OPINION
BYBEE, Circuit Judge:
TABLE OF CONTENTS
I. BACKGROUND AND PROCEEDINGS... 773
A. Hawai`i's Licensing Scheme ... 773
B. Facts and Proceedings ... 777
II. THE STANDARDS FOR OUR REVIEW... 778
A. Standards of Review of Law and Fact ... 778
B. Scope of Our Review ... 778
C. Substantive Standards for the Second Amendment ... 781
III. PUBLIC CARRY OF FIREARMS AND THE SCOPE OF THE SECOND AMENDMENT ... 784
A. The English Right to Bear Arms in Public ... 786
B. Colonial Restrictions on the Right to Bear Arms in Public ... 794
C. Post Second Amendment Restrictions on the Right to Bear Arms ... 796
D. The Power to Regulate Arms in the Public Square ... 813
E. Response to the Dissent ... 821
F. Application to HRS § 134-9 ... 826
IV. OTHER CLAIMS ... 826
A. Prior Restraint ... 827
B. Procedural Challenge ... 828
V. CONCLUSION ... 828
The State of Hawai`i requires its residents to obtain a license to carry a firearm in public. To satisfy the statutory requirements for an open-carry license, residents must demonstrate "the urgency or the need" to carry a firearm, must be of good moral character, and must be "engaged in the protection of life and property." Appellant George Young applied for a firearm-carry license twice in 2011, but failed to identify "the urgency or the need" to openly carry a firearm in public. Instead, Young relied upon his general desire to carry a firearm for self-defense. Both of Young's applications were denied. Young brought a facial challenge to Hawai`i's firearm-licensing law under the Second Amendment and the Due Process Clause of the Fourteenth Amendment. The district court upheld Hawai`i's statute.
We have previously held that individuals do not have a Second Amendment right to carry concealed weapons in public. Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). The question presented in this case is whether individuals have a right to carry weapons openly in public. In order to answer that question, and consistent with the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), we ask, first, whether Hawai`i's law affects conduct protected by the Second Amendment. If so, we then determine if the law can survive the appropriate level of scrutiny. After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai`i's restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai`i's firearms-carry scheme is lawful. We affirm the judgment of the district court.
I. BACKGROUND AND PROCEEDINGS
A. Hawai`i's Licensing Scheme
1. History of Firearm Regulation in Hawai`i
Hawai`i law began limiting public carriage of dangerous weapons, including firearms, more than 150 years ago—nearly fifty years before it became a U.S. territory and more than a century before it became a state. Hawai`i enacted its first statutory regulation of public carry in 1852. The aptly named "Act To Prevent the Carrying of Deadly Weapons" recognized that "the habit of carrying deadly weapons is dangerous to life and the public peace."
Hawai`i's regulation of dangerous weapons remained in effect after Hawai`i consented to annexation as a U.S. territory in 1898. Under the Newlands Resolution, "[t]he municipal legislation of the Hawaiian Islands ... not inconsistent with this joint resolution nor contrary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." Resolution of July 7, 1898, 30 Stat. 750. See Territory of Hawai`i v. Mankichi, 190 U.S. 197, 209, 23 S.Ct. 787, 47 L.Ed. 1016 (1903). Hawai`i's territorial legislature renewed its 1852 limitations on the carrying of dangerous weapons in a 1905 Act, as amended in 1913. Haw. Rev. Laws, ch. 209, § 3089 (1905), as amended 1913 Haw. Sess. Laws 25, act 22, § 1. Like its predecessors, the 1913 statute made it unlawful to carry deadly weapons unless "authorized by law." Id. The statute imposed civil and criminal penalties on anyone who carried a "deadly weapon" without prior authorization "unless good cause be shown for having such dangerous weapon." Id.
In 1927, Hawai`i implemented its first restriction on firearms specifically, as opposed to restrictions on the broader class of "deadly weapons." In a section entitled "Carrying or keeping small arms by unlicensed person," the law provided:
Act 206, § 5, 1927 Haw. Sess. Laws 209, 209-211. The 1927 Act, which was modeled in part on the Uniform Firearms Act, required a person to obtain a license to carry a "pistol or revolver concealed upon his person or to carry one elsewhere than in his home or office." Id. § 7. Carry licenses could be issued by the sheriff or a sitting judge after either had determined that applicant was "suitable ... to be so licensed." Id. An applicant was deemed "suitable" to carry a firearm upon meeting a citizenship and age requirement and showing a "good reason to fear an injury to his person or property, or ... other proper reason for carrying a pistol or revolver." Id.
In 1933, the Hawai`i legislature further refined its concealed-carry licensing scheme. Act 26, § 8, 1933-1934 Haw. Sess. Laws Spec. Sess. 35, 39. To carry a concealed weapon, the applicant had to demonstrate an "exceptional case" and a "good reason to fear injury to his person or property." Id.
The "exceptional case" and "good reason to fear injury" requirements included in the 1933 Act became staples of Hawai`i's
2. Hawai`i's Current Scheme
a. The statute. Hawai`i's current scheme allows individuals to possess firearms under a variety of circumstances. First, individuals who are not members of law enforcement, the armed forces, or certain federal agencies and wish to carry firearms in places outside of their homes, places of business or sojourns must obtain a license from the county chief of police. Hawai`i Revised Statutes (HRS) § 134-9(a). Second, individuals may possess firearms in their homes, places of business, and sojourns. Id. § 134-23. Third, persons who are authorized by their public employers, including law enforcement, the armed forces, and certain federal agencies, are exempt from other restrictions and may carry in public. Id. § 134-11(a). Fourth, any person, sixteen years or older "may carry and use any lawfully acquired rifle or shotgun and suitable ammunition while actually engaged in hunting or target shooting." Id. § 134-5(a). Additionally, "[a] person may carry unconcealed and use a lawfully acquired pistol or revolver while actually engaged in hunting game mammals." Id. § 134-5(c).
Hawai`i's public carry licensing scheme is substantially the same today as it was in 1961. Hawai`i continues to distinguish between concealed carry and open carry, although it is not clear that the difference is particularly significant. To obtain a concealed carry license from a county chief of police, a person must first show "an exceptional case" and a "reason to fear injury to [his or her] person or property." HRS § 134-9(a). As to open carry, the statute states in relevant part:
Id. Many of the statute's requirements are objective. For instance, whether the applicant meets the citizenship, age, or legal-ownership requirements may be determined by the reviewing chief of police by a simple review of the application and law enforcement databases. On the other hand, "the urgency or the need" for the license and the applicant's participation in "the protection of life and property" appear to be subjective requirements not discoverable by reference to a law enforcement database.
The county regulation imposed different rules for concealed arms and for unconcealed arms consistent with § 134-9's bifurcation, but a brief review of the regulations reveals several inconsistencies between the state statute and the county's administration. At the outset, it is clear that Hawai`i County's regulations are more demanding than § 134-9. For instance, the regulations seem to consider open-carry permit applications to be available only to "private detectives and security guards." In fact, the first subheading reads "Rules and Regulations Governing the Carrying of Concealed Weapons and the Carrying of Weapons by Private Detectives and Security Guards." The regulation also provides the chief of police a mechanism by which to cancel a previously issued carry permit upon termination of the applicant's employment. Meanwhile, § 134-9 does not impose a professional requirement on the applicant, nor does it distinguish between applications by security guards and applications by other citizens.
The county regulation also applies to a broader class of weapons than does § 134-9. Whereas § 134-9 applies only to the public carry of "a pistol or revolver and ammunition therefor," the county regulation defines "firearm" to include "rifles, shotguns, automatic firearms, noxious gas projectors, mortars, bombs, and cannon[s]." Section 134-9 did not contemplate any of those classes of arms. Similarly, the county regulation also applies to non-firearm "weapons" that could be concealed on the person, including "knives, blackjacks, batons, night sticks, and chemical agents designed to temporarily subdue or incapacitate a person." Again, § 134-9 is silent on such weapons.
c. Hawai`i Attorney General Opinion Letter. After this litigation began, the Hawai`i Attorney General issued a formal opinion interpreting § 134-9's requirements and clarified that § 134-9 does not reserve open-carry permits to security guards. See State of Haw., Dep't of the Att'y Gen., Opinion Letter No. 18-1, Availability of Unconcealed-Carry Licenses (Sept. 11, 2018) (https://ag.hawaii.gov/wp-content/uploads/2018/09/AG-Opinion-No.-18-1.pdf) (Att'y Gen. Letter). The Attorney General unequivocally rejected Hawai`i County's interpretation that an open-carry permit applicant must demonstrate a professional need to carry, such as being a private investigator or security guard. Id. at 3-4. The Attorney General concluded that such a showing would be inconsistent with § 134-9, which "does not limit unconcealed-carry licenses to individuals employed as private security officers." Id. at 6. All that the statute requires is that the applicant (1) meet the objective qualifications; (2) be of good moral character; (3) demonstrate "sufficient need"; and (4) present no other reason to be disqualified. Id. at 6-7.
According to the Attorney General's Opinion Letter, an applicant's need is "sufficient" if it is urgent and is related to "engage[ment] in the protection of life and property." Id. at 7 (citing HRS § 134-9). The urgency requirement "connote[s] an immediate, pressing, and heightened interest
The Attorney General's Opinion Letter did not repeal Hawai`i County's regulations, but its interpretation of state law is considered "highly instructive." See Kepo'o v. Watson, 87 Haw. 91, 952 P.2d 379, 387 n.9 (1998). And even without the Attorney General's clarification, the statute—not the county's regulation—would control. See Ruggles v. Yagong, 135 Haw. 411, 353 P.3d 953, 964 (2015) (citing HRS § 46-1.5(13)) (Hawai`i law "authorizes county ordinances `to protect health, life, and property...' as long as they are `not inconsistent with'" state law.). Further, each of Hawai`i's other counties agree that § 134-9 does not require consideration of an applicant's profession when evaluating a carry-permit application. See Brief of City and County of Honolulu, et. al., as Amici Curiae 4-6 ("The Attorney General's interpretation of section 134-9, HRS, comports with [Honolulu, Kaua`i, and Maui] Counties' past and current practice[s].").
B. Facts and Proceedings
George Young wishes to carry a firearm in public—concealed or unconcealed—but does not fall into one of Hawai`i's categorical exceptions for law enforcement and military personnel. In 2011, Young applied twice for a license in the County of Hawai`i. In both applications, Young cited a general need for "personal security, self-preservation and defense, and protection of personal family members and property." Hawai`i County police chief, Henry Kubojiri, denied both of Young's applications. Chief Kubojiri determined that Young had neither shown an "exceptional case[] or demonstrated urgency."
In 2012 Young filed a pro se complaint under 42 U.S.C. § 1983 against the State of Hawai`i, the governor, the attorney general, the County of Hawai`i, the mayor of the County of Hawai`i, the Hilo County Police Department, the County of Hawai`i chief of police, and unnamed persons and corporations.
The district court dismissed all of Young's claims in a published order. Young v. Hawai`i, 911 F.Supp.2d 972 (D. Haw. 2012). Although the district court dismissed Young's claims on various grounds, the only grounds relevant here relate to his Second Amendment and Due
Alternatively, the district court found that even if Hawai`i's statute implicated conduct protected by the Second Amendment, the statute would survive intermediate constitutional scrutiny. Id. at 991-92. The district court determined that Hawai`i's law "protects an important and substantial interest in safeguarding the public from the inherent dangers of firearms." Id. at 991. And because Hawai`i's law did not burden in-home possession of firearms and was not an outright ban on the firearms, the district court concluded that Hawai`i's restrictions reasonably fit its substantial interest in protecting the public from gun violence. Id. The court rejected Young's related argument that Hawai`i's statute vested in the chief of police unbridled discretion as to whether to grant a carry permit, reasoning that the "prior restraint doctrine is applicable only in the First Amendment context." Id.
The district court also dismissed Young's due process claim on the ground that he had no liberty or property interest in carrying a firearm in public. Id. at 993. The district court dismissed Young's complaint, id. at 995-96, and issued a final judgment.
Young timely appealed, and a divided panel of our court reversed in part and dismissed in part the district court's judgment. Young v. Hawai`i, 896 F.3d 1044 (9th Cir. 2018). We granted rehearing en banc to determine whether Hawai`i's regulation of open carry violates the Second Amendment right to keep and bear arms. Young v. Hawai`i, 915 F.3d 681 (9th Cir. 2019).
II. THE STANDARDS FOR OUR REVIEW
A. Standards of Review of Law and Fact
The district court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal under Rule 12(b)(6). Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). We accept the allegations in Young's complaint as true and construe the pleadings in the light most favorable to him. See Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir. 2009).
B. Scope of Our Review
Having identified the applicable standard of review, we must now consider the scope of our review. During the supplemental briefing that we allowed after granting en banc review, the parties disputed what claims Young actually raised before the district court.
The difference between the two claims is potentially important for Young. It is no secret that a facial challenge to a statute is more difficult to prove than an as-applied challenge. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). A facial challenge is a claim that the legislature has violated the Constitution, while an as-applied challenge is a claim directed at the execution of the law. See Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209, 1235-42 (2010); see also Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 5, 32 n.134 ("[I]f a federal statute is found facially defective it `is void in toto, barring all further actions under it, in this, and every other case,'" but an as-applied challenge is "wholly fact dependent: Do the determinative facts shown by the evidence fall on the protected side of the applicable rule of constitutional privilege?") (footnote and citation omitted). Because a facial challenge is directed to the legislature, the plaintiff must show that "no set of circumstances exists under which the [statute] would be valid," Hotel & Motel Ass'n of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (citing Salerno, 481 U.S. at 745, 107 S.Ct. 2095) (alteration in original), and our review of the Hawai`i statute would be limited to the text of the statute itself. Calvary Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172, 1177 (9th Cir. 2020). On the other hand, if Young raised and preserved an as-applied challenge to the Hawai`i law, our review would include the circumstances surrounding the chief of police's decision to deny Young a license. See id.
We need not determine whether Hawai`i. County properly applied § 134-9, because Young did not bring an as-applied challenge. Our review of the record demonstrates that, although Young peppered his pleadings with the words "application" and "enforcement," he never pleaded facts to support an as-applied challenge. He did not brief such a question to the district court. When the district court dismissed his complaint and treated it as exclusively a facial challenge, Young, 911 F. Supp. 2d at 991, Young did not request reconsideration by the district court to address an as-applied claim.
We will not consider the claim. At best, Young's putative as-applied challenge was buried in his complaint and not well pleaded. At worst, even assuming he pleaded it, Young has long forfeited the challenge.
If, as our dissenting colleagues claim, Young raised an as-applied challenge that the district court mischaracterized or ignored, see O'Scannlain Dissent at 858; R. Nelson Dissent at 861-61, the point appears nowhere in his panel-stage briefing. Young's opening brief mentions the application of HRS § 134-9 twice in passing but presents no further argument to support an as-applied challenge. Instead, Young challenges HRS § 134-9 exclusively on its face, arguing, for example, that HRS § 134-9's "exceptional case" requirement renders the statute unconstitutional, that HRS § 134-9 violates the broad right to carry firearms in public, and that HRS
We think it is more likely that Young brought no as-applied challenge at all, and thus he may pursue whatever remedies remain to him. In either case, we are under no obligation to consider arguments unless they are "specifically and distinctly argued." Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986); Hayes, 849 F.3d at 1213. Young did not meet that standard. Even affording Young's arguments the deference we typically give to pro se pleadings, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), a party's "bare assertion[s]," without more, will not preserve an argument for review, especially where "a host of other issues are presented for review," Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (citation omitted).
We are cognizant of our dissenting colleagues' reservations about our holding that Young did not raise an as-applied challenge and what that might mean for future pro se litigants. R. Nelson Dissent at 862-63; see also O'Scannlain Dissent at 858. Today's opinion, however, does not alter in any way the relaxed pleading standard we regularly afford pro se litigants. We merely hold that in this case, Young has not met that standard.
The scope of our review will be limited to Young's facial challenge to HRS § 134-9. Young brought a Second Amendment claim, which he supported in part with arguments based on the First Amendment's prior restraint doctrine, and a claim under the Due Process Clause of the Fourteenth Amendment. We address his primary Second Amendment claim in Part III and his other claims in Part IV.
C. Substantive Standards for the Second Amendment
The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Our review of Hawai`i's firearm regulation is guided by the Supreme Court's landmark decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 767, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Both parties contend that Heller supports its view of the Second Amendment. According to Young, Heller identified a broad right to possess and carry firearms in public because the Second Amendment protects one's right to self-defense, wherever that need arises. On the State of Hawai`i's reading, Heller said no such thing. According to the State, Heller narrowly defined the right to keep and bear arms to self-defense in the home and, accordingly, prohibitions on firearms that do not interfere with self-defense in the home are valid. We will begin with a discussion of Heller and then review the two-step approach we developed after Heller.
1. Heller
The Court in Heller considered a District of Columbia statute prohibiting the possession of loaded firearms inside the home. The statute required residents to keep their firearms unloaded and secured
Heller's challenge to the D.C. statute presented the Court with its "first in-depth examination of the Second Amendment." Id. at 635, 128 S.Ct. 2783. In an extensive opinion, the Court determined that the right to keep and bear arms is an individual right held by the people, and not limited by the prefatory clause—"a well regulated Militia"—only to "the right to possess and carry a firearm in connection with militia service." Id. at 596, 577, 599, 128 S.Ct. 2783. The Court also concluded that the "right to keep and bear Arms" was not a new right created by the Second Amendment but "codified a right `inherited from our English ancestors.'" Id. at 599, 128 S.Ct. 2783 (quoting Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897)). The right to keep and bear arms was thus recognized, but not granted, in the Constitution, "for it had always existed." Id. at 619, 128 S.Ct. 2783 (citing John Ordronaux, Constitutional Legislation in the United States 241-42 (1891)). Since the right to keep and bear arms is an ancient one, the Court evaluated the history of the Second Amendment starting with English history, and continuing with American legal materials through the ratification of the Fourteenth Amendment. Id. at 581-92, 606-19, 128 S.Ct. 2783.
Although it was clear to the Court that the history of the Second Amendment supported an individual right to bear arms that did not depend on militia service, the Court did not undertake to explain how far the protection to bear arms extended. That is, Heller was not an "exhaustive historical analysis ... of the full scope of the Second Amendment." Id. at 626, 128 S.Ct. 2783. The Court acknowledged that the right to keep and bear arms, "[l]ike most rights, ... [is] not unlimited," and that it is not a right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. Heller recognized that the Second Amendment necessarily accepted certain "longstanding prohibitions" on the possession of firearms; such restrictions are "presumptively lawful." Id. at 626-27, 627, 128 S.Ct. 2783 n.26. Although the Court declined to create an exhaustive list of such longstanding prohibitions, it identified three classes of lawful prohibitions: bans on possession by felons and the mentally ill; bans on possession in sensitive places; and regulations on the commercial sale of firearms. Id. at 626-27, 128 S.Ct. 2783. The Court also determined that the Second Amendment only protected weapons in "common use," id. at 627, 128 S.Ct. 2783, including the handgun, which Heller called the "quintessential self-defense weapon." Id. at 629, 128 S.Ct. 2783.
Heller held that an outright ban of firearms in the home violates the Second Amendment. Id. at 628-29, 128 S.Ct. 2783 ("The handgun ban amounts to a prohibition of an entire class of `arms' that is overwhelmingly chosen by American society for that lawful purpose.... 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
Two years after Heller, the Supreme Court reaffirmed that "[s]elf-defense is a basic right [and] ... `the central component' of the Second Amendment right," whose exercise was "`most acute' in the home." McDonald, 561 U.S. at 767, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 599, 628, 128 S.Ct. 2783). McDonald answered a different question than Heller, namely, whether the Second Amendment applies to the states. The Court held that the Second Amendment was incorporated through the Due Process Clause of the Fourteenth Amendment and, thus, applies to the states. Id. In reaching that conclusion, the Court once again looked to history, but this time to the post-ratification history of the Second Amendment and the place of the Second Amendment in the debates over the Fourteenth Amendment. Id. at 767-80, 130 S.Ct. 3020.
2. Our Post-Heller Framework
Following Heller and McDonald, we have created a two-step framework to review Second Amendment challenges. See Silvester v. Harris, 843 F.3d 816, 820-21 (9th Cir. 2016); Peruta, 824 F.3d at 939; Jackson v. City and County of San Francisco, 746 F.3d 953, 960-61 (9th Cir. 2014); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). Our two-step test is similar to tests adopted by other circuits. Chovan, 735 F.3d at 1134-37; Drake, 724 F.3d at 429; Woollard v. Gallagher, 712 F.3d 865, 874-75 (4th Cir. 2013); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of ATFE (NRA), 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir. 2011); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). First, we ask if the challenged law affects conduct that is protected by the Second Amendment. Silvester, 843 F.3d at 821. We base that determination on the "`historical understanding of the scope of the right.'" Id. (quoting Heller, 554 U.S. at 625, 128 S.Ct. 2783). We are to inquire
Id. (internal citations omitted); see also Jackson, 746 F.3d at 960. Accordingly, a regulation "does not burden conduct protected by the Second Amendment if the record contain[s] evidence that [the subjects of the regulations] have been the subject of longstanding, accepted regulation." Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015). We are looking for "historical prevalence." Id. Similarly, we may uphold a law without further analysis if it falls within the "presumptively lawful regulatory measures" that Heller identified. Silvester, 843 F.3d at 821; see Heller,
If the challenged restriction burdens conduct protected by the Second Amendment—either because "the regulation is neither outside the historical scope of the Second Amendment, nor presumptively lawful"—we move to the second step of the analysis and determine the appropriate level of scrutiny. Silvester, 843 F.3d at 821. We have understood Heller to require one of three levels of scrutiny: If a regulation "amounts to a destruction of the Second Amendment right," it is unconstitutional under any level of scrutiny; a law that "implicates the core of the Second Amendment right and severely burdens that right" receives strict scrutiny; and in other cases in which Second Amendment rights are affected in some lesser way, we apply intermediate scrutiny. Id.
III. PUBLIC CARRY OF FIREARMS AND THE SCOPE OF THE SECOND AMENDMENT
Consistent with this scheme, our first task is to determine whether the right to carry a firearm openly in public is protected by the Second Amendment. We have been down a similar road before. In Peruta, we addressed the question of whether the Second Amendment protected the right of individuals to carry concealed arms. After canvassing the historical record, we concluded that "the Second Amendment does not protect the right of a member of the general public to carry concealed firearms in public." Peruta, 824 F.3d at 939. The question we address here is a variation on that theme: whether the Second Amendment guarantees individuals the right to carry arms openly in public. It is a question we specifically reserved in Peruta. Id. ("There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here."). And it is a question that has divided the circuits. Compare Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) (upholding Massachusetts licensing scheme restricting open carry); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (same; New York licensing scheme); Drake, 724 F.3d 426 (same; New Jersey licensing scheme); Woollard, 712 F.3d 865 (same; Maryland licensing scheme), with Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (holding Illinois licensing scheme for open carry unconstitutional); Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017) (same; District of Columbia licensing scheme).
Our sister circuits have, in large part, avoided extensive historical analysis. The Second Circuit skimmed a handful of American statutes and cases and decided against looking solely "to this highly ambiguous history and tradition." Kachalsky, 701 F.3d at 91. The Third Circuit likewise was "not inclined to ... engag[e] in a round of full-blown historical analysis." Drake, 724 F.3d at 431; see Gould, 907 F.3d at 670 (concluding, without citation to historical sources, that "the national historical inquiry does not dictate an answer"); Woollard, 712 F.3d at 876. Each of these circuits instead assumed that there was some Second Amendment right to carry firearms in public and applied intermediate scrutiny to the regulations at issue. Gould, 907 F.3d at 670-72; Drake, 724 F.3d at 435; Woollard, 712 F.3d at 876; Kachalsky, 701 F.3d at 93. The two circuits that struck down state or D.C. licensing rules also largely avoided the historical record. The D.C. Circuit thought that Heller resolved the question so it could "sidestep the historical debate." Wrenn, 864 F.3d at 660. With little review of historical materials, the Seventh Circuit announced
We do not think we can avoid the historical record. Heller relied heavily on history, and we do not think that it exhausted all subsequent need to confront our history in resolving challenges to other firearm regulations. See Peruta, 824 F.3d at 929-39 (reviewing the historical materials related to concealed-carry restrictions). Indeed, the Court was explicit on this point:
Heller, 554 U.S. at 635, 128 S.Ct. 2783 (internal citation omitted) (emphasis added).
We begin with a review of the historical record, starting with the English tradition, and then review the Colonial era and the post-Second Amendment era. Our focus on the American sources will be on state laws and cases. As the Court explained in Heller, "[f]or most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens." 554 U.S. at 625, 128 S.Ct. 2783, As we review these records, we are well aware that we are jurists and not historians. That creates the risk that we are engaged in Professor Kelly's "law office history."
As we might expect in this area, fraught with strong opinions and emotions, history is complicated, and the record is far from uniform. Nevertheless, we can discern the principal themes of the historical record. Our review of that history demonstrates
A. The English Right to Bear Arms in Public
We start, as did the Court in Heller, with the English concept of the right to bear arms. Our purpose in exploring the English tradition is not to import its law wholesale to our modern jurisprudence. Indeed, the evolution of the right to keep and bear arms is a valuable tool for discerning the Second Amendment's meaning. But as Heller made clear, the Second Amendment did not create a new right; it codified a pre-existing one that we "inherited from our English ancestors." 554 U.S. at 599, 128 S.Ct. 2783 (quoting Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897)).
1. The Royal Decrees
As we recognized in Peruta, English law restricted public firearm possession as early as the thirteenth century. 824 F.3d at 929. King Edward I and his successor, King Edward II, issued a series of orders to local sheriffs that prohibited "going armed" without the king's permission. In 1299, Edward I ordered the sheriffs of Salop and Stafford to prohibit any one "from tourneying, tilting ... or jousting, or making assemblies, or otherwise going armed within the realm without the king's special licen[s]e." 4 Calendar Of The Close Rolls, Edward I, 1296-1302, at 318 (Sept. 15, 1299, Canterbury) (H.C. Maxwell-Lyte ed., 1906) (emphasis added). The punishment for violating the order included "forfeiture of life and limb, lands," and any other holdings in the king's realm. Id. Although the 1299 order was only addressed to the sheriffs of Salop and Stafford, the king intended the order to apply to "to all the sheriffs of England." Id.
Three years later, Edward I similarly instructed the sheriff of York to prohibit "any knight, esquire or any other person from ... going armed without the king's special licen[s]e." Id. at 588 (July 16, 1302, Westminster). Any person "found thus going with arms after the proclamation" should have his "horses and armour" arrested. Id. In 1304, Edward I ordered the sheriffs of Leicester and York to issue a proclamation prohibiting any person from "going armed in any way without the king's licen[s]e." 5 Calendar Of The Close Rolls, Edward I, 1302-1307, at 210 (June 10, 1304, Stirling) (H.C. Maxwell-Lyte ed., 1908).
Edward II issued several similar orders. In the months leading up to Edward II's coronation in 1308, he issued an order prohibiting any "knight, esquire, or other" from going "armed at Croydon or elsewhere before the king's coronation." 1 Calendar Of The Close Rolls, Edward II, 1307-1313, at 52, (Feb. 9, 1308, Dover) (H.C. Maxwell-Lyte ed., 1892). Two years later Edward II issued an order to the sheriff of York, and to all the sheriffs of England, prohibiting any "earl, baron, knight, or other" from "go[ing] armed, under pain of forfeiture." Id. at 257 (Apr. 9, 1310, Windsor). Two years after that, the king ordered the sheriffs in Warwick and Leicester to proclaim that "no one shall, under pain of forfeiture, ... go armed ... without the king's special licen[s]e." Id. at 553 (Oct. 12, 1312, Windsor). He also ordered "[t]he like to all the sheriffs of England." Id.
The frequency and consistency of the royal orders and their subsequent local proclamations demonstrated a regulated approach to going armed in public. There was some ability to do so, but it was subject to first obtaining the "king's special license." 4 Calendar Of The Close Rolls, Edward I, 1296-1302, at 588 (July
In 1326 Edward II again ordered the sheriff of Huntington to arrest anyone going armed without the king's license. The king commanded:
4 Calendar Of The Close Rolls, Edward II, 1323-1327, at 560 (April 28, 1326, Kenilworth) (H.C. Maxwell-Lyte ed., 1898). The 1326 edict reinforced that no person could carry arms publicly unless he fell within a certain group of peace keepers ("sheriffs, and other ministers") or unless he obtained the king's permission. Id.
Other orders from 1326 enforced a ban on publicly carrying arms unless engaged in law enforcement or with permission. In a November 1326 order, Edward II prohibited any person in London from "go[ing] armed by night or day, save officers and other good men of the City assigned by the Mayor and Aldermen in their wards to keep watch and preserve the peace...." 1 Calendar of Plea & Memoranda Rolls of the City of London, 1323-1364, at 15 (November 1326) (A.H. Thomas ed., 1926). The purpose of the restriction on arms was to maintain the king's peace and allow "all manner of men... [to] come and go in safety." Id. Three months later, public arms carrying was more forcefully banned in London. A proclamation from January of 1327 stated that "[t]he bearing of arms is forbidden, except to the officers of the City assigned by the Mayor and Aldermen to keep watch in the Wards, and to the Hainaulters of the Queen, who are accustomed to go armed in the manner of their country." Id. (emphasis added). Although the king regularly granted the sheriffs authority to disarm the people while in public, it is unclear from these royal orders whether that authority was absolute or if it was tied to times of potential upheaval and possible affray. See Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 12 (2012).
2. The Statute of Northampton
a. The statute. Any doubt as to the scope of government's authority to disarm the people in public was dispelled with Parliament's 1328 enactment of the Statute of Northampton, which effectively codified the firearms restrictions that preceded it. The statute provided:
To the majority of fourteenth-century Englishmen, the Statute of Northampton was generally understood to be "a complete prohibition on carrying weapons in public, at least in populated areas." Mark Anthony Frassetto, To the Terror of the People: Public Disorder Crimes and the Original Public Understanding of the Second Amendment, 43 S. Ill. U. L.J. 61, 67 (2018). But its effects were more wide ranging than a mere public-arms prohibition. The Statute of Northampton "was to have long-term importance for the maintenance of law and order" in the realm, by helping keep the king's peace. See Anthony Verduyn, The Politics of Law and Order During the Early Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993).
The Statute of Northampton was amended in 1396. The amended statute retained all the prohibitions on public carriage of arms found in the original version and also expanded the types of armor that could not be carried in public. As amended, the statute provided "[t]hat no Man shall ride armed within the Realm, against the Form of the Statute of Northampton" and that "no Lord, Knight nor other, little nor great, shall go nor ride by Night nor by Day armed, nor bear [Sallet] nor Skull of Iron, nor [of] other Armour, upon the pain aforesaid; save and except the King's Officers and Ministers in doing their Office." 20 Ric. 2, 92-93, ch. 1 (1396) (internal footnotes omitted).
b. Enforcement. We have record of few indictments under the Statute of Northampton, but there is evidence that Edward III and his successors regularly instructed sheriffs to enforce the statute.
The Statute of Northampton's restrictions on carrying also permeated public life. For example, in preparation for the Feast of St. Thomas in 1343, Edward III ordered London hostelries to warn their guests "against going armed in the City." 1 Calendar of Plea & Memoranda Rolls of the City of London, 1323-1364, at 156 (December 19, 1343) (A.H. Thomas ed., 1898).
The Statute of Northampton continued in force after Edward III was succeeded by King Richard II in 1377. Like his predecessor, Richard II issued orders to county sheriffs to enforce the Statute of Northampton and keep the king's peace. Months after Richard II's coronation, he reminded the mayor and bailiffs of Newcastle upon Tyne that the Statute of Northampton provided the vehicle to keep the peace by prohibiting the public carry of arms. The king's order stated that the "statute published at Norhampton [sic] in 2 Edward III ... contained that ... no man of whatsoever estate or condition shall go with armed force, lead any force to the disturbance of the peace, ride or go armed by day or night in fairs, markets or in presence of justices or other the king's ministers" without risking arrest and forfeiture of their arms. 1 Calendar Of The Close Rolls, Richard II, 1377-1381, at 34 (December 1, 1377, Westminster) (H.C. Maxwell-Lyte ed., 1914) (emphasis added).
c. Cases. We have been pointed to two cases that may shed light on the restrictions in the Statute of Northampton. The first is Chune v. Piott (1615), 80 Eng. Rep. 1161 (K.B.), in which the Statute of Northampton is not mentioned. Chune was a false-arrest case that challenged the sheriff's authority to arrest people who had not actually breached the peace. The King's Bench concluded that sheriffs had authority "without all question" to arrest anyone carrying a weapon "in the high-way, in terrorem populi Regis." Id. The phrase in terrorem populi Regis—"to the terror of the king's people"—might suggest one of two things: First, that there must be some proof of the carrier's intent to terrorize the people or, second, that there must be some proof of the effect (whether intended or not) on the people. But the court ultimately concluded that neither was an element of the crime of unlawful carrying. The sheriff could arrest a person carrying arms in public "notwithstanding he doth not break the peace." Id.
The second is Sir John Knight's Case, which is important because it was one of the few prosecutions under the Statute of Northampton for which we have some record, even if there are some disputes about what that record signifies. Sir John Knight was accused of "going armed, to the terror of the public" and charged under the Statute of Northampton and the common law crime of "affray." Sir John Knight's Case (1686), 87 Eng. Rep. 75-76 (K.B.).
Whatever Knight was doing, the sources agree that Knight was acquitted, but they disagree on what grounds. According to one report, the Statute of Northampton was "almost gone in [desuetude]," but Knight could still be punished if he carried arms with mal-intent to terrify the people.
John Carpenter, Liber Albus: The White Book of the City of London 335 (Henry Thomas Riley ed., 1862) (footnote omitted) (emphasis added).
Other English treatises weigh in on whether prosecution under the Statute of Northampton required proof that carrying arms caused terror. William Hawkins, a seventeenth century barrister and jurist, stated that a person may commit an "affray where there is no actual violence; as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people." 1 William Hawkins, A Treatise of the Pleas of the Crown 488 (John Curwood ed., 1824). On the other hand, Hawkins also stated that wearing arms—perhaps those that were not "dangerous and unusual"— alone was not enough to warrant prosecution. "[N]o wearing of arms is within the meaning of this statute [of Northampton], unless it be accompanied with such circumstances as are apt to terrify the people...." Id. at 489. Hawkins continued that "persons of quality" did not risk violating the statute by wearing "common weapons... for their ornament or defence." Id. Some have interpreted Hawkins's reference to "persons of quality" as an indication that certain classes of people could carry arms consistent with their status because that would be neither uncommon nor overtly terrifying to the people. See Frassetto, 43 S. Ill. U. L.J. at 67-69 (describing Hawkins's statement that public carry was not threatening when it was done by the wealthy whose carrying of arms would not be out of the ordinary). Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. "[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault." 1 Hawkins, A Treatise of the Pleas of the Crown at 489.
Joseph Keble, another seventeenth-century English barrister, recognized that public terror resulted from witnessing arms unexpectedly. While examining the crime of affray in a 1683 treatise, Keble noted "if a man shall shew himself furnished with Armour or Weapon which is not usually worn, it will strike a fear upon others that be not armed." Joseph Keble, An Assistance to the Justices of the Peace,
Sir William Blackstone and Lord Edward Coke strongly suggested that carrying arms openly was a status offense and that the law did not require proof of intent or effect. Blackstone clarified the principle, stating that the mere act of going armed in and of itself terrified the people. He stated that "[t]he offence of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land, and is particularly prohibited by the Statute of Northampton." 4 William Blackstone, Commentaries *148-49 (1769). According to Blackstone, going armed with dangerous or unusual weapons was all that was required to terrify the people of the land, and thus the law required neither proof of intent to terrify nor proof that actual terror resulted from the carrying of arms.
3. The English Bill of Rights
Following the Glorious Revolution, the English right to bear arms changed with the enactment of the English Bill of Rights in 1689.
Blackstone characterized the new right as one to bear arms in the interest of self-defense, but he acknowledged that the right was not absolute. The right to carry arms was subject to government regulation, and thus the right of the people to "hav[e] arms for their defense" only extended as far as the right was "allowed by
B. Colonial Restrictions on the Right to Bear Arms in Public
Early American colonists brought to the New World the English sensibilities over the carrying of arms in public. A number of colonies implemented restrictions on the carrying of arms similar to those found in the Statute of Northampton. Indeed, some colonies adopted the Statute of Northampton almost verbatim. The colonists shared the English concern that the mere presence of firearms in the public square presented a danger to the community.
New Jersey acted first. In 1686 (three years prior to the English Bill of Rights), the colony passed "An Act against wearing Swords, &c." in response to the "great complaint by the inhabitants of [the] Province, that several persons [were] wearing swords, daggers, pistols, dirks, stilladoes, skeines, or any other unusual or unlawful weapons." An Act against Swords, &c., 1686 N.J. Laws 289, 289, ch. IX.
Six years after New Jersey enacted its restriction on arms, Massachusetts Bay enacted its own restrictions. The Massachusetts law was patterned after the Statute of Northampton. It outlawed affray, rioting, and disturbing or breaching the peace. An Act for the Punishing of Criminal Offenders, 1692 Mass. Laws No. 6, at 11-12. In addition, the statute authorized justices of the peace to arrest those that "ride or go armed Offensively before any of Their Majesties Justices ... by Night or by Day...." Id. (spelling modernized). The punishment for such action varied, but the offender could be fined, have his or her armor and weapons seized, be imprisoned until paying a surety, or even be bound over to answer the charge before a justice of the peace. Id. at 12.
New Hampshire enacted a similar restriction in 1699, which punished any person who went "armed offensively" or "put
To the examples of prohibitions on public carry, we must add examples of colonial laws that not only permitted public carry, but mandated it. Some colonies required men to carry arms while attending church or other public gatherings. They also protected travelers passing through the several colonies and those assembled as a militia. For example, Virginia required colonists to carry arms to church. In a 1619 statute, it instructed "[a]ll persons whatsoever upon the Sabaoth daye [who] frequente divine service and sermons... [to] beare armes [and] bring their pieces swordes, poulder and shotte." Proceedings of the Virginia Assembly, 1619, in Narratives of Early Virginia, 1606-25, at 273 (Lyon Gardiner Tyler ed., 1907). Any colonist refusing to carry arms to church was subject to a fine of three shillings, paid to the church. Id.
Virginia's mandate was a model for several other colonies. Connecticut, Maryland, South Carolina, and Georgia all required men to carry arms at church. See 1 The Public Records of the Colony of Connecticut 95 (1850) ("[O]ne person in every several house wherein is any soldier or soldiers, shall bring a musket, pistol or some piece, with powder and shot, to each meeting...." (spelling modernized)); Proceedings of the Council of Maryland, 1636-1667, reprinted in 3 Archives of Maryland 103 (1885) ("No man able to bear arms to go to church or Chappell ... without fixed gun and 1 Charge at least of powder and shot." (spelling modernized)); 7 The Statutes at Large of South Carolina 418 (1840) (requiring any person able to do so to bear arms to "places of public worship" to secure against slave insurrections); 19 The Colonial Records of the State of Georgia (pt. 1) 137-38 (1911) (requiring every male, white militiaman to carry firearms "on any Sunday or other times, to any church, or other place of divine worship"). Plymouth Colony, prior to its merger with Massachusetts Bay, had also enacted a church-based firearm requirement in 1636, but its mandate was seasonal. See The Compact with the Charter and Laws of the Colony of New Plymouth 102 (1836) (requiring arms at churches between April and November annually).
At least two colonies required carrying arms to other public gatherings. See 1 Records of the Governor and Company of the Massachusetts Bay in New England 190 (1853) (All eligible persons "shall come to the public assemblies with their muskets, or other pieces fit for service." (spelling modernized)); 1 Records of the Colony of Rhode Island and Providence Plantations in New England 94 (1856) ("It is ordered, that no man ... shall come to any public Meeting without his weapon." (spelling modernized)).
Several colonies also required persons traveling outside of the public square to arm themselves. Virginia, Massachusetts, Rhode Island, and Maryland all enacted some requirements for travelers to carry arms. See 1 The Statutes at Large; Being a Collection of all the Laws of Virginia 127 (1823) ("That no man go or send abroad without sufficient partie will armed."); 1 Records of the Governor and Company of the Massachusetts Bay in New England 85 (1853) ("[I]t is ordered, that no person shall travel single betwixt [Massachusetts] and Plymouth, nor without some arms...." (spelling modernized)); 1 Records of the Colony of Rhode Island and Providence Plantations in New England 94 (1856) ("It is ordered, that no man shall go
The overall effect that these various carry mandates had on the right to bear arms is unclear, and there is some tension between the various ordinances. What is clear is that the colonies assumed that they had the power to regulate—whether through mandates or prohibitions—the public carrying of arms. This history may also evince a general acceptance by local governments of some firearms in the public square. See Brief of Professors of Second Amendment Law et al., as Amici Curiae 17. But the public carrying of arms was always subject to conditions prescribed by the legislature.
The Statute of Northampton continued to influence state law in the interregnum between the Revolutionary War and the adoption of the Constitution. Three years after the Treaty of Paris, Virginia enacted prohibitions on public carriage of firearms that tracked the Statute of Northampton. Virginia's 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." 1786 Va. Laws 33, ch. 21.
Early American history thus strongly suggests that colonists brought with them the English acquiescence to firearm limitations outlined in the Statute of Northampton. The colonies and early American states enacted facsimiles of the Statute of Northampton's broad prohibitions on the public carriage of firearms. And where the colonies did allow public carry—or even mandated it—those laws were tied to the overarching duty to bear arms in defense of the community, and it was the role of local government, not individuals, to decide when that duty justified or mandated public carry. At bottom, restrictions on firearms in public were prevalent in colonial law.
C. Post Second Amendment Restrictions on the Right to Bear Arms
The Constitution was ratified in 1789. Almost immediately, Congress began work on a bill of rights, a promise the Federalists had made as a condition for ratification. As the Court observed in Heller, "[d]uring the 1788 ratification debates, the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric." 554 U.S. at 598, 128 S.Ct. 2783. The amendments that became our Bill of Rights were proposed in 1789 and ratified by 1791.
At the time of its adoption, the Bill of Rights did not apply to the states. Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833); see United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875) ("The
1. Post-Ratification Restrictions
After ratification of the U.S. Constitution, and subject to their own state constitutions, the states continued to adopt laws that restricted the public carrying of arms. See Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 505 (2004) (examining "[a] variety of laws regulating firearms ...
Id. at 60-61.
2. Nineteenth-Century Restrictions
a. The statutes. Early American versions of the Statute of Northampton continued into the nineteenth century. In 1801, Tennessee prohibited any person from "go[ing] armed to the terror of the people, or privately carry[ing] any dirk, large knife, pistol, or any other dangerous weapon, to the fear or terror of any person." 1801 Tenn. Pub. Acts 260, ch. 22 § 6.
The early nineteenth century saw new restrictions on firearms that incorporated broader prohibitions than the one found in the Statute of Northampton. These restrictions more forcefully prohibited the mere act of carrying a firearm instead of coupling going armed with affray, rioting, or disturbing the peace. The major changes began with Tennessee and Massachusetts. Recall that Tennessee had enacted a firearm restriction in 1801 that prohibited going armed "to the terror of the people." 1801 Tenn. Pub. Acts 260, ch. 22, § 6. It revised that restriction in 1821, stating that "every person so degrading himself, by carrying ... belt or pocket pistols, either in public or in private" was subject to a fine for each offense. 1821 Tenn. Pub. Acts 15, ch. 13. There was no question of whether proof of terror or intent was required. The statute simply outlawed such carry. It did exempt the carrying of "a knife of any size in a conspicuous manner on the strop of a shot pouch." Id. at 16.
Massachusetts adopted a more generous change and became a template for other states. As we have observed, in 1795 Massachusetts renewed its colonial firearms restrictions, enacting a firearms regulation that resembled the Statute of Northampton. See 1795 Mass. Acts 436, ch. 2 (allowing every justice of the peace to arrest all that "ride or go armed offensively, to the fear or terror of the good citizens of [the] Commonwealth"). In 1836 Massachusetts broadly revamped its criminal law; in the process it abandoned the Northampton framework in favor of a good-cause restriction. In Chapter 134, entitled "Of Proceedings to Prevent the Commission of Crimes," Massachusetts added eighteen sections dealing with complaints, arrests, trials, appeals, penalties and sureties.
1836 Mass. Acts 750, ch. 134, § 16. The 1836 Massachusetts statute permitted public carry, but limited it to persons who could demonstrate their need to carry for the protection of themselves, their families, or their property. In effect, the Massachusetts law provided that such weapons could not be carried in public unless the person so armed could show "reasonable cause."
A number of states followed Massachusetts and adopted some version of Chapter 134, including Section 16. Many of those states adopted Section 16 verbatim. For example, in 1839 Wisconsin adopted "An Act to prevent the commission of crimes." Section 16 was a word-for-word (with minor changes in punctuation) replication of Section 16 of the 1836 Massachusetts statute. 1838 Wis. Sess. Laws 381, § 16. Other states and territories followed. If they did
Other states followed Massachusetts' formulation but qualified the right in some other way. Pennsylvania, for example, provided an introductory exemption: "If any person, not being an officer on duty in the military or naval service of the state or of the United States, shall go armed with dirk, dagger, sword or pistol...." 1862 Pa. Laws 250, § 6 (emphasis added).
A number of other states regulated the carrying of arms, even though they did not follow the Massachusetts model. Delaware, for example, continued to follow the outline of the Statute of Northampton. 1852 Del. Stat. 333, ch. 97, § 13 (making subject to arrest "all affrayers, rioters, breakers and disturbers of the peace, and all who go armed offensively to the terror of the people"). Kansas and the Territory of Wyoming also prohibited both the concealed and open carrying of weapons, although with more modern language. 1881 Kan. Sess. Laws 80, ch. XXXVII, § 23 ("The [city] council shall prohibit and punish the carrying of firearms, or other dangerous or deadly weapons, concealed or otherwise....");
Most, but not all, of the weapons enumerated in these statutes were capable of being concealed. The statutes we have discussed thus far, however, did not prohibit only the concealed carrying of such weapons. Some states, however, did so limit their laws. Alabama, for example, punished "any one who carrie[d] concealed about his person a pistol, or any other description of fire arms, not being threatened with, or having good reason to apprehend an attack, or travelling...." 1852 Ala. Laws 588, art. VI, § 3274.
On the other hand, two territories had nominal concealed weapons prohibitions that also applied to open carry. New Mexico made it "unlawful for any person to carry concealed weapons on their persons, of any class of pistols whatever, bowie knife ... Arkansas toothpick, Spanish dagger, slung-shot, or any other deadly weapon." 1860 N.M. Laws 94, § 1 (emphasis added). However, in the following section, it prescribed the punishment for any person who "carr[ies] about his person, either concealed or otherwise, any deadly weapon of the class and description mentioned in the preceding section...." Id. § 2 (emphasis added). The Territory of Oklahoma had a complex series of prohibitions in an article entitled "Concealed Weapons," but some of the prohibitions applied to open carry. For instance, one provision made it "unlawful for any person in the Territory of Oklahoma to carry concealed ... any pistol, revolver, bowie knife, dirk, dagger, slung-shot, sword cane, spear, metal knuckles, or any other kind of knife...." 1891 Okla. Sess. Laws 495, art. 47, § 1, But the next section prohibited "any person... to carry upon or about his person any pistol, revolver, bowie knife, dirk knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in this article provided." Id. § 2 (emphasis added). The article then made exceptions for "[P]ublic officers while in the discharge of their duties," id. § 4, and persons carrying "shot-guns or rifles for the purpose of hunting," id. § 5. Additionally, the statute made it "unlawful for any person, except a peace officer, to carry into any church or religious assembly, any school room ... or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering, or to any election, or to any place where intoxicating liquors are sold, or to any political convention, or to any other public assembly, any of the weapons designated in sections one and two of this article." Id. § 7. In the end, section 7 was a broad prohibition on carrying arms into public places.
Before we discuss the state cases, we have several observations on the statutes. First, the states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square. Although the record is not uniform, the vast majority of the states did not distinguish between regulation of concealed carry and regulation of open carry of weapons that were capable of being concealed. None of the statutes we have discussed in this section makes any mention of long-barreled guns, such as muskets, rifles, or shotguns. Second, although many of the
The Territory of Hawai`i's enumerated restrictions on carrying weapons were well within this tradition. Hawai`i's 1852 law punished "[a]ny person not authorized by law, who shall carry, or be found armed with, any bowie-knife, swordcane, pistol, air-gun, slung-shot or other deadly weapon." 1852 Haw. Sess. Laws 19, § 1. Like many states, Hawai`i exempted persons "authorized to bear arms," including persons "holding official, military, or naval rank" so long as the weapon was "worn for legitimate purposes." Id. § 2.
b. The cases. The parties have directed our attention to a number of reported state cases that address the right to keep and bear firearms. They are largely from Southern states; even then, they are far from uniform in their reasoning and conclusions. We will start with the cases in which the state courts adopted the most generous protections for those bearing arms. Our first such case is Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822). Like many statutes we have seen, Kentucky law banned the carrying of concealed weapons, including pocket pistols, dirks, large knives and sword-canes. Id. at 90. Bliss was charged with carrying a sword in a cane and contended that the Kentucky Constitution prohibited such restrictions.
Bliss's expansive view of the right to carry firearms was short lived. Following the Kentucky Court of Appeals' opinion, the legislature amended the constitution to allow the type of restriction the court had struck down. Ky. Const. of 1850, art. XIII, § 25 ("That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned; but the general assembly may pass laws to prevent persons from carrying concealed arms."). See Peruta, 824 F.3d at 935-36 (citing Robert M. Ireland, The Problem of Concealed Weapons in Nineteenth-Century Kentucky, 91 Reg. Ky. Hist. Soc'y 370, 373 (1993) (discussing the aftermath of the decision; noting that the Governor criticized the court for reading the state constitution so literally)). Bliss appears to be an isolated decision. The decision was not followed by any other court, and it was considered and rejected by state courts in Alabama, Arkansas, Georgia, and Tennessee. See Peruta, 824 F.3d at 936; Strickland v. State, 137 Ga. 1, 72 S.E. 260, 261 (Ga. 1911) ("[Bliss] has not been followed, but severely criticised. The decisions are
No other court went as far as the Kentucky court in Bliss; indeed, courts in Georgia, Alabama, and Louisiana deviated from Bliss by holding that restrictions on concealed weapons were permissible. Georgia drew its line between open and concealed carry in reversing a conviction for carrying firearms. In Nunn v. State, 1 Ga. 243 (1846), Nunn was charged with carrying pistols, but the indictment failed to state whether he carried them in secret. Discussing Bliss, the Georgia Supreme Court relied largely on the Second Amendment of the U.S. Constitution, denying that "because the people withheld this arbitrary power of disfranchisement from Congress [in the Second Amendment], they ever intended to confer it on the local legislatures." Id. at 250. The court concluded that
Id. at 251. Because Nunn had not been charged with carrying his pistol in secret, the judgment of conviction was reversed.
The Alabama Supreme Court changed its views over time on the state's power to regulate open carry. Like Georgia, Alabama first upheld the power of the state
An early twentieth-century case from Alabama, although outside our current historical discussion, shows that this limiting principle first articulated in Reid had teeth. In Isaiah v. State, 176 Ala. 27, 58 So. 53 (1911), the Alabama Supreme Court upheld, under the same provision of the Alabama Constitution, a statute prohibiting the carrying of a pistol "about his person on premises not his own or under his control." Id. at 28, 58 So. 53. The court concluded that the statute properly restricted the manner and places in which arms could be carried. Id.; see also id. at 34, 58 So. 53 (McClellan, J., concurring) (stating that the legislature could prohibit a person "to carry a pistol off one's premises"). In his concurrence, and citing Reid, Justice McClellan made clear what is unstated in the majority: that the legislature retained the authority to regulate where and how a person could legally carry a firearm in Alabama. Id. at 37-38, 58 So. 53 (McClellan, J., concurring) ("To deny the validity of [the regulation] would, without doubt, restrict the legislative right to regulate... to the manner only of bearing arms; and this would clothe the constitutional right to bear arms with an effect to deny to legislative function the power to determine ... what are arms proper to be borne ... [or] at what places arms of a defined character should not be borne."). Isaiah tells us that Alabama's right to carry openly, even if constitutionally protected, was nevertheless amenable to even severe restrictions by the state legislature.
The Louisiana Supreme Court also marked the difference between concealed carry and open carry, albeit in dicta. An 1812 statute prohibited concealed carriage of enumerated dangerous weapons. Chandler was charged with murder using a Bowie knife; he claimed it was in self defense. In the course of describing the statute, the Louisiana Supreme Court observed that the prohibition on concealed weapons was "absolutely necessary to counteract a vicious state of society ... and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms ... `in full open view,' which places men upon an equality." State v. Chandler, 5 La. Ann. 489, 489-90 (1850). In State v. Smith, 11 La. Ann. 633 (1856), Smith was charged with carrying a concealed weapon. The statute specified that a weapon was concealed when it did not appear "in full open view." Id. at 634.
In contrast to these states, other states—also from the South—upheld good-cause restrictions on the open carry of certain dangerous firearms. The Texas Supreme Court did so in a pair of cases. In English v. State, 14 Am.Rep. 374, 35 Tex. 473 (1871), English had been charged under the Act of April 12, 1871, which prohibited the carrying of deadly weapons, including "pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives," unless the carrier could show an "exceptional case[]" of self-defense. Id. at 474, 477. At trial, English proved that the pistol was not loaded and was inoperable. Id. at 473. The court took note of various state decisions, including the Alabama and Georgia decisions. It also referred to the Statute of Northampton, Sir John Knight's Case, and Blackstone. Id. at 476. Analyzing the Second Amendment, the court concluded that its intended scope was limited to arms that were "useful and proper to an armed militia." Id. at 474 ("Can it be understood that these [deadly weapons named in the statute] were contemplated by the framers of our bill of rights? Most of them are the wicked devices of modern craft."). The Texas Supreme Court rejected as "simply ridiculous" the idea that the specific weapons banned in the statute were "proper or necessary arms of a `well-regulated militia.'" Id. at 476; see id. ("The word `arms'... refers to the arms of a militiaman or soldier, and the word is used in its military sense."). Turning next to English's challenge under the state constitution, the court determined that the Texas Constitution "confers upon the legislature the power to regulate the privilege [to bear arms]" so long as it does not "tak[e] it away." Id. at 478.
In a later case, the Texas Supreme Court clarified that the use of "arms" in
Other, more extensive firearms regulations were held constitutional, including restrictions on open carry that were tailored to small and concealable weapons. In Andrews v. State, 50 Tenn. 165 (1871), Andrews was charged with carrying a pistol in violation of state law. The Tennessee statute in question made it unlawful "for any person to publicly or privately carry a dirk, swordcane, Spanish stiletto, belt or pocket pistol or revolver." Id. at 171 (quoting Act of June 11, 1870, § 1).
Id. at 189; see also Aymette v. State, 21 Tenn. 154, 160-61 (1840) (suggesting, in dicta, that "swords, muskets, rifles, etc., must necessarily be borne openly ... to bear arms in defence of themselves [and the state]"). For the court in Andrews, the right of individual self-defense did not trump the legislature's ability to regulate—or even "banish"—certain types of firearms from the public square. In a companion case, Page v. State, 50 Tenn. 198 (1871), the court upheld Page's conviction
Like Tennessee, Arkansas upheld a ban on open carry of certain dangerous weapons. In Fife v. State, 31 Ark. 455 (1876), the Arkansas Supreme Court upheld Fife's conviction for carrying a pistol in hand. The court looked at "the prohibited list of weapons," under the relevant state law—including the pistol, dirk, Bowie knife, swordcane and brass knuckles—and found that the state legislature intended to prevent "known public mischief," the pistol being "usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels and brawls." Id. at 461. It upheld the law under Arkansas's Constitution, which guaranteed that "[t]he citizens of this State shall have the right to keep and bear arms for their common defense." Ark. Const. of 1874, art. II, § 5. In a later case, Haile v. State, 38 Ark. 564 (1882), the court confirmed the legislature's power to prescribe the permissible manner of carrying a weapon in public, including weapons used in war. Haile was carrying a pistol at his waist. An Arkansas law, adopted in 1881, prohibited the carrying of "such pistol as is used in the army or navy of the United States, in any manner, except uncovered, and in the hand." Id. at 565. The court rejected the claim that the right to keep and bear arms guaranteed "protection to the citizen, in going, with convenience to himself, and after his own fashion, prepared at all times to inflict death upon his fellow-citizens, upon the occasion of any real or imaginary wrong." Id. at 566. Although the Arkansas Constitution did not expressly reserve to the legislature the right to regulate arms, the court thought it followed "from the undefined police powers, inherent in all governments." Id. at 567.
The cases, much more so than the statutes, are divided. As the Supreme Court of Georgia so eloquently put it "`tot homines, quot sententiae'—so many men, so many opinions!" Nunn, 1 Ga. at 248. Cf. Isaiah, 176 Ala. at 35, 58 So. 53 (McClellan, J., concurring) ("There is wide and fundamental divergence of opinion upon the scope and effect of constitutional provisions [concerning the right to bear arms]."); City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 620 (1905) ("[T]he carrying of deadly weapons has been the subject of much dispute in the courts. The views expressed in the decisions are not uniform, and the reasonings of the different courts vary."). In a trenchant decision summarizing the
Strickland, 72 S.E. at 262. The court noted that some states expressly reserved to the legislature the power to regulate arms, but the court thought that "even where such expressions do not occur," the state retains some general police power "unless the language of the instrument itself should exclude such a construction." Id. Critically, the court observed that "if the right to bear arms includes deadly weapons of every character, ... [then] the citizen [is] guaranteed the right to carry weapons or arms, in the broadest meaning of that term, whenever, wherever, and however he please[s]"—a possibility that the court dismissed by holding that the licensing regulation at issue was "legitimate and reasonably within the police power." Id. at 262-63. The court also rejected the contention that the right to bear arms was uniquely immune from reasonable regulation. See id. at 264 ("Many persons are required to obtain a license before engaging in certain businesses or performing certain acts; where a legitimate exercise of the police power of the state, it has never been thought that this was a violation of any constitutional right as to person or property.").
The cases that we have just discussed largely confirm Strickland's understanding of the historical scope of the right to bear arms openly in public. There are divisions between state courts and even some disagreements within state courts. Moreover, we should repeat here that the cases represent a limited cross-section of the courts of the United States. Here is what we can say. Only one state court (Kentucky, Bliss) has held that there is a constitutional right to carry arms publicly, whether concealed or openly. Outside of that one case, the state courts generally agree that the legislature can prohibit the carrying of concealed weapons.
c. Treatises. Nineteenth-century American legal treatises provide some insight into the scope of the right to carry arms in public. Like the English commentators,
Id. Where St. George Tucker addressed the Second Amendment specifically, and stated that "[t]he right of self defence is the first law of nature," it is clear from context that he is principally concerned with the regulation of military arms, such as muskets, rifles, or shotguns, which were prohibited for a time in England "under the specious pretext of preserving the game." 1 St. George Tucker, Blackstone's Commentaries, at app'x 300. Joseph Story's comments on the Second Amendment bear a similar concern with depriving the people of arms, on the logic that bearing arms acted as "a strong moral check against the usurpation and arbitrary power of rulers." 3 Joseph Story, Commentaries on the Constitution of the United States 746 (1833); see also William Rawle, A View of the Constitution of the United States of America at 125 (1829) ("No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people.").
Most nineteenth-century American authors assumed that the state had the right to regulate arms in the public square. William Rawle, for example, agreed with Blackstone's criticism of governmental attempts to disarm the people in the guise of forest and game regulations. But he then drew a line between the use of firearms for hunting and their possession in other public places:
Id. at 126. Francis Wharton in his criminal law treatise quotes the Statute of Northampton and then comments:
Francis Wharton, A Treatise on the Criminal Law of the United States 932, § 2497 (1857) (citing 1 Hawkins, A Treatise of the Pleas of the Crown at 489). He adds "that the public and open exhibition of dangerous
John Norton Pomeroy, An Introduction to the Constitutional Law of the United States 152-53 (1868). One of the most influential commentators of the nineteenth century, Thomas Cooley opined that "[t]he meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose." Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880). At the same time, Cooley suggested that "[t]he arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited." Id. at 271-72 (footnote omitted). And one of the principal reporters of New York's penal code and a prolific author, Benjamin Vaughan Abbott, offered this practical guide to the Second Amendment:
Benjamin Vaughan Abbott, Judge and Jury 333 (1880). Abbott concludes: "Carrying [pistols] for defence, in the more settled parts of the land, savors of cowardice rather than of prudence; a well-behaved man has less to fear from violence than from the blunders of himself and friends in managing the pistol he might carry as a protection." Id. at 333-34.
One commentator distinguished between what the Second Amendment prohibits Congress from doing and more general constitutional principles applicable to the states, and in the course of his discussion offered perhaps the strongest endorsement for the right to carry firearms openly in public. Distilling principles from some of the early Southern cases that distinguished between concealed carry and open carry, Professor Ordronaux wrote:
John Ordronaux, Constitutional Legislation in the United States 242-43 (1891) (footnotes omitted). Ordronaux did not explain his reasoning, other than to drop a footnote with citations to five cases we have discussed: a Georgia case, Nunn; three Louisiana cases, Chandler, Smith, and Jumel; and a Tennessee case, Andrews. At least Andrews is contrary to Ordronaux's statement, because the Tennessee Supreme Court upheld Andrew's conviction for openly carrying. See Andrews, 50 Tenn. at 171, 186-87.
None of these commentaries, with the possible exception of Ordronaux, seriously questions the power of the government to regulate the open carrying of arms in public. And several of them reinforce the Court's holding in Heller, that there is a general right of self-defense in the home. No one suggested that those two conclusions are inconsistent with each other.
3. Twentieth-Century Restrictions
We are not inclined to review twentieth-century developments in detail, in part because they may be less reliable as evidence of the original meaning of the American right to keep and bear arms. We will review some early developments to place Hawai`i's statutes in context.
The first part of the twentieth century saw a change in approach in some states, as they adopted more detailed regulations, including licensing requirements. In 1906 Massachusetts adopted "An Act to Regulate by License the Carrying of Concealed Weapons." Although the title referred to "concealed weapons," the legislation in fact prohibited carrying "a loaded pistol or revolver, without authority or permission,... or ... any stiletto, dagger, dirk-knife, slung-shot or metallic knuckles." 1906 Mass. Acts 150, ch. 172, § 2. A license "to carry a loaded pistol or revolver" could be issued to an applicant who had "good reason to fear an injury to his person or property" and was otherwise "suitable." Id. at 150, § 1. Alabama prohibited persons from carrying a "pistol concealed," but it also made it "unlawful for any person to carry a pistol about his person on premises not his own or under his control." 1909 Ala. Laws 258 No. 215, §§ 1-2. Hawai`i adopted a similar provision: the territory's 1913 Act prohibited any person "not authorized by law" to "carry, or be found armed with any bowie-knife, sword-cane, pistol, air-gun, slung-shot, or other deadly weapon." 1913 Haw. Laws 25, § 3089.
Most of the laws we have examined lumped firearms into the same category as knives, brass knuckles and similar weapons that could be concealed. In the early to mid-twentieth century, however, a number of states began to distinguish between firearms and other dangerous weapons that could be concealed. In 1911, New York adopted the Sullivan Law, which made it unlawful to possess without a license any pistol, revolver, or other firearm capable of being concealed. See Kachalsky, 701 F.3d at 84-85 (providing background). In 1913, New York amended the Sullivan Law "in relation to the carrying, use and sale of dangerous weapons." 1913 N.Y. Laws 1627-30, vol. III, ch. 608, § 1. The legislature made it a felony to carry or possess "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal
A number of other states followed New York's model. In 1923 California adopted "An act to control and regulate the possession, sale and use of pistols, revolvers and other firearms capable of being concealed upon the person...." 1923 Cal. Stat. 695, ch. 339. Like New York, and states before it, California banned possession of dangerous weapons, including "the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles" and concealed dirks and daggers. Id. at 696, § 1. Separately, it banned felons and aliens from possessing "any pistol, revolver or other firearm capable of being concealed upon the person." Id. at 696, § 2. Other persons were prohibited from "carry[ing] concealed upon his person or within any vehicle ... any pistol, revolver or other firearm capable of being concealed" without a license. Id. at 697, § 5. The licensing requirement, however, did not apply to persons "owning, possessing or keeping within his place of residence or place of business any pistol, revolver or other firearm capable of being concealed upon the person." Id. The act did not apply to law enforcement officials, members of the military, persons at target ranges, and licensed hunters.
Other states followed New York and California, although a number of them banned only concealed firearms. A standard provision would prohibit any person from carrying "a pistol or revolver concealed in any vehicle or upon his person, except in his dwelling house or place of business, without a permit." 1925 Ind. Acts 496, ch. 207, § 5. See 1923 N.D. Laws 380 ch. 266, § 6. In 1926 the National Conference of Commissioners on Uniform State Laws issued the Uniform Firearms Act, and a number of states adopted the UFA. See Note, The Uniform Firearms Act, 18 Va. L. Rev. 887, 904 (1932). The UFA proposed licensing concealed firearms. See, e.g., 1931 Pa. Laws 498, No. 158, § 5; 1935 S.D. Sess. Laws 355, ch. 208, § 5; 1935 Wash. Sess. Laws 599-60, ch. 172, § 5. The note in the Virginia Law Review praised the UFA, while noting that "[t]he provisions of the Act contain little that is startling in the way of new legislation.... [The Act] jealously guards the right of the honest citizen to bear arms." 18 Va. L. Rev. at 906.
Hawai`i's 1927 revisions tracked the UFA and became the basis for its current licensing scheme. In the 1927 Act, Hawai`i provided that
Act 206, 1927 Haw. Sess. Laws 209-10, § 5. A license "to carry a pistol or revolver concealed upon his person or to carry one elsewhere than in his home or office" could be issued if "the applicant has good reason to fear an injury to his person or property... and ... is a suitable person to be so licensed." Id. at 210, § 7.
D. The Power to Regulate Arms in the Public Square
1. The Basic Rule
Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states' constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self-defense. See Kachalsky, 701 F.3d at 96 ("[O]ur tradition ... clearly indicates a substantial role for state regulation of the carrying of firearms in public."). To be sure, any one-sentence declaration that we might make will be subject to qualifications and exceptions (which we will address in the next section), but in the main, we have long distinguished between an individual's right of defense of his household and his business and his right to carry a weapon in public for his own defense, absent exceptional circumstances. "Like ... the right secured by the Second Amendment," the government's right to regulate the carriage of weapons in public places "is not unlimited." Heller, 554 U.S. at 626, 128 S.Ct. 2783. But we are persuaded that government regulations on open carry are "[l]aws restricting conduct that can be traced back to the founding era and are historically understood to fall outside of the Second Amendment's scope," and thus "may be upheld without further analysis." Silvester, 843 F.3d at 821.
The contours of the government's power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly. We need go no further than this, because the Hawai`i firearms licensing scheme Young challenges only applies to "a pistol or revolver and ammunition therefor." HRS § 134-9(a). This power to regulate is fully consonant with the Second Amendment right recognized in Heller. Heller found that the pre-existing right to keep and bear arms is not a right to "carry any weapon whatsoever in any manner whatsoever and for whatever purpose." 554 U.S. at 626, 128 S.Ct. 2783. "`[T]he central component' of the Second Amendment" is the "basic right" of self-defense, whose exercise is "`most acute' in the home." McDonald, 561 U.S. at 767, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 599, 628, 128 S.Ct. 2783). The heart of the Second Amendment is "defense of hearth and home." Heller, 554 U.S. at 635, 128 S.Ct. 2783.
See Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (quoting William Pitt) (citation omitted). The principle was further reinforced in the Bill of Rights, particularly by the Third and Fourth Amendments. See U.S. Const. amends. III ("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner...."), IV ("The right of the people to be secure in their... houses.... against unreasonable searches and seizures, shall not be violated...."); United States v. Craighead, 539 F.3d 1073, 1077 (9th Cir. 2008) ("The home occupies a special place in the pantheon of constitutional rights." (citing the First, Second, Third, and Fourth Amendments.)).
Defense of the public square stands on entirely different footing. "One of the first duties of government is to afford [] protection." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). Indeed, among the fundamental privileges of citizenship in the United States is "[p]rotection by the government." Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3230). Protection is the quid pro quo for our allegiance to the government. As Blackstone explained, "the community should guard the rights of each individual member, and ... (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any." 1 William Blackstone, Commentaries at *47-48; see also Calvin's Case (1609), 77 Eng. Rep. 377, 382 (K.B.) (Coke, J.) (stating that "the Sovereign is to govern and protect his subjects" and "the subject oweth to the King his true and faithful ligeance"); English, 35 Tex. at 477 ("It is useless to talk about personal liberty being infringed by laws such as that under consideration. The world has seen too much licentiousness cloaked under the name of natural or personal liberty; natural and personal liberty are exchanged, under the... social compact of states, for civil liberty."). The king who cannot guarantee the security of his subjects—from threats internal or external—will not likely remain sovereign for long.
The distinction between hearth and home and the public square is reinforced in the U.S. Constitution in another way: it is peculiarly the duty of the states to defend the public square. We should observe at this juncture that the American legal experience differed from the English tradition in two very important respects—written constitutions and federalism. Americans departed from their English forebears by creating written constitutions. "English colonists in America became used to writing their own documents to flesh out the particulars of their governments." Donald S. Lutz, Colonial Origins of the American Constitution xx, xxi (1998). As a consequence, "[l]ocal government
That brings us to the other American innovation: American federalism contemplated distinct roles for the federal government and the states, and it was the states that had responsibility for maintaining the public peace. The U.S. Constitution declared at the outset that the federal government would bear responsibility to "provide for the common defence." U.S. Const. pmbl. (emphasis added). To effect that, the Constitution conferred on the United States the power to raise and support armies and navies and imposed a duty to "protect [the states] against Invasion." Id. art. I, § 8, cls. 12-13; art. IV, § 4. Correspondingly, the states were forbidden to "keep Troops, or Ships of War," or to "engage in War unless actually invaded, or in such imminent Danger as will not admit of delay." Id. art. I, § 10, cl. 3. On the other hand, the United States shared responsibility with the states for "promott[ing] the general Welfare," and thus was granted the power to "lay and collect Taxes ... to provide ... for the general Welfare of the United States." Id. pmbl.; art. I, § 8, cl. 1. By contrast, the United States was not enjoined to secure or provide "domestic Tranquility," but only to "insure" it. Id. pmbl. Accordingly, the United States was made the "guarant[or]... against domestic Violence," but only "on Application of the Legislature, or of the Executive (when the Legislature cannot be convened)." Id. art. IV, § 4. That meant that the states had the primary responsibility for securing what was formerly known as "the king's peace." See 1 St. George Tucker, Blackstone's Commentaries, at app'x 367 ("[E]very pretext for intermeddling with the domestic concerns of any state, under colour of protecting it against domestic violence is taken away, by that part of the provision which renders an application from the legislative, or executive authority of the state endangered, necessary to be made to the federal government, before it[]s interference can be at all proper.").
The states, in place of the king, assumed primary responsibility for maintaining the "king's peace,"
Even as the colonists broadly adopted the Statute of Northampton, they also adapted it, by enumerating the kinds of weapons that were banned. The lists vary from jurisdiction to jurisdiction, but what commonly appears on the lists are small, hand-held weapons, capable of being concealed, including pistols, revolvers, dirks, daggers, brass knuckles, and slung shots—which were, at the time of the colonies and early statehood, considered deadly and dangerous weapons. Throughout the nineteenth century, American courts continued to question the usefulness of such weapons, see Andrews, 50 Tenn. at 178; Page, 50 Tenn. at 201; Hill, 53 Ga. at 474-75; English, 35 Tex. at 476-77; Duke, 42 Tex. at 458-59; Haile, 38 Ark. at 565-66, characterizing them as given to "known public mischief," Fife, 31 Ark. at 461. Although some states only prohibited concealed carry, many more states banned the carrying of concealable weapons whether actually concealed or not.
The states broadly adopted restrictions on possessing arms in the public square, and they did so even in the face of the states' own constitutional provisions protecting the right to keep and bear arms. Four states had constitutional protections for arms-bearing that pre-date the U.S. Constitution. N.C. Decl. of Rights of 1776, § 17; Pa. Decl. of Rights of 1776, cl. XIII; Vt. Const. of 1777, ch. I, art. 15; Mass. Const. of 1780, part. 1, art. 17. North Carolina, Pennsylvania and Vermont characterized it as the "right to bear arms" to defend themselves and the state. Massachusetts called it the "right to keep and to bear arms for the common defence." Following independence and continuing to today, forty-four of the fifty states have some kind of Second Amendment analogue. Most of those provisions have some kind of clause referring to the militia or the need to keep the militia under civilian control. Most of the provisions refer to the right to defend self and state. A number of
Although "the [Second] Amendment did not originally apply to the States,... that does not make state practice irrelevant in unearthing the Amendment's original
It would be anomalous in the extreme if, having gone to the trouble of spelling out the respective responsibilities of the new federal government and the states in 1789, the framers of the Bill of Rights undid that relationship with the Second Amendment (adopted in 1791) by overruling existing state constitutions and statutes. And the Court has assured us that the Second Amendment did no such thing, but merely codified a pre-existing right to keep and bear arms. Heller, 554 U.S. at 599, 128 S.Ct. 2783. For us, this powerfully suggests that the Second Amendment should be read in light of state constitutions and laws roughly contemporaneous with the adoption of the Constitution; it should be seen as consistent with pre-existing laws regarding the king's peace, and not as a novel federal check on those laws. Cf. Atwater, 532 U.S. at 336-37, 121 S.Ct. 1536 (finding that the petitioner "has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers' warrantless misdemeanor arrest authority" and citing "[t]he evidence of actual practice.... [d]uring the period leading up to and surrounding the framing of the Bill of Rights [by] colonial and state legislatures").
2. The Exceptions
The American record is clear enough, but as we have said, it is not uniform. States adapted the Statute of Northampton to fit their own needs. Although they did not agree on all the particulars, they did agree that the state legislatures had power to regulate the carrying of arms in public. In this section, we consider some of the general exceptions the states made to the no public carry rule to understand how it might affect any right to bear arms in the public square.
a. Classes of persons. The statutes exempted certain classes of persons from the restrictions. For example, the statutes are nearly unanimous in stating, so that there would be no misunderstanding, that the restrictions on public carry did not apply to law enforcement officials. As a nod to our federalism, the states generously made clear that their statutes also did not regulate federal law enforcement officials from carrying. And the statutes exempt military personnel when on duty and required by the military to be armed. Many of the statutes also took into account people who were travelling through the locale and, of necessity, were carrying their belongings, including firearms. More recent statutes make clear that hunters and target shooters may carry their weapons to and from
b. Places. The statutes generally regulate carrying arms in public places such as fairs, markets, churches, and in places where the king's ministers or agents might be found, which we accept as a primitive reference to government buildings. We do have a couple of colonial examples where, by statute, persons were required to carry their weapons to such public places, most notably churches. We have explained that these early statutes were for the perceived need for protection from outside groups, such as slaves and Native Americans. Although it might be argued that this demonstrates that early Americans had a right to carry their firearms, the statutes impose a duty to carry, which is quite different. When the government imposes such a duty it assumes that it has the power to regulate the public carrying of weapons; whether it forbids them or commands them, the government is regulating the practice of public carrying.
So far as we can tell from the historical record, none of the early statutes forbade the possession of such weapons in the home. And more modern statutes sometimes allow individuals to keep weapons in a place of business as well.
c. Licensing and good-cause requirements. Some of the first English provisions forbade the carrying of arms unless licensed by the king. We do not have much information on what criteria were used or how frequently such licenses were issued. By the nineteenth century, some states authorized a form of licensure as an alternative to a ban on public carriage, although it was not a formal process such as we think of today. The 1836 Massachusetts statute, which served as a model for many states, provided that any person who went "armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property," was subject to surety (which we discuss below). 1836 Mass. Acts 750, ch. 134, § 16 (emphasis added). One way of reading this statute is that it gave permission to people to carry concealable arms if they had "reasonable cause," which the statute defined as fear of assault, injury, or violence to themselves, their families, or their property. Unlike the modern practice, no advance permission needed to be obtained.
The modern practice of formal licensing of firearms appears to be a twentieth-century innovation. A number of the twentieth-century statutes granted a license to carry in public if the applicant had good cause, such as fear of injury to himself or his property. Some states generally authorized the carrying of firearms in the home or at a place of employment but forbade persons to carry elsewhere unless they could demonstrate good cause. The influential 1913 New York law allowed persons to carry a pistol, revolver, or other firearm to protect their home or business, but it required advance application to a magistrate. 1913 N.Y. Laws 1629, vol. III, ch. 608, § 1.
d. Surety. Both English and American law allowed the practice of surety as an alternative to a broad ban on open carry. Massachusetts provides a typical example. The surety was a form of "security to keep the peace, or ... good behavior, or both." 1836 Mass. Acts 750, ch. 134, § 1. It was a form of prior restraint where "there [was] just cause to fear that any such offence may be committed." Id. § 3. If a person was found with one of the enumerated weapons, or any other "offensive and dangerous weapon," then "any person having reasonable cause to fear an injury, or breach of the peace" could file a complaint. Id. § 16. Upon complaint, a magistrate
The surety provision allowed people against whom a complaint had been made to carry in public, but only if they could demonstrate good cause. The penalties for failing to show good cause were severe—including fines and imprisonment. Moreover, the law allowed "any person" who feared "injury, or breach of the peace" to file a complaint. Id. § 16 (emphasis added). Filing a complaint did not require proof that the person carrying was a threat to the complainant; it was sufficient for the complainant to show that there was a threat to the peace—a standard that harkened to the Statute of Northampton. The possibility of having to respond to such a complaint, much less having to post surety, appears to have been a severe constraint on anyone thinking of carrying a weapon in public.
We thus vigorously disagree with the D.C. Circuit's conclusion that "[u]nder surety laws, put simply, everyone started out with robust carrying rights." Wrenn, 864 F.3d at 661. This conclusion simply ignores the plainest of readings of English and American laws. The English practice of surety of the peace, which carried over to the states, was a substantive restraint on anyone who was the subject of a complaint for openly carrying arms or other dangerous weapons. The surety laws permitted courts to impose a bond requirement on people who had not actually violated any laws, but might do so in the future. Surety was a means of keeping the peace in areas lacking a centralized police force. See supra note 12. No one would describe such regulations as "`akin to modern penalties for minor public-safety infractions like speeding or jaywalking,' which makes them ... poor evidence of limits on the [Second] Amendment's scope." Id. (quoting Heller, 554 U.S. at 633, 128 S.Ct. 2783).
* * *
None of the longstanding exceptions for certain types of public carry diminishes in any significant way the government's power to regulate the carrying of arms in public places. The fact that we have recognized the need for law enforcement officials and military personnel to carry weapons; that we have understood the right of
We recognize that, although there have been few technological advances in the last centuries in dirks, daggers, slung shots, and brass knuckles, there clearly have been advances in the manufacture of pistols and revolvers. Heller observed that today the handgun is "an entire class of `arms' that is overwhelmingly chosen by American society for ... [a] lawful purpose." Heller, 554 U.S. at 628, 128 S.Ct. 2783. Notwithstanding the advances in handgun technology, and their increasing popularity, pistols and revolvers remain among the class of deadly weapons that are easily transported and concealed. That they may be used for defense does not change their threat to the "king's peace." It remains as true today as it was centuries ago, that the mere presence of such weapons presents a terror to the public and that widespread carrying of handguns would strongly suggest that state and local governments have lost control of our public areas. Technology has not altered those very human understandings.
We may, of course, change our conception of what we need to do to protect ourselves. The Constitution does not impose the Statute of Northampton on the states. But the Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces. The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing "domestic Tranquility" and forestalling "domestic Violence." U.S. Const. pmbl.; U.S. Const. art. IV, § 4. Any change we wish to make in our allocation of responsibility between ourselves and our governments may be had through ordinary legislation, amendment to state constitutions, or amendment to the U.S. Constitution.
E. Response to the Dissent
Before we apply our conclusion to the Hawai`i statute, we have several general observations to make on the views of our dissenting colleagues. We have tried to address all relevant materials—statutes, cases, and treatises—and we have labored to make sense of the whole record. We have recognized that the materials do not always agree in all the particulars, but we have worked to distill the central meaning from the record. The dissent, however, reviews a much more limited historical record. Where we referred to state constitutions as evidence of the meaning of the
The dissent's conclusion is, with respect, a modest thesis. And, more importantly, it is not history. We acknowledged from the very beginning that the historical record was mixed and that we were going to have
We are thus content, in the main, to rest on our review of the historical record. There are a couple of points we should address. We will start with the relevance of legislation as evidence of the scope of a constitutional right. The dissent simply elides the substantial history of colonial, state, and territorial restrictions on the possession of firearms in the public square, most of it derived from the Statute of Northampton and related English practices. For the dissent, "the existence of historical regulations" is of little value, for two reasons: (1) "the majority offers no enforcement history" and (2) those regulations "largely evaded constitutional scrutiny." Id. at 844; see also id. at 847 ("[O]ne can learn little about the general understanding of the Second Amendment from such isolated statutes, which were enacted so distant from the Founding and for which we have no record of enforcement."). The question of whether these statutes were actually enforced is a fair one. There are many statutes on the books of American jurisdictions that have never been enforced or, having once been enforced, have fallen into desuetude. There are several things in the record that make us think that these statutes were not merely symbolic. The statutes adopted by the states owed much to their English antecedents. Whatever deference the colonists thought they owed to England was severed in the Revolution. Yet, shortly after the adoption of the Second Amendment, the states adopted statutes similar to the Statute of Northampton. And the states, acting independently, copied statutes from each other. And such statutes were updated and altered as necessary. That strongly suggests that the states felt the need for such legislation. How tightly each state or jurisdiction within a state decided to enforce the statute is beyond the materials that we have seen. But even if a statute was not enforced, or was loosely enforced, the fact of the statute alone is some evidence that the state legislature believed that it was within its power to adopt the legislation. The sheer breadth of firearms legislation in the United States suggests that its constitutionality was broadly accepted. Moreover, the handful of cases we do have from various courts, based on fairly mundane facts, proves that the statutes were enforced.
Nevertheless, the dissent correctly points out that there are a relatively small number of state cases—largely from the South—testing the constitutionality of
The scholarly commentary offers additional explanation. Military historian Patrick Charles points out that prior to the Civil War, the states divided along sectional lines over how to regulate arms, with Northern and Western states following what has been called the "Massachusetts Model." He observes, consistent with the dissent's point, that "the constitutionality of the Massachusetts Model was never sufficiently called into question." Patrick J. Charles, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry 143 (2018) (footnote omitted). He suggests three reasons why that is so. First, "Northerners, by and large, detested the practice of going habitually armed," and therefore accepted the legitimacy of this exercise of police power. Id. Second, even under the Massachusetts Model, individuals could "carry weapons for self-defense so long as they could show a pressing or imminent threat." Id. at 144. And third, "Northerners viewed the right to self-defense as a right of the last resort"; they simply did not feel the need to carry as often as their Southern counterparts, who "embrace[d] notions of vengeance and honor." Id. at 145. In the South, the states "differentiate[d] between the open and concealed carriage of arms. While open carriage was more often than not legally condoned, concealed carriage was prohibited." Id.
Even accepting the relatively small number of reported cases, we have an additional concern with the dissent's rejection of roughly half of the state cases that did address the constitutionality of firearms regulations. Compare O'Scannlain Dissent at 138-43 (citing with approval cases from Kentucky, Tennessee, Alabama, Georgia, and Louisiana), with id. at 836-39 (rejecting cases from Arkansas, Georgia, Texas, West Virginia, and Oklahoma).
There is nothing in the state cases that the dissent rejects and, therefore, ignores that is inconsistent with Heller's conclusion that the Second Amendment protects an individual right. None of those state decisions took the position disapproved by the Supreme Court in Heller. What they did was refer to arms useful in service in the militia as way of distinguishing between constitutional regulations (small weapons traditionally prohibited under English and American law and not useful in military service) and a right to keep and bear arms that could be exercised in defense of self and state. See id. at 602, 128 S.Ct. 2783 (referring to state constitutions that "referred to the right of the people to `bear arms in defence of themselves and the State'"). The dissent's own quotations from the cases it rejects demonstrates the state courts' concerns. See O'Scannlain Dissent at 836-38. None of those cases could reasonably be read to support the ban of all weapons except when actually used in militia service, which was the theory Heller rejected. The militia clause helps us understand the contours of the Second Amendment. After Heller, the prefatory clause may not dictate the content of Second Amendment rights, but neither is it irrelevant to it.
Finally, the dissent's treatment of the state cases that do not agree with its conclusion reinforces the dissent's Heller problem. If the Second Amendment codifies an "existing right," we have to look to some source for the right. And unless we are willing to say that it is a natural right without reference to English or American practice, we have to look at all of the materials. The dissent can only get to its conclusion by rejecting the English practice, the entire history of American legislation, half of the state cases, and at least half of the scholarly commentary. That is not much of a "pre-existing right" if all the state legislatures and half of state supreme courts got it wrong. The dissent's argument thus contains the seeds of its own destruction, because if the dissent is correct that much of our history is, at best,
F. Application to HRS § 134-9
Hawai`i's licensing scheme stands well within our traditions. Section 134-9 requires a license to carry a pistol or revolver, concealed or unconcealed. Consistent with English and American legal history, Hawai`i exempts from its firearms regulation scheme police officers, certain persons employed by the state, and members of the armed forces "while in the performance of their respective duties." HRS § 134-11(a). It permits hunters and target shooters to carry openly and to transport their arms. Id. § 134-5. It recognizes the right of persons to arm themselves in their "place of business, residence, or sojourn" and transport unloaded arms between those locales. Id. § 134-23. Persons who have "reason to fear injury to... person or property" may apply for a license to carry a pistol or revolver concealed and, "[w]here the urgency or the need has been sufficiently indicated" and the applicant is "engaged in the protection of life and property," to carry a pistol or revolver openly. Id. § 134-9(a).
Hawai`i's restrictions have deep roots in the Statute of Northampton and subsequent English and American emendations, and do not infringe what the Court called the "historical understanding of the scope of the right." Heller, 554 U.S. at 625, 128 S.Ct. 2783. Those restrictions are within the state's legitimate police powers and are not within the scope of the right protected by Second Amendment. That means that Young's challenge to Hawai`i's restrictions fails at step one of our framework and "may be upheld without further analysis." Silvester, 843 F.3d at 821. We easily conclude that HRS § 134-9 is facially consistent with the Second Amendment.
IV. OTHER CLAIMS
In addition to Young's primary Second Amendment claim, he brings two other claims against HRS § 134-9. First, borrowing the doctrine of prior restraint from the First Amendment, Young argues that the chief of police's discretionary authority to deny carry-permit applications violated his Second Amendment right. He argues that § 134-9 is invalid because it vests chiefs of police "with unbridled discretion to determine whether a permit is issued," which imposes on his right to carry a firearm in public. The application of the prior restraint doctrine to a Second Amendment challenge hinges on Young's assumption that the right to keep and bear arms is similar enough to the right to free speech that preemptive firearm-licensing requirements are also presumptively invalid. Second, Young brings a due process challenge to the Hawai`i statute. He claims that § 134-9 lacks a mechanism for appealing a chief of police's denial of a carry application, and that due process requires some form of hearing. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Assuming that Young has a liberty
A. Prior Restraint
We start with Young's prior restraint claim. A "prior restraint" is any law or judicial order that preemptively forbids certain speech before the speech occurs. Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993); In re Nat'l Sec. Letter, 863 F.3d 1110, 1127 (9th Cir. 2017). These restrictions generally break down into two classes: "censorship schemes and licensing schemes." In re Nat'l Sec. Letter, 863 F.3d at 1127. In the First Amendment context, the threat of preemptive censorship by a governing body is apparent enough in prior restraints to render such restrictions presumptively invalid. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). So, although a prior restraint is not unconstitutional per se, it "bear[s] a heavy presumption against its constitutional validity." Id. This makes sense in the speech context, given that "a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand," which is "a theory deeply etched in our law." Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).
On the surface, it is easy to see why Second Amendment challenges to licensing schemes so often invoke First Amendment jurisprudence. See, e.g., Heller, 554 U.S. at 582, 128 S.Ct. 2783 (finding that the Second Amendment extends to modern firearms just as the First Amendment extends to "modern forms of communication"); Jackson, 746 F.3d at 961 (concluding that in the context of step two of Heller, "we are likewise guided by First Amendment principles"); see also Binderup v. Att'y Gen., 836 F.3d 336, 344 (3d Cir. 2016) (en banc) (finding that restrictions on Second Amendment rights are "subject to scrutiny in much the way that burdens on First Amendment rights are"); Ezell v. City of Chicago, 651 F.3d 684, 706-07 (7th Cir. 2011) (recognizing that courts have adopted First Amendment principles of scrutiny in Second Amendment cases). After all, the Bill of Rights explicitly protects both the freedom of speech and the right to keep and bear arms.
But when we look beneath the surface, the analogy to the prior restraint doctrine quickly falls apart. See Pena v. Lindley, 898 F.3d 969, 1008-09 (9th Cir. 2018) (Bybee, J., concurring in part and dissenting in part) ("The analogy to the First Amendment begins to break down, however, once we move beyond rules of general applicability."); United States v. Marzzarella, 614 F.3d 85, 96 n.15 (3d Cir. 2010) ("While we recognize the First Amendment is a useful tool in interpreting the Second Amendment, we are also cognizant that the precise standards of scrutiny and how they apply may differ under the Second Amendment."). To start, although the Bill of Rights protects both speech and the right to keep and bear arms, there are "salient differences between the state's ability to regulate" First and Second Amendment rights. Kachalsky, 701 F.3d at 92. Most notably, the inherent risk that firearms pose to the public distinguishes their regulation from that of other fundamental rights. See Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126 (10th Cir. 2015). Additionally, while everyone enjoys the right to speak, even under the most generous reading of the Second Amendment, not everyone enjoys the right to carry a firearm
We are not alone in concluding that the prior restraint doctrine does not apply in the Second Amendment context. So far as we can tell, every court to address the question has declined to apply the prior restraint doctrine to firearm-licensing laws. See id. at 91-92; Hightower v. City of Boston, 693 F.3d 61, 80-81 (1st Cir. 2012); Drake, 724 F.3d at 435; Woollard, 712 F.3d at 883 n.11; United States v. Focia, 869 F.3d 1269, 1283-84 (11th Cir. 2017). We, therefore, join our sister circuits in holding that the prior restraint doctrine does not apply to Second Amendment challenges involving firearm-licensing laws.
B. Procedural Challenge
Young's due process argument fares no better. He claims that HRS § 134-9 does not provide adequate process to challenge the denial of his carry-permit application.
Young's procedural challenge is premature. Young claims that he was deprived of due process because HRS § 134-9 does not provide a mechanism for review of a chief of police's denial of a permit application. It is not clear that Young is correct. Hawai`i's administrative procedure act affords "all parties ... an opportunity for hearing" in any "contested case." HRS § 91-9. A "contested case" is any "proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS § 91-1. Following such a hearing, "[a]ny person aggrieved by a final decision and order in a contested case ... is entitled to judicial review." HRS § 91-14(a). It is not clear to us whether the denial of an open-carry application would fall under § 91-9's umbrella. But it is clear that Young did not pursue a hearing under § 91-9 and did not seek judicial review as provided by § 91-14 prior to bringing suit in federal court. Young's claim that § 134-9 lacks an opportunity for appellate review is based on his own speculation.
A claim that "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all" is not ripe for review. Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted); Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010). Young did not seek review under § 91-9 before bringing suit. So, Hawai`i has not yet denied him the opportunity for appellate review. Because Young has not actually been denied a hearing, his procedural due process claim is speculative, and we need not reach it. Ass'n of Am. Med. Coils. v. United States, 217 F.3d 770, 779 (9th Cir. 2000) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
V. CONCLUSION
The judgment of the district court is
O'SCANNLAIN, Circuit Judge, with whom CALLAHAN, IKUTA, and R. NELSON, Circuit Judges, join, dissenting:
The Second Amendment to the United States Constitution guarantees "the right
This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner "core" of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment's protections.
In so holding, the majority reduces the right to "bear Arms" to a mere inkblot, The majority's decision undermines not only the Constitution's text, but also half a millennium of Anglo-American legal history, the Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), and the foundational principles of American popular sovereignty itself.
I respectfully dissent.
I
A
George Young wishes to carry a handgun publicly for self-defense in the State of Hawaii. Twice in 2011, he applied for a license to carry a handgun, either openly or concealed. His application was denied each time by the County of Hawaii's Chief of Police because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes ("H.R.S.").
Section 134-9 acts as a limited exception to the State of Hawaii's "Place[s] to Keep" statutes, which generally require that gun owners keep their firearms at their "place of business, residence, or sojourn." H.R.S. §§ 134-23 to -27. The exception allows citizens to obtain a license to carry a loaded handgun in public under certain circumstances. Id. § 134-9(a). For concealed carry, section 134-9 provides that "[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license to an applicant ... to carry a pistol or revolver and ammunition therefor concealed on the person." Id. For open carry, the chief of police may grant a license only "[w]here the urgency or the need has been sufficiently indicated" and the applicant "is engaged in the protection of life and property." Id.
These baseline requirements limit who "may" be eligible to obtain a public-carry license but leave each county with discretion to impose even tighter restrictions. The County of Hawaii, where Young lives, has done just that. When it promulgated regulations implementing section 134-9, Hawaii County created an open-carry licensing regime that is available only to "private detectives and security guards." Police Dep't of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and Unconcealed Weapons 1 (Oct. 22, 1997). Moreover, the county regulation allows open carry "only" when the license holder is "in the actual performance of his duties or within the area of his assignment.", Id. at 10. Thus, for any person who is not an on-duty security guard, the only opportunity to carry a firearm for self-defense is via concealed carry. And even then, a citizen must demonstrate "an exceptional case"
Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, id. §§ 134-23 to -27, and may use those firearms only while "actually engaged" in hunting or target shooting, id. § 134-5(a), (c).
B
On June 12, 2012, Young filed this pro se civil-rights action against the State of Hawaii, its Governor, and its Attorney General (collectively, "the State"), as well as the County of Hawaii and its Mayor, Chief of Police, and Police Department (collectively, "the County"), under 42 U.S.C. § 1983. Young alleged, primarily, that the denial of his application for a handgun license violated his Second Amendment right to carry a loaded handgun in public for self-defense.
The State filed a motion to dismiss Young's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the County filed a motion to dismiss the claims under Rule 12(b)(6). The district court granted both motions. As to the State, the district court found that Young's claims (for both monetary and injunctive relief) were barred by sovereign immunity. Dismissing Young's claims against the County on the merits, the district court found that section 134-9 "does not implicate activity protected by the Second Amendment" because that Amendment "establishes only a narrow individual right to keep an operable handgun at home for self-defense." Young v. Hawaii, 911 F.Supp.2d 972, 989-90 (D. Haw. 2012). In the alternative, the district court indicated that it would uphold section 134-9's open-and concealed-carry limitations under intermediate scrutiny. Id. at 990-91. Young timely appealed.
In 2018, a three-judge panel of our court reversed the district court's dismissal of Young's Second Amendment claim against the County, holding that he "has indeed stated a claim that section 134-9's limitations on the issuance of open carry licenses violate the Second Amendment." Young v. Hawaii, 896 F.3d 1044, 1074 (9th Cir. 2018). The panel dismissed Young's appeal as to the State. Id.
We then granted rehearing en banc, thus vacating the three-judge panel's decision. Young v. Hawaii, 915 F.3d 681 (9th Cir. 2019).
II
At the heart of this case is a straightforward question: Does the Second Amendment, as originally understood, protect the right of an ordinary, law-abiding citizen to carry a handgun openly for self-defense outside the home?
The majority holds that it does not—and that a total ban on carrying a handgun outside the home does not implicate the Second Amendment right to bear arms whatsoever. The majority reaches this startling conclusion not because it finds that the text of the Second Amendment supports it, that early American cases interpreted the Amendment in this way, nor even that open public carry was regularly and uncritically subject to legislative prohibitions across our country's early history. Instead, the majority has declared that a state may constitutionally forbid all public carry of firearms, based on the utterly inconsequential fact that the lawful manner of open public carry has historically been subject to modest regulation (but never to outright prohibition).
Respectfully, the majority's opinion—and in particular, its extreme and bizarre
A
To begin, as we must, with the text: The Second Amendment guarantees that "the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Critically, the Amendment protects not only the right to "keep" arms, but also the right to "bear" arms. Central to Young's challenge is the latter of these two verbs.
It is hornbook constitutional law that "to bear arms implies something more than mere keeping." Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880). Indeed, the Supreme Court in Heller was clear about what it means to "bear" arms: "At the time of the founding, as now, to `bear' meant to `carry.'" 554 U.S. at 584, 128 S.Ct. 2783. That the Constitution delineates a specific right to carry a firearm—as distinguished from the right simply to keep a firearm—strongly implies the right to take one's firearm outside the home in which it is kept.
The Founding-era dictionaries relied upon by the Court in Heller confirm this intuition, making clear that one would typically "bear" a firearm when carrying it in garments worn outside the home. See 1 Samuel Johnson, Dictionary of the English Language 161 (4th ed. 1773) (reprinted 1978) (defining "Bear" as "To carry as a mark of distinction.... So we say, to bear arms in a coat" (first emphasis added)), cited in Heller, 554 U.S. at 584, 128 S.Ct. 2783; Noah Webster, American Dictionary of the English Language (1828) (unpaginated) (defining "Bear" as "To wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat"), cited in Heller, 554 U.S. at 584, 128 S.Ct. 2783. Wearing one's firearm in a coat or carrying it in one's pocket are strong indicia of activity that would be expected to take place outside the home.
Moreover, to deny that the right to "bear Arms" protects at least some degree of public carry would render it mere surplusage, coextensive with the separately enumerated right to "keep" a gun in the home. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174, 2 L.Ed. 60 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect...."); see also Drake v. Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) ("[Such a reading] would conflate `bearing' with `keeping,' in derogation of [Heller's] holding that the verbs codified distinct rights....").
The evidence that the Second Amendment's Framers and ratifiers understood the right to bear arms to encompass public carry is not only lexical, but logical. The Court in Heller observed that the right to "bear arms" historically referred to a 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." 554 U.S. at 584, 128 S.Ct. 2783 (quoting Muscarello v. United States, 524 U.S. 125, 143, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (Ginsburg, J., dissenting)) (alterations omitted and emphasis
The opinions in Heller and McDonald underscore this straightforward understanding of "bear." Heller described the "inherent right of self-defense" as "most acute" within the home, implying that the right does extend elsewhere, even if less "acutely." 554 U.S. at 628, 128 S.Ct. 2783 (emphasis added). McDonald similarly described the right as "most notabl[e]" within the home, implying the right does extend elsewhere, even if less "notably." 561 U.S. at 780, 130 S.Ct. 3020 (emphasis added). Heller also took pains to avoid "cast[ing] doubt" on "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." 554 U.S. at 626, 128 S.Ct. 2783. But why bother clarifying the Second Amendment's application in particularly sensitive public places if it does not apply, at all, in any public place?
In short, the Second Amendment's text—understood by reference to the historical sources relied upon by Heller and McDonald—points toward the conclusion that public carry lies within the scope of the Amendment's protections. That the majority altogether declines to engage with textual analysis is telling.
B
Next, the history of the Second Amendment confirms what the text so strongly suggests: that the Amendment encompasses a general right to carry firearms openly in public.
1
As guided by Heller, the historical inquiry begins with the writings of "important founding-era legal scholars"—the evidence most probative of how the Framers understood the right to bear arms. 554 U.S. at 605, 128 S.Ct. 2783.
The plain textual understanding of "bear arms" finds unequivocal support in the most prominent, widely circulated legal treatises from throughout the Founding era. In an early American edition of Blackstone's Commentaries on the Laws of England—indeed, the "most important" edition, as Heller points out, see 554 U.S. at 594, 128 S.Ct. 2783—St. George Tucker, a law professor at the College of William & Mary and an influential Antifederalist, insisted that the right to armed self-defense is the "first law of nature" and that "the right of the people to keep and bear arms" is the "true palladium of liberty."
Blackstone himself espoused a similar view of the inviolability of an Englishman's right to bear arms, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to "have Arms for their Defence suitable to their Conditions, and as allowed by Law." Bill of Rights 1689, 1 W. & M., ch. 2, § 7 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (noting that Blackstone's works "constituted the preeminent authority on English law for the founding generation"). As Blackstone explained, the 1689 Declaration enshrined "the natural right of resistance and self-preservation" and "the right of having and using arms for self-preservation and defence." 1 William Blackstone, Commentaries *144.
2
Following Heller's historical imperative, the inquiry turns to nineteenth-century judicial interpretation of the right to bear arms, whether as part of the Second Amendment or analogous state constitutional provisions. See 554 U.S. at 610-14, 128 S.Ct. 2783. For by analyzing "how" the Second Amendment was interpreted... immediately after its ratification," we can "determine the [original] public understanding of [its] text." Id. at 605, 128 S.Ct. 2783.
a
The first of these is Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision "especially significant both because it is nearest in time to the founding era and because the state court assumed (just as [Heller] does) that the constitutional provision at issue codified a preexisting right," Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1360 (2009) (footnote omitted). Interpreting Kentucky's Second Amendment analogue—which provided that "the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned"—the state's highest court had no doubt that any law restricting the public carry of firearms would "import a restraint on the right of the citizens to bear arms." Bliss, 12 Ky. (2 Litt.) at 90, 92. The court then invalidated a restriction on the concealed carry of weapons, despite the availability of open carry, reasoning 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." Id. at 91-92. Kentucky later amended its constitution to allow the legislature to "pass laws to prevent persons from carrying concealed arms," Ky. Const. art. XIII, § 25 (1850) (emphasis added), but left untouched the premise in Bliss that the right to bear arms protects open carry.
Tennessee's highest court offered its own, similar interpretation of the right to bear arms in Simpson v. State, 13 Tenn. 356 1833, cited in Heller, 554 U.S. at 585 n.9, 603, 614, 128 S.Ct. 2783. There, after Simpson was convicted of disturbing the peace by appearing armed in public, he faulted the indictment for failing to require clear proof of actual violence. Id. at 357-58. The high court agreed. Id. at 357-60. First, the court cast doubt on the State's argument that English law would have allowed conviction without proof of actual "fighting of two or more persons." Id. at 357-58 (quoting 4 William Blackstone, Commentaries *145). Second, the court explained that even assuming English law had criminalized the carrying of weapons without proof of actual violence, the Tennessee "constitution ha[d] completely abrogated it." Id. at 360. No such prohibition could survive the state constitution's grant of "an express power ... secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature." Id.
In 1840, the Alabama Supreme Court offered a similar interpretation of its own state's constitution. See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S. at 585 n.9, 629, 128 S.Ct. 2783. Construing the Alabama "right to bear arms, in defence of []self and the State," the court declared that an Alabamian must be permitted some means of carrying a weapon in public for self-defense. Id. at 616-17. The court ultimately upheld a restriction on "the evil practice of carrying weapons secretly," citing the legislature's power "to enact laws in regard to the manner in which arms shall be borne.... as may be dictated by the safety of the people and the advancement of public morals." Id. at 616 (emphasis added). But the court made clear where that legislative power ran dry:
Id. at 616-17.
The Georgia Supreme Court embraced precisely the same position in an opinion central to the Supreme Court's historical analysis in Heller. See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S. at 585 n.9, 612-13, 626, 629, 128 S.Ct. 2783; O'Shea, supra, at 627 ("No case, historic or recent, is discussed more prominently or positively in Heller than the Georgia Supreme Court's 1846 decision in Nunn v. State."). There, the court considered a Second Amendment challenge to a statute that criminalized carrying a pistol, either openly or concealed. Nunn, 1 Ga. at 245-46. Starting off with a clear statement of the constitutional guarantee, the court explained: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree...." Id. at 251 (emphasis omitted). With those Second Amendment lines properly set, the court held that Georgia's statute had gone too far:
Id. We should afford Nunn's understanding of the Second Amendment significant weight because, as Heller explains, "[i]ts opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause." 554 U.S. at 612, 128 S.Ct. 2783.
The Louisiana Supreme Court soon followed the course set by Alabama and Georgia. See State v. Chandler, 5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 585 n.9, 613, 626, 128 S.Ct. 2783. The high court first rejected Chandler's Second Amendment challenge to a Louisiana law prohibiting concealed carry, reasoning that the law was "absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons." Id. at 489-90. But, in precisely the same manner as the Nunn and Reid courts, the Chandler court drew the line which the legislature could not cross. The court explained that a prohibition on concealed carry could be held constitutional because it "interfered with no man's right
The majority largely rejects the lessons of these cases by first suggesting that only Bliss could support the view that open public carry was historically understood to be within the scope of the Second Amendment, then characterizing Bliss as an "isolated decision." See Maj. Op. 802-03, 808. While Bliss may have gone farther than other nineteenth-century cases in holding that any restraint on "the full and complete exercise of th[e] right [to bear arms]... is forbidden by the ... constitution," 12 Ky. (2 Litt.) at 91-92, it could hardly be described as an outlier for purposes of the issue before us here. Our question is not whether the Second Amendment was historically understood to foreclose any and all regulation of public carry. Rather, the question is and must be whether the right to "keep and bear Arms" was originally understood to limit states' power to restrict the freedom to carry a firearm in public for self-defense. And Bliss is far from the only nineteenth-century case to hold that extensive prohibitions on open carry would indeed infringe on a constitutionally protected right—even if the manner of open public carry could be regulated at its margins. Simpson, Reid, Nunn, and Chandler all stand for precisely that proposition.
In short, the same nineteenth-century cases found instructive by the Supreme Court in Heller underscore what nineteenth-century legal commentator John Ordronaux (also cited in Heller) aptly summarized: Though "a State [might] enact[ ] laws regulating the manner in which arms may be carried," including "the carrying of concealed weapons," any "statute forbidding the bearing of arms openly would ... infringe[ ]" the Second Amendment. John Ordronaux, Constitutional Legislation in the United States: Its Origin, and Application to the Relative Powers of Congress, and of State Legislatures 242-43 (1891), cited in Heller, 554 U.S. at 619, 128 S.Ct. 2783.
b
The majority observes that there were some judicial proponents of a more limited right to bear arms during the nineteenth century. See Maj. Op. 804-07. But their reasoning rests on the untenable militia-based view of the right, which carries no interpretive weight after Heller.
Most prominent is the Arkansas Supreme Court's 1842 interpretation of the right in State v. Buzzard, 4 Ark. 18 (1842). There, a divided court upheld a prohibition on the concealed carry of "any pistol, dirk, butcher or large knife, or a sword in a cane," id. at 18, but each judge in the splintered majority appeared poised to go further. Chief Justice Ringo advocated the view that the Second Amendment did not bar the Arkansas legislature from prohibiting any carrying of firearms: "[N]o enactment on this subject, which neither directly nor indirectly so operates as to impair or render inefficient the means provided by the Constitution for the defense of the
Several other nineteenth-century courts hewed to Buzzard's approach and upheld laws restricting public carry without emphasizing, as did courts in Nunn's camp, the limits of legislative authority. See Hill v. State, 53 Ga. 472, 474-77 (1874) (upholding prohibition on carrying weapons "to any court of justice ... or any place of public worship, or any other public gathering... except militia muster grounds"); English v. State, 35 Tex. 473, 474, 480 (1871) (upholding prohibition on carrying "pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives"); State v. Workman, 35 W.Va. 367, 14 S.E. 9, 10-12 (W. Va. 1891) (upholding presumption of criminality "when a man is found going around with a revolver, razor, billy, or brass knuckles upon his person"). Like Buzzard, each decision was explicitly premised on a militia-focused view of the right to bear arms. See Hill, 53 Ga. at 475 ("In what manner the right to keep and bear these pests of society [dirks, bowie knives, and the like], can encourage or secure the existence of a militia, and especially of a well regulated militia, I am not able to divine."); English, 35 Tex. at 477 ("The terms dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives, belong to no military vocabulary."); Workman, 14 S.E. at 11 ("So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia....").
With Heller on the books, cases in Buzzard's flock offer little instructive value. That is because Heller made clear that the Second Amendment is, and always has been, an individual right centered on self-defense; it has never been a right to be exercised only in connection with a militia. See 554 U.S. at 592, 599, 616, 128 S.Ct. 2783; see also Wrenn, 864 F.3d at 658 (reasoning that such cases are "`sapped of authority by Heller"); Moore, 702 F.3d at 941 (treating "the historical issues as settled by Heller"); O'Shea, supra, at 653 ("Decisions like English ... have little relevance to determining the scope of Second Amendment carry rights today ... [because] the question presented by current carry litigation is whether firearms that are constitutionally protected, as Heller holds handguns to be, may be carried outside the home pursuant to a constitutional
Although ours is an historical inquiry, we are judges, not historians. And, bound as the inferior court that we are, we may not revisit questions of historical interpretation already decided in binding decisions of the Supreme Court, as the majority seems so keen to do. Rather, we may only assess whether the right to bear arms extends outside the home on the understanding—dictated by Heller—that the right is an individual one centered on self-defense. On such an understanding, cases like Buzzard only bear upon the entirely irrelevant question of whether open public carry was embraced by state constitutions' militia-focused provisions for keeping and bearing arms (or by erroneously militia-focused views of the Second Amendment). We, by contrast, are interested in whether open public carry is embraced by the U.S. Constitution's individual right to "keep and bear Arms."
c
Setting aside those cases that rest on a militia-focused view of the right to bear arms, there remain only two nineteenth-century cases that might be read to allow severe deprivations of the right to open carry. Upon closer examination, neither is instructive on the meaning of the Second Amendment.
The first, State v. Duke, is an 1874 decision from the Supreme Court of Texas, which concluded that the legislature could confine the carry of pistols to specified places (at least if the bearer did not have reasonable grounds to fear an attack). 42 Tex. 455, 456-59 (1875). Why the departure from the Nunn line of cases? One need only peek at the Texas constitutional provision under which Duke was decided, which provided that "[e]very person shall have the right to keep and bear arms in the lawful defense of himself or the State, under such regulations as the Legislature may prescribe." Id. at 458 (emphasis added). While the Second Amendment surely tolerates some degree of regulation, its very text conspicuously omits any such
The second case, Walburn v. Territory, is an 1899 decision from the Supreme Court of the Territory of Oklahoma, decided at the very end of the nineteenth century. See 9 Okla. 23, 59 P. 972 (Okla. Terr. 1899). Convicted of carrying a revolver on his person, Walburn challenged his conviction on several grounds, one being that Oklahoma's carrying prohibition was "in conflict with the constitution of the United States." Id. at 973. Beyond such a general assertion, however, "[n]o authorities [were] cited in support of this position, nor [was] the proposition very earnestly urged." Id. Accordingly, the court rejected the challenge: "As at present advised, we are of the opinion that the statute violates none of the inhibitions of the constitution of the United States, and that its provisions are within the police power of the territory." Id. (emphasis added). There is little reason to credit a decision that explicitly acknowledged a lack of due consideration. Cf. Heller, 554 U.S. at 623-24, 128 S.Ct. 2783 (rejecting the dissent's reliance on United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), in part because of the incomplete briefing in Miller and its lack of a thorough consideration of the history of the Second Amendment).
d
In sum, there are at least five nineteenth-century cases (plus another that came two years into the twentieth century) in which state supreme courts held that the individual right to bear arms for self-defense—i.e., the right guaranteed by the Second Amendment—must encompass a right to open public carry. And the majority has not cited a single apposite case in which any nineteenth-century court held to the contrary.
3
Finally, Heller's historical methodology leads us to the legislative scene following the Civil War. See 554 U.S. at 614-16, 128 S.Ct. 2783.
Particularly relevant in this period are the efforts of many Southern states to disarm freedmen by adopting Black Codes.
On the one side, "[t]hose who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms." Heller, 554 U.S. at 614, 128 S.Ct. 2783; see also Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol'y 17, 20 (Winter 1995) ("The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms.... These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.").
As they witnessed the state governments of the former Confederacy turning a blind eye to mob violence against newly freed slaves, the Reconstruction Republicans came to recognize that "when guns were outlawed, only the Klan would have guns." Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 266 (1998) [hereinafter Bill of Rights]. Yet such blatant injustices did not continue unnoticed by Congress, which established the Freedmen's Bureau to vindicate the constitutional rights of freedmen still suffering in the Reconstruction South. Working to fulfill its mandate, an 1866 report by the Bureau targeted a Kentucky law that sought to deprive freedmen of their Second Amendment rights: "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms.... Their arms are taken from them by the civil authorities.... Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." H.R. Exec. Doc. No. 70, at 233, 236 (1866), quoted in Heller, 554 U.S. at 614-15, 128 S.Ct. 2783, And Kentucky was far from the only state subject to scrutiny; a joint congressional report decried a South Carolina practice of "seizing all firearms found in the hands of the freedmen." J. Comm. on Reconstruction, H.R. Rep. No. 30, pt. 2, at 229 (1866) (Proposed Circular of Brigadier General R. Saxton), quoted in Heller, 554 U.S. at 615, 128 S.Ct. 2783.
On the other side, even those congressmen who opposed federal action to protect the rights of freedmen understood the fundamental constitutional rights at stake. Senator Davis of Kentucky acknowledged, on equal footing with the writ of habeas corpus, the right "for every man bearing his arms about him and keeping them in his house, his castle, for his own defense," but argued that congressional action on the matter would usurp the role of Kentucky in caring for its citizens. Cong. Globe, 39th Cong., 1st Sess. 370-71 (1866) (Sen. Davis) (emphasis added), cited in Heller, 554 U.S. at 616, 128 S.Ct. 2783.
Indeed, even before the Civil War, those who had sought to dispossess black Americans of the right to carry arms for self-defense understood that they were really seeking to dispossess black Americans of fundamental constitutional rights. This was made all-too-painfully clear by the Supreme Court's infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), rendered four years
C
To summarize the history canvassed thus far The important Founding-era treatises, the probative nineteenth-century case law, and the post-Civil War legislative scene all reveal a single American voice. The right to bear arms must include, at the least, the right to carry a firearm openly for self-defense. Perhaps surprisingly, the majority does not seriously dispute either the linguistic or historical evidence recounted above.
Instead—and in lieu of any apposite cases that actually upheld the constitutionality of severe restrictions on the open carry of firearms—the majority suggests that the clear lessons of this evidence are undermined by the mere fact that the public carry of firearms has historically been subject to some manner of regulation. While this is undoubtedly true, the evidence of such lesser restrictions on firearms carry does not come close to supporting the majority's view that any restriction upon public carry—even a complete ban—was understood to be immune to constitutional scrutiny.
1
For one, the majority argues that the English right to carry weapons openly was severely limited for centuries by the 1328 Statute of Northampton and suggests, in turn, that we should incorporate such an understanding of English rights into our Constitution's Second Amendment. Exploring fourteenth-century English law books (after a thorough dusting) reveals no such thing.
a
The Statute of Northampton made it unlawful for an ordinary Englishman to "bring ... 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." Statute of Northampton 1328, 2 Edw. 3, c. 3 (Eng.).
And in any event, looking only to Chaucer's fourteenth-century England provides little instructive force, particularly because "[c]ommon-law rights developed over time." Wrenn, 864 F.3d at 660. And over the next few centuries, a narrow interpretation of the statute—like that given to Northumberland constables in 1332—began to dominate the English legal landscape. Writing almost 300 years after the statute was enacted, Serjeant William Hawkins, an English legal commentator praised by Blackstone, explained that "no wearing of Arms is within the meaning of this Statute, 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 Hawkins, supra, at 136 § 9. Hawkins's narrow interpretation of the statute was in accord with that of the Court of King's Bench, which clarified that "the meaning of the [Statute of Northampton] was to punish people who go armed to terrify the King's subjects." Sir John Knight's Case (K.B. 1686), 87 Eng. Rep. 75, 76; 3 Mod. 117, 118 (emphasis added).
To be sure, an untoward intent to terrorize the local townsfolk was not always needed to face arrest and imprisonment. But without malicious intentions or violent behavior, the carrying of weapons alone was prohibited only for such weapons that were specifically known to have a terrorizing effect. As Blackstone interpreted the statute—an interpretation credited by Heller, 554 U.S. at 627, 128 S.Ct. 2783—"going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land." 4 William Blackstone, Commentaries *149 (emphasis added); accord Joseph Keble, An Assistance to Justices of the Peace, for the Easier Performance of their Duty 147 (1689); Francis Wharton, A Treatise on the Criminal Law of the United States 932 § 2497 (4th ed. 1857). Similarly, Hawkins wrote that "a Man cannot excuse the wearing [of] such Armour" even "by alledging that such a one threatened him." 1 Hawkins, supra, at 136 § 8; accord Wharton, supra, at 932 § 2497. But clearly not all weapons can be characterized as "dangerous or unusual." Indeed, Heller itself recognized that the Second Amendment
Consequently, there is little in the Statute of Northampton to suggest that it supports a ban on carrying common (not unusual) arms for defense (not terror).
b
More fundamentally, it would be misguided to accept Hawaii's invitation to import medieval English law wholesale into our Second Amendment jurisprudence.
While English law is certainly relevant to our historical inquiry insofar as the Second Amendment "codified a preexisting right," Heller, 554 U.S. at 592, 128 S.Ct. 2783, our aim here is not merely to discover the rights of the English. There is a scholarly consensus that the 1689 English right to have arms was less protective than its American counterpart. See Jonathan Meltzer, Note, Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J. 1486, 1500 (2014); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 120-22 (1994). Illustratively, the English right was "not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament." Heller, 554 U.S. at 593, 128 S.Ct. 2783. In keeping with that limited scope, it included a regulatory caveat of the type consciously spurned by the Framers of the Second Amendment, only guaranteeing the right of Protestants to have arms "as allowed by law." See Malcolm, supra, at 121, 162.
Unsurprisingly, then, not all laws that restricted Englishmen's right to have arms found a place across the Atlantic. For example, as St. George Tucker observed, it would have been strange to apply in the United States an English law that presumed any gathering of armed men was treasonous, because "the right to bear arms is recognized and secured in the [American] constitution itself." 5 Tucker, supra, at app. n.B, at 19; see also Cooley, supra, at 270 (noting that the Second Amendment "was adopted with some modification and enlargement from the English Bill of Rights"); William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829) (writing that the English right, unlike the Second Amendment, "is allowed more or less sparingly, according to circumstances"). Thus, instead of stitching into the Second Amendment every odd law that hemmed in the rights of fourteenth-century Englishmen, we are to consider English laws only insofar as they inform the original public understanding of the Second Amendment.
To the extent that the Framers did consider the Statute of Northampton instructive of the preexisting right to bear arms, they took a narrow view of its prohibitions. See Eugene Volokh, The First and Second Amendments, 109 Colum. L. Rev. Sidebar 97, 101 (2009). For example, Justice James Wilson, a leading drafter of the Constitution, credited Serjeant Hawkins and construed the statute to prohibit arming one-self "with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people." 2 James Wilson, Collected Works of James Wilson 1138 (Kermit L. Hall & Mark D. Hall eds. 1967); see also Volokh, supra, at 101 ("American benchbooks for justices of the peace echoed [Wilson's observation], citing
Justice Wilson and William Rawle's reading of the statute is confirmed by the various state regulations, adopted throughout the Founding era and beyond, that were expressly modelled after the Statute of Northampton. See Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J.F. 121, 129 (2015) ("[S]everal early American states expressly incorporated versions of the Statute of Northampton into their laws."). The state-enacted Northampton analogues sought to regulate particularly disruptive—more specifically, terrifying— arms carrying. For example, Massachusetts in 1794 enacted a law authorizing justices of the peace to arrest "all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens." 1794 Mass. Acts 66, ch. 26 (emphasis added); see also 1786 Va. Acts 35, ch. XLIX (prohibiting going "armed by night [ ]or by day, in fairs or markets, or in other places, in terror of the county").
The North Carolina Supreme Court offered a definitive interpretation of that state's Northampton analogue in 1843, providing us with the benefit of a more thorough discussion of its elements. See State v. Huntly, 25 N.C. 418 1843. The court clarified:
Id. at 422-23 (emphasis added).
2
Next, the majority refers to a smattering of nineteenth-century gun regulations, most of which appear to have gone unchallenged in the courts. See Maj. Op. 795-802,
As a threshold matter, one should be wary of divining constitutional meaning from the existence of historical regulations that largely evaded constitutional scrutiny and for which the majority offers no enforcement history. This is especially true where, as here, as "[f]or most of our history[,] the question" of their constitutionality simply "did not present itself"—not least because for more than a century, "the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens." Heller, 554 U.S. at 625-26, 128 S.Ct. 2783.
In any event, the nineteenth-century statutes relied upon by the majority simply do not say what the majority claims they say—much less what it needs them to say—which is that the Constitution was generally understood to allow states to "forcefully prohibit[] the mere act of carrying a firearm." Maj. Op. 798-99.
a
Principally, the majority refers to various "surety" laws, as pioneered by Massachusetts and then adopted in Wisconsin,
Not so.
Many states during the nineteenth century required people who carried weapons in a disruptive fashion to post a bond (or a "surety") to ensure their good behavior. See, e.g., Mass. Rev. Stat. ch. 134, § 16 (1836). To enforce the surety requirement, such states commonly relied on a citizen-complaint mechanism. That is, if an arms carrier gave any observer "reasonable cause to fear an injury, or breach of the peace," the observer could complain to his local magistrate, who might then require the disruptive carrier "to find sureties for keeping the peace," generally "for a term not exceeding six months." Id. But if the disruptive carrier also had "reasonable cause to fear an assault or other injury," such person would be excused from posting sureties despite the complaint. Id. As an example of the pieces put together, Michigan's 1846 surety law provided that if any person went armed with an "offensive and dangerous weapon, without reasonable cause to fear an assault or other injury ... he may, on complaint of any person having reasonable cause to fear an injury or breach of the peace, be required to find sureties for keeping the peace." Mich. Rev. Stat. tit. XXXI, ch. 163, § 16 (1846).
The majority erroneously characterizes surety laws as imposing a severe restriction on the public carry of weapons absent good cause to fear injury. But the majority focuses on an exception to the surety requirement (for carriers with a specialized need for self-defense), while overlooking the clearly limited scope of the requirement in the first place: Only upon a well-founded complaint that the carrier had threatened "injury or a breach of the peace" did the burden to pay sureties even apply. Thus, individuals were generally free to carry weapons without having to pay a surety, unless they had been the subject of a specific complaint. Only then did the "good cause" exception come into play, "exempting even the accused" from the burden of paying sureties. Wrenn, 864 F.3d at 661. In short, "[a] showing of special need did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless." Id.
Even if these laws had required all arms carriers without good cause to post sureties (and they did not), they would not add much to the relevant historical analysis. Heller saw little weight in historical penalties that imposed only "a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail)." 554 U.S. at 633, 128 S.Ct. 2783. Certainly, an obligation to post a surety fits that mold. Like a small fine, sureties are "`akin to modern penalties for minor public-safety infractions like speeding or jaywalking,' which makes them (in the Court's view) poor evidence of limits on the [Second] Amendment's scope." Wrenn, 864 F.3d at 661 (quoting Heller, 554 U.S. at 633-34, 128 S.Ct. 2783). In fact, sureties seem even less noteworthy than small fines, since a disruptive carrier—once he posted a surety —"could go on carrying without criminal penalty." Id. And if he refrained from breaching the peace, of course, the money he posted as a surety would be returned in a matter of months. The majority's (unsupported) assertion that such sureties would "have been a severe constraint on anyone thinking of carrying a weapon in public" is therefore unconvincing. Maj. Op. 820.
Next, the majority observes that some states and federal territories restricted the particular places in which one could legally carry a gun. See id. at 800-01, 801-02. But that is hardly more helpful to the majority than the Statute of Northampton or the American surety statutes.
While these statutes (unlike surety laws) did impose some actual prohibitions on carrying firearms, they focused narrowly on restricting carry in specifically enumerated, particularly sensitive public places. See, e.g., 1870 Tex. Gen. Laws 63, ch. XLVI, § 1 (prohibiting carry in "any church or religious assembly, any school room or other place where persons are assembled for educational, literary or scientific purposes, or in[] a ball room, social party or other social gathering composed of ladies and gentlemen, or to any election precinct ... or any other public assembly"); 1889 Ariz. Laws 30, No. 13 §§ 1, 3 (adopting a version of the Texas statute). Such statutes establish nothing beyond the anodyne proposition—acknowledged in Heller and not disputed here—that the Second Amendment might have historically tolerated "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." 554 U.S. at 626, 128 S.Ct. 2783.
The fact that such laws existed hardly shows that general prohibitions on public carry would have been understood to be constitutional at the time. On the contrary, the only reason to enact laws specifically prohibiting firearm carry in sensitive places would be that carry was presumptively lawful everywhere else.
c
Next, the majority identifies three U.S. territories—New Mexico, Oklahoma, and Wyoming—that enacted broad prohibitions against the public carrying of all manner of weapons toward the end of the nineteenth century. See Maj. Op. 800-02; 1860 N.M. Laws 94, §§ 1-2 (prohibiting the carry, "concealed or otherwise," of "any class of pistols whatever, bowie knife ... Arkansas toothpick, Spanish dagger, slung-shot, or any other deadly weapon"); Okla. Stat. ch. 25, art. 47, § 2 (1890) (prohibiting "any person ... to carry upon or about his person any pistol, revolver, bowie knife, dirk knife loaded cane, billy, metal knuckles, or any other offensive or defensive weapon"); 1876 Wyo. Laws 352, ch. 52, § 1 (prohibiting "bear[ing] upon [one's] person, concealed or openly, any fire arm or other deadly weapon, within the limits of any city, town or village"). There are several reasons to be cautious about ascribing much interpretive significance to these laws.
First, it would be exceedingly difficult to discern whether such laws were enacted
Second, one should be hesitant to assume too much about the constitutional validity of laws that sought to disarm inhabitants of these Western territories, where the unique circumstances of life on the frontier might have motivated territorial legislatures to undertake more severe measures against the use of weapons than we have seen reflected in the many state laws recounted above.
Third, and most fundamentally, one can learn little about the general understanding of the Second Amendment from such isolated statutes, which were enacted so distant from the Founding and for which we have no record of enforcement. Cf. Heller, 554 U.S. at 632, 128 S.Ct. 2783 ("[W]e would not stake our interpretation of the Second Amendment upon a single law ... that contradicts the overwhelming weight of other evidence...."). Three statutes of this kind certainly do not undermine the far more extensive historical evidence in support of a more robust view of public-carry rights at the time of our Founding and beyond.
d
Finally, the majority suggests the overall effect of this hodgepodge of state and
That leads right into the second flaw in the majority's reliance upon such enumerated lists: They again betray a view of the Second Amendment as being focused on militias or hunting—for which rifles and shotguns were most commonly used—rather than individual self-defense. For example, as discussed above, the Oklahoma statute expressly excepted from its list of prohibited weapons the public carry of rifles or shotguns for use "in public muster or military drills." Okla. Stat. ch. 25, art. 47, § 5 (1890). As already explained at length, Heller foreclosed any reliance on historical sources animated by such an erroneous view that would limit the right to "keep and bear Arms" to only its militaristic applications. Moreover, Heller made clear that restrictions on handguns are especially repugnant to the Second Amendment because handguns are the "quintessential self-defense weapon." 554 U.S. at 629, 128 S.Ct. 2783. Indeed, to paraphrase Heller, "[i]t is no answer to say ... that it is permissible to ban the [carry] of handguns so long as the [carry] of other firearms (i.e., long guns) is allowed." Id.
Third, most of the statutes that included versions of the enumerated list of regulated weapons were not prohibitions on open carry at all. Most were surety statutes. See Mass. Rev. Stat. ch. 134, § 16 (1836); 1838 Wis. Laws 379, 381, § 16; Me. Rev. Stat. tit. XII, ch. 169, § 16 (1841); Mich. Rev. Stat. tit. XXXI, ch. 163, § 16 (1846); Minn. Rev. Stat. ch. 112, § 18 (1851); 1854 Or. Laws 218, 220, ch. XVI, § 17. Several others were focused on restricting carry in particularly sensitive places. See 1870 Tex. Gen. Laws 63; 1889 Ariz. Laws 30, No. 13, §§ 1, 3. The Georgia statute prohibiting concealed carry of the enumerated weapons expressly allowed for their open carry. See Ga. Code pt. 4, tit, 1, div. 9, § 4413 (1861). That leaves only two statutes containing versions of the enumerated weapons list: those adopted by the territories of New Mexico and Oklahoma. See 1860 N.M. Laws 94, § 1; Okla. Stat. ch. 25, art. 47, § 2 (1890). And—for reasons already discussed in the above analysis of those two, isolated, territorial statutes—they are incapable of bearing the analytical load required to establish that "the states broadly agreed
D
In sum, the history extensively canvassed above leads to a straightforward conclusion: Beginning in England and throughout the development of the early American Republic, individuals maintained the general right to carry common firearms openly for their own self-defense in public, provided that they did not do so in a way that would "terrorize" their fellow citizens or intrude upon particularly sensitive places like churches or schools.
Of course, the majority arrives at a starkly different conclusion. Namely, the majority reads the history as showing that "the government"—above and beyond its ability to regulate which arms were legal to carry and which places they could be carried—"may ... even prohibit, in public places[,] ... the open carrying of small arms capable of being concealed, whether they are carried concealed or openly." Id. at 813 (emphasis added). Indeed, the majority denies that such an extensive prohibition would implicate "conduct [within] the historical scope of the Second Amendment" altogether. Id. at 773-74. In the majority's words, there is simply "no right to carry arms openly in public." Id. at 821 (emphasis added).
This must seem strange, given that we are looking at the same historical record, and that—with the exception of certain points at the margins—we appear not to disagree significantly on the substance of what the historical sources actually say. (Indeed, the majority concedes that the "history is complicated, and the record ... far from uniform[ly]" supports its conclusion. Id. at 785-86.)
In order to establish its startling conclusion that the carrying of common arms for self-defense lies completely outside the Second Amendment, the majority surely must show that complete prohibitions on open public carry were historically understood to be lawful. Perhaps, one would think, the majority might have, done so through evidence that the Founding generation had regular experience with such
But the majority has found none of the above. All the majority has managed to demonstrate is that the manner of open public carry has at times been regulated (by laws criminalizing the carry of especially dangerous or unusual weapons with the intent or effect of "terrorizing the people," surety laws, laws restricting carry in particularly sensitive public places, and the like), and that such narrow regulations have at times been upheld or otherwise left unchallenged. When all is said and done, there is a vast and undeniable chasm between these (largely uncontroverted) propositions about the historical presence of some firearms regulation and the far more troubling proposition that the majority today pronounces: that public carrying of common arms could generally be banned.
The majority is left to bridge this chasm by making logical leaps and critically shifting the goalposts in ways it fails to justify. It is utterly baffling for the majority to contend that, merely because the lawful manner" of open public carry has historically been regulated in certain respects, we may conclude that the practice of public carry itself is not entitled to constitutional protection. What right enshrined in our Constitution has not historically been regulated to some degree? Surely, we would never hold (for example) that the right to speak publicly on political matters lies wholly outside the First Amendment merely because such speech has been subject to "longstanding, accepted regulation," cf. Maj. Op. 783, in the form of libel laws, defamation laws, and time-place-and-manner restrictions. Yet this is exactly how the majority appears to believe we must interpret the Second Amendment. The majority's invitation to interpret the right to bear arms "as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees," must be rejected. McDonald, 561 U.S. at 780, 130 S.Ct. 3020 (plurality op.).
E
One last line of argument to rebut: The majority, unavailed by text and history, relies on two ostensible—but in reality, untenable—principles of constitutional construction to buttress its assertion that an individual right to armed self-defense in public would somehow contradict the nature of our constitutional framework. Neither argument holds water.
1
First, the majority asserts that constitutional rights—across the board—inhere more strongly within the home than outside the home. See Maj. Op. 813-14. The majority cannot identify any case that actually establishes such a "principle." Instead, it opines that this lurking (and heretofore,
To the extent they are even relevant to our question here, the lessons of the Third and Fourth Amendments cut in exactly the opposite direction of the majority's novel approach. The text of both the Third and the Fourth Amendments explicitly announces a focus on "houses." See U.S. Const. amends. III ("in any house"), IV ("in their ... houses"). The Second Amendment, by contrast, does not mention any spatial limitations on the right to keep and bear arms whatsoever. See U.S. Const. amend. II. Our inference, then, should be that unlike the Third and Fourth Amendments, the Second Amendment's lack of any reference to the home means its protections are not specifically focused there. See, e.g., Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[Where a legal text] includes particular language in one section of [the document] but omits it in another section of the same..., it is generally presumed that [its drafters] act[ed] intentionally and purposely in the disparate inclusion or exclusion." (internal quotation marks omitted)). It would be odd, indeed, to infer (as the majority apparently does) that the express limitation of two constitutional rights to "houses" means that every other constitutional right is spatially limited by implication. We certainly would never assume as much about any other enumerated right in the Constitution.
In short, it is unnecessary to reach for the Third or Fourth Amendments when the Second Amendment's own text supplies a clear answer.
2
Second, the majority raises the structural argument that "the Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces." See Maj. Op. 814-18, 820-21. But this argument is foreclosed by Heller and, more fundamentally, is premised on deep misapprehensions of the first principles of American popular sovereignty.
a
At the outset, the majority's structural argument suggests that even if "keep[ing]" arms is an individual right, "bear[ing]" arms is a corporate right that belongs to the government alone, which has sole authority to ensure security in public. Such a suggestion directly contradicts Heller, which emphatically rejected the argument that the right to "keep and bear Arms" was limited to the "militia." See 554 U.S. at 579-83, 585-86, 128 S.Ct. 2783. This contradiction alone would be a sufficient reason to reject the majority's assertion that the Second Amendment encompasses no individual right to self-defense in public.
b
But the flaws of the majority's structural argument run deeper than its incompatibility with Heller.
The heart of the majority's argument is the proposition that "[t]he states, in place of the king, assumed primary responsibility" for "securing what was formerly known as `the king's peace.'" Maj. Op. 815. The majority reasons that "maintaining the `king's peace' was the king's duty and, in the English view, the carrying of weapons in public areas was an affront to the king's authority." Id. at 816. This entire line of reasoning overlooks our Constitution's profound departure from English ideas about
What the majority overlooks is that our Constitution relocated the king's sovereignty not in American State or federal governments, but in "We the People of the United States." U.S. Const. pmbl. Indeed, copious volumes of scholarly ink have been spilled in showing that the Constitution's text, history, and structure converge on this conclusion.
With a proper conception of American popular sovereignty, it should be easy to see the irrelevance of "the English view" that "the carrying of weapons in public areas was an affront to the king's authority" insofar as it "suggested that the king was unwilling or unable to protect the people." Maj. Op. 816. For an English subject to "carr[y] arms publicly ... as a vote of no confidence in the king's ability to maintain [the public peace]" would be an affront to his sovereign. Id. But for an American citizen to carry arms publicly could be no such thing. The American citizen, in contrast with the English subject, is a constituent part of a free and sovereign people, whom state governments serve as agents. Indeed, the "principal object" of our Constitution was not to grant "new rights" from government to the people, but rather to "secur[e]" against the government "those rights" we already possess by nature. 1 Wilson, supra, at 1053-54. It is thus emphatically the prerogative of the American citizen to give a "vote of no confidence" in state governments' exercise of those powers delegated from the sovereign people themselves. See, e.g., Chisholm, 2 U.S. (2 Dall.) at 472; 4 Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution 9 (1888) ("The people are known with certainty to have originated [our government] themselves. Those in power are their servants and agents; and the people, without their consent, may new-model their government whenever they think proper...." (statement of James Iredell)).
For the same reason, the majority's suggestion that the values of federalism somehow preclude the Second Amendment from guaranteeing an individual right to carry arms for self-defense in the public square is fundamentally misguided. The majority's argument is essentially this: As between the federal government and the states, the Constitution gave the states "primary responsibility" for "maintaining the public peace." Maj. Op. 814-15. And in turn, "[i]t would be anomalous in the extreme if, having gone to the trouble of spelling out the respective responsibilities of the new
The majority's argument begs the very question which must be answered. To be sure, the "general police power" is "retained by the States," to the exclusion of any federal general police power. United States v. Lopez, 514 U.S. 549, 567, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). So we know that states generally have primacy over the national government for protecting the public peace. But the question here is whether the State governments were understood to exercise a "duty to protect [their] citizens," Maj. Op. 818, that also excludes the citizens' fundamental right to protect themselves. The relative division of governmental powers between the federal and State governments provides no answer to this question at all. And the majority's premise—that the states' constitutional power to protect the public was conferred to the exclusion of citizens' own right to self-defense—is unmoored from the text and structure of the Constitution; contravenes the lessons of Heller; is desperately ahistorical, for reasons already discussed at length; and cannot be squared with the first principles of American popular sovereignty.
III
Accordingly, the majority is wrong to conclude that H.R.S. § 134-9 does not implicate the right to bear arms whatsoever. Because the statute clearly does tread upon conduct protected by the Second Amendment, the next step must be to analyze it under an "appropriate level of scrutiny." Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014). In the framework developed by our court following Heller, the first question in determining the appropriate level of scrutiny is this: Does the right of an ordinary citizen to bear arms openly in public for purposes of self-defense fall within the "core" of the Second Amendment—or does it lie somewhere else, at the periphery of the Amendment's guarantees? See id. at 960-61.
The Second Amendment's text, history, and structure, and the Supreme Court's reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right. At the risk of repeating myself (though it does, apparently, bear repeating), the Second Amendment safeguards both the right to keep a firearm and the right to bear—or to carry—that firearm. Neither the text of the Amendment nor its historical interpretations suggests that either right has priority over the other. The obvious inference one should draw is that there is no pecking order between the "core" status of the Amendment's expressly enumerated guarantees.
Indeed, Heller made clear that the "central" purpose undergirding the Second Amendment is "the inherent right of self-defense."
More fundamentally, a great deal of Heller's analysis reflects an abiding concern for the inherent right to defend one's person, not just one's home. For example, the Court cited (without reference to the home) "at least seven [state constitutional provisions that] unequivocally protected an individual citizen's right to self-defense," which is "strong evidence that that is how the founding generation conceived of the right." 554 U.S. at 603, 128 S.Ct. 2783. Also without any reference to the home, Heller noted that "[a]ntislavery advocates routinely invoked the right to bear arms for self-defense." Id. at 609, 128 S.Ct. 2783. Charles Sumner's famous "Bleeding Kansas" speech, quoted at length in Heller, can hardly be read without sensing its vociferous declaration that the Second Amendment's core reaches self-defense on the wide open spaces of the American frontier: "Never was this efficient weapon [the rifle] more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached." Id. (quoting Charles Sumner, The Crime Against Kansas, May 19-20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606-07 (T. Widmer ed. 2006)); see also McDonald, 561 U.S. at 775, 130 S.Ct. 3020 ("[O]ne of the `core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to ... affirm the full and equal right of every citizen to self-defense.'" (quoting Amar, Bill of Rights, supra, at 264-65)).
Perhaps most tellingly, the Court in Heller ultimately likened the constitutional repugnance of restrictions on keeping arms inside the home with that of restrictions on bearing arms outside the home. In striking down the District of Columbia's ban on handgun possession in the home, Heller observed that the only restrictions that had historically "come close" to such a "severe" measure were laws that unconstitutionally restricted the open carry of firearms outside the home in some states. 554 U.S. at 629, 128 S.Ct. 2783 (citing Nunn, 1 Ga. at 251; Andrews, 50 Tenn. (3 Heisk.) at 187; Reid, 1 Ala. at 616-17).
Thus, there can be no avoiding Heller's —and McDonald's—admonition that the Second Amendment guarantees the individual right "to use handguns for the core lawful purpose of self-defense." McDonald, 561 U.S. at 768, 130 S.Ct. 3020
IV
Because the right to carry a handgun openly for self-defense lies within the "core" of the Second Amendment, Hawaii faces a steep burden in its attempt to justify the constitutionality of section 134-9. Under our court's framework, if Hawaii's law "amounts to a destruction" of the core right, it must be held "unconstitutional under any level of scrutiny." Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). And if it severely burdens (but does not destroy) the core right, it still "warrants strict scrutiny." Id.
Though it is doubtful whether Hawaii could prevail under either standard, the unavoidable reality is that Hawaii's severe deprivation of the core right to carry a firearm in public can only be understood as amounting to a total destruction of such right. It is thus necessarily unconstitutional.
A
Section 134-9 limits the open carry of firearms to people "engaged in the protection of life and property," H.R.S. § 134-9(a), i.e., "private detectives and security guards," as defined by the County of Hawaii's implementing regulations, see Police Dep't of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and Unconcealed Weapons 1 (Oct. 22, 1997). Even those lucky few may carry firearms only when "in the actual performance of [their] duties." Id. at 10. There can be little question that the core Second Amendment rights of Hawaii residents are effectively destroyed by such severe restrictions on who may openly carry a firearm.
Because the Second Amendment protects the right of individuals, not groups of individuals, to keep and to bear arms, Heller, 554 U.S. at 595, 128 S.Ct. 2783, the relevant question is the extent to which a law restrains the rights of a typical, law-abiding citizen. Wrenn, 864 F.3d at 665 ("[I]f the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class."). And section 134-9 all but eliminates the right to open carry for such citizens. To restrict open carry to those whose job entails protecting life or property is, necessarily, to restrict open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only as an on-duty militia member, it surely does not protect a right to bear arms only as an on-duty security guard. The typical, law-abiding citizen in the State of Hawaii is therefore all but foreclosed from exercising the core Second Amendment right to bear unconcealed arms for self-defense.
It follows that section 134-9, by its own terms, "amounts to a destruction" of a core right and is therefore infirm "[u]nder any of the standards of scrutiny." See Heller, 554 U.S. at 628-29, 128 S.Ct. 2783. The County may not constitutionally enforce section 134-9's limitation on the open carry of firearms to those "engaged in the protection of life and property."
Counsel for the County acknowledged as much at oral argument before the three-judge panel in this case, stating that, to his knowledge, no one other than a security guard—or someone similarly employed— had ever been issued an open-carry license. Hawaii's Attorney General, in a September 2018 Opinion Letter on this very subject, likewise failed to provide evidence that any of Hawaii's counties had ever issued an open-carry permit to even a single person not employed in the security profession. See generally State of Haw., Dep't of Att'y Gen., Opinion Letter No. 18-1, Availability of Unconcealed-Carry Licenses (Sept. 11, 2018) [hereinafter Opinion Letter 18-1]. And the State has not shown that it has taken any action to remedy the putatively "incorrect" interpretation of section 134-9 that continues to be enforced in Hawaii County and throughout the state. Indeed, it appears that no carry licenses have been issued to private, non-security guard citizens anywhere in the State since the issuance of the State's 2018 Opinion Letter. See State of Haw., Dep't of Att'y Gen., Firearm Registrations in Hawaii, 2019, at 9 (Mar. 2020), https://ag.hawaii.gov/cpja/files/2020/03/Firearm-Registrations-in-Hawaii-2019.pdf; State of Haw., Dep't of Att'y Gen., Firearm Registrations in Hawaii, 2018, at 9 (May 2019), https://ag.hawaii.gov/cpja/files/2019/05/Firearm-Registrations-in-Hawaii-2018.pdf.
In the County of Hawaii, the historical dearth of open-carry permits for private citizens is no mere "pattern or practice." It is a matter of official policy. Again, in its 1997 regulations implementing section 134-9's open-carry permitting regime, the County created an application process that is open only to "private detectives and security guards." Police Dep't of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses to Carry Concealed and Unconcealed Weapons 1 (Oct. 22, 1997).
B
In the face of this damning factual record, both Hawaii and the majority urge that we should simply look the other way.
No thanks!
1
For its part, Hawaii argues that its actual enforcement of the statute is irrelevant because "the meaning of a state statute is determined by its text, not by how a local government supposedly applies it." The
2
Similarly, the majority contends that we may not consider the enforcement history of H.R.S. § 134-9 because Young has supposedly forfeited any as-applied challenge to the statute, limiting our review "to the text of the statute itself." See Maj. Op. 778-81. This is simply wrong—and for several reasons.
For starters, the majority's premise that Young's complaint outlined only a "facial" challenge to the statute is dubious. Young's complaint challenged far more than the theoretical facial validity of section 134-9. Unlike in many facial challenges, here section 134-9 has actually been enforced against Young, and he claims that such enforcement—i.e., the denial of his applications for an open-carry permit—violated the Second Amendment. Indeed, Young alleged that his Second Amendment rights had been violated by the "[c]ombined" statutes, regulations, and actions of "the State of Hawaii, County of Hawaii[,] and the Hawaii County Police Department and its Chief of Police." More specifically, he alleged that the County had unconstitutionally denied his permit applications even though they "stat[ed] the purpose being for personal security, self-preservation and defense," and he contended that carry permits had been made available only to those who were "employed by a licensed private security company."
Further, we cannot lose sight of the fact that Young filed his complaint pro se— and, as the Supreme Court has instructed, "[a] document filed pro se is `to be liberally construed,' and `a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)) (citations omitted). Here, Young's pro se complaint stated clearly, if inartfully, his theory that his Second Amendment rights were violated by the combined effects of H.R.S. § 134-9 and the County's actual enforcement thereof. Such a claim is clearly sufficient to put the State and County's record of enforcement of section 134-9 at issue.
More fundamentally, the majority's contrary conclusion relies on the erroneous notion that there is a bright-line categorical distinction between facial and as-applied challenges. The Supreme Court has cautioned that "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. The distinction... goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (emphasis added); see also Bucklew v. Precythe, ___ U.S. ___, 139 S.Ct. 1112, 1128, 203 L.Ed.2d 521 (2019) ("The line between facial and as-applied challenges can sometimes prove `amorphous' and `not so well defined.'" (citations omitted)); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1324 (2000) ("[T]here is no single distinctive category of facial, as opposed to as-applied, litigation. Rather, all challenges to statutes arise when a particular litigant claims that a statute cannot be enforced against her.... [I]t is more misleading than informative to suggest that `facial challenges' constitute a distinct category of constitutional litigation."). Indeed, whether a constitutional challenge is described as "facial" or "as-applied" "does not speak at all to the substantive rule of law necessary to establish a constitutional violation." Bucklew, 139 S. Ct. at 1127 (emphasis added). And, at least in the First Amendment context— which guides our analysis of "the extent to which a challenged prohibition burdens the Second Amendment right," Jackson, 746 F.3d at 961—even where the bare text of a statute is theoretically capable of competing constructions, we analyze a "facial" attack to the statute in light of how it has actually been interpreted and applied. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) ("In evaluating [a] facial challenge, we must consider the county's authoritative constructions of the ordinance, including its own implementation and interpretation of it."); Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).
Regardless of its particular phrasing, the essence of Young's claim is unquestioned: He contends that the State and County of Hawaii have enacted and enforced against him sweeping prohibitions on ordinary, non-security-guard citizens' right to carry a firearm openly in public, in violation of the Second Amendment. That claim necessarily questions not only the nature of the statute that Hawaii enacted but moreover how that statute has been
C
So, at least as informed by the draconian enforcement history of section 134-9, such law unquestionably destroys ordinary Hawaiians' freedom to carry a handgun for self-defense in public. But that understates the point. For even if we chose to ignore the enforcement history showing that the County has never issued an open-carry permit to a non-security-guard citizen, section 134-9 would still be unconstitutional on its terms.
The Second Amendment protects "the right of the people to keep and bear Arms"—not the right of a select group of "exceptional" people to keep and bear arms. U.S. Const. amend. II (emphasis added). And in Heller, the Court left no doubt that "the people" refers to "all Americans." 554 U.S. at 580-81, 128 S.Ct. 2783. "[I]f the Amendment is for law-abiding citizens as a rule, then it must secure gun access at least for each typical member of that class." Wrenn, 864 F.3d at 665. Indeed, although "certain weapons or activities [may] fall outside the scope of the" Second Amendment, "certain people" do not. Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting).
Thus, for Hawaii's measure to be constitutional, at the very least, it must not destroy the right of the typical, law abiding citizen to carry a gun in public for self-defense. By its very terms, section 134-9 plainly does just that—and does so even if we set aside its requirement that firearms carriers be "engaged in the protection of life and property." The language of the statute allows only those individuals who can show "an exceptional case" or special "urgency" to be eligible to carry a gun. H.R.S. § 134-9(a).
In short, no matter how much one cares to look to H.R.S. § 134-9's troubling and well-documented enforcement history, we cannot escape the conclusion that it is "unconstitutional under any level of scrutiny." Jackson, 746 F.3d at 961.
V
The Second Amendment's text, history, and structure—as interpreted in light of the Supreme Court's binding precedents— all converge on an unequivocal conclusion: At its core, the Second Amendment protects the ordinary, law-abiding citizen's right to carry a handgun openly for purposes of self-defense outside the home.
Despite an exhaustive historical account, the majority has unearthed nothing to disturb this conclusion. At most, and after great length, the majority arrives at the unexceptional observation that the lawful manner of open carry has historically been regulated in varying and limited ways (for example, by prescribing particularly dangerous guns that may not be carried or particularly sensitive places into which guns may not be carried). But nothing in the history—both by my own read and as reported by the majority itself—suggests that the mere presence of some regulation of open carry was understood to negate the underlying status of the right to open carry, or to mean that such right could be altogether extinguished for the typical law-abiding citizen. The majority cites nothing that could justify such an extravagant interpretation of the record of gun regulation in this country, and I do not share the majority's eagerness to impart one by ipse dixit.
Most alarming is the conjunction of today's holding and our court's earlier holding that the concealed carry of firearms in public is not protected by the Second Amendment "in any degree." See Peruta v. County of San Diego, 824 F.3d 919, 939 (9th Cir. 2016) (en banc). For the more than 60 million people within the nine western states of this circuit, the combined effect of these two opinions is to remove all forms of public carry—whether open or concealed—from the protections of the Second Amendment. In so doing, our circuit has not merely demoted "the right of the people to ... bear Arms," U.S. Const. amend. II, to the status of "a second-class right" but has extinguished its status as a right altogether. See McDonald, 561 U.S. at 780, 130 S.Ct. 3020 (plurality op.). It is
Accordingly, and for the reasons expressed above, I would hold that both H.R.S. § 134-9 and the 1997 County regulation destroy the core right to carry a gun for self-defense outside the home and are "unconstitutional under any level of scrutiny." Jackson, 746 F.3d at 961.
To be sure, I do not reach this conclusion without appreciation for the real and serious problem of gun violence—a problem which I do not take lightly, and which the State of Hawaii "has understandably sought to fight ... with every legal tool at its disposal." Wrenn, 864 F.3d at 667. And nothing in my analysis would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State with "a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns." Heller, 554 U.S. at 636, 128 S.Ct. 2783. Yet, for better or for worse, the Second Amendment does protect a right to carry a firearm openly for self-defense in public—and Hawaii's near complete ban on the open carry of handguns cannot stand.
I cannot join an opinion that would flout the Constitution by holding, in effect, that "in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion." Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller, 554 U.S. at 636, 128 S.Ct. 2783.
I most respectfully dissent.
R. NELSON, Circuit Judge, with whom CALLAHAN and IKUTA, Circuit Judges, join, dissenting:
I concur with Judge O'Scannlain's dissent concluding that Hawaii Revised Statute 134-9 violates the Second Amendment. If the statute is facially unconstitutional, it is also unconstitutional as-applied. See, e.g., Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1207 n.1 (9th Cir. 2010). The majority, however, errs not only in holding the statute facially constitutional, but also in rejecting Young's as-applied challenge. See Hargis v. Foster, 312 F.3d 404, 410, 412 (9th Cir. 2002) (noting the "inquiry does not end with [a] facial analysis" and reversing and remanding on the as-applied challenge).
The majority summarily dismisses Young's Second Amendment as-applied claim with far less respect than we have given other constitutional claims. See McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality opinion) (recognizing the Second Amendment is not a "second-class" constitutional right). Indeed, the majority's holding that Young failed to plead an as-applied challenge may be its longest lasting legacy, as it effectively reverses several of our prior cases. It will preclude a host of future as-applied constitutional challenges under the First, Fourth, Fifth, and Eighth Amendments previously recognized by this court—especially for pro se civil rights plaintiffs. The majority should have at least remanded for the district court to address Young's as-applied challenge or allow him to amend his complaint.
I also write separately to highlight the brazenly unconstitutional County of Hawaii ("County") Regulations applying H.R.S. § 134-9. There should be no dispute that any law or regulation that restricts
I
Young brought both a facial and an as-applied challenge to H.R.S. § 134-9 and the County Regulations. He sought general relief —asking to strike down the statute— but also personal relief—requesting to be granted a firearm permit. Moreover, he explicitly preserved his as-applied challenge in his complaint, opposition to the motion to dismiss, and on appeal.
The district court erred by dismissing Young's complaint with prejudice while mischaracterizing his separate as-applied claim and not allowing him to amend his complaint. And the majority errs in concluding Young failed to plead an as-applied challenge. Young's complaint pleaded that under H.R.S. § 134-9 and the County Regulations he was denied a firearm permit because he was not a security guard. The majority should have, at a minimum, vacated the district court's order and remanded for the district court to address the as-applied challenge in the first instance or to allow Young to amend his complaint.
As a threshold matter, Young was pro se when he litigated the motion to dismiss before the district court;
This benefit of the doubt applies with even greater force when considering whether a claim raises a facial challenge, an as-applied challenge, or both. See Real v. City of Long Beach, 852 F.3d 929, 934 (9th Cir. 2017) (considering both facial and as-applied challenges even where appellant "did not clearly state to the district court whether his challenge was as-applied or facial");
This benefit of the doubt has greater force because "[t]he line between facial and as-applied challenges can sometimes prove `amorphous.'" Bucklew v. Precythe, ___ U.S. ___, 139 S.Ct. 1112, 1128, 203 L.Ed.2d 521 (2019) (quoting Elgin v. Dep't of Treasury, 567 U.S. 1, 15, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012)). "The label is not what matters." John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (noting whether the words "as-applied" were used in a complaint is not determinative). A claim can "obviously ha[ve] characteristics of both" types of challenges. Id. And "[a]s-applied challenges ... may be coupled with facial challenges."
Rather, the "distinction ... goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint." Id. (citation omitted). A court should look at the "claim and the relief that would follow" to determine the type of claim brought. See John Doe No. 1, 561 U.S. at 194, 130 S.Ct. 2811. And a court should consider different types of challenges as the "exercise of its judicial responsibility" demands. See Citizens United, 558 U.S. at 333, 130 S.Ct. 876. Thus, this court must look to the substance of the complaint and the remedy to identify what type of claims are brought. See Isaacson v. Horne, 716 F.3d 1213, 1230 (9th Cir. 2013). The majority effectively overturns our precedents and ignores Supreme Court direction to establish a new vague standard for pleading an as-applied challenge. See Maj. Op. at 779-80, 780-81.
Under long-standing precedent, there is ample support that Young's pro se complaint alleges both a facial and an as-applied
As just a few examples, Young alleges:
And in his opposition to the motion to dismiss, Young explicitly challenged H.R.S. § 134-9 both "on its face and or the application thereof," showing his intent to bring both a facial and an as-applied challenge. Young also argues on appeal:
Young thus "brings a paradigmatic as-applied challenge, arguing that it is unconstitutional to apply the [Hawaii statute and County Regulations] to him because, given all the circumstances, his ability to" exert his Second Amendment rights is "unduly constricted." Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011).
Despite these plain and consistently detailed allegations and arguments, the majority asserts Young's as-applied challenge is "[a]t best ... buried in his complaint and not well pleaded." Maj. Op. at 780. It holds that Young's arguments, presented repeatedly throughout Young's complaint, opposition to the motion to dismiss, and on appeal, are not "specific[ ] and distinct[ ]" enough to permit review.
The majority thus offhandedly establishes a new heightened pleading standard for pro se civil rights litigants that is both legally unfounded and practically concerning. Maj. Op. at 780-81. The 35-year old case it cites to support this proposition, Miller v. Fairchild Industries, Inc., involved a represented party's appellate brief, not a pro se litigant's first un-amended civil rights complaint. 797 F.2d 727, 738 (9th Cir. 1986). Whether this heightened standard might be expected of seasoned counsel, we have never applied it to pro se citizens seeking to vindicate their constitutional rights.
Consider what this holding of the en banc court means: any time a government agency hides behind an opaque policy to deny someone a constitutional right, a pro se litigant is held to some rigorous yet herein undefined pleading standard to even have his challenge considered in the first place. The majority holding thus overrules many prior panel opinions and ignores Supreme Court precedent. If Young's pleadings here are insufficient even to warrant consideration in deciding a motion to dismiss, then a host of pleadings in our prior cases are now no longer sufficient either. See, e.g., Real, 852 F.3d at 934; Kaczynski, 551 F.3d at 1124; supra at 862-63.
Indeed, the district court itself recognized that Young challenged the statute as-applied, noting "Plaintiff requests an injunction against the enforcement of HRS Chapter 134." Young v. Hawaii, 911 F.Supp.2d 972, 984 (D. Haw. 2012). But the district court "erroneously treated the as-applied challenge brought in this case as a facial challenge," Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009), concluding Young "is actually challenging the constitutional validity of Hawaii's Firearm Carrying Laws...." Young, 911 F. Supp. 2d at 984. In reality, Young properly pleaded both an as-applied and a facial challenge.
The district court erred by dismissing Young's claim without considering whether he pleaded sufficient facts to support his as-applied challenge. See La. Mun. Police Emps.' Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) ("[C]ourts ruling on a motion to dismiss `must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss....'" (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007))). "To the extent that the district court considered [Young's] complaint to rest on a facial, rather than an as-applied challenge,... it erred." See Hoehne v. Cnty. of San Benito, 870 F.2d 529, 534 (9th Cir. 1989).
Moreover, the majority faults Young, a pro se litigant, for not pursuing reconsideration instead of appeal. Maj. Op. at 779. Yet we have never required even a represented party, let alone a pro se party, to seek reconsideration to preserve an argument for appeal. The majority acknowledges that Young was not required to seek reconsideration, but nonetheless faults him for choosing to immediately appeal. Maj. Op. at 779-80 & n.5.
The majority punishes Young for asking us to review de novo the district court's order viewing all allegations in the light most favorable to him, instead of first attempting to convince the district court his case fell under the "highly unusual circumstances" warranting reconsideration. See Guenther v. Lockheed Martin Corp., 972 F.3d 1043, 1058 (9th Cir. 2020) (citation omitted). The majority thus suggests Young should have "relitigate[d] old matters" before appealing, or else risk forfeiting his as-applied challenge. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citation omitted).
Again, consider what this holding means. A pro se plaintiff repeatedly raises an as-applied challenge in his complaint and opposition to a motion to dismiss; it is recognized by the district court, but then erroneously categorized only as a facial challenge upon final judgment. And we fault the pro se civil rights litigant for immediately appealing the final judgment instead of pursuing reconsideration. The majority's conclusion lacks both legal authority and equitable justification.
But the majority apparently did reach the issue, holding that Young "never pleaded facts to support an as-applied challenge." Maj. Op. at 779. The majority's holding again disregards Supreme Court precedent.
Young's complaint alleged "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Young challenged how the County applied the statute to deny his permit application in June 2012. His allegations were plausible based on the County Regulations and legal grounds as reasonably understood at the time he filed his complaint—alleging he had applied but was not granted a permit because he was not a security guard, as required by the County Regulations. For example, Young:
Young pleaded he met the requirements of H.R.S. § 134-9 in all other respects, including the provision of being "engaged in protection of life and property," H.R.S. § 134-9, because he "applied for a personal permit, in accordance with Hawaii Revised Statute (H.R.S.) 134-9(a)(c), ... stating the purpose being for personal security, self-preservation and defense, and protection of personal family members and property."
Even under the majority's view, we should have—at a minimum—remanded to allow Young to amend his complaint. See Fed. R. Civ. P. 15 (courts "should freely give leave [to amend] when justice so requires"). Indeed, Hawaii specifically suggested this court remand to allow Young to amend his complaint. "Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality," Price v. Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000) (internal quotation marks and citation omitted), "guided by the underlying purpose of Rule 15—to facilitate decision on the merits rather than on the pleadings or technicalities," Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) (internal quotation marks and citation omitted).
Thus, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (emphasis added) (internal quotation marks and citations omitted). Indeed, a "pro se litigant [is] entitled to procedural protections, including [the] right to amend [a] complaint unless futile." Eldridge, 832 F.2d at 1136 (emphasis added) (citation omitted); see also Houghton v. South, 865 F.2d 264 (9th Cir. 1988) (unpublished) (holding that the "policy of liberality under Rule 15 for pro se plaintiffs" means "the district court should have allowed Houghton to supplement his complaint ... on remand from the first appeal" to "allege[ ] an `as applied' challenge"). Remand is particularly warranted here since Young has challenged the operative County Regulations. Given the changed legal circumstances, including Hawaii's recent AG Opinion, Young is more than entitled to amend his complaint.
Young's as-applied challenge should not have been ignored by the district court or the majority to "foreclose a future as applied challenge."
The district court's failure to consider the as-applied challenge separately, even after dismissing the facial challenge, was error. The majority compounds this error by refusing to remand the case to allow consideration—or amendment—of an as-applied challenge. See Norse v. City of Santa Cruz, 629 F.3d 966, 970 (9th Cir. 2010) (en banc) (noting we have rejected a facial challenge but remanded the as-applied challenge); Menotti v. City of Seattle, 409 F.3d 1113, 1156 (9th Cir. 2005) (rejecting the facial challenges but reversing and remanding the as-applied challenge). In doing so, the majority errs by not "exercis[ing] ... its judicial responsibility" and considering the as-applied challenge. See Citizens United, 558 U.S. at 333, 130 S.Ct. 876.
II
Though consideration of the as-applied challenge is better left to the district court, the plain unconstitutionality of the County Regulations governing Young's application for a firearm permit warrants mention. In 1997, the County promulgated its Regulations governing its issuance of firearm licenses under H.R.S. § 134-9. Police Dep't of Cnty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. 22, 1997). Hawaii does not dispute that the County Regulations remain on the books. The County may choose to enforce them at any time.
Hawaii's counsel at en banc oral argument argued the AG Opinion (issued six years after Young filed his complaint) controls to the extent the County Regulations are inconsistent with the AG Opinion. And Hawaii asserts that this court should defer to the County's interpretation of its own Regulations.
There has been no preemption under Hawaii state law here and the non-binding AG Opinion does not control, despite the majority's suggestion to the contrary. Contra Maj. Op. at 775-77. "[A] municipal ordinance may be preempted pursuant to HRS § 46-1.5(13) if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law." Richardson v. City & Cnty. of Honolulu, 868 P.2d 1193, 1209 (Haw. 1994). There is no express preemption clause in the state statute at issue here, nor any clear intent to preempt regulations such as the County's. See generally H.R.S. § 134 et seq.; see also Syngenta Seeds, Inc. v. Cnty. of Kauai, 842 F.3d 669, 675 (9th Cir. 2016) ("[T]he Hawaii Supreme Court has presumed that a county's exercise of police power is within
The parties do not argue such preemption exists either.
Furthermore, deferring to the County's interpretation of its own Regulations advanced in its amicus brief is not warranted under the "limits inherent" in administrative law doctrine. See Kisor, 139 S. Ct. at 2415. Deference is proper only when an agency's interpretation of its own regulations survives a gauntlet of conditions. First, the regulations must be "genuinely ambiguous." Id. (citations omitted). Second, the agency's interpretation must be "reasonable." Id. (citation omitted). Third, "a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight." Id. at 2416 (citations omitted). Fourth, "the agency's interpretation must in some way implicate its substantive expertise." Id. at 2417. "Finally, an agency's reading of a rule must reflect fair and considered judgment...." Id. (internal quotation marks and citations omitted). An interpretation that is a "convenient litigating position" or a "post hoc rationalizatio[n]" does not merit deference. Id. (internal quotation marks and citation omitted). "The general rule, then, is not to give deference to agency interpretations advanced for the first time in legal briefs." Id. at 2417 n.6 (citation omitted). The County's interpretation does not meet any of these requirements. Thus, the County's interpretation, "advanced for the first time" in its amicus brief, is not worthy of any deference. See id.; Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155-56, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012).
An independent review of how the County Regulations have "been interpreted and applied by local officials" demonstrates the County unconstitutionally enforces H.R.S. § 134-9 through its Regulations. See Calvary Chapel, 948 F.3d at 1177. The County Regulations were promulgated to govern "the granting of authorization for the carrying of weapons as provided by section 134-9, Hawaii Revised Statutes." And the County Regulations' title, "Rules and Regulations Governing the Carrying of Concealed Weapons and the Carrying of Weapons by Private Detectives and Security Guards," explicitly applies H.R.S. § 134-9 only to certain occupations. Under the County Regulations, then, open carry is proper only when the license-holder is "in the actual performance of his duties or within the area of his assignment."
III
Even if the Hawaii statute were facially constitutional as the majority holds, Young's challenge should be remanded to address or develop the as-applied challenge. Therefore, I respectfully dissent.
FootNotes
Young's lengthy and rambling complaint focused on firearms. Nevertheless, in the relief section, Young referred to other arms, "e.g., stun gun, tasers, mace spray, switch blade etc." He did not raise these in any briefing before the district court. In his panel briefing, Young, for the first time, referred to Hawai`i's prohibitions on the possession of electric guns, HRS § 134-16; switchblades, id. § 134-52; and butterfly knives, id. § 134-53. He also argued that Hawai`i prohibits the carrying of rifles and shotguns publicly, id. § 134-23, § 134-24, in violation of the Second Amendment. He did not raise these arguments in his supplemental briefing after we granted en banc review. Because Young did not raise these arguments properly before the district court, we deem them forfeited.
The expansion of the king's peace began in the eleventh century. At first, the king extended his peace to the three-mile radius surrounding his court. Id. That expansion continued through the fourteenth century and was especially strong in areas of special importance to the king. Id. at 106. The king could also extend his peace to any individuals who were on his errand or otherwise needed the king's blessing, and "[a]ny assault on them in their travels would be regarded as a direct affront to the king's own personal peace, as if it had happened in his residence." Id.
Over time, the king's peace expanded so significantly that it became the general peace. This "movement of absorption" has "long since practically concluded in England." Lefroy, 26 Yale L.J. at 389. As the king's peace extended to a larger portion of the kingdom, it increased both the king's responsibility to protect his subjects and his jurisdiction to punish wrongdoers. Id. ("The violation of the king's peace was the original offence from which the jurisdiction of the sovereign in criminal matters arose."). "Slowly the idea of a `general peace' embracing the `peace' of the various customary jurisdictions was evolved." Id.; see Feldman, 47 Cambridge L.J. at 107 ("It was the Norman kings who used the idea of the king's peace as a means of extending their jurisdiction at the expense of local courts.").
When the king's justices of the peace tried criminal matters, those matters were tried as an offense against the king. "In modern pleading [in the United States], the phrase `against the peace of the commonwealth' or `of the people' is used." Contra pacem, Black's Law Dictionary (rev. 4th ed., 1968). Hence, our cases are charged as an offense against the "United States" or the "State."
The surety of the peace was administered by the Keepers (Justices) of the Peace and was employed to keep the king's peace in areas where a centralized police force did not exist. The surety of the peace followed an accusation by someone that an individual would likely violate the law in the future. It was either a money payment or pledge by others "in support of his future good conduct." Id. at 104. See Kopel, 14 Geo. J. L. & Pub. Pol'y at 131 n.14 (citing Y.B. Trin. 14 Hen. 7 (1499), reported in Y.B. 21 Henry 7, fol. 39, Mich., pl. 50 (1506) ("Anonymous." No case name) ("[A] man's house is his castle and defense," but "if one were threatened that if he should come to such a market ... he should there be beaten, in that case he could not assemble persons to help him go there in personal safety, for he need not go there, and he may have a remedy by surety of the peace.")). The money payment (or the pledge by others) was released after a period of time in which the person did not violate the law.
North Carolina's reliance upon English law would prove to be controversial over the next century. In 1836, the North Carolina legislature explicitly repealed "all the statutes of England or Great Britain" in use in the state, 1 N.C. Rev. Stat. 52-53, ch. 1, § 2 (1837), which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein. State v. Huntly, 25 N.C. 418, 420-21 (1843). Citing Blackstone and Hawkins, the court concluded that the statute's prohibitions "[had] been always an offen[s]e at common law." Id. at 421 (citation and emphasis omitted).
In 1877, the Georgia Constitution was revised again, and the right to bear arms lost its prefatory clause. Ga. Const. of 1877, art. I, § 1, para. XXII ("The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe, the manner in which arms may be borne."). In Strickland, the Georgia Supreme Court upheld against a state constitutional challenge a law requiring a license for any person to "carry[] about his person" a pistol or revolver. 72 S.E. at 260. The court cited the Statute of Northampton and other English sources. The court observed that "no one will contend that children have a constitutional right to go to school with revolvers strapped around them, or that men and women have a right to go to church, or sit in the courtrooms, or crowd around election precincts, armed like desparadoes, and that this is beyond the power of the Legislature to prevent." Id. at 264.
Though Buzzard did not involve open carry, the court's reasons for upholding the statute reveal an expansive understanding of the legislature's authority to regulate public-arms carriage. In the court's view, "if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy." Id. at 21 (op. of Ringo, C.J.).
The Supreme Court has further explained:
Cong. Globe, 39th Cong., 1st Sess. 2459 (1866).
As equality provisions, the Privileges or Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment guaranteed that all citizens would enjoy the same rights as "white citizens," including Second Amendment rights. But those provisions do not tell us anything about the substance of the Second Amendment, any more than an equal right to enter into contracts or inherit property tells us whether the state may alter the Statute of Frauds or the Rule Against Perpetuities, so long as it does so for all citizens.
Emblematic of these efforts was an 1865 law in Mississippi that declared, "no freedman, free negro or mulatto ... shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife." Id. at 771 (majority opinion) (quoting Certain Offenses of Freedmen, 1865 Miss. Laws 165, § 1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed. 1950)). The law was vigorously enforced. As an 1866 letter from Rodney, Mississippi, to Harper's Weekly lamented, "[t]he militia of this county have seized every gun and pistol found in the hands of the (so called) freedmen.... They claim that the statute laws of Mississippi do not recognize the negro as having any right to carry arms." The Labor Question at the South, Harper's Weekly, Jan. 13, 1866, at 19, Seeking help from outside of the state, the letter emphasized that such Mississippi laws did "not protect, but insist[ed] upon infringing on their liberties." Id. Worse still, "[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 [newly free slaves]." McDonald, 561 U.S. at 856, 130 S.Ct. 3020 (Thomas, J., concurring in part and concurring in the judgment).
As with restrictions against the carrying of firearms in particular places, Abbott's approval of restrictions against using firearms in a particularly careless manner suggests that one would indeed have a right to carry them in ordinary and responsible ways.
The majority's fundamental gripe seems to be that the preceding analysis does not (as the majority has largely done) indiscriminately round up the sources cited in the parties' briefs, decline to consider whether some might merit greater weight than others, and then uncritically accept them all as equally instructive on the present question. It is precisely such an oversimplified view of "history" that ought to be avoided. Otherwise, we would risk falling into exactly the habit the majority wishes to avoid: practicing "law-office history," controlled by the parties' self-interested selection of historical evidence and analyzed without "proper evaluation of the relevance of the data proffered." Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 Sup. Ct. Rev. 119, 122 n.13, cited in Maj. Op. 785 n.7.
For example, the majority accepts the invitation of Hawaii's en banc brief to read Lord Coke as advocating the proposition "that the law did not allow public carry merely `for doubt of danger.'" See id. at 792-93; Edward Coke, The Third Part of the Institutes of the Laws of England 161 (London, R. Brooke 1797). But what Hawaii would pass off as a general maxim of English law is in fact a comment on the very particular and unusual case of Sir Thomas Figett. There, "doubt of danger" was held an insufficient defense for Figett's going armed "in the palace," and "before the justice[s] of the kings bench." Coke, supra, at 161-62 (emphasis added). Ironically enough, Figett did assert a "particularized" threat in seeking to justify his carrying of a weapon, stating that he had concrete reason to fear an attack from one "Sir John Trevet knight." Id. The failure of Figett's defense, then, had nothing to do with how "generalized" or "particularized" his interests in self-defense were, and everything to do with the fact that he had gone armed in uniquely "sensitive places" where carry was categorically prohibited. Cf. Heller, 554 U.S. at 626, 128 S.Ct. 2783.
Similarly, the majority reads Serjeant Hawkins as "recogniz[ing] that the.... desire for proactive self-defense was not a good enough reason to go armed openly." Maj. Op. 792. Yet this contradicts what Hawkins actually wrote. In the treatise relied upon by Hawaii and the majority, he expressly clarified that "no wearing of Arms is within the meaning of th[e] Statute [of Northampton]," even if "it be accompanied with such Circumstances as are apt to terrify the People," so long as one had "arm[ed] himself to suppress Rioters, Rebels, or Enemies" or "upon a Cry made for Arms to keep the Peace." Hawkins, supra, at 136 §§ 9-10. That is to say, Hawkins placed "generalized" and "particularized" interests in self-defense on equal footing.
Moreover, the majority makes much of the fact that the three-judge panel did not address Young's as-applied challenge. Maj. Op. at 780. But as the majority acknowledges, since the three-judge panel (rightfully) held the statute to be facially unconstitutional, the statute was "void in toto" and unconstitutional as-applied; thus, there was no need for the three-judge panel to address the as-applied challenge separately. See Maj. Op. at 779; Powell's Books, 622 F.3d at 1207 n.1.
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