Amicus Brief: Peruta v. County of San Diego

Everytown for Gun Safety filed this amicus brief in the Ninth Circuit in a case challenging San Diego’s policy requiring a permit to carry a concealed handgun. The brief explained that San Diego’s requirement that an applicant have a “good cause” to obtain a permit was consistent with centuries of American tradition, and fully constitutional under the Second Amendment.

Open PDF

Nos. 10-56971, 11-16255
In the United States Court of Appeals
for the Ninth Circuit ____________________________
EDWARD PERUTA, et al.,
Plaintiffs-Appellants,
v.
COUNTY OF SAN DIEGO, et al.,
Defendants-Appellees.
_____________________________
ADAM RICHARDS, et al.,
Plaintiffs-Appellants,
v.
ED PRIETO, et al.,
Defendants-Appellees.
_____________________________
On En Banc Review of Appeals from the United States District
Courts for the Southern and Eastern Districts of California
____________________________
BRIEF OF AMICUS CURIAE EVERYTOWN FOR GUN SAFETY
IN SUPPORT OF APPELLEES AND AFFIRMANCE
____________________________
April 30, 2015
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA BECK PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
[email protected]
Counsel for Amicus Curiae
Everytown for Gun Safety
i
CORPORATE DISCLOSURE STATEMENT
Amicus Curiae Everytown for Gun Safety has no parent corporations. It has no
stock, and therefore, no publicly held company owns 10% or more of its stock.
/s/ Deepak Gupta
Deepak Gupta
ii
TABLE OF CONTENTS
Corporate disclosure statement ……………………………………………………………………… i
Table of Authorities……………………………………………………………………………………. vi
Introduction and interest of amicus curiae…………………………………………………………. 1
Background………………………………………………………………………………………………… 4
A. English History …………………………………………………………………………….. 4
1. Beginning in 1328, England broadly restricts public carry in
populated areas …………………………………………………………………….. 4
2. In the 17th and 18th centuries, English authorities interpret
the Statute of Northampton to restrict public carry in
populated areas …………………………………………………………………….. 5
3. The law’s narrow exceptions confirm this general
prohibition on public carry …………………………………………………….. 8
4. The Statute of Northampton’s public-carry restriction
remains fully in effect following the English Bill of Rights of
1689…………………………………………………………………………………… 10
B. Founding-Era American History…………………………………………………… 11
1. The colonies begin importing England’s tradition of
regulating public carry into their own laws……………………………… 11
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 laws restricting public carry while
creating a narrow exception for “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 …….. 17
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
iii
2. Beginning immediately after the 14th Amendment’s
ratification, many western legislatures enact laws prohibiting
public carry in populated areas……………………………………………… 19
Argument…………………………………………………………………………………………………. 21
Because California’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.” ………………. 23
B. California’s law has a centuries-long pedigree in Anglo-American
history and is therefore “longstanding” and constitutional under
Heller………………………………………………………………………………………….. 24
1. The law’s special sensitivity to local conditions traces back to
13th-century England and 19th-century America. …………………… 24
2. The law’s good-cause requirement has its roots in pre-Civil
War America………………………………………………………………………. 26
Conclusion ……………………………………………………………………………………………….. 27
Appendix of historical statutes and materials ………………………………………….. App. 1
English laws…………………………………………………………………………………. App. 1
Statute of Northampton, 2 Edw. 3, 258, ch. 3 (1328) ………………… App. 1
25 Edw. 3, 320, ch. 2, § 13 (1350) …………………………………………… App. 2
34 Edw. 3, 364, ch. 1 (1360)…………………………………………………… App. 8
7 Ric. 2, 35, ch. 13 (1383)…………………………………………………….. App. 10
20 Ric. 3, 93, ch. 1 (1396)…………………………………………………….. App. 13
Calendar of the Close Rolls, Henry IV (Jan. 30, 1409) …………………….. App. 15
American enactments of the Statute of Northampton …………………….. App. 17
1694 Mass. Laws 12, no. 6 …………………………………………………… App. 17
1786 Va. Laws 33, ch. 21…………………………………………………….. App. 20
1792 N.C. Laws 60 ch. 3……………………………………………………… App. 21
1795 Mass. Laws 436, ch. 2 …………………………………………………. App. 25
1801 Tenn. Laws 710, § 6 ……………………………………………………. App. 26
1821 Me. Laws 285, ch. 76, § 1…………………………………………….. App. 27
iv
1852 Del. Laws 330, ch. 97, § 13 ………………………………………….. App. 33
1859 N.M. Laws 94, § 2 ………………………………………………………. App. 41
Other colonial-era American laws………………………………………………… App. 46
1686 N.J. Laws 289, ch. 9 ……………………………………………………. App. 46
1784 Mass. Laws 105, ch. 27 ……………………………………………….. App. 48
Northern-model laws………………………………………………………………….. App. 50
1836 Mass. Laws 750, § 16…………………………………………………… App. 50
1838 Wisc. Laws 381, § 16 …………………………………………………… App. 54
1841 Me. Laws 709, ch. 169, § 16…………………………………………. App. 55
1846 Mich. Laws 690, ch. 162, § 16………………………………………. App. 56
1847 Va. Laws 127, ch. 14, § 15 …………………………………………… App. 59
1851 Minn. Laws 526, ch. 112, § 18 ……………………………………… App. 62
1853 Or. Laws 218, ch. 16, § 17 …………………………………………… App. 66
1857 D.C. Laws 567, ch. 141, § 15 ……………………………………….. App. 69
1861 Pa. Laws 248, 250, § 6…………………………………………………. App. 74
1870 W. Va. Laws 702, ch. 153, § 8………………………………………. App. 93
1871 Tex. Laws 1322, art. 6512……………………………………………. App. 96
1873 Minn. Laws. 1025, § 17 ……………………………………………….. App. 99
1891 W. Va. Laws 915, ch. 148, § 7…………………………………….. App. 100
Southern-model laws ………………………………………………………………… App. 102
1854 Ala. Laws 588, § 3272 ……………………………………………….. App. 102
1861 Ga. Laws 859, § 4413 ………………………………………………… App. 106
Western-model state laws…………………………………………………………… App. 107
1869 N.M. Laws 312, § 1 …………………………………………………… App. 107
1875 Wyo. Laws 352, ch. 52, § 1…………………………………………. App. 110
1889 Ariz. Laws, ch. 13, § 1 ……………………………………………….. App. 111
1889 Idaho Laws 23, § 1 ……………………………………………………. App. 112
1901 Mich. Laws 687, § 8 ………………………………………………….. App. 113
1909 Tex. Laws 105 ………………………………………………………….. App. 115
v
Western-model local ordinances…………………………………………………. App. 116
Nebraska City, Neb., Ordinance no. 7 (1872)……………………….. App. 116
Nashville, Tenn., Ordinance ch. 108 (1873) …………………………. App. 117
Los Angeles, Cal., Ordinance nos. 35-36 (1878)……………………. App. 119
Salina, Kan., Ordinance no. 268 (1879) ………………………………. App. 120
Syracuse, N.Y., Ordinances ch. 27 (1885) ……………………………. App. 121
Dallas, Tex., Ordinance (1887) …………………………………………… App. 122
Checotah, Okla., Ordinance no. 11 (1890)…………………………… App. 123
New Haven, Conn., Ordinances § 192 (1890) ………………………. App. 124
Rawlins, Wyo., Rev. Ordinances art. 7 (1893)………………………. App. 125
Wichita, Kan., Ordinance no. 1641 (1899)…………………………… App. 127
McKinney, Tex., Ordinance no. 20 (1899)…………………………… App. 129
Other Reconstruction-era laws…………………………………………………… App. 130
1871 Tenn. Laws 81, ch. 90, § 1 …………………………………………. App. 130
1881 Ark. Laws 490, ch. 53, § 1907 …………………………………….. App. 131
vi
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) ……………………………………………………………………………passim
Friedman v. Highland Park,
— F.3d —, 2015 WL 1883498 (7th Cir. Apr. 27, 2015) ……………………………… 26
Fyock v. Sunnyvale,
779 F.3d 991 (9th Cir. 2015)………………………………………………………………. 23, 24
Jackson v. City & County of San Francisco,
746 F.3d 953 (9th Cir. 2014)……………………………………………………………………. 23
King v. Hutchinson,
168 Eng. Rep. 273 (1784) ……………………………………………………………………. 7, 12
McDonald v. City of Chicago,
561 U.S. 742 (2010) ……………………………………………………………………………. 3, 17
Payton v. New York,
445 U.S. 573 (1980) …………………………………………………………………………………. 6
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)……………………………………………………………………… 9
State v. Barnett,
34 W. Va. 74 (1890)………………………………………………………………………….. 19, 27
United States v. Booker,
644 F.3d 12 (1st Cir. 2011) ……………………………………………………………………… 24
vii
United States v. Skoien,
614 F.3d 638 (7th Cir. 2010)……………………………………………………………………. 24
American statutes
1686 N.J. Laws 289, ch. 9…………………………………………………………………………… 11
1694 Mass. Laws 12, no. 6………………………………………………………………………….. 12
1784 Mass. Laws 105, ch. 27………………………………………………………………………. 15
1786 Va. Laws 33, ch. 21 …………………………………………………………………………… 13
1792 N.C. Laws 60 ch. 3 ……………………………………………………………………………. 13
1795 Mass. Laws 436, ch. 2………………………………………………………………………… 13
1801 Tenn. Laws 710, § 6…………………………………………………………………………… 13
1821 Me. Laws 285, ch. 76, § 1 …………………………………………………………………… 13
1836 Mass. Laws 750, § 16 ……………………………………………………………………. 15, 26
1838 Wisc. Laws 381, § 16………………………………………………………………………….. 16
1841 Me. Laws 709, ch. 169, § 16 ……………………………………………………………….. 16
1846 Mich. Laws 690, ch. 162, § 16 …………………………………………………………….. 16
1847 Va. Laws 127, ch. 14, § 15……………………………………………………….. 16, 17, 26
1851 Minn. Laws 526, ch. 112, § 18……………………………………………………….. 16, 27
1852 Del. Laws 330, ch. 97, § 13…………………………………………………………………. 13
1853 Or. Laws 218, ch. 16, § 17………………………………………………………………….. 16
1854 Ala. Laws 588, § 3272………………………………………………………………………… 17
1857 D.C. Laws 567, ch. 141, § 15………………………………………………………………. 16
1859 N.M. Laws 94, § 2……………………………………………………………………………… 18
1861 Ga. Laws 859, § 4413 ………………………………………………………………………… 17
viii
1861 Pa. Laws 248, 250, § 6 ……………………………………………………………………….. 16
1869 N.M. Laws 312, § 1………………………………………………………………………. 20, 25
1870 W. Va. Laws 702, ch. 153, § 8 ……………………………………………………….. 19, 27
1871 Tenn. Laws 81, ch. 90, § 1………………………………………………………………….. 19
1871 Tex. Laws 1322, art. 6512 …………………………………………………………….. 19, 27
1873 Minn. Laws. 1025, § 17 ……………………………………………………………………… 16
1875 Wyo. Laws 352, ch. 52, § 1 ……………………………………………………………. 20, 25
1881 Ark. Laws 490, ch. 53, § 1907……………………………………………………………… 19
1889 Ariz. Laws, ch. 13, § 1…………………………………………………………………… 20, 25
1889 Idaho Laws 23, § 1……………………………………………………………………….. 20, 25
1891 W. Va. Laws 915, ch. 148, § 7 …………………………………………………………….. 19
1901 Mich. Laws 687, § 8…………………………………………………………………………… 20
1909 Tex. Laws 105…………………………………………………………………………………… 20
Cal. Penal Code § 25850(a)……………………………………………………………………… 2, 22
Cal. Penal Code § 26170(a)(2)………………………………………………………………….. 2, 22
Cal. Penal Code § 26350(a)……………………………………………………………………… 2, 22
American municipal ordinances
Checotah, Okla., Ordinance no. 11 (1890) …………………………………………………… 21
Dallas, Tex., Ordinance (1887)……………………………………………………………………. 21
Los Angeles, Cal., Ordinance nos. 35-36 (1878) ……………………………………………. 20
McKinney, Tex., Ordinance no. 20 (1899) …………………………………………………… 21
Nashville, Tenn., Ordinance ch. 108 (1873)………………………………………………….. 20
Nebraska City, Neb., Ordinance no. 7 (1872)……………………………………………….. 20
ix
New Haven, Conn., Ordinances § 192 (1890)……………………………………………….. 21
Rawlins, Wyo., Rev. Ordinances art. 7 (1893) ………………………………………………. 21
Salina, Kan., Ordinance no. 268 (1879)……………………………………………………….. 20
Syracuse, N.Y., Ordinances ch. 27 (1885)…………………………………………………….. 21
Wichita, Kan., Ordinance no. 1641 (1899) …………………………………………………… 21
English statutes and royal proclamations
20 Ric. 3, 93, ch. 1 (1396) …………………………………………………………………………….. 4
25 Edw. 3, 320, ch. 2, § 13 (1350)………………………………………………………………….. 5
34 Edw. 3, 364, ch. 1 (1360) ……………………………………………………………………….. 15
7 Ric. 2, 35, ch. 13 (1383)…………………………………………………………………………….. 4
Statute of Northampton, 2 Edw. 3, 258, ch. 3 (1328)……………………………………. 4, 7
Calendar of the Close Rolls, Henry IV (Jan. 30, 1409)………………………………………. 10, 25
Books and articles
Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes 214 (1873) ………….. 12
William Blackstone, Commentaries on the Laws of England (1769)……………….. 6, 7, 9, 10
Joseph Blocher, Firearm Localism, 123 Yale L.J. 82 (2013)………………………………… 21
John Bond, A Compleat Guide for Justices of the Peace 42 (1707)…………………………….. 12
John Carpenter & Richard Whitington, Liber Albus: The White Book of the
City of London (1419) (1861 reprint) ……………………………………………………………. 10
Patrick J. Charles, The Faces of the Second Amendment Outside the Home, 60
Clev. St. L. Rev. 1 (2012)…………………………………………………………………….passim
Patrick J. Charles, The Statute of Northampton by the Late Eighteenth Century, 41
Fordham Urb. L.J. 1695 (2012) …………………………………………………………………. 6
Edward Coke, The Third Part of the Institutes of the Laws of England (1817
reprint) ……………………………………………………………………………………………….. 6, 8
x
Commission and Instructions to the Justices of Peace & Constables (1661) ………………………. 7
Saul Cornell, The Right to Carry Firearms Outside of the Home, 39 Fordham
Urb. L.J. 1695 (2012) ……………………………………………………………………………… 16
Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999)……………….. 17
Garret Epps, Any Which Way But Loose, 55 Law & Contemp. Probs. 303
(1992)……………………………………………………………………………………………………… 9
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) ………………………………………… 16
William Hawkins, A Treatise of the Pleas of the Crown (1721) ………………………… 8, 9, 12
John Haywood, A Manual of the Laws of North-Carolina (1814) ……………………………. 14
John Haywood, The Duty & Authority of Justices of the Peace, in the State of
Tennessee (1810) ………………………………………………………………………………………. 14
John Haywood, The Duty and Office of Justices of the Peace, and of Sheriffs,
Coronoers, Constables (1800)………………………………………………………………………… 14
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)……………………………………………………………………………………. 7
William Lambarde, The Duties of Constables, Borsholders, Tythingmen, and Such
Other Low and Lay Ministers of the Peace (1602)…………………………………………………. 7
Aaron Leaming & Jacob Spicer, Grants, Concessions & Original Constitutions
(1881)……………………………………………………………………………………………………. 14
Jonathan Meltzer, Open Carry for All, 123 Yale L.J. 1486 (2014) ……………………….. 11
Frederick Law Olmsted, A Journey in the Back Country (1860) …………………………….. 17
William Oldnall Russell, A Treatise on Crimes & Misdemeanors (1826) …………… 8, 9, 12
xi
St. George Tucker, Blackstone’s Commentaries (1803)……………………………………….. 7, 9
Francis Wharton, A Treatise on the Criminal Law of the United States (1846)…………….. 14
Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America
(2011)……………………………………………………………………………………………………. 21
1
INTRODUCTION AND INTEREST OF AMICUS CURIAE
Everytown for Gun Safety is the largest gun-violence-prevention
organization in the country. It has over 2.5 million supporters, including over
275,000 California residents and the mayors of over 50 California cities.
Everytown has devoted substantial resources to researching historical firearms
legislation and has recently drawn on this material to file briefs in two important
Second Amendment cases. See Silvester v. Harris, No. 14-16840 (9th Cir.); Colorado
Outfitters Ass’n v. Hickenlooper, No. 14-1290 (10th Cir.). In these briefs, Everytown
sought to assist the courts by providing relevant, previously overlooked historical
materials. It seeks to do the same here.1
These consolidated cases involve a constitutional challenge to California’s
regulatory scheme for carrying handguns in public. California does not ban all
public carry, nor do the two counties whose policies are at issue. Instead, California
has taken an approach like that of eight other States, collectively expressing the
popular will of more than a quarter of the American people. As implemented by
San Diego and Yolo Counties, California’s law has two important features: First, it
generally allows open carry in sparsely populated (i.e., unincorporated) areas
comprising the vast majority of each County’s geography (84% and 95%,
1 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 preparation and submission of the brief.
2
respectively). Cal. Penal Code §§ 25850(a), 26350(a). Second, it permits concealed
carry throughout the State, including in populated (i.e., incorporated) areas, but
only upon a showing of “good cause,” which the Counties have interpreted to
require more than a generalized fear for personal safety. Id. § 26170(a)(2).
In striking down this regime, a panel of this Court held that California’s law
“destroy[s] the right [to bear arms] altogether.” Panel Op. 47. But that holding
rests on both a misapprehension of how the law operates and a woefully incomplete
historical account. As to the former: Although the panel determined that “open
carry is prohibited in San Diego County,” id. at 48 & n.16, it is in fact permitted in
the unincorporated areas that constitute 84% of the County. As to the latter:
Although the panel purported to undertake “a complete historical analysis” of the
right to bear arms outside the home, id. at 58, it relied almost entirely on 19thcentury
cases and laws from the slaveholding and sparsely populated South—while
overlooking a seven-century Anglo-American tradition of restricting public carry in
populated areas.
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 restrictions. And it carried into the 19th
3
century, when three distinct types of public-carry laws predominated: one primarily
northern, one southern, and one western. The panel focused exclusively on the
southern model, the most permissive of the three, which regulated only the manner
of carry (open, not concealed) and was motivated largely by the ever-present fear of
slave rebellions. But the other two approaches—which themselves derived from
centuries-old regulations—provide a firm historical pedigree for the law at issue
here. The northern model required “reasonable cause to fear an assault or other
injury” to carry a firearm in public (much like California’s “good cause”
requirement), while the western model prohibited public carry in cities, towns, and
villages, but not rural areas (much like California’s incorporated/unincorporated
distinction). Altogether, by the end of the 19th century, nearly 20 States and many
cities had at some point enacted laws embodying one of these two approaches.
Because California’s law carries forward this longstanding tradition, it is
constitutional under District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald
v. City of Chicago, 561 U.S. 742 (2010). Although such a robust historical pedigree is
not necessary to satisfy the Second Amendment, it is sufficient to do so. Whatever
the Second Amendment’s precise contours or scope, there can be no doubt that a
law that has its roots in 14th-century England, and operates as dozens of American
laws did throughout the 19th century, both before and after the 14th Amendment,
is consistent with our “historical tradition,” id. at 627, and thus constitutional.
4
BACKGROUND
A. English History
1. Beginning in 1328, England broadly restricts public carry in
populated areas. The Anglo-American tradition of 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. This prohibition “did not extend to the realm’s unpopulated
and unprotected enclaves,” however, because “English law generally made
exceptions for the use of arms in the countryside.” Id. at 19.
Over the ensuing decades, England repeatedly reenacted the public-carry
restriction. See, e.g., 7 Ric. 2, 35, ch. 13 (1383); 20 Ric. 3, 93, ch. 1 (1396) (“[No
one] little nor great, shall go nor ride by Night nor by Day armed . . . without the
King’s special License.”). Because this restriction carried misdemeanor penalties,
violators were usually required to forfeit their weapons and pay a fine. See id. A
separate law went further, outlawing “rid[ing] armed covertly or secretly with Men
5
of Arms against any other.” 25 Edw. 3, 320, ch. 2, § 13 (1350). Because this law
regulated more dangerous behavior than simple public carry, it had heavier
penalties. Id.
By the 16th century, firearms had become increasingly accessible in England,
and thus 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 lives.” Charles, Faces of the Second Amendment, 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 restrict public carry in populated areas. This
understanding of the law—as broadly prohibiting carrying guns in populated
6
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, in a chapter
entitled “Against going or riding armed,” 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
similarly: “The offense 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). 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—regardless of whether it was
accompanied by a threat, violence, or any additional breach of the peace. See Chune
v. Piott, 80 Eng. Rep. 1161, 1162 (K.B. 1615) (Croke, J.) (“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
7
to take him, and arrest him, notwithstanding he doth not break the peace in his
presence.”); King v. Hutchinson, 168 Eng. Rep. 273, 276 (1784) (holding that “guns
[and] pistols” are “dangerous” and “offensive” weapons). Blackstone traced this
prohibition back to “the laws of Solon,” under which “every Athenian was finable
who walked about the city in armour.” Blackstone, Commentaries 149.
2
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) (further advising that “if
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 commit him to the Gaol”);
see also Lambarde, The Duties of Constables, Borsholders, Tythingmen, and Such Other Low
and Lay Ministers of the Peace 13-14 (1602) (same).
3
2 The same description of the statute 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). 3 See also 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.”); id. at lxv-lxvi (citing Commission and
Instructions to the Justices of Peace & Constables (1661)) (same).
8
3. The law’s narrow exceptions confirm this general prohibition
on public carry. In addition to its focus on populated public places, the Statute
of Northampton was understood to contain several limited exceptions. One
important exception was that the prohibition did not apply inside the home, in
keeping with principles of English self-defense law. As Lord Coke explained, using
force inside the home “is by construction excepted out of this act[,] . . . for a man’s
house is his castle.” Coke, Laws of England 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.4 William Hawkins, in writing about the law,
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 the safety of
his person from his assault,” 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 (1721) (1824 reprint);
see also id. at 516; 1 Russell, A Treatise on Crimes & Misdemeanors 589 (1826) (writing
4 See also 1 Hale, History of the Pleas of the Crown 547 (1800) (noting that armed
self-defense was permitted in the home, but not during “travel, or a journey,”
because of the “special protection” accorded the “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.”).
9
same to American audience); Tucker, Blackstone’s Commentaries 225 (explaining castle
doctrine’s confinement to the home).
5
There were two other important exceptions to the general public-carry
prohibition: a narrow (unwritten) exception permitting high-ranking nobles to wear
fashionable 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”).6 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
5 A contrary rule—permitting armed self-defense in populated public areas,
despite the fact that 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). Thus, English law imposed a broad duty to retreat while in
public, Blackstone, 4 Commentaries 185—a duty that would become the law in all
American colonies, and subsequently the States, Garret Epps, Any Which Way But
Loose, 55 Law & Contemp. Probs. 303, 311-14 (1992). 6 See also Russell, Treatise on Crimes & Misdemeanors 588-89 (same); Charles,
Faces of the Second Amendment, 60 Clev. St. L. Rev. at 26 n.123 (citing 18th-century
legal dictionary’s distinction between “go[ing] or rid[ing] armed with dangerous and
unusual Weapons” 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 who was later
acquitted because he was a King’s officer, see Sir John Knight’s Case, 87 Eng. Rep. at
76; Charles, Faces of the Second Amendment, 60 Clev. St. L. Rev. at 28-30).
10
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) (emphasis added).7
4. The Statute of Northampton’s public-carry restriction remains
fully in effect following the English Bill of Rights of 1689. In the late 17th
century, William and Mary enshrined the right to bear arms in the Declaration of
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 “[t]hat the subjects which are protestants, 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 selfpreservation,
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 fully in effect after
the right to bear arms was codified in 1689. See, e.g., 4 Blackstone, Commentaries 148-
49; Gardiner, The Compleat Constable 18 (1692) (informing constables that they may
7 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 the city [of London] and suburbs, or any except lords, knights and esquires
with a sword.” 3 Calendar of the Close Rolls, Henry IV 485 (Jan. 30, 1409).
11
seize the weapons of anyone “wear[ing] or carry[ing] any Daggers, Guns or Pistols
Charged”).
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 regulation of public carry. The first
step was a 1686 New Jersey law entitled An Act Against Wearing Swords, &c., which
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 within this Province,” and “no planter shall ride 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,” particularly with respect to 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
12
Jersey’s law, Massachusetts enacted its own version of the Statute of Northampton,
expressly 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
would apply only to carrying an “offensive weapon,” as it had in England—not all
arms. Constable oaths published in 18th-century legal treatises used similar
language when discussing the law. See Charles, Faces of the Second Amendment, 60 Clev.
St. L. Rev. at 34 n.178. One guide for justices of the peace, for example, explained
that “Persons with offensive Weapons in Fairs, Markets or elsewhere in Affray of
the King’s People, may be arrested.” Bond, A Compleat Guide for Justices of the Peace 42
(1707); id. at 181 (“A person going or riding with offensive Arms may be arrested.”).
Thus, under the law, a person could carry a hatchet or horsewhip in public, but
not a pistol. See Hutchinson, 168 Eng. Rep. at 276 (making clear that “guns, pistols,
daggers, and instruments of war” are “offensive” weapons); Hawkins, Treatise of the
Pleas of the Crown 665 (explaining that a hatchet, horsewhip, and a “large stick with
three natural prongs and a large head” were not “offensive weapons,” while “guns,
pistols, daggers, and instruments of war” were).
8
8 American treatises said the same. See Russell, Treatise on Crimes &
Misdemeanors 124; Bishop, Commentaries on the Law of Statutory Crimes 214 (1873).
13
One century later, Massachusetts reenacted its law, this time as a State. 1795
Mass. Laws 436, ch. 2 (“[No person] shall ride or go armed offensively, to the fear
or terror of the good citizens of this Commonwealth.”). 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 Massachusetts
newspaper later reported, so it “[could not] be doubted that the vigilant police
officers” would arrest violators. Charles, Faces of the Second Amendment, 60 Clev. St. L.
Rev. at 33 n.176 (quoting The Salem Gazette, June 2, 1818, at 4).
Following Massachusetts’s lead, five more States enacted similar laws before
the Civil War: two in the Founding Era (Virginia and North Carolina); three in the
19th century (Tennessee, Maine, and Delaware). See 1786 Va. Laws 33, ch. 21
(“[No one may] go nor ride armed by night nor by day, in fairs or markets, or in
other places, in terror of the Country.”); 1792 N.C. Laws 60, 61 ch. 3 (“[No one
may] go nor ride armed by night nor by day, in fairs, markets, . . . nor in no part
elsewhere.”); 1801 Tenn. Laws 710, § 6 (making it illegal for “any person or
persons [to] publically ride or go armed to the terror of the people”); 1821 Me.
Laws 285, ch. 76, § 1 (“[No one] shall ride or go armed offensively, to the fear or
terror of the [people].”); 1852 Del. Laws 330, 333, ch. 97, § 13 (similar).
9
9 The Statute of Northampton also applied in Maryland by virtue of that
State’s constitutional guarantee of all rights granted by “the Common Law of
14
To ensure that these laws were enforced, the constables, magistrates, and
justices of the peace in these States (as well as in New Jersey) 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); 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.”). 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, Coronoers, Constables 10 (1800); see also Haywood, The Duty &
Authority of Justices of the Peace, in the State of Tennessee 176 (1810).
As with the English statute, these laws lacked 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 laws restricting public carry while creating a
narrow exception for “reasonable cause to fear an assault.” In 1836,

England” and “the English statutes” in effect at the time of independence. Md.
Const. of 1776, art. III, § 1.
15
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 arrested. See 1784 Mass. Laws 105, ch. 27.
10
Although the legislature chose to trigger these penalties using a citizencomplaint
mechanism (allowing “any person having reasonable cause to fear an
injury, or breach of the peace” to file a complaint, 1836 Mass. Laws 750, § 16), the
law was generally understood to restrict carrying a firearm in public without good
cause—even when the firearm was not used in any threatening or violent manner.
The legislature placed the restriction 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 the Statute 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
Massachusetts Judge Peter Oxenbridge Thatcher explained in a grand jury charge
10 Sureties were a form of criminal punishment in England and early
America, 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).
16
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 also 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, almost a dozen States (all but one outside the
slaveholding South) had adopted nearly identical laws. 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, § 15; 1851 Minn. Laws 526, 528, ch. 112, § 18;
1853 Or. Laws 218, 220, ch. 16, § 17; 1857 D.C. Laws 567, 570, ch. 141, § 15;
1861 Pa. Laws 248, 250, § 6. Most of these States copied the Massachusetts law
verbatim—enforcing the public-carry prohibition through a citizen-complaint
provision and permitting a narrow self-defense exception, while separately
prohibiting threats and violence. See, e.g., 1851 Minn. Laws at 527-28, §§ 2, 17, 18
(placing prohibition in section entitled “Persons carrying offensive weapons, how
punished”); 1873 Minn. Laws. 1025, § 17 (doing same after 14th Amendment’s
ratification). At least one State (Virginia) used slightly different language, providing
that “[i]f any person shall go armed with any offensive or dangerous weapon,
17
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.” 1847 Va. Laws at 129, § 15. 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.
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 Massachusetts approach, 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. 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 “lash and pistol” model is perhaps attributable to widespread concerns
about slave rebellions in the South, as well as the more prevalent violence there. See
id. at 21 (“[Frederick Law] Olmsted attributed the need to keep slaves in
submission as the reason that, ‘every white stripling in the South may carry a dirkknife
in his pocket, and play with a revolver before he has learned to swim.’”
(quoting Olmsted, A Journey in the Back Country 447 (1860)); id. at 18 (“Modern
historians . . . conclude that the South was substantially more violent than the
North.”); see also McDonald, 561 U.S. at 844 (Thomas, J., concurring) (“[I]t is
18
difficult to overstate the extent to which fear of a slave uprising gripped
slaveholders and dictated the acts of Southern legislatures.”).
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, other States began enacting laws broadly restricting public carry,
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.
11
West Virginia and Texas enacted laws within a few years of ratifying the
14th Amendment that broadly prohibited public carry without reasonable cause to
fear violence. West Virginia’s law made clear that “[i]f any person go armed with a
11 Much congressional discussion about the right to bear arms before the
14th Amendment’s adoption focused on self-defense inside the home. See, e.g., Cong.
Globe, 39th Cong., 1st Sess. 1182 (Mar. 5, 1866) (Sen. Pomeroy) (describing the
constitutional “safeguards of liberty” as including “the right to acquire and hold” a
homestead, “the right to be safe and protected in that citadel,” and “the right to
bear arms for the defense of himself and family and his homestead”); see also Amar,
The Bill of Rights 265 (1998) (focusing on “home-centered vision”).
19
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 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.
13
2. Beginning immediately after the 14th Amendment’s
ratification, many western legislatures enact laws prohibiting public
carry in populated areas. Starting with New Mexico in 1869, many legislatures
in the West began to enact public-carry prohibitions that were sensitive to local
conditions. These laws generally differentiated between cities, towns, and villages
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
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 were “guilty of a misdemeanor” and could be fined or
jailed. Id.
13 During this time, some States enacted laws without self-defense exceptions.
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.
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.
20
(where the prohibition applied) and rural areas (where it did not). 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 312, Deadly
Weapons Act of 1869, § 1. Violators could serve up to 50 days in jail. Id. § 3.
Over the next two decades, Wyoming, Idaho, and Arizona enacted similar
location-sensitive prohibitions. See 1875 Wyo. Laws 352, ch. 52, § 1 (banning
carrying firearms “concealed or openly” “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 or in any public assembly”); 1889 Ariz. Laws, ch. 13, § 1
(“[No] person within any settlement, town, village or city within this Territory shall
carry on or about his person, saddle, or in his saddlebags, any pistol.”). And Texas
and Michigan later enacted laws granting cities the power to “prohibit and restrain
the carrying of pistols” within their limits. 1909 Tex. Laws 105; see 1901 Mich.
Laws 687, § 8.
When Texas and Michigan enacted these laws, many cities throughout the
country had imposed such restrictions for decades. See, e.g., 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);
21
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., Rev. Ordinances art. 7 (1893); Wichita, Kan., Ordinance
no. 1641 (1899); McKinney, Tex., Ordinance no. 20 (1899). “A visitor arriving in
Wichita, Kansas, in 1873,” for example, “would have seen signs declaring, ‘LEAVE
YOUR REVOLVERS AT POLICE HEADQUARTERS, AND GET A CHECK.’” Winkler,
Gunfight 165 (2011). Dodge City was no different. Id. (mentioning sign that read:
“THE CARRYING OF FIREARMS STRICTLY PROHIBITED”). 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) (footnote omitted).
ARGUMENT
BECAUSE CALIFORNIA’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 in this case 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 California’s public-carry regime (as
22
implemented by San Diego and Yolo Counties) is consistent with the Second
Amendment’s protections (as applied to the States by the 14th Amendment).
Before this Court may answer that question, it must first understand how the
regulatory scheme works. California law, as implemented here, generally allows
individuals to openly carry a firearm for self-defense in the unincorporated,
sparsely populated areas that comprise most of San Diego and Yolo Counties’
geography (84% and 95%, respectively). Cal. Penal Code §§ 25850(a), 26350(a);
San Diego County, http://bit.ly/1DBC3El (3,572 square miles unincorporated out
of 4,261); Yolo County, http://bit.ly/1HVypru & http://bitly.com/1Gz9Nl6
(621,224 acres unincorporated out of 653,549). And it allows public carry of a
concealed weapon throughout the State—including in the Counties’ incorporated,
more densely populated areas—with a permit, which requires a showing of “good
cause.” Cal. Penal Code § 26170(a)(2). In San Diego and Yolo Counties, this
requirement is not satisfied by a generalized fear for personal safety, but is met if
the applicant can provide “documented threats” or “restraining orders” showing
that “he or she is a specific target presently at risk of harm.” San Diego Cnty. Br. 6;
see also Yolo Cnty. Br. 9. It is also met if the applicant is an active or retired lawenforcement
officer, security or investigative personnel, or a business owner or
employee in a high-risk occupation. San Diego Cnty. Br. 6. The question here is
whether this scheme is constitutional.
23
To answer that question, this Court “employs a two-prong test,” first
“ask[ing] whether the challenged law burdens conduct protected by the Second
Amendment,” and then determining, “if so, what level of scrutiny should be
applied.” Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015). Although
California’s law would satisfy the appropriate level of scrutiny if subjected to it (for
reasons laid out in other briefs filed in this case), the purpose of this brief is to show
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 Second Amendment conduct
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). 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 presumed 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, should be treated as tradition-based “exceptions” by virtue of their
“historical justifications.” Id. at 635. Or put in this Court’s words: “longstanding
24
prohibitions” are “traditionally understood to be outside the scope of the Second
Amendment.” Fyock, 779 F.3d at 997.
So what does it mean to be longstanding? As Judge Easterbrook has noted, it
does not require that a law “mirror limits that were on the books in 1791” (or in
this case involving a state law, 1868). United States v. Skoien, 614 F.3d 638, 641 (7th
Cir. 2010) (en banc); see also United States v. Booker, 644 F.3d 12, 23 (1st Cir. 2011)
(“[T]he legislative role did not end in 1791.”). To the contrary, as this Court has
held, even laws that “cannot boast a precise founding-era analogue”—like the
“early twentieth century regulations” identified in Heller—may “demonstrate a
history of longstanding regulation if their historical prevalence and significance is
properly developed in the record.” Fyock, 779 F.3d at 997.
The law in this case, however, is no 20th-century creation. By requiring
good cause to publicly carry a firearm in populated areas, and allowing public
carry in rural areas, California’s law embodies a deep historical tradition of publiccarry
regulations. It is “longstanding” and hence constitutional under Heller.
B. California’s law has a centuries-long pedigree in Anglo-American
history and is therefore “longstanding” and constitutional under
Heller.
1. The law’s special sensitivity to local conditions traces back
to 13th-century England and 19th-century America.
For centuries, English and American laws have restricted public carry in
populated areas and largely permitted it in unpopulated areas—just like California
25
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 of the Second Amendment, 60 Clev. St. L. Rev. at 21.
When this localism tradition came to America, it gained particular
popularity in the West during the mid-to-late 19th century. From 1869 to 1889,
New Mexico, Wyoming, Idaho, and Arizona all enacted laws broadly prohibiting
public carry in cities, towns, and villages. See 1869 N.M. Laws 312, § 1; 1875 Wyo.
Laws 352, ch. 52, § 1; 1889 Idaho Laws 23, § 1; 1889 Ariz. Laws, ch. 13, § 1. And,
as discussed above (at 20-21), 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.
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, and carry special relevance when determining the scope of the right to
bear arms as understood when it was applied to the States in 1868. Because they
26
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.
California’s law fits comfortably within this localism tradition. 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, — F.3d —, 2015 WL 1883498, *5 (7th Cir. Apr. 27, 2015)
(Easterbrook, J.). McDonald “does not foreclose all possibility of experimentation.
Within the limits established by the Justices in Heller and McDonald, federalism and
diversity still have a claim.” Id.
2. The law’s good-cause requirement has its roots in pre-Civil
War America.
California’s law also falls squarely within another historical tradition—the
requirement that a person have “good cause” to carry a firearm in populated
public areas. In the middle of the 19th century, numerous States enacted laws
containing such a requirement. 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, § 15; see also, e.g., 1836 Mass. Laws 750, § 16; 1851
27
Minn. Laws 528, ch. 112, § 18. And West Virginia and Texas did the same. See
1870 W. Va. Laws 702, ch. 153, § 8; 1871 Tex. Laws 1322, art. 6512. These
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.
California has not violated our Constitution by continuing this tradition. Nor
have the eight States that currently have similar laws. Although such a lengthy
historical pedigree is not necessary to satisfy the Second Amendment, it is sufficient
to do so. Whatever else the Second Amendment permits, it surely allows a State’s
citizens to decide for themselves whether to carry forward a centuries-long
legislative tradition.
CONCLUSION
The judgments of the district courts in both cases should be affirmed.
Respectfully submitted,
/s/ Deepak Gupta
DEEPAK GUPTA
JONATHAN E. TAYLOR
GUPTA BECK PLLC
1735 20th Street, NW
Washington, DC 20009
(202) 888-1741
April 30, 2015 Counsel for Amicus Curiae
Everytown for Gun Safety
28
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)
I hereby certify that my word processing program, Microsoft Word, counted
6,993 words in the foregoing brief, exclusive of the portions excluded by Rule
32(a)(7)(B)(iii).
/s/ Deepak Gupta
April 30, 2015 Deepak Gupta
29
CERTIFICATE OF SERVICE
I hereby certify that on April 30, 2015, I electronically filed the foregoing
Brief of Amicus Curiae Everytown for Gun Safety in Support of Appellees with the
Clerk of the Court of the U.S. Court of Appeals for the Ninth 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

More on the Issue

More Litigation Documents