THOMAS ROGERS, ET AL. v. GURBIR GREWAL, ATTORNEY GENERAL OF NEW JERSEY, ET AL.
No. 18–824
SUPREME COURT OF THE UNITED STATES
Decided June 15, 2020
590 U. S. ____ (2020)
THOMAS, J., dissenting
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins as to all but Part II, dissenting from the denial of certiorari.
The text of the
Petitioner Rogers is a law-abiding citizen who runs a business that requires him to service automated teller machines in high-crime areas. He applied for a permit to carry his handgun for self-defense. But, to obtain a carry permit in New Jersey, an applicant must, among other things, demоnstrate “that he has a justifiable need to carry a handgun.”
I
It has been more than a decade since this Court’s decisions in McDonald v. Chicago, supra, and District of Columbia v. Heller, 554 U. S. 570 (2008). In the years since those decisions, lower courts have struggled to determine the proper approach for analyzing
Although our decision in Heller did not provide a precise standard for evaluating all
Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See, e.g., Mance v. Sessions, 896 F. 3d 390, 394 (CA5 2018) (Elrod, J., joined by Jones, Smith, Willett, Ho, Duncan, and Engelhardt, JJ., dissenting from denial of reh’g en banc); Tyler v. Hillsdale Cty. Sheriff’s Dept., 837 F. 3d 678, 702–703 (CA6 2016) (Batchelder, J., concurring in most of judgment); Gowder v. Chicago, 923 F. Supp. 2d 1110, 1123 (ND Ill. 2012); Heller v. District of Columbia, 670 F. 3d 1244, 1285 (CADC 2011) (Heller II) (Kavanaugh, J., dissenting).
But, as I have noted before, many courts have resisted our decisions in Heller and McDonald. See Silvester v. Becerra, 583 U. S. ___, ___ (2018) (opinion dissenting from denial of certiorari) (slip оp., at 11). Instead of following the guidance provided in Heller, these courts minimized that decision’s framework. See, e.g., Gould v. Morgan, 907 F. 3d 659, 667 (CA1 2018) (concluding that our decisions “did not provide much clarity as to how
This approach raises numerous concerns. For one, the courts of appeals’ test appears to be entirely made up. The
Even accepting this test on its terms, its application has yielded analyses that are entirely inconsistent with Heller. There, we cautioned that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” stating that our constitutional rights must be protected “whether or not future legislatures or (yes) even future judges think that scope too broad.” 554 U. S., at 634–635. On that basis, we explicitly rejected the invitation to evaluate
for us to resolve the issue.
II
This case also presents the Court with an opportunity to clarify that the
A
The text of the
right of the people to keep and bear Arms, shall not be infringed.” As this Court explained in Heller, “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’” 554 U. S., at 584. “When used with ‘arms,’ . . . the term has a meaning that refers to carrying for a particular purpose—confrontation.” Ibid. Thus, the right to “bear arms” refers to the right to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Ibid. (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (GINSBURG, J., dissenting); alterations and some internal quotation marks omitted).
“The most natural reading of this definition encompasses public carry.” Peruta v. California, 582 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 5). Confrontations, of course, often occur outside the home. See, e.g., Moore, supra, at 937 (noting that “most murders occur outside the home” in Chicago). Thus, the right to carry arms for self-defense inherently includes the right to carry in public. This conclusion not only flows from the definition of “bear Arms” but also from the natural use of the language in the text. As I have stated before, it is “extremely improbable that the Framers understood the
The meaning of
B
Cases and treatises from England, the founding era, and the antebellum period confirm that the right to bear arms includes the right to carry in public.
1
“[T]he
In 1328, during a time of political transition, the English Parliament enacted the Statute of Northampton. The Statute provided that no man was permitted to “bring . . . force in affray of the peace, nor tо 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.” Statute of Northampton 1328, 2 Edw. 3, ch. 3. On its face, the statute could be read as a sweeping ban on the carrying of arms. However, both the history and enforcement of the statute reveal that it created a far more limited restriction.
From the beginning, the scope of the Statute of Northampton was unclear. Some officers were ordered to arrest all persons that “go armed,” regardless of whether the bearer was carrying arms peaсefully. See Letter to Mayor and Bailiffs of York (Jan. 30, 1334), in Calendar of the Close Rolls, Edward III, 1333–1337, p. 294 (H. Maxwell-Lyte ed. 1898). Other officers, however, were ordered to arrest only “persons riding or going armed to disturb the peace.” Letter to Keeper and Justices of Northumberland (Oct. 28, 1332), in Calendar of the Close Rolls, Edward III, 1330–1333, p. 610 (H. Maxwell-Lyte ed. 1898) (emphasis added).
Whatever the initial breadth of the statute, it is clear that it was not strictly enforced in the ensuing centuries. To the contrary, “[d]uring most of England’s history, maintenance of an armed citizenry was neither merely permissive nor cosmetic but essential” because “[u]ntil late in the seventeenth century England had no standing army, and until the nineteenth century no regular police force.” Malcom, The Right of the People To Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q. 285, 290 (1983). Citizens were not only expected to possess arms, they were encouraged to maintain skills in the use of those arms, which, of course, required carrying arms in public. See, e.g., id., at 292 (describing King Henry VIII’s order requiring villages to maintain targets at which local men were to practice shooting).
The religious and political turmoil in England during the 17th century thrust the scope of the Statute of Northampton to the forefront. See J. Malcom, To Keep and Bear Arms 104–105 (1994) (hereinafter Malcolm). King James II, a Catholic monarch, sought to revive the Statute of Northampton as a weapon to disarm his Protestant opponents. Id., at 104. To this point, “[a]lthough men were occasionally indicted for carrying arms to terrorize their neighbours, the strict prohibition [of
James II’s attempts to disarm his opponents continued. Only two weeks after Knight’s acquittal, James II ordered general disarmaments of regions inhabited by his Protestant enemies under the auspices of the Game Act of 1671. See Malcom 105–106. As we explained in Heller, “[t]hese experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.” 554 U. S., at 593.
In 1688, James II was deposed in an uprising which came to be known as The Glorious Revolution. Soon thereafter, the English compiled the Declaration of Rights, which contained a list of grievances against James II and sought assurances from William and Mary that Protestants would not be disarmed. See Malcom 115. William and Mary accepted the Declaration of Rights, which was later codified as the English Bill of Rights, agreeing that “the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” 1 Wm. & Mary, ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).
The Statute of Northampton remained in force following the codification of the English Bill of Rights, but the narrow interpretation of the statute adoрted in Sir John Knight’s Case became blackletter law in England. Writing in 1716, Serjeant William Hawkins, author of an influential English treatise, explained that “no wearing of Arms is within the meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify the People; from whence it seems clearly to follow, That Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons.” 1 Pleas of the Crown 136 (1716). Theodore Barlow, another legal
In short, although England may have limited the right to carry in the 14th century, by the time of the founding, the English right was “an individual right protecting against both public and private violence.” Heller, supra, at 594 (emphasis added). And for purposes of discerning the original meaning of the
2
Founding era legal commentators in America also understood the
St. George Tucker, in his 1803 American edition of Blackstone’s Commentaries, explained that the right tо armed self-defense is the “first law of nature.” 1 Blackstone’s Commentaries, App. 300. He described “the right of the people to keep and bear arms” as “the true palladium of liberty.”
Similarly, William Rawle, a member of the Pennsylvania Assembly that ratified the Bill of Rights, acknowledged the right to carry arms in public. A View of the Constitution of thе United States of America 125–126 (1825). Rawle noted that the right should not “be abused to the disturbance of the public peace” and explained that if a man carried arms “attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them,” he may be required “to give surety of the peace.” Id., at 126.4 But his general understanding appeared to mirror Hawkins’ articulation of the English right—public carry was permitted so long as it was not done to terrify.
Other commentators took a similar view. James Wilson, a prominent Framer and one of the six original Justices of thе Supreme Court, understood founding era law to prohibit only the carrying of “dangerous and unusual weapons,
in such a manner, as will naturally diffuse a terrour among the people.” 2 Lectures on Law, in Collected Works of James Wilson 1138 (K. Hall & M. Hall eds. 2007). Charles Humphreys, a law professor, reiterated “that in this country the constitution guarranties to all persons
3
This view persisted in the early years of the Republiс. The majority of the relevant cases during the antebellum period—many of which Heller relied on—support the understanding that the phrase “bear Arms” includes the right to carry in public.
In Bliss v. Commonwealth, 12 Ky. 90 (1822), the Kentucky Court of Appeals held that its state constitutional right to “bear arms” invalidated a concealed carry restriction. Id., at 91–92. The court stated that “whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution.”
Eleven years after Bliss, Tennessee’s highest court interpreted its State
In 1840, the Supreme Court of Alabama concluded that, while the legislature could impose limitations on “the manner in which arms shall be borne,” it could not bar the right to bear arms in public for self-defense. State v. Reid, 1 Ala. 612, 616–619. The court upheld a prohibition on the “practice of carrying weapons secretly.” Id., at 616 (internal quotation marks omitted). In doing so, however, the court recognized that there were limits to the State’s ability to restrict the right to carry in public: “A statute which, under the pretence of regulating, amounts to a destruction of the right [to bear arms], or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.” Id., at 616–617. In the court’s view, “it is only when carried openly, that [arms] can be efficiently used for defence.” Id., at 619. Thus, the court allowed some regulation of the form of carrying arms in public, but it firmly concluded that the right to carry in public for self-defense could not be eliminated altogether.
Other state courts adopted a similar view. In Nunn v. State, 1 Ga. 243 (1846), the Supreme Court of Georgia held that “seek[ing] to suppress the practice of carrying certain weapons secretly . . . is valid”
These cases show that, with few exceptions,5 courts in the antebellum period understood the right to bear arms as including the right to carry in public for self-defense.
C
Finally, in the wake of the Civil War, “there was an outpouring of discussion of the
As I have previously explained, “Southern anxiety about an uprising among the newly freed slaves peaked” after the Civil War. McDonald, 561 U. S., at 846 (opinion concurring in part and concurring in judgment). Acting on this fear, States of the “old Confederacy” engaged in “systematic efforts” to disarm recently freed slaves and many of the 180,000 blacks who served in the Union Army. Id., at 847
(internal quotation marks omitted). “Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freеd slaves.” Id., at 772 (majority opinion). In addition, some States passed laws that explicitly prohibited blacks from carrying arms without a license (a requirement not imposed on white citizens) or barred blacks from possessing arms altogether. See Cottrol & Diamond, The Second Amendment: Toward an Afro–Americanist Reconsideration, 80 Geo. L. J. 309, 344–345 (1991) (compiling laws from Alabama, Louisiana, and Mississippi).
The Federal Government acknowledged that these abuses violated blacks’ fundamental right to carry arms in public. In 1866, a report of the Commissioner of the Freedmen’s Bureau recognized that “[t]he civil law [of Kentucky] prohibits the colored man from bearing arms” and concluded that such a restriction infringed “the right of the people to keep and bear arms as provided in the Constitution.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. Similarly, a circular in a congressional Report acknowledged that “in some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freedmen . . . in plain and direct violation of their personal rights [to keep and bear arms] as guaranteed by the Constitution
The importance of the right to carry arms in public during Reconstruction and thereafter cаnnot be overstated. “The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence.” McDonald, 561 U. S., at 857 (opinion of THOMAS, J.). And, unfortunately, “[w]ithout federal enforcement of the inalienable right to keep and bear arms, . . . militias and mobs were tragically successful in waging a campaign of terror” against Southern blacks. Id., at 856. On this record, it is clear that “the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the
In short, the text of the
III
Recognizing that the Constitution protects the right to carry arms in public does not mean that there is a “right to . . . carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U. S., at 626. “The protections enumerated in the
It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish “good cause” or a “justifiable need” for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a “[b]a[n] on the ability of most citizens to exercise an enumerated right.” Wrenn, 864 F. 3d, at 666. The Courts of Appeals are squarely divided on the constitutionality of these onerous “justifiable need” or “good cause” restrictions. The D. C. Circuit has held that a law limiting public carry to those with a “good reason to fear injury to [their] person or property” violates the
“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in cоnflict.’” Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. ___, ___ (2018) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1) (quoting this Court’s Rule 10(a)). The question whether a State can effectively ban most citizens from exercising their fundamental right to bear arms
surely qualifies as such a matter. We should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.
* * *
This case gives us an opportunity to provide lower courts with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review. Rather than prolonging our decade-long failure to protect the