Lead Opinion
OPINION
We are called upon to decide whether a responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense.
I
A
California generally prohibits the open or concealed carriage of a handgun, whether loaded or unloaded, in public locations.
California law delegates to each city and county the power to issue a written policy setting forth the procedures for obtaining a concealed-carry license. Id. § 26160. San Diego County has issued such a policy. At issue in this appeal is that policy’s interpretation of the “good cause” requirement found in sections 26150 and 26155: “[A] set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.” Good cause is “evaluated on an individual basis” and may arise in “situations related to personal protection as well as those related to individual businesses or occupations.” But — important here — concern for “one’s personal safety alone is not considered good cause.”
The power to grant concealed-carry licenses in San Diego County is vested in the county sheriffs department. Since 1999, the sheriffs department has required all applicants to “provide supporting documentation” in order “to demonstrate and elaborate good cause.” This “required documentation, such as restraining orders, letters from law enforcement agencies or the [district attorney] familiar with the case, is discussed with each applicant” to determine whether he or she can show a sufficiently pressing need for self-protection. If the applicant cannot demonstrate “circumstances that distinguish [him] from the mainstream,” then he will not qualify for a concealed-carry permit.
B
Wishing to carry handguns for self-defense but unable to document specific threats against them, plaintiffs Edward Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and Mark Cleary (collectively “the applicants”), all residents of San Diego County, were either denied concealed-carry licenses because they could not establish “good cause” or decided not to apply, confident that their mere desire to carry for self-defense would fall short of establishing “good cause” as the County defines it. An additional plaintiff, the California Rifle and Pistol Association Foundation, comprises many San Diego Country residents “in the same predicament as the individual Plaintiffs.” No plaintiff is otherwise barred under federal or state law from possessing firearms.
C
On October 23, 2009, after the County denied his application for a concealed-carry license, Peruta sued the County of San Diego and its sheriff, William Gore (collectively “the County”), under 42 U.S.C. § 1983, requesting injunctive and declaratory relief from the enforcement of the County policy’s interpretation of “good cause.” Peruta’s lead argument was that, by denying him the ability to carry a loaded handgun for self-defense, the County infringed his right to bear arms under the Second Amendment.
About a year later, the applicants and the County filed dueling motions for summary judgment. The district court denied the applicants’ motion and granted the County’s. Assuming without deciding that the Second Amendment “encompasses Plaintiffs’ asserted right to carry a loaded handgun in public,” the district court upheld the County policy under intermediate scrutiny. As the court reasoned, California’s “important and substantial interest in
II
As in the district court, on appeal the applicants place one argument at center stage: they assert that by defining “good cause” in San Diego County’s permitting scheme to exclude a general desire to carry for self-defense, the County impermissi-bly burdens their Second Amendment right to bear arms.
The Supreme Court’s opinions in District of Columbia v. Heller, 554 U.S. 570,
Consulting the text’s original public meaning, the Court sided with Heller, concluding that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that the “central component of the right” is self-defense. Id. at 592, 599,
Two years later, the Court evaluated a similar handgun ban enacted by the City of Chicago. The question presented in McDonald, however, was not whether the ban infringed the city residents’ Second Amendment rights, but whether a state government could even be subject to the strictures of the Second Amendment. That depended on whether the right could be said to be “deeply rooted in this Nation’s history and tradition” and “fundamental to our scheme of ordered liberty.”
It doesn’t take a lawyer to see that straightforward application of the rule in Heller will not dispose of this case. It should be equally obvious that neither Heller nor McDonald speaks explicitly or precisely to the scope of the Second Amendment right outside the home or to what it takes to “infringe” it. Yet, it is just as apparent that neither opinion is silent on these matters, for, at the very least, “the Supreme Court’s approach ... points in a general direction.” Ezell v. City of Chicago,
A
The first question goes to the scope of the guarantee: Does the restricted activity — here, a restriction on a responsible, law-abiding citizen’s
The analysis begins — as any interpretive endeavor must — with the text. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller,
Since the goal is to arrive at a fair, not a hyper-literal, reading of the Constitution’s language, Heller’s analysis is necessarily a contextual — and therefore a historical — one. See Chester,
Of course, the necessity of this historical analysis presupposes what Heller makes explicit: the Second Amendment right is “not unlimited.” Id. at 595,
In short, the meaning of the Second Amendment is a matter not merely of abstract dictionary definitions but also of historical practice. As “[n]othing but conventions and contexts cause [language] to convey a particular idea,” we begin our analysis of the scope of the Second Amendment right by examining the text of the amendment in its historical context. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxvii (2012).
1
The Second Amendment secures the right not only to “keep” arms but also to “bear ” them — the verb whose original meaning is key in this case. Saving us the trouble of pulling the eighteenth-century dictionaries ourselves, the Court already has supplied the word’s plain meaning: “At the time of the founding, as now, to ‘bear’ meant to ‘carry.’ ” Heller,
Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Ma-digan,
More importantly, at the time of the Second Amendment’s enactment, the familiar image that “bear arms” would have painted is one of an eighteenth-century frontiersman, who “from time to time [would] leave [his] home to obtain supplies from the nearest trading post, and en route one would be as much (probably more) at risk if unarmed as one would be in one’s home unarmed.” Id. at 936. Indeed, it was this spirit of the arms-bearing settler that Senator Charles Sumner invoked (and the Heller Court cited as instructive of the scope of the right) in the (in)famous “Crime against Kansas” speech in 1856: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached.” 4 The Works of Charles Sumner 211-12 (1875); see also Heller,
Other passages in Heller and McDonald suggest that the Court shares Sumner’s view of the scope of the right. The Second
These passages alone, though short of dispositive, strongly suggest that the Second Amendment secures a right to carry a firearm in some fashion outside the home. Reading those lines in light of the plain-meaning definition of “bear Arms” elucidated above makes matters even clearer: the Second Amendment right “could not rationally have been limited to the home.” Moore,
2
In addition to a textual analysis of the phrase “bear Arms,” we, like the Court in Heller, look to the original public understanding of- the Second Amendment right as evidence of its scope and meaning, relying on the “important founding-era legal
The commonsense reading of “bear Arms” previously discussed finds support in several important constitutional treatises in circulation at the time of the Second Amendment’s ratification. See id. at 582-83, 592-93,
Writing over thirty years later in what Heller calls the “most important” American edition of Blackstone’s Commentaries, id. at 594,
3
In keeping with the views of the important late-eighteenth-eentury commentaries, the great weight of nineteenth-century precedent on the Second Amendment or its state-law analogues confirms the Heller-endorsed understanding of “bear Arms.”
a
But before turning to the cases themselves, we offer a word on methodology. We set out to review the bulk of precedents from this period.
To illustrate, a precedent in the first category that declared a general right to carry guns in public would be a great case for Peruta, while a decision in the same group that confined exercise of the right to the home would do his position much damage. By contrast, those cases in the third category — which, like the dissenting opinions in Heller, espouse the view that one has a right to bear arms only collectively in connection with militia service and not for self-defense within or outside the home — are of no help. The second category, consisting mostly of cases that embrace the premise that the right’s purpose is deterring tyranny, is only marginally useful. Since one needn’t exactly tote a pistol on his way to the grocery store in order to keep his government in check, it is no surprise (and, thus, of limited significance for purposes of our analysis) when these courts suggest that the right is mostly confined to the home. Likewise, a second-category case asserting that the goal of tyranny prevention does indeed call for public weapon bearing lends only indirect support for the proposition that bearing arms in case of confrontation includes carrying weapons in public for self-defense.
b
Having set forth the methodology to be employed, we turn to the nineteenth-century case law interpreting the Second Amendment, beginning with the cases that the Court itself relied upon in Heller.
The first case is Bliss v. Commonwealth,
In Simpson v. State, the Tennessee Supreme Court read that state’s Second Amendment analogue just as the Bliss court read Kentucky’s.
Though the Tennessee Supreme Court announced a slightly different view of the right to bear arms in Aymette v. State, that case is plainly consistent with — and indeed affirms — the principle that the right to bear arms extends out of doors.
The Alabama Supreme Court weighed in that same year. See State v. Reid,
We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.
Id. at 616-17,
Embracing precisely that position, the Georgia Supreme Court’s decision in Nunn v. State six years later — praised in Heller as “perfectly captur[ing]” the relationship between the Second Amendment’s two clauses,
We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was*1159 done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.
Id. In other words, as the same court explained in a later case involving a defendant charged with illicit open carriage, to ban both the open and concealed carriage of pistols “would be to prohibit the bearing of those arms” altogether. Stockdale v. State,
Although the Arkansas Supreme Court in State v. Buzzard appeared at first to take the contrary position, viewing restrictions on carrying weapons for self-defense as permissible police-power regulations, see
State v. Chandler, an 1850 decision of the Louisiana Supreme Court, proceeds along the lines drawn in Nunn.
[The Act] interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country,*1160 without any tendency to secret advantages and unmanly assassinations.
Id. at 490; see also Heller;
Nine years later, the Texas Supreme Court declared that “[t]he right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute,” permitting even the wielding of a Bowie knife, “the most deadly of all weapons in common use.” Cockrum v. State,
Thus, the majority of nineteenth century courts agreed that the Second Amendment right extended outside the home and included, at minimum, the right to carry an operable weapon in public for the purpose of lawful self-defense. Although some courts approved limitations on the manner of carry outside the home, none approved a total destruction of the right to carry in public.
Indeed, we know of only four cases from that period rejecting the presumptive-carry view. Three of the four, however, are not category-one cases. See Haile v. State,
4
As the Court did in Heller, we turn next to the post — Civil War legislative scene.
Perhaps unsurprisingly, our review suggests that their understanding comports with that of most nineteenth-century courts: then, as at the time of the founding, “[t]he right of the people ... to bear arms meant to carry arms on one’s person.” Stephen P. Halbrook, Securing Civil Rights, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms 50 (1998).
Our examination of the Civil War legislative scene begins with the Supreme Court’s infamous decision in Dred Scott v. Sanford,
By all accounts, the model of such codes was Mississippi’s 1865 “Act to Regulate
Among the proposed legislative solutions to the problem of the Black Codes was a bill to add to the powers of the Freedmen’s Bureau, a federal agency dispatched to the South to aid the former slaves. One senator, a Democrat from Indiana, seemed to fear that the bill’s section securing civil rights to blacks would cast doubt on the legitimacy of his state’s laws securing only whites’ right to carry weapons openly. See Halbrook, supra, at 8. Another senator, though he opposed the bill, knew well the nature of the fundamental rights it sought to secure: They included “the subordination of the military to the civil power in peace, in a war, and always,” “the writ of habeas corpus,” and “trial by jury,” he declared. They also included the right “for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess. 340, 371 (Jan. 23, 1866) (Sen. Henry Winter Davis) (emphasis added), cited in Heller,
Just as it was “plainly the understanding in the post — Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense,” Heller,
5
We consider next the major “[p]ost— Civil War [c]ommentators[’]” understanding of the right. Id.; see also David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359, 1461-1503 (1998) (collecting relevant commentary from the period). The first and most influential was Thomas Cooley, judge, professor, and author of two leading treatises on constitutional law. Quoted at length in Heller solely for his view that the right is an individual one, Cooley’s works say little on the self-defense component of the right. Nonetheless, his treatment of the Second Amendment in his more popular treatise supports a self-defense view of the right. There, he notes that “happily” there has been “little occasion” for consideration by courts of the extent to which the right may be regulated, citing only— and without disapproval — the pro-carriage decisions in Bliss, Nunn, and a third case on “the right of self-defence.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 350 & n.l (1868), cited in Heller,
A second constitutional commentator from the era, also cited in Heller, seemed to concur in Cooley’s account. See John Pomeroy, An Introduction to the Constitutional Law of the United States (8th ed.1885), cited in Heller,
The observations of Oliver Wendell Holmes Jr. in his annotations to James Kent’s canonical Commentaries on American Law, are in accord. “As the Constitution of the United States ... declare[s] the right of the people to keep and bear arms,” he wrote, “it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340 n.2 (Holmes ed., 12th ed.1873), cited in Heller,
The account of George Chase, yet another nineteenth-century editor of Blackstone, also reflects the mainstream view of the right — and quite explicitly so. Though the right may not be infringed, he wrote, “it is generally held that statutes prohibiting the carrying of concealed weapons are not in conflict with these constitutional provisions, since they merely forbid the carrying of arms in a particular manner, which is likely to lead to breaches of the peace and provoke to the commission of crime, rather than contribute to public or personal defence.” The American Students’ Blackstone: Commentaries on the Laws of England 84 n.ll (George Chase ed., 3d ed.1890) [hereinafter “Chase”], cited in Heller,
Legal commentator John Ordronaux, also cited in Heller, understood the right clearly to include arms bearing outside the home. Predating the Constitution, “[t]he right to bear arms has always been the distinctive privilege of freemen,” rooted in part in the “necessity of self-protection to the person.” John Ordronaux, Constitutional Legislation in the United States: Its Origin, and Application to the Relative Powers of Congress, and of State Legislatures 241 (1891), cited in Heller,
That position also prevailed, to a greater or lesser extent, in some of the minor late-nineteenth-century commentaries. Henry Campbell Black, Handbook of American Constitutional Law 463 (1895) (noting that, though the arms-bearing privilege belongs to individuals and is a “natural right,” restrictions on carrying concealed weapons are not unconstitutional); James Schouler, Constitutional Studies: State and Federal 226 (1897) (“To the time-honored right of free people to bear arms was now [in the mid-nineteenth-century] annexed, ... the qualification that carrying concealed weapons was not to be included.”); see also, supra, n. 12 (late-nineteenth-century editors oí Blackstone).
That is not to say that this period was without proponents of a dissenting view. Indeed, there were several. See Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes 497-98 (1873) (disagreeing that the right permits the carrying of weapons for personal self-defense); J.C. Bancroft Davis, “Appendix,” in Samuel Freeman Miller, Lectures on the Constitution of the United States 645 (1893) [hereinafter “Davis”] (understanding the right to secure the characteristic activities of “military bodies and associa
The weight of authority suggests that the right to bear arms, as understood in the post — Civil War legal commentary, included the right to carry weapons outside the home for self-defense, which, as shown, is consistent with the understanding of the right articulated in most eighteenth-century commentary, nineteenth-century court opinions, and by many post — Civil War political actors.
So concludes our analysis of text and history: the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes “bearing] Arms” within the meaning of the Second Amendment.
6
Our conclusion that the right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense is perhaps unsurprising — other circuits faced with this question have expressly held, or at the very least have assumed, that this is so. Moore,
Given this consensus, one might consider it odd that we have gone to such lengths to trace the historical scope of the Second Amendment right. But we have good reason to do so: we must fully understand the historical scope of the right before we can determine whether and to what extent the San Diego County policy burdens the right or whether it goes even further and “amounts to a destruction of the right” altogether. See Heller,
We thus disagree with those courts— including the district court in this case— that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. See, e.g., Drake,
B
Having concluded that carrying a gun outside the home for self-defense comes within the meaning of “bearing] Arms,” we ask whether San Diego County’s “good cause” permitting requirement “infringe[s]” the right.
1
a
To determine what constitutes an infringement, our sister circuits have grappled with varying sliding-scale and tiered-scrutiny approaches, agreeing as a general matter that “the level of scrutiny applied to gun control regulations depends on the regulation’s burden on the Second Amendment right to keep and bear arms.” Nor-dyke v. King,
And there is, of course, an alternative approach for the most severe cases — the approach used in Heller itself. In Heller, applying heightened scrutiny was unnecessary. No matter what standard of review to which the Court might have held the D.C. restrictions,
b
Our first task, therefore, is to assess the nature of the infringement that the San Diego County policy purportedly effects on the right to bear arms — namely, does it burden the right or, like in Heller, does it destroy the right altogether?
California’s regulatory scheme addresses two types of arms-bearing: open and concealed carry. Under California law, open carry is prohibited in San Diego County
California law also severely restricts concealed carry, although not to the same extent as open carry. As a general rule, concealed carry is not allowed regardless of whether the weapon is loaded. See id. § 25400. But there are certain exceptions. Concealed carry is acceptable with a proper permit. Id. §§ 26150, 26155. And even without a permit, it is sanctioned for particular groups, see, e.g., id. § 25450 (peace officers); id. § 25455 (retired peace officers); id. § 25620 (military personnel); id. § 25650 (retired federal officers), in partic
Clearly, the California scheme does not prevent every person from bearing arms outside the home in every circumstance. But the fact that a small group of people have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Heller,
In California, the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a.concealed-carry permit. And, in San Diego County, that option has been taken off the table. The San Diego County policy specifies that concern for “one’s personal safety alone” does not satisfy the “good cause” requirement for issuance of a permit. Instead, an applicant must demonstrate that he suffers a unique risk of harm: he must show “a set of circumstances that distinguish [him] from the mainstream and cause[ ] him ... to be placed in harm’s way.” Given this requirement, the “typical” responsible, law-abiding citizen in San Diego County cannot bear arms in public for self-defense; a typical citizen fearing for his “personal safety” — by definition — cannot “distinguish [himself ] from the mainstream.”
Although California law provides other specified exceptions from the general prohibition against public carry, these do little to protect an individual’s right to bear arms in public for the lawful purpose of self-defense. The exemptions for particular groups of law enforcement officers and military personnel do not protect the typical responsible, law-abiding citizen. Excluding private property and places of business does not protect the right to bear arms for public confrontation. And the exceptions for “making or attempting to make a lawful arrest” or for situations of “immediate, grave danger” (to the extent that they are not entirely illusory — for how would one obtain a gun for use in public when suddenly faced with such a circumstance?) do not cover the scope of the right, which includes the right to carry in case of public confrontation, not just after a confrontation has occurred. Heller,
c
It is the rare law that “destroys” the right, requiring Heller-style per se invalidation, but the Court has made perfectly clear that a ban on handguns in the home is not the only act of its kind. We quote the relevant paragraph in full, telling case citations included:
Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See1 Ga., at 251 . In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,”50 Tenn., at 187 , violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid,1 Ala. 612 , 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).
Id. at 629,
2
The County presents one further argument in support of the constitutionality of its “good cause” policy, which it perceives as its ace in the hole: the Heller Court’s description of concealed-carry restrictions as “presumptively lawful regulatory measures.” Id. at 627 n. 26,
But the County’s argument has two flaws. First, it misapprehends Peruta’s challenge. This is not a case where a plaintiff who is permitted to openly carry a loaded weapon attacks the validity of a state’s concealed-carry rule because he
The second, somewhat-related mistake in the County’s argument is that it reads too much into Helleds ostensible blessing of concealed-carry restrictions. A flat-out ban on concealed carry in a jurisdiction permitting open carry may or may not infringe the Second Amendment right— the passage from Heller clearly bears on that issue, which we need not decide. But whether a state restriction on both concealed and open carry overreaches is a different matter. To that question, Heller itself furnishes no explicit answer. But the three authorities it cites for its statement on concealed-carry laws do. See Heller,
Of course, these three sources are not the only exponents of this view. As we have shown, dozens of other cases and authorities from the same period — many of which Heller cites as probative of the
To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry. But the Second Amendment does require that the states permit some form of carry for self-defense outside the home. Historically, the preferred form of carry has depended upon social convention: concealed carry was frowned upon because it was seen as “evil practice” that endangered “the safety of the people” and “public morals” by “exert[ing] an unhappy influence upon the moral feelings of the wearer[ and] making him less regardful of the personal security of others.” Reid,
California, through its legislative scheme, has taken a different course than most nineteenth-century state legislatures, expressing a preference for concealed rather than open carry.
To put it simply, concealed carry per se does not fall outside the scope of the right to bear arms; but insistence upon a particular mode of carry does. As we have explained previously, this is not the latter type of case. Peruta seeks a concealed carry permit because that is the only type of permit available in the state. As the California legislature has limited its permitting scheme to concealed carry— and has thus expressed a preference for that manner of arms-bearing—a narrow challenge to the San Diego County regulations on concealed carry, rather than a
For these reasons, Heller*s favorable mention of concealed-carry restrictions is not the silver bullet the County had hoped it was, at least not in this case.
3
Our opinion is not the first to address the question of whether the Second Amendment protects a responsible, law-abiding citizen’s right to bear arms outside the home for the lawful purpose of self-defense. Indeed, we are the fifth circuit court to opine expressly on the issue, joining an existent circuit split. Compare Moore,
a
We are unpersuaded by the decisions of the Second, Third, and Fourth Circuits for several reasons. First, contrary to the approach in Heller, all three courts declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home. Compare Heller,
For example, in Kachalsky, the Second Circuit’s perfunctory glance at the plaintiffs’ historical argument misunderstood the historical consensus regarding the right to bear arms outside the home. Relying on three cases, the court concluded that “history and tradition [did] not speak with one voice” regarding the ability to restrict public carry because at least three states “read restrictions on the public carrying of weapons as entirely consistent with constitutional protections.” Kachalsky,
Because the Second Amendment has always been an individual right to defend oneself, cases that — like these — uphold gun regulations because they do not offend the militia-based nature of the right are inapposite and should not factor into a historical analysis of the right’s scope. See, e.g., Heller,
By evading an in-depth analysis of history and tradition, the Second, Third, and Fourth Circuits missed a crucial piece of the Second Amendment analysis. They failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms. See Moore,
Because the Second, Third, and Fourth Circuits eschewed history and tradition in their analysis of the constitutionality of these regulations, despite the Supreme Court’s admonition that “the public understanding of a legal text in the period after its enactment or ratification” is a “critical tool of constitutional interpretation,” we find their approaches unpersuasive. See Heller,
b
Because our analysis paralleled the analysis in Heller itself, we did not apply a particular standard of heightened scrutiny. See also Moore,
Nonetheless, to the extent those opinions suggest that the type of regulation at issue here can withstand some form of heightened scrutiny, it is worth noting our disagreement with their reasoning.
When analyzing whether a “substantial relationship” existed between the challenged gun regulations and the goal of “public safety and crime prevention” the Second Circuit concluded that it owed “substantial deference to the predictive judgments of [the legislature]” regarding the degree of fit between the regulations and the public interest they aimed to serve. Kachalsky,
This is not an appropriate application of intermediate scrutiny in at least two respects. First, the analysis in the Second, Third, and Fourth Circuit decisions is near-identical to the freestanding “interest-balancing inquiry” that Justice Breyer proposed — and that the majority explicitly rejected — in Heller. See Heller,
Our second disagreement with our sister circuits’ application of intermediate scrutiny relates to the high degree of deference they afforded the state legislatures’ assessments of the fit between the challenged regulations and the asserted government interest they served. Although all three cite Turner Broadcasting System, Inc. v. FCC (Turner II),
In Drake, Woollard, and Kachalsky, the government failed to show that the gun regulations did not burden “substantially more” of the Second Amendment right than was necessary to advance its aim of public safety. Indeed, as the district court noted in Woollard, the government could not show that the challenged regulation served its needs any better than a random rationing system, wherein gun permits were limited to every tenth applicant. See also Drake,
The Maryland statute’s failure lies in the overly broad means by which it seeks to advance this undoubtedly legitimate end. The requirement that a permit applicant demonstrate “good and substantial reason” to carry a handgun does not, for example, advance the interests of public safety by ensuring that guns are kept out of the hands of those adjudged most likely to misuse them, such as criminals or the mentally ill. It does not ban handguns from places where the possibility of mayhem is most acute, such as schools, churches, government buildings, protest gatherings, or establishments that serve alcohol. It does not attempt to reduce accidents, as would a requirement that all permit applicants complete a safety course. It does not even, as some other States’*1178 laws do, limit the carrying of handguns to persons deemed “suitable” by denying a permit to anyone “whose conduct indicates that he or she is potentially a danger to the public if entrusted with a handgun.”
Rather, the regulation at issue is a rationing system. It aims, as Defendants concede, simply to reduce the total number of firearms carried outside of the home by limiting the privilege to those who can demonstrate “good reason” beyond a general desire for self-defense.
The challenged regulation does no more to combat [the state’s public safety concerns] than would a law indiscriminately limiting the issuance of a permit to every tenth applicant. The solution, then, is not tailored to the problem it is intended to solve. Maryland’s “good and substantial reason” requirement will not prevent those who meet it from having their guns taken from them, or from accidentally shooting themselves or others, or from suddenly turning to a life of crime.... If anything, the Maryland regulation puts firearms in the hands of those most likely to use them in a violent situation by limiting the issuance of permits to “groups of individuals who are at greater risk than others of being the victims of crime.”
Woollard v. Sheridan,
In light of the states’ failure to demonstrate sufficient narrow tailoring in Drake, Woollard, and Kachalsky, the gun regulations at issue in those cases should have been struck down even under intermediate scrutiny.
Ill
We conclude by emphasizing, as nearly every authority on the Second Amendment has recognized, regulation of the right to bear arms is not only legitimate but quite appropriate. We repeat Helleds admonition that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession” — or carriage — “of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller,
We are well aware that, in the judgment of many governments, the safest sort of firearm-carrying regime is one which restricts the privilege to law enforcement with only narrow exceptions. Nonetheless, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.... Undoubtedly some think that the Second Amendment is outmoded in a society where our standing
The district court erred in denying the applicant’s motion for summary judgment on the Second Amendment claim because San Diego County’s “good cause” permitting requirement impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense.
REVERSED and REMANDED.
Notes
. There are a few narrow exceptions to this rule. Armored vehicle guards and retired federal officers may carry a loaded firearm in public without meeting stringent permitting requirements. See Cal.Penal Code § 26015 (armored vehicle guards); id. § 26020 (retired federal officers). And a citizen may carry a loaded firearm in public if: (1) he is engaged in the act of attempting to make a lawful arrest; (2) he is hunting in locations where it is lawful to hunt; or (3) he faces immediate, grave danger provided that the weapon is only carried in "the brief interval” between the time law enforcement officials are notified of the danger and the time they arrive on the scene (where the fleeing victim would obtain a gun during that interval is apparently left to Providence). Id. § 26040 (hunting); id. § 26045 (immediate, grave danger); id. § 26050 (attempting to make a lawful arrest).
. In this case, as in Heller, we consider the scope of the right only with respect to responsible, law-abiding citizens. See Heller,
. Although we are dealing with the Second Amendment right as incorporated against the states through the Fourteenth Amendment, we — consistent with the Court’s analysis in
. Heller and McDonald focus on the Second Amendment right to keep and bear arms for self-defense — the core component of the right, which this case implicates. We need not consider, therefore, whether the right has other ends. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L.Rev. 1443, 1448 (2009) (suggesting that the right "may have other components,” such as the right to keep and bear arms for recreation, hunting, or resisting government tyranny).
.Following Heller, we credit nineteenth-century judicial interpretations of the right to bear arms as probative of the Second Amendment’s meaning. Heller,
We decline, however, to undertake an exhaustive analysis of twentieth-century interpretations of the right for the same reason that the Heller Court presumably did: coming over a hundred years after the Amendment’s ratification, they seem poor sources of the text's original public meaning. Cf. id. at 614,
. We will inevitably miss some. The briefs filed in this appeal were able to address only so many before running up against word limits.
. With apologies to George Orwell. See George Orwell, Animal Farm 118 (2009) (1945) (distilling Manor Farm’s Seven Commandments of Animalism to a single rule: "All animals are equal, but some animals are more equal than others”).
. The Indiana Supreme Court appeared to take the same view. Compare State v. Mitchell,
. By assuming that the right to bear arms is an individual one focused on militia service rather than self-defense, the Chief Judge Ringo's opinion in Buzzard falls into the second-category; Judge Dickinson’s opinion for the majority is consistent with the third-category position in concluding that the Second Amendment does not secure an individual right at all.
. The court rested this holding on the Texas constitution’s guarantee of the right to bear arms, not that of the Second Amendment, which it read as a strictly tyranny-deterring measure "based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed.” Cockrum,
. The editors of an 1875 edition of Blackstone also highlighted these three cases in their discussion of "[t]he right of carrying arms for self-protection.” 1 William Blackstone, Commentaries on the Laws of England 121 n.64 (Herbert Broom & Edward A. Had-ley eds., 1875). William Draper Lewis, a later editor, wrote ”[t]hat the right of carrying arms as secured by the U.S. Constitution, and generally by State constitutions, does not include the habitual carrying of concealed deadly weapons by private individuals.” 1 William Blackstone, Commentaries on the Laws of England 144 n.91 (William Draper Lewis ed., 1897). Both these readings, like Cooley's, presume that some arms bearing for self-defense outside the home is encompassed in the right.
. In Cooley’s other treatise, he often described the right to bear arms as oriented toward the goal of citizenry-wide military readiness. To this end, "to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880), cited in Heller,
Although one might be tempted to read this passage, and the section in which it appears, as suggesting that Cooley believed the right to be devoted solely to the defense of the community, two of his later comments suggest otherwise. First, a later line in the same treatise clarifies: "[T]he secret carrying of those [arms] suited merely to deadly individual encounters may be prohibited.” Id. at 272. If Cooley understood the right to allow weapons bearing only for training in "discipline in arms” and the like, this later clarification would not have been necessary: of course the Amendment would not foreclose restrictions on concealed carrying, just as it would not foreclose restrictions on open carrying — or carrying altogether. And second, as previously noted, Cooley’s more popular treatise referenced and contemplated a self-defense component to the right. Cooley, A Treatise on the Constitutional Limitations, supra, at 350 & n. 1.
. Some of these authorities took their cues from the Supreme Court’s decision in Presser v. Illinois,
One other nineteenth-century author cited in Heller registers disapproval of public arms bearing but offers no legal assessment of whether such bearing is within the scope of the right. See Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of Leading Topics in the Law of the Land 333-34 (1880) ("Carrying them for defence, in the more settled parts of the land, savors of cowardice rather than of prudence; a well-behaved man has less to fear from violence than from the blunders of himself and friends in managing the pistol he might carry as a protection.”), cited in Heller,
. Excluding, of course, rational basis review. See Heller,
. In Chovan, we applied intermediate scrutiny to a Second Amendment claim that involved "a substantial burden on" a right outside the core of the Second Amendment.
.San Diego, like most of the populous cities and counties in California, is incorporated. See California State Association of Counties, available at http://www.csac.counties.org/ cities-within-each-county (last visited Feb. 4, 2014).
. It is worth noting that California has one of the most restrictive gun regulatory regimes in the nation. Indeed, it is one of only eight states with a “may-issue” permitting regime, meaning that a general desire to carry in self-defense is not sufficient to justify obtaining a permit. See Drake,
. This is likely the result of a changing social convention in favor of concealed rather than open carry. See Volokh, Implementing the Right, supra, at 1521 ("In many places, carrying openly is likely to frighten many people, and to lead to social ostracism as well as confrontations with the police.”).
. The dissent curiously misinterprets our opinion as ruling on the constitutionality of California statutes. We decline to respond to its straw-man arguments.
. The Supreme Court of Illinois has also found Moore persuasive. See People v. Aguilar,
. Indeed, the Third Circuit went even further than that. It not only rejected history and tradition, but specifically relied on more recent mid-twentieth century developments to justify New Jersey's permitting scheme. See Drake,
. Because we reverse on the basis of the Second Amendment issue, we do not reach any of Peruta’s other claims.
Dissenting Opinion
dissenting:
In its landmark decision in Heller, the Supreme Court held that a complete ban on handgun possession in the home violated the Second Amendment. District of Columbia v. Heller,
This case involves California’s “presumptively lawful” and longstanding restrictions on carrying concealed weapons in public and, more specifically, an even narrower question: the constitutionality of San Diego County’s policy of allowing persons who show good cause to carry concealed firearms in public. When we examine the justification provided for the policy, coupled with Heller’s direction, our conclusion must be that the County’s policy is constitutional.
Unfortunately, the majority never answers the question posed. Instead, in a sweeping decision that unnecessarily decides questions not presented, the majority not only strikes down San Diego County’s concealed carry policy, but upends the entire California firearm regulatory scheme. The majority opinion conflicts with Heller, the reasoned decisions of other Circuits, and our own case law.
Therefore, I must respectfully dissent.
I
We are not asked in this case to determine the reach of the Second Amendment outside the home or to evaluate the entire
Second Amendment jurisprudence has rapidly evolved in the last several years, commencing with the Supreme Court’s groundbreaking decisions in Heller and McDonald v. City of Chicago,
The Supreme Court has not as yet defined the extent to which the Second Amendment applies outside the home, and that issue has been the subject of intense debate in the intermediate appellate courts.
In this changing landscape, with many questions unanswered, our role as a lower court is “narrow and constrained by precedent,” and our task “is simply to apply the test announced by Heller to the challenged provisions.” Heller v. District of Columbia,
In this case, we are not presented with a broad challenge to restrictions on carrying firearms outside the home. Instead, we are asked a much more circumscribed question concerning regulation of public carry of concealed firearms. As the Supreme Court emphasized in Heller, that issue has a much different and unique history than the Second Amendment challenge at issue in Heller, and the history of concealed carry restrictions differs from the history of open carry regulations. Those differences are crucial to resolution of the issues in this case.
Simply put, concealed carry presents an entirely different Second Amendment issue from possessing handguns in the home for self-defense. As the Supreme Court recognized in Heller, courts and state legislatures have long recognized the danger to public safety of allowing unregulated, concealed weapons to be carried in public. Indeed that danger formed part of the rationale for allowing police “stop and frisks” in Terry v. Ohio,
Under Heller and Chovan, we employ a two-part inquiry when reviewing Second Amendment challenges to firearm regulations. “The first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Chovan,
“This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification.” Chester,
II
The first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. Chovan,
A
The majority’s first — and crucial — mistake is to misidentify the “conduct at issue.” Chester,
Thus, the proper analytic approach is to answer the historical inquiry as to whether carrying a concealed weapon in public was understood to be within the scope of the right protected by the Second Amendment at the time of ratification. This examination must be approached with caution, bearing in mind Justice Stevens’ admonition that “[i]t is not the role of federal judges to be amateur historians.” McDonald,
B
Heller instructed us to look to the Second Amendment’s historical background to understand its scope.
Because of the importance attached to the historical sources by the Supreme Court in Heller, it is necessary to examine them in some detail.
1
History of the Right to Bear Arms in England. Because the Second Amendment “codified a right inherited from our English ancestors,” the Supreme Court looked to the history of the right in England to divine whether the Second Amendment protected an individual or a collective right. Heller,
Restrictions on the carrying of open and concealed weapons in public have a long pedigree in England. The fourteenth-century Statute of Northampton provided that “no man” shall “go nor ride armed by night nor by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain
Following the enactment of the Statute of Northampton, English monarchs repeatedly called on their officials to enforce it. See Patrick Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L.Rev. 1,13-30 (2012). For example, in 1579, Queen Elizabeth I called for the enforcement of the Statute of Northampton and other laws prohibiting the carrying of “Dagges, Pistolles, and such like, not on[ ]ly in Cities and Townes, [but] in all partes of the Realme in common high[ways], whereby her Majesties good qu[i]et people, desirous to live in peaceable manner, are in feare and danger of their lives.” Id. at 21 (internal quotation marks and citation omitted). In 1594, the Queen again called for the enforcement of gun control laws because her subjects were being terrorized by the carrying of arms, including concealed “pocket Dags,” in public. Id. at 22 (internal quotation marks and citation omitted).
More than three centuries after the enactment of the Statute of Northampton, William and Mary declared “[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions, and as allowed by Law.” 1 W. & M., 2d sess., c. 2, § 7 (1689). This provision of the English Bill of Rights “has long been understood to be the predecessor to our Second Amendment.” Heller,
if any Person shall Ride or go Arm’d offensively ... in Fairs or Markets or elsewhere, by Day or by Night, in affray of Her Majesties Subjects, and Breach of the Peace; or' wear or carry any Daggers, Guns or Pistols Charged; the Constable upon sight thereof, may seize and take away their Armour and Weapons, and have them apprized as forfeited to Her Majesty.
Robert Gardiner, The Compleat Constable, 18-19 (1708) (emphasis added). Notably, Gardiner distinguished between going armed offensively in breach of the peace, on the one hand, and merely wearing or carrying arms, on the other. Id. This distinction suggests that he considered carrying weapons in public a violation of the statute, regardless of whether doing so actually breached the peace. Charles, supra, at 25-28. Blackstone confirmed this understanding:
The offense of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton, upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure: in like manner as, by the laws of Solon, every Athenian was finable who walked about the city in armour.
Certainly, this history does not provide a ready or easy answer to this case. Indeed, history — especially history as old as that recited here — is often ambiguous or contradictory. Nonetheless, from what we know, we can be sure that “the right we inherited from our English ancestors” left ample leeway for restrictions on the public carrying of firearms in the interest of public safety.
2.
Post-Ratification Commentary. The Heller Court relied heavily on the post-ratification commentary of St. George Tucker, William Rawle, and Joseph Story. See
3
Pre-Civil War State Constitutions and Legislation. To confirm its understanding of the Second Amendment’s guarantee, the Heller Court looked to state legislation and state constitutional provisions from the Founding Era and subsequent generations.
By the Founding era, three of the original thirteen states — Massachusetts, North Carolina, and Virginia — had expressly adopted the Statute of Northampton. Charles, supra, at 31-32 & n.166. There is no indication that in doing so these states meant to exclude the longstanding interpretations of the statute.
In the early nineteenth century, states increasingly limited the carrying of concealed firearms.
4
Pre-Civil War Case Law. The Heller Court relied heavily on several early-nineteenth-century court cases interpreting the Second Amendment and state analogues.
In State v. Mitchell,
In the 1840 case of State v. Reid, the defendant — who had been convicted under Alabama’s Act of February 1, 1839, which made it a crime for any person to “carry concealed about his person, any species of fire arms” or “any other deadly weapon”— challenged his conviction under Alabama’s arms-bearing constitutional guarantee.
In the same year as Reid, the Tennessee Supreme Court considered a similar challenge to the constitutionality of a law criminalizing the carrying of concealed weapons. Aymette v. State,
To hold that the Legislature could pass no law upon this subject by which to preserve the public peace, and protect our citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and to make it a social evil of infinitely greater extent to society than would result from abandoning the right itself.
Id. at 159.
Súpose [sic] it were to suit the whim of a set of ruffians to enter the theatre in the midst of the performance, with drawn swords, guns, and fixed bayonets, or to enter the church in the same manner, during service, to the terror of the audience, and this were to become habitual; can it be that it would be beyond the power of the Legislature to pass laws to remedy such an evil? Surely not.... The convention, in securing the public political right in question, did not intend to take away from the Legislature all power of regulating the social relations of the citizens upon this subject.
Id. at 159.
The majority concedes that Aymette does not support a Second Amendment right to bear concealed weapons, but argues that it is relevant to other Second Amendment rights. However, if the “conduct at issue” here-the right to bear concealed weapons in public-is not protected by the Second Amendment, the existence of other rights is not relevant to our inquiry.
In State v. Buzzard,
The act in question does not, in my judgment, detract anything from the*1187 power of the people to defend their free state and the established institutions of the country. It inhibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified. The practice of so bearing them the legislative department of the government has determined to be wrong, or at least inconsistent with sound policy. So far, that department had a discretion in regard to the subject, over which the judiciary, as I conceive, has no control, and therefore, the duty of the courts must be the same, whether the policy of the law be good or bad. In either event it is binding, and the obligation of the courts to enforce its provisions, when legally called upon to do so, is imperative.
Id. at 27.
In the 1846 case of Nunn v. State, the defendant — who had been convicted for carrying a pistol in violation of Georgia’s Act of December 25, 1837 — challenged his conviction under the Second Amendment and Georgia’s analogous constitutional provision.
that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, ... it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void....
Id. at 251. Because the criminal charges had not specified the manner in which the defendant carried his pistol, the court reversed his conviction. Id.
Nunn plainly does not support the notion that bearing concealed weapons falls within the protection of the Second Amendment. It stands for precisely the opposite proposition. Nonetheless, the majority embraces Nunn as supporting other Second Amendment rights. It argues that, if those other rights are restricted, then the legislature could not prohibit concealed carry. However, Nunn does not say that. Its holding is that Georgia’s analogous constitutional protection of the right to bear arms did not include the right to carry concealed weapons.
Finally, in State v. Chandler, the Louisiana Supreme Court joined its counterparts
interfered with no man’s right to carry arms ... in full open view, which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.
Id. at 490 (internal quotation marks omitted). Eight years later, the Louisiana Supreme Court reaffirmed its holding, explaining that the state’s concealed-carry ban did not violate the Second Amendment because it “prohibit[ed] only a particular mode of bearing arms which is found dangerous to the peace of society.” State v. Jumel,
To be sure, there was at least one state high court whose voice was out of tune with this nineteenth-century chorus. In the 1822 case of Bliss v. Commonwealth, the Kentucky high court reversed the defendant’s conviction for carrying a concealed weapon (a sword in a cane).
But the reign of Bliss was short-lived in Kentucky. The ruling was met with disbelief by the Kentucky legislature. Indeed, “[a] committee of the Kentucky House of Representatives concluded that the state’s Supreme Court had misconstrued the meaning of the state’s constitutional provision on arms bearing.” Saul Cornell, The Early American Origins of the Modem Gun Control Debate: The Right to Bear Arms, Firearms Regulation, and the Lessons of History, 17 Stan. L. & Pol’y Rev. 571, 586 (2006) (citing Journal of the Kentucky House of Representatives 75. (Frankfort, Ky.1837)). It issued a stinging criticism of Bliss. Id. And Kentucky eventually amended its constitution specifically to overrule Bliss. See id. at 587; Ky. Const, of 1850 art. XIII, § 25 (“[T]he rights of the citizens to bear arms in de-fence of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms.”). As Professor Cornell concluded, the holding of Bliss was “bizarre and out of touch with mainstream legal and constitutional thinking in the early Republic.” Cornell, 17 Stan. L. & Pol’y Rev. at 586.
Bliss was clearly a judicial outlier. The courts in Buzzard, Reid, Aymette, and Nunn all considered Bliss’s conclusions and expressly rejected them. Nunn,
However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranq-uillity and the upright and independent administration of the government, but • also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.
In short, Bliss does not in any way alter the great weight of early-nineteenth century cases holding that carrying concealed weapons is conduct that falls outside the bounds of Second Amendment protection.
5
Post-Civil War Legislation and Commentary. Even though laws enacted after the Civil War were far removed from the Founding Era, the Heller Court found them instructive for discerning the Second Amendment’s nature.
By the latter half of the nineteenth century, most states had enacted bans or limitations on the carrying of concealed weapons. See Kachalsky,
Despite these widespread restrictions on the carrying of concealed weapons, legal commentators saw no Second Amendment violations. John Pomeroy wrote that the Second Amendment’s “inhibition is certainly not violated by laws forbidding persons to carry dangerous or concealed weapons.” John Norton Pomeroy, An Introduction to the Constitutional Law of the United States 152-53 (1868) (cited in Heller,
In his edition of Kent’s Commentaries, Justice Holmes noted a “great difference of opinion” among the state courts on whether prohibitions on carrying concealed weapons were constitutional. 2 James Kent, Commentaries on American Law *340 n.2 (Oliver Wendell Holmes, Jr. ed., 12th ed.1873) (cited in Heller,
George Chase, like Justice Holmes, concluded in The American Students’ Blackstone (1884) that concealed weapons bans were necessary to ensure public safety, and that they were widely deemed lawful: “[I]t is generally held that statutes prohibiting the carrying of concealed weapons are not in conflict with these constitutional provisions, since they merely forbid the carrying of arms in a particular manner, which is likely to lead to breaches of the peace and provoke to the commission of crime, rather than contribute to public or personal defence.” Chase, supra, at 85 n. 11 (cited in Heller,
John Ordronaux wrote that although “[t]he right to bear arms has always been the distinctive privilege of freemen,” the Second Amendment does not limit a state’s power to “enact[ ] laws regulating the manner in which arms may be carried. Thus, the carrying of concealed weapons may be absolutely prohibited without the infringement of any constitutional right.” John Ordronaux, Constitutional Legislation in the United States 241 (1891) (cited in Heller,
In addition to these commentators cited in Heller, the majority recognizes other commentators who concluded that the Second Amendment was not concerned with concealed carry. For example, Henry Campbell Black wrote simply that “[t]he right to bear arms is not infringed by a state law prohibiting the carrying of concealed deadly weapons.” Henry Campbell Black, Handbook of American Constitutional Law 463 (1895). And the editor of an 1897 edition of Blackstone wrote that “the right of carrying arms as secured by the U.S. Constitution, and generally by State constitutions, does not include the habitual carrying of concealed deadly weapons by private individuals.” 1 William Blackstone, Commentaries on the Laws of England 144 n.91 (William Draper Lewis ed., 1897).
6
Given this extensive history, it is not surprising that in 1897 the Supreme Court endorsed the view that carrying concealed weapons is not protected conduct under the Second Amendment. Robertson,
Most of our sister circuits that have considered the question have reached similar conclusions. In Drake v. Filko,
In Peterson, the Tenth Circuit considered a Second Amendment challenge to Colorado’s concealed handgun licensing re
Although the Second Circuit did not reach the question of the scope of the Second Amendment, it concluded that “state regulation of the use of firearms in public was ‘enshrined with[in] the scope’ of the Second Amendment when it was adopted” and that “extensive state regulation of handguns has never been considered incompatible with the Second Amendment.” Kachalsky,
D
In sum, employing the analysis prescribed by the Supreme Court, the answer to the historical inquiry is clear: carrying a concealed weapon in public was not understood to be within the scope of the right protected by the Second Amendment at the time of ratification. This conclusion is in accord with Heller* s recognition that there were “longstanding prohibitions” on firearms that were “presumptively lawful,”
III
Because the act of carrying concealed weapons in public is not protected by the Second Amendment, it is unnecessary to reach the second part of the Second Amendment inquiry. However, even if we were to assume that San Diego County’s good cause requirement implicates the Second Amendment, I would conclude that the San Diego County policy easily passes constitutional muster.
The‘second Chovan inquiry is whether the challenged government action survives means-end scrutiny under the appropriate level of review. Chovan,
The core of the Second Amendment right is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller,
Surviving intermediate scrutiny requires “(1) the government’s stated' objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Id. at 1139 (citing Chester,
The County argues that the good cause requirement helps protect public safety because it reduces the number of concealed firearms circulating in public. According to the County, reducing the number of guns carried in public ensures public safety by, among other things:
• Limiting the lethality of violent crimes. According to an expert declaration filed in support of the County’s motion for summary judgment, even though the general availability of guns may or may not influence the absolute number of violent crimes, when guns are used in such crimes it is much more likely that the crime will result in the death of the victim.
• Limiting the ability of criminals to legally take advantage of stealth and surprise.
■ Protecting police officers and ensuring their practical monopoly on armed force in public. According to the County, more than ninety percent of police officers who are killed in the line of duty are killed with guns.
• Limiting the danger to other members of the public. The decision to carry a concealed firearm in public exposes other people to increased risk of injury or death without their knowledge or control.
• Limiting the likelihood that minor altercations in public will escalate into fatal shootings.
The County presented data showing that the more guns are carried in public, the more likely it is that violent crimes will result in death and detailing the specific risks posed by concealed weapons.
Obviously, the Plaintiffs disagree with the efficacy of the policy to achieve these goals, and have marshaled evidence challenging conventional wisdom about the correlation between violence and the prevalence of handguns. But ours is not the forum in which to resolve that debate. Rather, we owe “substantial deference to the predictive judgments” of legislative bodies. Turner Broad. Sys. Inc. v. FCC,
The second inquiry in an intermediate scrutiny analysis is whether there is “a reasonable fit between the challenged regulation and the asserted objective.” Id. First, as the majority properly notes, California does not impose a complete ban on the carrying of concealed weapons in public. CaLPenal Code § 25400. A gun owner’s residence, place of business, and private property are exempt from § 25400. Id. at § 25605. Carrying a concealable firearm within a vehicle is not a crime if the firearm is within a vehicle and is either locked in the vehicle’s trunk or in a locked container. Id. at § 25610. Peace officers, retired officers, military personnel, and retired federal officers are permitted to carry concealed weapons. Id. at §§ 25450, 25455, 25620, 25650. Hunters and anglers may carry concealable firearms while hunting or fishing. Id. at § 25640. Section 25400 does not apply to transportation of firearms to or from gun shows or similar events, id. at § 25535, nor does it apply to people practicing shooting targets at established target ranges, whether public or private, id. at 25635.
Because of these exceptions, the California Court of Appeal concluded that California’s concealed carry statutes were “narrowly tailored to protect the public,” and did “not substantially burden defendant’s exercise of his Second Amendment right.” People v. Ellison,
Second, the San Diego County “good cause” permit requirement itself does not preclude all carrying of concealed weapons in public. It limits the risk to public safety by reducing the number of guns in public circulation, but allows those who will most likely need to defend themselves in public to carry a handgun. In this way, the licensing scheme is “oriented to the Second Amendment’s protections.” Kachalsky,
When viewed objectively, the San Diego County “good cause” policy easily survives intermediate scrutiny. The government has identified significant, substantial, or important objectives and provided a reasonable fit between the challenged regulation and the asserted objective. Therefore, even if the Second Amendment protection were extended to provide a
rv
Rather than employing the straightforward methodology prescribed by Chovan, the majority wanders off in a different labyrinthian path, both in its analysis of the Second Amendment right at issue and its analysis of the government regulation in question. In doing so, it conflicts with the instruction of the Supreme Court, the holdings of our sister circuits, and our own circuit precedent. It needlessly intrudes and disrupts valid and constitutional legislative choices. I must respectfully disagree with its approach.
A
The majority never answers the question as to whether carrying concealed weapons in public is protected under the Second Amendment. Rather, it engages in a broader circular inquiry. It first exceeds the bounds of Heller by determining that the Second Amendment protects at least some conduct outside the home. It then reasons that because the Second Amendment protects some conduct outside the home, states may not completely prohibit carrying handguns outside the home. The majority then examines the California regulatory scheme and concludes that, because California bans open carry in most public areas, it must allow concealed carry without the necessity of showing good cause. Therefore, it reasons, San Diego County’s “good cause” requirement must be unconstitutional.
1
The majority’s logical tapestry quickly unravels under close examination. If carrying concealed firearms in public falls outside the Second Amendment’s scope, then nothing — not even California’s decision to restrict other, protected forms of carry — can magically endow that conduct with Second Amendment protection.
An analogy to the First Amendment context illustrates this point. See Heller,
The same logic applies in the Second Amendment context. If certain conduct falls outside the scope of the Second Amendment, then restrictions on that conduct are valid, regardless of the regulatory landscape governing different activities. Chester,
Unsurprisingly, the majority does not— and cannot — cite any authority that supports its assertion. It claims that several nineteenth-century sources cited in Heller support its proposition. As I have discussed, those sources support no such proposition. In Chandler, the Louisiana Supreme Court explained that a concealed weapons ban “interfered with no man’s right to carry arms” under the Second Amendment, which it defined as the right to carry arms “in full open view.”
Although all the nineteenth-century cases cited by the majority cautioned against restrictions on the open carrying of weapons, none of them — except the discredited, outlier Bliss — suggests that restrictions on carrying concealed weapons implicate the Second Amendment. See Chandler,
The majority concedes that it is in conflict with the Second, Third, and Fourth Circuits in Drake, Woollard, and Kachol-sky. However, it insists that it is in accord with the Seventh Circuit’s decision in Moore. But Moore did not involve a challenge to the implementation of a “good cause” requirement to carry a concealed weapon in public. Rather, it was a direct challenge to an Illinois law banning almost all forms of carrying a loaded firearm outside the home and did not involve “narrower, better tailored restrictions” such as the one at issue here. See Moore v. Madigan,
2
The majority essentially concedes that the Plaintiffs’ challenge to San Diego County’s “good cause” policy fails unless we consider California’s regulatory scheme in its entirety. According to the majority, the Plaintiffs’ challenge “is not an attack trained on a restriction against concealed carry as such, or viewed in isolation.” Rather, the Plaintiffs “target[ ] the constitutionality of the entire scheme” of carry regulation in California. Indeed, if California did not restrict open carry, Plaintiffs would have no cause for complaint. And, of course, if California law permitted
Although the constitutionality of the entire scheme is at issue, the Plaintiffs did not name the State of California as a defendant, and the Plaintiffs have not complied with Fed.R.Civ.P. 5.1. Under that rule, if the state or one of its agents is not a party to a federal court proceeding, “[a] party that files a pleading ... drawing into question the constitutionality of a ... state statute must promptly” serve the state’s attorney general with notice of the pleading and the constitutional question it raises. Fed.R.Civ.P. 5.1(a). In addition, the district court must certify to the state’s attorney general that the constitutionality of the state statute has been questioned, and must permit the state to intervene to defend it. Fed.R.Civ.P. 5.1(b), (c); 28 U.S.C. § 2403. The rule protects the public interest by giving the state an opportunity to voice its views on the constitutionality of its own statutes. Oklahoma ex rel. Edmondson v. Pope,
Given the real essence of the Plaintiffs’ argument, they were required to comply with Fed.R.Civ.P. 5.1. They did not. If we are to consider the constitutionality of the entire California regulatory scheme, California should have been afforded an opportunity to defend it. And, to the extent that the majority strikes down the entirety of California firearm regulations, it should have stayed the mandate to permit a legislative response, as the Seventh Circuit did in Moore.
B
I must also respectfully disagree with the majority’s analysis of the government regulation at issue, which directly conflicts with our circuit precedent in Chovan.
1
The majority acknowledges that we, like our sister circuits, employ a sliding-scale approach, where the level of scrutiny we apply to a challenged law depends on how severe a burden the law imposes on the “core” of the Second Amendment guarantee. Chovan,
Despite whatever pedigree the majority claims for this alternative approach, we
The majority suggests that the Heller Court rejected any means-ends scrutiny when it rejected Justice Breyer’s “interest-balancing inquiry.” See
The majority’s new alternative approach to establishing the appropriate level of scrutiny is unsupported in Supreme Court precedent and is in direct conflict with our Circuit’s precedent and the approach taken by our sister circuits.
2
The majority also errs in its alternative intermediate scrutiny analysis. The majority acknowledges the Chovan second step inquiry as to whether the government policy is a reasonable fit between the challenged regulation and the asserted objective. But, rather than applying that analysis, it substitutes the demanding and inappropriate least restrictive means test.
There is no support for the application of a least restrictive means test in Chovan, and our sister circuits have repeatedly and emphatically recognized that, in this context, intermediate scrutiny does not require the least restrictive means available. See Masciandaro,
The majority also rejects Turner Broadcasting’s, admonition to afford “substantial deference to the predictive judgments” of legislative bodies, Turner Broad. Sys. Inc. v. FCC,
However, “[i]n the context of firearm regulation, the legislature is ‘far better equipped than the judiciary’ to make sensitive public policy judgments.” Kachalsky,
Turner Broadcasting itself provides a sound rejoinder to the majority: “Even in the realm of First Amendment questions where Congress must base its conclusions upon substantial evidence, deference must be accorded to its findings as to the harm to be avoided and to the remedial measures adopted for that end, lest we infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.” Turner,
Finally, the majority derides the good cause requirement as nothing more than an arbitrary, overbroad rationing system. In fact, the record supports the opposite conclusion. The County does not randomly allocate concealed-carry licenses to people regardless of need. Instead, it makes the best prediction possible of who actually needs firearms for self-defense, and grants concealed-carry licenses accordingly.
IV
A careful examination of the narrow questions before us can only lead to the
I respectfully dissent.
. Compare Moore v. Madigan,
. In post-Heller jurisprudence, nearly every other circuit that has addressed this question has similarly identified the Second Amendment's core guarantee as the right of responsible, law-abiding adults to possess usable firearms in their homes. See Kachalsky v. Cnty. of Westchester,
. See Act of Mar. 25, 1813,
. "See Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67-68; Act of Apr. 1, 1881, ch. 96,
. As the majority observes, the Supreme Court rejected Aymette's conclusion that the Second Amendment enshrined only a militia-centered right. Heller,
. The majority also claims that a later Georgia case, Stockdale v. State,
. We are not alone in this application. Other circuits that have considered a restriction similar to the good cause requirement have applied intermediate scrutiny. See Woollard
. Carrying a concealable firearm is permitted in a number of other circumstances. See generally id. at §§ 25450-25650.
. See New York v. Ferber,
. Indeed, the California State Sheriffs Association, the California Police Chiefs Association, and the California Peace Officers Association note in their amicus brief that the diversity of communities and regions in California warrants the exercise of discretion by chief law enforcement executives to determine, in the context of the issues presented in their jurisdiction, the circumstances under which a concealed gun permit should issue.
. I would also reject the Plaintiffs’ alternative equal protection claims. Their first claim is merely an attempt to bootstrap an equal protection argument to their Second Amendment claim, so it is more appropriately analyzed under the Second Amendment. Cf. Al-bright v. Oliver,