Amicus Brief: Grace v. District of Columbia

Everytown for Gun Safety filed this amicus brief in the United States Court of Appeals for the District of Columbia Circuit to demonstrate that the District of Columbia’s public-carry law – which requires a showing of good cause or special need prior to issuance of a concealed carry license – does not violate the constitutional right to bear arms and is consistent with a centuries long Anglo-American tradition.

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ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 20, 2016
No. 16-7067
In the United States Court of Appeals
for the District of Columbia Circuit ____________________________
MATTHEW GRACE AND PINK PISTOLS,
Plaintiffs-Appellees,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants-Appellants.
_____________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASE NO. 1:15-CV-002234-RJL (THE HONORABLE RICHARD J. LEON)
____________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN
SUPPORT OF APPELLANTS AND REVERSAL
____________________________
ELIZABETH AVORE
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
July 13, 2016
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
[email protected]
Counsel for Amicus Curiae
Everytown for Gun Safety
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COMBINED CERTIFICATES
Certificate as to Parties, Rulings, and Related Cases
A. Parties and Amici. All parties, intervenors, and amici appearing before the
district court and this Court, as of the filing of this brief, are listed in the Brief for
Appellants, except for the following amici: DC for Democracy, DC Vote, The
League of Women Voters of the District of Columbia, Former Mayor Vincent C.
Gray, Former Mayor Anthony A. Williams, and the States of Maryland, California,
Connecticut, Hawai’i, Illinois, Iowa, Massachusetts, New York, Oregon, and
Washington.
B. Rulings under Review. References to the rulings under review appear in the
Brief for Appellants.
C. Related Cases. This particular case has not been before this Court before.
But a virtually identical challenge to the District of Columbia’s law concerning the
public carry of firearms, Wrenn v. District of Columbia, No. 1:15-cv-162, has
previously been before this Court (No. 15-7057), and is now before this Court
again (No. 16-7025).
Certificate of Amicus Curiae Under Circuit Rule 29(d)
Amicus Everytown for Gun Safety, the nation’s largest gun-violenceprevention
organization, has devoted substantial resources to researching historical
firearms legislation. This amicus brief is necessary to highlight the importance of the
relevant historical materials showing that the District of Columbia statute at issue
carries forward a seven-century Anglo-American tradition of restrictions on the
public carry of firearms. No other amicus brief contains this material.
Corporate Disclosure Statement
Everytown for Gun Safety has no parent corporations. It has no stock, and
hence, no publicly held company owns 10% or more of its stock.
/s/ Deepak Gupta
DEEPAK GUPTA
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
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TABLE OF CONTENTS
Combined certificates …………………………………………………………………………………… i
Table of authorities…………………………………………………………………………………….. iv
Introduction and interest of amicus curiae…………………………………………………………. 1
Background………………………………………………………………………………………………… 3
A. English history ……………………………………………………………………………… 3
1. Beginning in 1328, England broadly prohibits public carry
in populated areas …………………………………………………………………. 3
2. In the 17th and 18th centuries, English authorities interpret
the Statute of Northampton to prohibit public carry in
populated areas …………………………………………………………………….. 5
3. The law’s narrow exceptions confirm this general
public-carry prohibition …………………………………………………………. 7
4. The Statute of Northampton’s public-carry prohibition
remains fully in effect following the English Bill of Rights
of 1689…………………………………………………………………………………. 9
B. Founding-era American history…………………………………………………….. 10
1. The colonies begin importing England’s tradition of
regulating public carry into their own laws……………………………… 10
2. Many states enact laws mirroring the Statute of
Northampton both before and after the Constitution’s
adoption …………………………………………………………………………….. 11
C. Early-19th-century American history…………………………………………….. 14
1. Many states enact a variant of the Statute of Northampton,
allowing public carry with “reasonable cause to fear an
assault” ………………………………………………………………………………. 14
2. Taking a different approach, most southern states elect to
permit public carry, but only if the weapon is not concealed …….. 16
D. Mid-to-late-19th-century American history ……………………………………. 18
1. States continue to restrict public carry both before and after
the 14th Amendment’s ratification ………………………………………… 18
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2. Beginning immediately after the 14th Amendment’s
ratification, many legislatures enact laws banning public
carry in populated areas……………………………………………………….. 19
Argument…………………………………………………………………………………………………. 21
Because the District’s law carries forward a seven-century AngloAmerican
tradition of restricting public carry in populated areas, it is a
“longstanding,” constitutional regulation under Heller. ……………………………. 21
A. “Longstanding” laws are deemed constitutional under Heller
because they are consistent with our “historical tradition.” ………………. 22
B. The District of Columbia’s law has a centuries-long pedigree in
Anglo-American history and is therefore “longstanding” and
constitutional under Heller. …………………………………………………………… 24
Conclusion ……………………………………………………………………………………………….. 27
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TABLE OF AUTHORITIES*
Cases
Chune v. Piott,
80 Eng. Rep. 1161 (K.B. 1615)………………………………………………………………….. 6
* District of Columbia v. Heller,
554 U.S. 570 (2008) ………………………………………. 2, 3, 5, 6, 10, 21, 22, 23, 24, 25
Drake v. Filko,
724 F.3d 426 (3d Cir. 2013)…………………………………………………………………….. 23
Friedman v. Highland Park,
784 F.3d 406 (7th Cir. 2015)……………………………………………………………………. 25
* Heller v. District of Columbia,
670 F.3d 1244 (D.C. Cir. 2011) ……………………………………………….. 21, 22, 23, 27
Jackson v. City & County of San Francisco,
746 F.3d 953 (9th Cir. 2014)……………………………………………………………………. 22
King v. Hutchinson,
168 Eng. Rep. 273 (1784) ……………………………………………………………………….. 12
McDonald v. City of Chicago,
561 U.S. 742 (2010) ……………………………………………………………………………….. 17
Miller v. Texas,
153 U.S. 535 (1894) ……………………………………………………………………………….. 26
National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms,
& Explosives,
700 F.3d 185 (5th Cir. 2012)……………………………………………………………………. 23
Payton v. New York,
445 U.S. 573 (1980) …………………………………………………………………………………. 5
Peruta v. County of San Diego,
— F.3d —, 2016 WL 3194315 (9th Cir. June 9, 2016) ……………………………….. 24

* Authorities upon which we chiefly rely are marked with asterisks.
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Rex v. Sir John Knight,
90 Eng. Rep. 330 (K.B. 1686)……………………………………………………………………. 9
Semayne’s Case,
77 Eng. Rep. 194 (K.B. 1603)……………………………………………………………………. 8
Sir John Knight’s Case,
87 Eng. Rep. 75 (K.B. 1686)………………………………………………………………….. 8, 9
State v. Barnett,
34 W. Va. 74 (1890)………………………………………………………………………….. 19, 26
United States v. Chester,
628 F.3d 673 (4th Cir. 2010)……………………………………………………………………. 23
United States v. Marzzarella,
614 F.3d 85 (3d Cir. 2010)………………………………………………………………………. 23
United States v. Rene E.,
583 F.3d 8 (1st Cir. 2009) ……………………………………………………………………….. 23
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010)……………………………………………………………………. 23
American statutes
1686 N.J. Laws 289, ch. 9…………………………………………………………………………… 10
1694 Mass. Laws 12, no. 6………………………………………………………………………….. 11
1786 Va. Laws 33, ch. 21 …………………………………………………………………………… 12
1792 N.C. Laws 60, ch. 3 …………………………………………………………………………… 12
1795 Mass. Laws 436, ch. 2………………………………………………………………………… 12
1801 Tenn. Laws 710, § 6…………………………………………………………………………… 12
1821 Me. Laws 285, ch. 76, § 1 …………………………………………………………………… 12
1836 Mass. Laws 748, ch.134, § 16 ………………………………………………………… 14, 15
1838 Wisc. Laws 381, § 16………………………………………………………………………….. 15
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1841 Me. Laws 709, ch. 169, § 16 ……………………………………………………………….. 15
1846 Mich. Laws 690, ch. 162, § 16 …………………………………………………………….. 15
1847 Va. Laws 127, ch. 14, § 16……………………………………………………….. 15, 16, 26
1851 Minn. Laws 526, ch. 112, § 18……………………………………………………….. 15, 16
1852 Del. Laws 330, ch. 97, § 13…………………………………………………………………. 12
1853 Or. Laws 218, ch. 16, § 17………………………………………………………………….. 15
1854 Ala. Laws 588, § 3272………………………………………………………………………… 17
1859 N.M. Laws 94, § 2……………………………………………………………………………… 18
1861 Ga. Laws 859, § 4413 ………………………………………………………………………… 17
1861 Pa. Laws 248, 250, § 6 ……………………………………………………………………….. 15
1869 N.M. Laws 312, § 1………………………………………………………………………. 19, 20
1870 S.C. Laws 403, no. 288, § 4 ………………………………………………………………… 17
1870 W. Va. Laws 702, ch. 153, § 8 …………………………………………………………….. 18
1871 Tenn. Laws 81, ch. 90, § 1………………………………………………………………….. 17
1871 Tex. Laws 1322, art. 6512 ………………………………………………………………….. 19
1873 Minn. Laws. 1025, § 17 ……………………………………………………………………… 16
1875 Wyo. Laws 352, ch. 52, § 1 …………………………………………………………………. 20
1881 Ark. Laws 490, ch. 53, § 1907……………………………………………………………… 17
1881 Kan. Laws 92, ch. 37, § 23 …………………………………………………………………. 20
1889 Ariz. Laws 16, ch. 13, § 1……………………………………………………………………. 20
1889 Idaho Laws 23, § 1…………………………………………………………………………….. 20
1891 W. Va. Laws 915, ch. 148, § 7 …………………………………………………………….. 19
1901 Mich. Laws 687, § 8…………………………………………………………………………… 20
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1909 Tex. Laws 105…………………………………………………………………………………… 20
Act of Feb. 27, 1801, ch. 15, § 1, 2 Stat. 103…………………………………………………. 13
D.C. Code § 22-4506(a) ……………………………………………………………………………….. 1
American municipal ordinances
Checotah, Okla., Ordinance no. 11 (1890) …………………………………………………… 20
Dallas, Tex., Ordinance (1887)……………………………………………………………………. 20
La Crosse, Wis., Ordinance no. 14, § 15 (1880) …………………………………………….. 20
Los Angeles, Cal., Ordinance nos. 35-36 (1878) ……………………………………………. 20
McKinney, Tex., Ordinance no. 20 (1899) …………………………………………………… 20
Nashville, Tenn., Ordinance ch. 108 (1873)………………………………………………….. 20
Nebraska City, Neb., Ordinance no. 7 (1872)……………………………………………….. 20
New Haven, Conn., Ordinances § 192 (1890)……………………………………………….. 20
Rawlins, Wyo., Rev. Ordinances art. 7 (1893) ………………………………………………. 20
Salina, Kan., Ordinance no. 268 (1879)……………………………………………………….. 20
San Antonio, Tex., Ordinance ch. 10 (1899) ………………………………………………… 20
Syracuse, N.Y., Ordinances ch. 27 (1885)…………………………………………………….. 20
Washington, D.C., Ordinance ch. 5 (1857)…………………………………………………… 20
Wichita, Kan., Ordinance no. 1641 (1899) …………………………………………………… 20
English statutes and royal proclamations
13 Edw. 1, 102 (1285) ………………………………………………………………………………….. 4
7 Edw. 2, 170 (1313) ……………………………………………………………………………………. 4
* Statute of Northampton, 2 Edw. 3, 258, ch. 3 (1328) ……………………………….. 3, 24
25 Edw. 3, 320, ch. 2, § 13 (1351)………………………………………………………………….. 4
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34 Edw. 3, 364, ch. 1 (1360) ……………………………………………………………………….. 14
7 Ric. 2, 35, ch. 13 (1383) …………………………………………………………………………….. 4
20 Ric. 2, 93, ch. 1 (1396) …………………………………………………………………………….. 4
Calendar of the Close Rolls, Henry IV (Jan. 30, 1409)………………………………………… 9, 24
English Bill of Rights of 1689, 1 W. & M. st. 2. c. 2……………………………………….. 10
Books and articles
Joel Prentiss Bishop, Commentaries on the Criminal Law (1865) …………………………….. 14
Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes (1873) ………………… 12
William Blackstone, Commentaries on the Laws of England (1769)…………………… 6, 8, 10
Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013)………………………………… 21
John Bond, A Compleat Guide for Justices of the Peace (1707)…………………………………. 11
John Carpenter & Richard Whitington, Liber Albus: The White Book of the
City of London (1419) (1861 reprint) ……………………………………………………………… 9
Patrick J. Charles, The Faces of the Second Amendment Outside the Home,
60 Clev. St. L. Rev. 1 (2012)………………………………………………. 3, 5, 9, 11, 12, 24
Patrick J. Charles, The Statute of Northampton by the Late Eighteenth Century,
41 Fordham Urb. L.J. 1695 (2012) …………………………………………………………….. 5
Edward Coke, The Third Part of the Institutes of the Laws of England
(1817 reprint) …………………………………………………………………………………… 5, 7, 8
Saul Cornell, The Right to Carry Firearms Outside of the Home, 39 Fordham
Urb. L.J. 1695 (2012) ……………………………………………………………………………… 15
Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999)……………….. 17
Oliver Cromwell, Instructions Concerning Constables (1665)……………………………………. 7
John A. Dunlap, The New York Justice (1815) ………………………………………………….. 12
James Ewing, A Treatise on the Office & Duty of a Justice of the Peace (1805)…………….. 14
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Robert Gardiner, The Compleat Constable (1692)………………………………………………. 10
Matthew Hale, History of the Pleas of the Crown (1800)…………………………………………. 8
Elisha Hammond, A Practical Treatise; Or an Abridgement of the Law
Appertaining to the Office of Justice of the Peace (1841) ………………………………………… 15
William Hawkins, A Treatise of the Pleas of the Crown (1721) ………………………… 8, 9, 11
John Haywood, A Manual of the Laws of North-Carolina (1814) ……………………………. 13
John Haywood, The Duty & Authority of Justices of the Peace, in the State of
Tennessee (1810) ………………………………………………………………………………………. 13
John Haywood, The Duty and Office of Justices of the Peace, and of Sheriffs,
Coronoers, Constables (1800)………………………………………………………………………… 13
Gilbert Hutcheson, Treatise on the Offices of Justice of Peace (1806) …………………………. 7
Joseph Keble, An Assistance to the Justices of the Peace, for the Easier Performance
of Their Duty (1683)……………………………………………………………………………………. 6
Aaron Leaming & Jacob Spicer, Grants, Concessions & Original Constitutions
(1881)……………………………………………………………………………………………………. 12
Jonathan Meltzer, Open Carry for All, 123 Yale L.J. 1486 (2014) ……………………….. 11
John M. Niles, The Connecticut Civil Officer: In Three Parts (1833)…………………………. 12
North Riding Record Society, Quarter Sessions Records (1884) ……………………………… 7
Frederick Law Olmsted, A Journey in the Back Country (1860) …………………………….. 17
Horace V. Redfield, Homicide, North and South (1880) ………………………………………. 18
Eric M. Ruben & Saul A. Cornell, Firearm Regionalism and Public Carry:
Placing Southern Antebellum Case Law in Context, 126 Yale L.J. Forum (Sept.
25, 2015) ………………………………………………………………………………………………. 16
William Oldnall Russell, A Treatise on Crimes & Misdemeanors (1826) ………………. 8, 12
George Tucker, Blackstone’s Commentaries (1803) ……………………………………………. 6, 8
Francis Wharton, A Treatise on the Criminal Law of the United States (1846)…………….. 14
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Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America
(2011)……………………………………………………………………………………………………. 21
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INTRODUCTION AND INTEREST OF AMICUS CURIAE
Everytown for Gun Safety is the largest gun-violence-prevention
organization in the country, with over three million supporters. Everytown has
drawn on its substantial research on historical firearms laws to file briefs in
numerous recent Second Amendment cases, including an earlier appeal concerning
the regulation at issue here. See Wrenn v. District of Columbia, No. 15-7057 (D.C. Cir.);
Peruta v. San Diego, No. 10-56971 (9th Cir.). As in those cases, Everytown files this
brief to highlight the importance of the relevant historical materials.
1
This case involves a constitutional challenge to the District of Columbia’s
regulation of the public carrying of handguns. The District does not ban all public
carry. Instead, it has taken an approach similar to the policies in eight states,
collectively expressing the popular will of more than a quarter of all Americans: It
permits people to carry a gun on the streets of Washington, but only upon a
showing that they have either (1) “good reason to fear injury to [their] person or
property” or (2) “any other proper reason for carrying a pistol,” both of which
require more than a generalized desire for self-defense. D.C. Code § 22-4506(a).
In striking down the good-reason requirement, the district court overlooked,
ignored, and at times tried to explain away the vast historical record establishing
1 An appendix of historical gun laws accompanies the Appellants’ brief. In
addition, all parties consent to the filing of this brief, and no counsel for any party
authored it in whole or part. Apart from amicus curiae, no person contributed money
intended to fund the brief’s preparation and submission.
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that the requirement is sufficiently “longstanding” to qualify as constitutional under
District of Columbia v. Heller, 554 U.S. 570 (2008). As this record demonstrates, there
is a seven-century Anglo-American tradition of restricting public carry in populated
areas—a tradition that includes many early American laws that were more
restrictive than the District’s law.
This brief provides an account of that tradition. For centuries, English law
broadly prohibited anyone from carrying a dangerous weapon in public, beginning
with the Statute of Northampton in 1328, and continuing after the English Bill of
Rights of 1689. This tradition took hold in America in the 17th and 18th centuries,
when several colonies enacted similar laws. And it continued into the 19th century,
when many states and municipalities broadly prohibited public carry in cities,
towns, and villages, while many others did what the District does today: allow
public carry by those with “reasonable cause to fear an assault or other injury.”
Although a more permissive approach to public carry began emerging in the South
around that time, these antebellum southern laws were motivated largely by the
ever-present fear of slave rebellions, and they did not represent a majority
approach.
Altogether, by the end of the 19th century, nearly 20 states and many cities
had enacted laws that either entirely prohibited public carry in urban areas or
required “good cause” to carry a firearm in public. Because the District’s law
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carries forward this longstanding tradition, it is constitutional under Heller. Such a
robust historical pedigree is not necessary to satisfy the Second Amendment, but it
is sufficient to do so. Whatever the Second Amendment’s precise contours, there
can be no doubt that a law that has its roots in 14th-century England, and is more
permissive of public carry than dozens of American laws that existed from the
founding era through the 19th century, is consistent with our “historical tradition,”
id. at 627, and thus constitutional.
BACKGROUND
A. English History
1. Beginning in 1328, England broadly prohibits public carry in
populated areas. The Anglo-American tradition of broadly restricting public
carry in populated areas stretches back to at least 1328, when England enacted the
Statute of Northampton, providing that “no Man great nor small” shall “go nor
ride armed by night nor by day, in Fairs, Markets, nor in the presence of the
Justices or other Ministers, nor in no part elsewhere.” 2 Edw. 3, 258, ch. 3 (1328)
(emphasis added). Shortly thereafter, King Edward III directed sheriffs and bailiffs
to arrest “all those whom [they] shall find going armed.” Charles, The Faces of the
Second Amendment Outside the Home, 60 Clev. St. L. Rev. 1, 13-14 (2012). His
successors did so as well. Id. at 16-25.
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This prohibition expanded on two earlier laws: one making it a crime “to be
found going or wandering about the Streets of [London], after Curfew … with
Sword or Buckler, or other Arms for doing Mischief,” 13 Edw. 1, 102 (1285), and
another prohibiting coming with “Force [or] Armour” to the “Parliament at
Westminster,” 7 Edw. 2, 170 (1313)—the seat of the English government.
Over the ensuing decades, England repeatedly reenacted the Statute of
Northampton’s public-carry prohibition. See, e.g., 7 Ric. 2, 35, ch. 13 (1383); 20 Ric.
2, 93, ch. 1 (1396). Because this prohibition carried misdemeanor penalties,
violators were usually required to forfeit their weapons and pay a fine. Id. A
separate law was narrower, outlawing “rid[ing] armed covertly or secretly with
Men of Arms against any other.” 25 Edw. 3, 320, ch. 2, § 13 (1351). This law had
heavier penalties because it regulated threatening behavior rather than simple
public carry, the conduct prohibited by the Statute of Northampton. Id.
By the 16th century, firearms had become increasingly accessible in England,
and the possibility that they would be carried in public had become increasingly
threatening to public safety. To guard against this threat, Queen Elizabeth I in
1579 called for robust enforcement of the Statute of Northampton’s prohibition on
carrying “Daggers, Pistols, and such like, not only in Cities and Towns, [but] in all
parts of the Realm in common high[ways], whereby her Majesty’s good quiet
people, desirous to live in [a] peaceable manner, are in fear and danger of their
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lives.” Charles, Faces, 60 Clev. St. L. Rev. at 21 (spelling modernized). The carrying
of “such offensive weapons” (like “Handguns”), she elaborated, and “the frequent
shooting [of] them in and near Cities, Towns corporate, [and] the Suburbs thereof
where [the] great multitude of people do live, reside, and trav[el],” had caused
“great danger” and “many harms [to] ensue.” Id. at 22 (spelling modernized).
Fifteen years later, she reaffirmed that publicly carrying pistols and daggers—
whether “secretly” or in the “open”—was “to the terrour of all people professing to
travel and live peaceably.” Id.
2. In the 17th and 18th centuries, English authorities interpret the
Statute of Northampton to prohibit public carry in populated areas.
This understanding of the law—as broadly prohibiting carrying guns in populated
public places—continued into the 17th and 18th centuries. See generally Charles, The
Statute of Northampton by the Late Eighteenth Century, 41 Fordham Urb. L.J. 1695 (2012).
In 1644, for example, Lord Coke—“widely recognized by the American colonists
as the greatest authority of his time on the laws of England,” Payton v. New York, 445
U.S. 573, 593-94 (1980)—described the Statute of Northampton as making it
unlawful “to goe nor ride armed by night nor by day … in any place whatsoever.”
Coke, The Third Part of the Institutes of the Laws of England 160 (1817 reprint).
One century later, Blackstone—“the preeminent authority on English law
for the founding generation,” Heller, 554 U.S. at 593-94—described the statute
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similarly: “The 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 Blackstone,
Commentaries on the Laws of England 148-49 (1769).
2 In other words, because carrying
a dangerous weapon (such as a firearm) in populated public places naturally
terrified the people, it was a crime against the peace—even if unaccompanied by a
threat, violence, or any additional breach of the peace. See Chune v. Piott, 80 Eng.
Rep. 1161, 1162 (K.B. 1615) (“Without all question, the sheriffe hath power to
commit … if contrary to the Statute of Northampton, he sees any one to carry
weapons in the high-way, in terrorem populi Regis; he ought to take him, and
arrest him, notwithstanding he doth not break the peace in his presence.”).
To carry out the Statute of Northampton’s prohibition, British constables,
magistrates, and justices of the peace were instructed to “Arrest all such persons as
they shall find to carry Daggers or Pistols” publicly. Keble, An Assistance to the Justices
of the Peace, for the Easier Performance of Their Duty 224 (1683). This mandate was
unmistakably broad: “[I]f any person whatsoever … shall be so bold as to go or
ride Armed, by night or by day, in Fairs, Markets, or any other places … then any
Constable … may take such Armor from him for the Kings use, and may also
2 The same description appears in “the most important early American
edition of Blackstone’s Commentaries (by the law professor and former
Antifederalist St. George Tucker).” Heller, 554 U.S. at 594; see Tucker, Blackstone’s
Commentaries 149 (1803).
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commit him to the Gaol.” Id.; see 1 Hutcheson, Treatise on the Offices of Justice of Peace
app. I at xlviii (1806) (citing Cromwell, Instructions Concerning Constables (1665)) (“A
constable shall arrest any person, not being in his Highness service, who shall be
found wearing naugbuts, or guns, or pistols, of any sort.”).
Heeding this instruction, one court issued an arrest warrant for a man who
committed “outragious misdemeanours” by going “armed” with “pistolls[] and
other offensive weapons.” Rex v. Harwood, Quarter Sessions at Malton (Oct. 4-5,
1608), reprinted in North Riding Record Society, Quarter Sessions Records 132 (1884).
Another sentenced a man to prison because he “went armed under his garments,”
even though he had not threatened anyone and had done so only to
“safeguard … his life” because another man had “menaced him.” Coke, Institutes
161. And a jury convicted a man “for going Armed with a Cutlass Contrary to the
Statute,” for which he was sentenced to two years in prison plus fines. Rex v. Edward
Mullins (K.B. 1751), Middlesex Sessions: Justices’ Working Documents, available at
http://bit.ly/1U8OhO7.
3. The law’s narrow exceptions confirm this general public-carry
prohibition. In addition to its focus on populated public places, the Statute of
Northampton was understood to contain limited exceptions. One important
exception was that the prohibition did not apply inside the home, in keeping with
principles of self-defense law, which imposed a duty to retreat while in public but
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not at home. Blackstone, 4 Commentaries 185. As Lord Coke explained, using force
at home “is by construction excepted out of this act[,] … for a man’s house is his
castle.” Institutes 162. “But [a man] cannot assemble force,” Coke continued—
including by carrying firearms—even “though he [may] be extremely threatened,
to go with him to Church, or market, or any other place, but that is prohibited by
this act.” Id.3 William Hawkins likewise explained that “a man cannot excuse the
wearing [of] such armour in public, by alleging that such a one threatened him,
and he wears it for [his] safety,” but he may assemble force “in his own House,
against those who threaten to do him any Violence therein, because a Man’s
House is as his Castle.” 1 Hawkins, A Treatise of the Pleas of the Crown 489, 516 (1721)
(1824 reprint); 1 Russell, A Treatise on Crimes & Misdemeanors 589 (1826) (same in
American edition).
4
There were two other important exceptions to the public-carry prohibition:
a narrow (unwritten) exception permitting high-ranking nobles to wear fashionable
3 See 1 Hale, History of the Pleas of the Crown 547 (1800) (noting that armed selfdefense
was permitted at home, but not during “travel, or a journey,” because of
“special protection” accorded “home and dwelling”); Semayne’s Case, 77 Eng. Rep.
194, 195 (K.B. 1603) (“[E]very one may assemble his friends and neighbors to
defend his house against violence: but he cannot assemble them to go with him to
the market, or elsewhere for his safeguard against violence.”).
4 A contrary rule—permitting armed self-defense in populated areas, even
though it terrified the public—would have suggested that “the King were not able
or willing to protect his subjects.” Sir John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B.
1686). Hence, the castle doctrine was confined to the home. Tucker, Blackstone’s
Commentaries 225.
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9
swords and walk in public with armed servants, and a narrow (written) exception
for the King’s officers. See Hawkins, Treatise of the Pleas of the Crown 489, 798
(explaining that noblemen were in “no danger of offending against this statute” by
wearing “weapons of fashion, as swords, &c., or privy coats of mail,” or by “having
their usual number of attendants with them for their ornament or defence,” for
that would not “terrify the people”).5
Putting these exceptions together, “no one” could “carry arms, by day or by
night, except the vadlets of the great lord of the land, carrying the swords of their
masters in their presence, and the serjeants-at-arms [of the royal family],” as well as
those responsible for “saving and maintaining the peace.” Carpenter & Whitington,
Liber Albus: The White Book of the City of London 335 (1419) (1861 reprint).6
4. The Statute of Northampton’s public-carry prohibition remains
fully in effect following the English Bill of Rights of 1689. In the late 17th
century, William and Mary enshrined the right to have arms in the Declaration of
5 See also Charles, Faces, 60 Clev. St. L. Rev. at 26 n.123 (citing 18th-century
legal dictionary’s distinction between “go[ing] or rid[ing] armed” and nobleman
“wear[ing] common Armour”); Rex v. Sir John Knight, 90 Eng. Rep. 330 (K.B. 1686)
(noting a “general connivance” for “gentlemen” to carry arms in this way, but
declining to dismiss indictment for “walk[ing] about the streets armed with guns”
against a defendant later acquitted because he was a King’s officer); Sir John Knight’s
Case, 87 Eng. Rep. at 76 (acquittal); Charles, Faces, 60 Clev. St. L. Rev. at 28-30.
6 A 1409 royal order confirms the narrow exception allowing noblemen to
carry swords. It “forb[ade] any man of whatsoever estate or condition to go armed
within [London] and [its] suburbs, or any except lords, knights and esquires with a
sword.” 3 Calendar of the Close Rolls, Henry IV 485 (Jan. 30, 1409).
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Rights, later codified in the English Bill of Rights in 1689. This right—which “has
long been understood to be the predecessor to our Second Amendment,” Heller,
554 U.S. at 593—ensured that subjects “may have arms for their defence suitable
to their conditions, and as allowed by law.” 1 W. & M. st. 2. ch. 2. As Blackstone
later wrote, this right was considered “a public allowance, under due restrictions[,]
of the natural right of resistance and self-preservation, when the sanctions of society
and laws are found insufficient to restrain the violence of oppression.” 1 Blackstone,
Commentaries 144. One such “due restriction” was the Statute of Northampton,
which remained in effect after the right to bear arms was codified in 1689. See 4
Blackstone, Commentaries 148-49; Gardiner, The Compleat Constable 18 (1692); Rex v.
Mullins, Middlesex Sessions (reporting conviction under statute in 1751).
B. Founding-Era American History
1. The colonies begin importing England’s tradition of regulating
public carry into their own laws. Around the time that the English Bill of
Rights was adopted, America began its own public-carry regulation. The first step
was a 1686 New Jersey law that sought to prevent the “great fear and quarrels”
induced by “several persons wearing swords, daggers, pistols,” and “other unusual
or unlawful weapons.” 1686 N.J. Laws 289, 289-90, ch. 9. To combat this “great
abuse,” the law provided that no person “shall presume privately to wear any
pocket pistol” or “other unusual or unlawful weapons,” and “no planter shall ride
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11
or go armed with sword, pistol, or dagger,” except for “strangers[] travelling”
through. Id. This law was only the start of what would become a long history of
regulation “limiting gun use for public safety reasons”—especially public carry in
populated areas. Meltzer, Open Carry for All, 123 Yale L.J. 1486, 1523 (2014). As
against this history, “there are no examples from the Founding era of anyone
espousing the concept of a general right to carry.” Id.
2. Many states enact laws mirroring the Statute of Northampton
both before and after the Constitution’s adoption. Eight years after New
Jersey’s law, Massachusetts enacted its own version of the Statute of Northampton,
authorizing justices of the peace to arrest anyone who “shall ride or go armed
Offensively before any of Their Majesties Justices, or other Their Officers or
Ministers doing their Office, or elsewhere.” 1694 Mass. Laws 12, no. 6.
By using the word “offensively,” Massachusetts ensured that this prohibition
applied only to “offensive weapons,” as it had in England—not all arms. Constable
oaths of the 18th century described this law with similar language. See Charles,
Faces, 60 Clev. St. L. Rev. at 34 n.178. One treatise, for example, explained that
“[a] person going or riding with offensive Arms may be arrested.” Bond, A Compleat
Guide for Justices of the Peace 181 (1707). Thus, under the law, a person could publicly
carry a hatchet or horsewhip, but not a pistol. See Hawkins, Treatise of the Pleas of the
Crown 665 (explaining that hatchets and horsewhips were not “offensive weapons,”
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12
while “guns, pistols, daggers, and instruments of war” were); King v. Hutchinson, 168
Eng. Rep. 273, 274 (1784) (explaining that firearms are offensive weapons).
7
One century later, Massachusetts reenacted its law, this time as a state. 1795
Mass. Laws 436, ch. 2. Because the prohibition had been on the books for so long,
it was “well known to be an offence against law to ride or go with … firelocks, or
other dangerous weapons,” as one newspaper later reported, so it “[could not] be
doubted that the vigilant police officers” would arrest violators. Charles, Faces, 60
Clev. St. L. Rev. at 33 n.176 (quoting The Salem Gazette, June 2, 1818, at 4).
Following Massachusetts’s lead, additional states enacted similar laws,
including founding-era statutes in Virginia and North Carolina, and later
enactments in states ranging from Maine to Tennessee. See, e.g., 1786 Va. Laws 33,
ch. 21; 1792 N.C. Laws 60, 61, ch. 3; 1801 Tenn. Laws 710, § 6; 1821 Me. Laws
285, ch. 76, § 1; 1852 Del. Laws 330, 333, ch. 97, § 13. And still other states
incorporated the Statute of Northampton through their common law.
8
7 American treatises said the same. See Russell, Treatise on Crimes &
Misdemeanors 124; Bishop, Commentaries on the Law of Statutory Crimes 214 (1873).
8 See, e.g., A Bill for the Office of Coroner and Constable (Mar. 1, 1682),
reprinted in Grants, Concessions & Original Constitutions 251 (N.J. constable oath) (“I
will endeavour to arrest all such persons, as in my presence, shall ride or go arm’d
offensively.”); Niles, The Connecticut Civil Officer 154 (1833) (explaining that it was a
crime to “go armed offensively,” even without threatening conduct); Dunlap, The
New York Justice 8 (1815); Vermont Telegraph, Feb. 7, 1838 (observing that “[t]he laws
of New England” provided a self-defense right “to individuals, but forb[ade] their
going armed for the purpose”).
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Northampton’s prohibition also applied in the District of Columbia. The
District was created through grants of territory from Maryland and Virginia, and
the laws of both states continued to apply. Act of Feb. 27, 1801, ch. 15, § 1, 2 Stat.
103, 103-05. Thus, Virginia’s version of the Statute of Northampton applied in the
portion of the District west of the Potomac (which reverted to Virginia in 1846). Id.
East of the Potomac, Northampton applied by virtue of Maryland’s incorporation
of “the Common Law of England” and “the English statutes.” Md. Const. of 1776,
art. III, § 1; see also D.C. Code of 1818, § 40, at 253-54 (including Northampton’s
prohibition in a compilation of District law).
To ensure that these public-carry bans were enforced, the constables,
magistrates, and justices of the peace in these jurisdictions were required to “arrest
all such persons as in your sight shall ride or go armed.” Haywood, A Manual of the
Laws of North-Carolina pt. 2 at 40 (1814) (N.C. constable oath). That was because, as
constables were informed, “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 prohibited by statute.” Haywood, The Duty and Office of Justices of the
Peace, and of Sheriffs, Coroners, Constables 10 (1800); see Haywood, The Duty & Authority
of Justices of the Peace, in the State of Tennessee 176 (1810).
As in England, prosecution under these laws did not require the defendant to
have “threaten[ed] any person” or “committed any particular act of violence.”
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14
Ewing, A Treatise on the Office & Duty of a Justice of the Peace 546 (1805); see Bishop,
Commentaries on the Criminal Law 550 (1865) (“But we should mistake to suppose, that
the peace must actually be broken, to lay the foundation for a criminal
proceeding.”). Nor was there a self-defense exception: No one could “excuse the
wearing [of] such armor in public, by alleging that such a one threatened him.”
Wharton, A Treatise on the Criminal Law of the United States 527-28 (1846).
C. Early-19th-Century American History
1. Many states enact a variant of the Statute of Northampton,
allowing public carry with “reasonable cause to fear an assault.” In
1836, Massachusetts amended its public-carry prohibition to provide a narrow
exception for those having “reasonable cause to fear an assault or other injury, or
violence to his person, or to his family or property.” 1836 Mass. Laws 748, 750, ch.
134, § 16. Absent such “reasonable cause,” no person could “go armed with a dirk,
dagger, sword, pistol, or other offensive and dangerous weapon.” Id. Those who
did so could be punished by being made to pay sureties for violating the statute, id.;
if they did not do so, they could be imprisoned. See id. at 749.
9
Although the legislature chose to trigger these penalties using a citizencomplaint
mechanism (allowing “any person having reasonable cause to fear an
9 Sureties were a form of criminal punishment, akin to a bond. See, e.g.,
Punishments, The Proceedings of the Old Bailey, London’s Central Criminal
Court, 1674 to 1913, http://bit.ly/1ED5tC2; 34 Edw. 3, 364, ch. 1 (1360).
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15
injury, or breach of the peace” to file a complaint, id. at 750, § 16), the law was
understood to prohibit carrying a firearm in public without good cause. This was
so even when the firearm was not used in any threatening or violent manner: The
legislature placed the prohibition in a section entitled “Persons who go armed may
be required to find sureties for the peace,” and expressly cited the state’s previous
enactment of Northampton. Id. And elsewhere in the same statute the legislature
separately punished “any person [who] threatened to commit an offence against
the person or property of another.” Id. at 749, § 2. Thus, as one Massachusetts
judge explained in a grand jury charge appearing in the contemporary press in
1837, there was little doubt at the time that “no person may go armed with a dirk,
dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable
cause to apprehend an assault or violence to his person, family, or property.”
Cornell, The Right to Carry Firearms Outside of the Home, 39 Fordham Urb. L.J. 1695,
1720 & n.134 (2012); see Hammond, A Practical Treatise; Or an Abridgement of the Law
Appertaining to the Office of Justice of the Peace 184-86 (1841).
Within a few decades, many states (all but one outside the slaveholding
South) had adopted nearly identical laws. See, e.g., 1838 Wisc. Laws 381, § 16; 1841
Me. Laws 709, ch. 169, § 16; 1846 Mich. Laws 690, 692, ch. 162, § 16; 1847 Va.
Laws 127, 129, ch. 14, § 16; 1851 Minn. Laws 526, 528, ch. 112, § 18; 1853 Or.
Laws 218, 220, ch. 16, § 17; 1861 Pa. Laws 248, 250, § 6. Most copied the
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Massachusetts law verbatim—enforcing the public-carry prohibition through a
citizen-complaint provision and permitting a narrow self-defense exception. See, e.g.,
1851 Minn. Laws at 527-28, §§ 2, 17, 18 (section entitled “Persons carrying
offensive weapons, how punished”); 1873 Minn. Laws. 1025, § 17 (same after 14th
Amendment’s ratification). At least one state (Virginia) used slightly different
language. 1847 Va. Laws at 129, § 16 (“If any person shall go armed with any
offensive or dangerous weapon, without reasonable cause to fear an assault or other
injury, or violence to his person, or to his family or property, he may be required to
find sureties for keeping the peace.”). Semantic differences aside, these laws were
understood to do the same thing: broadly restrict public carry, while establishing a
limited exception for those with a particular need for self-defense.10
2. Taking a different approach, most southern states elect to
permit public carry, but only if the weapon is not concealed. In contrast
to the Northampton model and its good-cause variant, most states in the
slaveholding South were more permissive of public carry. They generally allowed
white citizens to carry firearms in public so long as the weapons were not concealed.
10 See Ruben & Cornell, Firearm Regionalism and Public Carry: Placing Southern
Antebellum Case Law in Context, 126 Yale L.J. Forum (Sept. 25, 2015), at 131 n.58,
http://bit.ly/1RiqHwv (citing prosecution of Massachusetts man for publicly
carrying a gun without reasonable cause to fear injury); Daily State Journal
(Alexandria), Sept. 16, 1872 (noting that Virginia justices of the peace “may issue a
warrant for the arrest of any party going armed with a deadly or dangerous
weapon”); The Daily Dispatch (Richmond), June 1, 1861 (account of Virginia man
“held to bail” for “habitually going armed”).
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See, e.g., 1854 Ala. Laws 588, § 3272; 1861 Ga. Laws 859, § 4413; see generally
Cramer, Concealed Weapon Laws of the Early Republic (1999).
11
That this “lash and pistol” model emerged in the South is perhaps
unsurprising given the widespread concerns about slave rebellions and dramatically
higher levels of interpersonal violence there. Frederick Law Olmsted, for example,
“attributed the need to keep slaves in submission as the reason that ‘every white
stripling in the South may carry a dirk-knife in his pocket, and play with a revolver
before he has learned to swim.’” Id. at 21 (quoting Olmsted, A Journey in the Back
Country 447 (1860)); cf. McDonald v. City of Chicago, 561 U.S. 742, 844 (2010)
(Thomas, J., concurring) (“[I]t is difficult to overstate the extent to which fear of a
slave uprising gripped slaveholders and dictated the acts of Southern legislatures.”).
And historians agree that “the South was substantially more violent than the
North.” Cramer, Concealed Weapon Laws 18. One southern social scientist, who was
“the first person to explore the issue of Southern violence in depth,” undertook an
exhaustive study of homicide rates in the 19th century and concluded that the rate
in southern states was 18 times the rate in New England, and was “greater than
11 Not all southern states were so permissive. South Carolina enacted a
Northampton-style law in 1870. 1870 S.C. Laws 403, no. 288, § 4. Tennessee
made it illegal for “any person to publicly or privately carry a … pocket pistol or
revolver other than an army pistol.” 1871 Tenn. Laws 81, ch. 90, § 1. And
Arkansas did similarly, while permitting “carrying any weapon when upon a
journey, or upon [one’s] own premises.” 1881 Ark. Laws 490, ch. 53, § 1907.
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any country on earth the population of which is rated as civilized.” Redfield,
Homicide, North and South vii, 10, 13 (1880) (2000 reprint).
D. Mid-to-Late-19th-Century American History
1. States continue to restrict public carry both before and after the
14th Amendment’s ratification. As America entered the second half of the
19th century, additional jurisdictions began enacting laws broadly restricting public
carry, often subject to limited self-defense exceptions. Before the Civil War, New
Mexico passed An Act Prohibiting The Carrying Of Weapons, Concealed Or Otherwise,
making it unlawful for “any person [to] carry about his person, either concealed or
otherwise, any deadly weapon,” and requiring repeat offenders to serve a jail term
“of not less than three months.” 1859 N.M. Laws 94, § 2.
After the Civil War, several other states enacted similar prohibitions
notwithstanding the recent passage of the 14th Amendment. West Virginia and
Texas enacted laws that broadly prohibited public carry without good cause. West
Virginia’s law made clear that “[i]f any person go armed with a deadly or
dangerous weapon, without reasonable cause to fear violence to his person, family,
or property, he may be required to give a recognizance.” 1870 W. Va. Laws 702,
703, ch. 153, § 8.
12 Courts construed this self-defense exception narrowly to require
12 A later version reaffirmed the law’s breadth by clarifying that it didn’t
“prevent any person from keeping or carrying about his dwelling house or premises,
any such revolver or other pistol, or from carrying the same from the place of
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specific evidence of a concrete, serious threat. See, e.g., State v. Barnett, 34 W. Va. 74
(1890). Texas’s law contained a similarly circumscribed exception, barring anyone
not acting in “lawful defense of the state” (“as a militiaman” or “policeman”) from
“carrying on or about his person … any pistol” without “reasonable grounds for
fearing an unlawful attack on his person” that was “immediate and pressing.” 1871
Tex. Laws 1322, art. 6512. This law prompted a Rhode Island doctor visiting
Texas in 1890 to remark: “I had expected to find all of your people going armed,
and that it would not be safe for a man from the North to travel alone in your
country, but on the contrary, I find that you have laws that prohibit the carrying of
weapons concealed or otherwise, and that they are enforced.” Ft. Worth Daily
Gazette, Apr. 5, 1890.
2. Beginning immediately after the 14th Amendment’s
ratification, many legislatures enact laws banning public carry in
populated areas. Starting with New Mexico in 1869, many legislatures enacted
Northampton-style prohibitions on public carry in cities and other populated areas.
New Mexico made it “unlawful for any person to carry deadly weapons, either
concealed or otherwise, on or about their persons within any of the settlements of
this Territory,” while providing a narrow self-defense exception. 1869 N.M. Laws

purchase to his dwelling house, or from his dwelling house to any place where
repairing is done, to have it repaired and back again.” 1891 W. Va. Laws 915, 915-
16, ch. 148, § 7. Violators could be fined or jailed. Id.
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312, Deadly Weapons Act of 1869, § 1. Violators could serve up to 50 days in jail. Id.
§ 3. Wyoming prohibited carrying firearms “concealed or openly” “within the
limits of any city, town or village.” 1875 Wyo. Laws 352, ch. 52, § 1. Idaho made it
unlawful “to carry, exhibit or flourish any … pistol, gun or other-deadly weapons,
within the limits or confines of any city, town or village or in any public assembly.”
1889 Idaho Laws 23, § 1. Kansas required local authorities to “prohibit and punish
the carrying of firearms, or other dangerous or deadly weapons, concealed or
otherwise.” 1881 Kan. Laws 92, ch. 37, § 23. Arizona banned “any person within
any settlement, town, village or city within this Territory” from “carry[ing] on or
about his person, saddle, or in his saddlebags, any pistol.” 1889 Ariz. Laws 16, ch.
13, § 1. And, at the turn of the century, Texas and Michigan granted cities the
power to “prohibit and restrain the carrying of pistols.” 1909 Tex. Laws 105; see
1901 Mich. Laws 687, § 8.
By this time, many cities throughout the country—including Washington—
had imposed such public-carry prohibitions for decades.
13 “A visitor arriving in
Wichita, Kansas, in 1873,” for example, “would have seen signs declaring, ‘LEAVE
13 See, e.g., Washington, D.C., Ordinance ch. 5 (1857); Nebraska City, Neb.,
Ordinance no. 7 (1872); Nashville, Tenn., Ordinance ch. 108 (1873); Los Angeles,
Cal., Ordinance nos. 35-36 (1878); Salina, Kan., Ordinance no. 268 (1879); La
Crosse, Wis., Ordinance no. 14, § 15 (1880); Syracuse, N.Y., Ordinances ch. 27
(1885); Dallas, Tex., Ordinance (1887); New Haven, Conn., Ordinances § 192
(1890); Checotah, Okla., Ordinance no. 11 (1890); Rawlins, Wyo., Ordinances art.
7 (1893); Wichita, Kan., Ordinance no. 1641 (1899); McKinney, Tex., Ordinance
no. 20 (1899); San Antonio, Tex., Ordinance ch. 10 (1899).
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YOUR REVOLVERS AT POLICE HEADQUARTERS, AND GET A CHECK.’” Winkler,
Gunfight 165 (2011). Dodge City was no different. A sign read: “THE CARRYING OF
FIREARMS STRICTLY PROHIBITED.” Id. Even in Tombstone, Arizona, people
“could not lawfully bring their firearms past city limits. In fact, the famed shootout
at Tombstone’s O.K. Corral was sparked in part by Wyatt Earp pistol-whipping
Tom McLaury for violating Tombstone’s gun control laws.” Blocher, Firearm
Localism, 123 Yale L.J. 82, 84 (2013).
ARGUMENT
BECAUSE THE DISTRICT’S LAW CARRIES FORWARD A SEVEN-CENTURY ANGLOAMERICAN
TRADITION OF RESTRICTING PUBLIC CARRY IN POPULATED AREAS,
IT IS A “LONGSTANDING,” CONSTITUTIONAL REGULATION UNDER HELLER.
The question here is not whether the Second Amendment, which the
Supreme Court held in Heller protects “the right of law-abiding, responsible citizens
to use arms in defense of hearth and home,” 554 U.S. at 635, has any application
outside the home. Rather, it is whether the District of Columbia’s public-carry
regime is consistent with the Second Amendment’s protections.
To answer that question, this Court uses “a two-step approach,” first asking
whether the law “impinges upon a right protected by the Second Amendment,”
and then determining, “if it does,” whether the law “passes muster under the
appropriate level of constitutional scrutiny.” Heller v. District of Columbia, 670 F.3d
1244, 1252 (D.C. Cir. 2011) (Heller II). Although the District’s law would satisfy the
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appropriate level of scrutiny (for reasons laid out in the District’s brief), this brief
shows that the analysis needn’t go that far: This law survives at step one.
A. “Longstanding” laws are deemed constitutional under Heller
because they are consistent with our “historical tradition.”
One way to determine whether a law burdens the Second Amendment right
is to assess the law based on a “historical understanding of the scope of the right,”
Heller, 554 U.S. at 625, and consider whether the law is one of the “prohibitions
‘that have been historically unprotected,’” Jackson v. City & Cnty. of San Francisco,
746 F.3d 953, 960 (9th Cir. 2014), cert. denied 135 S. Ct. 2799 (2015). The Supreme
Court in Heller identified several “examples” of such regulations, including
“prohibitions on the possession of firearms by felons and the mentally ill” and “laws
imposing conditions and qualifications on the commercial sale of arms,” which are
“presum[ed]” not to violate the Second Amendment because of their historical
acceptance as consistent with its protections. 554 U.S. at 626-27 & n.26. Such
“longstanding” laws, the Court explained, are treated as tradition-based
“exceptions” by virtue of their “historical justifications.” Id. at 635. Or put in this
Court’s words: Longstanding laws “are presumed not to burden conduct within the
scope of the Second Amendment” because they have “long been accepted by the
public” as consistent with its protections. Heller II, 670 F.3d at 1253.
What does it mean to be “longstanding” under Heller? As numerous courts
have recognized, it does not require that a law “mirror limits that were on the
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books in 1791.” United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc).
To the contrary, laws may qualify as longstanding even if they “cannot boast a
precise founding-era analogue,” NRA v. BATF, 700 F.3d 185, 196 (5th Cir. 2012)—
as was the case with “the early 20th century” regulations deemed longstanding in
Heller. Heller II, 670 F.3d at 1253. But the law here is no 20th-century creation; it
embodies a tradition of regulation stretching back seven centuries.
Under the district court’s analysis, however, even a “robust heritage” is
irrelevant if the law has “more than a de minimis” effect. JA554-55. This view
cannot be squared with Heller or precedent from the other circuits, which recognize
that “longstanding limitations are exceptions to the right to bear arms” under Heller.
United States v. Marzzarella, 614 F.3d 85, 91 (3d Cir. 2010).
14 To the extent that the
district court read this Court’s decision in Heller II as compelling a contrary
conclusion, that was mistaken. To be sure, Heller II includes dicta hypothesizing
that a plaintiff could “rebut” a “presumption” of lawfulness by showing that a
longstanding law has “more than a de minimis effect upon his right.” 670 F.3d at
1253. But this Court has never subjected a longstanding law to heightened scrutiny,
much less struck one down as unconstitutional. Doing so now would not only
create a circuit split, it would also conflict with Heller, which makes clear that
14 See, e.g., United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009); Drake v. Filko,
724 F.3d 426, 432-35 (3d Cir. 2013); United States v. Chester, 628 F.3d 673, 680 (4th
Cir. 2010); NRA, 700 F.3d at 203-05.
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longstanding laws are “exceptions” to the Second Amendment, and that even laws
with more than a de minimis effect (like absolute bans on possession by felons and
the mentally ill) are “presumptively lawful.” 554 U.S. at 626-27 & n.26. This Court
should correct the district court’s error and confirm that longstanding laws are
deemed constitutional under Heller.
B. The District of Columbia’s law has a centuries-long pedigree in
Anglo-American history and is therefore “longstanding” and
constitutional under Heller.
1. If any law is longstanding under Heller, it is the District’s public-carry law.
For centuries, English and American laws have restricted public carry in populated
areas, much like (and indeed more than) the District does today. The Statute of
Northampton, first enacted in 1328, trained its prohibition on “fairs,” “markets,”
and other populous places, 2 Edw. 3, 258, ch. 3, while a royal declaration from a
century later specifically directed “the mayor and sheriffs of London” to enforce
the prohibition against “any man of whatsoever estate or condition [who] go[es]
armed within the city and suburbs.” 3 Calendar of the Close Rolls 485. One century
after that, Queen Elizabeth spoke of the need to focus enforcement in the areas
where the “great multitude of people do live, reside, and trav[el].” Charles, Faces,
60 Clev. St. L. Rev. at 21; see Peruta v. Cnty. of San Diego, — F.3d —, 2016 WL
3194315, *6-*9 (9th Cir. June 9, 2016) (en banc) (recounting history of English
public-carry prohibitions).
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When this tradition came to America, it gained popularity in the late-18th
century and proliferated throughout the 19th century. From 1795 to 1870, at least
twelve states and the District of Columbia incorporated a broad Northampton-style
prohibition into their laws at some point. See supra, at 11-13, 18-19 & n.12. By 1890,
New Mexico, Wyoming, Idaho, Kansas, and Arizona had all enacted laws broadly
prohibiting public carry in cities, towns, and villages. See supra, at 19-20. And
numerous local governments imposed similar restrictions around the same time—
from New Haven to Nashville, Dallas to Los Angeles, and even in places like
Dodge City and Tombstone. See supra, at 20 n.13.
These laws illustrate “how the Second Amendment was interpreted from
immediately after its ratification through the end of the 19th century.” Heller, 554
U.S. at 605. Because they help “determine the public understanding of a legal text in
the period after its enactment or ratification,” they are “a critical tool of
constitutional interpretation.” Id. And they unmistakably show that large swaths of
the American public considered public-carry prohibitions to be permissible in
populated areas and consonant with the right to bear arms. Although not all states
and cities enacted such laws in the 19th century, “the Constitution establishes a
federal republic where local differences are cherished as elements of liberty, rather
than eliminated in a search for national uniformity.” Friedman v. Highland Park, 784
F.3d 406, 412 (7th Cir. 2015) (Easterbrook, J.).
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2. Given this robust and longstanding history, the District would have been
well within its right to enact a broad prohibition on public carry. That is
particularly true because of the uniqueness of the District—an entirely urban area
in which Supreme Court justices, members of Congress, and diplomats frequently
walk the streets without security. See Appellants’ Br. 4, 11.
Yet the District chose to adopt a more permissive public-carry regime—one
that has its own longstanding historical pedigree: allowing public carry only by
those with “good reason” to do so. In the mid-19th century, nine states enacted
laws containing such a requirement. See supra, at 14-16, 18-19. Virginia, for
example, made it unlawful for anyone to “go armed” with a gun “without
reasonable cause to fear an assault or other injury.” 1847 Va. Laws at 129, § 16.
Such prohibitions would have meant nothing if anyone could have satisfied the
exception by asserting a generalized fear of self-defense, and they were not
enforced that way. See, e.g., Barnett, 34 W. Va. 74. Indeed, when the Supreme Court
considered Texas’s law in 1894, it noted that the law “forbid[s] the carrying of
weapons” and “authoriz[es] the arrest without warrant of any person violating [it],”
and determined that a person arrested under the law is not “denied the benefit” of
the right to bear arms. Miller v. Texas, 153 U.S. 535, 538 (1894).
The District of Columbia has not violated our Constitution by continuing
this tradition. Nor have the other states that currently have similar laws. Although
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such a lengthy historical pedigree is not needed to satisfy the Second Amendment,
it is sufficient to do so. Whatever else the Second Amendment permits, it surely
allows a law that traces back to 14th-century England, has been accepted in
America for well over “a century in diverse states and cities,” and is “now
applicable to more than one fourth of the Nation by population.” Heller II, 670
F.3d at 1254.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
ELIZABETH AVORE
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
July 13, 2016 Counsel for Amicus Curiae
Everytown for Gun Safety
USCA Case #16-7067 Document #1624592 Filed: 07/13/2016 Page 38 of 39
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)
I hereby certify that my word processing program, Microsoft Word, counted
6,995 words in the foregoing brief, exclusive of the portions excluded by Rule
32(a)(7)(B)(iii).
/s/ Deepak Gupta
Deepak Gupta
CERTIFICATE OF SERVICE
I hereby certify that on July 13, 2016, I electronically filed the foregoing
Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellants with the
Clerk of the Court of the U.S. Court of Appeals for the D.C. Circuit by using the
Appellate CM/ECF system. All participants are registered CM/ECF users, and
will be served by the Appellate CM/ECF system.
/s/ Deepak Gupta
Deepak Gupta
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