Amicus Brief: Wrenn 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 in a case challenging the District of Columbia’s concealed carry licensing system. This brief refutes the primary historical arguments made by gun lobby lawyers, and makes clear that laws regulating the public carrying of firearms are consistent with a centuries long Anglo-American tradition.

Open PDF

ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 20, 2016
No. 16-7025
In the United States Court of Appeals
for the District of Columbia Circuit
____________________________
BRIAN WRENN, et al.,
Plaintiffs-Appellants,
v.
DISTRICT OF COLUMBIA, et al.,
Defendants-Appellees.
_____________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CASE NO. 1:15-CV-162-CKK (THE HON. COLLEEN KOLLAR-KOTELLY)
____________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY IN
SUPPORT OF APPELLEES AND AFFIRMANCE
____________________________
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
New York, NY 10163
July 20, 2016
DEEPAK GUPTA
JONATHAN E. TAYLOR
NEIL K. SAWHNEY
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
[email protected]
Counsel for Amicus Curiae
Everytown for Gun Safety
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 1 of 39
i
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 are listed in the Brief for Appellees.
B. Rulings under Review. References to the rulings under review appear in the
Brief for Appellees.
C. Related Cases. This is the second appeal to this Court arising out of this case.
See Wrenn v. District of Columbia, No. 15-7057. A separate case, raising a virtually
identical challenge to the District of Columbia’s restriction on the public carry of
firearms, Grace v. District of Columbia, No. 1:15-cv-2234, was filed after this case, and
is now on appeal to this Court (No. 16-7067).
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 because it focuses exclusively on
the importance of the relevant historical materials—which demonstrate that the
District of Columbia statute at issue carries forward a seven-century AngloAmerican
tradition of restrictions on the public carry of firearms—and rebuts
historical arguments made by the challengers. 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
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 2 of 39
ii
TABLE OF CONTENTS
Table of authorities…………………………………………………………………………………….. iii
Glossary ……………………………………………………………………………………………………..ix
Introduction and interest of amicus curiae ………………………………………………………… 1
Argument…………………………………………………………………………………………………… 2
A. The challengers’ claim that the Statute of Northampton imposed an
evil-intent or threatening-conduct requirement is wrong. ……………………. 2
B. The challengers’ attempts to diminish the robust American tradition
of restricting public carry are without historical foundation. ………………. 10
C. The challengers cherry-pick a handful of cases from the slaveholding
South, which took an outlier approach to public carry and exhibited
wide variability even within the region. …………………………………………… 17
D. The upshot of the challengers’ position is that dozens of state and
local laws—enacted both before and after the Fourteenth
Amendment’s ratification—were unconstitutional. …………………………… 23
Conclusion……………………………………………………………………………………………….. 27
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 3 of 39
iii
TABLE OF AUTHORITIES*
Cases
Andrews v. State,
50 Tenn. 165 (1871) …………………………………………………………………………. 20, 21
Chune v. Piott,
80 Eng. Rep. 1161 (K.B. 1615) ……………………………………………………………… 5, 7
*District of Columbia v. Heller,
554 U.S. 570 (2008) ………………………………………………………………………… 1, 3, 25
Edwards v. Aguillard,
482 U.S. 578 (1987) ……………………………………………………………………………….. 18
English v. State,
35 Tex. 473 (1871)……………………………………………………………………………. 19, 20
Miller v. Texas,
153 U.S. 535 (1894) ……………………………………………………………………………….. 20
Nunn v. State,
1 Ga. 243 (1846) ……………………………………………………………………………………. 22
*Peruta v. County of San Diego,
— F.3d —, 2016 WL 3194315 (9th Cir. June 9, 2016)…………………. 3, 4, 6, 8, 10
Sir John Knight’s Case,
87 Eng. Rep. 75 (K.B. 1686) …………………………………………………………………….. 7
State v. Barnett,
34 W. Va. 74 (1890)……………………………………………………………………………….. 20
State v. Duke,
42 Tex. 455 (1874)…………………………………………………………………………………. 19
State v. Smith,
State v. Smith, 11 La. Ann. 633 (1856)………………………………………………………… 22

* Authorities upon which we chiefly rely are marked with asterisks.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 4 of 39
iv
State v. Workman,
35 W. Va. 367 (1891)……………………………………………………………………………… 20
American statutes
1686 N.J. Laws 289, ch. 9 ………………………………………………………………………….. 10
1694 Mass. Laws 12, no. 6. ………………………………………………………………………… 10
1786 Va. Laws 33, ch. 21 ……………………………………………………………………… 10, 18
1792 N.C. Laws 60, ch. 3 …………………………………………………………………………… 10
1801 Tenn. Laws 710, § 6 ………………………………………………………………………….. 10
1821 Me. Laws 285, ch. 76, § 1…………………………………………………………………… 10
1836 Mass. Laws 748, ch.134, § 16 ……………………………………………… 11, 12, 13, 14
1838 Wisc. Laws 381, § 16 …………………………………………………………………………. 11
1841 Me. Laws 709, ch. 169, § 16……………………………………………………………….. 11
1846 Mich. Laws 690, ch. 162, § 16………………………………………………….. 11, 13, 14
1847 Va. Laws 127, ch. 14, § 16……………………………………………………….. 11, 14, 18
1851 Minn. Laws 526, ch. 112, § 18 …………………………………………………. 11, 13, 14
1852 Del. Laws 330, ch. 97, § 13…………………………………………………………………. 10
1853 Or. Laws 218, ch. 16, § 17………………………………………………………………….. 11
1854 Ala. Laws 588, § 3272………………………………………………………………………… 17
1861 Ga. Laws 859, § 4413 ………………………………………………………………………… 17
1861 Pa. Laws 248, 250, § 6 ……………………………………………………………………….. 11
1869 N.M. Laws 312, § 1 …………………………………………………………………………… 23
1870 S.C. Laws 403, no. 288, § 4 ………………………………………………………………… 18
1870 W. Va. Laws 702, ch. 153, § 8……………………………………………………….. 11, 19
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 5 of 39
v
1871 Tex. Laws 1322, art. 6512…………………………………………….. 11, 14, 18, 19, 24
1875 Wyo. Laws 352, ch. 52, § 1…………………………………………………………………. 23
1889 Ariz. Laws 16, ch. 13, § 1 …………………………………………………………………… 23
1889 Idaho Laws 23, § 1…………………………………………………………………………….. 23
1890 Okla. Laws 495, art. 47 ……………………………………………………………………… 16
1901 Mich. Laws 687, § 8…………………………………………………………………………… 24
1903 Okla. Laws 643, ch. 25, art. 45, § 584………………………………………………….. 16
1909 Ala. Laws 258, no. 215 ………………………………………………………………………. 15
1909 Tex. Laws 105 ………………………………………………………………………………….. 24
1913 N.Y. Laws 1627 ………………………………………………………………………………… 15
1913 Haw. Laws 25, act 22, § 1…………………………………………………………………… 15
1923 Cal. Laws 701, ch. 339 ………………………………………………………………………. 16
1923 Conn. Laws 3707, ch. 252………………………………………………………………….. 16
1923 N.D. Laws 379, ch. 266……………………………………………………………………… 16
1923 N.H. Laws 138, ch. 118……………………………………………………………………… 16
1925 Ind. Laws 495, ch. 207 ………………………………………………………………………. 16
1925 Mich. Laws 473, no. 313 ……………………………………………………………………. 16
1925 N.J. Laws 185, ch. 64 ………………………………………………………………………… 16
1925 Or. Laws 468, ch. 260 ……………………………………………………………………….. 16
1925 W.Va. Laws 25 …………………………………………………………………………………. 16
1927 Mass. Laws 413 ………………………………………………………………………………… 16
American municipal ordinances
Checotah, Okla., Ordinance no. 11 (1890) …………………………………………………… 24
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 6 of 39
vi
Dallas, Tex., Ordinance (1887) …………………………………………………………………… 24
La Crosse, Wis., Ordinance no. 14, § 15 (1880)…………………………………………….. 24
Los Angeles, Cal., Ordinance nos. 35-36 (1878) ……………………………………………. 24
McKinney, Tex., Ordinance no. 20 (1899)…………………………………………………… 24
Nashville, Tenn., Ordinance ch. 108 (1873) …………………………………………………. 24
Nebraska City, Neb., Ordinance no. 7 (1872)……………………………………………….. 24
New Haven, Conn., Ordinances § 192 (1890) ………………………………………………. 24
Rawlins, Wyo., Rev. Ordinances art. 7 (1893)………………………………………………. 24
Salina, Kan., Ordinance no. 268 (1879) ………………………………………………………. 24
San Antonio, Tex., Ordinance ch. 10 (1899) ………………………………………………… 24
Syracuse, N.Y., Ordinances ch. 27 (1885)…………………………………………………….. 24
Washington, D.C., Ordinance ch. 5 (1857)…………………………………………………… 24
Wichita, Kan., Ordinance no. 1641 (1899)…………………………………………………… 24
English statutes and royal proclamations
Statute of Northampton, 2 Edw. 3, 258, ch. 3 (1328) ………………………………………. 4
25 Edw. 3, 320, ch. 2, § 13 (1351) …………………………………………………………………. 5
Books, articles, and miscellaneous
3rd Report of Commission on Uniform Act to Regulate the Sale & Possession of
Firearms, National Conference on Uniform State Laws (1926) ……………………… 16
Joel Prentiss Bishop, Commentaries on the Criminal Law (1865)…………………………….. 11
William Blackstone, Commentaries on the Laws of England (1769) …………………………… 5
John Carpenter & Richard Whitington, Liber Albus: The White Book of the
City of London (1419) (1861 reprint)………………………………………………………….. 4, 9
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 7 of 39
vii
Patrick J. Charles, The Faces of the Second Amendment Outside the Home,
60 Clev. St. L. Rev. 1 (2012)……………………………………………………………………… 6
Patrick J. Charles, The Faces of the Second Amendment Outside the Home, Take
Two: How We Got Here and Why It Matters,
64 Clev. St. L. Rev. 373 (2016)………………………………………………………………… 15
Patrick J. Charles, The Second Amendment in Historiographical Crisis,
39 Fordham Urb. L.J. 1727 (2012)…………………………………………………………….. 4
City Intelligence, Boston Courier, Mar. 7, 1853………………………………………………… 12
City Items, Richmond Whig, Sept. 25, 1860…………………………………………………… 12
Edward Coke, The Third Part of the Institutes of the Laws of England
(1817 reprint) ………………………………………………………………………………………. 5, 9
Saul Cornell, The Right to Carry Firearms Outside of the Home: Separating
Historical Myths from Historical Realities,
39 Fordham Urb. L.J. 1695 (2012)…………………………………………………………… 14
Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999)……………….. 17
Crimes of the Year, Kalamazoo Gazette, Jan. 18, 1889 ……………………………………… 12
James Ewing, A Treatise on the Office & Duty of a Justice of the Peace (1805) ……………. 11
Mark Frassetto, The Law and Politics of Firearms Regulation in Reconstruction
Texas, 4 Tex. A&M L. Rev. __ (2016) (forthcoming)…………………………………… 20
William Hawkins, A Treatise of the Pleas of the Crown (1721)……………………………… 7, 8
John Haywood, A Manual of the Laws of North-Carolina (1814)……………………………. 11
Middlesex Sessions: Justices’ Working Documents (1751)……………………………………….. 7, 8
North Riding Record Society, Quarter Sessions Records (1884)………………………….. 6, 7
Population of the 100 Largest Urban Places: 1880,
U.S. Census Bureau (June 15, 1998) ………………………………………………………… 26
Recorders Court, Oregonian, Aug. 6, 1867 ………………………………………………………. 12
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 8 of 39
viii
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) ……………………………………………………………………………………… 5, 13, 17
Watch Returns, Evening Star, Nov. 26, 1856…………………………………………………… 12
When and Where May a Man Go Armed, S.F. Bulletin, Oct. 26, 1866……………………. 26
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 9 of 39
ix
GLOSSARY
Pl. Br. — The plaintiffs-appellants’ brief in this appeal (Doc. 1618975)
D.C. Br. — The District of Columbia’s brief in this appeal (Doc. 1624585)
Everytown Grace Br. — Everytown’s amicus curiae brief on appeal in Grace v.
District of Columbia (D.C. Cir., Case No. 16-7067; Doc. 1217834514)
Grace Reply — The plaintiffs’ district court reply in Grace v. District of Columbia
(D.D.C., Case No. 1:15-cv-02234; Dkt. 23)
Grace Supp. Br. — The plaintiffs’ district court supplemental brief in Grace v.
District of Columbia (D.D.C., Case No. 1:15-cv-02234; Dkt. 40)
NRA Br. — The National Rifle Association’s amicus curiae brief in Grace v. District of
Columbia (D.D.C., Case No. 1:15-cv-02234; Dkt. 15)
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 10 of 39
1
INTRODUCTION AND INTEREST OF AMICUS CURIAE
Everytown for Gun Safety is the nation’s largest gun-violence-prevention
organization. It filed a brief in the companion appeal, Grace v. District of Columbia,
presenting an account of the seven-century Anglo-American tradition of restricting
public carry, which demonstrates that the District of Columbia’s good-reason
requirement for carrying a firearm in public is more than sufficiently “longstanding”
to qualify as constitutional under District of Columba v. Heller, 554 U.S. 570 (2008).
Everytown has provided a similar account in this case—first in a prior appeal, and
then again in the district court—and it did the same in the district court in Grace.
Yet neither the plaintiffs nor their amici, nor Judge Leon’s opinion in Grace,
meaningfully contend with the wealth of historical evidence supporting the
District’s public-carry law. Instead, the challengers resort to mischaracterizing the
historical record, engaging in unsupported speculation about the contours of
historical laws, and selectively relying on certain outlier sources.
In this brief, we respond to the challengers’ primary historical arguments.
We begin with the English history—the centuries-old prohibition on carrying
firearms in populated public places. The challengers seek to alter the meaning of
this prohibition, claiming that it contained an unwritten “evil intent” or “menacing
conduct” requirement. But the historical materials reveal otherwise. We then turn
to America: Contrary to the challengers’ telling, the history shows that, from our
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 11 of 39
2
nation’s founding to its reconstruction, many states and cities enacted laws
prohibiting carrying a firearm in populated public places (either generally or
without good cause), and that these laws operated as criminal prohibitions. Finally,
we discuss the 19th-century American case law. Although the challengers cherrypick
a few selective cases to support their view, those cases emanate exclusively
from the slaveholding South—a part of the country that took an outlier approach
to public carry, and that included wide variability even within the region.
At the end of the day, the challengers do not deny that their reading of the
Second Amendment would render dozens of state and local laws—enacted both
before and after the Fourteenth Amendment’s ratification—unconstitutional. And
yet neither the plaintiffs nor their amici have identified a single historical example of
a successful challenge to a good-cause requirement like the District’s, much less a
challenge to a requirement applying exclusively to an area as highly urbanized as
modern-day Washington. This case should not become the first. This Court should
follow the history and uphold the District’s law as a longstanding, constitutional
regulation under Heller.
ARGUMENT
A. The challengers’ claim that the Statute of Northampton imposed
an evil-intent or threatening-conduct requirement is wrong.
As chronicled in our Grace brief (at 3-10), there is a long Anglo-American
tradition of broadly restricting public carry in populated areas—a tradition that
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 12 of 39
3
reaches back to at least 1328, when England enacted the Statute of Northampton.
See also D.C. Br. 13-22.1 The plaintiffs in this appeal barely grapple with the
English history, contending instead that the Court “must look to American
tradition,” because (as they see it) the Second Amendment “reflects the Framers’
concept of individual freedom” and “did not ratify the King’s understanding.” Pl.
Br. 31.
But this view contradicts Heller itself, which drew on English history in
interpreting the right to keep and bear arms and remarked that “it has always been
widely understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right.” 554 U.S. at 592. As the Ninth Circuit
recently observed, “Heller held that the Second Amendment, as originally adopted,”
protects a “right inherited from our English ancestors.” Peruta v. Cnty. of San Diego,
— F.3d —, 2016 WL 3194315, at *6 (9th Cir. June 9, 2016).
To the extent that the challengers endeavor to dispute this history, rather
than dismiss or downplay it, they essentially argue that the Statute of Northampton
applied only to public carrying when accompanied by “evil intent” or threatening
behavior. See Pl. Br. 31-35; NRA Br. 18. And that is how Judge Leon interpreted
1 As noted in the glossary, this brief uses the following abbreviations: The
plaintiffs’ brief in this appeal is cited as “Pl. Br.” The District’s brief in this appeal is
cited as “D.C. Br.” Everytown’s amicus brief on appeal in Grace is cited as
“Everytown Grace Br.” The plaintiffs’ district court briefs in Grace are cited as “Grace
Reply” and “Grace Supp. Br.” And the NRA’s district court amicus brief in Grace is
cited as “NRA Br.”
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 13 of 39
4
the law in Grace, expressing his belief that the “weight of historical evidence” shows
that the statute “forbade only carrying weapons in a terrifying manner that
threatened a breach of the peace and not the ordinary carrying of weapons for self
defense.” Grace Op. 22. But that understanding of the statute is wrong. The “weight
of the historical evidence” in fact shows that English law—outside of narrowly
circumscribed exceptions—prohibited the bare act of carrying arms in public.
Begin with the statute itself. On its face, the Statute of Northampton
provided 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). This broad prohibition was
reenacted numerous times over the ensuing decades, and was reflected in
England’s “first common law treatise,” which described the law as mandating that
“‘no one, of whatever condition he be, go armed in the said city or in the suburbs,
or carry arms, by day or by night.’” Peruta, 2016 WL 3194315, at *7 (quoting
Carpenter, Liber Albus: The White Book of the City of London 335 (Henry Thomas Riley
ed., 1861)). There is no reference to an “evil intent” requirement. To the contrary,
the law was “strictly enforced as a prohibition on going armed in public,” and any
violation was punished as “a misdemeanor resulting in forfeiture of arms and up to
thirty days imprisonment.” Charles, The Second Amendment in Historiographical Crisis,
39 Fordham Urb. L.J. 1727, 1804 (2012). A separate statute, by contrast, made it a
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 14 of 39
5
felony to carry arms with aggressive or menacing intent. See 25 Edw. 3, c. 2 § 13
(1350) (imposing felony penalties on anyone who went armed “against any other”).
Neither the plaintiffs nor their amici mention this statute, and it is not hard to see
why: If Northampton prohibited precisely the same conduct, only with lesser
penalties, it would be rendered superfluous.
Historical accounts confirm this plain meaning. Writing several centuries
after the law was first enacted, Blackstone explained 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 Blackstone, Commentaries on the Laws of England 148-49
(1769) (emphasis added). Terror, in other words, was considered a natural consequence
of publicly carrying arms—not a precondition to prosecution under the statute. See
D.C. Br. 16-18; Ruben & Cornell, Firearm Regionalism and Public Carry, 125 Yale L.J.
Forum 121, 129-30 (2015) (noting Blackstone’s implication that “terrorizing the
public was the consequence of going armed”). As one English court put it:
“Without all question, the sheriff 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.” Chune v. Piott, 80 Eng. Rep. 1161, 1162 (K.B. 1615)
(emphasis added); see also Coke, The Third Part of the Institutes of the Laws of England
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 15 of 39
6
161 (1817 reprint) (recounting the story of a man sentenced to prison because he
“went armed under his garments,” even though he had not threatened anyone but
had been threatened himself). The plaintiffs and their amici have no response to this
precedent, and they do not bother to give one. The only possible reading of Chune
is that the phrase “in terrorem populi Regis” described the effect of carrying a
firearm in public; it did not create an additional (atextual) requirement of “evil
intent,” menacing behavior, or any other conduct that would break the peace
beyond the bare carrying of firearms in public.
Nor can there be any doubt that the statute covered handguns. Although the
challengers try to make something of Blackstone’s reference to “dangerous or
unusual weapons,” see Grace Reply 7-8; Grace Supp. Br. 4; NRA Br. 18, that phrase
was widely understood to include handguns. In 1579, for example, Queen
Elizabeth I issued a proclamation emphasizing that the statute prohibited the
carrying of “Pistols, and such like, not only in Cities and Towns, [but] in all parts of
the Realm in common high[ways].” Charles, The Faces of the Second Amendment
Outside the Home, 60 Clev. St. L. Rev. 1, 21 (2012) (spelling modernized). Fifteen
years later, she reiterated that carrying pistols in public—whether “secretly” or in
the “open”—was “to the terrour of all people professing to travel and live
peaceably.” Id.; see also Peruta, 2016 WL 3194315, at *8; Rex v. Harwood, Quarter
Sessions at Malton (Oct. 4-5, 1608), reprinted in North Riding Record Society,
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 16 of 39
7
Quarter Sessions Records 132 (1884) (man arrested for committing “outragious
misdemeanours” by going “armed” with “pistolls[] and other offensive weapons”).2
Against this long trail of historical evidence, the challengers support their
contrary position primarily by (1) isolating and misreading a lone 17th-century
English prosecution, and (2) taking selective quotes from English commentators out
of context. See Pl. Br. 31-34; Grace Reply 6-8. Neither comes anywhere near
rebutting the full historical record. As to the former: The challengers contend that
the prosecution and ultimate acquittal of Sir John Knight in 1686 demonstrates
that the statute was interpreted to punish only “people who go armed to terrify the
king’s subjects” with “malo animo” (or evil intent). Pl. Br. 32 (quoting Sir John
Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686)); see also Grace Reply 6-7 (arguing that
Knight’s acquittal showed the “narrowing” of Northampton). But this description
2 The plaintiffs in this appeal also halfheartedly suggest (at 33) that “arms”
might have referred only to (defensive) armor, rather than (offensive) weapons. But
not only would that interpretation have made little sense as a policy matter—armor
cannot kill someone—it is also flatly contradicted by the case law, and the repeated
prosecutions against people for carrying pistols or other offensive weapons. See Rex v.
Harwood, supra (prosecution for going “armed and weaponed with a lance-staff
plated with iron, pistols, and other offensive weapons”); Rex v. Edward Mullins (K.B.
1751), Middlesex Sessions: Justices’ Working Documents, at http://bit.ly/1U8OhO7
(conviction for going armed with a cutlass); see also Chune, 80 Eng. Rep. at 112
(explaining that the sheriff can arrest “any one to carry weapons in the high-way”).
If anything, wearing armor (like “privy coats of mail”) in self-defense, at least in
some situations, was not construed to fall within the prohibition because armor,
unlike handguns, did not have the capacity to harm others, and thus did not
naturally “terrify the people.” 1 Hawkins, A Treatise of the Pleas of the Crown 489, 798
(1721).
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 17 of 39
8
of the case distorts its meaning: As the Ninth Circuit recently explained, Knight
was acquitted because, “as a government official, he was exempt from the statute’s
prohibition,” Peruta, 2016 WL 3194315, at *8—not because the statute had been
narrowed or “gone into desuetude.” And the challengers do not deny that there is
clear evidence that the statute continued to be enforced long after Knight’s
acquittal. See, e.g., Rex v. Mullins, Middlesex Sessions (reporting conviction in 1751).
As to the latter: The plaintiffs pounce on language from the Hawkins treatise
saying that “no wearing of arms is within the meaning of this Statute, unless it be
accompanied by circumstances as are apt to terrify the People.” Pl. Br. 32. But
Hawkins goes on to explain that this language, as we noted in our Grace brief (at 8-
9), referred to the customary practice of allowing high-ranking nobles to wear
ceremonial armor or swords in the “common fashion,” for that would not naturally
terrify the people. 1 Hawkins, A Treatise of the Pleas of the Crown, ch. 63, § 9 (1716).
The plaintiffs fail to mention this part of his treatise, just as they fail to mention the
part—right before the sentence they quote—where Hawkins provided the blanket
rule that one could not carry arms in public, and made clear that this general rule
could not be evaded by claiming that one faced a threat. He wrote: “a man cannot
excuse the wearing such armor in public, by alleging that such a one threatened
him, and that he wears for the safety of his person from his assault.” Id. § 8. Thus,
far from establishing a separate “terror” or “evil intent” requirement, the language
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 18 of 39
9
that the plaintiffs cite indicates that, aside from the exceptions delineated, wearing
arms in public itself constituted “circumstances as are apt to terrify the People”—
the same understanding of the statute that Blackstone had.
More generally, the challengers’ reading of the Statute of Northampton is at
odds with its structure. The statute expressly exempted the King’s officers, as well
as those assisting law enforcement, and (as just explained) implicitly exempted the
carrying of swords by nobles for ceremonial purposes. See Carpenter, Liber Albus, at
335 (explaining that “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”); Coke, Institutes 161-62; see also
Everytown Grace Br. 7-9. If the statute prohibited public carry only when
accompanied by menacing conduct, as the challengers contend, these exceptions
would be entirely unnecessary. See D.C. Br. 15-16.
The plaintiffs in this appeal do not even attempt to engage with these
exceptions. And the Grace plaintiffs have managed to muster only the convoluted
argument that the exceptions can be “read as applying to [the statute’s] specific
prohibitions” against bearing arms “before the King’s justices,” and not to its
general prohibition on public carry. Grace Supp. Br. 4-5. But there is no support for
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 19 of 39
10
that strange reading, and Sir John Knight’s acquittal suggests the opposite: that the
exceptions applied to the general prohibition on the bare public carrying of arms.
In short, all available historical materials—the statutory text, structure, case
law, and contemporaneous accounts—point in the same direction: For centuries
before America’s founding, England broadly prohibited carrying guns in populated
places, regardless of whether accompanied by a threat or other menacing conduct.
B. The challengers’ attempts to diminish the robust American
tradition of restricting public carry are without historical
foundation.
1. Early American Northampton-style laws. Turning to American
history, the plaintiffs in this appeal do not dispute that, as documented in our Grace
brief (at 10-14), numerous states and colonies enacted laws mirroring the Statute of
Northampton both before and after ratification of the Constitution. See, e.g., 1686
N.J. Laws 289, 289-90, ch. 9; 1694 Mass. Laws 12, no. 6; 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. Nor do they dispute that many
other states and colonies, as the Ninth Circuit recently observed, simply “adopted
verbatim, or almost verbatim, English law.” Peruta, 2016 WL 3194315, at *9.
Instead, the challengers’ argument with respect to these early American laws
boils down to the same one they make with respect to Northampton: that they
imposed a heightened intent or menace requirement. But here, too, history proves
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 20 of 39
11
otherwise. These American laws, like their English predecessor, broadly prohibited
carrying a firearm in public, commanding constables to “arrest all such persons as
in your sight shall ride or go armed.” Haywood, A Manual of the Laws of NorthCarolina
pt. 2 at 40 (1814) (N.C. constable oath). And, 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.” Ewing, A Treatise on the Office & Duty
of a Justice of the Peace 546 (1805). There was no requirement, in other words, that
the “peace must actually be broken, to lay the foundation for a criminal
proceeding.” Bishop, Commentaries on the Criminal Law 550 (1865).
That numerous English and American laws prohibited public carry in
populated areas for centuries—prohibitions that were far broader than the District’s
regulation at issue here—is reason enough for this Court to conclude that the
regulation is longstanding, and hence constitutional under Heller.
2. Good-cause (or “Massachusetts model”) laws. But those laws are
not the only historical precedents for the District’s good-reason requirement. In the
early- and mid-19th century, many states, starting with Massachusetts, enacted a
variant of the Statute of Northampton that allowed individuals who had
“reasonable cause to fear an assault” to publicly carry. 1836 Mass. Laws 748, 750
ch. 134, § 16; see 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;
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 21 of 39
12
1851 Minn. Laws 526, 528, ch. 112, § 18; 1853 Or. Laws 218, 220, ch. 16, § 17;
1861 Pa. Laws 248, 250, § 6; 1870 W. Va. Laws 702, 703, ch. 153, § 8; 1871 Tex.
Laws 1322, art. 6512. These statutes generally provided that, absent such
“reasonable cause,” no person could “go armed with a dirk, dagger, sword, pistol,
or other offensive and dangerous weapon.” 1836 Mass. Laws 748, 750 ch. 134,
§ 16. And, like the Northampton-style laws, there was no requirement that a person
engage in additional threatening conduct beyond bare public carry. 3 These
“reasonable cause” laws are further evidence that the District’s regulation falls
outside the historical scope of the Second Amendment. See D.C. Br. 24-25.
The plaintiffs barely address these laws on appeal, devoting only a single
sentence of their brief to them. See Pl. Br. 40. They appear to echo the Grace
plaintiffs’ assertion below that the Massachusetts-model “surety-style laws . . . are
worlds away from the flat ban the District now imposes,” because “these laws were
3 Newspaper articles from the 19th century describe criminal prosecutions
under these laws even when the person was carrying a concealed weapon—a form of
public carry that, by itself, does not indicate any menacing conduct beyond bare
carry. See, e.g., City Intelligence, Boston Courier (Boston, Mass.), Mar. 7, 1853, at 4
(reporting arrest and charge against person for “carrying a concealed weapon,” a
“loaded pistol”); Watch Returns, Evening Star (Washington, D.C.), Nov. 26, 1856, at
3 (describing multiple arrests for “[c]arrying [c]oncealed [w]eapons”); City Items,
Richmond Whig (Richmond, Va.), Sept. 25, 1860, at 3 (reporting that person was
“arraigned” for “carrying a concealed weapon” and “required [to] give security”);
Recorders Court, Oregonian (Portland, Or.), Aug. 6, 1867, at 4 (reporting conviction
for “carrying a concealed weapon,” resulting in two-day imprisonment); Crimes of
the Year, Kalamazoo Gazette (Kalamazoo, Mich.), Jan. 18, 1889, at 2 (describing
conviction for “[c]arrying concealed weapon,” resulting in 30-day prison sentence).
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 22 of 39
13
triggered only when some person who reasonably felt threatened by someone
bearing arms in public lodged a complaint.” Grace Supp. Br. 5. But the fact that
some of these laws used surety bonds and triggered penalties with a citizencomplaint
mechanism does not mean that the laws were not criminal.
4 Instead, as
we now explain, historical evidence indicates that these laws, like the District’s
similar good-reason requirement, operated as criminal restrictions, and thus
reinforces the conclusion that the District’s law is “longstanding” under Heller.
To begin, contrary to Judge Leon’s view that “the consequence imposed by
the surety law was merely the payment of a bond,” Grace Op. 25, sureties were a
kind of criminal punishment. “At common law, sureties were similar to present-day
guarantors in the bail context: members of the community who would pledge
responsibility for the defendant and risk losing their bond if the defendant failed to
‘keep the peace.’” Ruben & Cornell, 125 Yale L.J. Forum at 131. What’s more, the
failure to pay sureties for violating the statute could result in imprisonment. See, e.g.,
1836 Mass. Laws 748, 749 ch. 134, § 6 (“If the person, so ordered to recognize,
shall refuse or neglect to comply with such order, the magistrate shall commit him
to the county jail.”); 1846 Mich. Laws 690, 691, ch. 162, § 6 (same); 1851 Minn.
Laws 526, 527, ch. 112, § 8 (same).
4 Other states, however, like Virginia, West Virginia, and Texas, did not use
a citizen-complaint enforcement mechanism. See Everytown Grace Br. 16, 18.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 23 of 39
14
And these laws were specifically characterized by the legislatures as criminal
laws. The Massachusetts legislature, to take one example, placed its restriction in
Title II of the Code entitled “Of Proceedings in Criminal Cases,” and expressly
cited the state’s previous enactment of Northampton. 1836 Mass. Laws 748, 750,
ch. 134, § 16. To take another example, the Minnesota legislature titled the
relevant section “Persons carrying offensive weapons, how punished.” 1851 Minn.
Laws at 527-28, §§ 2, 17, 18. Many of the other laws were likewise contained in
acts or chapters explicitly referencing criminal arrests and proceedings. See, e.g.,
1846 Mich. Laws 690, ch. 162 § 16 (“Of Proceedings in Criminal Cases”); 1847 Va.
Laws 127, ch. 14, § 16 (same); 1871 Tex. Laws 1322, art. 6512 (“Criminal Code”).
Finally, although there is an absence of detailed historical commentary or
case law, contemporaneous evidence also indicates that these laws were enforced as
criminal prohibitions on public carry without reasonable cause. For example, Peter
Oxenbridge Thacher, a state judge, commented on Massachusetts’s law in a grand
jury charge that “drew praise in the contemporary press,” explaining 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: Separating Historical Myths from Historical Realities, 39 Fordham Urb. L.J. 1695,
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 24 of 39
15
1720 (2012); see id. at 1721 (noting that Judge Thacher’s account “unambiguously
interprets this law as a broad ban on the use of arms in public”).
Other accounts show the same. In 1878, a man was convicted of “going
armed with a revolver” in Milwaukee, Wisconsin. Charles, The Faces of the Second
Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64 Clev.
St. L. Rev. 373, 404 (2016). Although he “defended himself on the grounds that he
had no intent to use the weapon and therefore was not a danger to the public,” the
judge “informed the jury that the statute only provided a defense for those that
were ‘carrying weapons on the apprehension of violence.’” Id. (quoting Dear Pistol
Practice, Milwaukee Daily Sentinel, Oct. 23, 1878, at 8). And, as explained earlier
(in footnote 3), contemporaneous newspaper accounts reported a number of
criminal arrests and prosecutions involving defendants who had violated these state
prohibitions on publicly carrying.
And this is to say nothing of the many early-20th-century laws, which we did
not have the space to discuss in our Grace brief. To mention just a few here: In 1909,
Alabama made it a crime for anyone “to carry a pistol about his person on
premises not his own or under his control,” but allowed a defendant to “give
evidence that at the time of carrying the pistol he had good reason to apprehend an
attack,” which the jury could consider as mitigation or justification. 1909 Ala. Laws
258, no. 215, §§ 2, 4. In 1913, New York prohibited all public carry without a
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 25 of 39
16
permit, which required a showing of “proper cause,” and Hawaii prohibited public
carry without “good cause.” 1913 N.Y. Laws 1627; 1913 Haw. Laws 25, act 22, § 1.
A decade later, in 1923, the U.S. Revolver Association published a model law,
which several states adopted, requiring a person to demonstrate a “good reason to
fear an injury to his person or property” before they could obtain a permit to carry
a concealed firearm in public.5 The NRA’s future president, Karl T. Frederick, was
“one of the draftsmen” of this law. 3rd Report of Comm. on Uniform Act to Regulate the
Sale & Possession of Firearms, Nat’l Conf. on Uniform State Laws 573 (1926). West
Virginia and Massachusetts also enacted public-carry licensing laws around this
time, prohibiting all carry absent a showing of good cause. See 1927 Mass Laws
413; 1925 W.Va. Laws 25 (Extraordinary Session). And other states went further,
prohibiting all public carry with no exception for good cause. See, e.g., 1890 Okla.
Laws 495, art. 47, §§ 2, 5 (making it a crime for anyone “to carry upon or about his
person any pistol, revolver,” or “other offensive or defensive weapon,” except for
carrying “shot-guns or rifles for the purpose of hunting, having them repaired, or
for killing animals,” or for using them in “military drills, or while travelling or
removing from one place to another”); 1903 Okla. Laws 643, ch. 25, art. 45, § 584.
5 See 1923 Cal. Laws 701, ch. 339; 1923 Conn. Laws 3707, ch. 252; 1923
N.D. Laws 379, ch. 266; 1923 N.H. Laws 138, ch. 118; 1925 Mich. Laws 473, no.
313; 1925 N.J. Laws 185, ch. 64; 1925 Ind. Laws 495, ch. 207; 1925 Or. Laws 468,
ch. 260.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 26 of 39
17
In sum, a long tradition of American law makes clear that prohibitions on
public carry—with or without a good-cause exception—were historically
understood to be outside the scope of the Second Amendment. The District’s law,
requiring good cause before a person may carry a firearm on the crowded streets of
Washington, fits squarely within this tradition, and is therefore constitutional.
C. The challengers cherry-pick a handful of cases from the
slaveholding South, which took an outlier approach to public
carry and exhibited wide variability even within the region.
Seeking to overcome the centuries-old tradition of restricting public carry in
populated areas, the challengers seize on a smattering of state-court decisions from
the slaveholding South. But these antebellum cases demonstrate only that some
Southerners took a more permissive view of public carry than the rest of the nation;
they do not stand for the proposition that public-carry restrictions throughout the
country—from West Virginia to Wyoming, Massachusetts to Kansas, and a slew of
cities in between—were widely understood to contravene the right to bear arms.
As we explained in our Grace brief (at 16-18), many states in the South
adopted a more permissive approach to public carry than the rest of the country,
generally allowing white citizens to carry firearms in public so long as the firearms
were not concealed. See, e.g., 1854 Ala. Laws 588, § 3272; 1861 Ga. Laws 859,
§ 4413; see generally Cramer, Concealed Weapon Laws of the Early Republic (1999). This
alternative (and minority) tradition owes itself to the South’s peculiar history and
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 27 of 39
18
the prominent institution of slavery. See generally Ruben & Cornell, 125 Yale L.J.
Forum 121. It reflects “a time, place, and culture where slavery, honor, violence,
and the public carrying of weapons were intertwined,” id. at 125—a divergent set
of societal norms that shaped cases and legislation alike.
So it is no retort to say, as the challengers do, that the District’s law is not a
longstanding, constitutional regulation because a few Southern state courts
suggested otherwise in the middle of the 19th century. But even if this Court were
to focus on just the South, and to ignore the rest of the country, it would see that
courts and legislatures throughout the region took varying stances toward public
carry.
Virginia, for example, “home of many of the Founding Fathers,” Edwards v.
Aguillard, 482 U.S. 578, 605 (1987) (Powell, J., concurring), indisputably prohibited
public carry (with an exception for good cause) before ratification of the Fourteenth
Amendment, after enacting a Northampton-style prohibition at the Founding.
1847 Va. Laws at 129, § 16 (making it illegal for any person to “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”); 1786 Va. Laws 33,
ch. 21. South Carolina enacted a Northampton-style law during Reconstruction.
1870 S.C. Laws 403, no. 288, § 4. Around the same time, Texas prohibited public
carry with an exception for good cause—a prohibition enforced with possible jail
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 28 of 39
19
time, and accompanied by narrow exceptions that confirmed the law’s breadth.
1871 Tex. Laws 1322, art. 6512 (prohibiting public carry absent an “immediate
and pressing” need for self-defense, while exempting travelers “carrying arms with
their baggage” and people carrying guns on their “own premises” and “place of
business”). And West Virginia, added to the Union during the Civil War, similarly
allowed public carry only upon a showing of good cause. 1870 W. Va. Laws 702,
703, ch. 153, § 8. Neither the plaintiffs nor their amici meaningfully respond to
these laws.
Southern case law, too, reveals a lack of uniformity. Although a few preCivil-War
decisions interpreted state constitutions in a way that can be read to
support a right to carry openly, even in populated public places without good cause,
several post-War cases held the opposite. The Texas Supreme Court, for instance,
twice upheld that state’s good-cause requirement. English v. State, 35 Tex. 473
(1871); State v. Duke, 42 Tex. 455 (1874). The court remarked that the law—which
prohibited carrying “any pistol” in public without good cause, 1871 Tex. Laws
1322, art. 6512—“is nothing more than a legitimate and highly proper regulation”
that “undertakes to regulate the place where, and the circumstances under which, a
pistol may be carried; and in doing so, it appears to have respected the right to
carry a pistol openly when needed for self-defense or in the public service, and the
right to have one at the home or place of business,” Duke, 42 Tex. at 459. The
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 29 of 39
20
court explained that the law thus made “all necessary exceptions,” and noted that it
would be “little short of ridiculous” for a citizen to “claim the right to carry” a
pistol in “place[s] where ladies and gentlemen are congregated together.” English,
35 Tex. at 477-79. Further, the court observed, the good-cause requirement was
“not peculiar to our own state,” for nearly “every one of the states of this Union
ha[d] a similar law upon their statute books,” and many had laws that were “more
rigorous than the act under consideration.” Id. at 479; see also Frassetto, The Law and
Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. A&M L. Rev. ___ (2016)
(forthcoming), available at http://bit.ly/29MMHMO.
When the U.S. Supreme Court considered Texas’s law in 1894, it took a
similar view. After noting that the law “forbid[s] the carrying of weapons” absent
good cause and “authoriz[es] the arrest without warrant of any person violating
[it],” the Court 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). Other
courts upheld similar good-cause laws against constitutional attacks. See, e.g., State v.
Workman, 35 W. Va. 367, 367 (1891) (upholding West Virginia’s good-cause
requirement, which the court had previously interpreted, in State v. Barnett, 34 W.
Va. 74 (1890), to require specific, credible evidence of an actual threat of violence,
and not an “idle threat”). And even when a law wasn’t directly challenged as
unconstitutional, like in Virginia, courts “administered the law, and consequently,
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 30 of 39
21
by implication at least, affirmed its constitutionality.” Id. (referring to Virginia and
West Virginia courts).
By contrast, the challengers have identified no historical case (Southern or
otherwise) striking down a good-cause requirement as unconstitutional, let alone a
law applying exclusively to urban areas. Even Andrews v. State, 50 Tenn. 165 (1871),
a case on which the challengers heavily rely, does not go so far. The Tennessee
Supreme Court in that case invalidated a law that “in effect [was] an absolute
prohibition” on carrying a weapon “for any and all purposes,” whether “publicly or
privately, without regard to time or place, or circumstances.” Id. at 187 (emphasis
added). “Under this statute,” the court explained, “if a man should carry such a
weapon about his own home, or on his own premises, or should take it from his
home to a gunsmith to be repaired, or return with it, should take it from his room
into the street to shoot a rabid dog that threatened his child, he would be subjected
to the severe penalties of fine and imprisonment prescribed in the statute.” Id.
In striking down that broad prohibition, the court did not cast doubt on the
constitutionality of a law like the District’s, which does not prohibit carrying a
firearm in all places, but requires only that a person show good cause to carry a
firearm publicly, in an entirely urban area. If anything, the Tennessee Supreme
Court did the opposite: It reaffirmed that the legislature “may by a proper law
regulate the carrying of this weapon publicly, or abroad, in such a manner as may
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 31 of 39
22
be deemed most conducive to the public peace, and the protection and safety of the
community from lawless violence.” Id. at 187-88. And although the court suggested
that, under Tennessee law, the right to bear arms might protect public carry in the
narrow circumstance “where it was clearly shown that [the arms] were worn bona
fide to ward off or meet imminent and threatened danger to life or limb, or great
bodily harm,” id. at 192, the District’s good-cause requirement allows for just that.
In the end, the challengers’ reliance on the Southern case law rests almost
entirely on just a couple of cases that, in the course of upholding concealed-carry
prohibitions, expressed the view that the right to bear arms protects the right,
under some circumstances, to openly carry a weapon in public. See Nunn v. State, 1
Ga. 243 (1846) (striking down a broad, statewide prohibition on openly carrying
weapons based on the erroneous view that the Second Amendment applied to the
states before 1868). 6 But even within the South, open carry was rare: The
Louisiana Supreme Court, for example, referred to “the extremely unusual case of
the carrying of such weapon in full open view.” State v. Smith, 11 La. Ann. 633, 634
(1856). And the District’s law, of course, does not go nearly as far as the one struck
6 Some of the plaintiffs’ supporters have taken the position that even cases
like Nunn were wrongly decided because they upheld the state’s authority to
regulate the manner of public carry (open versus concealed). The NRA recently
advanced the extreme position that the Second Amendment “guarantees a right to
carry openly,” as well as concealed, such that even a shall-issue concealed-carry
regime, like Florida’s, is unconstitutional because it does not also allow for open
carry—a position that is utterly devoid of any historical support. See NRA Br. in
Norman v. State, No. SC15-650 (Fla.), at 2, at http://bit.ly/2a0gzI6.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 32 of 39
23
down in Nunn, which prohibited all public carry, and banned most handguns. The
District’s law, by sharp contrast, allows for public carry if a person demonstrates
good cause, and applies only in a narrow, highly urbanized area that is thoroughly
dotted with diplomatic housing and government buildings.
At any rate, isolated snippets from a few state-court decisions issued decades
after the Framing cannot trump the considered judgments of countless courts and
legislatures throughout our nation’s history. Indeed, so far as we are aware, no
constitutional challenge to a good-cause requirement has ever succeeded in this
country. And many legislators, spanning across centuries, have enacted such a
requirement without courts casting doubt on its constitutionality.
D. The upshot of the challengers’ position is that dozens of state and
local laws—enacted both before and after the Fourteenth
Amendment’s ratification—were unconstitutional.
Finally, the plaintiffs do not deny the upshot of their position: that dozens of
state and local laws—passed both before and after ratification of the Fourteenth
Amendment—were unconstitutional.
Indeed, during and after Reconstruction, several legislatures enacted
criminal prohibitions on public carry in cities and other populated areas. See, e.g.,
1869 N.M. Laws 312, Deadly Weapons Act of 1869, § 1 (making it “unlawful for any
person to carry deadly weapons . . . within any of the settlements of this
Territory”); 1875 Wyo. Laws 352, ch. 52, § 1 (prohibiting the carrying of firearms
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 33 of 39
24
“within the limits of any city, town or village”); 1889 Idaho Laws 23, § 1 (making 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”); 1889 Ariz. Laws 16, ch.
13, § 1 (prohibiting “any person within any settlement, town, village or city within
this Territory” from “carry[ing] . . . any pistol”). Soon thereafter, Texas and
Michigan enacted laws giving cities the authority to “regulate, restrain or prohibit
the . . . carrying and using of firearms.” 1901 Mich. Laws 687, § 8; see 1909 Tex.
Laws 105 (granting cities the “[p]ower . . . to prohibit and restrain the carrying of
pistols”).7
Likewise, as we explained in our Grace brief, numerous cities enacted local
ordinances prohibiting the public carrying of guns within city limits, ranging from
Washington, D.C. itself, to New Haven, San Antonio, and Los Angeles. See
Everytown Grace Br. 20-21 & n.13 (citing 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.
7 Texas’s Massachusetts-model law, discussed above, was also enacted right
after the Fourteenth Amendment’s ratification. See 1871 Tex. Laws 1322, art. 6512.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 34 of 39
25
1641 (1899); McKinney, Tex., Ordinance no. 20 (1899); San Antonio, Tex.,
Ordinance ch. 10 (1899)).
In Heller, the Supreme Court instructed courts to look at “how the Second
Amendment was interpreted from immediately after its ratification through the end
of the 19th century,” by “examin[ing] a variety of legal and other sources to
determine the public understanding of [the] legal text.” 554 U.S. at 605; see id. at
610-19 (analyzing “Pre-Civil War Case Law,” “Post-Civil War Legislation,” and
“Post-Civil War Commentators”). That dozens of states and cities enacted laws
prohibiting or sharply limiting public carry during the period identified in Heller
strongly indicates that the Second Amendment was not understood to preclude
such laws. And then there are the earlier American laws prohibiting or otherwise
restricting public carry, such as the Northampton-style prohibitions and the
Massachusetts-model laws already described.
The plaintiffs do not even attempt to engage with these 19th-century laws,
vaguely claiming only that “not every historical arms-bearing restriction or
regulation was tested in court,” and that “one can always find an ancient law that
conflicts with how a fundamental right is understood today.” Pl. Br. 41. But that is
no response to Heller’s clear historical command.
Nor are these laws merely an “odd assortment” of “scattered, outlier laws,”
as the Grace plaintiffs asserted below. Grace Supp. Br. 7-8. Adding up the
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 35 of 39
26
Northampton-style, Massachusetts-model, and post-Fourteenth-Amendment laws,
20 states and territories had enacted public-carry laws by the turn of the century
that were at least as restrictive as the District’s law here. And several more did so in
the early part of the 20th century. The challengers, by contrast, have thus far
identified only a handful of Southern states that allowed for public carry in
populated places, regardless of whether a person had a good reason. Moreover, as
explained above, numerous cities across the nation—from the Wild West to the
Northeast—had enacted ordinances broadly prohibiting public carry, including
four of the 40 most populous cities in 1880 (Washington, D.C., New Haven,
Syracuse, and Nashville).
8
That we do not have clear historical evidence from even more cities does not
mean—as the Grace plaintiffs have baselessly asserted—that “[t]he other 96 most
populous cities . . . allowed public arms bearing of at least some kind during this
period.” Grace Supp. Br. 8. First, some of the nation’s largest cities at that time—
such as Philadelphia (the second most populous) and Boston (the fifth most
populous)—are located in states that had statewide prohibitions on public carry.
Thus, no separate municipal prohibition would have been necessary. Second,
contemporaneous press accounts indicate that other large cities at the time, like
San Francisco (the ninth most populous), had similar prohibitions. See When and
8 Population of the 100 Largest Urban Places: 1880, U.S. Census Bureau (June 15,
1998), http://bit.ly/29OZTUP.
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 36 of 39
27
Where May a Man Go Armed, S.F. Bulletin, Oct. 26, 1866, at 5 (“The law ordains that
no person can carry deadly weapons.”). Finally, the challengers themselves have yet
to point to any historical evidence supporting their claims that public carry was
widely permitted in populous cities. And even if they could marshal some historical
support for their claims, that would show only that different cities took different
approaches, as one would expect in our federalist system.
What the challengers cannot deny is that all of these well-recognized 19thcentury
laws—both state and local—would have been unconstitutional under their
reading of the Second Amendment. This Court should reject that untenable
position, and instead uphold the District’s law as a longstanding, constitutional
regulation under Heller.
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
NEIL K. SAWHNEY
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
MARK ANTHONY FRASSETTO
EVERYTOWN FOR GUN SAFETY
P.O. Box 4184
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 37 of 39
28
New York, NY 10163
July 20, 2016 Counsel for Amicus Curiae
Everytown for Gun Safety
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 38 of 39
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)
I hereby certify that my word processing program, Microsoft Word, counted
6,989 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 20, 2016, I electronically filed the foregoing
Corrected 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
USCA Case #16-7025 Document #1625988 Filed: 07/20/2016 Page 39 of 39