Edward Peruta v. County of San Diego

most involved converted was Spears which Laxson; PERUTA; Michelle Edward crack cocaine into cocaine.4 powder of its Buncher, Dr.; Dodd; Leslie James kilograms? “most” of is But what Cleary; Rifle and Mark California ques- answer that did not sentencing court Foundation, Plain- Pistol Association unnecessary to tion, it was because tiffs-Appellants, nec- imposed.5 the court sentence the struc- finding, given quantity essary v. time, was the at the Guidelines ture of the DIEGO; D. William COUNTY OF SAN kilograms at least 1.5 finding that court’s individually capacity Gore, his Thus, the involved. cocaine were of crack Sheriff, Defendants-Appellees, as findings did sentencing court’s factual kilograms 8.4 definitively Spears link with California, Intervenor. State of base. of cocaine Richards; Adam sum, statuto- straightforward under Foundation, Foundation; Calguns jurisdic- court had analysis, the district ry Inc.; Stewart, Plaintiffs-Appel- Brett 3582(c)(2) modify § 18 U.S.C. tion under lants, I would Consequently, Spears’ sentence.6 court for the district remand reverse and as to whether discretion exercise its County Yolo, Prieto; Ed I, reduced. should be sentence Spears’ Defendants-Appellees. therefore, dissent. respectfully 10-56971,No. 11-16255 No. Appeals, Court of

United States Circuit. Ninth En Banc June Argued and Submitted Francisco, California 2015 San 9, 2016 Filed June Although he Spears’ counsel. 5. Neither did majority quibbles that this statement 4.The out, conspiracy majority points acknowledged, about “was a statement Maj. Op. But the Cadillac- general.” 915-16, at 915. the Cadillac-load Maj. Op. at refers to which this statement load of cocaine cocaine,” he cooked into crack cocaine "was heart very which is at the same cocaine is the much of it was cooked address how does not Moreover, quantity this drug issue. crack; thus, sentencing argument at his into cast in never contradicted or statement Report the Presentence does not contradict Report. To the Presentence doubt later in reiterate, powder [con- was cocaine [the] that "most of finding only quantity made into verted] 'crack'.” Report, adopted which Presentence 3, supra, sentencing judge, see footnote sentencing court should exer- Whether 6. Spears' conduct “In case relevant is that: this 3582(c)(2) § to re- under cise its discretion kilograms of cocaine more than 1.5 includes entirely different Spears' duce sentence base, of 38.” resulting in a base offense level ¶ PSR, question. (ar- In 10-56971: Paul D. Clement No. D.C.; PLLC, Washington, Bancroft gued), Neuharth, Neuharth, Jr., Paul Henry Paul California; Jr., APC, D. Diego, Carl San McRoberts, Michel, A. Bra- Sean S. Glenn Ross, Associ- K. Michel & dy, and Bobbie California, Beach, ates, P.C., for Long Plaintiffs-Appellants. (argued), DuMont Solicitor

Edward C. Brown, General; Deputy Gregory David Woods, General; Douglas J. Sen- Solicitor General; Anthony Attorney ior Assistant General; Hakl, Attorney Mark Deputy R. Attorney Deputy Beckington, Supervising Harris, Attorney Gen- General; D. Kamala California; Office of eral of California. Francisco, General, San Califor- Attorney nia; for Intervenor. Counsel, County Eastman, Chapin, Caso, Office of T. Anthony

James John C. Counsel, California, County Diego, San Lugo, for Karen J. for Center Constitutional Defendants-Appellees. Jurisprudence, California, Orange, for Am- ici Curiae Center for Constitutional Juris- Alan (argued), 11-16255: Gura No. prudence, for Responsible Doctors Gun PLLC, Alexandria, Possessky, Gura & Vir- Ownership, and Law Enforcement Alliance Kilmer, Jr., Law ginia; Donald Offices of America. Jose, Kilmer, California; San Donald Kates, Associates, P.C., Don Michel & Plaintiffs-Appellants. Ground, Washington, Battle for Amici Cu- (argued), A. Peter D. John Whitesides riae The Gun Owners of California and Halloran, Warner, Angelo, and Serena M. H.L. Richardson. Kilduff, Sacramento, California, Kilday & O’Hanlon, Neil R. Hogan Lovells US Defendants-Appellees for Ed Prieto and LLP, California; Angeles, Los Jonathan County of Yolo. Diesenhaus, Levin, L. Adam K. James W. Tahmassebi, Fairfax, B. Virginia; Stefan Marshall, Clayton, Kathryn and Linde Ho- Halbrook, Fairfax, Stephen Porter Virgi- gan LLP, D.C., Washington, Lovells US nia; Congress for Amicus Curiae of Racial for Amici Brady Curiae Center to Prevent Inc. Equality, Violence, Gun The International Brother- Ohlendorf, Patterson, John D. Peter A. Officers, hood of Police and The Police Thompson, David H. and Charles J. Coo- Foundation. Kirk, PLLC, per, & Cooper Washington, A. John Whitesides and M. Serena War- D.C., for Amicus Curiae National Rifle ner, Angelo, Kilday Kilduff, Sacramento, & America,

Association of Inc. California, for Amici Curiae Edward G. Peterson, Prieto County Dan and of Yolo. M. Dan M. Peterson PLLC, Fairfax, Virginia; David B. Kopel, Lau, Girard D. Solicitor General of Ha- Institute, Independence Denver, Colorado, waii; Kimberly Guidry, Tsumoto First for Amici Curiae International Law En- General; Deputy Solicitor T. Ta- Robert forcement Educators and Trainers Associ- katsuji, General; Deputy Depart- Solicitor ation, Law Enforcement Legal Defense General, Honolulu, ment of the Attorney Fund, Network, Law Enforcement Action Hawaii; for Amicus Curiae State of Ha- and Law Enforcement Alliance of America. waii. Frankel, Choe,

Simon Samantha J. Ste- Coble, Jee, Paul R. Krista MacNevin Sassman, Ryan Buschell, ven D. and M. Touchstone, James R. and Martin Joel LLP, Covington Burling, Francisco, & San Mayer, Mayer, Fullerton, Jones & Califor- California, for Amici Legal Curiae Com- nia, for Amici Curiae California Police munity Against Violence, Major Cities Association, Chiefs’ California Peace Offi- Association, Chiefs Association of Prose- Association, cers’ and California Sheriffs’ cuting Attorneys, Gascón, George San Association. Francisco District Attorney, and Law Cen- Stephen Duvernay M. Bradley and A.

ter to Prevent Gun Violence. Benbrook, PC, Benbrook Group, Law Sac- Gura, PLLC, ramento,

Alan Gura & Possessky, California, for Amici Curiae Fire- Alexandria, Virginia, Coalition, for Amici Policy Inc., Curiae Sec- Poli- Firearms Foundation, Inc., ond Foundation, Inc., Amendment Calguns cy California Association Foundation, Inc., Richards, Licensees, Inc., Adam of Federal Firearms Pink Pistols, Brett Stewart. America, Rights Gun Across Lib- Ramona, California, Connelly, Association, Michael Madison So- Gun Owners eral Foundation, Founda- Amicus Curiae U.S. Justice for Inc., Hawaii Defense ciety, tion. Inc., Carry, Knife Illinois Carry, Florida Foundation, Inc., and Second Rights Taylor Deepak Gupta, Jonathan E. Plaintiffs.

Amendment D.C., PLLC, for Washington, Gupta Beck Beach, Nichols, Safety. Cali- Everytown Redondo for Gun Curiae Amicus Charles Right fornia, California for Amicus Curiae PLLC, Jensen, D. David Jensen David Carry. York, York, for Amici Curiae New New Mandeville, Koukoutchos, Loui- Association, Brian S. York Rifle & Pistol State New Pistols, siana, Pink Wom- Amici Curiae for & Jersey Rifle Pistol New Association Control, Inc., and Second Against en Gun Clubs, Second Amend- Commonwealth Sisters. ment, League, Action Gun Owners’ Association. Maryland State Rifle & Pistol Stephen D. Pierce and Peter Thomas Gershon, Richards, Los Lee, & Watson Goldstein, McNelly & Gold- Jonathan S. California, for Amicus Curiae Angeles, LLC, Hatfield, stein, Pennsylvania, Cities. League California States Sheriffs’ As- Amici Curiae Western Christianson, sociation, Sheriff Adam Oldham, Deputy General S. Andrew Mims, Margaret Lopey, Jon Sheriff Sheriff Blackloek, Counsel; General D. James Hencratt, Bosenko, David Tom Sheriff Austin, Governor, Counsel; of the Office Durfor, All- Thomas Steven Sheriff Sheriff Amici of Tex- Texas; for Curiae Governors Robinson, man, Scott David Sheriff Sheriff Louisiana, Maine, Mississippi, Okla- as, Jones, Haney, John Bruce Sheriff Sheriff homa, Dakota. and South Larry Sheriff D’Agostini, Retired Solicitor Gener- Talley, Deputy J. Brett Jones. General; Brasher, al; L. Solicitor Andrew Kilian, Grange, La Califor- Brandon M. General; Office Strange, Attorney Luther nia, Madison Soci- for Amicus Curiae The Alabama, Mont- Attorney General of Inc. ety, Alabama; Ala- for Amici Curiae gomery, Idaho, Arkansas, Florida, Alaska,

bama, Of- Vogler, Vogler Law Michael John Louisiana, Michigan, Kansas, Kentucky, California, Pasadena, Amicus fices, pro se Nevada, Montana, Dako- Missouri, North Curiae. Carolina, ta, Ohio, Oklahoma, South South THOMAS, Chief R. Before: SIDNEY Utah, Dakota, Texas, Virginia, and West PREGERSON, HARRY Judge and Wisconsin. SILVERMAN, P. SUSAN BARRY G. Olson, Morgan, L. Jeremiah Robert J. McKEOWN, GRABER, M. MARGARET Olson, Miles, and Her- William J. John S. FLETCHER, A. RICHARD WILLIAM Olson, P.C., Titus, Vi- William J. bert W. CALLAHAN, PAEZ, M. CONSUELO A. enna, Curiae Gun Virginia; for Amici BEA, T. N. RANDY SMITH CARLOS Inc.; America, Gun Owners Owners OWENS, Judges. B. Circuit and JOHN Foundation; Foundation; U.S. Justice and Edu- Institute for Research Lincoln GRABER; by Judge Concurrence cation; Lincoln Foundation The Abraham CALLAHAN; Judge Dissent Research, Inc.; Policy Policy for Public Center; on the Consti- Analysis Institute SILVERMAN; Judge Dissent tution; Defense Legal and Conservative by Judge SMITH Dissent N.R. Fund. and Education OPINION good county’s establish cause under his Peruta, Richards, policy. and the other FLETCHER, Judge: W. Circuit plaintiffs Diego residents of San —five law, a Under California member of the Counties, Yolo gun- as well as several general public a concealed rights organizations brought sepa- two — unless, weapon he or she has been rate suits challenging under the Second issued a license. An for a applicant license Amendment the two interpreta- counties’ satisfy must a number of conditions. tion and application statutory good Among things, applicant other must requirement cause under California law. “good cause” to show The district granted summary courts county firearm. California law authorizes case, judgment holding each publish policies sheriffs to establish and policies counties’ do not violate the Second defining good cause. The sheriffs of San Amendment. Cty. Diego, Peruta v. San Diego published and Yolo policies Counties (S.D. 2010); F.Supp.2d Cal. defining good requiring particu- cause as Yolo, Cty. Richards v. 821 F.Supp.2d why applicant larized reason needs a (E.D. 2011). Cal. A divided three- concealed firearm for self-defense. judge panel of this court reversed both Appellants, who live in Diego San panel majority decisions. The held in a Counties, allege they Yolo wish to published opinion Peruta that San Die carry concealed in public firearms for self- go’s policy violated the Second Amend defense, they but that not satisfy do ment. Cty. Diego, See Peruta v. San good requirements cause in their counties. id., (9th 2014); F.3d 1144 Cir. see also They contend that their counties’ defini (Thomas, J., dissenting). Although good tions of cause violate their Second challenged only county’s Plaintiffs con to keep and bear arms. policy, panel firearms held that They particularly rely on the Supreme challenge their should not be “viewed in Court’s decisions in District Columbia of Rather, isolation.” in panel the view of the Heller, 570, 2783, v. 554 U.S. 128 S.Ct. 171 majority, Plaintiffs’ suit should be viewed (2008), L.Ed.2d City 637 v. McDonald challenge as a constitutionality “the of 742, Chicago, 561 U.S. 130 S.Ct. of [statutory] [California’s] entire scheme.” (2010). 177 L.Ed.2d 894 view, Id. at 1171. In majority’s We hold that the Second Amendment required Second Amendment that “the preserve does not or protect a of a permit states carry some of for self- form general member of the defense outside the home.” Id. at 1172 public. concealed firearms in (emphasis original). in Because California’s statutory permits scheme I. History Procedural only upon showing of good cause and Plaintiff restricted, Edward Peruta lives in Di- open carry San because is also ego County. applied He for a panel license to county’s held that the definition of carry a February concealed firearm in good cause for a license 2009, but application his was denied be- violates the Second Amendment. Id. at cause he not good that, had shown cause under panel 1179. The held in in Richards the policy published in county. light Peruta, his Plaintiff holding of its the Yolo Adam Richards County. County lives Yolo He policy also violated the Second sought a to carry Prieto, license a concealed fire- Amendment. See v. Richards 560 arm in May (9th 2014); but was told he Fed.Appx. not 681 Cir. see also id. eo.uld However, excep- are numerous J., judg- there (Thomas, concurring at 682 For general prohibitions. tions to these ment). §§ example, prohibitions of 25400 and sheriff, Prieto, Ed County and its Yolo apply not to active and 25850 do retired rehearing en banc for petition filed §§ 25900. “peace officers.” Id. sheriff, County’s Wil- Diego San Richards. apply § not prohibition of 25400 does not Gore, that he would announced liam messengers or of common carriers guards rehearing en banc in Peruta. petition or institutions while em- of banks financial peti- to file a Gore declined After Sheriff things of of ployed shipping value. in- tion, of California moved the State § §of prohibition Id. 25630. The to seek rehear- Penda order tervene in guards, vehicle apply does not to armored three-judge The same divided ing en banc. carriers, guards messengers or of common motion to inter- panel denied California’s institutions, security or banks financial Diego, 771 Cty. v. San vene. See Peruta of officers, zookeep- animal control or guards, (9th 2014); at 576 see also F.3d 570 Cir. id. ers, they completed ap- have provided (Thomas, J., dissenting). training. in firearms Id. proved course en banc in both rehearing granted We 26015, 26025, §§ 26030. Diego, 781 Cty. v. San cases. Peruta (9th 2015); v. Cir. Richards F.3d Further, § prohibition of 25400 does (9th 2015). Prieto, F.3d 417 Cir. or apply to licensed hunters fishermen engaged hunting fishing, or while Review Standard of II. target shooting members of clubs while on a district court’s ranges, transportation We review or to the target de San summary judgment going novo. while to or re- grant unloaded firearms Cty. Diego, hunting fishing expedi- San F.3d from turning chez v. (9th 2006). §§ review constitu target ranges. Cir. We tions or Id. Am. questions transportation tional de novo. Acad. it apply Nor does 1099, 1103 Joseph, safety hunting 353 F.3d from a Mgmt. Pain a firearm to and (9th 2004). event involv- sporting Cir. class or a recognized firearm, ing transportation between Regulation

III. Firearms California private and business or person’s residence possessed by per- statutory property owned or a multifaceted California has son, transportation between a gen- or to busi- regulating firearms. State law scheme purpose for the private ness or residence carrying fire- erally prohibits concealed sale, loan, transfer of repair, or or unload- of lawful public, in whether loaded 25520, 25525, §§ Id. 25530. § law the firearm. Penal Code 25400. State ed. Cal. § apply of 25850 does not prohibition The prohibits carrying loaded generally also firearm at having a a loaded his person in a person on the or vehicle firearms residence, temporary street, including a or her place any public or on any public § Nor campsite. Id. 26055. a residence or incorporated city “prohibited an or either a person having a loaded territory.” apply Id. does it “unincorporated area” of or place her of business firearm at his or Finally, generally pro- § law 25850. state § property. Id. private on his or her 26035. handguns openly unloaded carrying hibits apply person to a “who a It also does not public place in a person on the or or any person that street, city reasonably believes incorporated an either immediate, property any person of is “unincorporat- “prohibited or a area” of carrying of the danger that the grave § county.” a Id. 26350. ed area of necessary preservation for the weapon policy summarizing written provisions” 26150(a) 26155(a). § property.” §§ or Id. 26045. of person § of that Id. 26160. persons apply using target Nor does it Pelowitz, An Manag- affidavit of Blanca practice, or to members of ranges for Diego er of the San Department Sheriffs hunting prem- while on the shooting clubs Division, License describes the definition § Finally, clubs. Id. 26005. ises of the good Diego of cause in County: San §§of 25850 and prohibitions Good Cause ... is defined this apply'to transportation do not of firearms County to’be a set of circumstances locations, provided authorized between distinguish applicant from the main- the firearm is unloaded and in a stream and causes him or her to be container, locked and that the course of placed in way. Simply harm’s fearing for no unreasonable travel has deviations. Id. personal safety one’s alone is not consid- § 25505. good ered cause. This criterion can be general The case before us concerns applied .to personal situations related to § prohibition against protection as well as those related to loaded or unloaded weapons, concealed individual occupations. businesses or exception pro- license-based to that Good cause is also evaluated on an § prohibition The hibition. does individual basis. applicants Reasons re- not apply to those who have issued been quest a license will fall into one of ... licenses to weapons. Id. general four categories!!] county § The sheriff of a issue general categories The two potentially person upon license to a appeal relevant to this are: proof following: of all of the = Category 2 Only Personal Protection (1) applicant The of good moral char- threats, includes: documented restrain- acter. ing orders and other related situations (2) Good causé exists for issuance of the applicant .where an can demonstrate license. they specific are a target at risk. (3) applicant The is a resident of the = Category 4 owners/employ- Business county city within county, or the ees includes a diversity of & businesses applicant’s principal place employ- occupations, doctors, attorneys, such as ment or county business is or a CEO’s, managers, employees and volun- city within the county applicant and the teers occupation whose or business spends a period substantial time places at high them risk of harm. place employment or business. published policy of County Yolo (4) applicant completed has does not define “good gives cause” but training course of as described Sec- examples does, good where cause tion 26165. not, policy provides does exist. The 26150(a). § Id. The chief of a municipal follows: police department may issue a concealed Examples of request valid reasons to a carry comparable criteria; license under include, permit but are not limited to: only the difference is that the applicant Victims of violent crime docu- and/or must abe “resident of that city.” Id. mented threats of violence. 26155(a)(3) 26155(a), (residence). §§ Sher- municipal police iffs and chiefs are re- carry Business owners who large quired “publish to and make available a sums of cash or valuable items. they only against weapons, and seek relief work all hours owners who Business requiring good cause for such likely policies to en- the areas and are in remote Notably, do contend permits. Plaintiffs not people and situa- dangerous counter free-standing there tions. carry Amendment to concealed fire- request to invalid reasons

Examples o[f] arms. include, not limited to: but are permit in areas. Recreation remote question do not reach the whether We Hunting fishing. protects Amendment some the Second fami- protection protection Self ability carry public, firearms in such as (without threats of vio- ly credible open by That left open carry. question was lence). Heller, and we have Supreme the Court field, i.e., security in the Plain- Employment need to answer it here. Because no pro- body guard, VIP security guard, challenge only policies governing con- tiffs carry, question tection. we reach cealed protects, Amendment whether the Second safety job conditions due Personal ability con- any degree, placed applicant on the or duties on the public. cealed firearms Based employer. their of historical overwhelming consensus Amendment IV. Second sources, protection that the we conclude Carry Concealed the Second Amendment —whatever may simply scope protection of that cause good Plaintiffs contend be— of con- does not extend inter- carry, as requirement for members of firearms the sheriffs of San policies in the preted public. general Counties, the Sec- Yolo violates Diego and arguments Plaintiffs’ ond Amendment. may Amendment The Second particulars, differ in some the two cases of a degree, protect, some as follows. they essentially proceed but general public member First, the Second they contend But the existence vel public. firearms at least some abil- guarantees Amendment scope of such right, of such a non public to general a member of the ity of independent right, separate are from and Second, they con- public. firearms here. We hold question presented con- restrictions on tend that California’s Amendment there is no Second only that firearms, taken open carry of cealed and general public right for members of Third, the Amendment. together, violate in public. firearms carry concealed that there would be sufficient they contend firearms to public carry opportunity A. Heller and McDonald good if the cause satisfy the Amendment “A provides: inter- The Second carry, for concealed requirement Militia, necessary to being Diego regulated and well sheriffs of San preted by the State, Therefore, security of a free Counties, were eliminated. Yolo Arms, shall and bear contend, people cause re- good the counties’ they Const, II. amend. infringed.” U.S. carry violate the not be for concealed quirements interpreting The watershed case their ar- Plaintiffs base Amendment. While Columbia is District stat- Amendment entirety of California’s gument on Heller, 128 S.Ct. scheme, they 554 U.S. they allege only that utory (2008). plaintiff Heller The carry concealed L.Ed.2d 637 permits to sought have 928 District of Columbia statute er

challenged purpose. and for whatever For exam- entirely possession ple, majority 19th-century banned the of the the home, question courts to required in the consider the held that handguns prohibitions ca'irying on firearm in the home be “disas- any lawful by were under the Second trigger or bound lock-at all sembled lawful See, analogues. Amendment or state times, rendering inoperable.” it Id. at Chandler, e.g., La.Ann. State at 489- S.Ct. (1850)]; State, Nunn v. 1 Ga. at 251 [ Relying phrase on the “shall not be in- (1846)]; Kent, generally see [ [Com- fringed,” Court Heller viewed the the (0. mentaries on American Law Holmes having pre-ex- “codified a Amendment 1873)] ed., *340, n.2; 12th ed. The at isting right.” Id. 128 S.Ct. 2783 American Students’ Blackstone n.ll original). The (emphasis Court focused (G. 1884). Chase ed. history leading adoption to the on the 626-27, Id. at (emphasis S.Ct. 2783 Amendment, and on the common un- the added) (some omitted). citations derstanding of the Amendment in. At the end of opinion, its the Court years following adoption. its The Court again emphasized scope the limited of its “pre-existing right” concluded that holding, and underscored the tools preserved by arms keep and bear Sec- remained available to the District of Co- in part ond Amendment was an individual regulate Referring lumbia to firearms. self-defense, right personal not confined just reader back to the passage quoted, purpose maintaining well-regu- the Court wrote: militia. The Court struck lated down the statute, challenged concluding that The Constitution leaves the District of variety Columbia a preserves right Amendment of mem- of tools for combat- ing violence], general public problem handgun th[e] bers of the and bear [of including some measures purpose regulating their homes for the 626-627, handguns, supra see at hold and n. self-defense: that the District’s “[W]e 26,128 S.Ct. 2783. handgun possession ban on in the home Amendment, violates the Second as does 636,128 Id. S.Ct. 2783. against prohibition rendering any

its law- open question Heller left whether ful firearm in the home operable for the the Second applies regula purpose immediate self-defense.” Id. at tion of firearms states and localities. 635,128 S.Ct. 2783. question Court answered the two later, The Court Heller was careful to limit years v. City McDonald Chica the scope holding. particular of its Of in- go, 561 U.S. 130 S.Ct. here, terest the Court (2010), noted that the Sec- holding L.Ed.2d 894 that the Due ond Amendment has not been generally Process Clause of the Fourteenth Amend protect right understood incorporates ment the Second Amendment. concealed firearms. The Court wrote: part, substantial the Court based its holding on understanding of a “clear rights,

Like most secured majority” of the states when the Four the Second Amendment is not unlimit- teenth Amendment adopted. was ed. through From Blackstone the 19th- Court wrote: cases, century commentators and courts routinely explained that majority A clear of the States in 1868 not a to keep carry any weap- '... recognized to keep and in any whatsoever manner whatsoev- being among bear arms as the founda- 1299, In I necessary system to our Edward directed the sheriffs of rights tional Shalop prohibit anyone Safford and Government. “going from armed within the realm with- sum, it clear that the Framers In king’s special out the licence.” 4 Calendar Amend- and ratifiers of the Fourteenth Rolls, I, 1296-1302, Of The Close Edward counted the and bear ment (H.C. 15, 1299, (Sept. Canterbury) at 318 among rights those fundamental 1906). ed., later, necessary system Maxwell-Lyte years to our of ordered lib- Five 1304, erty. in I Edward ordered the sheriff of Leicester prohibition enforce his 777-78,180 Id. at S.Ct. 3020. “any knight, esquire or person other from Right Keep B. Second Amendment going any way ... in armed without the and Bear Concealed Arms king’s licence.” 5 Calendar Of The Close analyzing meaning In of the Second (June Rolls, I, 1302-1307, Edward at 210 Amendment, in Supreme Court Heller (H.C. 10, 1304, ed., Stirling) Maxwell-Lyte analy- and McDonald treated its historical 1908). in sis as determinative. The Court Heller 1308, In II Edward ordered the town of Amendment, origi- held that the Second knight, Dover to ensure that “no esquire, nally adopted, pre-existing “codified a ... at go Croydon other shall armed right,” 554 U.S. at 128 S.Ct. 2783 king’s elsewhere before the coronation.” 1 omitted), (emphasis “right inherited Rolls, II, Calendar Of The Close Edward ancestors,” English our id. at from (Feb. 1307-1313, Dover) 9, 1308, at 52 (internal quotation 128 S.Ct. 2783 marks (H.C. 1892). ed., Maxwell-Lyte In he omitted). held, in McDonald Court issued a similar order to the sheriff further, “pre-existing right” this York, demanding prohibit that the sheriff incorporated into the Fourteenth Amend- “earl, baron, any knight, or other” from ment, part based substantial on the (Mar. 20, 1310, going armed. Id. importance right by attached Berwick-on-Tweed). later, years Two majority” In “clear of the states. deter- II Edward ordered sheriffs mining whether the Second Amendment weap- and Leicester to seize the Warwick protects a concealed any “go special ons of armed” without

weapon public, engage we the same (Oct. permission king. from the Id. at 553 inquiry historical as Heller and McDonald. Windsor). 12, 1312, early prohibi- These seen, history As will be relevant tions, targeting particular towns and coun- both the Second Amendment and its incor- ties, actors, particular foreshadowed a poration the Fourteenth Amendment general nearly more dec- proclamation two lead to the same conclusion: The later, prohibited Edward II ades which general public member “throughout King’s] “any realm” one [the not, firearm in going King’s] armed without licence.” [the been, protected by never has the Second Rolls, II, 4 Calendar Of The Close Edward Amendment. 28, 1326, 1323-1327, (Apr. at 560 Kenil- History Relevant to the worth) (H.C. 1892). ed., Maxwell-Lyte III, Parliament under Edward Right England a. to Bear Arms Northampton, enacted the Statute expanded version of Edward II’s earlier England to bear arms in has long subject regulation. prohibition. provided been to substantial The Statute small, presence justices in of nor of what Condi- kets or elsewhere great no Man ... be, etc. except King’s the he tion soever presence, in his and his Minis- Servants Rolls, II, 3 Calendar Of The Close Richard King’s Precepts, the executing in of ters 1385-1389, 16, 1388, (May at 399^00 Office, in and such as be their or of their Westminster) (H.C. ed., Maxwell-Lyte assisting them ... be so har- Company 1914). later, half-century Henry A VI is- Justices, King’s come before the or dy order, reminding sued a similar his sub- King’s doing Ministers their other of jects of the arms, office, bring with force and nor no published parliament statute in the hol- affray peace, go in of the nor to force in 2 Norhampton den at Edward [sic] by day, nor in night nor ride armed III, wherein it contained that no man Markets, Fairs, in of presence nor of whatsoever estate or condition shall Ministers, in armed, or other nor the Justices in go power lead an armed elsewhere, upon pain to forfeit part peace, pass no of the or ride or breach fairs, King, by day night Armour to the and their in their armed or markets jus- King’s pleasure. presence Prison at the or elsewhere in the of the Bodies to tices, the-king’s ministers or others un- (1328). 3, c. 3 The Statute of 2Edw. pain losing der of his arms and of im- Northampton would become the founda- prisonment king’s at the will.... in regulation England tion for firearms for Rolls, VI, Henry 4 Calendar Of The Close the next several centuries. See Patrick J. 1441-1447, 12, 1444, (May at 224 Westmin- Charles, Faces Amend- The the Second ster) (A.E. 1937). ed., Stamp History Home: ment Outside the Versus Carpenter’s John The White Book Review, Ahistorical Standards 60 Clev. City Eng- published London 1419-— (2012) 1, (describing L. 7-36 St. Rev. land’s first common law treatise —docu- En- Northampton, Statute of as well as authority continuing mented the glish regulation firearms before and after Northampton. Statute of narrow ex- With statute). adoption wrote, man- ceptions, Carpenter the law Northampton widely The Statute one, dated that “no of whatever condition example, enforced. In Richard II be, go city he armed in the said or in the Scardburgh issued to the bailiffs of an suburbs, arms, by day or or night.” Liber Albus: The White Book Of imprison to arrest and until fur- [o]rder City (Henry London 335 Thomas Of ther order for their deliverance all those 1861). ed., Riley going who shall be found armed within town, leading an mak- power, king, armed under the second Tudor assemblies, VIII, ing doing aught Henry unlawful or Parliament enacted a statute whereby peace may else stop be broken “shamefull murthers roberies felo- people put § and the ... nyes ryotts fear as and routs.” 33 Hen. c. (1541-1542) lately published Northampton (Eng.). statute The statute limited among other it things gun ownership wealthy is contained that to the who —those no man of whatsoever estate or condi- annuityes “have lands tents rents fees or Offices, appear yearley tion shall be bold to armed be- value of one hun- (1541- justices 6, § fore king’s per- or ministers dred Pounds.” 33 Hen. c. 1542) office, formance of their (Eng.). particular importance lead armed Of us, peace, go force breach of the or now ex- ride case before statute by day night everyone, armed or mar- pressly including fairs and forbade owning policie straitly conceal- of this Realme wealthy, from forbidden concealed) (not merely weapons, carying danger such as with it inevitable able handguns hag- desperate persons.... and little the hands of “little shorte butts,” lengthe of one guns “not of By I: King James A Proclamation demyhake hagbutt whole Yarde or be- (Lon- Against The Use Of Pocket-Dags inge lenghe quarters not of the of thre don, 1613) Barker, Robert (emphases add- Schwoerer, Id.-, Yarde.” see Lois G. To ed). later, years Three James I issued English Hold and Bear Arms: The Per- proclamation another similar to Elizabeth 27, 76 L. Rev. 35-37 spective, Chi.-Kent I’s, sale, banning wearing, carry- and (2000-2001) (discussing the 1541 statute of “Steelets, ing pocket Daggers, pocket of laws). Henry and related VIII Pistols, Dags and which are ut- defence, terly unserviceable for Militarie later, I half-century A Elizabeth contin- use, practise, odious, or other lawfull but prohibition against ued her father’s con- murther, noted Instruments of and and. weapons. proclamation She issued a By mischiefe.” King The James I: A Proc- emphasizing in 1594 the Statute of Steelets, Against lamation Pocket Dag- Northampton prohibited just “open gers, Pistols, Dagges reprinted Pocket and carrying” carry- but also the weapons, of 1 Royal Stuart Proclamations 359-60 secretly “a ing of device have small (James F. Larkin Hughes eds., & Paul L. commonly Dagges, pocket Dags.” called 1973). Quenne A By The Elizabeth I: Proclama- Against Carriage Dags,

tion of and 1600s, In Knight’s the late Sir John Reformation of Other Great Some Disor- Case, England’s Attorney charged General 1594). (London, Barker, Christopher ders Knight violating John with the Statute of later, years “all Six she ordered Justices of Northampton by “walking] about Peace” to enforce the Statute “accord- guns.” Eng. Rep. streets armed with 87 ing meaning to the true intent and (K.B. 1686). clarifying After that “the same,” prohibition which meant a on the meaning of of Northampton] [the Statute ... “car[r]ying and use of Gunnes and punish people go was to who armed to Pistols, especially Birding pieces, of and id., terrify King’s subjects,” the Chief pieces other short and shot” that small because, acquitted Knight, Justice but easily By Quenne could be concealed. official, government as a he exempt Prohibiting Elizabeth I: A Proclamation prohibition. from the statute’s Cariage Dagges, Birding The Use And Of Lord Coke described the Stat- Pieces, Gunnes, Contrary And Other To Northampton providing ute of that a 1600). (London, Law 1 Barker Christopher “goe by man neither nor ride armed I, king, The first Stuart James issued a ... night by day any place nor whatso- proclamation forbidding concealed ever.” The Third Part the Institutes of of reciting “bearing that the weapons and (London, ch. England the Laws Weapons covertly ... hath ever beene ... 1797). Brooke, R. recounted the case Coke straitly forbidden”: Figett, of Sir Thomas who was arrested garments” bearing Weapons

Whereas the covert- when he “went armed under his ly, specially Dagges, justice King’s and of short and bench. Id. at before Pistols, use, (truly Hawkins pock- termed of their 161-62. William wrote that, Dagges, Northampton, et that are made to under the Statute of “a apparently secret) close, wearing be carried hath ever Man cannot excuse the such [of] beene, Publick, yet by by alledging the Lawes and Armour such him, VIII, Henry by proclama- the later and that he wears it threatened

a one Safety of his Person from his As- tions of Elizabeth I and James I. for the Hawkins, A Treatise sault.” 1 William Of writer, English Sharp, Granville ad- 28, § ch. The Crown The Pleas Of precise point Sharp dressed this in 1782. 1824). Curwood, (London, Black- 8th ed. J. source, important given particularly 1760s, stone, compared in the writing as an the Court Heller cited his treatise Northampton to “the laws Statute authority supporting understanding its Solon, every Athenian was which] [under Heller, Bill of English Rights. See city about the in arm- finable who walked According U.S. 128 S.Ct. 2783. Blackstone, Commentaries our.” 5 William allowed law” Sharp, phrase “as England, edited St. on the Laws of restrictions, pre-existing referred to in- (Phila. 1803). Tucker, §149 9 George cluding passed Henry the statute under II, kings the last of the Stuart James prohibiting Sharp concealed arms. VIII monarch, England’s last Catholic wrote: subjects. sought to disarm his Protestant expression, by latter “as [The] allowed from in James II was driven the throne law,” respects the limitations in the 1689, in Revolution. In 1688 the Glorious act of Hen. c. above-mentioned 33 VIII successors, under his Protestant William 6, III) partic- which restrain the use of some (William II, Orange Mary Parlia- arms, meaning only ular sort such English Rights, Bill of ment enacted concealed, which, arms as were liable to be or recognized, as the Court in Heller designs “long prede- has been understood to be the otherwise favour the of murder- Heller, “cross-bows, ers, cessor to our Second Amendment.” short hand- little 593, at Bill of 554 U.S. 128 S.Ct. 2783. The guns, hagbuts,” guns and little and all Rights provided, respect with to the LENGTHS, speci- CERTAIN UNDER arms, subjects to bear which “[t]hat fied in the act.... may

are Protestants have arms for their Tracts, Concerning Only the Ancient and defence suitable to their conditions and as Legal Defence, by True Means National M., 2, 7,§ in by allowed law.” W. & c. (3d 1782) (empha- a Free Militia 17-18 ed. (1689) Eng. Large (emphasis Stat. in original). sis added). Thus, by eighteenth the end of the cen- degree English To the that the Bill of tury, when our Amendment was Rights interpretive guide is an to our Sec- adopted, English law had for centuries Amendment, question ond the critical consistently prohibited carrying concealed meaning phrase by “ás allowed (and occasionally catego- the even broader narrowly, respect law.” More with concealable) ry public. pro- arms in us, specific question case now before generally hibition be traced back by whether the arms that are “allowed Northampton the Statute of is, law”—that the arms Protestants had Act specifically to the of Parliament under to bear—included concealed fire- Henry prohibition VIII 1541. The was history just arms. The recounted demon- English Rights, continued in the Bill of strates that concealed firearms adopted clearly explained and was by only was not “allowed law.” Not by Sharp it Granville less than a generally prohibited by the Statute was adoption it decade before the of the Second Northampton, specifically but was by forbidden the statute enacted under Amendment. History Right to Bear Arms Relevant the Fourteenth

b. in Colonial America in the nothing have found historical

We a. Pre-amendment History the law in the suggesting record Following the lead of Supreme respect colonies to con- American with McDonald, in both Court Heller and we weapons significantly differed from cealed look to decisions of state courts to deter- England. the law in the New mine scope to keep and about Jersey legislature, concerned bear arms as that understood “great people abuses” suffered “several adopters of the Fourteenth Amend- persons carrying in the Province” from ment. exception With one a —and weapons public, passed provid- a statute exception short-lived at that —state courts ... ing person persons that “no or shall unanimously before the Civil War conclud- any pocket presume privately pis- wear general public ed members of the tol, skeins, stilladers, dirks, or daggers prohibited could be from carrying con- other unusual unlawful within weapons. Against Wearing Province.” An Act this Mitchell, In State v. Blackf. Sivords, &c., (1689). Chap. N.J. Laws IX (Ind. 1833), Supreme WL 2617 Court verbatim, adopted Other colonies or almost Indiana, in a one-sentence opinion, up- verbatim, English example, law. For held a state statute prohibiting general colony of Massachu- province public from carrying weapons: Bay setts authorized the Justice of the case, in “It was held this that the statute to arrest go Peace those who “shall ride or 1831, prohibiting persons, of all except Offensively any armed before of Their travelers, wearing from or carrying con- elsewhere, Majesties ... Justices or weapons, is not unconstitutional.” Night by Day, Affray or Fear or of at (emphasis original). Id. Majesties Liege People.” Their An Act for Reid, (1840), In State v. 1 Ala. 612 Punishing Offenders, Criminal defendant a violating had been convicted of (1692). §XI Chap. Mass. Laws prohibiting any person

statute from “car- rying] person, any concealed about his Right c. to Bear Arms the States arms, knife, species any of fire or Bowie Supreme any The Court in Heller pick, discussed Arkansaw tooth other knife of kind, dirk, any deadly court the like other adoption state decisions after the weapon.” Supreme Id. at 614. The Court of ground the Second Amendment on the upheld against Alabama the statute a chal- they showed how the Amendment— lenge under the state constitution. It based generally and the to bear arms —was analysis part its in substantial on its con- commonly years understood follow- English Rights clusion that the Bill of did ing adoption. recognize its We these protect helpful decisions are an un- providing weapons. The court wrote:

derstanding adopters of what the of the intended, post- Second Amendment but we The evil which was intended to be section, pone our discussion to the next [by English Rights] remedied Bill of they helpful providing are even more an was a denial of the of Protestants understanding adopters defence, what of the to have their and not arms for secretly. Fourteenth Amendment intended. an wear them inhibition to added). warfare, court usual in civilized or would not (emphasis Id. at contribute to the common defence. practical the Alabama statute defended legal grounds: as well as Id. at 159. Buzzard, 18, 19 (1842), v. State In 4 Ark. merely pro- is intended law which

[A] al quashed the trial court an indictment security, put and to down personal mote leging providing violation of a statute state violence, and to aggression lawless “every any who person shall wear wearing of certain that end inhibits dirk, knife, or a pistol, large butcher or is calculat- weapons, in such a manner as cane, weapon, in a concealed as a sword unhappy upon influence ed to exert upon journey, adjudged unless shall be wearer, feelings the moral of a misdemeanor.” The Arkansas guilty person- him making regardful less Supreme though Court reversed. Even others, security does not come in al yet had not been Fourteenth Amendment the constitution. collisionwith adopted, the court believed that the stat Id. at 617. properly challenged ute was under both the Second Amendment and the state con State, (1840), Aymette 21 Tenn. 154 stitution. The court held that the statute wearing jury convicted the defendant the federal nor the state violated neither knife concealed under his clothes. bowie statute, In upholding constitution. Jus defendant contended that the convic- purpose that the tice Dickinson wrote tion a Tennessee constitutional violated provisions the two constitutional was to provision stating that “free white men of provide “adequate preserva means for this have a and bear State tion and defense of the State and her their common defence.” Id. arms for republican institutions.” Id. at 27. Supreme 156. The Tennessee Court inter- not, question my The act in does Bill preted English Rights, as well from the judgment, anything detract constitution, protect- as the Tennessee power people to defend their free ing group right engage military a to state the established institutions of and right action rather than an individual to country. wearing It the inhibits the self-defense: of certain arms concealed. When, therefore, says Parliament that Id. “subjects which are Protestants State, In Nunn v. (1846), 1 Ga. 243 defence, have arms their suitable charged carrying defendant was with a condition, law,” their as allowed it pistol, specify but the indictment did not but, defence, private does not mean for “secretly.” An that he carried it 1837 state armed, being they may body up as a rise carrying statute criminalized concealed just rights, compel to defend their and carry. weapons, open but allowed Like the respect their rulers to the laws. Buzzard, Supreme Arkansas Court Id. at 157. In the view of the court, con- Georgia Supreme Court addressed weapons cealable did not come within the Amendment statute under both the Second scope English Rights of either the Bill of constitution. The court dis- and the state or the state constitution: arms, extensively right to bear cussed writing that the Amendment therefore, Legislature, right The have a why right a reason this prohibit wearing keeping assigns [to [of] shall not be inter- weapons dangerous peace keep arms] to the and and bear with, safety citizens, any abridged, or in manner and which are not fered prevent bloodshed and enjoyment pre- of it will and assassina- the free that well-regulated upon unsuspecting per- mili- tions committed qualify pare security tia, necessary are which sons. It interfered with no man’s view,” of a free State. ... “in full open places upon equality. which men This court (emphasis original). The Id. at 250 right guaranteed by is the the Constitu- it prohibited that insofar as concluded States, tion of the United and which is weapons, the statute carrying of concealed manly calculated to incite men to a was constitutional: themselves, noble defence of if neces- ... that far as opinion are of the so We sary, country, any and of their without suppress seeks to the act of 1837 tendency advantages un- secret certain se- practice manly assassinations. valid, it is inasmuch as it cretly, natu- deprive does not the citizen of his Id. 489-90. self-defense, right of or of his consti- ral only exception The to this uni otherwise arms. tutional and bear form line of cases Bliss v. Common However, original). (emphasis Id. at 251 wealth, (1822), Ky. 90 which the allege that because the indictment failed to Kentucky Appeals, by Court of a vote of in a pistol the defendant had carried his one, two to struck down a state statute manner, the court dismissed it. wearing pocket pistol, of “a prohibiting Cornell, Right Carry Fire- See Saul dirk, knife, cane, large or sword in a con Separating the Home: arms Outside of weapon.” Id. at 90. court cealed as Myths Historical Reali- Historical from held the statute violated Article ties, 1695, 1716-26 39 Fordham Urb. L.J. constitution, § Kentucky’s pro 23 of which (2011-2012) (discussing Nunn and vided that “the of the citizens to bear emergence public carry regulation out- arms in defense of themselves and the south). side the state, questioned.” shall not be Id. The Chandler, 5 La.Ann. 489 State court wrote: (1850), trial argued the defendant that the there no be- principle, difference [I]n judge jury should have instructed the wearing con- prohibiting tween law it was not a crime Louisiana to arms, and a law forbidding weapon because the Second exposed; as are and if the wearing such guaranteed to citizens unconstitutional, former be the latter to bear arms. The Louisiana Su- must be so likewise. rejected argument, the hold- preme Court Id. at 92. prohibiting weap- ing that a law concealed violate the Amendment: ons did not The court’s decision Bliss was soon attacked, a makes it a and was overruled over decade statute] The [Louisiana In to be “found with a con- before the Civil War. Governor misdemeanor dirk, Clark, weapon, dagger, deeply a concerned about the cealed such as James knife, caused con- pistol, any deadly weapon or other “bloodshed and violence” Bliss, bosom, coat, called any weapons in his the wake of concealed him, legislature pass to a new Kentucky other about that does not on the place banning practice. the The Ken- appear open in full view.” This law be- statute committee that received absolutely necessary tucky legislative came to counteract the society, message of criticized growing a vicious state of out the Governor’s reading the state constitution too carrying weapons, the of concealed court for habit states, Ireland, majority” the held that the M. The Prob- of Court Robert literally. See Weapons adopters in Nineteenth- of the Fourteenth Amendment lem Concealed of Reg. Ky. Soc’y incorporate right Hist. to the to bear Century Kentucky, 91 intended (1993). 1849, Kentucky con- Amend- preserved a the Second seen, adopted just overwhelming without de- ment. As an ma- convention stitutional authorizing legislature jority ques- the of the states to address the provision bate indeed, prevent persons to from after all of states “pass to laws tion— Const, art. to Ky. right arms.” to do so—understood the bear carrying concealed Then, arms, XIII, Kentucky § under both Second constitutions, prohibit- a new statute and their state as not includ- legislature passed deadly “any ing weapons concealed ing the concealed ordinary pocket public. other than weapons prohibit carrying

knife.” An Act History b. Post-Amendment 10, 1853, Ky. weapons, Mar. concealed (1854). Acts, Chap. Supreme The Court Heller discussed early century 19th courts the decisions Court stated in Heller Supreme The of the Amend- adoption after the majority 19th-century of the that “the ment, ground they on rele- were question to consider the held that courts understanding the intent of the vant prohibitions carrying weap- concealed eighteenth century adopters of the Amend- were under the Second Amend- ons lawful 605-14, 626, ment. 554 at 128 S.Ct. 2783. analogues.” at U.S. ment or state 554 U.S. added). respect We follow the Court’s lead with (emphasis The 128 S.Ct. 2783 the Fourteenth Amendment and discuss substantially understated the mat- Court noted, adoption. decisions after its just exception ter. As with the Bliss, pre-Civil those War state courts pre-Civil War consensus about the prohibi- question upheld considered the all meaning keep of the and bear against weapons. tions concealed Four of after arms continued the war and the upholding prohibitions spe- the six courts adoption of the Fourteenth Amendment. discussed, with, cifically disagreed post-war constitutions of five states Reid, 617-20; Aymette, Bliss. See 1 Ala. at explicitly stated 160-61; Buzzard, Tenn. at Ark. at 25- prohibited by concealed could be 26; Nunn, Moreover, Ga. 247-48. Const, I, legislature. N.C. art. two-to-one Bliss decision did not last. Bliss (1875) (“A well-regulated § 24 militia be- 1822; was decided state constitutional ing necessary security of a free adopted amendment was in 1849 to over- State, people Bliss; legislature passed turn then ... infringed; bear arms shall not be outlawing weap- statute in 1854 Nothing justify herein contained shall ons. practice weapons,

The Supreme prevent Legislature enacting pe- Court wrote in McDonald from that a majority against practice.”); “clear in 1868 nal statutes said Colo. States Const, (1876) (“The II, § ... recognized right keep right the to and bear art. 13 of being among person keep arms as the foundational no to and bear arms in de- home, rights necessary system person property, to our fense of his and or of Govern- 777, power ment.” 561 U.S. at 130 S.Ct. 3020 in aid of the civil when thereto added). summoned, in (emphasis legally ques- Based in substantial shall be called tion; part understanding nothing on its the “clear but herein contained shall be of

937 law, justify practice carry- power, by regulate to the of have to the wear- construed Const, La. of ing weapons.”); ing concealed of arms with a prevent view to Const, (“A 1879, Ill militia regulated crime.”); art. well 1885, I, Fla. § of art. 20 necessary security (“The to the of a free being right people of the to in bear arms State, of right people keep the the to and defence of themselves and the lawful au- abridged. bear arms shall not be This shall State, thority of the shall infringed, not be prevent passage punish the of laws to may but the Legislature prescribe the concealed.”); carry weapons those who borne.”); manner in they may which be Const, (“The 1889, II, Const, § 12 Mont. of art. (“The I, § Idaho of art. right any person keep of to or arms bear people right have the to' bear arms for home, his defense of own and person, defense; security their and Legis- but the property, power aid of the civil when lature regulate shall the exercise of this summoned, legally thereto shall not be Const, law.”); right by I, Utah of art. in question, nothing called but herein con- (“The § people have the to bear permit carrying tained shall be held to defense, security arms for their and but Const, weapons.”); art. concealed Miss. legislature may regulate the exercise (1890) (“The Ill, every § 12 right of citizen law.”). generally See right by of this Eu- keep to and bear arms defense of his Volokh, Rights State Constitutional gene home, person, property, or in aid of the Arms, Keep Bear Tex. Rev. of L. power legally civil when thereto sum- (2006) & Pol. 192-217 (collecting state moned, not be in question, shall called but states, provisions). constitutional In these may legislature regulate or forbid car- legislatures Georgia and Tennessee generally See rying weapons”). already passed prohibiting had statutes The Second Amendment Kopel, David B. weapons, and the supreme Century, in the Nineteenth 1998 BYU L. states, Ay- Nunn courts of those (1998). 1359,1410 Rev. n. 190 mette, already upheld had the statutes post-war of another constitutions six against challenges. Aymette, constitutional states, explicitly granting while not 154; Nunn, 21 Tenn. 1 Ga. 243. As will be legislatures authority prohibit con- moment, legislature seen the Texas weapons, gave legislatures cealed state would soon a statute con- pass prohibiting power regulate broad the manner in statute, too, weapons, and that which arms could be carried. See Ga. upheld. would be Const, (“A I, § well-regu- art. Two state courts and one territorial being necessary militia lated to the securi- carrying upheld prohibitions against court ty people, of a people free (not concealed) just concealable and bear keep infring- arms shall not be years following adoption ed; general assembly but shall have English Fourteenth Amendment. power prescribe by law the manner Const, State, (1871), a 35 Tex. 473 Texas statute borne.”); which arms be Tex. in certain “regulating, prohibit- cases 1868; I, § (“Every person art. shall deadly in- ing, weapons,” keep have the and bear arms in dirks, cluding “pistols, daggers, slungshots, State, the lawful defence of himself or the swordcanes, spears, brass-knuckles and regulations under such as legislature Const, id. knives,” I, challenged § bowie may prescribe.”); Tenn. art. (1870) (“That Amendment, under the Second as well citizens this State have analogous provision and to bear for their under an of the Texas defense; Legislature Supreme common but the shall The Texas constitution. Court regard The court construed to the kind of arms referred [I]n the statute. upheld amendment, into the it must be held to Amendment and the “arms” in the Second to of warfare to be weapons refer referring only to constitution as Texas swords, militia, used such as purposes of war.” Id. at weapons “used rifles, muskets, guns, and to be court wrote: 475. The —arms civil defending used the state and deadly devices and in- To refer bowie-knife, liberty, pistols, not to —and “deadly called in the statute struments knuckles, billies, and such other brass proper necessary or weapons,” usually employed in weapons as are militia,” “well-regulated arms of brawls, duels, fights, affrays, and street travesty, ridiculous. No kind of simply only habitually are carried bul- and or ingenious, subtle could so however lies, blackguards, desperadoes, and provision this of the consti- misconstrue community the terror of the and the States, as to make it tution of United injury of the state. vice, protect pernicious that cover and Id. murders, many from which so assassina- Territory, Walburn Okla. tions, deadly sprung, assaults have and (1899), P. 972 was convicted defendant it was doubtless the intention and which “carrying person.” of a revolver on his legislature punish prohibit. and Supreme Territory Court of the of Okla Id. at 476. homa sustained the law under which the defendant had been convicted. are “[W]e Workman, 367, 14 In State v. 35 W.Va. opinion that the statute violates none (1891), Virginia S.E. West statute of the inhibitions of the constitution of the prohibited carrying, openly whether or States, provisions United and its are concealed, “any pistol, revolver or other police power territory.” within the bowie-knife, razor, dirk, slung-shot, billy, Id. at 973. knuckles, any metallic or other false Finally, perhaps importantly, most dangerous deadly other of like weapon Baldwin, in Robertson v. U.S. exempted kind or character.” The statute (1897), S.Ct. 41 L.Ed. 715 the United prohibition person from the who is “a it, Supreme States Court made clear citizen, peaceable quiet good char- too, understood the Second Amendment as standing community acter and protecting con- lives,” which “good he and who had cause weapon. The Court wrote: believe, believe, and did that he was in danger great bodily of death or harm at first 10 amendments to the consti- [T]he tution, “Bill person.” commonly the hands of another Id. known as the Rights,” lay Defendant was convicted under the statute were not intended to down prove any he failed to that he principles government, because was of novel but character, good despite simply embody guaranties the fact that he certain danger had been in clear and immediate immunities which we had inherited from ancestors, had, particular English death from a individual. Id. at our and which immemorial, subject 10. Defendant contended that the statute from time been at 11. well-recognized exceptions, violated Second Amendment. Id. certain aris- Virginia Supreme upheld ing The West Court from the of the case. In necessities ground on the incorporating principles statute the Amend- these into the law, protected only ment fundamental no intention there was disregarding exceptions, of war: which n recognized they as if had We therefore conclude that the Second continued to be formally expressed. right keep Thus ... the Amendment to and bear arms

been include, any not people degree, to and bear does the right of the (article 2) general a member of the infringed by public carry is not laws arms In carrying public. holding, of concealed concealed firearms so prohibiting the join we several of our sister circuits that weapons[.] upheld authority pro- have the of states to 281-82,17 Id. at S.Ct. entirely substantially hibit or to limit the carrying of concealed or concealable fire- Right 3. No Second Amendment Martinez, arms. See Peterson v. 707 F.3d Weapons Carry Concealed (10th 2013) (right carry Cir. con- weapons cealed does not fall within the bearing The historical materials 'on scope); Amendment’s Second Woollard v. adoption of the Second and Fourteenth (4th 2013) Gallagher, 712 F.3d 865 Cir. remarkably Amendments are consistent. (Maryland requirement handgun per- law, English carrying of con Under only mits be issued to individuals with specifically weapons prohibited cealed wear, “good and substantial reason” to car- acknowledged pre since at least 1541. ry, transport handgun does not violate Amendment, the decessor to the Second Amendment); Filko, Second Drake v. Rights, protected Bill of English (3d 2013) (New F.3d 429-30 Cir. Jer- arms, to have rights of Protestants but “justifiable sey carry- need” restriction on only by those arms that were “allowed ing handguns public “does not burden “al weapons law.” Concealed were not law,” were, instead, scope conduct within the of the Second flatly but lowed years guarantee”); Kachalsky In after Amendment’s prohibited. adoption (2d Westchester, Cty. 701 F.3d of the Second Amendment and before the Cir. 2012) (New Amendment, adoption “proper of the Fourteenth York cause” restric- ques carry the state courts that considered the tion on concealed does not violate Amendment). nearly universally tion concluded that laws Second forbidding concealed were consis holding that Our

tent with both the Second Amendment and protect does not of a Amendment excep their state constitutions. The general Kentucky, appeals public tion was whose court of member contrary fully in a firearms in answers held to the two-to-one deci question sion based on its state constitution. Ken before us. Because the Sec tucky protect any thereafter amended its constitution ond Amendment does not degree concealed fire to overturn that result. the decades immediately adoption public, any prohibition after or restric Amendment, impose Fourteenth all of the state tion a state choose to on con question carry including requirement upheld courts that addressed the — cause,” ability legislatures “good of their state however defined—is neces Finally, sarily allowed the Amendment. There prohibit weapons. may not Supreme unambigu may United States Court be Second ously protection general public stated in 1897 that the for a member of the openly public. a firearm The Su the Second Amendment does extend to ques answered that weapons.” preme “the of concealed Bald Court has not win, 282, 17 tion, and we do not answer it here. 165 U.S. S.Ct. 326. by ability regulate Intervention the California’s to A

V. firearms. key premise opinion of California the was that the State requires the states to to of California moved inter- The State “permit some for self-de- form after Sheriff Gore of San vene in Peruta (em- the fense outside home.” Id. at 1172 County petition declined to for re- Diego phasis original). Though California’s oppose Plaintiffs did not hearing en banc. statutory many residents, permits scheme by the State. As recounted at intervention contexts, many to a firearm out- however, opinion, of this a beginning the home, it permit side the does not law- panel denied the State’s motion. divided abiding residents of sound mind to do so disagree grant and the motion. We particularized interest in self- without Federal Rule of Civil Proce Under defense. 24(a)(2), party may intervene as of dure the pre Under circumstances if here, sented we conclude that California’s (1) significant protectable inter- it has timely. motion to intervene was To deter action; subject to relating est the of the mine whether a motion to intervene is (2) disposition may, the of the action as a “(1) timely, stage we consider matter, impair impede practical its proceeding applicant at which an seeks to (3) interest; ability protect its (2) intervene; prejudice par to other (4) timely; application the exist- (3) ties; and the reason length for and ing parties may adequately repre- delay.” v. United States Alisal Water sent its interest. (9th 2004) Corp., 370 F.3d Cir. (9th Day Apoliona, 505 F.3d (internal omitted). quotation marks We 2007) (citation, quotation Cir. internal recognize that sought California to inter marks, omitted); and alterations see also relatively vene at a stage pro late 24(a)(2). R. P. Fed. Civ. ceeding. But the timing of California’s question There is no that Califor motion to intervene prejudice did not significant nia has a Plaintiffs; indeed, not, interest Peruta Plaintiffs did Richards). (and, indeed, in panel not, As the oppose do the State’s intervention. noted, majority Plaintiffs “focuse[d] [their] Equally important, California had no challenge on licensing [the strong counties’] incentive to seek intervention in Peruta, carry.” scheme for concealed 742 Peruta at an earlier stage, for it had little But panel majority F.3d at 1171. con anticipate reason to either the breadth of challenge strued the an attack as on “the panel’s holding or the decision of constitutionality of [California’s] entire Sheriff not to panel rehearing Gore seek 1171; [statutory] scheme.” Id. at see also rehearing en banc. id. at (assessing whether “the Cali Our conclusion that California’s motion deprives any scheme individual of

fornia timely to intervene was is consistent with rights” his constitutional (emphasis add Apoliona, our decision in in which the ed)). original challenge While Plaintiffs’ of Hawai’i argument, State had made an county policies appear impli did not court, amicus curiae before the district entirety cate statutory of California’s the defendants had chosen not scheme, panel opinion unmistakably make. 505 F.3d at 964. The district court did. agreed argument, with Hawai’i’s but we Peruta, reversed, panel opinion if in- holding argument left that the was tact, substantially would have impaired precedent. foreclosed circuit Id. Hawai’i colonies; tently forbidden the American in order to party intervene as a moved consistently forbidden Id. rehearing en banc. petition file (with excep- the sole and short-lived “the state states Notwithstanding the fact that Kentucky) both before and after the that the litigation and tion was aware they dispute Nor do that the affect its Civil War. potential had litigation Supreme at United States Court interests,” the motion. Id. granted we intervene, clearly stated that we Permitting Hawai’i weapons protected by was not the Second wrote, delay by injecting “will not create Baldwin, Amendment. Robertson v. instead litigation, into the but new issues 275, 281-82, 41 L.Ed. of an U.S. S.Ct. that our ensure determination will (1897) (“[T]he right of the to people from 715 issue is insulated already existing not (article 2) keep and bear arms is not in- to of the simply posture due the review (citation, fringed by prohibiting carrying laws the quo- internal Id. at 965 parties.” omitted). weapons[.]”). concealed marks, and alterations tation argument principal of the dissent to permit If we do not California Plaintiffs, begins premise with the as Penda, in there is no party as a intervene general public, the have a members of fully represent in that case that can party carry Amendment fire- right Second appeal, At trial on attor its interests. public in as a of self-defense. means ably de neys representing Sheriff Gore Principal principal Diss. at 948-49. The County’s interpretation Diego fended San characterizes California’s restric- dissent But after requirement. cause good open carry effectively prohibit- on as tions issued, was Sheriff Gore panel decision the carry. It that when ing open concludes the court that he would neither informed open on and con- California’s restrictions rehearing banc nor defend petition for en together, they carry are considered proceed in en banc county’s position “In the violate the Second Amendment: sought then ings. appropriately California prohibit of California’s choice to context to fill the void creat to intervene order carry, policies regarding counties’ open unexpected departure ed the late carry tanta- licensing of are concealed litigation. Gore from the Sheriff on the Second complete bans mount Dissents Response VI. right to bear arms outside Amendment self-defense, and are therefore home Callahan, colleagues Judges Silver- Our Therefore, ac- Id. unconstitutional.” each written and N.R. Smith have man dissent, cording principal Califor- Judge dissenting opinions. consider We carry violate on nia’s restrictions concealed dis- opinion principal to be the Callahan’s Judge N.R. the Second Amendment. an es- argument provides because its sent argument, this agrees dissent Smith’s with premise for the other two. sential of Plaintiffs’ emphasizing the “context” that there None of the dissents contends restrictions on challenge to California’s free-standing Amendment is a Second carry. general public for a member of dissent argument principal Nor do carry weapon public. a concealed construing logical Even fallacy. or un- on they any make effort to contradict based protecting any evidence the Second Amendment dermine of the historical general public of a member of the of concealed showing (an we do public a firearm in issue consistently forbidden decide), assuming that Cali- 1541; and even was consis- England beginning not public open carry currence. But if we were to reach that forma’s restrictions question, entirely agree the Second Amendment so con- we would violate with the (an decide), it issue we also do not the concurrence provides. strued answer that California’s restric- does not follow Conclusion violate the public

tions on Amendment. We hold that the Second Amendment protect, any degree, carry- does not

As the uncontradicted historical evi- ing concealed firearms members of shows, overwhelmingly dence general public. holding This resolves protect, any not Amendment does de- question present- Second Amendment general gree, of member of the necessarily resolves, ed in It this case. also weapon pub- a concealed Plaintiffs, adversely to their derivative may may lic. The Second restraint, prior equal protection, claims of degree some protect immunities, privileges and and pro- due a general public carry member light not, cess. In of our holding, we need If public. right, firearm in there is such a it not, and do answer the question of wheth- carry a only right openly. a firearm er or degree to what the Second Amend- challenge But Plaintiffs do not California’s might might protect ment a open carry; they challenge restrictions on general public a member of the carry. restrictions concealed openly public. firearms in If a there is Second Amendment AFFIRM judgments We of the dis- general public a member of the a trict courts in both cases. public, firearm if that openly and violated, apply the cure is to the Second GRABER, Judge, Circuit with whom protect right. Amendment to that The cure THOMAS, Judge, McKEOWN, Chief and apply is not to the Second Amendment to Judge, join, Circuit concurring: protect a does not exist under the Amendment. I fully majority opinion. concur I that, separately only write to state if even Agreement

VII. with the Concurrence we assume that the Second Amendment colleague Judge Our ful- applied carrying Graber concurs to the weap concealed ly opinion, separately our but writes “to in public, provisions ons at issue would that, state if even we assume that be constitutional. Three of our sister cir applied carry- Amendment cuits have upheld similar restrictions un ing weapons of concealed in public, scrutiny. der intermediate Such restric provisions at issue would be constitution- permissible tions strike a balance between Graber, J., al.” concurrence at 942. Even if “granting handgun permits to per those we assume that the Second Amendment sons known to be in need of self-protection applies, regulation California’s of the car- precluding dangerous proliferation and rying of weapons public sur- of handguns on the streets.” Woollard v. (4th vives scrutiny intermediate it Gallagher, because 712 F.3d Cir. “promotes 2013); government Filko, substantial inter- see also Drake v. 724 F.3d (3d 2013) est that effectively would be achieved (assuming less 431-32 Cir. (internal regulation.” absent the Id. at 945 applies up Second Amendment omitted). quotation marks For holding Jersey’s “justifiable the reasons New need” re given opinion, in our we do not need to striction on carrying handguns public); reach question Westchester, Kachalsky County addressed the con- (2d 2012) earlier, years concealed-carry per- another (assuming Cir. F.3d fatally applies and mit holder in Florida shot someone Amendment the Second re- “proper argument gas York’s cause” after an over loud music in a New upholding Arizona, of fire- parking the concealed lot. Id. In striction on station’s arms). handgun people, If restrictions on carrier shot 19 qualified subject are to Second including congresswoman and a federal analysis, we should follow judge, supermarket outside a in 2011. Id. circuits. adopted by our sister approach legally all were entitled to Those shooters firearms, they which carry their concealed acknowledges dissent Judge Silverman’s Sadly, to kill used others. those incidents substantial, important “significant, Nationwide, May are not anomalies. since public safety promoting interests 2007, concealed-carry permit holders have 956.) (Dissent at gun violence.” reducing shot and killed at least 17 law enforcement contends, though, that Defendants He private officers and more than 800 citi- to demonstrate “a reasonable have failed including 52 suicides. Concealed challenged licensing crite- fit” between the zens— Killers, Center, Carry Policy Violence (Dis- objectives. government’s ria and the (last www.concealedcarrykillers.org visited 956-57.) disagree. I sent at 2016). Thus, even if assume that Apr. we cited points to evidence Judge Silverman every tragedies each and one those “showing that concealed-car- by two amici likely less to occur because of the shooter’s disproportionately are ry license holders citizen,” “law-abiding status as a that prior ... than the likely to commit crimes less legislature’s mean that a does not state (Dissent at 957-58 population.” general fails to ad- regulation of - (citing Amicus Brief for Gover- way. in a reasonable problem dress the Maine, Texas, Louisiana, Mississip- nors of Oklahoma, pp. Dakota at 10- pi, and South Second, that concealed- to the extent 15;. Brief International and Amicus for are, fact, likely carry license holders in less Trainers Enforcement Educators and Law crimes, peaceful- to commit their relative 22-26.)) Association, al., at There pp. et (and not exist in may ness result from are, however, ques- at least reasons to two of) disputed that are spite the restrictions studies. tion the relevance those Delaware, example, in For in five this case. carry- that

First, upstanding citizens must swear accepting Judge even Silverman’s deadly weapon is neces- weigh ing entitled to a concealed premise, lawmakers are applicant, sary protection as well as the for the severity risk Indeed, or both. Del. Code applicant’s property, exam- of its occurrence. likelihood 1441(a)(2). Maryland, appli- In § Ann. “law-abiding citizens” ples abound “good a that he or she has cant must show place states studied who seven wear, carry, or Florida, reason to In a tout- and substantial safety jeopardy. state Ann., briefs, Md. transport handgun.” a Code of the cited amicus ed in the second 5-306(a)(6)(i). Hawaii, § In a Safety Pub. “law-abiding” holder of a concealed- a only may be issued concealed-carry permit shot and killed another weapons permit case, appli- when an exceptional an an “[i]n in 2014 in a movie theater after person injury to the cant shows reason to fear texting popcorn. Ami- argument over Haw. Rev. person property.” applicant’s the Law to Prevent cus Brief for Center 134-9(a). York, person § In New Stat. County and Marin Sheriff Gun Violence a concealed seeking In Pe- a license Doyle Support Appellees’ Robert cause,” N.Y. “proper must show Rehearing handgun En Banc at 13. Two tition for 400.00(2)©; and, § Penal Law New “firearms homicides increased” while Jersey, applicant must demonstrate guns “homicides without steady,” remained justifiable need to “that he has concluding regu- weaker firearms § Stat. Ann. handgun,” N.J. 2C:58-4. may lation “raise levels of mur- firearms and the District of Rhode Island Columbia ders”), available at http://scholarly require applicant to show that he or commons.law.northwestern.edu/cgi/view person” she is a “suitable and has a “rea- content.cgi?article=6855& context=jclc. son,” “fear[ing] injury such as to his or Similarly, some suggest studies person property,” carrying her “policies discourage in public firearms ch. firearm. Mass. Gen. Laws prevent help violence.” McDowall et 131(d); § § 1956 R.I. Gen. Laws 11-47- al., Easing Concealed Firearms Laws 22-4506(a). 11(a); § D.C. Code other A study prisoners incarcerated for words, may heightened it be the restric- offenses, gun for example, found that two- concealed-carry permits many tions on thirds of prisoners “reported those jurisdictions very provisions chal- —the running the chance of into an armed victim lenged in this case—that statistically cause very important or somewhat in their by permit violence reduced holders. own choice to a gun.” Philip use et Cook importance, equal Of the studies to al., Gun Control Heller: Threats and After Judge which alludes Silverman are not the Sideshows Perspec- From a Social Welfare only story. respected side of the Much tive, (2009). 1041,1081 56 U.C.L.A. L. Rev. contrary. evidence is to the Several studies study continues: suggest majority that “the clear of states” Currently, guns criminals use broadly allowing that enact laws percent about 25 of noncommercial rob- public “experience of firearms 4 percent beries and of assaults. If in- crime, murder, increases violent gun carrying creased among potential robbery adopted.” when laws are [those] victims causes criminals carry guns Donohue, Impact John J. Con- themselves, more often quick- or become Laws, cealed-Carry in Evaluating Gun guns er to use to avert armed self- Policy Effects Crime and Violence defense, the end result could be that (2003), http://www. available at street crime becomes more lethal. brookings.edu/=/media/press/books/2003/ evaluatinggunpolicy/evaluatinggunpolicy_ (footnote omitted). Id. chapter.pdf; Ludwig, see also Jens Con- Clearly, social scientists disagree about cealed-Gun-Carrying Laws and Violent practical effect of modest restrictions Data, Crime: Evidence State Panel from carry on concealed of firearms. In the face (1998) 18 Int’l Rev. L. & Econ. disagreement, that the face of (noting broadly that laws allowing con- evidence, inconclusive we must allow the resulted, cealed of weapons “have government to select among reasonable if anything, in an increase in adult homi- alternatives in policy its decisions. As the rates”), cide available http://home. at Second explained, Circuit in upholding a uchicago.edu/ludwigj/papers/IJLE- requirement that an applicant show an ob- ConcealedGunLaws-1998.pdf; David jective threat personal safety, spe- a al., Easing McDowall et Concealed Fire- cial need self-protection, to obtain a arms Laws: on Homicide in Three Effects concealed-carry handgun: license for a States, Criminology 86 J. Crim. L. & (1995) that, sure, 202-03 (noting in the after- recognize To be we the existence laws, math of concealed-carry relaxed of studies and challenging data the rela- Theatres, Inc., 475 ownership by Playtime Renton v. handgun tionship between 41, 52, crime. and violent We L.Ed.2d 29 lawful citizens U.S. S.Ct. many (1986)). violent crimes recognize that also any warning to the vic- occur without Finally, despite Judge argu- Silverman’s York also submitted New' tims. But contrary, ment to the California’s decision demonstrating that and data studies permit to confer discretion on its counties handguns public access to widespread arbitrary Localizing not an one. that felonies will increases the likelihood scrutiny decision allows closer of the inter- fundamentally alters in death and result community, ests and needs of each increas- safety and character of ing the “reasonable fit” between the level legislature’s job, It not spaces. of restriction and local conditions and de- ours, conflicting weigh evidence that creasing the extent of the restriction judgments. policy make statewide, in apply, places otherwise would 99;

Kachalsky, 701 F.3d at see also Wool require Similarly, localizing that do not it. lard, (detailing 712 F.3d 876-82 the decision allows more careful and accu- law, why Maryland’s requiring reasons each li- rate consideration of individual’s reason to good and substantial application. cense California entrusts the advances the public, concealed firearm decision-making responsibility to local law safety government’s important public ob they enforcement officials because are best Drake, (noting jectives); 724 F.3d at 439 positioned potential to evaluate the dan- ... “conflicting empirical that evidence that gers increasing decreasing con- suggest, compel, not let alone con does have in their communi- would the ‘fit’ between [a state’s] clusion for a ties. This structure allows nuanced individualized, approach pub tailored locality in assessment of the needs of each ”). safety lic is not ‘reasonable’ processing applications for concealed car- show Defendants must short, ry. place In decision to California’s gov regulation “promotes ‘substantial licensing in local hands is itself reasonable. ernment interest that would be achieved ” effectively regulation,’ absent the less sum, if the even regulation the chosen is the “least applied to concealed of firearms achieving govern means” of restrictive public, challenged laws and actions Fyock City interest. important ment’s scrutiny. heightened survive of Defendants (9th Sunnyvale, 779 F.3d Cir. violation occurred. No constitutional 2015) Kent, (quoting City Colacurcio v. (9th 545, 1998)); Cir. see also 163 F.3d 553 CALLAHAN, dissenting, Judge, Circuit Marzzarella, 85, 614 United States v. F.3d SILVERMAN, Judge, Circuit which 2010) (3d (stating that the fit need 98 Cir. IV, all section joins parts except as to reasonable, perfect”). ex “be BEA, joins, and N.R. Judge, Circuit reasonableness, we accord amining “must SMITH, Judge, joins parts as to all Circuit predictive deference to the substantial except section II.B: bodies, judgments” legislative of Turner Amendment is not a “sec 665, FCC, 622, Sys., Inc. v. Broad. U.S. guarantee. See ond-class” constitutional 2445, 129 (1994), L.Ed.2d 497 S.Ct. City Chicago, 561 U.S. McDonald government experi must be allowed to of 780, 3020, 742, 177 L.Ed.2d 894 130 S.Ct. problems, ment with solutions to serious (2010). Francisco, In the watershed case District City Jackson v. San 746 F.3d of of (9th 2014) Heller, 570, 128 953, S.Ct. (citing City Columbia v. 554 U.S. Cir. of (2008), 2783, Supreme prescribed 171 L.Ed.2d 637 evaluating method for protecting the Second Amendment guar- Court held broad constitutional Indeed, existing antees. right keep majority’s lengthy codified an individual his- torical years analysis appreciate arms for self-defense. Two fails to and bear later, many of its presumed reaffirmed in Mc- cited cases either the Court Heller Donald, 3020, right openly carry a firearm in public at or 561 U.S. 130 S.Ct. pre-Heller relied on a interpretation of right that the individual to bear and held majority Second Amendment. Because the arms for self-defense under the Second right eviscerates the Second Amendment applied was fundamental and Amendment keep individuals to and bear arms as Although opinions spe- to the states. these defined Heller and reaffirmed Mc- home, cifically any address firearms in the Donald, respectfully I dissent. Heller reading fair and McDonald com- pels right keep the conclusion that the Right I. The Individual to Bear Arms beyond and bear arms extends one’s front Beyond Extends the Home the rest of Bill Rights, door. Like indisputably right this constitutional in McDonald, A. Under Heller and part country’s stature and this bedrock. right individual to bear arms for beyond extends self-defense Plaintiffs assert that the counties’ con- home schemes, weapons licensing in the regulations context of California’s on fire- analysis begins Our with the text of the arms, their right obliterate to bear arms Second Amendment Supreme and the in public. for self-defense Supreme McDonald, opinions Court’s Heller and concealed-carry Court in Heller addressed which instruct that right to bear arms restrictions and instructed that those re- beyond extends the home. strictions be evaluated in context with The Second guarantees Amendment open-carry govern- laws to ensure that the “the right people to keep and bear deprive ment does not citizens of a consti- Const, Arms.” U.S. amend. II. Heller held right by imposing tutional incremental that the Second Amendment conferred an Heller, burdens. 554 U.S. at 128 S.Ct. individual and bear arms for 2783. In the present-day context of Califor- self-defense. 554 U.S. 128 S.Ct. law, nia the Defendant counties’ limited Indeed, Heller adopted Justice Gins-

licensing concealed burg’s definition of “carries a firearm” to firearms is tantamount to a total ban on “wear, bear, mean upon ... an ordinary citizen to a person clothing or in the in pocket, Thus, firearm in for self-defense. ... purpose being ready armed and Plaintiffs’ Second rights have for offensive or defensive action in a case been violated. While states choose of conflict with another person.” Id. at between different bearing manners of (quoting 128 S.Ct. 2783 Muscarello v. self-defense, arms for must be States, 125, 143, United 524 U.S. 118 S.Ct. accommodated. (1998) J., (Ginsburg, L.Ed.2d majority up sets and dissenting)). knocks down McDonald affirmed that the an argument elaborate straw by answering right constitutional keep to and bear arms question a narrow the applies McDonald, Sec- to the states. 561 U.S. —whether (“[T]he ond Amendment protects right 778, carry to at 130 S.Ct. 3020 Framers and in public. concealed firearms ap- But this ratifiers of the Fourteenth Amendment proach Heller, contrary to contrary and right keep counted the to and bear arms

947 Laws, erence, and necessary to the Constitution rights those fundamental among of Federal Government the United liberty”). the system of ordered to our of States; Virgi- and the Commonwealth of that also instruct and McDonald Heller 1803). (St. ed., Tucker George nia 289 the exists outside to arms right the bear Furthermore, majority the of Nineteenth cases, the Second these Under home. that the Second Century agreed courts right “an individual secures Amendment the right extended outside Amendment public private and against both protecting minimum, included, right and at the home violence,” right that the extends indicating carry operable weapon public for to person where a form to locations in some self-defense.1 Al- purpose of lawful private exposed might become approved limitations though some courts 594, Heller, 128 554 U.S. at See violence. home, the manner of outside the reinforced this view 2783. The Court S.Ct. approved a total of the none destruction right need for the by noting that public. right 628, home, id. at 128 “most acute” 2783, implying right that thus S.Ct. agreed circuits either have Our sister home. See also Mc- outside the exists right Amendment to bear that the Second Donald, 130 S.Ct. 3020 561 U.S. the home or have arms extends outside (“[T]he per- protects Amendment Second exists. Drake v. right assumed that the See arms for right and bear sonal (3d 2013) Filko, 724 F.3d Cir. notably self-de- most purposes, lawful “the (recognizing that Second Amend home.”). iden- Heller also fense within right ment’s individual to bear arms fire- forbidding tifies “laws home”); application beyond the have some places such as schools arms sensitive 865, 876 Gallagher, v. 712 F.3d Woollard buildings” presump- government and 2013) (4th deciding (assuming without Cir. U.S. at 128 S.Ct. tively lawful. 554 right “that the Heller exists outside con- right to self-defense 2783. Were home”); Madigan, 702 F.3d Moore v. home, validity of such laws fined to 2012) (“To (7th right confine the Cir. would be self-evident. to divorce the to be armed to the home is of self- right Amendment from the Amendment Second history of the Second Mc Heller and defense described indicates that the bear also Donald.")-, Cty. Kachalsky Westches home. The common-law applies outside the 2012) (2d ter, F.3d 89 & n. 10 Cir. using arms for self- “right having defence,” plain that text of the Second according (noting “[t]he preservation limit does not Blackstone, natural of Amendment protected “the home,” assuming arms to the 1 Wil- bear self-preservation.” resistance and applica has “some Blackstone, *144. the Amendment Commentaries liam public possession context of made tion” also Blackstone’s Commentaries omitted)). Notably, the (emphasis its au- firearms Congress would exceed clear analysis, this majority does not refute “pass prohibiting a law thority were it to Second hedging “[t]he any person bearing from arms.” William degree, to some Tucker, may may protect, George Black- Blackstone & St. general public right of a member With Notes stone’s Commentaries: of Ref- Diego, F.3d Cty. comprehensive in Peruta v. San Judge forth 1. See O’Scannlain’s of vacated 781 F.3d 1106 2014), analysis underpinnings (9th of the historical Cir. Amendment’s to some form (9th 2015). Cir. home set for self-defense outside the Maj. in public.” Op. by of carry mentally firearms firearms felons and the Thus, McDonald, ill, to Heller and pursuant forbidding carrying or of laws right to self-defense ex- individual’s places firearms sensitive such the home and tends outside includes schools government buildings, and or public arms in in some man- right to bear imposing qualifica- laws conditions and ner. tions on the commercial sale of arms. 626-27, 128 554 U.S. at S.Ct. 2783.

B. choose States between different bearing manners arms of for self- Importantly, while the Court enumerat- long right as the bear so defense ed four presumptively “longstanding lawful arms is accommo- for self-defense prohibitions,” it prohibitions did not list dated weapons concealed as one of them. In- Heller balances Second Amendment stead, weap- the Court identified concealed right with a bear state’s prohibitions ons as an example regulat- ability regulating open to choose between ing the manner which can individuals carry carry. or concealed Heller first noted right exercise their to keep and prohibiting that laws concealed were firearm for self-defense. The Court further examples right of how the secured prohibition noted that a carrying on con- right Second was not a handguns conjunction pro- with a carry any weapon whatsoever in hibition of open carry handguns would any manner whatsoever and for whatever destroy to bear arms: purpose: New laws in the history of our Nation rights, Like most secured have come close to the severe restriction the Second Amendment is not unlimited. handgun of the District’s ban. And some through From Blackstone the 19th-cen- of those few have been struck down. cases, tury commentators and courts State, Nunn v. Georgia Supreme routinely explained was prohibition Court struck down a on car not a to keep carry any weap- (even rying pistols openly though it up in any on whatsoever manner whatsoev- prohibition held a carrying See, purpose. er and whatever e.g., weapons). 1See Ga. at 251. In Andrews Sheldon, 346; 123; in 5 Blume Rawle State, v. Supreme Tennessee Court 152-153; Pomeroy Abbott 333. For ex- likewise held that a statute that forbade ample, majority 19th-century openly carrying pistol “publicly pri question courts to consider the held that vately, regard without place, to time or prohibitions on carrying were lawful under the Second circumstances,” Tenn. ^[165] at 187 (1871)], [ violated the state constitution See, Amendment or analogues. state (which provision al equated the court e.g., Chandler, State 5 La.Ann. at Amendment). 489-490; with the State, That 251; Nunn v. Ga. at so even *340, 2; though the statute did not generally see Kent re n. strict long guns. American Students’ Ibid. Blackstone n. 11 (G. 1884). Reid, Chase ed. See also State v. 1 Ala. Although we do not 616— (1840) (“A which, undertake an exhaustive historical anal- statute under the ysis today pretence of the full scope regulating, the Second amounts to a de Amendment, nothing in struction opinion right, our or which requires should be taken to long- east doubt on arms to be so borne as to render them standing prohibitions possession wholly on the useless for the purpose of de- 2009, May suit in and the Plaintiffs filed fence, clearly be unconstitution- would al”). filed suit in October 2009. Peruta Plaintiffs re- plaintiff groups challenged Both their 629, 114 2445. S.Ct. Id. weapons li- spective counties’ sum, that concealed- Heller indicates In censing policies under the Second Amend- proper be prohibitions ment. retain other means to individuals long as right to their Second Amendment exercise an prohibits individual from California However, for self-defense. bear handgun public. a concealed in ways exercising one’s Sec- where other § con- (prohibiting Penal Code Cal. foreclosed, a are Amendment ond public). of a loaded firearm in carrying concealed hand- on prohibition exceptions prohibition There are to.this on a “severe restriction” guns constitutes carry, including peace for offi- just like the right, Amendment the Second cers, military personnel, persons and unconstitutional District of Columbia’s 25620, §§ security. Id. private handgun ban Heller. exceptions are also for 25650. There activities, persons engaged particular Pro- Choice to II. Given California’s § hunting. Id. 25640. such as Open Carry, Pol- the Counties’ hibit Allowing Not for Concealed icies of general public, A member of the howev- Carry are Uncon- for Self-Defense er, handgun cannot a concealed with- stitutional concealed-weapons a license. The sher- out Plaintiffs have some As the county may applicant an a iff of a issue self-defense, public a firearm for hand- lawfully carry license to a concealed whether the task is to determine the next gun city county in the which light of the state’s policies, counties’ §§ works or resides. Id. applicant restrictions, are constitutional. open-carry However, applicant must be a 26155. (and majority does not have held We in) (or time spend substantial resident otherwise) that when -a law burdens hold applies, pass he or she county which scope falling conduct within check, take a firearms background guarantee, two- Second Amendment’s character, course, good moral demonstrate v. Jackson step inquiry appropriate. Id. “good cause.” and demonstrate Francisco, 746 F.3d City Cty.& San 26150, 26155, §§ (9th 2014). two-step “The Cir. interpretation “good The counties’ ‘(1) whether adopted have asks inquiry we point in this case. Both cause” is a focal pro- law conduct challenged burdens “good requiring cause” as counties define (2) by the tected Diego County defines particular need. San so, appropriate apply if courts to directs ” “a circumstances “good cause” as set of (quoting scrutiny.’ Id. at 960 level of applicant from the Chovan, distinguish[es] 735 F.3d United States (9th 2013)). him or her to be mainstream and causes Cir. Similarly, Yolo way.” in harm’s placed posture A. Procedural Califor- “valid” County’s policy requires written gun regime nia’s control Impor- a license. requesting for reasons desire policies general under both tantly, First, of this posture we consider the family protection self-protection con- in the context of California’s case “good cause.” does not constitute open-carry laws. The Richards cealed- and restrictions, the counties’ upholding unloaded—in locations. See Pe- Cal. that, the district courts relied on the fact § nal Code 25850 (prohibiting carry of a time, permitted at that California unloaded firearm); § loaded (prohibiting id. 26350 carry handguns open of under then Penal firearm).3 open carry of an unloaded Thus, 12031(g). § the district Code courts

found that the counties’ licensing schemes B. In the context ban of California’s substantially did not burden the open carry, on the counties’ ban on bear arms for self-defense. Peruta v. Cty. carry concealed is for self-defense 1106, Diego, F.Supp.2d San 1114 of (S.D. unconstitutional 2010) (“As matter, practical Cal. context of California’s choice to .the arise, should the need for self-defense prohibit open carry, the policies counties’ nothing in section 12031 open restricts the regarding the licensing of concealed carry of unloaded firearms and ammuni- are tantamount complete bans on the ready loading.”); tion for instant Richards Second Amendment right to bear arms Yolo, Cty. F.Supp.2d of self-defense, outside the home for and are (E.D. 2011) (“Under statutory Cal. therefore unconstitutional. scheme, if even Plaintiffs are denied a weapon license for self-defense Heller defined the to bear arms as purposes County, they from Yolo are still to be ready “armed and for offen- more than free to an wéap- unloaded sive or defensive action a case of conflict it, nearby person, on their load and use it person.” Heller, with another U.S. for self-defense in circumstances that Muscarello, 128 S.Ct. (quoting public occur in a setting:”). 524 U.S. at (Ginsburg, 118 S.Ct. 1911 J., Here, dissenting)). California has cho- However, during pendency of these open carry sen to ban grants but its citi- appeals, repealed California open-carry its ability zens the law, public firearms in and enacted legislation prohibit- broad through county-issued ing open carry of handguns public Thus, places. California, licenses. AB 2011-12 Leg., only way 2011-12 (Cal. 2011).2 Thus, Sess. average California law-abiding now citizen can generally prohibits openly carry lawful, individuals from in public firearm for the carrying handgun loaded or constitutionally protected purpose of self- —whether provided, among things, 26035, 26055; AB 144 (2) §§ other Penal Code 2. person guilty openly carrying "[a] of an transportation carrying any pistol, or of re- handgun unloaded person when that carries volver, capable being or other firearm con- upon person exposed his or her and un- upon person within a motor vehi- handgun loaded outside a vehicle while in or cle, unloaded and locked in the vehicle's (A) any following: on public place A or vehicle, trunk or in a locked container in the public incorporated city street in an city or carrying and directly the firearm to or from (B) county. and A prohibited street in a container, any motor vehicle within a locked unincorporated area of an county area of a or 25505, 25610, 25850; (3) §§ id. carrying a (C) city county. public place pro- A in a loaded or unloaded firearm in some unincor- county city hibited area county.'' or areas, porated 25850(a), 26350(a); §§ id. 26350(a)(1). § Cal. Penal Code (4) carrying a loaded per- firearm where the reasonably any son person believes that or the exceptions. permits There are California law (1) immediate, property any person possession grave is in of a loaded or unloaded fire- residence, person’s danger place arm at a and that the tempo- weapon residence, rary campsite, private property necessary preservation person for the of that lawfully possessed owned person, or property, § id. 26045. business, person’s within place Cal. were not a policies counties’ C. a'concealed-carry license. is with defense If ban, courts to the district remand Yolo Counties Diego and in San And appropriate would be Both the table. taken off has been option per- for one’s that concern specify policies light policies if the counties’ Even satisfy the safety alone does sonal prohibiting open laws the California of a for issuance requirement “good cause” bans, the complete were not tantamount license. remedy would be to remand proper not The district courts did district courts. general to exceptions California’s our recent case law have the benefit of carry do little to public against prohibition frame Amendment applying our Second to bear arms right an individual’s protect 963; Jackson, at Cho F.3d work. See exceptions for self-defense. public van, Additionally, the at 1130. 735 F.3d of law enforcement groups particular for changed has statutory scheme underlying pro- do not military personnel officers deci the district courts’ dramatically since Bearing arms on citizen. average tect the district courts ren sions. At the time of.business places and at property private decisions, permitted their California dered them- protect citizens to not allow does a fact that both dis carry, open unloaded And the public. by bearing arms selves upon relied to find trict courts attempting to “making or for exceptions substantially bur did not policies counties’ for situations of arrest” or make a lawful rights. See any Amendment den “immediate, offer no solace grave danger” 1114-15; Peruta, Rich F.Supp.2d at protect- about concerned to an individual However, ards, at F.Supp.2d family from unforeseen ing self effectively prohibited. carry is now open in public. threats Furthermore, might jurists reasonable Heller, are Here, exceptions as in to of material fact as issues find triable allow the adequately not limited and do substantially burden policies whether his or her ordinary citizen to exercise public firearm for self-defense and bear arms self-defense, alter- open there are whether Amend- meaning of the Second within the for self-de- to bear arms native channels ment, Supreme Court. govern- as defined fense, are sufficient whether there concealed-carry policies Thus, counties’ justify some interests mental open-carry restrictions, in the context of California’s the restrictions and whether Amendment’s interests. the Second to those sufficiently obliterate tailored ban are Chovan, 963; Jackson, in some manner to bear a firearm 746 F.3d See Thus, policies also Moore v. if the counties’ for self-defense. See at 1127. F.3d (7th part, or in upheld, 936-42 Cir. whole Madigan, 702 F.3d are to be 2012) opportunity have the open-and-con- ought (striking parties down issues, and in Illinois as to these regime present evidence cealed-carry regulatory oppor- to have the ought court justify “so sub- the district the state failed because evidence under tunity this right of armed to consider a curtailment of the stantial self-defense”). framework.4 correct 2011) 691-92, “rigor- (7th (applying remand, Cir. apply heightened I would 4. On a ” scrutiny’ Jackson, quite 'strict (noting review “if not ous” scrutiny. 746 F.3d at 964 training prior firing range required law that on the Second a “severe burden” firing ownership banned all gun but then scrutiny”); "requires higher level of [a] ranges). City Chicago, 651 F.3d see also Ezell remanding, the concurrence Instead A. Courts review a law’s constitution- ality context, in that larger would hold that the law’s concealed-weapons re- just Supreme as the Court did in here survive strictions intermediate scruti- Heller ny. approach The concurrence follows the Second, Third, Circuits, and Fourth A holistic approach to evaluating con- have held that which states limit the laws in context of the open-carry comports laws with right to bear arms to how courts persons who show have evaluated other allegedly laws that good cause or meet a similar elevated stan- infringed on rights. constitutional In the analyses But the dard. these cases are context, First Amendment for example, questionable they rely pre-Heller precedents our inform us that should we interpretations of the Second Amendment.5 inquiry cabin our to the challenged law if Heller Even and McDonald are seen as Rather, preferred before us. course is departure any from prior understanding other, to examine related laws to deter- Amendment, of the Second they are law mine the nature of the asserted constitu- and remain binding upon us. right tional and the extent of the burden See, on that right. Reed, e.g., Doe v. 561 Majority By III. The Ignoring Errs 186, 2811, U.S. 130 S.Ct. 177 L.Ed.2d 493 Open California’s Choice to Ban (2010) (examining other disclosure to laws Carry Focusing Myopically and on the constitutionality determine of a re- the Counties’ Bans Concealed on quirement to petition disclose signatories); Carry Chula Vista Citizens Jobs & Fair for Norris, (9th Competition v. 782 F.3d 520 majority’s The opinion is in not accord 2015) (en banc) Cir. (examining other dis- with our approach usual to broadly defined closure laws to determine the constitution- rights, constitutional appreci- and fails to ality of requirement a to disclose the iden- ate the in context which the Plaintiffs’ tity of petition a proponent). Similarly challenges to the counties’ policies arise. here, we must applicable examine Moreover, its historical analysis largely is open-carry restrictions to determine the irrelevant again because it appreci- fails to nature of Plaintiffs’ right asserted to some ate the in contexts which the cited cases carry in public and the extent of the bur- arose. policies den of the on that right. Drake, example, 5. For in the Third Circuit ond Amendment referred to the collec- upheld Jersey's requirement New prior right arms, that people to tive keep to and bear receiving a gun, license to and right either not an individual to self-defense. concealed, Burton, openly ("As 248 A.2d applicant language had at 526 to [Ajmendment "justifiable the [Second] show need.” 724 F.3d at itself 428. indicates it was framed rights The court held that with individual on restrictions mind. right it refers to "longstanding are Thus the collective 'of regulation[s] that the people’ keep to enjoyf] and bear arms presumptive in connec- constitutionality,” and ”). well-regulated tion 'awith militia.' "regulated falling thus conduct outside the scope of the guaran- Second Amendment’s Similarly Kachalsky, Circuit tee.” Id. at Jersey 434. Drake noted that New long noted New regulated that York had upheld had gun courts per- restriction possession and use of firearms. 701 F.3d at State, 545, mits in Siccardi v. 59 N.J. However, 284 A.2d 84-85. the Second Circuit acknowl- 533, (1971), Siccardi, turn, 538 relied edged upheld, "the law part, that Sills, 86, 521, on Burton v. 53 N.J. 248 A.2d what now the erroneous that belief (1968). Drake, 525-26 724 F.3d at 432. Bur- Second Amendment apply does not ton, however, erroneously held that the Sec- states.” Id. at 85. 186, Hardwick, v. 478 U.S. e.g., Bowers right to constitutional Defining B. (1986) 2841, 190, L.Ed.2d 140 narrowly is inconsistent 106 S.Ct. bear arms law, other holding that protection sodomy judicial (upholding with a funda- not “confer[] does Constitution freedoms fundamental engage homosexuals right upon mental about jurist feels of how Regardless Lawrence, 539 sodomy”), overruled Amendment, no there can be the Second (striking down 569, 123 S.Ct. U.S. the words construed that Heller doubt convic- law, holding that “criminal sodomy to encom broadly bear “keep and arms” self-defense, intimacy for adult consensual sexual right to tions an individual’s pass in- [plaintiffs’] vital right violate[d] to a collective in the home opposed The maintaining a militia. protected liberty privacy bear terests other constitutional has defined Fourteenth Court Due Clause Process See, Obergefell e.g., broadly Amendment”). as well. rights — U.S. -, 135 S.Ct. Hodges, v. however, reasons, that “if majority (2015) con (defining L.Ed.2d 609 violated, apply is to right cure marry, not right as stitutional protect Amendment the Second v. Lawrence marriage); to same-sex the Second apply not to right. The cure is 566-70, Texas, 123 S.Ct. 539 U.S. does protect (2003) (right pri L.Ed.2d Maj. Op. the Amendment.” not exist under sodomy); engage vacy, not over-simplistic analysis. This anis Connecticut, 381 U.S. Griswold chipped away have counties and California 1678, 14 485-86, L.Ed.2d 85 S.Ct. right to the bear at Plaintiffs’ the (1965) privacy, to not (right marital weapons licens a concealed enacting first devices). Thus, use birth control right to to a com is tantamount ing scheme not whether Obergefell was question the and then weapons, ban plete right a to same-sex plaintiffs the have carry Constitu enacting open an ban. the was whether question the marriage, meaningless if rights would become tional to a marriage man limitation of states’ by enacting them could obliterate states marry. to right violated the woman restric incrementally more burdensome was not whether in Griswold question reviewing court that a arguing to use tions while right a constitutional there was by itself the each restriction control, whether must evaluate rather but birth constitutionality. See determining violated its birth control prohibition on when state’s (“A privacy. Heller, 128 S.Ct. right marital 554 U.S. person’s a to regu which, pretence the under statute constitutional too here. The individual So to a destruction lating, amounts not protect seek to that Plaintiffs right so be requires arms right, or which se, carry but per right to concealed wholly them useless render borne as to guar- to self-defense right individual their clearly defence, be would purpose of may how States choose by Heller. anteed Reid, 1 (quoting State unconstitutional” they must right but accommodate this (1840))). Indeed, such Ala. 616-17 may be it. This distinction accommodate which rejected by Heller approach defining subtle, Narrowly it is but critical. in the con concealed-carry laws discussed substantive may disguise a law’s right Id.6 See, prohibitions. open-carry text a freedoms. impact on constitutional regulation viewing challenge to California's approach, a court re- majority’s Under the narrowly By defining the asserted right carry openly.” Maj. firearm Op. 942. as a right carry, majority to concealed majority’s holding California —that recognize impact fails to the real of the must accommodate the right to bear arms policies on the counties’ Second Amend- in public through open carry unsup- —is right ment and bear arms. ported by Supreme precedent Court contrary to principles. federalism The Su- right C. Given to bear arms for preme Court has never dictated how states beyond extends self-defense must accommodate a right to bear arms. home, must states accommodate cases, The majority’s cited also cited in to self-defense Heller, See, point make this clear. e.g., explained above, As given the right to .Reid, (“We 1 Ala. at 616-17 do not desire bear arms for self-defense exists outside to be understood maintaining, that in home, it follows then that states must regulating arms, bearing manner of right. accommodate that pro- While Heller authority Legislature has no hibits completely states from banning car- other limit than own its discretion. A stat- rying a self-defense, firearm in public for it which, ute pretence under the regulat- leaves states room to choose what manner ing, amounts to a right, destruction of the is allowed. may States choose how or which requires arms to be so borne as right by accommodate the allowing only to render wholly them useless for the pur- open carry, only carry, or some pose defence, clearly would be unconsti- However, combination of both. states may tutional.”); State, Nunn v. 1 Ga. not disallow both manners of as the (1846) (“A law merely which inhibits the counties and California have done here. wearing of certain weapons in a concealed The majority concedes that “[t]he Sec- manner is valid. But so far as it cuts off ond or may protect exercise of the of the citizen degree some of a member of altogether arms, or, to bear under the general public in pub- firearm mode, color of prescribing renders the Maj. However, lic.” Op. 927. it claims that itself useless—it is in conflict with “[i]f there is right, such it only right Constitution, void.”).7 a is a the Thus, and the open of carrying State, the 473, glish (1871) (“The firearms could not v. 35 Tex. 476 consider the fact that in some counties (cid:127)word 'arms' in the we connection find it in ordinary citizen cannot a also States, the constitution of the United refers to weapon. soldier, the arms of a militiaman or and the sense.”); military word is used in its State v. majority Because the miscasts the issue in Workman, 367, 9, (1891) 35 W.Va. 14 S.E. 11 appeals, these analysis its historical largely is (limiting "weapons "arms” mean to those irrelevant. But there are also substantive militia, warfare to be used such as problems analysis. with that Some authorities swords, rifles, muskets, guns, and to —arms unpersuasive are they rely pre-Heller as defending be used in the state and civil liber- interpretation of Second Amendment as ty”). being right limited to a to bear arms for purposes maintaining "well-regulated” authorities, Still other such as Robertson v. See, State, e.g., Baldwin, militia. Aymette 275, 326, 21 Tenn. 165 U.S. 17 S.Ct. 41 L.Ed. (1840) (limiting (1897), 158 "arms” to mean 715 are they value limited because those usually "such employed as are in civi- fail to concealed-weapon disclose whether the warfare, lized and that constitute the ordinary law conjunction permit- existed in with laws military Buzzard, equipment”); ting open State v. 4 carry, Ark. or do not indicate whether (1842) (rejecting interpreted individual court the Second Amendment self-defense; right Amendment holding to to be right to a collective related to limited right militia); militia, well-regulated was tied to En- instead of an individual including class privileged for that states licenses suggesting errs majority (like government officials high-ranking arms bear must accommodate owners, mili- and former business judges), carry. through open officers, denial and to the tary police and requirement Moreover, majority’s citizens. majority of to the vast of licenses right to bear accommodate that states McDonald, See, 561 U.S. e.g., States carry is unwise. open through arms (“After War, many of the Civil S.Ct. con- allowing for good reasons may have 180,000 who African Americans the over carry. See banning open carry but cealed Army returned in the Union served Volokh, Right Implementing Eugene sys- Confederacy, where the old States Arms Bear Keep and Self-Defense: to disarm them made efforts were tematic A Re- Framework and Analytical An States The laws some other blacks. L. Rev. 56 UCLA Agenda, search African-Americans formally prohibited (“In (2009) places, many (citations omit- firearms.” possessing from many people, frighten likely is openly ted)); Equality, of Racial Congress Br. for as as well ostracism lead to social and to Supporting Appel- Amicus Curiae Inc. Different police.”). with confrontations 15, 20, 24, (arguing ECF No. lants opinions about different states have history gun evidences California’s control carry is carry or open whether in- minorities to disarm ethnic attempts Heller, that, point is under preferable. The Heritage, Mexican cluding persons of con- open and both cannot prohibit states Asian-Americans, and African-Ameri- eviscerating carry, thus al. as cans); Pink Pistols et Br. for cf. for self-defense.8 arms in bear Appellants Supporting Amici Curiae self-defense, (“[Wjithout No. 240 ECF Discre- Unfettered The Counties’ IV. (alteration and gay rights.” no are there Deny Concealed to Grant tion omitted)). licensing Whatever emphasis Troubling Weapons Licenses inor in California place remains scheme I would majority Finally, while states, bear other on Second this case decide for a right only must not become raised non-frivo- have grounds, Plaintiffs individuals. class of privileged counties’ as to whether the lous concerns license vio- obtains a as who discretion and con- Clause Equal Protection

lates the restraint. prior an unlawful stitutes not a “sec The Second Amendment review, I note but ripe for are not issues McDonald, See Amendment. ond-class” that licensing scheme discretionary that a 780, 130 3020. S.Ct. 561 U.S. permits to weapons grants that the Second think Undoubtedly some troubling.9 would be individuals privileged society outmoded is might lead discretionary schemes Such open of the California policies in the context Territory, 9 Walburn v. also self-defense. See 23, (1899). 59 P. 972 ban. Okla. appreciation Despite belated 8. California’s Indeed, by the submitted a declaration 9. majority appeals, the importance these point Diego indicates Hence, County of San now grants to intervene. its motion licensing policy no reason to of the concealed party, there is is that California very rare policies. carry “a inquiry to the counties' our to make confine Rather, supports ex- intervention California's privilege.” challenges the counties’ amining Plaintiffs’ 956 standing army

where our pride tial, is the (2) or important; and a reasonable fit Nation, our where police well-trained between the challenged regulation and the personal provide security, forces and objective.” Chovan, asserted 735 F.3d at gun where violence is a serious problem. debatable, That perhaps but what is disputes No one County De not debatable is that it is not the role of fendants and California significant, have [Supreme] pronounce Court to th[e] substantial, important interests Second Amendment extinct. promoting public safety reducing gun

Heller, 636, 554 U.S. at 128 S.Ct. 2783. violence. Fyock See v. Sunnyvale, 779 Today the majority takes a step toward 991, (9th 2015) 1000 F.3d Cir. (“Sunny extinguishing the Second Amendment vale’s interests in promoting public safety right recognized by Supreme Court in and reducing violent crime are substantial Heller and McDonald. important interests.”). government

With no clear guidance from However, the Court County Defendants and regarding how to evaluate laws that re- California have failed provide sufficient strict and obliterate to keep and evidence showing that there ais reason self-defense, bear arms for the Second able fit between the challenged laws and Amendment is becoming “[a] constitutional objectives. two Chovan, these See 735 guarantee subject to judges’ future assess- at 1140-41 (stating F.3d that it is the gov ments” which is “no constitutional guaran- ernment’s burden establish that 634, tee at all.” Id. at 128 challenged S.Ct. 2783. law survives intermediate scru tiny); Corp. Catrett, Celotex v. 477 U.S. Accordingly, I dissent. 317, 323, 2548, 106 S.Ct. 91 L.Ed.2d 265 (1986) SILVERMAN, Judge, Circuit with (explaining summary judgment BEA, whom joins, Circuit Judge appropriate if “the nonmoving party dissenting: has failed to make a sufficient showing on an essential element of her case with re I dissent from majority’s opinion spect to which she has the burden of because the challenged laws do not survive proof’). any of heightened form scrutiny —strict intermediate scrutiny. Heller, See v. D.C. evaluating the constitutionality of a 570, U.S. 629 n. 128 S.Ct. under law scrutiny, intermediate a review- (2008) L.Ed.2d 637 (explaining that “ra ing court that, must assure in formulating “ scrutiny” tional-basis is inappropriate for their judgments, lawmakers have ‘drawn reviewing Second Amendment challenges); reasonable inferences based on substantial ” see also Chovan, United States 735 F.3d evidence.’ Turner Broad. Sys., Inc. v. — 1127, 1137(9th 2013), denied, Cir. cert. F.C.C., 180, 195, U.S. 117 S.Ct. U.S. -, 135 S.Ct. (1997) L.Ed.2d 146 added) 137 L.Ed.2d 369 (emphasis (2014) (“In Heller, Supreme Court did (quoting Sys., Turner Broad. Inc. v. not specify what F.C.C., level of scrutiny courts 622, 666, 512 U.S. 114 S.Ct. must apply to a challenged statute under (1994)); L.Ed.2d see City also the Second Amendment. The Heller Court Playtime Theatres, Renton v. Inc., 475 did, however, indicate that 41, 51-52, rational basis U.S. 106 S.Ct. 89 L.Ed.2d review is not (1986) appropriate.”). The more le 29 (explaining that the evidence that nient the two standards —intermediate the lawmakers relied on must “reason- be “(1) scrutiny requires government’s the ably believed to be relevant prob- — objective stated significant, to be government substan- lem” the addressing). is In crimi- their of either carry license because lawmakers California evaluating whether have not com- they or because record based nal inferences reasonable have drawn of firearms necessary course to evidence, the important pleted it is substantial issue training. claims at constitutional that the note all provide not seek case do

in this rec- in the simply no evidence There is the with unrestricted citizens California establishing licensing a that showing ord pub- in firearms carry concealed ability to law-abiding citi- trained that allows regime chal- do not Plaintiffs contrary, To the lic. public in firearms carry zens and §§ Penal Code lenge California In- gun in violence. in an increase results (1) person a that requirements: 26150’s in the record deed, only evidence the in firearm a concealed carry desiring pro- Amici opposite. exact have the shows li- carry a concealed first public obtain that showing concealed-car- evidence vided (2) that to obtain cense; that in order and disproportionately are license holders ry law-abiding must be person the license including vi- likely to commit less crimes— and com- character moral good citizen assault aggravated as crimes such olent firearms necessary course the plete general deadly weapon the awith —than training. a con- adoption of and the population, challenge Califor- Thus, Plaintiffs regime as licensing such scheme carry licensing nia’s concealed areas by Plaintiffs other proposed one Die- San implemented and interpreted no effect on either had country has it County to the extent County and Yolo go violent helped reduce crime or has violent citizens, who law-abiding prohibits certain Brief for Governors Amicus See crime. training and necessary completed the have Maine, Louisiana, Mississippi, Texas, license, car- from necessary for applied 10-15; Dakota Oklahoma, and South because public firearm rying a concealed En- Law International Brief for Amicus County and Diego satisfy San they cannot Trainers Associ- Educators forcement show- heightened required County’s Yolo evi- Accordingly, the ation, 22-26. al. at et firearm need particular ing of to show is insufficient in the record dence This purposes. for self-defense public fit between is a there reasonable the Coun- important because distinction stat- government’s laws challenged pro- not have and California ty Defendants objectives. ed evidence, substantial let alone any vided in this Moreover, undisputed facts pre- evidence, showing specifically fit not a reasonable show that there case citizens, in the law-abiding trained venting allows arbitrarily law California because firearms, carrying concealed from use of different standards forth to set counties its safety and public helps increase firearms license a concealed obtaining Defen- County gun violence. reduces expla- or rational any reasonable without de- merely provided evidence have dants example, For for the differences. nation violence dangers gun tailing general County, Stan- Fresno County, Sacramento is of This evidence firearms. and concealed County, Cali- Ventura County, and islaus in this issues questionable relevance 26150(a)’s “good § Penal Code fornia be- distinguish it does case because ap- is satisfied requirement cause” by peo- committed violence firearm tween that he wishes stating simply plicant carry license are either ple who for self-defense firearm carry a such qualified obtain holders are counties contrast, two by purposes. firearm violence committed license Diego appeals present issue a concealed at not obtain who could people —San County County and Yolo desire to car- ion that the appropriate remedy is to re- —a ry in public a firearm self-protection for mand this case to the district courts. itself purposes by is insufficient satisfy to 26150(a)’s § “good requirement. cause” I. argues California local officials are This case turns on applicable how the best situated to determine what applicants issue is framed. majority states the required should be show order to issue narrowly “Second —whether satisfy “good requirement; and, cause” Amendment ... preserved] protects] therefore, it is reasonable to confer this carry in pub- firearms County discretion to its However, sheriffs. Maj. lic.” Op. 924. In contrast, the dissent1 it appear does not that California’s sheriffs asks whether “[i]n context Califor- exercising are this discretion in a rational nia’s choice to prohibit open carry,” the

way. Neither California nor County counties’ restrictions on provided Defendants have any explanation violate the Second Amendment. Dissent it is why reasonable and rational for a added). (emphasis desire to firearm in for self- purposes defense to be insufficient to con- aAs result of this difference in framing “good stitute cause” in Yolo (popu- County applicable issue, majority’s argu- -1) 213,016 lation when right next door in ments and the dissent’s arguments are County Sacramento (population 1,501,3352 often like ships “two passing in the night.” ) it is sufficient “good constitute cause.” example, For the majority engages in a There be a cannot reasonable fit if the lengthy academic exercise to reach the here, 26150(a)’s same § “good standard — conclusion that “the carrying of concealed cause” requirement arbitrarily applied weapons —is was consistently forbidden in ways different county from county England 1541; beginning was consis- any without explanation for the differ- tently forbidden in colonies; the American ences. and was consistently by forbidden Maj: states.” Op. 941. This historical analy- sum, I would hold that the challenged sis is relevant issue framed laws are unconstitutional under the Second majority, but it is irrelevant to the issue Amendment because they do not survive framed the dissent again “because it any of heightened form scrutiny analysis, appreciate' fails to contexts which therefore, I would reverse. the cited (em- cases arose.” Dissent 952 added). phasis SMITH, N.R. Circuit Judge, dissenting: I join the dissent of Judge Callahan. I majority’s analysis historical is also agree that the majority “by errs answering unnecessary to resolve the issue as framed only a question narrow the Sec- by the majority opinion. In —whether District of ond protects a right Heller, Columbia v. the Supreme Court concealed firearms in public.” Dissent 946. explicitly recognized that prohibitions on I separately write express my opin- carrying concealed weapons appro- were Bureau, 1. fornia, United States Census State & http census.gov/quickfacts/ ://www. QuickFacts, County California, County, Yolo table/PST045215/06067,00 (last visited June http://www.census.gov/quickfacts/table/PST 2, 2016). 045215/06113,00 (last 2, 2016). visited June 1. All references to the dissent refer Bureau, United States Census State & QuickFacts, Judge County dissent Callahan. County, Sacramento Cali-

959 However, the under carry. open unloaded which manner in the regulating for priate (loaded and scheme, open current their exercise could individuals unloaded) 949- Dissent See 626, prohibited. is 570, 128 554 U.S. rights.2 Amendment dissent, the by the (2008). Further, noted the as If 50. 2783, 637 171 L.Ed.2d S.Ct. of the benefit not have courts did California district truly whether us is before issue Jackson, 746 F.3d in carry, recent decisions isolation, concealed our prohibit can, in Chovan, F.3d 735 v. citing to States and United disposition 953 simple memorandum 2013). (9th 951. See Dissent opin- A formal Cir. sufficient. 1127 be would Heller en banc of our gathering ion, the much less that, consistently concluded have We answer necessary to not be would panel, intervening an with confronted when majority. the framed the issue approach would law, better the change the dissent’s agree I with Accordingly, district court for the to remand be in this issue the relevant articulation legal the new under the case consider the counties’ not review should case. We See, Trainer Wort Betz v. e.g., framework. licensing schemes (9th 1169, Cir. 1171 Co., F.3d ham & 610 them Instead, review we must isolation. bet 2010) is the (discussing why “remand statutory underlying the context the intervening an when procedure” ter consis review a whole. That scheme analysis further required in the law change approach Supreme Court’s tent with case); v. Hazel Baker the facts of our with also consistent It Heller.3 Valdez), (In 270 F.3d re Exxon wood inqui two-step Second court’s 2001) that, (9th in cases (noting Cir. Cty. San City & v. ry. See Jackson change intervening there is where (9th 953, 961 Cir. Francisco, 746 F.3d ap “the better law, often be it will step that, the second 2014) (noting under court for the district remand proach” should consider courts inquiry, standards”); White appropriate “apply open “leave regulations firearm whether Ariz., Dep’t Tribe v. Apache Mountain self-defense”). Ac for channels alternative (9th Fish, 1285-86 F.2d & Game context ignore we cannot cordingly, 1981) (“This case may remand a court Cir. the counties’ surrounding further consider for court the district prohibitions. are or laws that cases when new ation be have the decision to influence likely II initial consider after the effective come appeals, of these During pendency ation.”). statutory scheme underlying California’s to deter- course, have discretion we Of courts the district time changed. At up taken may be questions “what mine decisions, permitted California their issued involved, prohibitions part, various Heller recognized 3. also Court Supreme 2. The (i) ait that made Columbia in the District reviewing a stat- important when context was firearm, (ii) unregistered carry an crime by the Sec- regulates rights secured ute handguns, and registration of which, prohibited the under "A statute ond Amendment. handgun. carry a (iii) required a license to destruc- to a regulating, amounts pretence of 574-75, Heller, 128 S.Ct. at U.S. be requires right, or which tion of pro- review these did not Supreme Court wholly useless render them so borne as isolation, instead concluded but hibitions defence, clearly un- would be purpose of "totally together prohibitions Heller, various 554 U.S. constitutional.” possession in home.” Reid, handgun ban[ned] 1 Ala. (quoting State S.Ct. 2783 S.Ct. 2783. Id. at (1840)). 616-17 for the appeal.” resolved first time on Sin- REAT; ESTATE OF Jimma Pal

gleton Wulff, 106, 121, v. James 428 U.S. 96 S.Ct. Reat; Pal Diag; Rebecca Awok Ran 2868, (1976). 49 L.Ed.2d 826 We typically Pal; Changkuoth Pal; Joseph Ko feel most resolving comfortable such an long, Plaintiffs-Appellees, it has issue when nonetheless been “exten- v. sively litigated in the district court” or RODRIGUEZ, Juan Jesus individually, proper “where the beyond resolution is Defendant-Appellant. any Beck City doubt.” Upland, 527 (9th 2008) F.3d No. Cir. 15-1001 (quoting Golden Gate Hotel City Ass’n v. Cty.& United States Court Appeals, Francisco, (9th San 18 F.3d Circuit. Tenth 1994)). However, Cir. neither circumstance May FILED present here. The issue at hand —wheth- As Amended on Rehearing er the counties’ licensing scheme for con- in part Aug. violates the Second Amend- En Reconsideration Banc Denied light ment in of California’s restrictions on Aug. 2016.* open carry not litigated in the dis- —was Further, trict courts. apparent from the various opposing my views of col-

leagues, proper resolution of this issue is any

not beyond doubt.

Indeed, we would benefit greatly from

the district courts’ expertise in developing

the record and applying the appropriate light

standards in of California’s significant

intervening change legal in its framework.

I agree that the “challenged law burdens

conduct protected, by the Second Amend- Chovan,

ment.” 735 F.3d at 1136. I would

therefore remand allow the district initially

courts to determine “apply

appropriate level of scrutiny.” Id. I

Accordingly, dissent. * Lucero, Hartz, Judges Phillips grant and Moritz petition would for en rehearing. banc

Case Details

Case Name: Edward Peruta v. County of San Diego

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 9, 2016

Citation: 824 F.3d 919

Docket Number: 10-56971

Court Abbreviation: 9th Cir.