efforts”

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Opinion of the Court
made to disarm blacks); id., at 845–847 (THOMAS, J., concurring in part and concurring in judgment); see also S.
Exec. Doc. No. 43, 39th Cong., 1st Sess., 8 (1866) (“Pistols,
old muskets, and shotguns were taken away from [freed
slaves] as such weapons would be wrested from the hands
of lunatics”).
In the years before the 39th Congress proposed the Fourteenth Amendment, the Freedmen’s Bureau regularly kept
it abreast of the dangers to blacks and Union men in the
postbellum South. The reports described how blacks used
publicly carried weapons to defend themselves and their
communities. For example, the Bureau reported that a
teacher from a Freedmen’s school in Maryland had written
to say that, because of attacks on the school, “[b]oth the
mayor and sheriff have warned the colored people to go
armed to school, (which they do,)” and that the “[t]he superintendent of schools came down and brought [the teacher]
a revolver” for his protection. Cong. Globe, 39th Cong., 1st
Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th
Cong., 2d Sess., 91 (1867) (noting how, during the New Orleans riots, blacks under attack “defended themselves . . .
with such pistols as they had”).
Witnesses before the Joint Committee on Reconstruction
also described the depredations visited on Southern blacks,
and the efforts they made to defend themselves. One Virginia music professor related that when “[t]wo Union men
were attacked . . . they drew their revolvers and held their
assailants at bay.” H. R. Rep. No. 30, 39th Cong., 1st Sess.,
pt. 2, p. 110 (1866). An assistant commissioner to the Bureau from Alabama similarly reported that men were “robbing and disarming negroes upon the highway,” H. R. Exec.
Doc. No. 70, 39th Cong., 1st Sess., 297 (1866), indicating
that blacks indeed carried arms publicly for their selfprotection, even if not always with success. See also H. R.
Exec. Doc. No. 329, 40th Cong., 2d Sess., 41 (1868) (describing a Ku Klux Klan outfit that rode “through the country

54 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
. . . robbing every one they come across of money, pistols,
papers, &c.”); id., at 36 (noting how a black man in Tennessee had been murdered on his way to get book subscriptions, with the murderer taking, among other things, the
man’s pistol).
Blacks had “procured great numbers of old army muskets
and revolvers, particularly in Texas,” and “employed them
to protect themselves” with “vigor and audacity.” S. Exec.
Doc. No. 43, 39th Cong., 1st Sess., at 8. Seeing that government was inadequately protecting them, “there [was] the
strongest desire on the part of the freedmen to secure arms,
revolvers particularly.” H. R. Rep. No. 30, 39th Cong., 1st
Sess., pt. 3, at 102.
On July 6, 1868, Congress extended the 1866 Freedmen’s
Bureau Act, see 15 Stat. 83, and reaffirmed that freedmen
were entitled to the “full and equal benefit of all laws and
proceedings concerning personal liberty [and] personal security . . . including the constitutional right to keep and bear
arms.” §14, 14 Stat. 176 (1866) (emphasis added). That
same day, a Bureau official reported that freedmen in Kentucky and Tennessee were still constantly under threat:
“No Union man or negro who attempts to take any active
part in politics, or the improvement of his race, is safe a
single day; and nearly all sleep upon their arms at night,
and carry concealed weapons during the day.” H. R. Exec.
Doc. No. 329, 40th Cong., 2d Sess., at 40.
Of course, even during Reconstruction the right to keep
and bear arms had limits. But those limits were consistent
with a right of the public to peaceably carry handguns for
self-defense. For instance, when General D. E. Sickles issued a decree in 1866 pre-empting South Carolina’s Black
Codes—which prohibited firearm possession by blacks—he
stated: “The constitutional rights of all loyal and welldisposed inhabitants to bear arms will not be infringed;
nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons. . . . And no

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Opinion of the Court
disorderly person, vagrant, or disturber of the peace, shall
be allowed to bear arms.” Cong. Globe, 39th Cong., 1st
Sess., at 908–909; see also McDonald, 561 U. S., at 847–848
(opinion of THOMAS, J.).26 Around the same time, the editors of The Loyal Georgian, a prominent black-owned newspaper, were asked by “A Colored Citizen” whether “colored
persons [have] a right to own and carry fire arms.” The editors responded that blacks had “the same right to own and
carry fire arms that other citizens have.” The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. And, borrowing language
from a Freedmen’s Bureau circular, the editors maintained
that “[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons,”
even though “no military or civil officer has the right or authority to disarm any class of people, thereby placing them
at the mercy of others.” Ibid. (quoting Circular No. 5,
Freedmen’s Bureau, Dec. 22, 1865); see also McDonald, 561
U. S., at 848–849 (opinion of THOMAS, J.).27
—————— 26Respondents invoke General Orders No. 10, which covered the Second Military District (North and South Carolina), and provided that
“[t]he practice of carrying deadly weapons, except by officers and soldiers
in the military service of the United States, is prohibited.” Headquarters
Second Military Dist., Gen. Orders No. 10 (Charleston, S. C., Apr. 11,
1867), in S. Exec. Doc. No. 14, 40th Cong., 1st Sess., 64 (1867). We put
little weight on this categorical restriction given that the order also specified that a violation of this prohibition would “render the offender amenable to trial and punishment by military commission,” ibid., rather than
a jury otherwise guaranteed by the Constitution. There is thus little indication that these military dictates were designed to align with the Constitution’s usual application during times of peace. 27That said, Southern prohibitions on concealed carry were not always
applied equally, even when under federal scrutiny. One lieutenant
posted in Saint Augustine, Florida, remarked how local enforcement of
concealed-carry laws discriminated against blacks: “To sentence a negro
to several dollars’ fine for carrying a revolver concealed upon his person,
is in accordance with an ordinance of the town; but still the question naturally arises in my mind, ‘Why is this poor fellow fined for an offence
which is committed hourly by every other white man I meet in the
streets?’ ” H. R. Exec. Doc. No. 57, 40th Cong., 2d Sess., 83 (1867); see

56 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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As for Reconstruction-era state regulations, there was little innovation over the kinds of public-carry restrictions
that had been commonplace in the early 19th century. For
instance, South Carolina in 1870 authorized the arrest of
“all who go armed offensively, to the terror of the people,”
1870 S. C. Acts p. 403, no. 288, §4, parroting earlier statutes that codified the common-law offense. That same year,
after it cleaved from Virginia, West Virginia enacted a
surety statute nearly identical to the one it inherited from
Virginia. See W. Va. Code, ch. 153, §8. Also in 1870, Tennessee essentially reenacted its 1821 prohibition on the
public carry of handguns but, as explained above, Tennessee courts interpreted that statute to exempt large pistols
suitable for military use. See supra, at 46.
Respondents and the United States, however, direct our
attention primarily to two late-19th-century cases in Texas.
In 1871, Texas law forbade anyone from “carrying on or
about his person . . . any pistol . . . unless he has reasonable
grounds for fearing an unlawful attack on his person.” 1871
Tex. Gen. Laws §1. The Texas Supreme Court upheld that
restriction in English v. State, 35 Tex. 473 (1871). The
Court reasoned that the Second Amendment, and the
State’s constitutional analogue, protected only those arms
“as are useful and proper to an armed militia,” including
holster pistols, but not other kinds of handguns. Id., at
474–475. Beyond that constitutional holding, the English
court further opined that the law was not “contrary to public policy,” id., at 479, given that it “ma[de] all necessary
exceptions” allowing deadly weapons to “be carried as
means of self-defense,” and therefore “fully cover[ed] all
wants of society,” id., at 477.
Four years later, in State v. Duke, 42 Tex. 455 (1875), the
Texas Supreme Court modified its analysis. The court reinterpreted Texas’ State Constitution to protect not only
——————
also H. R. Rep. No. 16, 39th Cong., 2d Sess., 427 (1867).

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military-style weapons but rather all arms “as are commonly kept, according to the customs of the people, and are
appropriate for open and manly use in self-defense.” Id., at
458. On that understanding, the court recognized that, in
addition to “holster pistol[s],” the right to bear arms covered
the carry of “such pistols at least as are not adapted to being
carried concealed.” Id., at 458–459. Nonetheless, after
expanding the scope of firearms that warranted state constitutional protection, Duke held that requiring any pistolbearer to have “‘reasonable grounds fearing an unlawful attack on [one’s] person’” was a “legitimate and highly
proper” regulation of handgun carriage. Id., at 456, 459–
460. Duke thus concluded that the 1871 statute “appear[ed]
to have respected the right to carry a pistol openly when
needed for self-defense.” Id., at 459.
We acknowledge that the Texas cases support New York’s
proper-cause requirement, which one can analogize to
Texas’ “reasonable grounds” standard. But the Texas statute, and the rationales set forth in English and Duke, are
outliers. In fact, only one other State, West Virginia,
adopted a similar public-carry statute before 1900. See W.
Va. Code, ch. 148, §7 (1887). The West Virginia Supreme
Court upheld that prohibition, reasoning that no handguns
of any kind were protected by the Second Amendment, a
rationale endorsed by no other court during this period. See
State v. Workman, 35 W. Va. 367, 371–374, 14 S. E. 9, 11
(1891). The Texas decisions therefore provide little insight
into how postbellum courts viewed the right to carry protected arms in public.
In the end, while we recognize the support that postbellum Texas provides for respondents’ view, we will not give
disproportionate weight to a single state statute and a pair
of state-court decisions. As in Heller, we will not “stake our
interpretation of the Second Amendment upon a single law,
in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and

 

58 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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bear arms for defense” in public. 554 U. S., at 632.
5
Finally, respondents point to the slight uptick in gun regulation during the late-19th century—principally in the
Western Territories. As we suggested in Heller, however,
late-19th-century evidence cannot provide much insight
into the meaning of the Second Amendment when it contradicts earlier evidence. See id., at 614; supra, at 28.28 Here,
moreover, respondents’ reliance on late-19th-century laws
has several serious flaws even beyond their temporal distance from the founding.
The vast majority of the statutes that respondents invoke
come from the Western Territories. Two Territories prohibited the carry of pistols in towns, cities, and villages, but
seemingly permitted the carry of rifles and other long guns
everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, §1,
p. 16; 1869 N. M. Laws ch. 32, §§1–2, p. 72.29 Two others
prohibited the carry of all firearms in towns, cities, and villages, including long guns. See 1875 Wyo. Terr. Sess. Laws
ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23. And one
Territory completely prohibited public carry of pistols everywhere, but allowed the carry of “shot-guns or rifles” for
certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§1–
2, 5, p. 495.
These territorial restrictions fail to justify New York’s
—————— 28We will not address any of the 20th-century historical evidence
brought to bear by respondents or their amici. As with their late-19thcentury evidence, the 20th-century evidence presented by respondents
and their amici does not provide insight into the meaning of the Second
Amendment when it contradicts earlier evidence. 29The New Mexico restriction allowed an exception for individuals carrying for “the lawful defence of themselves, their families or their property, and the same being then and there threatened with danger.” 1869
Terr. of N. M. Laws ch. 32, §1, p. 72. The Arizona law similarly exempted
those who have “reasonable ground for fearing an unlawful attack upon
his person.” 1889 Ariz. Terr. Sess. Laws no. 13, §2, p. 17.
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Opinion of the Court
proper-cause requirement for several reasons. First, the
bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring
American tradition permitting public carry. For starters,
“[t]he very transitional and temporary character of the
American [territorial] system” often “permitted legislative
improvisations which might not have been tolerated in a
permanent setup.” E. Pomeroy, The Territories and the
United States 1861–1890, p. 4 (1947). These territorial
“legislative improvisations,” which conflict with the Nation’s earlier approach to firearm regulation, are most unlikely to reflect “the origins and continuing significance of
the Second Amendment” and we do not consider them “instructive.” Heller, 554 U. S., at 614.
The exceptional nature of these western restrictions is all
the more apparent when one considers the miniscule territorial populations who would have lived under them. To
put that point into perspective, one need not look further
than the 1890 census. Roughly 62 million people lived in
the United States at that time. Arizona, Idaho, New Mexico, Oklahoma, and Wyoming combined to account for only
420,000 of those inhabitants—about two-thirds of 1% of the
population. See Dept. of Interior, Compendium of the Eleventh Census: 1890, Part I.–Population 2 (1892). Put
simply, these western restrictions were irrelevant to more
than 99% of the American population. We have already explained that we will not stake our interpretation of the Second Amendment upon a law in effect in a single State, or a
single city, “that contradicts the overwhelming weight of
other evidence regarding the right to keep and bear arms”
in public for self-defense. Heller, 554 U. S., at 632; see supra, at 57–58. Similarly, we will not stake our interpretation on a handful of temporary territorial laws that were
enacted nearly a century after the Second Amendment’s
adoption, governed less than 1% of the American population, and also “contradic[t] the overwhelming weight” of

60 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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other, more contemporaneous historical evidence. Heller,
554 U. S., at 632.
Second, because these territorial laws were rarely subject
to judicial scrutiny, we do not know the basis of their perceived legality. When States generally prohibited both
open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they
exempted army revolvers, or read the laws to exempt at
least that category of weapons. See, e.g., Haile v. State, 38
Ark. 564, 567 (1882); Wilson v. State, 33 Ark. 557, 560
(1878); Fife v. State, 31 Ark. 455, 461 (1876); State v. Wilburn, 66 Tenn. 57, 60 (1872); Andrews, 50 Tenn., at 187.30
Those state courts that upheld broader prohibitions without qualification generally operated under a fundamental
misunderstanding of the right to bear arms, as expressed
in Heller. For example, the Kansas Supreme Court upheld
a complete ban on public carry enacted by the city of Salina
in 1901 based on the rationale that the Second Amendment
protects only “the right to bear arms as a member of the
state militia, or some other military organization provided
for by law.” Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619,
620 (1905). That was clearly erroneous. See Heller, 554
U. S., at 592.
Absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to
comport with the Second Amendment, we fail to see how
they inform “the origins and continuing significance of the
Amendment.” Id., at 614; see also The Federalist No. 37,
—————— 30Many other state courts during this period continued the antebellum
tradition of upholding concealed carry regimes that seemingly provided
for open carry. See, e.g., State v. Speller, 86 N. C. 697 (1882); Chatteaux
v. State, 52 Ala. 388 (1875); Eslava v. State, 49 Ala. 355 (1873); State v.
Shelby, 90 Mo. 302, 2 S. W. 468 (1886); Carroll v. State, 28 Ark. 99 (1872);
cf. Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) (remarking in
dicta that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons”).

 

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at 229 (explaining that the meaning of ambiguous constitutional provisions can be “liquidated and ascertained by a series of particular discussions and adjudications” (emphasis
added)).
Finally, these territorial restrictions deserve little weight
because they were—consistent with the transitory nature
of territorial government—short lived. Some were held unconstitutional shortly after passage. See In re Brickey, 8
Idaho 597, 70 P. 609 (1902). Others did not survive a Territory’s admission to the Union as a State. See Wyo. Rev.
Stat., ch. 3, §5051 (1899) (1890 law enacted upon statehood
prohibiting public carry only when combined with “intent,
or avowed purpose, of injuring [one’s] fellow-man”). Thus,
they appear more as passing regulatory efforts by not-yetmature jurisdictions on the way to statehood, rather than
part of an enduring American tradition of state regulation.
Beyond these Territories, respondents identify one Western State—Kansas—that instructed cities with more than
15,000 inhabitants to pass ordinances prohibiting the public carry of firearms. See 1881 Kan. Sess. Laws §§1, 23,
pp. 79, 92.31 By 1890, the only cities meeting the population
threshold were Kansas City, Topeka, and Wichita. See
Compendium of the Eleventh Census: 1890, at 442–452.
Even if each of these three cities enacted prohibitions by
1890, their combined population (93,000) accounted for only
6.5% of Kansas’ total population. Ibid. Although other
Kansas cities may also have restricted public carry unilaterally,32 the lone late-19th-century state law respondents
—————— 31 In 1875, Arkansas prohibited the public carry of all pistols. See 1875
Ark. Acts p. 156, §1. But this categorical prohibition was also short lived.
About six years later, Arkansas exempted “pistols as are used in the
army or navy of the United States,” so long as they were carried “uncovered, and in [the] hand.” 1881 Ark. Acts p. 191, no. 96, §§1, 2. 32 In 1879, Salina, Kansas, prohibited the carry of pistols but broadly
exempted “cases when any person carrying [a pistol] is engaged in the
pursuit of any lawful business, calling or employment” and the circumstances were “such as to justify a prudent man in carrying such weapon,

 

62 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
Opinion of the Court
identify does not prove that Kansas meaningfully restricted
public carry, let alone demonstrate a broad tradition of
States doing so.
* * *
At the end of this long journey through the Anglo-American
history of public carry, we conclude that respondents have
not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second
Amendment guaranteed to “all Americans” the right to bear
commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U. S., at 581.
Those restrictions, for example, limited the intent for which
one could carry arms, the manner by which one carried
arms, or the exceptional circumstances under which one
could not carry arms, such as before justices of the peace
and other government officials. Apart from a few late-19thcentury outlier jurisdictions, American governments simply
have not broadly prohibited the public carry of commonly
used firearms for personal defense. Nor, subject to a few
late-in-time outliers, have American governments required
law-abiding, responsible citizens to “demonstrate a special
need for self-protection distinguishable from that of the
general community” in order to carry arms in public.
Klenosky, 75 App. Div., at 793, 428 N. Y. S. 2d, at 257.
IV
The constitutional right to bear arms in public for selfdefense is not “a second-class right, subject to an entirely
different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). We
know of no other constitutional right that an individual
may exercise only after demonstrating to government offic-
——————
for the defense of his person, property or family.” Salina, Kan., Rev. Ordinance No. 268, §2.
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Opinion of the Court
ers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free
exercise of religion. It is not how the Sixth Amendment
works when it comes to a defendant’s right to confront the
witnesses against him. And it is not how the Second
Amendment works when it comes to public carry for selfdefense.
New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens
with ordinary self-defense needs from exercising their right
to keep and bear arms. We therefore reverse the judgment
of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 20–843
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN
HIS OFFICIAL CAPACITY AS SUPERINTENDENT
OF NEW YORK STATE POLICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
JUSTICE ALITO, concurring.
I join the opinion of the Court in full but add the following
comments in response to the dissent.
I
Much of the dissent seems designed to obscure the specific question that the Court has decided, and therefore it
may be helpful to provide a succinct summary of what we
have actually held. In District of Columbia v. Heller, 554
U. S. 570 (2008), the Court concluded that the Second
Amendment protects the right to keep a handgun in the
home for self-defense. Heller found that the Amendment
codified a preexisting right and that this right was regarded
at the time of the Amendment’s adoption as rooted in “‘the
natural right of resistance and self-preservation.’” Id., at
594. “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.” Id.,
at 628.
Although Heller concerned the possession of a handgun
in the home, the key point that we decided was that “the
people,” not just members of the “militia,” have the right to
use a firearm to defend themselves. And because many people face a serious risk of lethal violence when they venture

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
ALITO, J., concurring
outside their homes, the Second Amendment was understood at the time of adoption to apply under those circumstances. The Court’s exhaustive historical survey establishes that point very clearly, and today’s decision therefore
holds that a State may not enforce a law, like New York’s
Sullivan Law, that effectively prevents its law-abiding residents from carrying a gun for this purpose.
That is all we decide. Our holding decides nothing about
who may lawfully possess a firearm or the requirements
that must be met to buy a gun. Nor does it decide anything
about the kinds of weapons that people may possess. Nor
have we disturbed anything that we said in Heller or
McDonald v. Chicago, 561 U. S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns.
In light of what we have actually held, it is hard to see
what legitimate purpose can possibly be served by most of
the dissent’s lengthy introductory section. See post, at 1–8
(opinion of BREYER, J.). Why, for example, does the dissent
think it is relevant to recount the mass shootings that have
occurred in recent years? Post, at 4–5. Does the dissent
think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting
be stopped if he knows that it is illegal to carry a handgun
outside the home? And how does the dissent account for the
fact that one of the mass shootings near the top of its list
took place in Buffalo? The New York law at issue in this
case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns
to commit suicide? See post, at 5–6. Does the dissent think
that a lot of people who possess guns in their homes will be
stopped or deterred from shooting themselves if they cannot
lawfully take them outside?
The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why
these statistics are relevant to the question presented in
Cite as: 597 U. S. ____ (2022) 3
ALITO, J., concurring
this case. How many of the cases involving the use of a gun
in a domestic dispute occur outside the home, and how
many are prevented by laws like New York’s?
The dissent cites statistics on children and adolescents
killed by guns, see post, at 1, 4, but what does this have to
do with the question whether an adult who is licensed to
possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the
categories of people who may lawfully possess a gun, and
federal law generally forbids the possession of a handgun
by a person who is under the age of 18, 18 U. S. C.
§§922(x)(2)–(5), and bars the sale of a handgun to anyone
under the age of 21, §§922(b)(1), (c)(1).1
The dissent cites the large number of guns in private
hands—nearly 400 million—but it does not explain what
this statistic has to do with the question whether a person
who already has the right to keep a gun in the home for self-
—————— 1The dissent makes no effort to explain the relevance of most of the
incidents and statistics cited in its introductory section (post, at 1–8)
(opinion of BREYER, J.). Instead, it points to studies (summarized later
in its opinion) regarding the effects of “shall issue” licensing regimes on
rates of homicide and other violent crimes. I note only that the dissent’s
presentation of such studies is one-sided. See RAND Corporation, Effects of Concealed-Carry Laws on Violent Crime (Apr. 22,
2022), https://www.rand.org/research/gun-policy/analysis/concealedcarry/violent-crime-html; see also Brief for William English et al. as
Amici Curiae 3 (“The overwhelming weight of statistical analysis on the
effects of [right-to-carry] laws on violent crime concludes that RTC laws
do not result in any statistically significant increase in violent crime
rates”); Brief for Arizona et al. as Amici Curiae 12 (“[P]opulation-level
data on licensed carry is extensive, and the weight of the evidence confirms that objective, non-discriminatory licensed-carry laws have two results: (1) statistically significant reductions in some types of violent
crime, or (2) no statistically significant effect on overall violent crime”);
Brief for Law Enforcement Groups et al. as Amici Curiae 12 (“[O]ver the
period 1991–2019 the inventory of firearms more than doubled; the number of concealed carry permits increased by at least sevenfold,” but “murder rates fell by almost half, from 9.8 per 100,000 people in 1991 to 5.0
per 100,000 in 2019” and “[v]iolent crimes plummeted by over half ”).

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
ALITO, J., concurring
defense is likely to be deterred from acquiring a gun by the
knowledge that the gun cannot be carried outside the home.
See post, at 3. And while the dissent seemingly thinks that
the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the
dissent appears not to understand that it is these very facts
that cause law-abiding citizens to feel the need to carry a
gun for self-defense.
No one apparently knows how many of the 400 million
privately held guns are in the hands of criminals, but there
can be little doubt that many muggers and rapists are
armed and are undeterred by the Sullivan Law. Each year,
the New York City Police Department (NYPD) confiscates
thousands of guns,2 and it is fair to assume that the number
of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires
a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents
or the 8.8 million people who live in New York City. Some
of these people live in high-crime neighborhoods. Some
must traverse dark and dangerous streets in order to reach
their homes after work or other evening activities. Some
are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that
unless they can brandish or, if necessary, use a handgun in
the case of attack, they may be murdered, raped, or suffer
some other serious injury.
Ordinary citizens frequently use firearms to protect
—————— 2NYPD statistics show approximately 6,000 illegal guns were seized
in 2021. A. Southall, This Police Captain’s Plan To Stop Gun Violence
Uses More Than Handcuffs, N. Y. Times, Feb. 4, 2022. According to recent remarks by New York City Mayor Eric Adams, the NYPD has confiscated 3,000 firearms in 2022 so far. City of New York, Transcript:
Mayor Eric Adams Makes Announcement About NYPD Gun Violence
Suppression Division (June 6, 2022), https://www1.nyc.gov/office-of-themayor/news/369-22/trascript-mayor-eric-adams-makes-announcementnypd-gun-violence-suppression-division.
Cite as: 597 U. S. ____ (2022) 5
ALITO, J., concurring
themselves from criminal attack. According to survey data,
defensive firearm use occurs up to 2.5 million times per
year. Brief for Law Enforcement Groups et al. as Amici Curiae 5. A Centers for Disease Control and Prevention report
commissioned by former President Barack Obama reviewed
the literature surrounding firearms use and noted that
“[s]tudies that directly assessed the effect of actual defensive uses of guns . . . have found consistently lower injury
rates among gun-using crime victims compared with victims who used other self-protective strategies.” Institute of
Medicine and National Research Council, Priorities for Research To Reduce the Threat of Firearm-Related Violence
15–16 (2013) (referenced in Brief for Independent Women’s
Law Center as Amicus Curiae 19–20).
Many of the amicus briefs filed in this case tell the story
of such people. Some recount incidents in which a potential
victim escaped death or serious injury only because carrying a gun for self-defense was allowed in the jurisdiction
where the incident occurred. Here are two examples. One
night in 1987, Austin Fulk, a gay man from Arkansas, “was
chatting with another man in a parking lot when four gay
bashers charged them with baseball bats and tire irons.
Fulk’s companion drew his pistol from under the seat of his
car, brandished it at the attackers, and fired a single shot
over their heads, causing them to flee and saving the wouldbe victims from serious harm.” Brief for DC Project Foundation et al. as Amici Curiae 31 (footnote omitted).
On July 7, 2020, a woman was brutally assaulted in the
parking lot of a fast food restaurant in Jefferson City, Tennessee. Her assailant slammed her to the ground and began to drag her around while strangling her. She was saved
when a bystander who was lawfully carrying a pistol
pointed his gun at the assailant, who then stopped the assault and the assailant was arrested. Ibid. (citing C. Wethington, Jefferson City Police: Legally Armed Good Samaritan Stops Assault, ABC News 6, WATE.com (July 9, 2020),

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
ALITO, J., concurring
https://www.wate.com/news/local-news/jefferson-city-policelegally-armed-good-samaritan-stops-assault/).
In other incidents, a law-abiding person was driven to violate the Sullivan Law because of fear of victimization and
as a result was arrested, prosecuted, and incarcerated. See
Brief for Black Attorneys of Legal Aid et al. as Amici Curiae
22–25.
Some briefs were filed by members of groups whose members feel that they have special reasons to fear attacks. See
Brief for Asian Pacific American Gun Owners Association
as Amicus Curiae; Brief for DC Project Foundation et al. as
Amici Curiae; Brief for Black Guns Matter et al. as Amici
Curiae; Brief for Independent Women’s Law Center as Amicus Curiae; Brief for National African American Gun Association, Inc., as Amicus Curiae.
I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to
carry a gun outside the home for self-defense and that the
Sullivan Law, which makes that virtually impossible for
most New Yorkers, is unconstitutional.
II
This brings me to Part II–B of the dissent, post, at 11–21,
which chastises the Court for deciding this case without a
trial and factual findings about just how hard it is for a lawabiding New Yorker to get a carry permit. The record before us, however, tells us everything we need on this score.
At argument, New York’s solicitor general was asked about
an ordinary person who works at night and must walk
through dark and crime-infested streets to get home. Tr. of
Oral Arg. 66–67. The solicitor general was asked whether
such a person would be issued a carry permit if she pleaded:
“[T]here have been a lot of muggings in this area, and I am
scared to death.” Id., at 67. The solicitor general’s candid
answer was “in general,” no. Ibid. To get a permit, the applicant would have to show more—for example, that she

Cite as: 597 U. S. ____ (2022) 7
ALITO, J., concurring
had been singled out for attack. Id., at 65; see also id., at
58. A law that dictates that answer violates the Second
Amendment.
III
My final point concerns the dissent’s complaint that the
Court relies too heavily on history and should instead approve the sort of “means-end” analysis employed in this
case by the Second Circuit. Under that approach, a court,
in most cases, assesses a law’s burden on the Second
Amendment right and the strength of the State’s interest
in imposing the challenged restriction. See post, at 20. This
mode of analysis places no firm limits on the ability of
judges to sustain any law restricting the possession or use
of a gun. Two examples illustrate the point.
The first is the Second Circuit’s decision in a case the
Court decided two Terms ago, New York State Rifle & Pistol
Assn., Inc. v. City of New York, 590 U. S. ___ (2020). The
law in that case affected New York City residents who had
been issued permits to keep a gun in the home for selfdefense. The city recommended that these permit holders
practice at a range to ensure that they are able to handle
their guns safely, but the law prohibited them from taking
their guns to any range other than the seven that were
spread around the city’s five boroughs. Even if such a person unloaded the gun, locked it in the trunk of a car, and
drove to the nearest range, that person would violate the
law if the nearest range happened to be outside city limits.
The Second Circuit held that the law was constitutional,
concluding, among other things, that the restriction was
substantially related to the city’s interests in public safety
and crime prevention. See New York State Rifle & Pistol
Assn., Inc. v. New York, 883 F. 3d 45, 62–64 (2018). But
after we agreed to review that decision, the city repealed
the law and admitted that it did not actually have any beneficial effect on public safety. See N. Y. Penal Law Ann.

8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
ALITO, J., concurring
§400.00(6) (West Cum. Supp. 2022); Suggestion of Mootness
in New York State Rifle & Pistol Assn., Inc. v. City of New
York, O. T. 2019, No. 18–280, pp. 5–7.
Exhibit two is the dissent filed in Heller by JUSTICE
BREYER, the author of today’s dissent. At issue in Heller
was an ordinance that made it impossible for any District
of Columbia resident to keep a handgun in the home for
self-defense. See 554 U. S., at 574–575. Even the respondent, who carried a gun on the job while protecting federal
facilities, did not qualify. Id., at 575–576. The District of
Columbia law was an extreme outlier; only a few other jurisdictions in the entire country had similar laws. Nevertheless, JUSTICE BREYER’s dissent, while accepting for the
sake of argument that the Second Amendment protects the
right to keep a handgun in the home, concluded, based on
essentially the same test that today’s dissent defends, that
the District’s complete ban was constitutional. See id., at
689, 722 (under “an interest-balancing inquiry. . .” the dissent would “conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it”).
Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see
fit.3 That argument was rejected in Heller, and while the
dissent protests that it is not rearguing Heller, it proceeds
to do just that. See post, at 25–28.
Heller correctly recognized that the Second Amendment
—————— 3 If we put together the dissent in this case and JUSTICE BREYER’s Heller dissent, States and local governments would essentially be free to ban
the possession of all handguns, and it is unclear whether its approach
would impose any significant restrictions on laws regulating long guns.
The dissent would extend a very large measure of deference to legislation
implicating Second Amendment rights, but it does not claim that such
deference is appropriate when any other constitutional right is at issue.
Cite as: 597 U. S. ____ (2022) 9
ALITO, J., concurring
codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if
necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and
many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own.
It is hard to imagine the furor that would have erupted if
the Federal Government and the States had tried to take
away the guns that these people needed for protection.
Today, unfortunately, many Americans have good reason
to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.
_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 20–843
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN
HIS OFFICIAL CAPACITY AS SUPERINTENDENT
OF NEW YORK STATE POLICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE
joins, concurring.
The Court employs and elaborates on the text, history,
and tradition test that Heller and McDonald require for
evaluating whether a government regulation infringes on
the Second Amendment right to possess and carry guns for
self-defense. See District of Columbia v. Heller, 554 U. S.
570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). Applying that test, the Court correctly holds that New York’s
outlier “may-issue” licensing regime for carrying handguns
for self-defense violates the Second Amendment.
I join the Court’s opinion, and I write separately to underscore two important points about the limits of the
Court’s decision.
First, the Court’s decision does not prohibit States from
imposing licensing requirements for carrying a handgun for
self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue”
regimes—that are employed in 43 States.
The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes,
that are employed by 6 States including New York. As the

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
KAVANAUGH, J., concurring
Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for
those applicants who can show some special need apart
from self-defense. Those features of New York’s regime—
the unchanneled discretion for licensing officials and the
special-need requirement—in effect deny the right to carry
handguns for self-defense to many “ordinary, law-abiding
citizens.” Ante, at 1; see also Heller, 554 U. S., at 635. The
Court has held that “individual self-defense is ‘the central
component’ of the Second Amendment right.” McDonald,
561 U. S., at 767 (quoting Heller, 554 U. S., at 599). New
York’s law is inconsistent with the Second Amendment
right to possess and carry handguns for self-defense.
By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background
check, a mental health records check, and training in firearms handling and in laws regarding the use of force,
among other possible requirements. Brief for Arizona et al.
as Amici Curiae 7. Unlike New York’s may-issue regime,
those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of
some special need apart from self-defense. As petitioners
acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in
that manner in practice. Tr. of Oral Arg. 50−51.
Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns
for self-defense may continue to do so. Likewise, the 6
States including New York potentially affected by today’s
decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shallissue States.
Cite as: 597 U. S. ____ (2022) 3
KAVANAUGH, J., concurring
Second, as Heller and McDonald established and the
Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank
check.” Ante, at 21. Properly interpreted, the Second
Amendment allows a “variety” of gun regulations. Heller,
554 U. S., at 636. As Justice Scalia wrote in his opinion for
the Court in Heller, and JUSTICE ALITO reiterated in relevant part in the principal opinion in McDonald:
“Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and
courts routinely explained that the right was not a
right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose. . . .
[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding
the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of
arms. [Footnote 26: We identify these presumptively
lawful regulatory measures only as examples; our list
does not purport to be exhaustive.]
“We also recognize another important limitation on
the right to keep and carry arms. Miller said, as we
have explained, that the sorts of weapons protected
were those in common use at the time. We think that
limitation is fairly supported by the historical tradition
of prohibiting the carrying of dangerous and unusual
weapons.” Heller, 554 U. S., at 626−627, and n. 26 (citations and quotation marks omitted); see also McDonald, 561 U. S., at 786 (plurality opinion).
* * *
With those additional comments, I join the opinion of the
Court.
_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
BARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 20–843
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN
HIS OFFICIAL CAPACITY AS SUPERINTENDENT
OF NEW YORK STATE POLICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
JUSTICE BARRETT, concurring.
I join the Court’s opinion in full. I write separately to
highlight two methodological points that the Court does not
resolve. First, the Court does not conclusively determine
the manner and circumstances in which postratification
practice may bear on the original meaning of the Constitution. See ante, at 24–29. Scholars have proposed competing
and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g., Nelson, Originalism and Interpretive Conventions, 70 U. Chi.
L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on
the permissible use of history may vary between these
frameworks (and between different articulations of each
one). To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original
public meaning? Cf. McCulloch v. Maryland, 4 Wheat. 316,
401 (1819) (citing practice “introduced at a very early period
of our history”). What form must practice take to carry
weight in constitutional analysis? See Myers v. United
States, 272 U. S. 52, 175 (1926) (citing a “legislative exposition of the Constitution . . . acquiesced in for a long term of
years”). And may practice settle the meaning of individual

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BARRETT, J., concurring
rights as well as structural provisions? See Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 49–51 (2019) (canvassing arguments). The historical inquiry presented in
this case does not require us to answer such questions,
which might make a difference in another case. See ante,
at 17–19.
Second and relatedly, the Court avoids another “ongoing
scholarly debate on whether courts should primarily rely on
the prevailing understanding of an individual right when
the Fourteenth Amendment was ratified in 1868” or when
the Bill of Rights was ratified in 1791. Ante, at 29. Here,
the lack of support for New York’s law in either period
makes it unnecessary to choose between them. But if 1791
is the benchmark, then New York’s appeals to Reconstruction-era history would fail for the independent reason that
this evidence is simply too late (in addition to too little). Cf.
Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___–
___ (2020) (slip op., at 15–16) (a practice that “arose in the
second half of the 19th century . . . cannot by itself establish
an early American tradition” informing our understanding
of the First Amendment). So today’s decision should not be
understood to endorse freewheeling reliance on historical
practice from the mid-to-late 19th century to establish the
original meaning of the Bill of Rights. On the contrary, the
Court is careful to caution “against giving postenactment
history more weight than it can rightly bear.” Ante, at 26.
_________________
_________________
Cite as: 597 U. S. ____ (2022) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 20–843
NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN
HIS OFFICIAL CAPACITY AS SUPERINTENDENT
OF NEW YORK STATE POLICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join, dissenting.
In 2020, 45,222 Americans were killed by firearms. See
Centers for Disease Control and Prevention, Fast Facts:
Firearm Violence Prevention (last updated May 4, 2022)
(CDC, Fast Facts), https://www.cdc.gov/violenceprevention/
firearms/fastfact.html. Since the start of this year (2022),
there have been 277 reported mass shootings—an average
of more than one per day. See Gun Violence Archive (last
visited June 20, 2022), https://www.gunviolence
archive.org. Gun violence has now surpassed motor vehicle
crashes as the leading cause of death among children and
adolescents. J. Goldstick, R. Cunningham, & P. Carter,
Current Causes of Death in Children and Adolescents in
the United States, 386 New England J. Med. 1955 (May 19,
2022) (Goldstick).
Many States have tried to address some of the dangers of
gun violence just described by passing laws that limit, in
various ways, who may purchase, carry, or use firearms of
different kinds. The Court today severely burdens States’
efforts to do so. It invokes the Second Amendment to strike
down a New York law regulating the public carriage of con-

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
cealed handguns. In my view, that decision rests upon several serious mistakes.
First, the Court decides this case on the basis of the
pleadings, without the benefit of discovery or an evidentiary
record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in
practice. Second, the Court wrongly limits its analysis to
focus nearly exclusively on history. It refuses to consider
the government interests that justify a challenged gun regulation, regardless of how compelling those interests may
be. The Constitution contains no such limitation, and neither do our precedents. Third, the Court itself demonstrates the practical problems with its history-only approach. In applying that approach to New York’s law, the
Court fails to correctly identify and analyze the relevant
historical facts. Only by ignoring an abundance of historical evidence supporting regulations restricting the public
carriage of firearms can the Court conclude that New York’s
law is not “consistent with the Nation’s historical tradition
of firearm regulation.” See ante, at 15.
In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary,
for them to consider the serious dangers and consequences
of gun violence that lead States to regulate firearms. The
Second Circuit has done so and has held that New York’s
law does not violate the Second Amendment. See Kachalsky v. County of Westchester, 701 F. 3d 81, 97–99, 101
(2012). I would affirm that holding. At a minimum, I would
not strike down the law based only on the pleadings, as the
Court does today—without first allowing for the development of an evidentiary record and without considering the
State’s compelling interest in preventing gun violence. I respectfully dissent.
I
The question before us concerns the extent to which the

Cite as: 597 U. S. ____ (2022) 3
BREYER, J., dissenting
Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of
gun violence. And yet the Court today purports to answer
that question without discussing the nature or severity of
that problem.
In 2017, there were an estimated 393.3 million civilianheld firearms in the United States, or about 120 firearms per 100 people. A. Karp, Estimating Global CivilianHeld Firearms Numbers, Small Arms Survey 4 (June
2018), https://www.smallarmssurvey.org/sites/default/files/
resources/SAS-BP-Civilian-Firearms-Numbers.pdf. That
is more guns per capita than in any other country in the
world. Ibid. (By comparison, Yemen is second with about
52.8 firearms per 100 people—less than half the per capita
rate in the United States—and some countries, like Indonesia and Japan, have fewer than one firearm per 100 people.
Id., at 3–4.)
Unsurprisingly, the United States also suffers a disproportionately high rate of firearm-related deaths and injuries. Cf. Brief for Educational Fund To Stop Gun Violence
et al. as Amici Curiae 17–18 (Brief for Educational Fund)
(citing studies showing that, within the United States,
“states that rank among the highest in gun ownership also
rank among the highest in gun deaths” while “states with
lower rates of gun ownership have lower rates of gun
deaths”). In 2015, approximately 36,000 people were killed
by firearms nationwide. M. Siegel et al., Easiness of Legal
Access to Concealed Firearm Permits and Homicide Rates
in the United States, 107 Am. J. Pub. Health 1923 (2017).
Of those deaths, 22,018 (or about 61%) were suicides,
13,463 (37%) were homicides, and 489 (1%) were unintentional injuries. Ibid. On top of that, firearms caused an
average of 85,694 emergency room visits for nonfatal injuries each year between 2009 and 2017. E. Kaufman et al.,
Epidemiological Trends in Fatal and Nonfatal Firearm Injuries in the US, 2009–2017, 181 JAMA Internal Medicine

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
237 (2021) (Kaufman).
Worse yet, gun violence appears to be on the rise. By
2020, the number of firearm-related deaths had risen to
45,222, CDC, Fast Facts, or by about 25% since 2015. That
means that, in 2020, an average of about 124 people died
from gun violence every day. Ibid. As I mentioned above,
gun violence has now become the leading cause of death in
children and adolescents, surpassing car crashes, which
had previously been the leading cause of death in that age
group for over 60 years. Goldstick 1955; J. Bates, Guns Became the Leading Cause of Death for American Children
and Teens in 2020, Time, Apr. 27, 2022, https://www.
time.com/6170864/cause-of-death-children-guns/. And the
consequences of gun violence are borne disproportionately
by communities of color, and Black communities in particular. See CDC, Age-Adjusted Rates of Firearm-Related
Homicide, by Race, Hispanic Origin, and Sex—National
Vital Statistics System, United States, 2019, at 1491 (Oct.
22, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/
mm7042a6-H.pdf (documenting 34.9 firearm-related homicides per 100,000 population for non-Hispanic Black men in
2019, compared to 7.7 such homicides per 100,000 population for men of all races); S. Kegler et al., CDC, Vital Signs:
Changes in Firearm Homicide and Suicide Rates—United
States, 2019–2020, at 656–658 (May 13, 2022), https://
www.cdc.gov/mmwr/volumes/71/wr/pdfs/mm7119e1-H.pdf.
The dangers posed by firearms can take many forms.
Newspapers report mass shootings occurring at an entertainment district in Philadelphia, Pennsylvania (3 dead
and 11 injured); an elementary school in Uvalde, Texas (21
dead); a supermarket in Buffalo, New York (10 dead and 3
injured); a series of spas in Atlanta, Georgia (8 dead); a busy
street in an entertainment district of Dayton, Ohio (9 dead
and 17 injured); a nightclub in Orlando, Florida (50 dead
and 53 injured); a church in Charleston, South Carolina (9
dead); a movie theater in Aurora, Colorado (12 dead and 50
Cite as: 597 U. S. ____ (2022) 5
BREYER, J., dissenting
injured); an elementary school in Newtown, Connecticut (26
dead); and many, many more. See, e.g., R. Todt, 3 Dead, 11
Wounded in Philadelphia Shooting on Busy Street, Washington Post, June 5, 2022; A. Hernández, J. Slater, D. Barrett, & S. Foster-Frau, At Least 19 Children, 2 Teachers
Killed at Texas Elementary School, Washington Post, May
25, 2022; A. Joly, J. Slater, D. Barrett, & A. Hernandez, 10
Killed in Racially Motivated Shooting at Buffalo Grocery
Store, Washington Post, May 14, 2022; C. McWhirter & V.
Bauerlein, Atlanta-Area Shootings at Spas Leave Eight
Dead, Wall Street Journal, Mar. 17, 2021; A. Hassan, Dayton Gunman Shot 26 People in 32 Seconds, Police Timeline
Reveals, N. Y. Times, Aug. 13, 2019; L. Alvarez & R. PérezPeña, Orlando Gunman Attacks Gay Nightclub, Leaving 50
Dead, N. Y. Times, June 12, 2016; J. Horowitz, N. Corasaniti, & A. Southall, Nine Killed in Shooting at Black Church
in Charleston, N. Y. Times, June 17, 2015; R. Lin, Gunman
Kills 12 at ‘Dark Knight Rises’ Screening in Colorado, L. A.
Times, July 20, 2012; J. Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N. Y.
Times, Dec. 14, 2012. Since the start of this year alone
(2022), there have already been 277 reported mass shootings—an average of more than one per day. Gun Violence
Archive; see also Gun Violence Archive, General Methodology, https://www.gunviolencearchive.org/methodology (defining mass shootings to include incidents in which at least
four victims are shot, not including the shooter).
And mass shootings are just one part of the problem. Easy
access to firearms can also make many other aspects of
American life more dangerous. Consider, for example, the
effect of guns on road rage. In 2021, an average of 44 people
each month were shot and either killed or wounded in road
rage incidents, double the annual average between 2016
and 2019. S. Burd-Sharps & K. Bistline, Everytown for
Gun Safety, Reports of Road Rage Shootings Are on the Rise
(Apr. 4, 2022), https://www.everytownresearch.org/reports-

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
of-road-rage-shootings-are-on-the-rise/; see also J. Donohue, A. Aneja, & K. Weber, Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel
Data and a State-Level Synthetic Control Analysis, 16 J.
Empirical Legal Studies 198, 204 (2019). Some of those
deaths might have been avoided if there had not been a
loaded gun in the car. See ibid.; Brief for American Bar
Association as Amicus Curiae 17–18; Brief for Educational
Fund 20–23 (citing studies showing that the presence of a
firearm is likely to increase aggression in both the person
carrying the gun and others who see it).
The same could be said of protests: A study of 30,000 protests between January 2020 and June 2021 found that
armed protests were nearly six times more likely to become
violent or destructive than unarmed protests. Everytown
for Gun Safety, Armed Assembly: Guns, Demonstrations,
and Political Violence in America (Aug. 23, 2021), https://
www.everytownresearch.org/report/armed-assembly-gunsdemonstrations-and-political-violence-in-america/ (finding
that 16% of armed protests turned violent, compared to less
than 3% of unarmed protests). Or domestic disputes: Another study found that a woman is five times more likely to
be killed by an abusive partner if that partner has access to
a gun. Brief for Educational Fund 8 (citing A. Zeoli, R. Malinski, & B. Turchan, Risks and Targeted Interventions:
Firearms in Intimate Partner Violence, 38 Epidemiologic
Revs. 125 (2016); J. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results From a Multisite
Case Control Study, 93 Am. J. Pub. Health 1089, 1092
(2003)). Or suicides: A study found that men who own
handguns are three times as likely to commit suicide than
men who do not and women who own handguns are seven
times as likely to commit suicide than women who do not.
D. Studdert et al., Handgun Ownership and Suicide in California, 382 New England J. Med. 2220, 2224 (June 4,
2020).
Cite as: 597 U. S. ____ (2022) 7
BREYER, J., dissenting
Consider, too, interactions with police officers. The presence of a gun in the hands of a civilian poses a risk to both
officers and civilians. Amici prosecutors and police chiefs
tell us that most officers who are killed in the line of duty
are killed by firearms; they explain that officers in States
with high rates of gun ownership are three times as likely
to be killed in the line of duty as officers in States with low
rates of gun ownership. Brief for Prosecutors Against Gun
Violence as Amicus Curiae 23–24; Brief for Former Major
City Police Chiefs as Amici Curiae 13–14, and n. 21, (citing
D. Swedler, M. Simmons, F. Dominici, & D. Hemenway,
Firearm Prevalence and Homicides of Law Enforcement Officers in the United States, 105 Am. J. Pub. Health 2042,
2045 (2015)). They also say that States with the highest
rates of gun ownership report four times as many fatal
shootings of civilians by police officers compared to States
with the lowest rates of gun ownership. Brief for Former
Major City Police Chiefs as Amici Curiae 16 (citing D.
Hemenway, D. Azrael, A. Connor, & M. Miller, Variation in
Rates of Fatal Police Shootings Across US States: The Role
of Firearm Availability, 96 J. Urb. Health 63, 67 (2018)).
These are just some examples of the dangers that firearms pose. There is, of course, another side to the story. I
am not simply saying that “guns are bad.” See ante, at 8
(ALITO, J., concurring). Some Americans use guns for legitimate purposes, such as sport (e.g., hunting or target shooting), certain types of employment (e.g., as a private security
guard), or self-defense. Cf. ante, at 4–6 (ALITO, J., concurring). Balancing these lawful uses against the dangers of
firearms is primarily the responsibility of elected bodies,
such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together
make decisions about how, when, and where to regulate
guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges

8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
when they interpret and apply the Second Amendment.
Consider, for one thing, that different types of firearms
may pose different risks and serve different purposes. The
Court has previously observed that handguns, the type of
firearm at issue here, “are the most popular weapon chosen
by Americans for self-defense in the home.” District of Columbia v. Heller, 554 U. S. 570, 629 (2008). But handguns
are also the most popular weapon chosen by perpetrators of
violent crimes. In 2018, 64.4% of firearm homicides and
91.8% of nonfatal firearm assaults were committed with a
handgun. Dept. of Justice, Bureau of Justice Statistics, G.
Kena & J. Truman, Trends and Patterns in Firearm Violence, 1993–2018, pp. 5–6 (Apr. 2022). Handguns are also
the most commonly stolen type of firearm—63% of burglaries resulting in gun theft between 2005 and 2010 involved
the theft of at least one handgun. Dept. of Justice, Bureau
of Justice Statistics, L. Langton, Firearms Stolen During
Household Burglaries and Other Property Crimes, 2005–
2010, p. 3 (Nov. 2012).
Or consider, for another thing, that the dangers and benefits posed by firearms may differ between urban and rural
areas. See generally Brief for City of Chicago et al. as Amici
Curiae (detailing particular concerns about gun violence in
large cities). Firearm-related homicides and assaults are
significantly more common in urban areas than rural ones.
For example, from 1999 to 2016, 89.8% of the 213,175 firearm-related homicides in the United States occurred in
“metropolitan” areas. M. Siegel et al., The Impact of State
Firearm Laws on Homicide Rates in Suburban and Rural
Areas Compared to Large Cities in the United States,
1991–2016, 36 J. Rural Health 255 (2020); see also Brief for
Partnership for New York City as Amicus Curiae 10; Kaufman 237 (finding higher rates of fatal assault injuries from
firearms in urban areas compared to rural areas); C. Branas, M. Nance, M. Elliott, T. Richmond, & C. Schwab, Urban-Rural Shifts in Intentional Firearm Death: Different
Cite as: 597 U. S. ____ (2022) 9
BREYER, J., dissenting
Causes, Same Results, 94 Am. J. Pub. Health 1750, 1752
(2004) (finding higher rates of firearm homicide in urban
counties compared to rural counties).
JUSTICE ALITO asks why I have begun my opinion by reviewing some of the dangers and challenges posed by gun
violence and what relevance that has to today’s case. Ante,
at 2–4 (concurring opinion). All of the above considerations
illustrate that the question of firearm regulation presents a
complex problem—one that should be solved by legislatures
rather than courts. What kinds of firearm regulations
should a State adopt? Different States might choose to answer that question differently. They may face different
challenges because of their different geographic and demographic compositions. A State like New York, which must
account for the roughly 8.5 million people living in the 303
square miles of New York City, might choose to adopt different (and stricter) firearms regulations than States like
Montana or Wyoming, which do not contain any city remotely comparable in terms of population or density. See
U. S. Census Bureau, Quick Facts: New York City (last updated July 1, 2021) (Quick Facts: New York City), https://
www.census.gov/quickfacts/newyorkcitynewyork/; Brief for
City of New York as Amicus Curiae 8, 22. For a variety of
reasons, States may also be willing to tolerate different degrees of risk and therefore choose to balance the competing
benefits and dangers of firearms differently.
The question presented in this case concerns the extent
to which the Second Amendment restricts different States
(and the Federal Government) from working out solutions
to these problems through democratic processes. The primary difference between the Court’s view and mine is that
I believe the Amendment allows States to take account of
the serious problems posed by gun violence that I have just
described. I fear that the Court’s interpretation ignores
these significant dangers and leaves States without the
ability to address them.

10 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
II
A
New York State requires individuals to obtain a license
in order to carry a concealed handgun in public. N. Y. Penal
Law Ann. §400.00(2) (West Cum. Supp. 2022). I address
the specifics of that licensing regime in greater detail in
Part II–B below. Because, at this stage in the proceedings,
the parties have not had an opportunity to develop the evidentiary record, I refer to facts and representations made
in petitioners’ complaint and in amicus briefs filed before
us.
Under New York’s regime, petitioners Brandon Koch and
Robert Nash have obtained restricted licenses that permit
them to carry a concealed handgun for certain purposes and
at certain times and places. They wish to expand the scope
of their licenses so that they can carry a concealed handgun
without restriction.
Koch and Nash are residents of Rensselaer County, New
York. Koch lives in Troy, a town of about 50,000, located
eight miles from New York’s capital city of Albany, which
has a population of about 98,000. See App. 100; U. S. Census Bureau, Quick Facts: Troy City, New York (last updated July 1, 2021), https://www.census.gov/quickfacts/
troycitynewyork; id., Albany City, New York, https://www.
census.gov/quickfacts/albanycitynewyork. Nash lives in
Averill Park, a small town 12.5 miles from Albany. App.
100.
Koch and Nash each applied for a license to carry a concealed handgun. Both were issued restricted licenses that
allowed them to carry handguns only for purposes of hunting and target shooting. Id., at 104, 106. But they wanted
“unrestricted” licenses that would allow them to carry concealed handguns “for personal protection and all lawful purposes.” Id., at 112; see also id., at 40. They wrote to the
licensing officer in Rensselaer County—Justice Richard

Cite as: 597 U. S. ____ (2022) 11
BREYER, J., dissenting
McNally, a justice of the New York Supreme Court—requesting that the hunting and target shooting restrictions
on their licenses be removed. Id., at 40, 111–113. After
holding individual hearings for each petitioner, Justice
McNally denied their requests. Id., at 31, 41, 105, 107, 114.
He clarified that, in addition to hunting and target shooting, Koch and Nash could “carry concealed for purposes of
off road back country, outdoor activities similar to hunting,
for example fishing, hiking & camping.” Id., at 41, 114. He
also permitted Koch, who was employed by the New York
Court System’s Division of Technology, to “carry to and
from work.” Id., at 111, 114. But he reaffirmed that Nash
was prohibited from carrying a concealed handgun in locations “typically open to and frequented by the general public.” Id., at 41. Neither Koch nor Nash alleges that he appealed Justice McNally’s decision. Brief for Respondents
13; see App. 122–126.
Instead, petitioners Koch and Nash, along with the New
York State Rifle & Pistol Association, Inc., brought this lawsuit in federal court against Justice McNally and other
State representatives responsible for enforcing New York’s
firearms laws. Petitioners claimed that the State’s refusal
to modify Koch’s and Nash’s licenses violated the Second
Amendment. The District Court dismissed their complaint.
It followed Second Circuit precedent holding that New
York’s licensing regime was constitutional. See Kachalsky,
701 F. 3d, at 101. The Court of Appeals for the Second Circuit affirmed. We granted certiorari to review the constitutionality of “New York’s denial of petitioners’ license applications.” Ante, at 8 (majority opinion).
B
As the Court recognizes, New York’s licensing regime
traces its origins to 1911, when New York enacted the “Sullivan Law,” which prohibited public carriage of handguns
without a license. See 1911 N. Y. Laws ch. 195, §1, p. 443.

 

12 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
Two years later in 1913, New York amended the law to establish substantive standards for the issuance of a license.
See 1913 N. Y. Laws ch. 608, §1, pp. 1627–1629. Those
standards have remained the foundation of New York’s licensing regime ever since—a regime that the Court now,
more than a century later, strikes down as unconstitutional.
As it did over 100 years ago, New York’s law today continues to require individuals to obtain a license before carrying a concealed handgun in public. N. Y. Penal Law Ann.
§400.00(2); Kachalsky, 701 F. 3d, at 85–86. Because the
State does not allow the open carriage of handguns at all, a
concealed-carry license is the only way to legally carry a
handgun in public. Id., at 86. This licensing requirement
applies only to handguns (i.e., “pistols and revolvers”) and
short-barreled rifles and shotguns, not to all types of firearms. Id., at 85. For instance, the State does not require a
license to carry a long gun (i.e., a rifle or a shotgun over a
certain length) in public. Ibid.; §265.00(3) (West 2022).
To obtain a concealed-carry license for a handgun, an applicant must satisfy certain eligibility criteria. Among
other things, he must generally be at least 21 years old and
of “good moral character.” §400.00(1). And he cannot have
been convicted of a felony, dishonorably discharged from
the military, or involuntarily committed to a mental hygiene facility. Ibid. If these and other eligibility criteria
are satisfied, New York law provides that a concealed-carry
license “shall be issued” to individuals working in certain
professions, such as judges, corrections officers, or messengers of a “banking institution or express company.”
§400.00(2). Individuals who satisfy the eligibility criteria
but do not work in one of these professions may still obtain
a concealed-carry license, but they must additionally show
that “proper cause exists for the issuance thereof.”
§400.00(2)(f ).
The words “proper cause” may appear on their face to be

Cite as: 597 U. S. ____ (2022) 13
BREYER, J., dissenting
broad, but there is “a substantial body of law instructing
licensing officials on the application of this standard.” Id.,
at 86. New York courts have interpreted proper cause “to
include carrying a handgun for target practice, hunting, or
self-defense.” Ibid. When an applicant seeks a license for
target practice or hunting, he must show “‘a sincere desire
to participate in target shooting and hunting.’” Ibid. (quoting In re O’Connor, 154 Misc. 2d 694, 697, 585 N. Y. S. 2d
1000, 1003 (Westchester Cty. 1992)). When an applicant
seeks a license for self-defense, he must show “‘a special
need for self-protection distinguishable from that of the
general community.’” 701 F. 3d, at 86 (quoting In re
Klenosky, 75 App. Div. 2d 793, 793, 428 N. Y. S. 2d 256, 257
(1980)). Whether an applicant meets these proper cause
standards is determined in the first instance by a “licensing
officer in the city or county . . . where the applicant resides.”
§400.00(3). In most counties, the licensing officer is a local
judge. Kachalsky, 701 F. 3d, at 87, n. 6. For example, in
Rensselaer County, the licensing officer who denied petitioners’ requests to remove the restrictions on their licenses
was a justice of the New York Supreme Court. App. 31. If
the officer denies an application, the applicant can obtain
judicial review under Article 78 of New York’s Civil Practice
Law and Rules. Kachalsky, 701 F. 3d, at 87. New York
courts will then review whether the denial was arbitrary
and capricious. Ibid.
In describing New York’s law, the Court recites the above
facts but adds its own gloss. It suggests that New York’s
licensing regime gives licensing officers too much discretion
and provides too “limited” judicial review of their decisions,
ante, at 4; that the proper cause standard is too “demanding,” ante, at 3; and that these features make New York an
outlier compared to the “vast majority of States,” ante, at 4.
But on what evidence does the Court base these characterizations? Recall that this case comes to us at the pleading
stage. The parties have not had an opportunity to conduct

14 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
discovery, and no evidentiary hearings have been held to
develop the record. See App. 15–26. Thus, at this point,
there is no record to support the Court’s negative characterizations, as we know very little about how the law has
actually been applied on the ground.
Consider each of the Court’s criticisms in turn. First, the
Court says that New York gives licensing officers too much
discretion and “leaves applicants little recourse if their local
licensing officer denies a permit.” Ante, at 4. But there is
nothing unusual about broad statutory language that can
be given more specific content by judicial interpretation.
Nor is there anything unusual or inadequate about subjecting licensing officers’ decisions to arbitrary-and-capricious
review. Judges routinely apply that standard, for example,
to determine whether an agency action is lawful under both
New York law and the Administrative Procedure Act. See,
e.g., N. Y. Civ. Prac. Law Ann. §7803(3) (2021); 5 U. S. C.
§706(2)(A). The arbitrary-and-capricious standard has
thus been used to review important policies concerning
health, safety, and immigration, to name just a few examples. See, e.g., Biden v. Missouri, 595 U. S. ___, ___ (2022)
(per curiam) (slip op., at 8); Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___, ___ (2020)
(slip op., at 9, 17); Department of Commerce v. New York,
588 U. S. ___, ___ (2019) (slip op., at 16); Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co., 463 U. S. 29, 41, 46 (1983).
Without an evidentiary record, there is no reason to assume that New York courts applying this standard fail to
provide license applicants with meaningful review. And
there is no evidentiary record to support the Court’s assumption here. Based on the pleadings alone, we cannot
know how often New York courts find the denial of a concealed-carry license to be arbitrary and capricious or on
what basis. We do not even know how a court would have
reviewed the licensing officer’s decisions in Koch’s and

 

Cite as: 597 U. S. ____ (2022) 15
BREYER, J., dissenting
Nash’s cases because they do not appear to have sought judicial review at all. See Brief for Respondents 13; App. 122–
126.
Second, the Court characterizes New York’s proper cause
standard as substantively “demanding.” Ante, at 3. But,
again, the Court has before it no evidentiary record to
demonstrate how the standard has actually been applied.
How “demanding” is the proper cause standard in practice?
Does that answer differ from county to county? How many
license applications are granted and denied each year? At
the pleading stage, we do not know the answers to these
and other important questions, so the Court’s characterization of New York’s law may very well be wrong.
In support of its assertion that the law is “demanding,”
the Court cites only to cases originating in New York City.
Ibid. (citing In re Martinek, 294 App. Div. 2d 221, 743
N. Y. S. 2d 80 (2002) (New York County, i.e., Manhattan);
In re Kaplan, 249 App. Div. 2d 199, 673 N. Y. S. 2d 66
(1998) (same); In re Klenosky, 75 App. Div. 2d 793, 428
N. Y. S. 2d 256 (same); In re Bernstein, 85 App. Div. 2d 574,
445 N. Y. S. 2d 716 (1981) (Bronx County)). But cases from
New York City may not accurately represent how the
proper cause standard is applied in other parts of the State,
including in Rensselaer County where petitioners reside.
To the contrary, amici tell us that New York’s licensing
regime is purposefully flexible: It allows counties and cities
to respond to the particular needs and challenges of each
area. See Brief for American Bar Association as Amicus
Curiae 12; Brief for City of New York as Amicus Curiae 20–
29. Amici suggest that some areas may interpret words
such as “proper cause” or “special need” more or less
strictly, depending upon each area’s unique circumstances.
See ibid. New York City, for example, reports that it “has
applied the [proper cause] requirement relatively rigorously” because its densely populated urban areas pose a
heightened risk of gun violence. Brief for City of New York

16 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
as Amicus Curiae 20. In comparison, other (perhaps more
rural) counties “have tailored the requirement to their own
circumstances, often issuing concealed-carry licenses more
freely than the City.” Ibid.; see also In re O’Connor, 154
Misc. 2d, at 698, 585 N. Y. S. 2d, at 1004 (“The circumstances which exist in New York City are significantly different than those which exist in Oswego or Putnam Counties. . . . The licensing officers in each county are in the best
position to determine whether any interest of the population of their county is furthered by the use of restrictions on
pistol licenses”); Brief for Citizens Crime Commission of
New York City as Amicus Curiae 18–19. Given the geographic variation across the State, it is too sweeping for the
Court to suggest, without an evidentiary record, that the
proper cause standard is “demanding” in Rensselaer
County merely because it may be so in New York City.
Finally, the Court compares New York’s licensing regime
to that of other States. Ante, at 4–6. It says that New
York’s law is a “may issue” licensing regime, which the
Court describes as a law that provides licensing officers
greater discretion to grant or deny licenses than a “shall issue” licensing regime. Ante, at 4–5. Because the Court
counts 43 “shall issue” jurisdictions and only 7 “may issue”
jurisdictions, it suggests that New York’s law is an outlier.
Ibid.; see also ante, at 1–2 (KAVANAUGH, J., concurring).
Implicitly, the Court appears to ask, if so many other States
have adopted the more generous “shall issue” approach,
why can New York not be required to do the same?
But the Court’s tabulation, and its implicit question,
overlook important context. In drawing a line between
“may issue” and “shall issue” licensing regimes, the Court
ignores the degree of variation within and across these categories. Not all “may issue” regimes are necessarily alike,
nor are all “shall issue” regimes. Conversely, not all “may
issue” regimes are as different from the “shall issue” re-
Cite as: 597 U. S. ____ (2022) 17
BREYER, J., dissenting
gimes as the Court assumes. For instance, the Court recognizes in a footnote that three States (Connecticut, Delaware, and Rhode Island) have statutes with discretionary
criteria, like so-called “may issue” regimes do. Ante, at 5,
n. 1. But the Court nonetheless counts them among the 43
“shall issue” jurisdictions because, it says, these three
States’ laws operate in practice more like “shall issue” regimes. Ibid.; see also Brief for American Bar Association as
Amicus Curiae 10 (recognizing, conversely, that some “shall
issue” States, e.g., Alabama, Colorado, Georgia, Oregon,
and Virginia, still grant some degree of discretion to licensing authorities).
As these three States demonstrate, the line between “may
issue” and “shall issue” regimes is not as clear cut as the
Court suggests, and that line depends at least in part on
how statutory discretion is applied in practice. Here, because the Court strikes down New York’s law without affording the State an opportunity to develop an evidentiary
record, we do not know how much discretion licensing officers in New York have in practice or how that discretion is
exercised, let alone how the licensing regimes in the other
six “may issue” jurisdictions operate.
Even accepting the Court’s line between “may issue” and
“shall issue” regimes and assuming that its tally (7 “may
issue” and 43 “shall issue” jurisdictions) is correct, that
count does not support the Court’s implicit suggestion that
the seven “may issue” jurisdictions are somehow outliers or
anomalies. The Court’s count captures only a snapshot in
time. It forgets that “shall issue” licensing regimes are a
relatively recent development. Until the 1980s, “may issue”
regimes predominated. See id., at 9; R. Grossman & S. Lee,
May Issue Versus Shall Issue: Explaining the Pattern of
Concealed-Carry Handgun Laws, 1960–2001, 26 Contemp.
Econ. Pol’y 198, 200 (2008) (Grossman). As of 1987, 16
States and the District of Columbia prohibited concealed

18 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
carriage outright, 26 States had “may issue” licensing regimes, 7 States had “shall issue” regimes, and 1 State (Vermont) allowed concealed carriage without a permit. Congressional Research Service, Gun Control: Concealed Carry
Legislation in the 115th Congress 1 (Jan. 30, 2018). Thus,
it has only been in the last few decades that States have
shifted toward “shall issue” licensing laws. Prior to that,
most States operated “may issue” licensing regimes without
legal or practical problem.
Moreover, even considering, as the Court does, only the
present state of play, its tally provides an incomplete picture because it accounts for only the number of States with
“may issue” regimes, not the number of people governed by
those regimes. By the Court’s count, the seven “may issue”
jurisdictions are New York, California, Hawaii, Maryland,
Massachusetts, New Jersey, and the District of Columbia.
Ante, at 5–6. Together, these seven jurisdictions comprise
about 84.4 million people and account for over a quarter of
the country’s population. U. S. Census Bureau, 2020 Population and Housing State Data (Aug. 12, 2021) (2020
Population), https://www.census.gov/library/visualizations/
interactive/2020-population-and-housing-state-data.html.
Thus, “may issue” laws can hardly be described as a marginal or outdated regime.
And there are good reasons why these seven jurisdictions
may have chosen not to follow other States in shifting toward “shall issue” regimes. The seven remaining “may issue” jurisdictions are among the most densely populated in
the United States: the District of Columbia (with an average of 11,280.0 people/square mile in 2020), New Jersey
(1,263.0), Massachusetts (901.2), Maryland (636.1), New
York (428.7), California (253.7), and Hawaii (226.6). U. S.
Census Bureau, Historical Population Density (1910–2020)
(Apr. 26, 2001), https://www.census.gov/data/tables/timeseries/dec/density-data-text.html. In comparison, the average population density of the United States as a whole is
Cite as: 597 U. S. ____ (2022) 19
BREYER, J., dissenting
93.8 people/square mile, and some States have population
densities as low as 1.3 (Alaska), 5.9 (Wyoming), and 7.4
(Montana) people/square mile. Ibid. These numbers reflect
in part the fact that these “may issue” jurisdictions contain
some of the country’s densest and most populous urban areas, e.g., New York City, Los Angeles, San Francisco, the
District of Columbia, Honolulu, and Boston. U. S. Census
Bureau, Urban Area Facts (Oct. 8, 2021), https://www.census
.gov/programs-surveys/geography/guidance/geo-areas/
urban-rural/ua-facts.html. New York City, for example, has
a population of about 8.5 million people, making it more
populous than 38 States, and it squeezes that population
into just over 300 square miles. Quick Facts: New York
City; 2020 Population; Brief for City of New York as Amicus
Curiae 8, 22.
As I explained above, supra, at 8–9, densely populated
urban areas face different kinds and degrees of dangers
from gun violence than rural areas. It is thus easy to see
why the seven “may issue” jurisdictions might choose to regulate firearm carriage more strictly than other States. See
Grossman 199 (“We find strong evidence that more urban
states are less likely to shift to ‘shall issue’ than rural
states”).
New York and its amici present substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data show that stricter gun regulations are associated with lower rates of firearm-related death and
injury. See, e.g., Brief for Citizens Crime Commission of
New York City as Amicus Curiae 9–11; Brief for Former
Major City Police Chiefs as Amici Curiae 9–12; Brief for Educational Fund 25–28; Brief for Social Scientists et al. as
Amici Curiae 9–19. In particular, studies have shown that
“may issue” licensing regimes, like New York’s, are associated with lower homicide rates and lower violent crime
rates than “shall issue” licensing regimes. For example, one
study compared homicide rates across all 50 States during

20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
the 25-year period from 1991 to 2015 and found that “shall
issue” laws were associated with 6.5% higher total homicide
rates, 8.6% higher firearm homicide rates, and 10.6%
higher handgun homicide rates. Siegel, 107 Am. J. Pub.
Health, at 1924–1925, 1927. Another study longitudinally
followed 33 States that had adopted “shall-issue” laws between 1981 and 2007 and found that the adoption of those
laws was associated with a 13%–15% increase in rates of
violent crime after 10 years. Donohue, 16 J. Empirical Legal Studies, at 200, 240. Numerous other studies show similar results. See, e.g., Siegel, 36 J. Rural Health, at 261
(finding that “may issue” laws are associated with 17%
lower firearm homicide rates in large cities); C. Crifasi et
al., Association Between Firearm Laws and Homicide in
Urban Counties, 95 J. Urb. Health 383, 387 (2018) (finding
that “shall issue” laws are associated with a 4% increase in
firearm homicide rates in urban counties); M. Doucette, C.
Crifasi, & S. Frattaroli, Right-to-Carry Laws and Firearm
Workplace Homicides: A Longitudinal Analysis (1992–
2017), 109 Am. J. Pub. Health 1747, 1751 (Dec. 2019) (finding that States with “shall issue” laws between 1992 and
2017 experienced 29% higher rates of firearm-related workplace homicides); Brief for Social Scientists et al. as Amici
Curiae 15–16, and nn. 17–20 (citing “thirteen . . . empirical
papers from just the last few years linking [“shall issue”]
laws to higher violent crime”).
JUSTICE ALITO points to competing empirical evidence
that arrives at a different conclusion. Ante, at 3, n. 1 (concurring opinion). But these types of disagreements are exactly the sort that are better addressed by legislatures than
courts. The Court today restricts the ability of legislatures
to fulfill that role. It does so without knowing how New
York’s law is administered in practice, how much discretion
licensing officers in New York possess, or whether the
proper cause standard differs across counties. And it does
so without giving the State an opportunity to develop the

Cite as: 597 U. S. ____ (2022) 21
BREYER, J., dissenting
evidentiary record to answer those questions. Yet it strikes
down New York’s licensing regime as a violation of the Second Amendment.
III
A
How does the Court justify striking down New York’s law
without first considering how it actually works on the
ground and what purposes it serves? The Court does so by
purporting to rely nearly exclusively on history. It requires
“the government [to] affirmatively prove that its firearms
regulation is part of the historical tradition that delimits
the outer bounds of ‘the right to keep and bear arms.’” Ante,
at 10. Beyond this historical inquiry, the Court refuses to
employ what it calls “means-end scrutiny.” Ibid. That is,
it refuses to consider whether New York has a compelling
interest in regulating the concealed carriage of handguns or
whether New York’s law is narrowly tailored to achieve that
interest. Although I agree that history can often be a useful
tool in determining the meaning and scope of constitutional
provisions, I believe the Court’s near-exclusive reliance on
that single tool today goes much too far.
The Court concedes that no Court of Appeals has adopted
its rigid history-only approach. See ante, at 8. To the contrary, every Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating
whether a firearm regulation is consistent with the Second
Amendment. Ibid.; ante, at 10, n. 4 (majority opinion) (listing cases from the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Ninth, Tenth, Eleventh, and D. C. Circuits).
At the first step, the Courts of Appeals use text and history
to determine “whether the regulated activity falls within
the scope of the Second Amendment.” Ezell v. Chicago, 846
F. 3d 888, 892 (CA7 2017). If it does, they go on to the second step and consider “‘the strength of the government’s
justification for restricting or regulating’” the Second

 

22 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
Amendment right. Ibid. In doing so, they apply a level of
“means-ends” scrutiny “that is proportionate to the severity
of the burden that the law imposes on the right”: strict scrutiny if the burden is severe, and intermediate scrutiny if it
is not. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 195,
198, 205 (CA5 2012).
The Court today replaces the Courts of Appeals’ consensus framework with its own history-only approach. That is
unusual. We do not normally disrupt settled consensus
among the Courts of Appeals, especially not when that consensus approach has been applied without issue for over a
decade. See Brief for Second Amendment Law Professors
as Amici Curiae 4, 13–15; see also this Court’s Rule 10. The
Court attempts to justify its deviation from our normal
practice by claiming that the Courts of Appeals’ approach is
inconsistent with Heller. See ante, at 10. In doing so, the
Court implies that all 11 Courts of Appeals that have considered this question misread Heller.
To the contrary, it is this Court that misreads Heller. The
opinion in Heller did focus primarily on “constitutional text
and history,” ante, at 13 (majority opinion), but it did not
“rejec[t] . . . means-end scrutiny,” as the Court claims, ante,
at 15. Consider what the Heller Court actually said. True,
the Court spent many pages in Heller discussing the text
and historical context of the Second Amendment. 554 U. S.,
at 579–619. But that is not surprising because the Heller
Court was asked to answer the preliminary question
whether the Second Amendment right to “bear Arms” encompasses an individual right to possess a firearm in the
home for self-defense. Id., at 577. The Heller Court concluded that the Second Amendment’s text and history were
sufficiently clear to resolve that question: The Second
Amendment, it said, does include such an individual right.
Id., at 579–619. There was thus no need for the Court to go
further—to look beyond text and history, or to suggest what
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BREYER, J., dissenting
analysis would be appropriate in other cases where the text
and history are not clear.
But the Heller Court did not end its opinion with that
preliminary question. After concluding that the Second
Amendment protects an individual right to possess a firearm for self-defense, the Heller Court added that that right
is “not unlimited.” Id., at 626. It thus had to determine
whether the District of Columbia’s law, which banned
handgun possession in the home, was a permissible regulation of the right. Id., at 628–630. In answering that second
question, it said: “Under any of the standards of scrutiny
that we have applied to enumerated constitutional rights,
banning from the home ‘the most preferred firearm in the
nation to “keep” and use for protection of one’s home and
family’ would fail constitutional muster.” Id., at 628–629
(emphasis added; footnote and citation omitted). That language makes clear that the Heller Court understood some
form of means-end scrutiny to apply. It did not need to specify whether that scrutiny should be intermediate or strict
because, in its view, the District’s handgun ban was so “severe” that it would have failed either level of scrutiny. Id.,
at 628–629; see also id., at 628, n. 27 (clarifying that rational-basis review was not the proper level of scrutiny).
Despite Heller’s express invocation of means-end scrutiny, the Court today claims that the majority in Heller rejected means-end scrutiny because it rejected my dissent in
that case. But that argument misreads both my dissent and
the majority opinion. My dissent in Heller proposed directly
weighing “the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.” Id., at 689. I would have asked
“whether the statute burdens a protected interest in a way
or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Id., at 689–690. The majority rejected my dissent,

 

24 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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not because I proposed using means-end scrutiny, but because, in its view, I had done the opposite. In its own words,
the majority faulted my dissent for proposing “a freestanding ‘interest-balancing’ approach” that accorded with “none
of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis).” Id., at 634
(emphasis added).
The majority further made clear that its rejection of freestanding interest balancing did not extend to traditional
forms of means-end scrutiny. It said: “We know of no other
enumerated constitutional right whose core protection has
been subjected to a freestanding ‘interest-balancing’ approach.” Ibid. To illustrate this point, it cited as an example the First Amendment right to free speech. Id., at 635.
Judges, of course, regularly use means-end scrutiny, including both strict and intermediate scrutiny, when they interpret or apply the First Amendment. See, e.g., United States
v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813
(2000) (applying strict scrutiny); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 186, 189–190 (1997) (applying intermediate scrutiny). The majority therefore cannot
have intended its opinion, consistent with our First Amendment jurisprudence, to be read as rejecting all traditional
forms of means-end scrutiny.
As Heller’s First Amendment example illustrates, the
Court today is wrong when it says that its rejection of
means-end scrutiny and near-exclusive focus on history “accords with how we protect other constitutional rights.”
Ante, at 15. As the Court points out, we do look to history
in the First Amendment context to determine “whether the
expressive conduct falls outside of the category of protected
speech.” Ibid. But, if conduct falls within a category of protected speech, we then use means-end scrutiny to determine whether a challenged regulation unconstitutionally
burdens that speech. And the degree of scrutiny we apply

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BREYER, J., dissenting
often depends on the type of speech burdened and the severity of the burden. See, e.g., Arizona Free Enterprise
Club’s Freedom Club PAC v. Bennett, 564 U. S. 721, 734
(2011) (applying strict scrutiny to laws that burden political
speech); Ward v. Rock Against Racism, 491 U. S. 781, 791
(1989) (applying intermediate scrutiny to time, place, and
manner restrictions); Central Hudson Gas & Elec. Corp. v.
Public Serv. Comm’n of N. Y., 447 U. S. 557, 564–566 (1980)
(applying intermediate scrutiny to laws that burden commercial speech).
Additionally, beyond the right to freedom of speech, we
regularly use means-end scrutiny in cases involving other
constitutional provisions. See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (applying strict scrutiny under the First Amendment to laws that
restrict free exercise of religion in a way that is not neutral
and generally applicable); Adarand Constructors, Inc. v.
Peña, 515 U. S. 200, 227 (1995) (applying strict scrutiny under the Equal Protection Clause to race-based classifications); Clark v. Jeter, 486 U. S. 456, 461 (1988) (applying
intermediate scrutiny under the Equal Protection Clause to
sex-based classifications); see also Virginia v. Moore, 553
U. S. 164, 171 (2008) (“When history has not provided a conclusive answer, we have analyzed a search or seizure in
light of traditional standards of reasonableness”).
The upshot is that applying means-end scrutiny to laws
that regulate the Second Amendment right to bear arms
would not create a constitutional anomaly. Rather, it is the
Court’s rejection of means-end scrutiny and adoption of a
rigid history-only approach that is anomalous.
B
The Court’s near-exclusive reliance on history is not only
unnecessary, it is deeply impractical. It imposes a task on
the lower courts that judges cannot easily accomplish.
Judges understand well how to weigh a law’s objectives (its

26 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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“ends”) against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all,
staffed by lawyers, not historians. Legal experts typically
have little experience answering contested historical questions or applying those answers to resolve contemporary
problems.
The Court’s insistence that judges and lawyers rely
nearly exclusively on history to interpret the Second
Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the
research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative
analogues to modern laws? How will judges determine
which historians have the better view of close historical
questions? Will the meaning of the Second Amendment
change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak
those outcomes in the language of history? See S. Cornell,
Heller, New Originalism, and Law Office History: “Meet the
New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095,
1098 (2009) (describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion”).
Consider Heller itself. That case, fraught with difficult
historical questions, illustrates the practical problems with
expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40 pages of textual and historical analysis and concluded that the Second Amendment’s protection of the right
to “keep and bear Arms” historically encompassed an “individual right to possess and carry weapons in case of confrontation”—that is, for self-defense. 554 U. S., at 592; see
also id., at 579–619. Justice Stevens’ dissent conducted an
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BREYER, J., dissenting
equally searching textual and historical inquiry and concluded, to the contrary, that the term “bear Arms” was an
idiom that protected only the right “to use and possess arms
in conjunction with service in a well-regulated militia.” Id.,
at 651. I do not intend to relitigate Heller here. I accept its
holding as a matter of stare decisis. I refer to its historical
analysis only to show the difficulties inherent in answering
historical questions and to suggest that judges do not have
the expertise needed to answer those questions accurately.
For example, the Heller majority relied heavily on its interpretation of the English Bill of Rights. Citing Blackstone, the majority claimed that the English Bill of Rights
protected a “‘right of having and using arms for self-preservation and defence.’” Id., at 594 (quoting 1 Commentaries
on the Laws of England 140 (1765)). The majority interpreted that language to mean a private right to bear arms
for self-defense, “having nothing whatever to do with service in a militia.” 554 U. S., at 593. Two years later, however, 21 English and early American historians (including
experts at top universities) told us in McDonald v. Chicago,
561 U. S. 742 (2010), that the Heller Court had gotten the
history wrong: The English Bill of Rights “did not . . . protect an individual’s right to possess, own, or use arms for
private purposes such as to defend a home against burglars.” Brief for English/Early American Historians as
Amici Curiae in McDonald v. Chicago, O. T. 2009, No. 08–
1521, p. 2. Rather, these amici historians explained, the
English right to “have arms” ensured that the Crown could
not deny Parliament (which represented the people) the
power to arm the landed gentry and raise a militia—or the
right of the people to possess arms to take part in that militia—“should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.” Id., at 2–3.
Thus, the English right did protect a right of “self-preservation and defence,” as Blackstone said, but that right “was to

28 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives,” i.e., Parliament. Id., at 7–8. The Court, not an
expert in history, had misread Blackstone and other
sources explaining the English Bill of Rights.
And that was not the Heller Court’s only questionable
judgment. The majority rejected Justice Stevens’ argument
that the Second Amendment’s use of the words “bear Arms”
drew on an idiomatic meaning that, at the time of the
founding, commonly referred to military service. 554 U. S.,
at 586. Linguistics experts now tell us that the majority
was wrong to do so. See, e.g., Brief for Corpus Linguistics
Professors and Experts as Amici Curiae (Brief for Linguistics Professors); Brief for Neal Goldfarb as Amicus Curiae;
Brief for Americans Against Gun Violence as Amicus Curiae 13–15. Since Heller was decided, experts have
searched over 120,000 founding-era texts from between
1760 and 1799, as well as 40,000 texts from sources dating
as far back as 1475, for historical uses of the phrase “bear
arms,” and they concluded that the phrase was overwhelmingly used to refer to “‘war, soldiering, or other forms of
armed action by a group rather than an individual.’” Brief
for Linguistics Professors 11, 14; see also D. Baron, Corpus
Evidence Illuminates the Meaning of Bear Arms, 46 Hastings Const. L. Q. 509, 510 (2019) (“Non-military uses of
bear arms in reference to hunting or personal self-defense
are not just rare, they are almost nonexistent”); id., at 510–
511 (reporting 900 instances in which “bear arms” was used
to refer to military or collective use of firearms and only 7
instances that were either ambiguous or without a military
connotation).
These are just two examples. Other scholars have continued to write books and articles arguing that the Court’s
decision in Heller misread the text and history of the Second
Amendment. See generally, e.g., M. Waldman, The Second
Amendment (2014); S. Cornell, The Changing Meaning of
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BREYER, J., dissenting
the Right To Keep and Bear Arms: 1688–1788, in Guns in
Law 20–27 (A. Sarat, L. Douglas, & M. Umphrey eds. 2019);
P. Finkelman, The Living Constitution and the Second
Amendment: Poor History, False Originalism, and a Very
Confused Court, 37 Cardozo L. Rev. 623 (2015); D. Walker,
Necessary to the Security of Free States: The Second
Amendment as the Auxiliary Right of Federalism, 56 Am.
J. Legal Hist. 365 (2016); W. Merkel, Heller as Hubris, and
How McDonald v. City of Chicago May Well Change the
Constitutional World as We Know It, 50 Santa Clara L.
Rev. 1221 (2010).
I repeat that I do not cite these arguments in order to
relitigate Heller. I wish only to illustrate the difficulties
that may befall lawyers and judges when they attempt to
rely solely on history to interpret the Constitution. In Heller, we attempted to determine the scope of the Second
Amendment right to bear arms by conducting a historical
analysis, and some of us arrived at very different conclusions based on the same historical sources. Many experts
now tell us that the Court got it wrong in a number of ways.
That is understandable given the difficulty of the inquiry
that the Court attempted to undertake. The Court’s past
experience with historical analysis should serve as a warning against relying exclusively, or nearly exclusively, on
this mode of analysis in the future.
Failing to heed that warning, the Court today does just
that. Its near-exclusive reliance on history will pose a number of practical problems. First, the difficulties attendant
to extensive historical analysis will be especially acute in
the lower courts. The Court’s historical analysis in this case
is over 30 pages long and reviews numerous original
sources from over 600 years of English and American history. Ante, at 30–62. Lower courts—especially district
courts—typically have fewer research resources, less assistance from amici historians, and higher caseloads than we
do. They are therefore ill equipped to conduct the type of

30 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
searching historical surveys that the Court’s approach requires. Tellingly, even the Courts of Appeals that have addressed the question presented here (namely, the constitutionality of public carriage restrictions like New York’s)
“have, in large part, avoided extensive historical analysis.”
Young v. Hawaii, 992 F. 3d 765, 784–785 (CA9 2021) (collecting cases). In contrast, lawyers and courts are well
equipped to administer means-end scrutiny, which is regularly applied in a variety of constitutional contexts, see supra, at 24–25.
Second, the Court’s opinion today compounds these problems, for it gives the lower courts precious little guidance
regarding how to resolve modern constitutional questions
based almost solely on history. See, e.g., ante, at 1
(BARRETT, J., concurring) (“highlight[ing] two methodological points that the Court does not resolve”). The Court declines to “provide an exhaustive survey of the features that
render regulations relevantly similar under the Second
Amendment.” Ante, at 20. Other than noting that its history-only analysis is “neither a . . . straightjacket nor a . . .
blank check,” the Court offers little explanation of how
stringently its test should be applied. Ante, at 21. Ironically, the only two “relevan[t]” metrics that the Court does
identify are “how and why” a gun control regulation “burden[s the] right to armed self-defense.” Ante, at 20. In
other words, the Court believes that the most relevant metrics of comparison are a regulation’s means (how) and ends
(why)—even as it rejects the utility of means-end scrutiny.
What the Court offers instead is a laundry list of reasons
to discount seemingly relevant historical evidence. The
Court believes that some historical laws and decisions cannot justify upholding modern regulations because, it says,
they were outliers. It explains that just two court decisions
or three colonial laws are not enough to satisfy its test.
Ante, at 37, 57. But the Court does not say how many cases
or laws would suffice “to show a tradition of public-carry
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BREYER, J., dissenting
regulation.” Ante, at 37. Other laws are irrelevant, the
Court claims, because they are too dissimilar from New
York’s concealed-carry licensing regime. See, e.g., ante, at
48–49. But the Court does not say what “representative
historical analogue,” short of a “twin” or a “dead ringer,”
would suffice. See ante, at 21 (emphasis deleted). Indeed,
the Court offers many and varied reasons to reject potential
representative analogues, but very few reasons to accept
them. At best, the numerous justifications that the Court
finds for rejecting historical evidence give judges ample
tools to pick their friends out of history’s crowd. At worst,
they create a one-way ratchet that will disqualify virtually
any “representative historical analogue” and make it nearly
impossible to sustain common-sense regulations necessary
to our Nation’s safety and security.
Third, even under ideal conditions, historical evidence
will often fail to provide clear answers to difficult questions.
As an initial matter, many aspects of the history of firearms
and their regulation are ambiguous, contradictory, or disputed. Unsurprisingly, the extent to which colonial statutes enacted over 200 years ago were actually enforced, the
basis for an acquittal in a 17th-century decision, and the
interpretation of English laws from the Middle Ages (to
name just a few examples) are often less than clear. And
even historical experts may reach conflicting conclusions
based on the same sources. Compare, e.g., P. Charles, The
Faces of the Second Amendment Outside the Home: History
Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev.
1, 14 (2012), with J. Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right 104 (1994). As a result,
history, as much as any other interpretive method, leaves
ample discretion to “loo[k] over the heads of the [crowd] for
one’s friends.” A. Scalia & B. Garner, Reading Law: The
Interpretation of Legal Texts 377 (2012).
Fourth, I fear that history will be an especially inade-

 

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quate tool when it comes to modern cases presenting modern problems. Consider the Court’s apparent preference for
founding-era regulation. See ante, at 25–28. Our country
confronted profoundly different problems during that time
period than it does today. Society at the founding was “predominantly rural.” C. McKirdy, Misreading the Past: The
Faulty Historical Basis Behind the Supreme Court’s Decision in District of Columbia v. Heller, 45 Capital U. L. Rev.
107, 151 (2017). In 1790, most of America’s relatively small
population of just four million people lived on farms or in
small towns. Ibid. Even New York City, the largest American city then, as it is now, had a population of just 33,000
people. Ibid. Small founding-era towns are unlikely to
have faced the same degrees and types of risks from gun
violence as major metropolitan areas do today, so the types
of regulations they adopted are unlikely to address modern
needs. Id., at 152 (“For the most part, a population living
on farms and in very small towns did not create conditions
in which firearms created a significant danger to the public
welfare”); see also supra, at 8–9.
This problem is all the more acute when it comes to “modern-day circumstances that [the Framers] could not have
anticipated.” Heller, 554 U. S., at 721–722 (BREYER, J., dissenting). How can we expect laws and cases that are over
a century old to dictate the legality of regulations targeting
“ghost guns” constructed with the aid of a three-dimensional printer? See, e.g., White House Briefing Room, FACT
SHEET: The Biden Administration Cracks Down on Ghost
Guns, Ensures That ATF Has the Leadership It Needs
To Enforce Our Gun Laws (Apr. 11, 2022), https://
whitehouse.gov/briefing-room/statements-releases/2022/
04/11/fact-sheet-the-biden-administration-cracks-downon-ghost-guns-ensures-that-atf-has-the-leadership-itneeds-to-enforce-our-gun-laws/. Or modern laws requiring
all gun shops to offer smart guns, which can only be fired
by authorized users? See, e.g., N. J. Stat. Ann. §2C:58–
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BREYER, J., dissenting
2.10(a) (West Cum. Supp. 2022). Or laws imposing additional criminal penalties for the use of bullets capable of
piercing body armor? See, e.g., 18 U. S. C. §§921(a)(17)(B),
929(a).
The Court’s answer is that judges will simply have to employ “analogical reasoning.” Ante, at 19–20. But, as I explained above, the Court does not provide clear guidance on
how to apply such reasoning. Even seemingly straightforward historical restrictions on firearm use may prove surprisingly difficult to apply to modern circumstances. The
Court affirms Heller’s recognition that States may forbid
public carriage in “sensitive places.” Ante, at 21–22. But
what, in 21st-century New York City, may properly be considered a sensitive place? Presumably “legislative assemblies, polling places, and courthouses,” which the Court
tells us were among the “relatively few” places “where
weapons were altogether prohibited” in the 18th and 19th
centuries. Ante, at 21. On the other hand, the Court also
tells us that “expanding the category of ‘sensitive places’
simply to all places of public congregation that are not isolated from law enforcement defines th[at] category . . . far
too broadly.” Ante, at 22. So where does that leave the
many locations in a modern city with no obvious 18th- or
19th-century analogue? What about subways, nightclubs,
movie theaters, and sports stadiums? The Court does not
say.
Although I hope—fervently—that future courts will be
able to identify historical analogues supporting the validity
of regulations that address new technologies, I fear that it
will often prove difficult to identify analogous technological
and social problems from Medieval England, the founding
era, or the time period in which the Fourteenth Amendment
was ratified. Laws addressing repeating crossbows,
launcegays, dirks, dagges, skeines, stilladers, and other ancient weapons will be of little help to courts confronting
modern problems. And as technological progress pushes

34 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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our society ever further beyond the bounds of the Framers’
imaginations, attempts at “analogical reasoning” will become increasingly tortured. In short, a standard that relies
solely on history is unjustifiable and unworkable.
IV
Indeed, the Court’s application of its history-only test in
this case demonstrates the very pitfalls described above.
The historical evidence reveals a 700-year Anglo-American
tradition of regulating the public carriage of firearms in
general, and concealed or concealable firearms in particular. The Court spends more than half of its opinion trying
to discredit this tradition. But, in my view, the robust evidence of such a tradition cannot be so easily explained
away. Laws regulating the public carriage of weapons existed in England as early as the 13th century and on this
Continent since before the founding. Similar laws remained on the books through the ratifications of the Second
and Fourteenth Amendments through to the present day.
Many of those historical regulations imposed significantly
stricter restrictions on public carriage than New York’s licensing requirements do today. Thus, even applying the
Court’s history-only analysis, New York’s law must be upheld because “historical precedent from before, during, and
. . . after the founding evinces a comparable tradition of regulation.” Ante, at 18 (majority opinion) (internal quotation
marks omitted).
A. England.
The right codified by the Second Amendment was “‘inherited from our English ancestors.’” Heller, 554 U. S., at 599
(quoting Robertson v. Baldwin, 165 U. S. 275, 281 (1897));
see also ante, at 30 (majority opinion). And some of England’s earliest laws regulating the public carriage of weapons were precursors of similar American laws enacted
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BREYER, J., dissenting
roughly contemporaneously with the ratification of the Second Amendment. See infra, at 40–42. I therefore begin, as
the Court does, ante, at 30–31, with the English ancestors
of New York’s laws regulating public carriage of firearms.
The relevant English history begins in the late-13th and
early-14th centuries, when Edward I and Edward II issued
a series of orders to local sheriffs that prohibited any person
from “going armed.” See 4 Calendar of the Close Rolls, Edward I, 1296–1302, p. 318 (Sept. 15, 1299) (1906); id., at 588
(July 16, 1302); 5 id., Edward I, 1302–1307, at 210 (June
10, 1304) (1908); id., Edward II, 1307–1313, at 52 (Feb. 9,
1308) (1892); id., at 257 (Apr. 9, 1310); id., at 553 (Oct. 12,
1312); id., Edward II, 1323–1327, at 560 (Apr. 28, 1326)
(1898); 1 Calendar of Plea and Memoranda Rolls of the City
of London, 1323–1364, p. 15 (Nov. 1326) (A. Thomas ed.
1926). Violators were subject to punishment, including
“forfeiture of life and limb.” See, e.g., 4 Calendar of the
Close Rolls, Edward I, 1296–1302, at 318 (Sept. 15, 1299)
(1906). Many of these royal edicts contained exemptions for
persons who had obtained “the king’s special licence.” See
ibid.; 5 id., Edward I, 1302–1307, at 210 (June 10, 1304);
id., Edward II, 1307–1313, at 553 (Oct. 12, 1312); id., Edward II, 1323–1327, at 560 (Apr. 28, 1326). Like New
York’s law, these early edicts prohibited public carriage absent special governmental permission and enforced that
prohibition on pain of punishment.
The Court seems to suggest that these early regulations
are irrelevant because they were enacted during a time of
“turmoil” when “malefactors . . . harried the country, committing assaults and murders.” Ante, at 31 (internal quotation marks omitted). But it would seem to me that what
the Court characterizes as a “right of armed self-defense”
would be more, rather than less, necessary during a time of
“turmoil.” Ante, at 20. The Court also suggests that laws
that were enacted before firearms arrived in England, like

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these early edicts and the subsequent Statute of Northampton, are irrelevant. Ante, at 32. But why should that be?
Pregun regulations prohibiting “going armed” in public illustrate an entrenched tradition of restricting public carriage of weapons. That tradition seems as likely to apply to
firearms as to any other lethal weapons—particularly if we
follow the Court’s instruction to use analogical reasoning.
See ante, at 19–20. And indeed, as we shall shortly see, the
most significant prefirearm regulation of public carriage—
the Statute of Northampton—was in fact applied to guns
once they appeared in England. See Sir John Knight’s
Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686)
The Statute of Northampton was enacted in 1328. 2 Edw.
3, 258, c. 3. By its terms, the statute made it a criminal
offense to carry arms without the King’s authorization. It
provided that, without such authorization, “no Man great
nor small, of what Condition soever he be,” could “go nor
ride armed by night nor by day, in Fairs, Markets, nor in
the presence of the Justices or other Ministers, nor in no
part elsewhere, upon pain to forfeit their Armour to the
King, and their Bodies to Prison at the King’s pleasure.”
Ibid. For more than a century following its enactment, England’s sheriffs were routinely reminded to strictly enforce
the Statute of Northampton against those going armed
without the King’s permission. See Calendar of the Close
Rolls, Edward III, 1330–1333, at 131 (Apr. 3, 1330) (1898);
1 Calendar of the Close Rolls, Richard II, 1377–1381, at 34
(Dec. 1, 1377) (1914); 2 id., Richard II, 1381–1385, at 3
(Aug. 7, 1381) (1920); 3 id., Richard II, 1385–1389, at 128
(Feb. 6, 1386) (1921); id., at 399–400 (May 16, 1388); 4 id.,
Henry VI, 1441–1447, at 224 (May 12, 1444) (1937); see also
11 Tudor Royal Proclamations, The Later Tudors: 1553–
1587, pp. 442–445 (Proclamation 641, 21 Elizabeth I, July
26, 1579) (P. Hughes & J. Larkin eds. 1969).
The Court thinks that the Statute of Northampton “has
little bearing on the Second Amendment,” in part because
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BREYER, J., dissenting
it was “enacted . . . more than 450 years before the ratification of the Constitution.” Ante, at 32. The statute, however,
remained in force for hundreds of years, well into the 18th
century. See 4 W. Blackstone, Commentaries 148–149
(1769) (“The offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace,
by terrifying the good people of the land; and is particularly
prohibited by the Statute of Northampton” (first emphasis
in original, second emphasis added)). It was discussed in
the writings of Blackstone, Coke, and others. See ibid.; W.
Hawkins, 1 Pleas of the Crown 135 (1716) (Hawkins); E.
Coke, The Third Part of the Institutes of the Laws of England 160 (1797). And several American Colonies and States
enacted restrictions modeled on the statute. See infra, at
40–42. There is thus every reason to believe that the Framers of the Second Amendment would have considered the
Statute of Northampton a significant chapter in the AngloAmerican tradition of firearms regulation.
The Court also believes that, by the end of the 17th century, the Statute of Northampton was understood to contain an extratextual intent element: the intent to cause terror in others. Ante, at 34–38, 41. The Court relies on two
sources that arguably suggest that view: a 1686 decision,
Sir John Knight’s Case, and a 1716 treatise written by Serjeant William Hawkins. Ante, at 34–37. But other sources
suggest that carrying arms in public was prohibited because
it naturally tended to terrify the people. See, e.g., M. Dalton, The Country Justice 282–283 (1690) (“[T]o wear Armor,
or Weapons not usually worn, . . . seems also be a breach,
or means of breach of the Peace . . . ; for they strike a fear
and terror in the People” (emphasis added)). According to
these sources, terror was the natural consequence—not an
additional element—of the crime.
I find this view more persuasive in large part because it
is not entirely clear that the two sources the Court relies on

 

38 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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actually support the existence of an intent-to-terrify requirement. Start with Sir John Knight’s Case, which, according to the Court, considered Knight’s arrest for walking
“‘about the streets’” and into a church “‘armed with guns.’”
Ante, at 34 (quoting Sir John Knight’s Case, 3 Mod. 117, 87
Eng. Rep., at 76). The Court thinks that Knight’s acquittal
by a jury demonstrates that the Statute of Northampton
only prohibited public carriage of firearms with an intent to
terrify. Ante, at 34–35. But by now the legal significance
of Knight’s acquittal is impossible to reconstruct. Brief for
Patrick J. Charles as Amicus Curiae 23, n. 9. The primary
source describing the case (the English Reports) was notoriously incomplete at the time Sir John Knight’s Case was
decided. Id., at 24–25. And the facts that historians can
reconstruct do not uniformly support the Court’s interpretation. The King’s Bench required Knight to pay a surety
to guarantee his future good behavior, so it may be more
accurate to think of the case as having ended in “a conditional pardon” than acquittal. Young, 992 F. 3d, at 791; see
also Rex v. Sir John Knight, 1 Comb. 40, 90 Eng. Rep. 331
(K. B. 1686). And, notably, it appears that Knight based his
defense on his loyalty to the Crown, not a lack of intent to
terrify. 3 The Entring Book of Roger Morrice 1677–1691:
The Reign of James II, 1685–1687, pp. 307–308 (T. Harris
ed. 2007).
Similarly, the passage from the Hawkins treatise on
which the Court relies states that the Statute of Northampton’s prohibition on the public carriage of weapons did not
apply to the “wearing of Arms . . . unless it be accompanied
with such Circumstances as are apt to terrify the People.”
Hawkins 136. But Hawkins goes on to enumerate relatively narrow circumstances where this exception applied:
when “Persons of Quality . . . wea[r] common Weapons, or
hav[e] their usual Number of Attendants with them, for
their Ornament or Defence, in such Places, and upon such
Occasions, in which it is the common Fashion to make use

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BREYER, J., dissenting
of them,” or to persons merely wearing “privy Coats of
Mail.” Ibid. It would make little sense if a narrow exception for nobility, see Oxford English Dictionary (3d ed., Dec.
2012), https://www.oed.com/view/Entry/155878 (defining
“quality,” A.I.5.a), and “privy coats of mail” were allowed to
swallow the broad rule that Hawkins (and other commentators of his time) described elsewhere. That rule provided
that “there may be an Affray where there is no actual Violence; as where a Man arms himself with dangerous and
unusual Weapons, in such a Manner as will naturally cause
a Terror to the People, which is . . . strictly prohibited by
[the Statute of Northampton].” Hawkins 135. And it provided no exception for those who attempted to “excuse the
wearing such Armour in Publick, by alleging that . . . he
wears it for the Safety of his Person from . . . Assault.” Id.,
at 136. In my view, that rule announces the better reading
of the Statute of Northampton—as a broad prohibition on
the public carriage of firearms and other weapons, without
an intent-to-terrify requirement or exception for self-defense.
Although the Statute of Northampton is particularly significant because of its breadth, longevity, and impact on
American law, it was far from the only English restriction
on firearms or their carriage. See, e.g., 6 Hen. 8 c. 13, §1
(1514) (restricting the use and ownership of handguns); 25
Hen. 8 c. 17, §1 (1533) (same); 33 Hen. 8 c. 6, §§1–2 (1541)
(same); 25 Edw. 3, st. 5, c. 2 (1350) (making it a “Felony or
Trespass” to “ride armed covertly or secretly with Men of
Arms against any other, to slay him, or rob him, or take
him, or retain him till he hath made Fine or Ransom for to
have his Deliverance”) (brackets and footnote omitted).
Whatever right to bear arms we inherited from our English
forebears, it was qualified by a robust tradition of public
carriage regulations.
As I have made clear, I am not a historian. But if the
foregoing facts, which historians and other scholars have

40 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
presented to us, are even roughly correct, it is difficult to
see how the Court can believe that English history fails to
support legal restrictions on the public carriage of firearms.
B. The Colonies.
The American Colonies continued the English tradition
of regulating public carriage on this side of the Atlantic. In
1686, the colony of East New Jersey passed a law providing
that “no person or persons . . . shall presume privately to
wear any pocket pistol, skeines, stilladers, daggers or dirks,
or other unusual or unlawful weapons within this Province.” An Act Against Wearing Swords, &c., ch. 9, in
Grants, Concessions, and Original Constitutions of the
Province of New Jersey 290 (2d ed. 1881). East New Jersey
also specifically prohibited “planter[s]” from “rid[ing] or
go[ing] armed with sword, pistol, or dagger.” Ibid. Massachusetts Bay and New Hampshire followed suit in 1692 and
1771, respectively, enacting laws that, like the Statute of
Northampton, provided that those who went “armed Offensively” could be punished. An Act for the Punishing of
Criminal Offenders, 1692 Mass. Acts and Laws no. 6, pp.
11–12; An Act for the Punishing of Criminal Offenders,
1771 N. H. Acts and Laws ch. 6, §5, p. 17.
It is true, as the Court points out, that these laws were
only enacted in three colonies. Ante, at 37. But that does
not mean that they may be dismissed as outliers. They
were successors to several centuries of comparable laws in
England, see supra, at 34–40, and predecessors to numerous similar (in some cases, materially identical) laws enacted by the States after the founding, see infra, at 41–42.
And while it may be true that these laws applied only to
“dangerous and unusual weapons,” see ante, at 38 (majority
opinion), that category almost certainly included guns, see
Charles, 60 Clev. St. L. Rev., at 34, n. 181 (listing 18th century sources defining “‘offensive weapons’” to include “‘Fire
Arms’” and “‘Guns’”); State v. Huntly, 25 N. C. 418, 422

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BREYER, J., dissenting
(1843) (per curiam) (“A gun is an ‘unusual weapon,’ wherewith to be armed and clad”). Finally, the Court points out
that New Jersey’s ban on public carriage applied only to
certain people or to the concealed carriage of certain
smaller firearms. Ante, at 39–40. But the Court’s refusal
to credit the relevance of East New Jersey’s law on this basis raises a serious question about what, short of a “twin”
or a “dead ringer,” qualifies as a relevant historical analogue. See ante, at 21 (majority opinion) (emphasis deleted).
C. The Founding Era.
The tradition of regulations restricting public carriage of
firearms, inherited from England and adopted by the Colonies, continued into the founding era. Virginia, for example, enacted a law in 1786 that, like the Statute of Northampton, prohibited any person from “go[ing] nor rid[ing]
armed by night nor by day, in fairs or markets, or in other
places, in terror of the Country.” 1786 Va. Acts, ch. 21.
And, as the Court acknowledges, “public-carry restrictions
proliferate[d]” after the Second Amendment’s ratification
five years later in 1791. Ante, at 42. Just a year after that,
North Carolina enacted a law whose language was lifted
from the Statute of Northampton virtually verbatim (vestigial references to the King included). Collection of Statutes, pp. 60–61, ch. 3 (F. Martin ed. 1792). Other States
passed similar laws in the late-18th and 19th centuries.
See, e.g., 1795 Mass. Acts and Laws ch. 2, p. 436; 1801
Tenn. Acts pp. 260–261; 1821 Me. Laws p. 285; see also
Charles, 60 Clev. St. L. Rev., at 40, n. 213 (collecting
sources).
The Court discounts these laws primarily because they
were modeled on the Statute of Northampton, which it believes prohibited only public carriage with the intent to terrify. Ante, at 41. I have previously explained why I believe

42 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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that preventing public terror was one reason that the Statute of Northampton prohibited public carriage, but not an
element of the crime. See supra, at 37–39. And, consistent
with that understanding, American regulations modeled on
the Statute of Northampton appear to have been understood to set forth a broad prohibition on public carriage of
firearms without any intent-to-terrify requirement. See
Charles, 60 Clev. St. L. Rev., at 35, 37–41; J. Haywood, A
Manual of the Laws of North-Carolina, pt. 2, p. 40 (3d
ed.1814); J. Ewing, The Office and Duty of a Justice of the
Peace 546 (1805).
The Court cites three cases considering common-law offenses, ante, at 42–44, but those cases do not support the
view that only public carriage in a manner likely to terrify
violated American successors to the Statute of Northampton. If anything, they suggest that public carriage of firearms was not common practice. At least one of the cases
the Court cites, State v. Huntly, wrote that the Statute of
Northampton codified a pre-existing common-law offense,
which provided that “riding or going armed with dangerous
or unusual weapons, is a crime against the public peace, by
terrifying the good people of the land.” 25 N. C., at 420–421
(quoting 4 Blackstone, Commentaries, at 149; emphasis
added). Huntly added that “[a] gun is an ‘unusual weapon’”
and that “[n]o man amongst us carries it about with him, as
one of his every-day accoutrements—as a part of his dress—
and never, we trust, will the day come when any deadly
weapon will be worn or wielded in our peace-loving and lawabiding State, as an appendage of manly equipment.” 25
N. C., at 422. True, Huntly recognized that citizens were
nonetheless “at perfect liberty” to carry for “lawful purpose[s]”—but it specified that those purposes were “business or amusement.” Id., at 422–423. New York’s law similarly recognizes that hunting, target shooting, and certain
professional activities are proper causes justifying lawful
carriage of a firearm. See supra, at 12–13. The other two
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BREYER, J., dissenting
cases the Court cites for this point similarly offer it only
limited support—either because the atextual intent element the Court advocates was irrelevant to the decision’s
result, see O’Neill v. State, 16 Ala. 65 (1849), or because the
decision adopted an outlier position not reflected in the
other cases cited by the Court, see Simpson v. State, 13
Tenn. 356, 360 (1833); see also ante, at 42–43, 57 (majority
opinion) (refusing to give “a pair of state-court decisions”
“disproportionate weight”). The founding-era regulations—
like the colonial and English laws on which they were modeled—thus demonstrate a longstanding tradition of broad
restrictions on public carriage of firearms.
D. The 19th Century.
Beginning in the 19th century, States began to innovate
on the Statute of Northampton in at least two ways. First,
many States and Territories passed bans on concealed carriage or on any carriage, concealed or otherwise, of certain
concealable weapons. For example, Georgia made it unlawful to carry, “unless in an open manner and fully exposed to
view, any pistol, (except horseman’s pistols,) dirk, sword in
a cane, spear, bowie-knife, or any other kind of knives, manufactured and sold for the purpose of offence and defence.”
Ga. Code §4413 (1861). Other States and Territories enacted similar prohibitions. See, e.g., Ala. Code §3274 (1852)
(banning, with limited exceptions, concealed carriage of “a
pistol, or any other description of fire arms”); see also ante,
at 44, n. 16 (majority opinion) (collecting sources). And the
Territory of New Mexico appears to have banned all carriage whatsoever of “any class of pistols whatever,” as well
as “bowie kni[ves,] . . . Arkansas toothpick[s], Spanish dagger[s], slung-shot[s], or any other deadly weapon.” 1860
Terr. of N. M. Laws §§1–2, p. 94. These 19th-century bans
on concealed carriage were stricter than New York’s law,
for they prohibited concealed carriage with at most limited
exceptions, while New York permits concealed carriage

44 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
with a lawfully obtained license. See supra, at 12. Moreover, as Heller recognized, and the Court acknowledges, “the
majority of the 19th-century courts to consider the question
held that [these types of] prohibitions on carrying concealed
weapons were lawful under the Second Amendment or state
analogues.” 554 U. S., at 626 (emphasis added); see also
ante, at 44.
The Court discounts this history because, it says, courts
in four Southern States suggested or held that a ban on concealed carriage was only lawful if open carriage or carriage
of military pistols was allowed. Ante, at 44–46. (The Court
also cites Bliss v. Commonwealth, 12 Ky. 90 (1822), which
invalidated Kentucky’s concealed-carry prohibition as contrary to that State’s Second Amendment analogue. Id., at
90–93. Bliss was later overturned by constitutional amendment and was, as the Court appears to concede, an outlier.
See Peruta v. County of San Diego, 824 F. 3d 919, 935–936
(CA9 2016); ante, at 45.) Several of these decisions, however, emphasized States’ leeway to regulate firearms carriage as necessary “to protect the orderly and well disposed
citizens from the treacherous use of weapons not even designed for any purpose of public defence.” State v. Smith,
11 La. 633 (1856); see also Andrews v. State, 50 Tenn. 165,
179–180 (1871) (stating that “the right to keep” rifles, shotguns, muskets, and repeaters could not be “infringed or forbidden,” but “[t]heir use [may] be subordinated to such regulations and limitations as are or may be authorized by the
law of the land, passed to subserve the general good, so as
not to infringe the right secured and the necessary incidents to the exercise of such right”); State v. Reid, 1 Ala.
612, 616 (1840) (recognizing that the constitutional right to
bear arms “necessarily . . . leave[s] with the Legislature the
authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of
public morals”). And other courts upheld concealed-carry
restrictions without any reference to an exception allowing

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BREYER, J., dissenting
open carriage, so it is far from clear that the cases the Court
cites represent a consensus view. See State v. Mitchell, 3
Blackf. 229 (Ind. 1833); State v. Buzzard, 4 Ark. 18 (1842).
And, of course, the Court does not say whether the result in
this case would be different if New York allowed open carriage by law-abiding citizens as a matter of course.
The second 19th-century innovation, adopted in a number of States, was surety laws. Massachusetts’ surety law,
which served as a model for laws adopted by many other
States, provided that any person who went “armed with a
dirk, dagger, sword, pistol, or other offensive and dangerous
weapon,” and who lacked “reasonable cause to fear an assualt [sic],” could be made to pay a surety upon the “complaint of any person having reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16
(1836). Other States and Territories enacted identical or
substantially similar laws. See, e.g., Me. Rev. Stat., ch. 169,
§16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); Terr. of
Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat., ch.
16, §17; W. Va. Code, ch. 153, §8 (1868); 1862 Pa. Laws p.
250, §6. These laws resemble New York’s licensing regime
in many, though admittedly not all, relevant respects. Most
notably, like New York’s proper cause requirement, the
surety laws conditioned public carriage in at least some circumstances on a special showing of need. Compare supra,
at 13, with Mass. Rev. Stat., ch. 134, §16.
The Court believes that the absence of recorded cases involving surety laws means that they were rarely enforced.
Ante, at 49–50. Of course, this may just as well show that
these laws were normally followed. In any case, scholars
cited by the Court tell us that “traditional case law research
is not especially probative of the application of these restrictions” because “in many cases those records did not survive the passage of time” or “are not well indexed or digitally searchable.” E. Ruben & S. Cornell, Firearms

46 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130–
131, n. 53 (2015). On the contrary, “the fact that restrictions on public carry were well accepted in places like
Massachusetts and were included in the relevant manuals
for justices of the peace” suggests “that violations were enforced at the justice of peace level, but did not result in expensive appeals that would have produced searchable case
law.” Id., at 131, n. 53 (citation omitted). The surety laws
and broader bans on concealed carriage enacted in the 19th
century demonstrate that even relatively stringent restrictions on public carriage have long been understood to
be consistent with the Second Amendment and its state
equivalents.
E. Postbellum Regulation.
After the Civil War, public carriage of firearms remained
subject to extensive regulation. See, e.g., Cong. Globe, 39th
Cong., 1st Sess., 908 (1866) (“The constitutional rights of all
loyal and well-disposed inhabitants to bear arms will not be
infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons”).
Of course, during this period, Congress provided (and commentators recognized) that firearm regulations could not be
designed or enforced in a discriminatory manner. See ibid.;
Act of July 16, 1866, §14, 14 Stat. 176–177 (ensuring that
all citizens were entitled to the “full and equal benefit of all
laws . . . including the constitutional right to keep and bear
arms . . . without respect to race or color, or previous condition of slavery”); see also The Loyal Georgian, Feb. 3, 1866,
p. 3, col. 4. But that by-now uncontroversial proposition
says little about the validity of nondiscriminatory restrictions on public carriage, like New York’s.
What is more relevant for our purposes is the fact that,
in the postbellum period, States continued to enact generally applicable restrictions on public carriage, many of

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BREYER, J., dissenting
which were even more restrictive than their predecessors.
See S. Cornell & J. Florence, The Right to Bear Arms in the
Era of the Fourteenth Amendment: Gun Rights or Gun Regulation? 50 Santa Clara L. Rev. 1043, 1066 (2010). Most
notably, many States and Western Territories enacted
stringent regulations that prohibited any public carriage of
firearms, with only limited exceptions. For example, Texas
made it a misdemeanor to carry in public “any pistol, dirk,
dagger, slung-shot, sword-cane, spear, brass-knuckles,
bowie-knife, or any other kind of knife manufactured or sold
for the purpose of offense or defense” absent “reasonable
grounds for fearing an [immediate and pressing] unlawful
attack.” 1871 Tex. Gen. Laws ch. 34, §1. Similarly, New
Mexico made it “unlawful for any person to carry deadly
weapons, either concealed or otherwise, on or about their
persons within any of the settlements of this Territory.”
1869 Terr. of N. M. Laws ch. 32, §1. New Mexico’s prohibition contained only narrow exceptions for carriage on a person’s own property, for self-defense in the face of immediate
danger, or with official authorization. Ibid. Other States
and Territories adopted similar laws. See, e.g., 1875 Wyo.
Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1,
p. 23; 1881 Kan. Sess. Laws §23, p. 92; 1889 Ariz. Terr.
Sess. Laws no. 13, §1, p. 16.
When they were challenged, these laws were generally
upheld. P. Charles, The Faces of the Second Amendment
Outside the Home, Take Two: How We Got Here and Why
It Matters, 64 Clev. St. L. Rev. 373, 414 (2016); see also
ante, at 56–57 (majority opinion) (recognizing that postbellum Texas law and court decisions support the validity of
New York’s licensing regime); Andrews, 50 Tenn., at 182
(recognizing that “a man may well be prohibited from carrying his arms to church, or other public assemblage,” and
that the carriage of arms other than rifles, shot guns, muskets, and repeaters “may be prohibited if the Legislature

48 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
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deems proper, absolutely, at all times, and under all circumstances”).
The Court’s principal answer to these broad prohibitions
on public carriage is to discount gun control laws passed in
the American West. Ante, at 58–61. It notes that laws enacted in the Western Territories were “rarely subject to judicial scrutiny.” Ante, at 60. But, of course, that may well
mean that “[w]e . . . can assume it settled that these” regulations were “consistent with the Second Amendment.” See
ante, at 21 (majority opinion). The Court also reasons that
laws enacted in the Western Territories applied to a relatively small portion of the population and were comparatively short lived. See ante, 59–61. But even assuming that
is true, it does not mean that these laws were historical aberrations. To the contrary, bans on public carriage in the
American West and elsewhere constitute just one chapter
of the centuries-old tradition of comparable firearms regulations described above.
F. The 20th Century.
The Court disregards “20th-century historical evidence.”
Ante, at 58, n. 28. But it is worth noting that the law the
Court strikes down today is well over 100 years old, having
been enacted in 1911 and amended to substantially its present form in 1913. See supra, at 12. That alone gives it a
longer historical pedigree than at least three of the four
types of firearms regulations that Heller identified as “presumptively lawful.” 554 U. S., at 626–627, and n. 26; see C.
Larson, Four Exceptions in Search of a Theory: District of
Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings
L. J. 1371, 1374–1379 (2009) (concluding that “‘prohibitions on the possession of firearms by felons and the mentally ill [and] laws imposing conditions and qualifications
on the commercial sale of arms’” have their origins in the
20th century); Kanter v. Barr, 919 F. 3d 437, 451 (CA7
2019) (Barrett, J., dissenting) (“Founding-era legislatures

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BREYER, J., dissenting
did not strip felons of the right to bear arms simply because
of their status as felons”). Like JUSTICE KAVANAUGH, I understand the Court’s opinion today to cast no doubt on that
aspect of Heller’s holding. Ante, at 3 (concurring opinion).
But unlike JUSTICE KAVANAUGH, I find the disconnect between Heller’s treatment of laws prohibiting, for example,
firearms possession by felons or the mentally ill, and the
Court’s treatment of New York’s licensing regime, hard to
square. The inconsistency suggests that the Court today
takes either an unnecessarily cramped view of the relevant
historical record or a needlessly rigid approach to analogical reasoning.
* * *
The historical examples of regulations similar to New
York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and
similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th
century. Not all of these laws were identical to New York’s,
but that is inevitable in an analysis that demands examination of seven centuries of history. At a minimum, the
laws I have recounted resembled New York’s law, similarly
restricting the right to publicly carry weapons and serving
roughly similar purposes. That is all that the Court’s test,
which allows and even encourages “analogical reasoning,”
purports to require. See ante, at 21 (disclaiming the necessity of a “historical twin”).
In each instance, the Court finds a reason to discount the
historical evidence’s persuasive force. Some of the laws
New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to
too few people. Some were enacted for the wrong reasons.
Some may have been based on a constitutional rationale
that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently

50 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
analogous to the licensing regime at issue here. But if the
examples discussed above, taken together, do not show a
tradition and history of regulation that supports the validity of New York’s law, what could? Sadly, I do not know the
answer to that question. What is worse, the Court appears
to have no answer either.
V
We are bound by Heller insofar as Heller interpreted the
Second Amendment to protect an individual right to possess a firearm for self-defense. But Heller recognized that
that right was not without limits and could appropriately
be subject to government regulation. 554 U. S., at 626–627.
Heller therefore does not require holding that New York’s
law violates the Second Amendment. In so holding, the
Court goes beyond Heller.
It bases its decision to strike down New York’s law almost
exclusively on its application of what it calls historical “analogical reasoning.” Ante, at 19–20. As I have admitted
above, I am not a historian, and neither is the Court. But
the history, as it appears to me, seems to establish a robust
tradition of regulations restricting the public carriage of
concealed firearms. To the extent that any uncertainty remains between the Court’s view of the history and mine,
that uncertainty counsels against relying on history alone.
In my view, it is appropriate in such circumstances to look
beyond the history and engage in what the Court calls
means-end scrutiny. Courts must be permitted to consider
the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the
degree to which the law burdens the Second Amendment
right, and, if appropriate, any less restrictive alternatives.
The Second Circuit has previously done just that, and it
held that New York’s law does not violate the Second
Amendment. See Kachalsky, 701 F. 3d, at 101. It first evaluated the degree to which the law burdens the Second

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BREYER, J., dissenting
Amendment right to bear arms. Id., at 93–94. It concluded
that the law “places substantial limits on the ability of lawabiding citizens to possess firearms for self-defense in public,” but does not burden the right to possess a firearm in
the home, where Heller said “‘the need for defense of self,
family, and property is most acute.’” Kachalsky, 701 F. 3d,
at 93–94 (quoting Heller, 554 U. S., at 628). The Second
Circuit therefore determined that the law should be subject
to heightened scrutiny, but not to strict scrutiny and its attendant presumption of unconstitutionality. 701 F. 3d, at
93–94. In applying such heightened scrutiny, the Second
Circuit recognized that “New York has substantial, indeed
compelling, governmental interests in public safety and
crime prevention.” Id., at 97. I agree. As I have demonstrated above, see supra, at 3–9, firearms in public present
a number of dangers, ranging from mass shootings to road
rage killings, and are responsible for many deaths and injuries in the United States. The Second Circuit then evaluated New York’s law and concluded that it is “substantially related” to New York’s compelling interests.
Kachalsky, 701 F. 3d, at 98–99. To support that conclusion,
the Second Circuit pointed to “studies and data demonstrating that widespread access to handguns in public increases
the likelihood that felonies will result in death and fundamentally alters the safety and character of public spaces.”
Id., at 99. We have before us additional studies confirming
that conclusion. See, e.g., supra, at 19–20 (summarizing
studies finding that “may issue” licensing regimes are associated with lower rates of violent crime than “shall issue”
regimes). And we have been made aware of no less restrictive, but equally effective, alternative. After considering all
of these factors, the Second Circuit held that New York’s
law does not unconstitutionally burden the right to bear
arms under the Second Amendment. I would affirm that
holding.

52 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN
BREYER, J., dissenting
New York’s Legislature considered the empirical evidence about gun violence and adopted a reasonable licensing law to regulate the concealed carriage of handguns in
order to keep the people of New York safe. The Court today
strikes down that law based only on the pleadings. It gives
the State no opportunity to present evidence justifying its
reasons for adopting the law or showing how the law actually operates in practice, and it does not so much as
acknowledge these important considerations. Because I
cannot agree with the Court’s decision to strike New York’s
law down without allowing for discovery or the development
of any evidentiary record, without considering the State’s
compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the
potentially deadly consequences of its decision, I respectfully dissent.

 

cited https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

 

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