Case Information
*1 OCTOBER TERM, 2021 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL . v . BRUEN, SUPERINTENDENT OF NEW
YORK STATE POLICE, ET AL .
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 20–843. Argued November 3, 2021—Decided June 23, 2022
The State of New York makes it a crime to possess a firearm without a
license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. N. Y. Penal Law Ann. §400.00(2)(f ). An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g. , In re Klenosky , 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257.
Petitioners Brandon Koch and Robert Nash are adult, law-abiding
New York residents who both applied for unrestricted licenses to carry
a handgun in public based on their generalized interest in self-defense.
The State denied both of their applications for unrestricted licenses,
allegedly because Koch and Nash failed to satisfy the “proper cause”
requirement. Petitioners then sued respondents—state officials who
oversee the processing of licensing applications—for declaratory and
injunctive relief, alleging that respondents violated their Second and
Fourteenth Amendment rights by denying their unrestricted-license
applications for failure to demonstrate a unique need for self-defense.
The District Court dismissed petitioners’ complaint and the Court of
Appeals affirmed. Both courts relied on the Second Circuit’s prior de-
cision in
Kachalsky County of Westchester
,
Syllabus
Held : New York’s proper-cause requirement violates the Fourteenth
Amendment by preventing law-abiding citizens with ordinary self-de-
fense needs from exercising their Second Amendment right to keep and
bear arms in public for self-defense. Pp. 8–63.
(a) In
District of Columbia Heller
,
Chicago
,
(1) Since Heller and McDonald , the Courts of Appeals have devel- oped a “two-step” framework for analyzing Second Amendment chal- lenges that combines history with means-end scrutiny. The Court re- jects that two-part approach as having one step too many. Step one is broadly consistent with Heller , which demands a test rooted in the Sec- ond Amendment’s text, as informed by history. But Heller and McDon- ald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller ’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
(2) Historical analysis can sometimes be difficult and nuanced,
but reliance on history to inform the meaning of constitutional text is
more legitimate, and more administrable, than asking judges to “make
difficult empirical judgments” about “the costs and benefits of firearms
restrictions,” especially given their “lack [of] expertise” in the field.
McDonald
,
requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical under- standing. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution
Syllabus
can, and must, apply to circumstances beyond those the Founders spe-
cifically anticipated, even though its meaning is fixed according to the
understandings of those who ratified it. See,
e.g
.,
United States
v.
Jones
,
To determine whether a firearm regulation is consistent with the
Second Amendment,
Heller
and
McDonald
point toward at least two
relevant metrics: first, whether modern and historical regulations im-
pose a comparable burden on the right of armed self-defense, and sec-
ond, whether that regulatory burden is comparably justified. Because
“individual self-defense is ‘the
central component
’ of the Second
Amendment right,” these two metrics are “ ‘
central
’ ” considerations
when engaging in an analogical inquiry.
McDonald
,
(1) It is undisputed that petitioners Koch and Nash—two ordi-
nary, law-abiding, adult citizens—are part of “the people” whom the
Second Amendment protects. See ,
Syllabus
(2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. To do so, respondents appeal to a va- riety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is cre- ated equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller , 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or post- dates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62.
(i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given ’s statement that the Second Amendment “codified a right ‘inherited from our Eng- lish ancestors.’ ” 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some spe- cial need for self-protection. Pp. 30–37.
(ii) Respondents next direct the Court to the history of the Col- onies and early Republic, but they identify only three restrictions on public carry from that time. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue. The statutes essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by car- rying of “dangerous and unusual weapons.” See 554 U. S., at 627. Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are today “the quintes- sential self-defense weapon.” Id ., at 629. Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. Pp. 37–42.
(iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heav- ily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.
Syllabus
Common-Law Offenses . As during the colonial and founding peri- ods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But there is no evidence indicating that these com- mon-law limitations impaired the right of the general population to peaceable public carry.
Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pis- tols and other small weapons. But the antebellum state-court deci- sions upholding them evince a consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues.
Surety Statutes . In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. While New York presumes that individu- als have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee.
In sum, the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms op- erated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. Pp. 42–51.
(iv) Evidence from around the adoption of the Fourteenth
Amendment also does not support respondents’ position. The “discus-
sion of the [right to keep and bear arms] in Congress and in public
discourse, as people debated whether and how to secure constitutional
rights for newly free slaves,”
Heller
, 554 U. S., at 614, generally
demonstrates that during Reconstruction the right to keep and bear
arms had limits that were consistent with a right of the public to peace-
ably carry handguns for self-defense. The Court acknowledges two
Texas cases—
English
v.
State
,
Syllabus (v) Finally, respondents point to the slight uptick in gun regu-
lation during the late-19th century. As the Court suggested in
Heller
,
however, late-19th-century evidence cannot provide much insight into
the meaning of the Second Amendment when it contradicts earlier ev-
idence. In addition, the vast majority of the statutes that respondents
invoke come from the Western Territories. The bare existence of these
localized restrictions cannot overcome the overwhelming evidence of
an otherwise enduring American tradition permitting public carry.
See , 554 U. S., at 614. Moreover, these territorial laws were
rarely subject to judicial scrutiny, and absent any evidence explaining
why these unprecedented prohibitions on all public carry were under-
stood to comport with the Second Amendment, they do little to inform
“the origins and continuing significance of the Amendment.”
Ibid.
; see
also The Federalist No. 37, p. 229. Finally, these territorial re-
strictions deserve little weight because they were, consistent with the
transitory nature of territorial government, short lived. Some were
held unconstitutional shortly after passage, and others did not survive
a Territory’s admission to the Union as a State. Pp. 58–62.
(vi) After reviewing the Anglo-American history of public carry,
the Court concludes that respondents have not met their burden to
identify an American tradition justifying New York’s proper-cause re-
quirement. Apart from a few late-19th-century outlier jurisdictions,
American governments simply have not broadly prohibited the public
carry of commonly used firearms for personal defense. Nor have they
generally required law-abiding, responsible citizens to “demonstrate a
special need for self-protection distinguishable from that of the general
community” to carry arms in public.
Klenosky
, 75 App. Div. 2d, at 793,
428 N. Y. S. 2d, at 257. P. 62.
(c) The constitutional right to bear arms in public for self-defense is
not “a second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees.”
McDonald
,
T HOMAS , J., delivered the opinion of the Court, in which R OBERTS , C. J., and A LITO , G ORSUCH , K AVANAUGH , and B ARRETT , JJ., joined. A LITO , J., filed a concurring opinion. K AVANAUGH , J., filed a concurring opinion, in which R OBERTS , C. J., joined. B ARRETT , J., filed a concurring opinion. , J., filed a dissenting opinion, in which S OTOMAYOR and K AGAN , JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES
_________________ No. 20–843 _________________ NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL ., PETITIONERS KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
J USTICE T HOMAS delivered the opinion of the Court.
In
District of Columbia
v. , 554 U. S. 570 (2008),
and
McDonald
v.
Chicago
,
The parties nevertheless dispute whether New York’s li- censing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the gov- ernment issues licenses to carry based on objective criteria. But in six States, including New York, the government fur- ther conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an ap- plicant demonstrates a special need for self-defense, we con- clude that the State’s licensing regime violates the Consti- tution.
I A New York State has regulated the public carry of hand- guns at least since the early 20th century. In 1905, New York made it a misdemeanor for anyone over the age of 16 to “have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license . . . issued to him by a police mag- istrate.” 1905 N. Y. Laws ch. 92, §2, pp. 129–130; see also 1908 N. Y. Laws ch. 93, §1, pp. 242–243 (allowing justices of the peace to issue licenses). In 1911, New York’s “Sulli- van Law” expanded the State’s criminal prohibition to the possession of all handguns—concealed or otherwise—with- out a government-issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could “issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of pos- sessing such weapon” only if that person proved “good moral character” and “proper cause.” 1913 N. Y. Laws ch. 608, §1, p. 1629.
Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, pun- ishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West 2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and (3)(b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Mean- while, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to 15 years in prison. §§265.03(3) (West 2017), 70.00(2)(c) and (3)(b), 80.00(1)(a).
A license applicant who wants to possess a firearm
at
home
(or in his place of business) must convince a “licensing
officer”—usually a judge or law enforcement officer—that,
among other things, he is of good moral character, has no
history of crime or mental illness, and that “no good cause
exists for the denial of the license.” §§400.00(1)(a)–(n)
(West Cum. Supp. 2022). If he wants to carry a firearm
outside
his home or place of business for self-defense, the
applicant must obtain an unrestricted license to “have and
carry” a concealed “pistol or revolver.” §400.00(2)(f ). To
secure that license, the applicant must prove that “proper
cause exists” to issue it.
Ibid.
If an applicant cannot make
that showing, he can receive only a “restricted” license for
public carry, which allows him to carry a firearm for a lim-
ited purpose, such as hunting, target shooting, or employ-
ment. See,
e.g.
,
In re O’Brien
, 87 N. Y. 2d 436, 438–439, 663
N. E. 2d 316, 316–317 (1996);
Babernitz
v.
Police Dept. of
City of New York
, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d
309, 311 (1978);
In re O’Connor
,
No New York statute defines “proper cause.” But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g. , In re Klenosky , 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This “special need” standard is demanding. For ex- ample, living or working in an area “ ‘noted for criminal ac- tivity’ ” does not suffice. In re Bernstein , 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence “of particular threats, at- tacks or other extraordinary danger to personal safety.” In re Martinek , 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan , 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of “ ‘extraordinary personal danger, documented by proof of recurrent threats to life or safety’ ” (quoting 38 N. Y. C. R. R. §5–03(b))).
When a licensing officer denies an application, judicial re- view is limited. New York courts defer to an officer’s appli- cation of the proper-cause standard unless it is “arbitrary and capricious.” In re Bando , 290 App. Div. 2d 691, 692, 735 N. Y. S. 2d 660, 661 (2002). In other words, the decision “must be upheld if the record shows a rational basis for it.” Kaplan , 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The rule leaves applicants little recourse if their local licensing officer denies a permit.
New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are “shall issue” jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting li- censing officials discretion to deny licenses based on a per- ceived lack of need or suitability. 1 Meanwhile, only six —————— [1] See Ala. Code §13A–11–75 (Cum. Supp. 2021); Alaska Stat. §18.65.700 (2020); Ariz. Rev. Stat. Ann. §13–3112 (Cum. Supp. 2021); Ark. Code Ann. §5–73–309 (Supp. 2021); Colo. Rev. Stat. §18–12–206 (2021); Fla. Stat. §790.06 (2021); Ga. Code Ann. §16–11–129 (Supp. 2021); Idaho Code Ann. §18–3302K (Cum. Supp. 2021); Ill. Comp. Stat., ch. 430, §66/10 (West Cum. Supp. 2021); Ind. Code §35–47–2–3 (2021); Iowa Code §724.7 (2022); Kan. Stat. Ann. §75–7c03 (2021); Ky. Rev. Stat. Ann. §237.110 (Lexis Cum. Supp. 2021); La. Rev. Stat. Ann. §40:1379.3 (West Cum. Supp. 2022); Me. Rev. Stat. Ann., Tit. 25, §2003 (Cum. Supp. 2022); Mich. Comp. Laws §28.425b (2020); Minn. Stat. §624.714 (2020); Miss. Code Ann. §45–9–101 (2022); Mo. Rev. Stat. §571.101 (2016); Mont. Code Ann. §45–8–321 (2021); Neb. Rev. Stat. §69–2430 (2019); Nev. Rev. Stat. §202.3657 (2021); N. H. Rev. Stat. Ann. §159:6 (Cum. Supp. 2021); N. M. Stat. Ann. §29–19–4 (2018); N. C. Gen. Stat. Ann. §14–415.11 (2021); N. D. Cent. Code Ann. §62.1–04–03 (Supp. 2021); Ohio Rev. Code Ann. §2923.125 (2020); Okla. Stat., Tit. 21, §1290.12 (2021); Ore. Rev. Stat. §166.291 (2021); 18 Pa. Cons. Stat. §6109 (Cum. Supp. 2016); S. C. Code Ann. §23–31–215(A) (Cum. Supp. 2021); S. D. Codified Laws §23– 7–7 (Cum. Supp. 2021); Tenn. Code Ann. §39–17–1366 (Supp. 2021); Tex. Govt. Code Ann. §411.177 (West Cum. Supp. 2021); Utah Code §53–5– States and the District of Columbia have “may issue” licens- ing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New ——————
704.5 (2022); Va. Code Ann. §18.2–308.04 (2021); Wash. Rev. Code
§9.41.070 (2021); W. Va. Code Ann. §61–7–4 (2021); Wis. Stat. §175.60
(2021); Wyo. Stat. Ann. §6–8–104 (2021). Vermont has no permitting
system for the concealed carry of handguns. Three States—Connecticut,
Delaware, and Rhode Island—have discretionary criteria but appear to
operate like “shall issue” jurisdictions. See Conn. Gen. Stat. §29–28(b)
(2021); Del. Code, Tit. 11, §1441 (2022); R. I. Gen. Laws §11–47–11
(2002). Although Connecticut officials have discretion to deny a
concealed-carry permit to anyone who is not a “suitable person,” see
Conn. Gen. Stat. §29–28(b), the “suitable person” standard precludes
permits only to those “individuals whose conduct has shown them to be
lacking the essential character of temperament necessary to be entrusted
with a weapon.”
Dwyer
v.
Farrell
,
Jersey have analogues to the “proper cause” standard. 2 All
of these “proper cause” analogues have been upheld by the
Courts of Appeals, save for the District of Columbia’s, which
has been permanently enjoined since 2017. Compare
Gould
v.
Morgan
, 907 F. 3d 659, 677 (CA1 2018);
Kachalsky
v.
County of Westchester
,
B
As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group orga- nized to defend the Second Amendment rights of New York- ers. Both Koch and Nash are members.
In 2014, Nash applied for an unrestricted license to carry a handgun in public. Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense. In early 2015, the State denied Nash’s ap- plication for an unrestricted license but granted him a re- stricted license for hunting and target shooting only. In late 2016, Nash asked a licensing officer to remove the re- strictions, citing a string of recent robberies in his neigh- borhood. After an informal hearing, the licensing officer de- nied the request. The officer reiterated that Nash’s existing license permitted him “to carry concealed for purposes of off —————— [2] See Cal. Penal Code Ann. §26150 (West 2021) (“Good cause”); D. C. Code §§7–2509.11(1) (2018), 22–4506(a) (Cum. Supp. 2021) (“proper rea- son,” i.e. , “special need for self-protection”); Haw. Rev. Stat. §§134–2 (Cum. Supp. 2018), 134–9(a) (2011) (“exceptional case”); Md. Pub. Saf. Code Ann. §5–306(a)(6)(ii) (2018) (“good and substantial reason”); Mass. Gen. Laws, ch. 140, §131(d) (2020) (“good reason”); N. J. Stat. Ann. §2C:58–4(c) (West Cum. Supp. 2021) (“justifiable need”).
road back country, outdoor activities similar to hunting,” such as “fishing, hiking & camping etc.” App. 41. But, at the same time, the officer emphasized that the restrictions were “intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public.” Ibid.
Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting. In late 2017, Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms. Like Nash’s application, Koch’s was denied, except that the officer permitted Koch to “carry to and from work.” Id ., at 114.
C
Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensse- laer County. Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted- license applications on the basis that they had failed to show “proper cause,” i.e. , had failed to demonstrate a unique need for self-defense.
The District Court dismissed petitioners’ complaint and
the Court of Appeals affirmed. See
We granted certiorari to decide whether New York’s de-
nial of petitioners’ license applications violated the Consti-
tution.
II
In Heller and McDonald , we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In
keeping with , we hold that when the Second Amend-
ment’s plain text covers an individual’s conduct, the Consti-
tution presumptively protects that conduct. To justify its
regulation, the government may not simply posit that the
regulation promotes an important interest. Rather, the
government must demonstrate that the regulation is con-
sistent with this Nation’s historical tradition of firearm reg-
ulation. Only if a firearm regulation is consistent with this
Nation’s historical tradition may a court conclude that the
individual’s conduct falls outside the Second Amendment’s
“unqualified command.”
Konigsberg
v.
State Bar of Cal
.,
——————
[3] Rather than begin with its view of the governing legal framework, the dissent chronicles, in painstaking detail, evidence of crimes committed by individuals with firearms. See post, at 1–9 (opinion of B , J.). The dissent invokes all of these statistics presumably to justify granting States greater leeway in restricting firearm ownership and use. But, as Members of the Court have already explained, “[t]he right to keep and bear arms . . . is not the only constitutional right that has controversial public safety implications.” McDonald v. Chicago , 561 U. S. 742, 783 (2010) (plurality opinion).
A
Since
Heller
and
McDonald
, the two-step test that Courts
of Appeals have developed to assess Second Amendment
claims proceeds as follows. At the first step, the govern-
ment may justify its regulation by “establish[ing] that the
challenged law regulates activity falling outside the scope
of the right as originally understood.”
E.g.
,
Kanter
v.
Barr
,
919 F. 3d 437, 441 (CA7 2019) (internal quotation marks
omitted). But see
United States
v.
Boyd
,
At the second step, courts often analyze “how close the
law comes to the core of the Second Amendment right and
the severity of the law’s burden on that right.”
Ibid.
(inter-
nal quotation marks omitted)
.
The Courts of Appeals gen-
erally maintain “that the core Second Amendment right is
limited to self-defense
in the home
.”
Gould
, 907 F. 3d, at
671 (emphasis added). But see
Wrenn
, 864 F. 3d, at 659
(“[T]he Amendment’s core generally covers carrying in pub-
lic for self defense”). If a “core” Second Amendment right is
burdened, courts apply “strict scrutiny” and ask whether
the Government can prove that the law is “narrowly tai-
lored to achieve a compelling governmental interest.”
Kolbe
Hogan
,
B
Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller , which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means- end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
To show why Heller does not support applying means-end scrutiny, we first summarize Heller ’s methodological ap- proach to the Second Amendment.
In , we began with a “textual analysis” focused on ——————
[4] See
Association of N. J. Rifle
&
Pistol Clubs
,
Inc.
v.
Attorney General
N. J.
,
From there, we assessed whether our initial conclusion was “confirmed by the historical background of the Second Amendment.” Ibid. We looked to history because “it has always been widely understood that the Second Amend- ment . . . codified a pre-existing right.” Ibid. The Amend- ment “was not intended to lay down a novel principle but rather codified a right inherited from our English ances- tors.” Id. , at 599 (alterations and internal quotation marks omitted). After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found “no doubt, on the basis of both text and history, that the Second Amendment con- ferred an individual right to keep and bear arms.” Id. , at 595.
We then canvassed the historical record and found yet further confirmation. That history included the “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amend- ment,” id. , at 600–601, and “how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century,” id. , at 605. When the principal dissent charged that the latter category of sources was illegitimate “postenactment legislative history,” id. , at 662, n. 28 (opinion of Stevens, J.), we clarified that “exami- nation of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification” was “a critical tool of consti- tutional interpretation,” id. , at 605 (majority opinion).
In assessing the postratification history, we looked to four different types of sources. First, we reviewed “[t]hree im- portant founding-era legal scholars [who] interpreted the Second Amendment in published writings.” Ibid. Second, we looked to “19th-century cases that interpreted the Sec- ond Amendment” and found that they “universally support an individual right” to keep and bear arms. Id. , at 610. Third, we examined the “discussion of the Second Amend- ment in Congress and in public discourse” after the Civil War, “as people debated whether and how to secure consti- tutional rights for newly freed slaves.” Id. , at 614. Fourth, we considered how post-Civil War commentators under- stood the right. See id. , at 616–619.
After holding that the Second Amendment protected an
individual right to armed self-defense, we also relied on the
historical understanding of the Amendment to demark the
limits on the exercise of that right. We noted that, “[l]ike
most rights, the right secured by the Second Amendment is
not unlimited.”
Id.
, at 626. “From Blackstone through the
19th-century cases, commentators and courts routinely ex-
plained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.”
Ibid.
For example, we found it “fairly
supported by the historical tradition of prohibiting the car-
rying of ‘dangerous and unusual weapons’ ” that the Second
Amendment protects the possession and use of weapons
that are “ ‘in common use at the time.’ ”
Id.
, at 627 (first
citing 4 W. Blackstone, Commentaries on the Laws of Eng-
land 148–149 (1769); then quoting
United States
v.
Miller
,
We assessed the lawfulness of that handgun ban by scru- tinizing whether it comported with history and tradition. Although we noted that the ban “would fail constitutional 13 muster” “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,” id. , at 628–629, we did not engage in means-end scrutiny when resolving the constitutional question. Instead, we focused on the historically unprecedented nature of the District’s ban, observing that “[f]ew laws in the history of our Nation have come close to [that] severe restriction.” Id. , at 629. Likewise, when one of the dissents attempted to justify the District’s prohibition with “founding-era historical prece- dent,” including “various restrictive laws in the colonial pe- riod,” we addressed each purported analogue and concluded that they were either irrelevant or “d[id] not remotely bur- den the right of self-defense as much as an absolute ban on handguns.” Id. , at 631–632; see id. , at 631–634. Thus, our earlier historical analysis sufficed to show that the Second Amendment did not countenance a “complete prohibition” on the use of “the most popular weapon chosen by Ameri- cans for self-defense in the home.” Id. , at 629.
As the foregoing shows, Heller ’s methodology centered on constitutional text and history. Whether it came to defining the character of the right (individual or militia dependent), suggesting the outer limits of the right, or assessing the constitutionality of a particular regulation, Heller relied on text and history. It did not invoke any means-end test such as strict or intermediate scrutiny.
Moreover,
Heller
and
McDonald
expressly rejected the
application of any “judge-empowering ‘interest-balancing
inquiry’ that ‘asks whether the statute burdens a protected
interest in a way or to an extent that is out of proportion to
the statute’s salutary effects upon other important govern-
mental interests.’ ” ,
Not only did
Heller
decline to engage in means-end scru-
tiny generally, but it also specifically ruled out the interme-
diate-scrutiny test that respondents and the United States
now urge us to adopt. Dissenting in
Heller
, J USTICE
B REYER ’s proposed standard—“ask[ing] whether [a] statute
burdens a protected interest in a way or to an extent that is
out of proportion to the statute’s salutary effects upon other
important governmental interests,”
id.
, at 689–690 (dis-
senting opinion)—simply expressed a classic formulation of
intermediate scrutiny in a slightly different way, see
Clark
Jeter
,
——————
[5] The dissent asserts that we misread
Heller
to eschew means-end scru-
tiny because
Heller
mentioned that the District of Columbia’s handgun
ban “would fail constitutional muster” “[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional rights.”
Hel-
ler
,
In sum, the Courts of Appeals’ second step is inconsistent with Heller ’s historical approach and its rejection of means- end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The gov- ernment must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amend- ment’s “unqualified command.” Konigsberg , 366 U. S., at 50, n. 10.
C
This Second Amendment standard accords with how we
protect other constitutional rights. Take, for instance, the
freedom of speech in the First Amendment, to which
Heller
repeatedly compared the right to keep and bear arms. 554
U. S., at 582, 595, 606, 618, 634–635. In that context,
“[w]hen the Government restricts speech, the Government
bears the burden of proving the constitutionality of its ac-
tions.”
United States Playboy Entertainment Group
,
Inc.
,
529 U. S. 803, 816 (2000); see also
Philadelphia Newspa-
pers
,
Inc.
v.
Hepps
,
heightened “standar[d] of scrutiny” did not supplant
Heller
’s focus on
constitutional text and history. Rather,
Heller
’s comment “was more of
a gilding-the-lily observation about the extreme nature of D.C.’s law,”
Heller
v.
District of Columbia
,
e.g.
,
United States Stevens
,
And beyond the freedom of speech, our focus on history
also comports with how we assess many other constitu-
tional claims. If a litigant asserts the right in court to “be
confronted with the witnesses against him,” U. S. Const.,
Amdt. 6, we require courts to consult history to determine
the scope of that right. See,
e.g.
,
Giles
v.
California
, 554
U. S. 353, 358 (2008) (“admitting only those exceptions [to
the Confrontation Clause] established at the time of the
founding” (internal quotation marks omitted)). Similarly,
when a litigant claims a violation of his rights under the
Establishment Clause, Members of this Court “loo[k] to his-
tory for guidance.”
American Legion
v.
American Humanist
Assn.
,
To be sure, “[h]istorical analysis can be difficult; it some- times requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” McDonald , 561 U. S., at 803–804 (Scalia, J., concurring). But reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legiti- mate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] ex- pertise” in the field. Id. , at 790–791 (plurality opinion). ——————
[6] The dissent claims that ’s text-and-history test will prove un- workable compared to means-end scrutiny in part because judges are rel- atively ill equipped to “resolv[e] difficult historical questions” or engage in “searching historical surveys.” Post , at 26, 30. We are unpersuaded. The job of judges is not to resolve historical questions in the abstract; it
If the last decade of Second Amendment litigation has
taught this Court anything, it is that federal courts tasked
with making such difficult empirical judgments regarding
firearm regulations under the banner of “intermediate scru-
tiny” often defer to the determinations of legislatures. But
while that judicial deference to legislative interest balanc-
ing is understandable—and, elsewhere, appropriate—it is
not deference that the Constitution demands here. The Sec-
ond Amendment “is the very
product
of an interest balanc-
ing by the people” and it “surely elevates above all other
interests the right of law-abiding, responsible citizens to
use arms” for self-defense.
Heller
,
D
The test that we set forth in and apply today re- quires courts to assess whether modern firearms regula- tions are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly sim- ilar historical regulation addressing that problem is rele- vant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier genera- tions addressed the societal problem, but did so through materially different means, that also could be evidence that ——————
is to resolve
legal
questions presented in particular cases or controver-
sies. That “legal inquiry is a refined subset” of a broader “historical in-
quiry,” and it relies on “various evidentiary principles and default rules”
to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law
of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n
our adversarial system of adjudication, we follow the principle of party
presentation.”
United States
v.
Sineneng-Smith
,
a modern regulation is unconstitutional. And if some juris- dictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
Heller itself exemplifies this kind of straightforward his- torical inquiry. One of the District’s regulations challenged in Heller “totally ban[ned] handgun possession in the home.” Id ., at 628. The District in Heller addressed a per- ceived societal problem—firearm violence in densely popu- lated communities—and it employed a regulation—a flat ban on the possession of handguns in the home—that the Founders themselves could have adopted to confront that problem. Accordingly, after considering “founding-era his- torical precedent,” including “various restrictive laws in the colonial period,” and finding that none was analogous to the District’s ban, Heller concluded that the handgun ban was unconstitutional. Id., at 631; see also id., at 634 (describing the claim that “there were somewhat similar restrictions in the founding period” a “false proposition”).
New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller : “handgun vio- lence,” primarily in “urban area[s].” Ibid. Following the course charted by , we will consider whether “histor- ical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, in- fra .
While the historical analogies here and in
Heller
are rel-
atively simple to draw, other cases implicating unprece-
dented societal concerns or dramatic technological changes
may require a more nuanced approach. The regulatory
challenges posed by firearms today are not always the same
as those that preoccupied the Founders in 1791 or the Re-
construction generation in 1868. Fortunately, the Found-
ers created a Constitution—and a Second Amendment—
“intended to endure for ages to come, and consequently, to
be adapted to the various crises of human affairs.”
McCul-
loch
v.
Maryland
,
We have already recognized in at least one way in
which the Second Amendment’s historically fixed meaning
applies to new circumstances: Its reference to “arms” does
not apply “only [to] those arms in existence in the 18th cen-
tury.” 554 U. S., at 582. “Just as the First Amendment
protects modern forms of communications, and the Fourth
Amendment applies to modern forms of search, the Second
Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in exist-
ence at the time of the founding.”
Ibid.
(citations omitted).
Thus, even though the Second Amendment’s definition of
“arms” is fixed according to its historical understanding,
that general definition covers modern instruments that fa-
cilitate armed self-defense. Cf.
Caetano Massachusetts
,
Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by anal- ogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical reg- ulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two reg- ulations are “relevantly similar.” C. Sunstein, On Analogi- cal Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And be- cause “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the anal- ogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For in- stance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”
While we do not now provide an exhaustive survey of the
features that render regulations relevantly similar under
the Second Amendment, we do think that
Heller
and
McDonald
point toward at least two metrics: how and why
the regulations burden a law-abiding citizen’s right to
armed self-defense. As we stated in
Heller
and repeated in
McDonald
, “individual self-defense is ‘the
central compo-
nent
’ of the Second Amendment right.”
McDonald
, 561
U. S., at 767 (quoting
Heller
,
——————
[7] This does not mean that courts may engage in independent means-
end scrutiny under the guise of an analogical inquiry. Again, the Second
Amendment is the “product of an interest balancing
by the people
,” not
the evolving product of federal judges. ,
To be clear, analogical reasoning under the Second
Amendment is neither a regulatory straightjacket nor a
regulatory blank check. On the one hand, courts should not
“uphold every modern law that remotely resembles a his-
torical analogue,” because doing so “risk[s] endorsing outli-
ers that our ancestors would never have accepted.”
Drum-
mond Robinson
,
Consider, for example, ’s discussion of “longstand- ing” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U. S. , at 626. Although the historical record yields rela- tively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited— e.g., legislative as- semblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such pro- hibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229–236, 244– 247 (2018); see also Brief for Independent Institute as Ami- cus Curiae 11–17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amend- ment. And courts can use analogies to those historical reg- ulations of “sensitive places” to determine that modern reg- ulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
Although we have no occasion to comprehensively define ——————
contrary to the dissent’s assertion, there is nothing “[i]roni[c]” about that undertaking. Post, at 30. It is not an invitation to revise that balance through means-end scrutiny.
“sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sen- sitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typi- cally congregate and where law-enforcement and other public-safety professionals are presumptively available.” Brief for Respondents 34. It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the cat- egory of “sensitive places” far too broadly. Respondents’ ar- gument would in effect exempt cities from the Second Amendment and would eviscerate the general right to pub- licly carry arms for self-defense that we discuss in detail below. See Part III–B, infra . Put simply, there is no his- torical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Po- lice Department.
Like , we “do not undertake an exhaustive histori-
cal analysis . . . of the full scope of the Second Amendment.”
III
Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement.
A
It is undisputed that petitioners Koch and Nash—two or- dinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller , 554 U. S., at 580. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. See id. , at 627; see also Caetano , 577 U. S., at 411–412. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.
We have little difficulty concluding that it does. Respond-
ents do not dispute this. See Brief for Respondents 19. Nor
could they. Nothing in the Second Amendment’s text draws
a home/public distinction with respect to the right to keep
and bear arms. As we explained in , the “textual ele-
ments” of the Second Amendment’s operative clause— “the
right of the people to keep and bear Arms, shall not be in-
fringed”—“guarantee the individual right to possess and
carry weapons in case of confrontation.”
This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner ta- ble. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” ( i.e. , v. carry) them in the home beyond moments of actual confron- tation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections.
Moreover, confining the right to “bear” arms to the home
would make little sense given that self-defense is “the
cen-
tral component
of the [Second Amendment] right itself.”
Heller
,
Although we remarked in that the need for armed
self-defense is perhaps “most acute” in the home,
id.
, at 628,
we did not suggest that the need was insignificant else-
where. Many Americans hazard greater danger outside the
home than in it. See
Moore Madigan
,
The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense.
B
Conceding that the Second Amendment guarantees a general right to public carry, contra, Young , 992 F. 3d, at 813, respondents instead claim that the Amendment “per- mits a State to condition handgun carrying in areas ‘fre- quented by the general public’ on a showing of a non- speculative need for armed self-defense in those areas,” Brief for Respondents 19 (citation omitted). 8 To support —————— [8] The dissent claims that we cannot answer the question presented without giving respondents the opportunity to develop an evidentiary record fleshing out “how New York’s law is administered in practice, how that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct.
Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these pe- riods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) ante- bellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.
We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is cre- ated equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them .” , 554 U. S., at 634–635 (emphasis added). The Second Amendment was adopted in 1791; the —————— much discretion licensing officers in New York possess, or whether the
proper cause standard differs across counties.”
Post,
at 20. We disagree.
The dissent does not dispute that any applicant for an unrestricted con-
cealed-carry license in New York can satisfy the proper-cause standard
only if he has “ ‘ “a special need for self-protection distinguishable from
that of the general community.” ’ ”
Post,
at 13 (quoting
Kachalsky
v.
County of Westchester
,
As with historical evidence generally, courts must be
careful when assessing evidence concerning English
common-law rights. The common law, of course, developed
over time.
Associated Gen. Contractors of Cal.
,
Inc.
v.
Car-
penters
,
Similarly, we must also guard against giving postenact-
ment history more weight than it can rightly bear. It is true
that in we reiterated that evidence of “how the Sec-
ond Amendment was interpreted from immediately after its
ratification through the end of the 19th century” repre-
sented a “critical tool of constitutional interpretation.” 554
U. S., at 605. We therefore examined “a variety of legal and
other sources to determine
the public understanding
of [the
Second Amendment] after its . . . ratification.”
Ibid.
And,
in other contexts, we have explained that “ ‘a regular course
of practice’ can ‘liquidate & settle the meaning of ’ disputed
or indeterminate ‘terms & phrases’ ” in the Constitution.
Chiafalo
v.
Washington
,
But to the extent later history contradicts what the text
says, the text controls. “ ‘[L]iquidating’ indeterminacies in
written laws is far removed from expanding or altering
them.”
Gamble United States
,
As we recognized in
Heller
itself, because post-Civil War
discussions of the right to keep and bear arms “took place
75 years after the ratification of the Second Amendment,
they do not provide as much insight into its original mean-
ing as earlier sources.”
A final word on historical method: Strictly speaking, New
York is bound to respect the right to keep and bear arms
because of the Fourteenth Amendment, not the Second.
See,
e.g.
,
Barron ex rel. Tiernan
v.
Mayor of Baltimore
, 7
Pet. 243, 250–251 (1833) (Bill of Rights applies only to the
Federal Government). Nonetheless, we have made clear
that individual rights enumerated in the Bill of Rights and
made applicable against the States through the Fourteenth
Amendment have the same scope as against the Federal
Government. See,
e.g.
,
Ramos
v.
Louisiana
,
We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the pre- vailing understanding of an individual right when the Four- teenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g. , A. Amar, The Bill of Rights: Crea- tion and Reconstruction xiv, 223, 243 (1998); K. Lash, Re- Speaking the Bill of Rights: A New Doctrine of Incorpora- tion (Jan. 15, 2021) (manuscript, at 2), https://papers.ssrn .com/sol3/papers.cfm?abstract_id=3766917 (“When the peo- ple adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings”). We need not address this issue today be- cause, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.
* * *
With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has tra- ditionally been subject to well-defined restrictions govern- ing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late- 19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly v. prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition lim- iting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. 9 We conclude that respondents have failed to meet their burden to iden- tify an American tradition justifying New York’s proper- cause requirement. Under Heller ’s text-and-history stand- ard, the proper-cause requirement is therefore unconstitu- tional.
Respondents’ substantial reliance on English history and custom before the founding makes some sense given our statement in Heller that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” 554 U. S., at 599 (quoting Robertson v. Baldwin , 165 U. S. 275, 281 (1897)); see also Smith v. Alabama , 124 U. S. 465, 478 ——————
[9] To be clear, nothing in our analysis should be interpreted to suggest
the unconstitutionality of the 43 States’ “shall-issue” licensing regimes,
under which “a general desire for self-defense is sufficient to obtain a
[permit].”
Drake Filko
,
(1888). But this Court has long cautioned that the English
common law “is not to be taken in all respects to be that of
America.”
Van Ness
v.
Pacard
, 2 Pet. 137, 144 (1829)
(Story, J., for the Court); see also
Wheaton Peters
, 8 Pet.
591, 659 (1834);
Funk
,
We interpret the English history that respondents and the United States muster in light of these interpretive prin- ciples. We find that history ambiguous at best and see little reason to think that the Framers would have thought it ap- plicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.
To begin, respondents and their amici point to several medieval English regulations from as early as 1285 that they say indicate a longstanding tradition of restricting the public carry of firearms. See 13 Edw. 1, 102. The most prominent is the 1328 Statute of Northampton (or Statute), passed shortly after Edward II was deposed by force of arms and his son, Edward III, took the throne of a kingdom where “tendency to turmoil and rebellion was everywhere appar- ent throughout the realm.” N. Trenholme, The Risings in the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650, 651 (1901). At the time, “[b]ands of malefactors, knights as well as those of lesser degree, harried the country, commit- ting assaults and murders,” prompted by a more general “spirit of insubordination” that led to a “decay in English national life.” K. Vickers, England in the Later Middle Ages 107 (1926).
The Statute of Northampton was, in part, “a product of
. . . the acute disorder that still plagued England.” A. Ver-
duyn, The Politics of Law and Order During the Early
Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993). It
provided that, with some exceptions, Englishmen could not
“come before the King’s Justices, or other of the King’s Min-
isters doing their office, with force and arms, nor bring no
force in affray of the peace, nor to go nor ride armed by night
nor by day, in Fairs, Markets, nor in the presence of the
Justices or other Ministers, nor in no part elsewhere, upon
pain to forfeit their Armour to the King, and their Bodies to
Prison at the King’s pleasure.”
Respondents argue that the prohibition on “rid[ing]” or “go[ing] . . . armed” was a sweeping restriction on public carry of self-defense weapons that would ultimately be adopted in Colonial America and justify onerous public- carry regulations. Notwithstanding the ink the parties spill over this provision, the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791. The Statute of Northampton was enacted nearly 20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment.
The Statute’s prohibition on going or riding “armed” ob-
viously did not contemplate handguns, given they did not
appear in Europe until about the mid-1500s. See K. Chase,
Firearms: A Global History to 1700, p. 61 (2003). Rather, it
appears to have been centrally concerned with the wearing
of armor. See,
e.g.
, Calendar of the Close Rolls, Edward III,
1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed.
1898);
id.
, at 243 (May 28, 1331);
id.
, Edward III, 1327–
1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond
armor, it applied to such weapons as the “launcegay,” a 10-
to 12-foot-long lightweight lance. See
The Statute’s apparent focus on armor and, perhaps, weapons like launcegays makes sense given that armor and lances were generally worn or carried only when one in- tended to engage in lawful combat or—as most early viola- tions of the Statute show—to breach the peace. See, e.g. , Calendar of the Close Rolls, Edward III, 1327–1330, at 402 (July 7, 1328); id. , Edward III, 1333–1337, at 695 (Aug. 18, 1336) (1898). Contrast these arms with daggers. In the medieval period, “[a]lmost everyone carried a knife or a dagger in his belt.” H. Peterson, Daggers and Fighting Knives of the Western World 12 (2001). While these knives were used by knights in warfare, “[c]ivilians wore them for self-protection,” among other things. Ibid. Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns.
When handguns were introduced in England during the
Tudor and early Stuart eras, they did prompt royal efforts
at suppression. For example, Henry VIII issued several
proclamations decrying the proliferation of handguns, and
Parliament passed several statutes restricting their posses-
sion. See,
e.g.
,
Similarly, James I considered small handguns—called dags—“utterly unserviceable for defence, Militarie practise, or other lawful use.” A Proclamation Against Steelets, v. Pocket Daggers, Pocket Dagges and Pistols (R. Barker printer 1616). But, in any event, James I’s proclamation in 1616 “was the last one regarding civilians carrying dags,” Schwoerer 63. “After this the question faded without expla- nation.” Ibid. So, by the time Englishmen began to arrive in America in the early 1600s, the public carry of handguns was no longer widely proscribed.
When we look to the latter half of the 17th century, re-
spondents’ case only weakens. As in , we consider
this history “[b]etween the [Stuart] Restoration [in 1660]
and the Glorious Revolution [in 1688]” to be particularly in-
structive.
In one notable example, the government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly “did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.” Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Holt explained that the Statute of Northamp- ton had “almost gone in desuetudinem ,” Rex v. Sir John Knight , 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse. 10 And the Chief Justice further explained ——————
[10] Another medieval firearm restriction—a 1541 statute enacted under
Henry VIII that limited the ownership and use of handguns (which could
not be shorter than a yard) to those subjects with annual property values
of at least £100, see
——————
281, 87 Eng. Rep. 186 (K. B. 1690); King Lewellin , 1 Shower, K. B. 48, 89 Eng. Rep. 440 (K. B. 1689); cf. King and Queen v. Alsop , 4 Mod. 49, 50–51, 87 Eng. Rep. 256, 256–257 (K. B. 1691). By the late 1700s, it was widely recognized that the 1541 statute was “obsolete.” 2 R. Burn, The Justice of the Peace, and Parish Officer 243, n. (11th ed. 1769); see also, e.g., The Farmer’s Lawyer 143 (1774) (“entirely obsolete”); 1 G. Jacob, Game-Laws II, Law-Dictionary (T. Tomlins ed. 1797); 2 R. Burn, The Justice of the Peace, and Parish Officer 409 (18th ed. 1797) (calling the 1541 statute “a matter more of curiosity than use”).
In any event, lest one be tempted to put much evidentiary weight on
the 1541 statute, it impeded not only public carry, but further made it
unlawful for those without sufficient means to “kepe in his or their
houses” any “handgun.”
Just three years later, Parliament responded by writing
the “predecessor to our Second Amendment” into the 1689
English Bill of Rights,
Heller
,
To be sure, the Statute of Northampton survived both Sir John Knight’s Case and the English Bill of Rights, but it was no obstacle to public carry for self-defense in the dec- ades leading to the founding. Serjeant William Hawkins, in his widely read 1716 treatise, confirmed that “no wearing of Arms is within the meaning of [the Statute of Northamp- ton], unless it be accompanied with such Circumstances as are apt to terrify the People.” 1 Pleas of the Crown 136. To illustrate that proposition, Hawkins noted as an example that “Persons of Quality” were “in no Danger of Offending against this Statute by wearing common Weapons” be- cause, in those circumstances, it would be clear that they ——————
interpretations of Sir John Knight’s Case , we will favor the one that is more consistent with the Second Amendment’s command.
[12] Even Catholics, who fell beyond the protection of the right to have arms, and who were stripped of all “Arms, Weapons, Gunpowder, [and] Ammunition,” were at least allowed to keep “such necessary Weapons as shall be allowed . . . by Order of the Justices of the Peace . . . for the De- fence of his House or Person.” 1 Wm. & Mary c. 15, §4, in 3 Eng. Stat. at Large 399 (1688). 37
had no “Intention to commit any Act of Violence or Disturb- ance of the Peace.” Ibid. ; see also T. Barlow, The Justice of Peace 12 (1745). Respondents do not offer any evidence showing that, in the early 18th century or after, the mere public carrying of a handgun would terrify people. In fact, the opposite seems to have been true. As time went on, “do- mestic gun culture [in England] softened” any “terror” that firearms might once have conveyed. Schwoerer 4. Thus, whatever place handguns had in English society during the Tudor and Stuart reigns, by the time we reach the 18th cen- tury—and near the founding—they had gained a fairly se- cure footing in English culture.
At the very least, we cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.
Respondents next point us to the history of the Colonies and early Republic, but there is little evidence of an early American practice of regulating public carry by the general public. This should come as no surprise—English subjects founded the Colonies at about the time England had itself begun to eliminate restrictions on the ownership and use of handguns.
In the colonial era, respondents point to only three re- strictions on public carry. For starters, we doubt that three colonial regulations could suffice to show a tradition of pub- lic-carry regulation. In any event, even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us.
Two of the statutes were substantively identical. Colo- nial Massachusetts and New Hampshire both authorized justices of the peace to arrest “all Affrayers, Rioters, Dis- turbers, or Breakers of the Peace, and such as shall ride or go armed Offensively . . . by Night or by Day, in Fear or Af- fray of Their Majesties Liege People.” 1692 Mass. Acts and Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being “armed of- fensively” meant bearing any offensive weapons, including firearms. See Brief for Respondents 33. In particular, re- spondents’ amici argue that “ ‘offensive’ ” arms in the 1600s and 1700s were what Blackstone and others referred to as “ ‘dangerous or unusual weapons,’ ” Brief for Professors of History and Law as Amici Curiae 7 (quoting 4 Blackstone, Commentaries, at 148–149), a category that they say in- cluded firearms, see also post, at 40–42 (B , J., dis- senting).
Respondents, their amici , and the dissent all misunder- stand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common- law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. See supra , at 34–37. For instance, the Massachusetts statute proscribed “go[ing] armed Offensively . . . in Fear or Affray” of the people, indi- cating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s . Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Holt in Sir John Knight’s Case indicated that the English common law did not do so.
Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support re- strictions on the public carry of handguns today . At most, respondents can show that colonial legislatures sometimes prohibited the carrying of “dangerous and unusual weap- ons”—a fact we already acknowledged in . See 554 U. S., at 627. Drawing from this historical tradition, we ex- plained there that the Second Amendment protects only the carrying of weapons that are those “in common use at the time,” as opposed to those that “are highly unusual in soci- ety at large.” Ibid. (internal quotation marks omitted). Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Id. , at 629. Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dan- gerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.
The third statute invoked by respondents was enacted in East New Jersey in 1686. It prohibited the concealed carry of “pocket pistol[s]” or other “unusual or unlawful weap- ons,” and it further prohibited “planter[s]” from carrying all pistols unless in military service or, if “strangers,” when traveling through the Province. An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions). These restrictions do not meaningfully support respondents. The law restricted only concealed carry, not all public carry, and its restrictions ap- plied only to certain “unusual or unlawful weapons,” includ- ing “pocket pistol[s].” Ibid . It also did not apply to all pis- tols, let alone all firearms. “Pocket pistols” had barrel lengths of perhaps 3 or 4 inches, far smaller than the 6-inch to 14-inch barrels found on the other belt and hip pistols that were commonly used for lawful purposes in the 1600s. J. George, English Pistols and Revolvers 16 (1938); see also, e.g. , 14 Car. 2 c. 3, §20 (1662); H. Peterson, Arms and Armor in Colonial America, 1526–1783, p. 208 (1956) (Peterson). Moreover, the law prohibited only the concealed carry of pocket pistols; it presumably did not by its terms touch the open carry of larger, presumably more common pistols, ex- cept as to “planters.” 13 In colonial times, a “planter” was simply a farmer or plantation owner who settled new terri- tory. R. Lederer, Colonial American English 175 (1985); New Jersey State Archives, J. Klett, Using the Records of the East and West Jersey Proprietors 31 (rev. ed. 2014), https://www.nj.gov/state/archives/pdf/proprietors.pdf. While the reason behind this singular restriction is not entirely clear, planters may have been targeted because colonial-era East New Jersey was riven with “strife and excitement” be- tween planters and the Colony’s proprietors “respecting ti- tles to the soil.” See W. Whitehead, East Jersey Under the Proprietary Governments 150–151 (rev. 2d ed. 1875); see also T. Gordon, The History of New Jersey 49 (1834).
In any event, we cannot put meaningful weight on this solitary statute. First, although the “planter” restriction may have prohibited the public carry of pistols, it did not prohibit planters from carrying long guns for self-defense— including the popular musket and carbine. See Peterson 41. Second, it does not appear that the statute survived for very long. By 1694, East New Jersey provided that no slave “be permitted to carry any gun or pistol . . . into the woods, or plantations” unless their owner accompanied them. Grants and Concessions 341. If slave-owning planters were prohibited from carrying pistols, it is hard to comprehend why slaves would have been able to carry them in the planter’s presence. Moreover, there is no evidence that the 1686 statute survived the 1702 merger of East and West New Jersey. See 1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1752). At most eight years of ——————
[13] Even assuming that pocket pistols were, as East Jersey in 1686 deemed them, “unusual or unlawful,” it appears that they were com- monly used at least by the founding. See, e.g. , G. Neumann, The History of Weapons of the American Revolution 150–151 (1967); see also H. Hen- drick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun Safety and Forensics 44 (2008).
history in half a Colony roughly a century before the found- ing sheds little light on how to properly interpret the Sec- ond Amendment.
Respondents next direct our attention to three late-18th- century and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that “no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794). 14 A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturb- ers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any per- son who would “publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, his continued violation of the law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn. Acts pp. 260–261.
A by-now-familiar thread runs through these three stat- utes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already ex- plained, Chief Justice Holt in Sir John Knight’s Case inter- preted this in Terrorem Populi element to require some- thing more than merely carrying a firearm in public. See supra , at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment ——————
[14] The Virginia statute all but codified the existing common law in this regard. See G. Webb, The Office and Authority of a Justice of Peace 92 (1736) (explaining how a constable “may take away Arms from such who ride, or go, offensively armed, in Terror of the People”). v.
and in the first decade after its adoption, there is no histor- ical basis for concluding that the pre-existing right en- shrined in the Second Amendment permitted broad prohi- bitions on all forms of public carry.
Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibi- tions, and “surety” statutes. None of these restrictions im- posed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime.
Common-Law Offenses . As during the colonial and founding periods, the common-law offenses of “affray” or go- ing armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.
For example, the Tennessee attorney general once
charged a defendant with the common-law offense of affray,
arguing that the man committed the crime when he
“ ‘arm[ed] himself with dangerous and unusual weapons, in
such a manner as will naturally cause terror to the people.’ ”
Simpson State
,
Perhaps more telling was the North Carolina Supreme
Court’s decision in
State Huntly
,
deadly weapons
per se
, but only the carrying of such weap-
ons “for the purpose of an affray, and in such manner as to
strike terror to the people.”
O’Neil
v.
State
,
Statutory Prohibitions . In the early to mid-19th century, some States began enacting laws that proscribed the con- cealed carry of pistols and other small weapons. As we rec- ognized in , “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U. S., at 626. Re- spondents unsurprisingly cite these statutes 16 —and deci- sions upholding them 17 —as evidence that States were his- torically free to ban public carry.
In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ ——————
[16] Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibi- tion could not extend to open carry consistent with the Second Amend- ment. See infra , at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, mean- while, enacted in 1821 a broader law that prohibited carrying, among other things, “belt or pocket pistols, either public or private,” except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423.
[17] See
State
v.
Mitchell
,
cited opinions agreed that concealed-carry prohibitions
were constitutional only if they did not similarly prohibit
open
carry. That was true in Alabama. See
State
v.
Reid
,
The Georgia Supreme Court’s decision in
Nunn
v.
State
,
[18] See
Reid
,
[19] See,
e.g.
,
Chandler
,
[20] With respect to Indiana’s concealed-carry prohibition, the Indiana
Supreme Court’s reasons for upholding it are unknown because the court
issued a one-sentence
per curiam
order holding the law “not unconstitu-
tional.”
Mitchell
, 3 Blackf., at 229. Similarly, the Arkansas Supreme
Court upheld Arkansas’ prohibition, but without reaching a majority ra-
tionale. See
Buzzard
,
Ga., at 251. But to the extent the Act also prohibited “bear- ing arms openly ,” the court went on, it was “in conflict with the Constitutio[n] and void .” Ibid. ; see also Heller , 554 U. S., at 612. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the con- stitutional pale in antebellum America to altogether pro- hibit public carry.
Finally, we agree that Tennessee’s prohibition on carry-
ing “publicly or privately” any “belt or pocket pisto[l],” 1821
Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe,
see
Heller
,
All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.
——————
[21]
Shortly after
Andrews
,
Surety Statutes . In the mid-19th century, many jurisdic- tions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public. Although respondents seize on these laws to justify the proper-cause restriction, their reliance on them is mis- placed. These laws were not bans on public carry, and they typically targeted only those threatening to do harm.
As discussed earlier, Massachusetts had prohibited rid- ing or going “armed offensively, to the fear or terror of the good citizens of this Commonwealth” since 1795. 1795 Mass. Acts and Laws ch. 2, at 436, in Laws of the Common- wealth of Massachusetts. In 1836, Massachusetts enacted a new law providing:
“If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other in- jury, or violence to his person, or to his family or prop- erty, he may, on complaint of any person having rea- sonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of ap- pealing as before provided.” Mass. Rev. Stat., ch. 134, §16.
In short, the Commonwealth required any person who was reasonably likely to “breach the peace,” and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm. Between 1838 and 1871, nine other jurisdictions adopted variants of ——————
that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guar- anteed in its State Constitution that “[t]he people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.” N. M. Const., Art. II, §6 (1911); see infra , at 61.
the Massachusetts law.
Contrary to respondents’ position, these “reasonable-
cause laws” in no way represented the “direct precursor” to
the proper-cause requirement. Brief for Respondents 27.
While New York presumes that individuals have
no
public
carry right without a showing of heightened need, the
surety statutes
presumed
that individuals had a right to
public carry that could be burdened only if another could
make out a specific showing of “reasonable cause to fear an
injury, or breach of the peace.” Mass. Rev. Stat., ch. 134,
§16 (1836). 24 As William Rawle explained in an influential
treatise, an individual’s carrying of arms was “sufficient
cause to require him to give surety of the peace” only when
“attended with circumstances giving just reason to fear that
he purposes to make an unlawful use of them.” A View of
the Constitution of the United States of America 126 (2d ed.
1829). Then, even on such a showing, the surety laws did
not
prohibit
public carry in locations frequented by the gen-
eral community. Rather, an accused arms-bearer “could go
on carrying without criminal penalty” so long as he
“post[ed] money that would be forfeited if he breached the
peace or injured others—a requirement from which he was
exempt if
he
needed self-defense.”
Wrenn
,
Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban. All told, therefore, “[u]nder surety laws ——————
[23] See 1838 Terr. of Wis. Stat. §16, p. 381; Me. Rev. Stat., ch. 169, §16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); 1847 Va. Acts ch. 14, §16; Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat. ch. 16, §17, p. 220; D. C. Rev. Code ch. 141, §16 (1857); 1860 Pa. Laws p. 432, §6; W. Va. Code, ch. 153, §8 (1868).
[24] It is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety. See 1847 Va. Acts ch. 14, §16; W. Va. Code, ch. 153, §8 (1868).
. . . everyone started out with robust carrying rights” and only those reasonably accused were required to show a spe- cial need in order to avoid posting a bond. Ibid. These an- tebellum special-need requirements “did not expand carry- ing for the responsible; it shrank burdens on carrying by the (allegedly) reckless.” Ibid.
One Court of Appeals has nonetheless remarked that these surety laws were “a severe constraint on anyone thinking of carrying a weapon in public.” Young , 992 F. 3d, at 820. That contention has little support in the historical record. Respondents cite no evidence showing the average size of surety postings. And given that surety laws were “intended merely for prevention” and were “not meant as any degree of punishment,” 4 Blackstone, Commentaries, at 249, the burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York’s proper-cause standard—a violation of which can carry a 4-year prison term or a $5,000 fine. In , we noted that founding-era laws punishing unlawful discharge “with a small fine and forfeiture of the weapon . . . , not with significant criminal penalties,” likely did not “preven[t] a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him.” 554 U. S., at 633–634. Similarly, we have little reason to think that the hypothetical possibility of posting a bond would have pre- vented anyone from carrying a firearm for self-defense in the 19th century.
Besides, respondents offer little evidence that authorities ever enforced surety laws. The only recorded case that we know of involved a justice of the peace declining to require a surety, even when the complainant alleged that the arms- bearer “ ‘did threaten to beat, wou[n]d, mai[m], and kill’ ” him. Brief for Professor Robert Leider et al. as Amici Cu- riae 31 (quoting Grover Bullock , No. 185 (Worcester Cty., Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Region- alism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130, n. 53 (2015). And one scholar who canvassed 19th-century newspapers— which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforce- ment. See R. Leider, Constitutional Liquidation, Surety Laws, and the Right To Bear Arms 15–17, in New Histories of Gun Rights and Regulation (J. Blocher, J. Charles, & D. Miller eds.) (forthcoming); see also Brief for Professor Rob- ert Leider et al. as Amici Curiae 31–32. That is surely too slender a reed on which to hang a historical tradition of re- stricting the right to public carry.
Respondents also argue that surety statutes were severe restrictions on firearms because the “reasonable cause to fear” standard was essentially pro forma , given that “merely carrying firearms in populous areas breached the peace” per se . Brief for Respondents 27. But that is a coun- terintuitive reading of the language that the surety statutes actually used. If the mere carrying of handguns breached the peace, it would be odd to draft a surety statute requiring a complainant to demonstrate “reasonable cause to fear an injury, or breach of the peace,” Mass. Rev. Stat., ch. 134, §16, rather than a reasonable likelihood that the arms- bearer carried a covered weapon. After all, if it was the na- ture of the weapon rather than the manner of carry that —————— [25] The dissent speculates that the absence of recorded cases involving surety laws may simply “show that these laws were normally followed.” Post, at 45. Perhaps. But again, the burden rests with the government to establish the relevant tradition of regulation, see supra, at 15, and, given all of the other features of surety laws that make them poor ana- logues to New York’s proper-cause standard, we consider the barren rec- ord of enforcement to be simply one additional reason to discount their relevance.
was dispositive, then the “reasonable fear” requirement would be redundant.
Moreover, the overlapping scope of surety statutes and criminal statutes suggests that the former were not viewed as substantial restrictions on public carry. For example, when Massachusetts enacted its surety statute in 1836, it reaffirmed its 1794 criminal prohibition on “go[ing] armed offensively, to the terror of the people.” Mass. Rev. Stat., ch. 85, §24. And Massachusetts continued to criminalize the carrying of various “dangerous weapons” well after passing the 1836 surety statute. See, e.g. , 1850 Mass. Acts ch. 194, §1, p. 401; Mass. Gen. Stat., ch. 164, §10 (1860). Similarly, Virginia had criminalized the concealed carry of pistols since 1838, see 1838 Va. Acts ch. 101, §1, nearly a decade before it enacted its surety statute, see 1847 Va. Acts ch. 14, §16. It is unlikely that these surety statutes constituted a “severe” restraint on public carry, let alone a restriction tantamount to a ban, when they were supplemented by di- rect criminal prohibitions on specific weapons and methods of carry.
To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a man- ner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did pro- vide financial incentives for responsible arms carrying. Fi- nally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly .
None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement be- cause none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.
Evidence from around the adoption of the Fourteenth Amendment also fails to support respondents’ position. For the most part, respondents and the United States ignore the “outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people de- bated whether and how to secure constitutional rights for newly free slaves” after the Civil War. , 554 U. S., at 614. Of course, we are not obliged to sift the historical ma- terials for evidence to sustain New York’s statute. That is respondents’ burden. Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense re- mained a central component of the protection that the Four- teenth Amendment secured for all citizens.
A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the im- portance of the right to keep and bear arms in public. Writ- ing for the Court in Dred Scott v. Sandford , 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went .” Id. , at 417 (emphasis added). Thus, even Chief Justice Taney recog- nized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America.
After the Civil War, of course, the exercise of this funda-
mental right by freed slaves was systematically thwarted.
This Court has already recounted some of the Southern
abuses violating blacks’ right to keep and bear arms. See
McDonald
,
In the years before the 39th Congress proposed the Four- teenth Amendment, the Freedmen’s Bureau regularly kept it abreast of the dangers to blacks and Union men in the postbellum South. The reports described how blacks used publicly carried weapons to defend themselves and their communities. For example, the Bureau reported that a teacher from a Freedmen’s school in Maryland had written to say that, because of attacks on the school, “[b]oth the mayor and sheriff have warned the colored people to go armed to school, (which they do,)” and that the “[t]he super- intendent of schools came down and brought [the teacher] a revolver” for his protection. Cong. Globe, 39th Cong., 1st Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th Cong., 2d Sess., 91 (1867) (noting how, during the New Or- leans riots, blacks under attack “defended themselves . . . with such pistols as they had”).
Witnesses before the Joint Committee on Reconstruction also described the depredations visited on Southern blacks, and the efforts they made to defend themselves. One Vir- ginia music professor related that when “[t]wo Union men were attacked . . . they drew their revolvers and held their assailants at bay.” H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 110 (1866). An assistant commissioner to the Bu- reau from Alabama similarly reported that men were “rob- bing and disarming negroes upon the highway,” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 297 (1866), indicating that blacks indeed carried arms publicly for their self- protection, even if not always with success. See also H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., 41 (1868) (describ- ing a Ku Klux Klan outfit that rode “through the country . . . robbing every one they come across of money, pistols, papers, &c.”); id. , at 36 (noting how a black man in Tennes- see had been murdered on his way to get book subscrip- tions, with the murderer taking, among other things, the man’s pistol).
Blacks had “procured great numbers of old army muskets and revolvers, particularly in Texas,” and “employed them to protect themselves” with “vigor and audacity.” S. Exec. Doc. No. 43, 39th Cong., 1st Sess., at 8. Seeing that govern- ment was inadequately protecting them, “there [was] the strongest desire on the part of the freedmen to secure arms, revolvers particularly.” H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 3, at 102.
On July 6, 1868, Congress extended the 1866 Freedmen’s Bureau Act, see 15 Stat. 83, and reaffirmed that freedmen were entitled to the “full and equal benefit of all laws and proceedings concerning personal liberty [and] personal se- curity . . . including the constitutional right to keep and bear arms .” §14, 14 Stat. 176 (1866) (emphasis added). That same day, a Bureau official reported that freedmen in Ken- tucky and Tennessee were still constantly under threat: “No Union man or negro who attempts to take any active part in politics, or the improvement of his race, is safe a single day; and nearly all sleep upon their arms at night, and carry concealed weapons during the day.” H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., at 40.
Of course, even during Reconstruction the right to keep
and bear arms had limits. But those limits were consistent
with a right of the public to peaceably carry handguns for
self-defense. For instance, when General D. E. Sickles is-
sued a decree in 1866 pre-empting South Carolina’s Black
Codes—which prohibited firearm possession by blacks—he
stated: “The constitutional rights of all loyal and well-
disposed inhabitants to bear arms will not be infringed;
nevertheless this shall not be construed to sanction the un-
lawful practice of carrying concealed weapons. . . . And no
55
disorderly person, vagrant, or disturber of the peace, shall
be allowed to bear arms.” Cong. Globe, 39th Cong., 1st
Sess., at 908–909; see also
McDonald
,
——————
[26] Respondents invoke General Orders No. 10, which covered the Sec- ond Military District (North and South Carolina), and provided that “[t]he practice of carrying deadly weapons, except by officers and soldiers in the military service of the United States, is prohibited.” Headquarters Second Military Dist., Gen. Orders No. 10 (Charleston, S. C., Apr. 11, 1867), in S. Exec. Doc. No. 14, 40th Cong., 1st Sess., 64 (1867). We put little weight on this categorical restriction given that the order also spec- ified that a violation of this prohibition would “render the offender ame- nable to trial and punishment by military commission,” ibid. , rather than a jury otherwise guaranteed by the Constitution. There is thus little in- dication that these military dictates were designed to align with the Con- stitution’s usual application during times of peace.
[27] That said, Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny. One lieutenant posted in Saint Augustine, Florida, remarked how local enforcement of concealed-carry laws discriminated against blacks: “To sentence a negro to several dollars’ fine for carrying a revolver concealed upon his person, is in accordance with an ordinance of the town; but still the question nat- urally arises in my mind, ‘Why is this poor fellow fined for an offence which is committed hourly by every other white man I meet in the streets?’ ” H. R. Exec. Doc. No. 57, 40th Cong., 2d Sess., 83 (1867); see v.
As for Reconstruction-era state regulations, there was lit- tle innovation over the kinds of public-carry restrictions that had been commonplace in the early 19th century. For instance, South Carolina in 1870 authorized the arrest of “all who go armed offensively, to the terror of the people,” 1870 S. C. Acts p. 403, no. 288, §4, parroting earlier stat- utes that codified the common-law offense. That same year, after it cleaved from Virginia, West Virginia enacted a surety statute nearly identical to the one it inherited from Virginia. See W. Va. Code, ch. 153, §8. Also in 1870, Ten- nessee essentially reenacted its 1821 prohibition on the public carry of handguns but, as explained above, Tennes- see courts interpreted that statute to exempt large pistols suitable for military use. See supra , at 46.
Respondents and the United States, however, direct our attention primarily to two late-19th-century cases in Texas. In 1871, Texas law forbade anyone from “carrying on or about his person . . . any pistol . . . unless he has reasonable grounds for fearing an unlawful attack on his person.” 1871 Tex. Gen. Laws §1. The Texas Supreme Court upheld that restriction in English v. State , 35 Tex. 473 (1871). The Court reasoned that the Second Amendment, and the State’s constitutional analogue, protected only those arms “as are useful and proper to an armed militia,” including holster pistols, but not other kinds of handguns. Id. , at 474–475. Beyond that constitutional holding, the English court further opined that the law was not “contrary to pub- lic policy,” id. , at 479, given that it “ma[de] all necessary exceptions” allowing deadly weapons to “be carried as means of self-defense,” and therefore “fully cover[ed] all wants of society,” id. , at 477.
Four years later, in
State Duke
,
also H. R. Rep. No. 16, 39th Cong., 2d Sess., 427 (1867). military-style weapons but rather all arms “as are com- monly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense.” Id. , at 458. On that understanding, the court recognized that, in addition to “holster pistol[s],” the right to bear arms covered the carry of “such pistols at least as are not adapted to being carried concealed.” Id. , at 458–459. Nonetheless, after expanding the scope of firearms that warranted state con- stitutional protection, Duke held that requiring any pistol- bearer to have “ ‘reasonable grounds fearing an unlawful at- tack on [one’s] person’ ” was a “legitimate and highly proper” regulation of handgun carriage. Id. , at 456, 459– 460. Duke thus concluded that the 1871 statute “appear[ed] to have respected the right to carry a pistol openly when needed for self-defense.” Id. , at 459.
We acknowledge that the Texas cases support New York’s
proper-cause requirement, which one can analogize to
Texas’ “reasonable grounds” standard. But the Texas stat-
ute, and the rationales set forth in
English
and
Duke
, are
outliers. In fact, only one other State, West Virginia,
adopted a similar public-carry statute before 1900. See W.
Va. Code, ch. 148, §7 (1887). The West Virginia Supreme
Court upheld that prohibition, reasoning that
no
handguns
of any kind were protected by the Second Amendment, a
rationale endorsed by no other court during this period. See
State Workman
,
In the end, while we recognize the support that postbel-
lum Texas provides for respondents’ view, we will not give
disproportionate weight to a single state statute and a pair
of state-court decisions. As in , we will not “stake our
interpretation of the Second Amendment upon a single law,
in effect in a single [State], that contradicts the overwhelm-
ing weight of other evidence regarding the right to keep and
bear arms for defense” in public.
Finally, respondents point to the slight uptick in gun reg- ulation during the late-19th century—principally in the Western Territories. As we suggested in , however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contra- dicts earlier evidence. See id. , at 614; supra , at 28. 28 Here, moreover, respondents’ reliance on late-19th-century laws has several serious flaws even beyond their temporal dis- tance from the founding.
The vast majority of the statutes that respondents invoke come from the Western Territories. Two Territories prohib- ited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16; 1869 N. M. Laws ch. 32, §§1–2, p. 72. 29 Two others prohibited the carry of all firearms in towns, cities, and vil- lages, including long guns. See 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23. And one Territory completely prohibited public carry of pistols eve- rywhere , but allowed the carry of “shot-guns or rifles” for certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§1– 2, 5, p. 495.
These territorial restrictions fail to justify New York’s ——————
[28] We will not address any of the 20th-century historical evidence brought to bear by respondents or their amici . As with their late-19th- century evidence, the 20th-century evidence presented by respondents and their amici does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.
[29] The New Mexico restriction allowed an exception for individuals car-
rying for “the lawful defence of themselves, their families or their prop-
erty, and the same being then and there threatened with danger.” 1869
Terr. of N. M. Laws ch. 32, §1, p. 72. The Arizona law similarly exempted
those who have “reasonable ground for fearing an unlawful attack upon
his person.” 1889 Ariz. Terr. Sess. Laws no. 13, §2, p. 17.
proper-cause requirement for several reasons. First, the
bare existence of these localized restrictions cannot over-
come the overwhelming evidence of an otherwise enduring
American tradition permitting public carry. For starters,
“[t]he very transitional and temporary character of the
American [territorial] system” often “permitted legislative
improvisations which might not have been tolerated in a
permanent setup.” E. Pomeroy, The Territories and the
United States 1861–1890, p. 4 (1947). These territorial
“legislative improvisations,” which conflict with the Na-
tion’s earlier approach to firearm regulation, are most un-
likely to reflect “the origins and continuing significance of
the Second Amendment” and we do not consider them “in-
structive.”
Heller
,
The exceptional nature of these western restrictions is all
the more apparent when one considers the miniscule terri-
torial populations who would have lived under them. To
put that point into perspective, one need not look further
than the 1890 census. Roughly 62 million people lived in
the United States at that time. Arizona, Idaho, New Mex-
ico, Oklahoma, and Wyoming combined to account for only
420,000 of those inhabitants—about two-thirds of 1% of the
population. See Dept. of Interior, Compendium of the Elev-
enth Census: 1890, Part I.–Population 2 (1892). Put
simply, these western restrictions were irrelevant to more
than 99% of the American population. We have already ex-
plained that we will not stake our interpretation of the Sec-
ond Amendment upon a law in effect in a single State, or a
single city, “that contradicts the overwhelming weight of
other evidence regarding the right to keep and bear arms”
in public for self-defense. ,
Second, because these territorial laws were rarely subject
to judicial scrutiny, we do not know the basis of their per-
ceived legality. When States generally prohibited both
open and concealed carry of handguns in the late-19th cen-
tury, state courts usually upheld the restrictions when they
exempted army revolvers, or read the laws to exempt at
least that category of weapons. See,
e.g.
,
Haile
v.
State
, 38
Ark. 564, 567 (1882);
Wilson
v.
State
, 33 Ark. 557, 560
(1878);
Fife
v.
State
,
Absent any evidence explaining
why
these unprece-
dented prohibitions on
all
public carry were understood to
comport with the Second Amendment, we fail to see how
they inform “the origins and continuing significance of the
Amendment.”
Id.
, at 614; see also The Federalist No. 37,
——————
[30]
Many other state courts during this period continued the antebellum
tradition of upholding concealed carry regimes that seemingly provided
for open carry. See,
e.g.
,
State
v.
Speller
,
Finally, these territorial restrictions deserve little weight
because they were—consistent with the transitory nature
of territorial government—short lived. Some were held un-
constitutional shortly after passage. See
In re Brickey
, 8
Idaho 597,
Beyond these Territories, respondents identify one West- ern State—Kansas—that instructed cities with more than 15,000 inhabitants to pass ordinances prohibiting the pub- lic carry of firearms. See 1881 Kan. Sess. Laws §§1, 23, pp. 79, 92. 31 By 1890, the only cities meeting the population threshold were Kansas City, Topeka, and Wichita. See Compendium of the Eleventh Census: 1890, at 442–452. Even if each of these three cities enacted prohibitions by 1890, their combined population (93,000) accounted for only 6.5% of Kansas’ total population. Ibid. Although other Kansas cities may also have restricted public carry unilat- erally, 32 the lone late-19th-century state law respondents ——————
[31] In 1875, Arkansas prohibited the public carry of all pistols. See 1875 Ark. Acts p. 156, §1. But this categorical prohibition was also short lived. About six years later, Arkansas exempted “pistols as are used in the army or navy of the United States,” so long as they were carried “uncov- ered, and in [the] hand.” 1881 Ark. Acts p. 191, no. 96, §§1, 2.
[32] In 1879, Salina, Kansas, prohibited the carry of pistols but broadly exempted “cases when any person carrying [a pistol] is engaged in the pursuit of any lawful business, calling or employment” and the circum- stances were “such as to justify a prudent man in carrying such weapon, identify does not prove that Kansas meaningfully restricted public carry, let alone demonstrate a broad tradition of States doing so.
* * *
At the end of this long journey through the Anglo-American
history of public carry, we conclude that respondents have
not met their burden to identify an American tradition jus-
tifying the State’s proper-cause requirement. The Second
Amendment guaranteed to “all Americans” the right to bear
commonly used arms in public subject to certain reasona-
ble, well-defined restrictions. , 554 U. S., at 581.
Those restrictions, for example, limited the intent for which
one could carry arms, the manner by which one carried
arms, or the exceptional circumstances under which one
could not carry arms, such as before justices of the peace
and other government officials. Apart from a few late-19th-
century outlier jurisdictions, American governments simply
have not broadly prohibited the public carry of commonly
used firearms for personal defense. Nor, subject to a few
late-in-time outliers, have American governments required
law-abiding, responsible citizens to “demonstrate a special
need for self-protection distinguishable from that of the
general community” in order to carry arms in public.
Klenosky
,
IV
The constitutional right to bear arms in public for self-
defense is not “a second-class right, subject to an entirely
different body of rules than the other Bill of Rights guaran-
tees.”
McDonald
,
dinance No. 268, §2.
ers some special need. That is not how the First Amend- ment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self- defense.
New York’s proper-cause requirement violates the Four- teenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further pro- ceedings consistent with this opinion.
It is so ordered.
A LITO , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 20–843 _________________ NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL ., PETITIONERS KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
J USTICE A LITO , concurring.
I join the opinion of the Court in full but add the following comments in response to the dissent.
I
Much of the dissent seems designed to obscure the spe- cific question that the Court has decided, and therefore it may be helpful to provide a succinct summary of what we have actually held. In District of Columbia v. Heller , 554 U. S. 570 (2008), the Court concluded that the Second Amendment protects the right to keep a handgun in the home for self-defense. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “ ‘the natural right of resistance and self-preservation.’ ” Id., at 594. “[T]he inherent right of self-defense,” Heller ex- plained, is “central to the Second Amendment right.” Id ., at 628.
Although concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves. And because many peo- ple face a serious risk of lethal violence when they venture
A LITO , J., concurring
outside their homes, the Second Amendment was under- stood at the time of adoption to apply under those circum- stances. The Court’s exhaustive historical survey estab- lishes that point very clearly, and today’s decision therefore holds that a State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding res- idents from carrying a gun for this purpose.
That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in or McDonald v. Chicago , 561 U. S. 742 (2010), about re- strictions that may be imposed on the possession or carry- ing of guns.
In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post , at 1–8 (opinion of B , J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post , at 4–5. Does the dissent think that laws like New York’s prevent or deter such atroc- ities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns to commit suicide? See post , at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?
The dissent cites statistics about the use of guns in do- mestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in 3
A LITO , J., concurring
this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?
The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it out- side the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).
The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self- ——————
[1] The dissent makes no effort to explain the relevance of most of the incidents and statistics cited in its introductory section ( post , at 1–8) (opinion of B , J.). Instead, it points to studies (summarized later in its opinion) regarding the effects of “shall issue” licensing regimes on rates of homicide and other violent crimes. I note only that the dissent’s presentation of such studies is one-sided. See RAND Corporation, Ef- fects of Concealed-Carry Laws on Violent Crime (Apr. 22, 2022), https://www.rand.org/research/gun-policy/analysis/concealed- carry/violent-crime-html; see also Brief for William English et al. as Amici Curiae 3 (“The overwhelming weight of statistical analysis on the effects of [right-to-carry] laws on violent crime concludes that RTC laws do not result in any statistically significant increase in violent crime rates”); Brief for Arizona et al. as Amici Curiae 12 (“[P]opulation-level data on licensed carry is extensive, and the weight of the evidence con- firms that objective, non-discriminatory licensed-carry laws have two re- sults: (1) statistically significant reductions in some types of violent crime, or (2) no statistically significant effect on overall violent crime”); Brief for Law Enforcement Groups et al. as Amici Curiae 12 (“[O]ver the period 1991–2019 the inventory of firearms more than doubled; the num- ber of concealed carry permits increased by at least sevenfold,” but “mur- der rates fell by almost half, from 9.8 per 100,000 people in 1991 to 5.0 per 100,000 in 2019” and “[v]iolent crimes plummeted by over half ”).
A LITO , J., concurring
defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. See post , at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun vi- olence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.
No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns, 2 and it is fair to assume that the number of guns seized is a fraction of the total number held unlaw- fully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bod- yguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vul- nerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.
Ordinary citizens frequently use firearms to protect ——————
[2] NYPD statistics show approximately 6,000 illegal guns were seized in 2021. A. Southall, This Police Captain’s Plan To Stop Gun Violence Uses More Than Handcuffs, N. Y. Times, Feb. 4, 2022. According to re- cent remarks by New York City Mayor Eric Adams, the NYPD has con- fiscated 3,000 firearms in 2022 so far. City of New York, Transcript: Mayor Eric Adams Makes Announcement About NYPD Gun Violence Suppression Division (June 6, 2022), https://www1.nyc.gov/office-of-the- mayor/news/369-22/trascript-mayor-eric-adams-makes-announcement- nypd-gun-violence-suppression-division.
A LITO , J., concurring
themselves from criminal attack. According to survey data, defensive firearm use occurs up to 2.5 million times per year. Brief for Law Enforcement Groups et al. as Amici Cu- riae 5. A Centers for Disease Control and Prevention report commissioned by former President Barack Obama reviewed the literature surrounding firearms use and noted that “[s]tudies that directly assessed the effect of actual defen- sive uses of guns . . . have found consistently lower injury rates among gun-using crime victims compared with vic- tims who used other self-protective strategies.” Institute of Medicine and National Research Council, Priorities for Re- search To Reduce the Threat of Firearm-Related Violence 15–16 (2013) (referenced in Brief for Independent Women’s Law Center as Amicus Curiae 19–20).
Many of the amicus briefs filed in this case tell the story of such people. Some recount incidents in which a potential victim escaped death or serious injury only because carry- ing a gun for self-defense was allowed in the jurisdiction where the incident occurred. Here are two examples. One night in 1987, Austin Fulk, a gay man from Arkansas, “was chatting with another man in a parking lot when four gay bashers charged them with baseball bats and tire irons. Fulk’s companion drew his pistol from under the seat of his car, brandished it at the attackers, and fired a single shot over their heads, causing them to flee and saving the would- be victims from serious harm.” Brief for DC Project Foun- dation et al. as Amici Curiae 31 (footnote omitted).
On July 7, 2020, a woman was brutally assaulted in the parking lot of a fast food restaurant in Jefferson City, Ten- nessee. Her assailant slammed her to the ground and be- gan to drag her around while strangling her. She was saved when a bystander who was lawfully carrying a pistol pointed his gun at the assailant, who then stopped the as- sault and the assailant was arrested. Ibid. (citing C. Weth- ington, Jefferson City Police: Legally Armed Good Samari- tan Stops Assault, ABC News 6, WATE.com (July 9, 2020),
A LITO , J., concurring
https://www.wate.com/news/local-news/jefferson-city-police- legally-armed-good-samaritan-stops-assault/).
In other incidents, a law-abiding person was driven to vi- olate the Sullivan Law because of fear of victimization and as a result was arrested, prosecuted, and incarcerated. See Brief for Black Attorneys of Legal Aid et al. as Amici Curiae 22–25.
Some briefs were filed by members of groups whose mem- bers feel that they have special reasons to fear attacks. See Brief for Asian Pacific American Gun Owners Association as Amicus Curiae ; Brief for DC Project Foundation et al. as Amici Curiae ; Brief for Black Guns Matter et al . as Amici Curiae ; Brief for Independent Women’s Law Center as Ami- cus Curiae ; Brief for National African American Gun Asso- ciation, Inc., as Amicus Curiae .
I reiterate: All that we decide in this case is that the Sec- ond Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.
II
This brings me to Part II–B of the dissent, post , at 11–21, which chastises the Court for deciding this case without a trial and factual findings about just how hard it is for a law- abiding New Yorker to get a carry permit. The record be- fore us, however, tells us everything we need on this score. At argument, New York’s solicitor general was asked about an ordinary person who works at night and must walk through dark and crime-infested streets to get home. Tr. of Oral Arg. 66–67. The solicitor general was asked whether such a person would be issued a carry permit if she pleaded: “[T]here have been a lot of muggings in this area, and I am scared to death.” Id., at 67. The solicitor general’s candid answer was “in general,” no. Ibid. To get a permit, the ap- plicant would have to show more—for example, that she
A LITO , J., concurring
had been singled out for attack. Id., at 65; see also id., at 58. A law that dictates that answer violates the Second Amendment.
III
My final point concerns the dissent’s complaint that the Court relies too heavily on history and should instead ap- prove the sort of “means-end” analysis employed in this case by the Second Circuit. Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction. See post , at 20. This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun. Two examples illustrate the point.
The first is the Second Circuit’s decision in a case the
Court decided two Terms ago,
New York State Rifle & Pistol
Assn., Inc.
v.
City of New York
,
A LITO , J., concurring
§400.00(6) (West Cum. Supp. 2022); Suggestion of Mootness in New York State Rifle & Pistol Assn., Inc. City of New York , O. T. 2019, No. 18–280, pp. 5–7.
Exhibit two is the dissent filed in
Heller
by J USTICE
B REYER , the author of today’s dissent. At issue in
Heller
was an ordinance that made it impossible for any District
of Columbia resident to keep a handgun in the home for
self-defense. See
Like that dissent in Heller , the real thrust of today’s dis- sent is that guns are bad and that States and local jurisdic- tions should be free to restrict them essentially as they see fit. 3 That argument was rejected in Heller , and while the dissent protests that it is not rearguing Heller , it proceeds to do just that. See post , at 25–28. correctly recognized that the Second Amendment
—————— [3] If we put together the dissent in this case and J USTICE ’s Hel- ler dissent, States and local governments would essentially be free to ban the possession of all handguns, and it is unclear whether its approach would impose any significant restrictions on laws regulating long guns. The dissent would extend a very large measure of deference to legislation implicating Second Amendment rights, but it does not claim that such deference is appropriate when any other constitutional right is at issue.
A LITO , J., concurring
codifies the right of ordinary law-abiding Americans to pro- tect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amend- ment was adopted, there were no police departments, and many families lived alone on isolated farms or on the fron- tiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection.
Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to pro- tect themselves. And today, no less than in 1791, the Sec- ond Amendment guarantees their right to do so.
K AVANAUGH , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 20–843 _________________ NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL ., PETITIONERS KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
J USTICE K AVANAUGH , with whom T HE C HIEF J USTICE joins, concurring.
The Court employs and elaborates on the text, history,
and tradition test that
Heller
and
McDonald
require for
evaluating whether a government regulation infringes on
the Second Amendment right to possess and carry guns for
self-defense. See
District of Columbia
v. , 554 U. S.
570 (2008);
McDonald
v.
Chicago
,
I join the Court’s opinion, and I write separately to un- derscore two important points about the limits of the Court’s decision.
First , the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not af- fect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.
The Court’s decision addresses only the unusual discre- tionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York. As the
K AVANAUGH , J., concurring
Court explains, New York’s outlier may-issue regime is con-
stitutionally problematic because it grants open-ended dis-
cretion to licensing officials and authorizes licenses only for
those applicants who can show some special need apart
from self-defense. Those features of New York’s regime—
the unchanneled discretion for licensing officials and the
special-need requirement—in effect deny the right to carry
handguns for self-defense to many “ordinary, law-abiding
citizens.”
Ante
, at 1; see also
Heller
,
By contrast, 43 States employ objective shall-issue licens- ing regimes. Those shall-issue regimes may require a li- cense applicant to undergo fingerprinting, a background check, a mental health records check, and training in fire- arms handling and in laws regarding the use of force, among other possible requirements. Brief for Arizona et al. as Amici Curiae 7. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discre- tion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitu- tionally permissible, subject of course to an as-applied chal- lenge if a shall-issue licensing regime does not operate in that manner in practice. Tr. of Oral Arg. 50 − 51.
Going forward, therefore, the 43 States that employ ob- jective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying hand- guns for self-defense so long as those States employ objec- tive licensing requirements like those used by the 43 shall- issue States.
K AVANAUGH , J., concurring
Second
, as
Heller
and
McDonald
established and the
Court today again explains, the Second Amendment “is nei-
ther a regulatory straightjacket nor a regulatory blank
check.”
Ante
, at 21. Properly interpreted, the Second
Amendment allows a “variety” of gun regulations.
Heller
,
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of fire- arms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.] “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” ,554 U. S., at 626 − 627, and n. 26 (ci- tations and quotation marks omitted); see also McDon- ald ,561 U. S., at 786 (plurality opinion).
* * *
With those additional comments, I join the opinion of the Court.
B ARRETT , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 20–843 _________________ NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL ., PETITIONERS KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
J USTICE ARRETT , concurring.
I join the Court’s opinion in full. I write separately to
highlight two methodological points that the Court does not
resolve. First, the Court does not conclusively determine
the manner and circumstances in which postratification
practice may bear on the original meaning of the Constitu-
tion. See
ante
, at 24–29. Scholars have proposed competing
and potentially conflicting frameworks for this analysis, in-
cluding liquidation, tradition, and precedent. See,
e.g.
, Nel-
son, Originalism and Interpretive Conventions, 70 U. Chi.
L. Rev. 519 (2003); McConnell, Time, Institutions, and In-
terpretation, 95 B. U. L. Rev. 1745 (2015). The limits on
the permissible use of history may vary between these
frameworks (and between different articulations of each
one). To name just a few unsettled questions: How long af-
ter ratification may subsequent practice illuminate original
public meaning? Cf.
McCulloch
v.
Maryland
,
Second and relatedly, the Court avoids another “ongoing
scholarly debate on whether courts should primarily rely on
the prevailing understanding of an individual right when
the Fourteenth Amendment was ratified in 1868” or when
the Bill of Rights was ratified in 1791.
Ante
, at 29. Here,
the lack of support for New York’s law in either period
makes it unnecessary to choose between them. But if 1791
is the benchmark, then New York’s appeals to Reconstruc-
tion-era history would fail for the independent reason that
this evidence is simply too late (in addition to too little). Cf.
Espinoza
v.
Montana Dept. of Revenue
,
B REYER , J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________ No. 20–843 _________________ NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL ., PETITIONERS KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2022]
J USTICE , with whom J USTICE S OTOMAYOR and J USTICE K AGAN join, dissenting.
In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick).
Many States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of con- v. , J., dissenting cealed handguns. In my view, that decision rests upon sev- eral serious mistakes.
First, the Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mis- taken understanding of how New York’s law operates in practice. Second, the Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun reg- ulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and nei- ther do our precedents. Third, the Court itself demon- strates the practical problems with its history-only ap- proach. In applying that approach to New York’s law, the Court fails to correctly identify and analyze the relevant historical facts. Only by ignoring an abundance of histori- cal evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not “consistent with the Nation’s historical tradition of firearm regulation.” See ante, at 15.
In my view, when courts interpret the Second Amend-
ment, it is constitutionally proper, indeed often necessary,
for them to consider the serious dangers and consequences
of gun violence that lead States to regulate firearms. The
Second Circuit has done so and has held that New York’s
law does not violate the Second Amendment. See
Ka-
chalsky County of Westchester
,
I
The question before us concerns the extent to which the , J., dissenting Second Amendment prevents democratically elected offi- cials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.
In 2017, there were an estimated 393.3 million civilian- held firearms in the United States, or about 120 fire- arms per 100 people. A. Karp, Estimating Global Civilian- Held Firearms Numbers, Small Arms Survey 4 (June 2018), https://www.smallarmssurvey.org/sites/default/files/ resources/SAS-BP-Civilian-Firearms-Numbers.pdf. That is more guns per capita than in any other country in the world. Ibid. (By comparison, Yemen is second with about 52.8 firearms per 100 people—less than half the per capita rate in the United States—and some countries, like Indone- sia and Japan, have fewer than one firearm per 100 people. Id., at 3–4.)
Unsurprisingly, the United States also suffers a dispro- portionately high rate of firearm-related deaths and inju- ries. Cf. Brief for Educational Fund To Stop Gun Violence et al. as Amici Curiae 17–18 (Brief for Educational Fund) (citing studies showing that, within the United States, “states that rank among the highest in gun ownership also rank among the highest in gun deaths” while “states with lower rates of gun ownership have lower rates of gun deaths”). In 2015, approximately 36,000 people were killed by firearms nationwide. M. Siegel et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 Am. J. Pub. Health 1923 (2017). Of those deaths, 22,018 (or about 61%) were suicides, 13,463 (37%) were homicides, and 489 (1%) were uninten- tional injuries. Ibid . On top of that, firearms caused an average of 85,694 emergency room visits for nonfatal inju- ries each year between 2009 and 2017. E. Kaufman et al., Epidemiological Trends in Fatal and Nonfatal Firearm In- juries in the US, 2009–2017, 181 JAMA Internal Medicine , J., dissenting 237 (2021) (Kaufman).
Worse yet, gun violence appears to be on the rise. By 2020, the number of firearm-related deaths had risen to 45,222, CDC, Fast Facts, or by about 25% since 2015. That means that, in 2020, an average of about 124 people died from gun violence every day. Ibid . As I mentioned above, gun violence has now become the leading cause of death in children and adolescents, surpassing car crashes, which had previously been the leading cause of death in that age group for over 60 years. Goldstick 1955; J. Bates, Guns Be- came the Leading Cause of Death for American Children and Teens in 2020, Time, Apr. 27, 2022, https://www. time.com/6170864/cause-of-death-children-guns/. And the consequences of gun violence are borne disproportionately by communities of color, and Black communities in partic- ular. See CDC, Age-Adjusted Rates of Firearm-Related Homicide, by Race, Hispanic Origin, and Sex—National Vital Statistics System, United States, 2019, at 1491 (Oct. 22, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/ mm7042a6-H.pdf (documenting 34.9 firearm-related homi- cides per 100,000 population for non-Hispanic Black men in 2019, compared to 7.7 such homicides per 100,000 popula- tion for men of all races); S. Kegler et al., CDC, Vital Signs : Changes in Firearm Homicide and Suicide Rates—United States, 2019–2020, at 656–658 (May 13, 2022), https:// www.cdc.gov/mmwr/volumes/71/wr/pdfs/mm7119e1-H.pdf.
The dangers posed by firearms can take many forms. Newspapers report mass shootings occurring at an enter- tainment district in Philadelphia, Pennsylvania (3 dead and 11 injured); an elementary school in Uvalde, Texas (21 dead); a supermarket in Buffalo, New York (10 dead and 3 injured); a series of spas in Atlanta, Georgia (8 dead); a busy street in an entertainment district of Dayton, Ohio (9 dead and 17 injured); a nightclub in Orlando, Florida (50 dead and 53 injured); a church in Charleston, South Carolina (9 dead); a movie theater in Aurora, Colorado (12 dead and 50 , J., dissenting injured); an elementary school in Newtown, Connecticut (26 dead); and many, many more. See, e.g., R. Todt, 3 Dead, 11 Wounded in Philadelphia Shooting on Busy Street, Wash- ington Post, June 5, 2022; A. Hernández, J. Slater, D. Bar- rett, & S. Foster-Frau, At Least 19 Children, 2 Teachers Killed at Texas Elementary School, Washington Post, May 25, 2022; A. Joly, J. Slater, D. Barrett, & A. Hernandez, 10 Killed in Racially Motivated Shooting at Buffalo Grocery Store, Washington Post , May 14, 2022; C. McWhirter & V. Bauerlein, Atlanta-Area Shootings at Spas Leave Eight Dead, Wall Street Journal, Mar. 17, 2021; A. Hassan, Day- ton Gunman Shot 26 People in 32 Seconds, Police Timeline Reveals, N. Y. Times, Aug. 13, 2019; L. Alvarez & R. Pérez- Peña, Orlando Gunman Attacks Gay Nightclub, Leaving 50 Dead, N. Y. Times, June 12, 2016; J. Horowitz, N. Corasa- niti, & A. Southall, Nine Killed in Shooting at Black Church in Charleston, N. Y. Times, June 17, 2015; R. Lin, Gunman Kills 12 at ‘Dark Knight Rises’ Screening in Colorado, L. A. Times, July 20, 2012; J. Barron, Nation Reels After Gun- man Massacres 20 Children at School in Connecticut, N. Y. Times, Dec. 14, 2012. Since the start of this year alone (2022), there have already been 277 reported mass shoot- ings—an average of more than one per day. Gun Violence Archive; see also Gun Violence Archive, General Methodol- ogy, https://www.gunviolencearchive.org/methodology (de- fining mass shootings to include incidents in which at least four victims are shot, not including the shooter).
And mass shootings are just one part of the problem. Easy access to firearms can also make many other aspects of American life more dangerous. Consider, for example, the effect of guns on road rage. In 2021, an average of 44 people each month were shot and either killed or wounded in road rage incidents, double the annual average between 2016 and 2019. S. Burd-Sharps & K. Bistline, Everytown for Gun Safety, Reports of Road Rage Shootings Are on the Rise (Apr. 4, 2022), https://www.everytownresearch.org/reports- , J., dissenting of-road-rage-shootings-are-on-the-rise/; see also J. Dono- hue, A. Aneja, & K. Weber, Right-to-Carry Laws and Vio- lent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis, 16 J. Empirical Legal Studies 198, 204 (2019). Some of those deaths might have been avoided if there had not been a loaded gun in the car. See ibid. ; Brief for American Bar Association as Amicus Curiae 17–18; Brief for Educational Fund 20–23 (citing studies showing that the presence of a firearm is likely to increase aggression in both the person carrying the gun and others who see it).
The same could be said of protests: A study of 30,000 pro- tests between January 2020 and June 2021 found that armed protests were nearly six times more likely to become violent or destructive than unarmed protests. Everytown for Gun Safety, Armed Assembly: Guns, Demonstrations, and Political Violence in America (Aug. 23, 2021), https:// www.everytownresearch.org/report/armed-assembly-guns- demonstrations-and-political-violence-in-america/ (finding that 16% of armed protests turned violent, compared to less than 3% of unarmed protests). Or domestic disputes: An- other study found that a woman is five times more likely to be killed by an abusive partner if that partner has access to a gun. Brief for Educational Fund 8 (citing A. Zeoli, R. Ma- linski, & B. Turchan, Risks and Targeted Interventions: Firearms in Intimate Partner Violence, 38 Epidemiologic Revs. 125 (2016); J. Campbell et al., Risk Factors for Femi- cide in Abusive Relationships: Results From a Multisite Case Control Study, 93 Am. J. Pub. Health 1089, 1092 (2003)). Or suicides: A study found that men who own handguns are three times as likely to commit suicide than men who do not and women who own handguns are seven times as likely to commit suicide than women who do not. D. Studdert et al., Handgun Ownership and Suicide in Cal- ifornia, 382 New England J. Med. 2220, 2224 (June 4, 2020). , J., dissenting
Consider, too, interactions with police officers. The pres- ence of a gun in the hands of a civilian poses a risk to both officers and civilians. Amici prosecutors and police chiefs tell us that most officers who are killed in the line of duty are killed by firearms; they explain that officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership. Brief for Prosecutors Against Gun Violence as Amicus Curiae 23–24; Brief for Former Major City Police Chiefs as Amici Curiae 13–14, and n. 21, (citing D. Swedler, M. Simmons, F. Dominici, & D. Hemenway, Firearm Prevalence and Homicides of Law Enforcement Of- ficers in the United States, 105 Am. J. Pub. Health 2042, 2045 (2015)). They also say that States with the highest rates of gun ownership report four times as many fatal shootings of civilians by police officers compared to States with the lowest rates of gun ownership. Brief for Former Major City Police Chiefs as Amici Curiae 16 (citing D. Hemenway, D. Azrael, A. Connor, & M. Miller, Variation in Rates of Fatal Police Shootings Across US States: The Role of Firearm Availability, 96 J. Urb. Health 63, 67 (2018)).
These are just some examples of the dangers that fire- arms pose. There is, of course, another side to the story. I am not simply saying that “guns are bad.” See ante, at 8 (A LITO , J., concurring). Some Americans use guns for legit- imate purposes, such as sport ( e.g., hunting or target shoot- ing), certain types of employment ( e.g., as a private security guard), or self-defense. Cf. ante, at 4–6 (A LITO , J., concur- ring). Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, sta- tistics, expert opinions, predictive judgments, relevant val- ues, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That considera- tion counsels modesty and restraint on the part of judges , J., dissenting when they interpret and apply the Second Amendment.
Consider, for one thing, that different types of firearms
may pose different risks and serve different purposes. The
Court has previously observed that handguns, the type of
firearm at issue here, “are the most popular weapon chosen
by Americans for self-defense in the home.”
District of Co-
lumbia
v. ,
Or consider, for another thing, that the dangers and ben- efits posed by firearms may differ between urban and rural areas. See generally Brief for City of Chicago et al. as Amici Curiae (detailing particular concerns about gun violence in large cities). Firearm-related homicides and assaults are significantly more common in urban areas than rural ones. For example, from 1999 to 2016, 89.8% of the 213,175 fire- arm-related homicides in the United States occurred in “metropolitan” areas. M. Siegel et al., The Impact of State Firearm Laws on Homicide Rates in Suburban and Rural Areas Compared to Large Cities in the United States, 1991–2016, 36 J. Rural Health 255 (2020); see also Brief for Partnership for New York City as Amicus Curiae 10; Kauf- man 237 (finding higher rates of fatal assault injuries from firearms in urban areas compared to rural areas); C. Bra- nas, M. Nance, M. Elliott, T. Richmond, & C. Schwab, Ur- ban-Rural Shifts in Intentional Firearm Death: Different , J., dissenting Causes, Same Results, 94 Am. J. Pub. Health 1750, 1752 (2004) (finding higher rates of firearm homicide in urban counties compared to rural counties).
J USTICE A LITO asks why I have begun my opinion by re- viewing some of the dangers and challenges posed by gun violence and what relevance that has to today’s case. Ante, at 2–4 (concurring opinion). All of the above considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts. What kinds of firearm regulations should a State adopt? Different States might choose to an- swer that question differently. They may face different challenges because of their different geographic and demo- graphic compositions. A State like New York, which must account for the roughly 8.5 million people living in the 303 square miles of New York City, might choose to adopt dif- ferent (and stricter) firearms regulations than States like Montana or Wyoming, which do not contain any city re- motely comparable in terms of population or density. See U. S. Census Bureau, Quick Facts: New York City (last up- dated July 1, 2021) (Quick Facts: New York City), https:// www.census.gov/quickfacts/newyorkcitynewyork/; Brief for City of New York as Amicus Curiae 8, 22. For a variety of reasons, States may also be willing to tolerate different de- grees of risk and therefore choose to balance the competing benefits and dangers of firearms differently.
The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. The pri- mary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them. , J., dissenting
II A New York State requires individuals to obtain a license in order to carry a concealed handgun in public. N. Y. Penal Law Ann. §400.00(2) (West Cum. Supp. 2022). I address the specifics of that licensing regime in greater detail in Part II–B below. Because, at this stage in the proceedings, the parties have not had an opportunity to develop the evi- dentiary record, I refer to facts and representations made in petitioners’ complaint and in amicus briefs filed before us.
Under New York’s regime, petitioners Brandon Koch and Robert Nash have obtained restricted licenses that permit them to carry a concealed handgun for certain purposes and at certain times and places. They wish to expand the scope of their licenses so that they can carry a concealed handgun without restriction.
Koch and Nash are residents of Rensselaer County, New York. Koch lives in Troy, a town of about 50,000, located eight miles from New York’s capital city of Albany, which has a population of about 98,000. See App. 100; U. S. Cen- sus Bureau, Quick Facts: Troy City, New York (last up- dated July 1, 2021), https://www.census.gov/quickfacts/ troycitynewyork; id. , Albany City, New York, https://www. census.gov/quickfacts/albanycitynewyork. Nash lives in Averill Park, a small town 12.5 miles from Albany. App. 100.
Koch and Nash each applied for a license to carry a con- cealed handgun. Both were issued restricted licenses that allowed them to carry handguns only for purposes of hunt- ing and target shooting. Id ., at 104, 106. But they wanted “unrestricted” licenses that would allow them to carry con- cealed handguns “for personal protection and all lawful pur- poses.” Id ., at 112; see also id ., at 40. They wrote to the licensing officer in Rensselaer County—Justice Richard , J., dissenting McNally, a justice of the New York Supreme Court—re- questing that the hunting and target shooting restrictions on their licenses be removed. Id., at 40, 111–113. After holding individual hearings for each petitioner, Justice McNally denied their requests. Id., at 31, 41, 105, 107, 114. He clarified that, in addition to hunting and target shoot- ing, Koch and Nash could “carry concealed for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking & camping.” Id., at 41, 114. He also permitted Koch, who was employed by the New York Court System’s Division of Technology, to “carry to and from work.” Id ., at 111, 114. But he reaffirmed that Nash was prohibited from carrying a concealed handgun in loca- tions “typically open to and frequented by the general pub- lic.” Id. , at 41. Neither Koch nor Nash alleges that he ap- pealed Justice McNally’s decision. Brief for Respondents 13; see App. 122–126.
Instead, petitioners Koch and Nash, along with the New
York State Rifle & Pistol Association, Inc., brought this law-
suit in federal court against Justice McNally and other
State representatives responsible for enforcing New York’s
firearms laws. Petitioners claimed that the State’s refusal
to modify Koch’s and Nash’s licenses violated the Second
Amendment. The District Court dismissed their complaint.
It followed Second Circuit precedent holding that New
York’s licensing regime was constitutional. See
Kachalsky
,
B
As the Court recognizes, New York’s licensing regime traces its origins to 1911, when New York enacted the “Sul- livan Law,” which prohibited public carriage of handguns without a license. See 1911 N. Y. Laws ch. 195, §1, p. 443. , J., dissenting Two years later in 1913, New York amended the law to es- tablish substantive standards for the issuance of a license. See 1913 N. Y. Laws ch. 608, §1, pp. 1627–1629. Those standards have remained the foundation of New York’s li- censing regime ever since—a regime that the Court now, more than a century later, strikes down as unconstitu- tional.
As it did over 100 years ago, New York’s law today con- tinues to require individuals to obtain a license before car- rying a concealed handgun in public. N. Y. Penal Law Ann. §400.00(2); Kachalsky , 701 F. 3d, at 85–86. Because the State does not allow the open carriage of handguns at all, a concealed-carry license is the only way to legally carry a handgun in public . Id ., at 86. This licensing requirement applies only to handguns ( i.e., “pistols and revolvers”) and short-barreled rifles and shotguns, not to all types of fire- arms. Id. , at 85. For instance, the State does not require a license to carry a long gun ( i.e., a rifle or a shotgun over a certain length) in public. Ibid. ; §265.00(3) (West 2022).
To obtain a concealed-carry license for a handgun, an ap- plicant must satisfy certain eligibility criteria. Among other things, he must generally be at least 21 years old and of “good moral character.” §400.00(1). And he cannot have been convicted of a felony, dishonorably discharged from the military, or involuntarily committed to a mental hy- giene facility. Ibid . If these and other eligibility criteria are satisfied, New York law provides that a concealed-carry license “shall be issued” to individuals working in certain professions, such as judges, corrections officers, or messen- gers of a “banking institution or express company.” §400.00(2). Individuals who satisfy the eligibility criteria but do not work in one of these professions may still obtain a concealed-carry license, but they must additionally show that “proper cause exists for the issuance thereof.” §400.00(2)(f ).
The words “proper cause” may appear on their face to be
, J., dissenting
broad, but there is “a substantial body of law instructing
licensing officials on the application of this standard.”
Id.
,
at 86. New York courts have interpreted proper cause “to
include carrying a handgun for target practice, hunting, or
self-defense.”
Ibid
. When an applicant seeks a license for
target practice or hunting, he must show “ ‘a sincere desire
to participate in target shooting and hunting.’ ”
Ibid
. (quot-
ing
In re O’Connor
,
In describing New York’s law, the Court recites the above facts but adds its own gloss. It suggests that New York’s licensing regime gives licensing officers too much discretion and provides too “limited” judicial review of their decisions, ante, at 4; that the proper cause standard is too “demand- ing,” ante, at 3; and that these features make New York an outlier compared to the “vast majority of States,” ante, at 4. But on what evidence does the Court base these character- izations? Recall that this case comes to us at the pleading stage. The parties have not had an opportunity to conduct v. , J., dissenting discovery, and no evidentiary hearings have been held to develop the record. See App. 15–26. Thus, at this point, there is no record to support the Court’s negative charac- terizations, as we know very little about how the law has actually been applied on the ground.
Consider each of the Court’s criticisms in turn. First, the
Court says that New York gives licensing officers too much
discretion and “leaves applicants little recourse if their local
licensing officer denies a permit.”
Ante
, at 4. But there is
nothing unusual about broad statutory language that can
be given more specific content by judicial interpretation.
Nor is there anything unusual or inadequate about subject-
ing licensing officers’ decisions to arbitrary-and-capricious
review. Judges routinely apply that standard, for example,
to determine whether an agency action is lawful under both
New York law and the Administrative Procedure Act. See,
e.g.,
N. Y. Civ. Prac. Law Ann. §7803(3) (2021); 5 U. S. C.
§706(2)(A). The arbitrary-and-capricious standard has
thus been used to review important policies concerning
health, safety, and immigration, to name just a few exam-
ples. See,
e.g., Biden Missouri
,
Without an evidentiary record, there is no reason to as- sume that New York courts applying this standard fail to provide license applicants with meaningful review. And there is no evidentiary record to support the Court’s as- sumption here. Based on the pleadings alone, we cannot know how often New York courts find the denial of a con- cealed-carry license to be arbitrary and capricious or on what basis. We do not even know how a court would have reviewed the licensing officer’s decisions in Koch’s and , J., dissenting Nash’s cases because they do not appear to have sought ju- dicial review at all. See Brief for Respondents 13; App. 122– 126.
Second, the Court characterizes New York’s proper cause standard as substantively “demanding.” Ante, at 3. But, again, the Court has before it no evidentiary record to demonstrate how the standard has actually been applied. How “demanding” is the proper cause standard in practice? Does that answer differ from county to county? How many license applications are granted and denied each year? At the pleading stage, we do not know the answers to these and other important questions, so the Court’s characteriza- tion of New York’s law may very well be wrong.
In support of its assertion that the law is “demanding,” the Court cites only to cases originating in New York City. Ibid . (citing In re Martinek , 294 App. Div. 2d 221, 743 N. Y. S. 2d 80 (2002) (New York County, i.e., Manhattan); In re Kaplan , 249 App. Div. 2d 199, 673 N. Y. S. 2d 66 (1998) (same); In re Klenosky , 75 App. Div. 2d 793, 428 N. Y. S. 2d 256 (same); In re Bernstein , 85 App. Div. 2d 574, 445 N. Y. S. 2d 716 (1981) (Bronx County)). But cases from New York City may not accurately represent how the proper cause standard is applied in other parts of the State, including in Rensselaer County where petitioners reside.
To the contrary, amici tell us that New York’s licensing regime is purposefully flexible: It allows counties and cities to respond to the particular needs and challenges of each area. See Brief for American Bar Association as Amicus Curiae 12; Brief for City of New York as Amicus Curiae 20– 29. Amici suggest that some areas may interpret words such as “proper cause” or “special need” more or less strictly, depending upon each area’s unique circumstances. See ibid . New York City, for example, reports that it “has applied the [proper cause] requirement relatively rigor- ously” because its densely populated urban areas pose a heightened risk of gun violence. Brief for City of New York , J., dissenting as Amicus Curiae 20. In comparison, other (perhaps more rural) counties “have tailored the requirement to their own circumstances, often issuing concealed-carry licenses more freely than the City.” Ibid. ; see also In re O’Connor , 154 Misc. 2d, at 698, 585 N. Y. S. 2d, at 1004 (“The circum- stances which exist in New York City are significantly dif- ferent than those which exist in Oswego or Putnam Coun- ties. . . . The licensing officers in each county are in the best position to determine whether any interest of the popula- tion of their county is furthered by the use of restrictions on pistol licenses”); Brief for Citizens Crime Commission of New York City as Amicus Curiae 18–19. Given the geo- graphic variation across the State, it is too sweeping for the Court to suggest, without an evidentiary record, that the proper cause standard is “demanding” in Rensselaer County merely because it may be so in New York City.
Finally, the Court compares New York’s licensing regime to that of other States. Ante, at 4–6. It says that New York’s law is a “may issue” licensing regime, which the Court describes as a law that provides licensing officers greater discretion to grant or deny licenses than a “shall is- sue” licensing regime. Ante, at 4–5. Because the Court counts 43 “shall issue” jurisdictions and only 7 “may issue” jurisdictions, it suggests that New York’s law is an outlier. Ibid .; see also ante, at 1–2 (K AVANAUGH , J., concurring). Implicitly, the Court appears to ask, if so many other States have adopted the more generous “shall issue” approach, why can New York not be required to do the same?
But the Court’s tabulation, and its implicit question, overlook important context. In drawing a line between “may issue” and “shall issue” licensing regimes, the Court ignores the degree of variation within and across these cat- egories. Not all “may issue” regimes are necessarily alike, nor are all “shall issue” regimes. Conversely, not all “may issue” regimes are as different from the “shall issue” re- , J., dissenting gimes as the Court assumes. For instance, the Court rec- ognizes in a footnote that three States (Connecticut, Dela- ware, and Rhode Island) have statutes with discretionary criteria, like so-called “may issue” regimes do. Ante, at 5, n. 1. But the Court nonetheless counts them among the 43 “shall issue” jurisdictions because, it says, these three States’ laws operate in practice more like “shall issue” re- gimes. Ibid. ; see also Brief for American Bar Association as Amicus Curiae 10 (recognizing, conversely, that some “shall issue” States, e.g., Alabama, Colorado, Georgia, Oregon, and Virginia, still grant some degree of discretion to licens- ing authorities).
As these three States demonstrate, the line between “may issue” and “shall issue” regimes is not as clear cut as the Court suggests, and that line depends at least in part on how statutory discretion is applied in practice. Here, be- cause the Court strikes down New York’s law without af- fording the State an opportunity to develop an evidentiary record, we do not know how much discretion licensing offic- ers in New York have in practice or how that discretion is exercised, let alone how the licensing regimes in the other six “may issue” jurisdictions operate.
Even accepting the Court’s line between “may issue” and “shall issue” regimes and assuming that its tally (7 “may issue” and 43 “shall issue” jurisdictions) is correct, that count does not support the Court’s implicit suggestion that the seven “may issue” jurisdictions are somehow outliers or anomalies. The Court’s count captures only a snapshot in time. It forgets that “shall issue” licensing regimes are a relatively recent development. Until the 1980s, “may issue” regimes predominated. See id ., at 9; R. Grossman & S. Lee, May Issue Versus Shall Issue: Explaining the Pattern of Concealed-Carry Handgun Laws, 1960–2001, 26 Contemp. Econ. Pol’y 198, 200 (2008) (Grossman). As of 1987, 16 States and the District of Columbia prohibited concealed , J., dissenting carriage outright, 26 States had “may issue” licensing re- gimes, 7 States had “shall issue” regimes, and 1 State (Ver- mont) allowed concealed carriage without a permit. Con- gressional Research Service, Gun Control: Concealed Carry Legislation in the 115th Congress 1 (Jan. 30, 2018). Thus, it has only been in the last few decades that States have shifted toward “shall issue” licensing laws. Prior to that, most States operated “may issue” licensing regimes without legal or practical problem.
Moreover, even considering, as the Court does, only the present state of play, its tally provides an incomplete pic- ture because it accounts for only the number of States with “may issue” regimes, not the number of people governed by those regimes. By the Court’s count, the seven “may issue” jurisdictions are New York, California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia. Ante, at 5–6. Together, these seven jurisdictions comprise about 84.4 million people and account for over a quarter of the country’s population. U. S. Census Bureau, 2020 Pop- ulation and Housing State Data (Aug. 12, 2021) (2020 Population), https://www.census.gov/library/visualizations/ interactive/2020-population-and-housing-state-data.html. Thus, “may issue” laws can hardly be described as a mar- ginal or outdated regime.
And there are good reasons why these seven jurisdictions may have chosen not to follow other States in shifting to- ward “shall issue” regimes. The seven remaining “may is- sue” jurisdictions are among the most densely populated in the United States: the District of Columbia (with an aver- age of 11,280.0 people/square mile in 2020), New Jersey (1,263.0), Massachusetts (901.2), Maryland (636.1), New York (428.7), California (253.7), and Hawaii (226.6). U. S. Census Bureau, Historical Population Density (1910–2020) (Apr. 26, 2001), https://www.census.gov/data/tables/time- series/dec/density-data-text.html. In comparison, the aver- age population density of the United States as a whole is , J., dissenting 93.8 people/square mile, and some States have population densities as low as 1.3 (Alaska), 5.9 (Wyoming), and 7.4 (Montana) people/square mile. Ibid . These numbers reflect in part the fact that these “may issue” jurisdictions contain some of the country’s densest and most populous urban ar- eas, e.g., New York City, Los Angeles, San Francisco, the District of Columbia, Honolulu, and Boston. U. S. Census Bureau, Urban Area Facts (Oct. 8, 2021), https://www.census . gov/programs-surveys/geography/guidance/geo-areas/ urban-rural/ua-facts.html. New York City, for example, has a population of about 8.5 million people, making it more populous than 38 States, and it squeezes that population into just over 300 square miles. Quick Facts: New York City; 2020 Population; Brief for City of New York as Amicus Curiae 8, 22.
As I explained above, supra, at 8–9, densely populated urban areas face different kinds and degrees of dangers from gun violence than rural areas. It is thus easy to see why the seven “may issue” jurisdictions might choose to reg- ulate firearm carriage more strictly than other States. See Grossman 199 (“We find strong evidence that more urban states are less likely to shift to ‘shall issue’ than rural states”).
New York and its amici present substantial data justify- ing the State’s decision to retain a “may issue” licensing re- gime. The data show that stricter gun regulations are as- sociated with lower rates of firearm-related death and injury. See, e.g., Brief for Citizens Crime Commission of New York City as Amicus Curiae 9–11; Brief for Former Major City Police Chiefs as Amici Curiae 9–12; Brief for Ed- ucational Fund 25–28; Brief for Social Scientists et al. as Amici Curiae 9–19. In particular, studies have shown that “may issue” licensing regimes, like New York’s, are associ- ated with lower homicide rates and lower violent crime rates than “shall issue” licensing regimes. For example, one study compared homicide rates across all 50 States during , J., dissenting the 25-year period from 1991 to 2015 and found that “shall issue” laws were associated with 6.5% higher total homicide rates, 8.6% higher firearm homicide rates, and 10.6% higher handgun homicide rates. Siegel, 107 Am. J. Pub. Health, at 1924–1925, 1927. Another study longitudinally followed 33 States that had adopted “shall-issue” laws be- tween 1981 and 2007 and found that the adoption of those laws was associated with a 13%–15% increase in rates of violent crime after 10 years. Donohue, 16 J. Empirical Le- gal Studies, at 200, 240. Numerous other studies show sim- ilar results. See, e.g., Siegel, 36 J. Rural Health , at 261 (finding that “may issue” laws are associated with 17% lower firearm homicide rates in large cities); C. Crifasi et al., Association Between Firearm Laws and Homicide in Urban Counties, 95 J. Urb. Health 383, 387 (2018) (finding that “shall issue” laws are associated with a 4% increase in firearm homicide rates in urban counties); M. Doucette, C. Crifasi, & S. Frattaroli, Right-to-Carry Laws and Firearm Workplace Homicides: A Longitudinal Analysis (1992– 2017), 109 Am. J. Pub. Health 1747, 1751 (Dec. 2019) (find- ing that States with “shall issue” laws between 1992 and 2017 experienced 29% higher rates of firearm-related work- place homicides); Brief for Social Scientists et al. as Amici Curiae 15–16, and nn. 17–20 (citing “thirteen . . . empirical papers from just the last few years linking [“shall issue”] laws to higher violent crime”).
J USTICE A LITO points to competing empirical evidence that arrives at a different conclusion. Ante, at 3, n. 1 (con- curring opinion). But these types of disagreements are ex- actly the sort that are better addressed by legislatures than courts. The Court today restricts the ability of legislatures to fulfill that role. It does so without knowing how New York’s law is administered in practice, how much discretion licensing officers in New York possess, or whether the proper cause standard differs across counties. And it does so without giving the State an opportunity to develop the , J., dissenting evidentiary record to answer those questions. Yet it strikes down New York’s licensing regime as a violation of the Sec- ond Amendment.
III A How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves? The Court does so by purporting to rely nearly exclusively on history. It requires “the government [to] affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of ‘the right to keep and bear arms.’ ” Ante, at 10. Beyond this historical inquiry, the Court refuses to employ what it calls “means-end scrutiny.” Ibid. That is, it refuses to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest. Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the Court’s near-exclusive reliance on that single tool today goes much too far.
The Court concedes that no Court of Appeals has adopted
its rigid history-only approach. See
ante,
at 8. To the con-
trary, every Court of Appeals to have addressed the ques-
tion has agreed on a two-step framework for evaluating
whether a firearm regulation is consistent with the Second
Amendment.
Ibid.
;
ante,
at 10, n. 4 (majority opinion) (list-
ing cases from the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Ninth, Tenth, Eleventh, and D. C. Circuits).
At the first step, the Courts of Appeals use text and history
to determine “whether the regulated activity falls within
the scope of the Second Amendment.”
Ezell Chicago
, 846
F. 3d 888, 892 (CA7 2017). If it does, they go on to the sec-
ond step and consider “ ‘the strength of the government’s
justification for restricting or regulating’ ” the Second
, J., dissenting
Amendment right.
Ibid
. In doing so, they apply a level of
“means-ends” scrutiny “that is proportionate to the severity
of the burden that the law imposes on the right”: strict scru-
tiny if the burden is severe, and intermediate scrutiny if it
is not.
National Rifle Assn. of Am., Inc.
v.
Bureau of Alco-
hol, Tobacco, Firearms, and Explosives
,
The Court today replaces the Courts of Appeals’ consen- sus framework with its own history-only approach. That is unusual. We do not normally disrupt settled consensus among the Courts of Appeals, especially not when that con- sensus approach has been applied without issue for over a decade. See Brief for Second Amendment Law Professors as Amici Curiae 4, 13–15; see also this Court’s Rule 10. The Court attempts to justify its deviation from our normal practice by claiming that the Courts of Appeals’ approach is inconsistent with Heller . See ante, at 10. In doing so, the Court implies that all 11 Courts of Appeals that have con- sidered this question misread Heller .
To the contrary, it is this Court that misreads Heller . The opinion in Heller did focus primarily on “constitutional text and history,” ante, at 13 (majority opinion), but it did not “rejec[t] . . . means-end scrutiny,” as the Court claims, ante, at 15. Consider what the Heller Court actually said. True, the Court spent many pages in discussing the text and historical context of the Second Amendment. 554 U. S., at 579–619. But that is not surprising because the Heller Court was asked to answer the preliminary question whether the Second Amendment right to “bear Arms” en- compasses an individual right to possess a firearm in the home for self-defense. Id. , at 577. The Heller Court con- cluded that the Second Amendment’s text and history were sufficiently clear to resolve that question: The Second Amendment, it said, does include such an individual right. Id ., at 579–619. There was thus no need for the Court to go further—to look beyond text and history, or to suggest what , J., dissenting analysis would be appropriate in other cases where the text and history are not clear.
But the Heller Court did not end its opinion with that preliminary question. After concluding that the Second Amendment protects an individual right to possess a fire- arm for self-defense, the Heller Court added that that right is “not unlimited.” Id., at 626. It thus had to determine whether the District of Columbia’s law, which banned handgun possession in the home, was a permissible regula- tion of the right. Id. , at 628–630. In answering that second question, it said: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights , banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster.” Id., at 628–629 (emphasis added; footnote and citation omitted). That lan- guage makes clear that the Heller Court understood some form of means-end scrutiny to apply. It did not need to spec- ify whether that scrutiny should be intermediate or strict because, in its view, the District’s handgun ban was so “se- vere” that it would have failed either level of scrutiny. Id., at 628–629; see also id., at 628, n. 27 (clarifying that ra- tional-basis review was not the proper level of scrutiny).
Despite ’s express invocation of means-end scru- tiny, the Court today claims that the majority in Heller re- jected means-end scrutiny because it rejected my dissent in that case. But that argument misreads both my dissent and the majority opinion. My dissent in Heller proposed directly weighing “the interests protected by the Second Amend- ment on one side and the governmental public-safety con- cerns on the other.” Id., at 689. I would have asked “whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s sal- utary effects upon other important governmental inter- ests.” Id., at 689–690. The majority rejected my dissent, v. , J., dissenting not because I proposed using means-end scrutiny, but be- cause, in its view, I had done the opposite. In its own words, the majority faulted my dissent for proposing “a freestand- ing ‘interest-balancing’ approach” that accorded with “ none of the traditionally expressed levels [of scrutiny] (strict scru- tiny, intermediate scrutiny, rational basis).” Id., at 634 (emphasis added).
The majority further made clear that its rejection of free-
standing interest balancing did
not
extend to traditional
forms of means-end scrutiny. It said: “We know of no other
enumerated constitutional right whose core protection has
been subjected to a freestanding ‘interest-balancing’ ap-
proach.”
Ibid.
To illustrate this point, it cited as an exam-
ple the First Amendment right to free speech.
Id.
, at 635.
Judges, of course, regularly use means-end scrutiny, includ-
ing both strict and intermediate scrutiny, when they inter-
pret or apply the First Amendment. See,
e.g., United States
v.
Playboy Entertainment Group, Inc.
, 529 U. S. 803, 813
(2000) (applying strict scrutiny);
Turner Broadcasting Sys-
tem, Inc. FCC
,
As ’s First Amendment example illustrates, the
Court today is wrong when it says that its rejection of
means-end scrutiny and near-exclusive focus on history “ac-
cords with how we protect other constitutional rights.”
Ante,
at 15. As the Court points out, we do look to history
in the First Amendment context to determine “whether the
expressive conduct falls outside of the category of protected
speech.”
Ibid.
But, if conduct falls within a category of pro-
tected speech, we then use means-end scrutiny to deter-
mine whether a challenged regulation unconstitutionally
burdens that speech. And the degree of scrutiny we apply
, J., dissenting
often depends on the type of speech burdened and the se-
verity of the burden. See,
e.g., Arizona Free Enterprise
Club’s Freedom Club PAC
v.
Bennett
, 564 U. S. 721, 734
(2011) (applying strict scrutiny to laws that burden political
speech);
Ward
v.
Rock Against Racism
,
Additionally, beyond the right to freedom of speech, we
regularly use means-end scrutiny in cases involving other
constitutional provisions. See,
e.g., Church of Lukumi Ba-
balu Aye, Inc.
v.
Hialeah
,
The upshot is that applying means-end scrutiny to laws that regulate the Second Amendment right to bear arms would not create a constitutional anomaly. Rather, it is the Court’s rejection of means-end scrutiny and adoption of a rigid history-only approach that is anomalous.
B
The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives (its , J., dissenting “ends”) against the methods used to achieve those objec- tives (its “means”). Judges are far less accustomed to re- solving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical ques- tions or applying those answers to resolve contemporary problems.
The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Con- sider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive histor- ical analyses in every Second Amendment case? What his- torical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes availa- ble? And, most importantly, will the Court’s approach per- mit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history? See S. Cornell, , New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009) (describing “law office history” as “a results ori- ented methodology in which evidence is selectively gath- ered and interpreted to produce a preordained conclusion”).
Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional ques- tions based solely on history. The majority in Heller under- took 40 pages of textual and historical analysis and con- cluded that the Second Amendment’s protection of the right to “keep and bear Arms” historically encompassed an “indi- vidual right to possess and carry weapons in case of con- frontation”—that is, for self-defense. 554 U. S. , at 592; see also id., at 579–619. Justice Stevens’ dissent conducted an , J., dissenting equally searching textual and historical inquiry and con- cluded, to the contrary, that the term “bear Arms” was an idiom that protected only the right “to use and possess arms in conjunction with service in a well-regulated militia.” Id., at 651. I do not intend to relitigate Heller here . I accept its holding as a matter of stare decisis. I refer to its historical analysis only to show the difficulties inherent in answering historical questions and to suggest that judges do not have the expertise needed to answer those questions accurately.
For example, the
Heller
majority relied heavily on its in-
terpretation of the English Bill of Rights. Citing Black-
stone, the majority claimed that the English Bill of Rights
protected a “ ‘right of having and using arms for self-preser-
vation and defence.’ ”
Id.
, at 594 (quoting 1 Commentaries
on the Laws of England 140 (1765)). The majority inter-
preted that language to mean a private right to bear arms
for self-defense, “having nothing whatever to do with ser-
vice in a militia.”
And that was not the Heller Court’s only questionable judgment. The majority rejected Justice Stevens’ argument that the Second Amendment’s use of the words “bear Arms” drew on an idiomatic meaning that, at the time of the founding, commonly referred to military service. 554 U. S., at 586. Linguistics experts now tell us that the majority was wrong to do so. See, e.g., Brief for Corpus Linguistics Professors and Experts as Amici Curiae (Brief for Linguis- tics Professors); Brief for Neal Goldfarb as Amicus Curiae ; Brief for Americans Against Gun Violence as Amicus Cu- riae 13–15. Since Heller was decided, experts have searched over 120,000 founding-era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1475, for historical uses of the phrase “bear arms,” and they concluded that the phrase was overwhelm- ingly used to refer to “ ‘war, soldiering, or other forms of armed action by a group rather than an individual.’ ” Brief for Linguistics Professors 11, 14; see also D. Baron, Corpus Evidence Illuminates the Meaning of Bear Arms, 46 Has- tings Const. L. Q. 509, 510 (2019) (“Non-military uses of bear arms in reference to hunting or personal self-defense are not just rare, they are almost nonexistent”); id. , at 510– 511 (reporting 900 instances in which “bear arms” was used to refer to military or collective use of firearms and only 7 instances that were either ambiguous or without a military connotation).
These are just two examples. Other scholars have con- tinued to write books and articles arguing that the Court’s decision in misread the text and history of the Second Amendment. See generally, e.g., M. Waldman, The Second Amendment (2014); S. Cornell, The Changing Meaning of , J., dissenting the Right To Keep and Bear Arms: 1688–1788, in Guns in Law 20–27 (A. Sarat, L. Douglas, & M. Umphrey eds. 2019); P. Finkelman, The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court, 37 Cardozo L. Rev. 623 (2015); D. Walker, Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism, 56 Am. J. Legal Hist. 365 (2016); W. Merkel, Heller as Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World as We Know It, 50 Santa Clara L. Rev. 1221 (2010).
I repeat that I do not cite these arguments in order to relitigate . I wish only to illustrate the difficulties that may befall lawyers and judges when they attempt to rely solely on history to interpret the Constitution. In Hel- ler , we attempted to determine the scope of the Second Amendment right to bear arms by conducting a historical analysis, and some of us arrived at very different conclu- sions based on the same historical sources. Many experts now tell us that the Court got it wrong in a number of ways. That is understandable given the difficulty of the inquiry that the Court attempted to undertake. The Court’s past experience with historical analysis should serve as a warn- ing against relying exclusively, or nearly exclusively, on this mode of analysis in the future.
Failing to heed that warning, the Court today does just
that. Its near-exclusive reliance on history will pose a num-
ber of practical problems. First, the difficulties attendant
to extensive historical analysis will be especially acute in
the lower courts. The Court’s historical analysis in this case
is over 30 pages long and reviews numerous original
sources from over 600 years of English and American his-
tory.
Ante,
at 30–62. Lower courts—especially district
courts—typically have fewer research resources, less assis-
tance from
amici
historians, and higher caseloads than we
do. They are therefore ill equipped to conduct the type of
, J., dissenting
searching historical surveys that the Court’s approach re-
quires. Tellingly, even the Courts of Appeals that have ad-
dressed the question presented here (namely, the constitu-
tionality of public carriage restrictions like New York’s)
“have, in large part, avoided extensive historical analysis.”
Young
v.
Hawaii
,
Second, the Court’s opinion today compounds these prob- lems, for it gives the lower courts precious little guidance regarding how to resolve modern constitutional questions based almost solely on history. See, e.g., ante, at 1 (B ARRETT , J., concurring) (“highlight[ing] two methodologi- cal points that the Court does not resolve”). The Court de- clines to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment.” Ante, at 20. Other than noting that its his- tory-only analysis is “neither a . . . straightjacket nor a . . . blank check,” the Court offers little explanation of how stringently its test should be applied. Ante, at 21. Ironi- cally, the only two “relevan[t]” metrics that the Court does identify are “how and why” a gun control regulation “bur- den[s the] right to armed self-defense.” Ante, at 20. In other words, the Court believes that the most relevant met- rics of comparison are a regulation’s means (how) and ends (why)—even as it rejects the utility of means-end scrutiny.
What the Court offers instead is a laundry list of reasons to discount seemingly relevant historical evidence. The Court believes that some historical laws and decisions can- not justify upholding modern regulations because, it says, they were outliers. It explains that just two court decisions or three colonial laws are not enough to satisfy its test. Ante, at 37, 57. But the Court does not say how many cases or laws would suffice “to show a tradition of public-carry , J., dissenting regulation.” Ante, at 37. Other laws are irrelevant, the Court claims, because they are too dissimilar from New York’s concealed-carry licensing regime. See, e.g., ante, at 48–49. But the Court does not say what “representative historical analogue,” short of a “twin” or a “dead ringer,” would suffice. See ante, at 21 (emphasis deleted). Indeed, the Court offers many and varied reasons to reject potential representative analogues, but very few reasons to accept them. At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any “representative historical analogue” and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.
Third, even under ideal conditions, historical evidence will often fail to provide clear answers to difficult questions. As an initial matter, many aspects of the history of firearms and their regulation are ambiguous, contradictory, or dis- puted. Unsurprisingly, the extent to which colonial stat- utes enacted over 200 years ago were actually enforced, the basis for an acquittal in a 17th-century decision, and the interpretation of English laws from the Middle Ages (to name just a few examples) are often less than clear. And even historical experts may reach conflicting conclusions based on the same sources. Compare, e.g., P. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 14 (2012), with J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 104 (1994). As a result, history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).
Fourth, I fear that history will be an especially inade- REYER , J., dissenting quate tool when it comes to modern cases presenting mod- ern problems. Consider the Court’s apparent preference for founding-era regulation. See ante, at 25–28. Our country confronted profoundly different problems during that time period than it does today. Society at the founding was “pre- dominantly rural.” C. McKirdy, Misreading the Past: The Faulty Historical Basis Behind the Supreme Court’s Deci- sion in District of Columbia v. Heller, 45 Capital U. L. Rev. 107, 151 (2017). In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Ibid. Even New York City, the largest Amer- ican city then, as it is now, had a population of just 33,000 people. Ibid. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs. Id., at 152 (“For the most part, a population living on farms and in very small towns did not create conditions in which firearms created a significant danger to the public welfare”); see also supra, at 8–9.
This problem is all the more acute when it comes to “mod-
ern-day circumstances that [the Framers] could not have
anticipated.” ,
The Court’s answer is that judges will simply have to em- ploy “analogical reasoning.” Ante, at 19–20. But, as I ex- plained above, the Court does not provide clear guidance on how to apply such reasoning. Even seemingly straightfor- ward historical restrictions on firearm use may prove sur- prisingly difficult to apply to modern circumstances. The Court affirms ’s recognition that States may forbid public carriage in “sensitive places.” Ante, at 21–22. But what, in 21st-century New York City, may properly be con- sidered a sensitive place? Presumably “legislative assem- blies, polling places, and courthouses,” which the Court tells us were among the “relatively few” places “where weapons were altogether prohibited” in the 18th and 19th centuries. Ante, at 21. On the other hand, the Court also tells us that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not iso- lated from law enforcement defines th[at] category . . . far too broadly.” Ante, at 22. So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums? The Court does not say.
Although I hope—fervently—that future courts will be able to identify historical analogues supporting the validity of regulations that address new technologies, I fear that it will often prove difficult to identify analogous technological and social problems from Medieval England, the founding era, or the time period in which the Fourteenth Amendment was ratified. Laws addressing repeating crossbows, launcegays, dirks, dagges, skeines, stilladers, and other an- cient weapons will be of little help to courts confronting modern problems. And as technological progress pushes , J., dissenting our society ever further beyond the bounds of the Framers’ imaginations, attempts at “analogical reasoning” will be- come increasingly tortured. In short, a standard that relies solely on history is unjustifiable and unworkable.
IV
Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described above. The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particu- lar. The Court spends more than half of its opinion trying to discredit this tradition. But, in my view, the robust evi- dence of such a tradition cannot be so easily explained away. Laws regulating the public carriage of weapons ex- isted in England as early as the 13th century and on this Continent since before the founding. Similar laws re- mained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day. Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s li- censing requirements do today. Thus, even applying the Court’s history-only analysis, New York’s law must be up- held because “historical precedent from before, during, and . . . after the founding evinces a comparable tradition of reg- ulation.” Ante, at 18 (majority opinion) (internal quotation marks omitted).
A. England.
The right codified by the Second Amendment was “ ‘inher-
ited from our English ancestors.’ ” ,
The relevant English history begins in the late-13th and early-14th centuries, when Edward I and Edward II issued a series of orders to local sheriffs that prohibited any person from “going armed.” See 4 Calendar of the Close Rolls, Ed- ward I, 1296–1302, p. 318 (Sept. 15, 1299) (1906); id., at 588 (July 16, 1302); 5 id ., Edward I, 1302–1307, at 210 (June 10, 1304) (1908); id ., Edward II, 1307–1313, at 52 (Feb. 9, 1308) (1892); id., at 257 (Apr. 9, 1310); id., at 553 (Oct. 12, 1312); id ., Edward II, 1323–1327, at 560 (Apr. 28, 1326) (1898); 1 Calendar of Plea and Memoranda Rolls of the City of London, 1323–1364, p. 15 (Nov. 1326) (A. Thomas ed. 1926). Violators were subject to punishment, including “forfeiture of life and limb.” See, e.g., 4 Calendar of the Close Rolls, Edward I, 1296–1302, at 318 (Sept. 15, 1299) (1906). Many of these royal edicts contained exemptions for persons who had obtained “the king’s special licence.” See ibid. ; 5 id ., Edward I, 1302–1307, at 210 (June 10, 1304); id ., Edward II, 1307–1313, at 553 (Oct. 12, 1312); id. , Ed- ward II, 1323–1327, at 560 (Apr. 28, 1326). Like New York’s law, these early edicts prohibited public carriage ab- sent special governmental permission and enforced that prohibition on pain of punishment.
The Court seems to suggest that these early regulations are irrelevant because they were enacted during a time of “turmoil” when “malefactors . . . harried the country, com- mitting assaults and murders.” Ante, at 31 (internal quo- tation marks omitted). But it would seem to me that what the Court characterizes as a “right of armed self-defense” would be more, rather than less, necessary during a time of “turmoil.” Ante, at 20. The Court also suggests that laws that were enacted before firearms arrived in England, like , J., dissenting these early edicts and the subsequent Statute of Northamp- ton, are irrelevant. Ante, at 32. But why should that be? Pregun regulations prohibiting “going armed” in public il- lustrate an entrenched tradition of restricting public car- riage of weapons. That tradition seems as likely to apply to firearms as to any other lethal weapons—particularly if we follow the Court’s instruction to use analogical reasoning. See ante, at 19–20. And indeed, as we shall shortly see, the most significant prefirearm regulation of public carriage— the Statute of Northampton—was in fact applied to guns once they appeared in England. See Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686)
The Statute of Northampton was enacted in 1328. 2 Edw. 3, 258, c. 3. By its terms, the statute made it a criminal offense to carry arms without the King’s authorization. It provided that, without such authorization, “no Man great nor small, of what Condition soever he be,” could “go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.” Ibid. For more than a century following its enactment, Eng- land’s sheriffs were routinely reminded to strictly enforce the Statute of Northampton against those going armed without the King’s permission. See Calendar of the Close Rolls, Edward III, 1330–1333, at 131 (Apr. 3, 1330) (1898); 1 Calendar of the Close Rolls, Richard II, 1377–1381, at 34 (Dec. 1, 1377) (1914); 2 id ., Richard II, 1381–1385, at 3 (Aug. 7, 1381) (1920); 3 id ., Richard II, 1385–1389, at 128 (Feb. 6, 1386) (1921); id., at 399–400 (May 16, 1388); 4 id ., Henry VI, 1441–1447, at 224 (May 12, 1444) (1937); see also 11 Tudor Royal Proclamations, The Later Tudors: 1553– 1587, pp. 442–445 (Proclamation 641, 21 Elizabeth I, July 26, 1579) (P. Hughes & J. Larkin eds. 1969).
The Court thinks that the Statute of Northampton “has little bearing on the Second Amendment,” in part because , J., dissenting it was “enacted . . . more than 450 years before the ratifica- tion of the Constitution.” Ante, at 32. The statute, however, remained in force for hundreds of years, well into the 18th century. See 4 W. Blackstone, Commentaries 148–149 (1769) (“The offence of riding or going armed , with danger- ous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton ” (first emphasis in original, second emphasis added)). It was discussed in the writings of Blackstone, Coke, and others. See ibid. ; W. Hawkins, 1 Pleas of the Crown 135 (1716) (Hawkins); E. Coke, The Third Part of the Institutes of the Laws of Eng- land 160 (1797). And several American Colonies and States enacted restrictions modeled on the statute. See infra, at 40–42. There is thus every reason to believe that the Fram- ers of the Second Amendment would have considered the Statute of Northampton a significant chapter in the Anglo- American tradition of firearms regulation.
The Court also believes that, by the end of the 17th cen- tury, the Statute of Northampton was understood to con- tain an extratextual intent element: the intent to cause ter- ror in others. Ante, at 34–38, 41. The Court relies on two sources that arguably suggest that view: a 1686 decision, Sir John Knight’s Case , and a 1716 treatise written by Ser- jeant William Hawkins. Ante, at 34–37. But other sources suggest that carrying arms in public was prohibited because it naturally tended to terrify the people. See, e.g., M. Dal- ton, The Country Justice 282–283 (1690) (“[T]o wear Armor, or Weapons not usually worn, . . . seems also be a breach, or means of breach of the Peace . . . ; for they strike a fear and terror in the People” (emphasis added)). According to these sources, terror was the natural consequence—not an additional element—of the crime.
I find this view more persuasive in large part because it
is not entirely clear that the two sources the Court relies on
, J., dissenting
actually support the existence of an intent-to-terrify re-
quirement. Start with
Sir John Knight’s Case
, which, ac-
cording to the Court, considered Knight’s arrest for walking
“ ‘about the streets’ ” and into a church “ ‘armed with guns.’ ”
Ante,
at 34 (quoting
Sir John Knight’s Case
, 3 Mod. 117, 87
Eng. Rep., at 76). The Court thinks that Knight’s acquittal
by a jury demonstrates that the Statute of Northampton
only prohibited public carriage of firearms with an intent to
terrify.
Ante,
at 34–35. But by now the legal significance
of Knight’s acquittal is impossible to reconstruct. Brief for
Patrick J. Charles as
Amicus Curiae
23, n. 9. The primary
source describing the case (the English Reports) was noto-
riously incomplete at the time
Sir John Knight’s Case
was
decided.
Id.,
at 24–25. And the facts that historians can
reconstruct do not uniformly support the Court’s interpre-
tation. The King’s Bench required Knight to pay a surety
to guarantee his future good behavior, so it may be more
accurate to think of the case as having ended in “a condi-
tional pardon” than acquittal.
Young
,
Similarly, the passage from the Hawkins treatise on which the Court relies states that the Statute of Northamp- ton’s prohibition on the public carriage of weapons did not apply to the “wearing of Arms . . . unless it be accompanied with such Circumstances as are apt to terrify the People.” Hawkins 136. But Hawkins goes on to enumerate rela- tively narrow circumstances where this exception applied: when “Persons of Quality . . . wea[r] common Weapons, or hav[e] their usual Number of Attendants with them, for their Ornament or Defence, in such Places, and upon such Occasions, in which it is the common Fashion to make use , J., dissenting of them,” or to persons merely wearing “privy Coats of Mail.” Ibid . It would make little sense if a narrow excep- tion for nobility, see Oxford English Dictionary (3d ed., Dec. 2012), https://www.oed.com/view/Entry/155878 (defining “quality,” A.I.5.a), and “privy coats of mail” were allowed to swallow the broad rule that Hawkins (and other commen- tators of his time) described elsewhere. That rule provided that “there may be an Affray where there is no actual Vio- lence; as where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People, which is . . . strictly prohibited by [the Statute of Northampton].” Hawkins 135. And it pro- vided no exception for those who attempted to “excuse the wearing such Armour in Publick, by alleging that . . . he wears it for the Safety of his Person from . . . Assault.” Id., at 136. In my view, that rule announces the better reading of the Statute of Northampton—as a broad prohibition on the public carriage of firearms and other weapons, without an intent-to-terrify requirement or exception for self-de- fense.
Although the Statute of Northampton is particularly sig-
nificant because of its breadth, longevity, and impact on
American law, it was far from the only English restriction
on firearms or their carriage. See,
e.g.,
As I have made clear, I am not a historian. But if the foregoing facts, which historians and other scholars have , J., dissenting presented to us, are even roughly correct, it is difficult to see how the Court can believe that English history fails to support legal restrictions on the public carriage of firearms.
B. The Colonies.
The American Colonies continued the English tradition of regulating public carriage on this side of the Atlantic. In 1686, the colony of East New Jersey passed a law providing that “no person or persons . . . shall presume privately to wear any pocket pistol, skeines, stilladers, daggers or dirks, or other unusual or unlawful weapons within this Prov- ince.” An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881). East New Jersey also specifically prohibited “planter[s]” from “rid[ing] or go[ing] armed with sword, pistol, or dagger.” Ibid . Massa- chusetts Bay and New Hampshire followed suit in 1692 and 1771, respectively, enacting laws that, like the Statute of Northampton, provided that those who went “armed Offen- sively” could be punished. An Act for the Punishing of Criminal Offenders, 1692 Mass. Acts and Laws no. 6, pp. 11–12; An Act for the Punishing of Criminal Offenders, 1771 N. H. Acts and Laws ch. 6, §5, p. 17.
It is true, as the Court points out, that these laws were
only enacted in three colonies.
Ante,
at 37. But that does
not mean that they may be dismissed as outliers. They
were successors to several centuries of comparable laws in
England, see
supra,
at 34–40, and predecessors to numer-
ous similar (in some cases, materially identical) laws en-
acted by the States after the founding, see
infra,
at 41–42.
And while it may be true that these laws applied only to
“dangerous and unusual weapons,” see
ante,
at 38 (majority
opinion), that category almost certainly included guns, see
Charles,
C. The Founding Era.
The tradition of regulations restricting public carriage of firearms, inherited from England and adopted by the Colo- nies, continued into the founding era. Virginia, for exam- ple, enacted a law in 1786 that, like the Statute of North- ampton, prohibited any person from “go[ing] nor rid[ing] armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” 1786 Va. Acts, ch. 21. And, as the Court acknowledges, “public-carry restrictions proliferate[d]” after the Second Amendment’s ratification five years later in 1791. Ante, at 42. Just a year after that, North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (ves- tigial references to the King included). Collection of Stat- utes, pp. 60–61, ch. 3 (F. Martin ed. 1792). Other States passed similar laws in the late-18th and 19th centuries. See, e.g., 1795 Mass. Acts and Laws ch. 2, p. 436; 1801 Tenn. Acts pp. 260–261; 1821 Me. Laws p. 285; see also Charles, 60 Clev. St. L. Rev., at 40, n. 213 (collecting sources).
The Court discounts these laws primarily because they
were modeled on the Statute of Northampton, which it be-
lieves prohibited only public carriage with the intent to ter-
rify.
Ante,
at 41. I have previously explained why I believe
, J., dissenting
that preventing public terror was one
reason
that the Stat-
ute of Northampton prohibited public carriage, but not an
element
of the crime. See
supra,
at 37–39. And, consistent
with that understanding, American regulations modeled on
the Statute of Northampton appear to have been under-
stood to set forth a broad prohibition on public carriage of
firearms without any intent-to-terrify requirement. See
Charles,
The Court cites three cases considering common-law of-
fenses,
ante,
at 42–44, but those cases do not support the
view that only public carriage in a manner likely to terrify
violated American successors to the Statute of Northamp-
ton. If anything, they suggest that public carriage of fire-
arms was not common practice. At least one of the cases
the Court cites,
State
v.
Huntly
, wrote that the Statute of
Northampton codified a pre-existing common-law offense,
which provided that “riding or going armed with dangerous
or unusual weapons, is a crime against the public peace,
by
terrifying the good people of the land.”
D. The 19th Century.
Beginning in the 19th century, States began to innovate on the Statute of Northampton in at least two ways. First, many States and Territories passed bans on concealed car- riage or on any carriage, concealed or otherwise, of certain concealable weapons. For example, Georgia made it unlaw- ful to carry, “unless in an open manner and fully exposed to view, any pistol, (except horseman’s pistols,) dirk, sword in a cane, spear, bowie-knife, or any other kind of knives, man- ufactured and sold for the purpose of offence and defence.” Ga. Code §4413 (1861). Other States and Territories en- acted similar prohibitions. See, e.g., Ala. Code §3274 (1852) (banning, with limited exceptions, concealed carriage of “a pistol, or any other description of fire arms”); see also ante, at 44, n. 16 (majority opinion) (collecting sources). And the Territory of New Mexico appears to have banned all car- riage whatsoever of “any class of pistols whatever,” as well as “bowie kni[ves,] . . . Arkansas toothpick[s], Spanish dag- ger[s], slung-shot[s], or any other deadly weapon.” 1860 Terr. of N. M. Laws §§1–2, p. 94. These 19th-century bans on concealed carriage were stricter than New York’s law, for they prohibited concealed carriage with at most limited exceptions, while New York permits concealed carriage v. , J., dissenting with a lawfully obtained license. See supra, at 12. Moreo- ver, as recognized, and the Court acknowledges, “the majority of the 19th-century courts to consider the question held that [these types of] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U. S., at 626 (emphasis added); see also ante, at 44.
The Court discounts this history because, it says, courts
in four Southern States suggested or held that a ban on con-
cealed carriage was only lawful if open carriage or carriage
of military pistols was allowed.
Ante,
at 44–46. (The Court
also cites
Bliss
v.
Commonwealth
,
The second 19th-century innovation, adopted in a num- ber of States, was surety laws. Massachusetts’ surety law, which served as a model for laws adopted by many other States, provided that any person who went “armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon,” and who lacked “reasonable cause to fear an as- sualt [ sic ],” could be made to pay a surety upon the “com- plaint of any person having reasonable cause to fear an in- jury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836). Other States and Territories enacted identical or substantially similar laws. See, e.g., Me. Rev. Stat., ch. 169, §16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat., ch. 16, §17; W. Va. Code, ch. 153, §8 (1868); 1862 Pa. Laws p. 250, §6. These laws resemble New York’s licensing regime in many, though admittedly not all, relevant respects. Most notably, like New York’s proper cause requirement, the surety laws conditioned public carriage in at least some cir- cumstances on a special showing of need. Compare supra, at 13, with Mass. Rev. Stat., ch. 134, §16.
The Court believes that the absence of recorded cases in- volving surety laws means that they were rarely enforced. Ante, at 49–50. Of course, this may just as well show that these laws were normally followed. In any case, scholars cited by the Court tell us that “traditional case law research is not especially probative of the application of these re- strictions” because “in many cases those records did not sur- vive the passage of time” or “are not well indexed or digi- tally searchable.” E. Ruben & S. Cornell, Firearms , J., dissenting Regionalism and Public Carry: Placing Southern Antebel- lum Case Law in Context, 125 Yale L. J. Forum 121, 130– 131, n. 53 (2015). On the contrary, “the fact that re- strictions on public carry were well accepted in places like Massachusetts and were included in the relevant manuals for justices of the peace” suggests “that violations were en- forced at the justice of peace level, but did not result in ex- pensive appeals that would have produced searchable case law.” Id ., at 131, n. 53 (citation omitted). The surety laws and broader bans on concealed carriage enacted in the 19th century demonstrate that even relatively stringent re- strictions on public carriage have long been understood to be consistent with the Second Amendment and its state equivalents.
E. Postbellum Regulation.
After the Civil War, public carriage of firearms remained subject to extensive regulation. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 908 (1866) (“The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanc- tion the unlawful practice of carrying concealed weapons”). Of course, during this period, Congress provided (and com- mentators recognized) that firearm regulations could not be designed or enforced in a discriminatory manner. See ibid. ; Act of July 16, 1866, §14, 14 Stat. 176–177 (ensuring that all citizens were entitled to the “full and equal benefit of all laws . . . including the constitutional right to keep and bear arms . . . without respect to race or color, or previous condi- tion of slavery”); see also The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. But that by-now uncontroversial proposition says little about the validity of nondiscriminatory re- strictions on public carriage, like New York’s.
What is more relevant for our purposes is the fact that, in the postbellum period, States continued to enact gener- ally applicable restrictions on public carriage, many of , J., dissenting which were even more restrictive than their predecessors. See S. Cornell & J. Florence, The Right to Bear Arms in the Era of the Fourteenth Amendment: Gun Rights or Gun Reg- ulation? 50 Santa Clara L. Rev. 1043, 1066 (2010). Most notably, many States and Western Territories enacted stringent regulations that prohibited any public carriage of firearms, with only limited exceptions. For example, Texas made it a misdemeanor to carry in public “any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purpose of offense or defense” absent “reasonable grounds for fearing an [immediate and pressing] unlawful attack.” 1871 Tex. Gen. Laws ch. 34, §1. Similarly, New Mexico made it “unlawful for any person to carry deadly weapons, either concealed or otherwise, on or about their persons within any of the settlements of this Territory.” 1869 Terr. of N. M. Laws ch. 32, §1. New Mexico’s prohibi- tion contained only narrow exceptions for carriage on a per- son’s own property, for self-defense in the face of immediate danger, or with official authorization. Ibid. Other States and Territories adopted similar laws. See, e.g., 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23; 1881 Kan. Sess. Laws §23, p. 92; 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16.
When they were challenged, these laws were generally upheld. P. Charles, The Faces of the Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64 Clev. St. L. Rev. 373, 414 (2016); see also ante, at 56–57 (majority opinion) (recognizing that postbel- lum Texas law and court decisions support the validity of New York’s licensing regime); Andrews , 50 Tenn., at 182 (recognizing that “a man may well be prohibited from car- rying his arms to church, or other public assemblage,” and that the carriage of arms other than rifles, shot guns, mus- kets, and repeaters “may be prohibited if the Legislature , J., dissenting deems proper, absolutely, at all times, and under all cir- cumstances”).
The Court’s principal answer to these broad prohibitions on public carriage is to discount gun control laws passed in the American West. Ante, at 58–61. It notes that laws en- acted in the Western Territories were “rarely subject to ju- dicial scrutiny.” Ante, at 60. But, of course, that may well mean that “[w]e . . . can assume it settled that these” regu- lations were “consistent with the Second Amendment.” See ante, at 21 (majority opinion). The Court also reasons that laws enacted in the Western Territories applied to a rela- tively small portion of the population and were compara- tively short lived. See ante, 59–61. But even assuming that is true, it does not mean that these laws were historical ab- errations. To the contrary, bans on public carriage in the American West and elsewhere constitute just one chapter of the centuries-old tradition of comparable firearms regu- lations described above.
F. The 20th Century.
The Court disregards “20th-century historical evidence.”
Ante,
at 58, n. 28. But it is worth noting that the law the
Court strikes down today is well over 100 years old, having
been enacted in 1911 and amended to substantially its pre-
sent form in 1913. See
supra,
at 12. That alone gives it a
longer historical pedigree than at least three of the four
types of firearms regulations that
Heller
identified as “pre-
sumptively lawful.”
* * *
The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous Eng- lish laws were enacted beginning in the 13th century, and similar American regulations were passed during the colo- nial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands exami- nation of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require. See ante, at 21 (disclaiming the neces- sity of a “historical twin ”).
In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too re- cent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in histori- cally unique circumstances. And some are not sufficiently , J., dissenting analogous to the licensing regime at issue here. But if the examples discussed above, taken together, do not show a tradition and history of regulation that supports the valid- ity of New York’s law, what could? Sadly, I do not know the answer to that question. What is worse, the Court appears to have no answer either.
V
We are bound by
Heller
insofar as
Heller
interpreted the
Second Amendment to protect an individual right to pos-
sess a firearm for self-defense. But
Heller
recognized that
that right was not without limits and could appropriately
be subject to government regulation
.
It bases its decision to strike down New York’s law almost exclusively on its application of what it calls historical “an- alogical reasoning.” Ante, at 19–20. As I have admitted above, I am not a historian, and neither is the Court. But the history, as it appears to me, seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. To the extent that any uncertainty re- mains between the Court’s view of the history and mine, that uncertainty counsels against relying on history alone. In my view, it is appropriate in such circumstances to look beyond the history and engage in what the Court calls means-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effec- tiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives.
The Second Circuit has previously done just that, and it
held that New York’s law does not violate the Second
Amendment. See
Kachalsky
,
New York’s Legislature considered the empirical evi- dence about gun violence and adopted a reasonable licens- ing law to regulate the concealed carriage of handguns in order to keep the people of New York safe. The Court today strikes down that law based only on the pleadings. It gives the State no opportunity to present evidence justifying its reasons for adopting the law or showing how the law actu- ally operates in practice, and it does not so much as acknowledge these important considerations. Because I cannot agree with the Court’s decision to strike New York’s law down without allowing for discovery or the development of any evidentiary record, without considering the State’s compelling interest in preventing gun violence and protect- ing the safety of its citizens, and without considering the potentially deadly consequences of its decision, I respect- fully dissent.