Notes

A Call for Sensible Gun Reform Outside of the Home

by Michael Treves*

Columbine. Sandy Hook. Vir­ginia Tech. Auro­ra. Orlan­do. Las Vegas. Park­land. The loca­tions of America’s mass shoot­ings have become seared into our nation’s mem­o­ry. And, sad­ly, the list keeps grow­ing. Under the broad­er def­i­n­i­tion of mass shoot­ings, Amer­i­ca has around one mass shoot­ing a day.1

The Unit­ed States has a unique prob­lem with guns. It is one of the few coun­tries in the world in which the right to keep and bear arms is con­sti­tu­tion­al­ly pro­tect­ed. How­ev­er, the Unit­ed States is also, among devel­oped nations, the most homicidal—in large part due to the easy access many Amer­i­cans have to firearms.2 The Unit­ed States has near­ly six times the gun homi­cide rate as Cana­da, more than sev­en times as Swe­den, and near­ly six­teen times as Ger­many.3 While the Unit­ed States has only 4.4 per­cent of the world’s pop­u­la­tion, it has almost half of the civil­ian-owned guns around the world.4

Yet, despite the large num­bers of gun-relat­ed deaths in Amer­i­ca, sup­port for gun own­er­ship has sharply increased since the ear­ly 2000s.5 At the heart of the emo­tion­al­ly charged debate over gun con­trol in Amer­i­ca is the Sec­ond Amend­ment of the Unit­ed States Con­sti­tu­tion. The Sec­ond Amend­ment pro­vides that, “[a] well reg­u­lat­ed Mili­tia, being nec­es­sary to the secu­ri­ty of a free State, the right of the peo­ple to keep and bear Arms, shall not be infringed.”6

In 2008, in Dis­trict of Colum­bia v. Heller, the Supreme Court attempt­ed to clar­i­fy, in part, the mean­ing of the Sec­ond Amend­ment.7 Lim­it­ed by the facts of Heller, the Court held that the Sec­ond Amend­ment pro­tects an individual’s right to keep and bear arms for self-defense inside the home.8 Two years lat­er, in McDon­ald v. City of Chica­go, the Supreme Court fur­ther held that the Four­teenth Amend­ment incor­po­rat­ed to the states the Sec­ond Amend­ment right to keep and bear arms for self-defense.9 After Heller, it is unde­ni­able that the Sec­ond Amend­ment pro­tects a right to bear arms for self-defense inside the home; but, as the Unit­ed States Court of Appeals for the Sev­enth Cir­cuit stat­ed: “[T]he Supreme Court has not yet addressed the ques­tion whether the Sec­ond Amend­ment cre­ates a right of self-defense out­side the home.”10

This Note will argue that in light of the text and his­to­ry of the Sec­ond Amend­ment and Supreme Court prece­dent, an unabridged right to law­ful armed self-defense under the Sec­ond Amend­ment stops at the doorstep and does not extend out­side of the home. As such, pub­lic car­ry laws do not reg­u­late con­duct that falls with­in the scope of the Sec­ond Amend­ment right.

* * * * *

With­out clear guid­ance from the Supreme Court after Dis­trict of Colum­bia v. Heller, the low­er courts have splin­tered in their exam­i­na­tions of the con­sti­tu­tion­al­i­ty of pub­lic car­ry laws. Four fed­er­al circuits—First, Sec­ond, Third and Fourth—have all upheld licens­ing require­ments that lim­it the pub­lic car­ry of a firearm to a prop­er pur­pose.11 On the oth­er hand, the Sev­enth Cir­cuit, Ninth Cir­cuit and Dis­trict of Colum­bia Cir­cuit have all struck down sim­i­lar laws.12

Although the Supreme Court has yet to pre­scribe a par­tic­u­lar form of inquiry for Sec­ond Amend­ment chal­lenges, every fed­er­al cir­cuit court to decide the issue has adopt­ed a two-step test for eval­u­at­ing such claims.13 Courts apply­ing the two-part test “first con­sid­er whether the chal­lenged law impos­es a bur­den on con­duct that falls with­in the scope of the Sec­ond Amendment’s guar­an­tee as his­tor­i­cal­ly under­stood, and if so, courts next deter­mine the appro­pri­ate form of judi­cial scruti­ny to apply (typ­i­cal­ly, some form of either inter­me­di­ate scruti­ny or strict scruti­ny).”14

A his­tor­i­cal under­stand­ing of the Sec­ond Amend­ment is impor­tant at both steps of the two-step test. The thresh­old ques­tion is whether the reg­u­la­to­ry scheme impinges on con­duct that “falls with­in the scope of the Sec­ond Amendment’s guar­an­tee as his­tor­i­cal­ly under­stood.”15 This inquiry, informed by his­to­ry, requires deter­min­ing how prox­i­mate a reg­u­la­tion is to the “core” of the Sec­ond Amend­ment; this, in turn, informs the appro­pri­ate lev­el of scruti­ny. The cir­cuits have gen­er­al­ly held that strict scruti­ny applies to reg­u­la­tions that bur­den the “core” of the Sec­ond Amend­ment and that, oth­er­wise, inter­me­di­ate scruti­ny gov­erns.16

In deter­min­ing whether con­duct falls out­side the “core” of the Sec­ond Amend­ment, courts exam­ine the extent to which that activ­i­ty has his­tor­i­cal­ly been reg­u­lat­ed.17 If the activ­i­ty has been sub­ject to long­stand­ing reg­u­la­tion, courts will uphold the abil­i­ty of states to reg­u­late it through the police pow­er.18 As the Court stat­ed in Heller, long­stand­ing pro­hi­bi­tions “are pre­sumed not to bur­den con­duct with­in the scope of the Sec­ond Amend­ment” because they have “long been accept­ed by the pub­lic” as con­sis­tent with its pro­tec­tions.19

Even if a court deter­mines that a reg­u­la­tion is out­side of the scope of the Sec­ond Amend­ment, its his­tor­i­cal roots remain rel­e­vant to the con­sti­tu­tion­al analy­sis at step two. A reg­u­la­tion of car­ry­ing firearms sur­vives inter­me­di­ate scruti­ny “if it is sub­stan­tial­ly relat­ed to the achieve­ment of [the] impor­tant gov­ern­men­tal inter­est” in pub­lic safe­ty.20 In deter­min­ing whether a law meets this test, the court must afford “sub­stan­tial def­er­ence to the pre­dic­tive judg­ments” of the leg­is­la­ture, because “[i]t is the legislature’s job, not the [courts’], to weigh con­flict­ing evi­dence and make pol­i­cy judg­ments.”21 A greater degree of def­er­ence is war­rant­ed when the law at issue has a long­stand­ing his­to­ry, because the his­to­ry shows that “states have long rec­og­nized a coun­ter­vail­ing and com­pet­ing set of con­cerns with regard to hand­gun own­er­ship and use in pub­lic.”22

* * * * *

Accord­ing to Dis­trict of Colum­bia v. Heller, the scope of the Sec­ond Amend­ment is deter­mined by its his­tor­i­cal ori­gins and its plain lan­guage.23 Laws restrict­ing the pub­lic car­ry of firearms are con­sis­tent with the text of the Sec­ond Amend­ment and cen­turies of sim­i­lar or more strin­gent restric­tions on the right to car­ry firearms in pub­lic, as well as the Supreme Court’s deci­sions in Heller and McDon­ald. Accord­ing­ly, these reg­u­la­tions do not bur­den con­duct that falls with­in the scope—or “core”—of the Sec­ond Amend­ment right.

To begin, reg­u­la­tions on the pub­lic car­ry of firearms are con­sis­tent with the text of the Sec­ond Amend­ment. That the Sec­ond Amend­ment speaks of the “right of the peo­ple to keep and bear arms” does not imply a right to car­ry a firearm out­side of the home.24 To “bear” arms under the Sec­ond Amend­ment has at least two mean­ings oth­er than the right to car­ry a firearm in pub­lic places at all times. Heller itself demon­strates this. First, Heller states that, con­sis­tent with the pur­pose of cod­i­fy­ing the Sec­ond Amendment—namely, to pre­serve the militia—carrying arms dur­ing gov­ern­ment-relat­ed mili­tia ser­vice is pro­tect­ed.25 Sec­ond, Heller holds that the Sec­ond Amend­ment pro­tects car­ry­ing arms “in defense of hearth and home.”26 The Court inter­pret­ed “bear” to mean to “car­ry” or to “wear, bear, or car­ry,” upon one’s per­son, for the pur­pose of being armed and ready in case of con­flict.27

The Court in Heller con­tem­plat­ed that a gun might only be car­ried in the home, as it ordered the Dis­trict of Colum­bia to per­mit Heller to do pre­cise­ly that: it direct­ed that unless Heller was oth­er­wise dis­qual­i­fied, the Dis­trict of Colum­bia must allow him “to reg­is­ter his hand­gun and must issue him a license to car­ry it in the home.”28 Heller did not want sim­ply “to keep” a gun in his home; he want­ed to be able “to bear” it in case of self-defense, and the Supreme Court said he could. There­fore, read­ing the Sec­ond Amend­ment to not include an absolute right to pub­lic car­ry is con­sis­tent with Heller and does not read the word “bear” out of the con­sti­tu­tion­al text.29

His­tor­i­cal evi­dence about the pub­lic under­stand­ing of the pre-exist­ing right to keep and bear arms, as it was under­stood in Eng­land before the Fram­ing and dur­ing the Fram­ing-era in Amer­i­ca, demon­strates a long­stand­ing tra­di­tion of reg­u­la­tion on the pub­lic car­ry of firearms.30 A focus on the his­tor­i­cal under­stand­ing of the pre-exist­ing Eng­lish right to keep and bear arms is cru­cial, since “it has always been wide­ly under­stood that the Sec­ond Amend­ment … cod­i­fied a pre-exist­ing right” in Eng­lish law.31

For cen­turies before the Fram­ing of the Unit­ed States Con­sti­tu­tion, Eng­land crim­i­nal­ized the prac­tice of car­ry­ing arms in pub­lic. In 1328, the Eng­lish Par­lia­ment enact­ed the Statute of Northamp­ton, a broad and “wide­ly enforced” pro­hi­bi­tion on the pub­lic car­ry of offen­sive weapons.32 The Statute pro­vid­ed that, except while on the King’s busi­ness, no man was per­mit­ted to “go nor ride armed by night nor by day, in fairs, mar­kets, nor in the pres­ence of the jus­tices or oth­er min­is­ters, nor in no part else­where, upon pain to for­feit their armour to the King, and their bod­ies to prison at the King’s plea­sure.”33 This pro­hi­bi­tion was far-reach­ing. The Statute extend­ed to all places with­in “the King’s peace”—that is, with­in the King’s effec­tive control—including “Fairs, Mar­kets, and any oth­er places” where peo­ple would con­gre­gate.34 More­over, in 1579, Queen Eliz­a­beth I issued a procla­ma­tion clar­i­fy­ing that the Statute banned the car­ry­ing of “Dag­gers, Pis­tols, and such like, not only in Cities and Towns, but in all parts of the Realm.”35

Those cir­cuits that have struck down licens­ing require­ments have held that the Statute of Northamp­ton only crim­i­nal­ized the pub­lic car­ry­ing of a firearm with an intent to cause ter­ror.36 How­ev­er, a sub­jec­tive intent was nev­er an ele­ment of the pro­hi­bi­tion.37 The Statute adopt­ed a strict lia­bil­i­ty stan­dard, and “intent to cause ter­ror” was pre­sumed by the mere act of trav­el­ing armed.38 The Statute was a cat­e­gor­i­cal pro­hi­bi­tion on the car­ry of arms in pop­u­lat­ed areas. As Queen Eliz­a­beth declared in 1574, in defense of her strict enforce­ment of the Statute, the pub­lic car­ry­ing of pis­tols, whether “secret­ly” or in the “open,” was “to the ter­rour of all peo­ple pro­fess­ing to trav­el and live peace­ably.”39

The right to arms was cod­i­fied in Eng­land in the Dec­la­ra­tion of Rights in 1689. The Court in Heller stat­ed that this right “has long been under­stood to be the pre­de­ces­sor to our Sec­ond Amend­ment.”40 The 1689 Dec­la­ra­tion did not, how­ev­er, cre­ate a gen­er­al, unre­strict­ed right to bear arms. The Dec­la­ra­tion ensured that sub­jects “may have arms for their defence suit­able to their con­di­tions, and as allowed by law.”41 And the Statute of Northamp­ton remained in effect even fol­low­ing cod­i­fi­ca­tion of the right to arms. As William Black­stone explained, the Eng­lish right was an “aux­il­iary sub­or­di­nate right[],” only grant­ed “as … allowed by law”; it was “a pub­lic allowance, under due restric­tions,” one of which includ­ed the Statute of Northamp­ton.42

Promi­nent Eng­lish schol­ars agreed that there was no right to car­ry weapons for self-defense out­side of the home. William Black­stone con­firmed the con­tin­ued applic­a­bil­i­ty of the Statute of Northamp­ton. In his Com­men­taries on the Laws of Eng­land, Black­stone stat­ed, “The offence of rid­ing or going armed, with dan­ger­ous or unusu­al weapons is a crime against the pub­lic peace, by ter­ri­fy­ing the good peo­ple of the land; and is par­tic­u­lar­ly pro­hib­it­ed by the Statute of Northamp­ton, … upon pain of for­fei­ture of the arms and impris­on­ment dur­ing the king’s plea­sure: in like man­ner as, by the laws of Solon, every Athen­ian was fin­able who walked about the city in armour.”43 Addi­tion­al­ly, Lord Coke explained that one could defend one’s home, but would be guilty if he went armed in pub­lic even for “safe­guard of his life.”44 And, William Hawkins sim­i­lar­ly not­ed that the Statute of Northamp­ton per­mit­ted one to defend him­self “in his own House” because “a man’s house is as his cas­tle,” but did not allow one to “excuse the wear­ing [of] such Armour in Pub­lick,” even if he claimed “such a one threat­ened him, and that he wears it for the Safe­ty of his Per­son from Assault.”45

The Amer­i­can colonies adopt­ed much of the Eng­lish tra­di­tion on gun reg­u­la­tion. Many colonies enact­ed their own ver­sions of the Statute of Northamp­ton. In 1686, New Jer­sey became the first colony to cod­i­fy the pro­hi­bi­tion with a law that pro­vid­ed that no per­son “shall pre­sume pri­vate­ly to wear any pock­et pis­tol … or oth­er unusu­al or unlaw­ful weapons,” and that “no planter shall ride or go armed with sword, pis­tol, or dag­ger.”46 Oth­er colonies, includ­ing Mass­a­chu­setts and New Hamp­shire, enact­ed sim­i­lar cat­e­gor­i­cal pro­hi­bi­tions.47

And, after the Amer­i­can Rev­o­lu­tion, many of the now Amer­i­can states main­tained their strict pro­hi­bi­tions on pub­lic car­ry. Many states “adopt­ed ver­ba­tim, or almost ver­ba­tim, Eng­lish law.”48 For instance, North Carolina’s for­mu­la­tion fol­lowed its Eng­lish pre­de­ces­sor close­ly, and declared that no per­son may “go nor ride armed by night nor by day, in fairs, mar­kets, nor in the pres­ence of the King’s Jus­tices, or oth­er min­is­ters, nor in no parts else­where.”49 Mass­a­chu­setts’ law made it a crime for any­one to “ride or go armed offen­sive­ly, to the fear or ter­ror of the good cit­i­zens of this Com­mon­wealth.”50 Numer­ous oth­er states enact­ed sim­i­lar statutes.51 Oth­ers imple­ment­ed sim­i­lar pro­hi­bi­tions through com­mon law.52

States enforced these laws as gen­er­al pro­hi­bi­tions on car­ry­ing offen­sive weapons, includ­ing firearms, in pop­u­lat­ed areas. The act of armed trav­el with a firearm was itself the offense. Arrests did not require that a defen­dant “threat­en any per­son” or “com­mit[] any par­tic­u­lar act of vio­lence.”53 More­over, jus­tices of the peace and oth­er law enforce­ment offi­cials main­tained sig­nif­i­cant author­i­ty to pre­empt vio­lence by arrest­ing or dis­arm­ing indi­vid­u­als they judged to be a threat to the peace, includ­ing those who vio­lat­ed the pro­hi­bi­tion on armed trav­el in pub­lic.54

In sum, the his­tor­i­cal evi­dence demon­strates that by the time of the Fram­ing of the Unit­ed States Con­sti­tu­tion, Eng­land had a long­stand­ing tra­di­tion of reg­u­lat­ing and pro­hibit­ing the pub­lic car­ry of weapons, par­tic­u­lar­ly offen­sive weapons, such as firearms. These pro­hi­bi­tions did not depend on the cir­cum­stances: the very act of car­ry­ing a firearm in pub­lic was pro­hib­it­ed pre­cise­ly because it nat­u­ral­ly ter­ri­fied the pub­lic. This tra­di­tion was adopt­ed by the colonies, and lat­er by the states, lead­ing to the intro­duc­tion of numer­ous laws through­out the coun­try dur­ing the Fram­ing-era that lim­it­ed the pub­lic car­ry of firearms.

The long­stand­ing tra­di­tion of pub­lic car­ry reg­u­la­tion demon­strates that car­ry­ing firearms out­side of the home is plain­ly out­side the “core” of the Sec­ond Amend­ment right. This con­clu­sion is con­sis­tent with Supreme Court prece­dent as expressed in Heller and McDon­ald and hold­ings by the First, Sec­ond and Fourth Cir­cuits that the right to pub­lic car­ry lies out­side the Sec­ond Amendment’s “core.”55 Those cir­cuits that have struck down licens­ing statutes on the pub­lic car­ry of firearms, on the oth­er hand, have read Heller to imply an uncon­di­tion­al right to pub­licly car­ry arms for self-defense.56 But this read­ing is too broad. Heller was nev­er meant “to clar­i­fy the entire field” of Sec­ond Amend­ment jurispru­dence, but rather strike down a sin­gle law that “ran roughshod” over res­i­dents’ indi­vid­ual right to pos­sess hand­guns in the home.57 As the Sev­enth Cir­cuit stat­ed in Unit­ed States v. Skoien, Heller’s lan­guage “warns read­ers not to treat Heller as con­tain­ing broad­er hold­ings than the Court set out to estab­lish: that the Sec­ond Amend­ment cre­at­ed indi­vid­ual rights, one of which is keep­ing oper­a­ble hand­guns at home for self-defense.”58 This con­clu­sion is rein­forced by McDon­ald, in which the Court plain­ly stat­ed that Heller “does not imper­il every law reg­u­lat­ing firearms.”59

Indeed, the Heller Court made this same point as well. The major­i­ty opin­ion stat­ed that “[l]ike most rights, the right secured by the Sec­ond Amend­ment is not unlim­it­ed” and thus does not pro­tect “a right to keep and car­ry any weapon what­so­ev­er in any man­ner what­so­ev­er and for what­ev­er pur­pose” or “for any sort of con­fronta­tion.”60 In fact, the Court not­ed that noth­ing in its hold­ing should “cast doubt” on a non-exhaus­tive list of “long­stand­ing pro­hi­bi­tions” that are “pre­sump­tive­ly law­ful”.61 The Court men­tioned that most “19th-cen­tu­ry courts to con­sid­er the ques­tion held that pro­hi­bi­tions on car­ry­ing con­cealed weapons were law­ful under the Sec­ond Amend­ment or state ana­logues.”62

Heller should only be read for what it pre­cise­ly states: “the need for defense of self, fam­i­ly, and prop­er­ty is most acute” in the home.63 By char­ac­ter­iz­ing the Sec­ond Amend­ment right as most acute in the home, the Supreme Court nec­es­sar­i­ly implied that that right is less acute out­side the home. Had the Supreme Court intend­ed to cre­ate a broad­er gen­er­al right to car­ry for self-defense out­side of the home, the Court in Heller, or sub­se­quent­ly in McDon­ald, would have done so explic­it­ly.

* * * * *

The debate on gun reform in the Unit­ed States has intro­duced impor­tant ques­tions about the mean­ing of the Sec­ond Amend­ment and, in the wake of the Supreme Court deci­sion in Dis­trict of Colum­bia v. Heller, the extent to which the Sec­ond Amend­ment applies out­side of the home. Crit­ics of gun reform often bemoan that any form of gun reg­u­la­tion on the pub­lic car­ry of firearms is an explic­it vio­la­tion of the Sec­ond Amend­ment. Although the Supreme Court has to date repeat­ed­ly denied writs of cer­tio­rari address­ing this spe­cif­ic ques­tion, the Court has pro­vid­ed a frame­work to under­stand the appli­ca­tion of the Sec­ond Amend­ment out­side of the home. Based on a review of the text and his­to­ry of the Sec­ond Amend­ment and Supreme Court prece­dent, it is clear that pub­lic car­ry laws reg­u­late con­duct that is out­side the scope of the Sec­ond Amend­ment right. With the increas­ing num­ber of gun-relat­ed deaths in Amer­i­ca, the need for sen­si­ble gun reform has become more and more appar­ent. The Sec­ond Amend­ment should no longer stand as a bar­ri­er to such change.

Notes:

* Michael Treves is a 3L at New York Uni­ver­si­ty School of Law.

1. Christo­pher Ingra­ham, We’re Now Aver­ag­ing More Than One Mass Shoot­ing Per Day in 2015, Wash. Post, Aug. 26, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/08/26/were-now-averaging-more-than-one-mass-shooting-per-day-in-2015.

2. Exten­sive reviews of the research, com­piled by the Har­vard School of Pub­lic Health’s Injury Con­trol Research Cen­ter, sug­gest the answer is pret­ty sim­ple: The US is an out­lier on gun vio­lence because it has many more guns than oth­er devel­oped nations. Har­vard Injury Con­trol Research Ctr., Homi­cide, Firearms Research, https://www.hsph.harvard.edu/hicrc/firearms-research/guns-and-death (last vis­it­ed Jan. 28, 2019).

3. Mona Cha­l­abi, Gun Homi­cides and Gun Own­er­ship List­ed by Coun­try, The Guardian (Jul. 22, 2012, 5:00 AM), https://www.theguardian.com/news/datablog/2012/jul/22/gun-homicides-ownership-world-list.

4. Id.

5. Kim Park­er et al., Views on Gun Pol­i­cy, America’s Com­plex Rela­tion­ship With Guns (June 22, 2017), http://www.pewsocialtrends.org/2017/06/22/views-on-gun-policy.

6. U.S. Con­st. amend. II.

7. 554 U.S. 570, 592 (2008) (stat­ing the Sec­ond Amend­ment con­fers the right to car­ry a firearm for pro­tec­tion).

8. Id. at 635.

9. McDon­ald v. City of Chi., 561 U.S. 742, 750 (2010) (“[W]e hold that the Sec­ond Amend­ment right is ful­ly applic­a­ble to the States.”).

10. Moore v. Madi­gan, 702 F.3d 933, 935 (7th Cir. 2012).

11. See Gould v. Mor­gan, 907 F.3d 659 (1st Cir. 2018) (“good rea­son”); Wool­lard v. Gal­lagher, 712 F.3d 865 (4th Cir. 2013) (“good and sub­stan­tial rea­son”); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (“jus­ti­fi­able need”); Kachal­sky v. Cnty. of Westch­ester, 701 F.3d 81 (2d Cir. 2012) (“prop­er cause”).

12. See Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018); Wrenn v. Dist. of Colum­bia, 864 F.3d 650 (D.C. Cir. 2017); Moore v. Madi­gan, 702 F.3d 933 (7th Cir. 2012).

13. See N.Y. State Rifle & Pis­tol Ass’n v. Cuo­mo, 804 F.3d 242, 254 (2d Cir. 2015); Unit­ed States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alco­hol, Tobac­co, Firearms, & Explo­sives, 700 F.3d 185, 194 (5th Cir. 2012); GeorgiaCarry.Org, Inc. v. Geor­gia, 687 F.3d 1123, 1260 n.34 (11th Cir. 2012); Unit­ed States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. Dis­trict of Colum­bia, 670 F.3d 1244, 1252 (D.C. Cir. 2011) (“Heller I”); Ezell v. City of Chi., 651 F.3d 684, 701–04 (7th Cir. 2011); Unit­ed States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); Unit­ed States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010); Unit­ed States v. Marz­zarel­la, 614 F.3d 85, 89 (3d Cir. 2010).

14. See Pow­ell v. Tomp­kins, 783 F.3d 332, 347 n.9 (1st Cir. 2015).

15. Id. at 347 n.9.

16. See, e.g., id. at 1257; Kachal­sky, 701 F.3d at 93–94; Unit­ed States v. Mas­cian­daro, 638 F.3d 458, 470 (4th Cir. 2011); Marz­zarel­la, 614 F.3d at 97.

17. See, e.g., Kachal­sky, 701 F.3d at 93–94; Mas­cian­daro, 638 F.3d at 470; Marz­zarel­la, 614 F.3d at 97.

18. See, e.g., Kachal­sky, 701 F.3d at 96.

19. Heller I, 670 F.3d at 1253.

20. Kachal­sky, 701 F.3d at 96.

21. Id. at 97, 99.

22. Id. at 96.

23. Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 595 (2008) (not­ing that these two con­sid­er­a­tions decide the scope of the right to bear arms). This is because text and his­to­ry bear most strong­ly on what the right was under­stood to mean, at the time of enact­ment, to the pub­lic. Young v. Hawaii, 896 F.3d 1044, 1051 (9th Cir. 2018).

24. U.S. Con­st. amend. II (empha­sis added). Cf. Young, 896 F.3d at 1052–53.

25. See Heller, 554 U.S. at 599 (“[T]he Sec­ond Amendment’s prefa­to­ry clause announces the pur­pose for which the right was cod­i­fied: to pre­vent elim­i­na­tion of the mili­tia.… [T]he threat that the new Fed­er­al Gov­ern­ment would destroy the cit­i­zens’ mili­tia by tak­ing away their arms was the rea­son that right – unlike some oth­er Eng­lish rights – was cod­i­fied in a writ­ten Con­sti­tu­tion.”).

26. Id. at 635.

27. Id. at 584.

28. Id. at 635 (empha­sis added).

29. But see Young v. Hawaii, 896 F.3d 1044, 1053 (9th Cir. 2018) (“Under­stand­ing ‘bear’ to pro­tect at least some lev­el of car­ry­ing in antic­i­pa­tion of con­flict out­side of the home pro­vides the nec­es­sary gap between ‘keep’ and ‘bear’ to avoid ren­der­ing the lat­ter guar­an­tee as mere sur­plusage.”).

30. The rel­e­vant his­tor­i­cal inquiry involves “exam­i­na­tion of a vari­ety of legal and oth­er sources to deter­mine the pub­lic under­stand­ing of [the] legal text,” with par­tic­u­lar stress on the under­stand­ing of the Sec­ond Amend­ment dur­ing “the found­ing peri­od.” Heller, 554 U.S at 595, 604. As the Sev­enth Cir­cuit not­ed, “Heller focused almost exclu­sive­ly on the orig­i­nal pub­lic mean­ing of the Sec­ond Amend­ment, con­sult­ing the text and rel­e­vant his­tor­i­cal mate­ri­als to deter­mine how the Amend­ment was under­stood at the time of rat­i­fi­ca­tion.” Ezell v. City of Chi., 651 F.3d 684, 700 (7th Cir. 2011). This is because the Supreme Court in Heller under­stood the Sec­ond Amend­ment to have cod­i­fied a “pre-exist­ing right.” Heller, 554 U.S. at 592.

31. Heller, 554 U.S. at 592, 599.

32. Peruta v. City of San Diego, 824 F.3d 919, 930 (9th Cir. 2016) (deem­ing the Statute of Northamp­ton “the foun­da­tion for firearms reg­u­la­tion in Eng­land for the next sev­er­al cen­turies”).

33. Statute of Northamp­ton, 2 Edw. 3, c. 3 (1328) (Eng.).

34. See Joseph Keble, An Assis­tance to the Jus­tices of the Peace, for the Eas­i­er Per­for­mance of Their Duty 224 (1683).

35. Id. at 21 (empha­sis added).

36. See, e.g., Young v. Hawaii, 896 F.3d 1044, 1066–68 (9th Cir. 2018).

37. In the years fol­low­ing its enact­ment, King Edward III and his suc­ces­sors direct­ed sher­iffs and bailiffs to arrest “all those whom [they] shall find going armed.” Patrick J. Charles, The Faces of the Sec­ond Amend­ment Out­side the Home, 60 Clev. St. L. Rev. 1, 13–25 (2012) (cita­tion omit­ted).

38. Eric M. Ruben & Saul Cor­nell, Firearm Region­al­ism & Pub­lic Car­ry: Plac­ing South­ern Ante­bel­lum Case Law in Con­text, 125 Yale L.J. F. 121, 129–30 (2015).

39. Charles, supra note 37, at 22 (cita­tion omit­ted).

40. Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 593 (2008).

41. 1 W. & M., ch. 2, § 7 (1689) (empha­sis added).

42. 1 William Black­stone, Com­men­taries *141–44.

43. William Black­stone, Com­men­taries on the Laws of Eng­land 148–49 (1769).

44. 3 Lord Coke, Insti­tutes of the Law of Eng­land 161–62 (1797).

45. 1 William Hawkins, Trea­tise of the Pleas of the Crown ch. 63, § 8 (1716).

46. 1686 N.J. Laws 289, ch. 9.

47. See 1694 Mass. Acts 10, no. 6; 1699 N.H. Laws 1.

48. Peruta v. City of San Diego, 824 F.3d 919, 933 (9th Cir. 2016).

49. 1792 N.C. Sess. Laws 60, ch. 3.

50. 1795 Mass. Acts 436, ch. 2.

51. See, e.g., 1786 Va. Acts 33, ch. 21; 1801 Tenn. Pub. Acts 710, § 6; 1821 Me. Laws 285, ch. 76, § 1; 1852 Del. Laws 330, ch. 97, § 13.

52. See, e.g., Md. Con­st. of 1776, art. III, § 1 (adopt­ing “the Com­mon Law of Eng­land” and “the Eng­lish statutes, as exist­ed at the time of their first emi­gra­tion”); see also Charles, supra note 37, at 31–32.

53. James Ewing, A Trea­tise on the Office & Duty of a Jus­tice of the Peace 546 (1805); see also Joel Pren­tiss Bish­op, Com­men­taries on the Crim­i­nal Law § 980 (3d ed. 1865) (not­ing that there was no require­ment that “peace must actu­al­ly be bro­ken, to lay the foun­da­tion for a crim­i­nal pro­ceed­ing”).

54. Saul Cor­nell, The Right to Keep & Car­ry Arms in Anglo-Amer­i­can Law: Pre­serv­ing Lib­er­ty & Keep­ing the Peace, 80 L. & Con­temp. Probs. 11, 31 (2017) (“The pri­ma­ry func­tion of the jus­tice of the peace in the new Amer­i­can Repub­lic remained unchanged: to pre­serve the peace.”).

55. See Dis­trict of Colum­bia v. Heller, 554 U.S. 570, 595 (2008); McDon­ald v. City of Chi., 561 U.S. 742, 786 (2010); Gould v. Mor­gan, 907 F.3d 659 (1st Cir. 2018) (“good rea­son”); Wool­lard v. Gal­lagher, 712 F.3d 865 (4th Cir. 2013) (“good and sub­stan­tial rea­son”); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (“jus­ti­fi­able need”); Kachal­sky v. Cnty. of Westch­ester, 701 F.3d 81 (2d Cir. 2012) (“prop­er cause”).

56. See, e.g., Moore v. Madi­gan, 702 F.3d 933, 942 (7th Cir. 2012) (“The Supreme Court has decid­ed that the amend­ment con­fers a right to bear arms for self-defense, which is as impor­tant out­side the home as inside.”).

57. Kachal­sky, 701 F.3d at 88–89.

58. 614 F.3d 638, 640 (7th Cir. 2010) (empha­sis added).

59. McDon­ald, 561 U.S. at 786.

60. Heller, 554 U.S. at 595.

61. Id. at 626–27.

62. Id. at 626–27; see also McDon­ald, 561 U.S. at 786.

63. Id. at 628; see also Drake v. Filko, 724 F.3d 426, 431 (3d Cir. 2013) (“[T]he indi­vid­ual right to bear arms for the pur­pose of self-defense [in] the home [is] the ‘core’ of the right as iden­ti­fied by Heller.”); Kachal­sky v. Cnty. of Westch­ester, 701 F.3d 81, 89 (2d Cir. 2012) (“Sec­ond Amend­ment guar­an­tees are at their zenith with­in the home.”); Unit­ed States v. Mas­cian­daro, 638 F.3d 458, 471 (4th Cir. 2011) (“[A] less­er show­ing is nec­es­sary with respect to laws that bur­den the right to keep and bear arms out­side of the home.”).