Edward Peruta v. County of San Diego

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD PERUTA; MICHELLE No. 10-56971
LAXSON; JAMES DODD; LESLIE
BUNCHER, DR.; MARK CLEARY; D.C. No.
CALIFORNIA RIFLE AND PISTOL 3:09-cv-02371-
ASSOCIATION FOUNDATION, IEG-BGS
Plaintiffs-Appellants,
v. OPINION
COUNTY OF SAN DIEGO; WILLIAM D.
GORE, individually and in his
capacity as Sheriff,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
December 6, 2012—San Francisco, California
Filed February 13, 2014
Before: Diarmuid F. O’Scannlain, Sidney R. Thomas,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Thomas
2 PERUTA V. COUNTY OF SAN DIEGO
SUMMARY*
Civil Rights
The panel reversed the district court’s summary judgment
and held that a responsible, law-abiding citizen has a right
under the Second Amendment to carry a firearm in public for
self-defense.
Plaintiffs challenged a County of San Diego policy which
interpreted California’s restriction on carrying handguns in
public. California generally prohibits the open or concealed
carriage of a handgun, whether loaded or unloaded, in public
locations, absent the showing of, among other things, good
cause. Under San Diego’s policy, concern for one’s personal
safety alone is not considered good cause.
The panel first held that a law-abiding citizen’s ability to
carry a gun outside the home for self-defense fell within the
Second Amendment right to keep and bear arms for the
purpose of self-defense. Applying the analysis set forth in
District of Columbia v. Heller, 554 U.S. 570 (2008), the panel
then held that it did not need to apply a particular standard of
heightened scrutiny to the San Diego policy because the
“good cause” restriction amounted to a destruction of the
Second Amendment right altogether. The panel concluded
that San Diego County’s “good cause” permitting
requirement impermissibly infringed on the Second
Amendment right to bear arms in lawful self-defense.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PERUTA V. COUNTY OF SAN DIEGO 3
Dissenting, Judge Thomas stated that San Diego County’s
“good cause” policy fell squarely within the Supreme Court’s
definition of a presumptively lawful regulatory measure.
Judge Thomas stated that in dealing a needless, sweeping
judicial blow to the public safety discretion invested in local
law enforcement officers and to California’s carefully
constructed firearm regulatory scheme, the majority opinion
conflicted with Supreme Court authority, the decisions of
sister circuits, and Ninth Circuit precedent.
COUNSEL
Paul D. Clement, Bancroft PLLC, Washington, D.C., argued
the cause for the plaintiffs-appellants. Carl D. Michel,
Michel & Associates, P.C., Long Beach, California, filed the
briefs for the plaintiffs-appellants. With him on the opening
brief were Glenn S. McRoberts, Sean A. Brady, and Bobbie
K. Ross, Michel & Associates, P.C., Long Beach, California.
With him on the reply brief were Glenn S. McRoberts, Sean
A. Brady, and Bobbie K. Ross, Michel & Associates, P.C.,
Long Beach, California, and Paul Neuharth, Jr., Paul
Neuharth, Jr. APC., San Diego, California.
James M. Chapin, Senior Deputy Attorney for County of San,
San Diego, California, argued the cause and filed the brief for
the defendants-appellees. With him on the brief was Thomas
E. Montgomery, County Counsel for County of San Diego,
San Diego, California.
Stephen P. Halbrook, Fairfax, Virginia, filed the brief on
behalf of amicus curiae Congress of Racial Equality, Inc. in
support of the plaintiffs-appellants.
4 PERUTA V. COUNTY OF SAN DIEGO
Paul D. Clement, Bancroft PLLC, Washington, D.C., filed the
brief on behalf of amicus curiae National Rifle Association of
America, Inc. in support of plaintiffs-appellants.
David B. Kopel, Independence Institute, Golden, Colorado,
filed the brief on behalf of amici curiae International Law
Enforcement Educators and Trainers Association and the
Independence Institute.
Alan Gura, Gura & Possessky, PLLC, Alexandria, Virginia,
filed the brief on behalf of amici curiae Second Amendment
Foundation, Inc., Calguns Foundation, Inc., Adam Richards,
and Brett Stewart in support of plaintiffs-appellants.
John C. Eastman, Chapman University School of Law,
Orange, California, filed the brief on behalf of amici curiae
Center for Constitutional Jurisprudence, Doctors for
Responsible Gun Ownership, and Law Enforcement Alliance
of America. With him on the brief were Anthony T. Caso
and Karen J. Lugo.
Don B. Kates, Battle Ground, Washington, filed the brief on
behalf of amici curiae Gun Owners of California and Senator
H.L. Richardson (Ret.) in support of plaintiffs-appellants.
Neil R. O’Hanlon, Hogan Lovells US LLP, Los Angeles,
California, filed the brief on behalf of amici curiae Brady
Center to Prevent Gun Violence, the International
Brotherhood of Police Officers, and the Police Foundation.
With him on the brief were Adam K. Levin, S. Chartey
Quarcoo, and Samson O. Asiyanbi, Hogan Lovells US LLP,
Washington, D.C., and Jonathan E. Lowy and Daniel R. Vice,
Brady Center to Prevent Gun Violence, Washington, D.C.
PERUTA V. COUNTY OF SAN DIEGO 5
Paul R. Coble, Law Offices of Jones & Mayer, Fullerton,
California, filed the brief on behalf of amici curiae California
State Sheriffs Association, California Police Chiefs
Association, and California Peace Officers Association in
support of defendants-appellees. With him on the brief was
Martin J. Mayer, Law Offices of Jones & Mayer, Fullerton,
California.
Simon J. Frankel, Covington & Burling LLP, San Francisco,
California, filed the brief on behalf of amici curiae Legal
Community against Violence, Major Cities Chiefs
Association, Association of Prosecuting Attorneys, and San
Francisco District Attorney George Gascón in support of
defendants-appellees. With him on the brief were Samantha
J. Choe, Steven D. Sassaman, and Ryan M. Buschell,
Covington & Burling LLP, San Francisco, California.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a responsible, law-
abiding citizen has a right under the Second Amendment to
carry a firearm in public for self-defense.
I
A
California generally prohibits the open or concealed
carriage of a handgun, whether loaded or unloaded, in public
6 PERUTA V. COUNTY OF SAN DIEGO
locations.1 See Cal. Penal Code § 25400 (prohibiting
concealed carry of a firearm); id. § 25850 (prohibiting carry
of a loaded firearm); id. § 26350 (prohibiting open carry of an
unloaded firearm); see also id. § 25605 (exempting the gun
owner’s residence, other private property, and place of
business from section 25400 and section 26350).
Nonetheless, one may apply for a license in California to
carry a concealed weapon in the city or county in which he or
she works or resides. Id. §§ 26150, 26155. To obtain such a
license, the applicant must meet several requirements. For
example, one must demonstrate “good moral character,”
complete a specified training course, and establish “good
cause.” Id. §§ 26150, 26155.
California law delegates to each city and county the
power to issue a written policy setting forth the procedures
for obtaining a concealed-carry license. Id. § 26160. San
Diego County has issued such a policy. At issue in this
appeal is that policy’s interpretation of the “good cause”
requirement found in sections 26150 and 26155: “[A] set of
circumstances that distinguish the applicant from the
1
There are a few narrow exceptions to this rule. Armored vehicle
guards and retired federal officers may carry a loaded firearm in public
without meeting stringent permitting requirements. See Cal. Penal Code
§ 26015 (armored vehicle guards); id. § 26020 (retired federal officers).
And a citizen may carry a loaded firearm in public if: (1) he is engaged in
the act of attempting to make a lawful arrest; (2) he is hunting in locations
where it is lawful to hunt; or (3) he faces immediate, grave danger
provided that the weapon is only carried in “the brief interval” between the
time law enforcement officials are notified of the danger and the time they
arrive on the scene (where the fleeing victim would obtain a gun during
that interval is apparently left to Providence). Id. § 26040 (hunting); id.
§ 26045 (immediate, grave danger); id. § 26050 (attempting to make a
lawful arrest).
PERUTA V. COUNTY OF SAN DIEGO 7
mainstream and causes him or her to be placed in harm’s
way.” Good cause is “evaluated on an individual basis” and
may arise in “situations related to personal protection as well
as those related to individual businesses or occupations.”
But—important here—concern for “one’s personal safety
alone is not considered good cause.”
The power to grant concealed-carry licenses in San Diego
County is vested in the county sheriff’s department. Since
1999, the sheriff’s department has required all applicants to
“provide supporting documentation” in order “to demonstrate
and elaborate good cause.” This “required documentation,
such as restraining orders, letters from law enforcement
agencies or the [district attorney] familiar with the case, is
discussed with each applicant” to determine whether he or
she can show a sufficiently pressing need for self-protection.
If the applicant cannot demonstrate “circumstances that
distinguish [him] from the mainstream,” then he will not
qualify for a concealed-carry permit.
B
Wishing to carry handguns for self-defense but unable to
document specific threats against them, plaintiffs Edward
Peruta, Michelle Laxson, James Dodd, Leslie Buncher, and
Mark Cleary (collectively “the applicants”), all residents of
San Diego County, were either denied concealed-carry
licenses because they could not establish “good cause” or
decided not to apply, confident that their mere desire to carry
for self-defense would fall short of establishing “good cause”
as the County defines it. An additional plaintiff, the
California Rifle and Pistol Association Foundation, comprises
many San Diego Country residents “in the same predicament
8 PERUTA V. COUNTY OF SAN DIEGO
as the individual Plaintiffs.” No plaintiff is otherwise barred
under federal or state law from possessing firearms.
C
On October 23, 2009, after the County denied his
application for a concealed-carry license, Peruta sued the
County of San Diego and its sheriff, William Gore
(collectively “the County”), under 42 U.S.C. § 1983,
requesting injunctive and declaratory relief from the
enforcement of the County policy’s interpretation of “good
cause.” Peruta’s lead argument was that, by denying him the
ability to carry a loaded handgun for self-defense, the County
infringed his right to bear arms under the Second
Amendment.
About a year later, the applicants and the County filed
dueling motions for summary judgment. The district court
denied the applicants’ motion and granted the County’s.
Assuming without deciding that the Second Amendment
“encompasses Plaintiffs’ asserted right to carry a loaded
handgun in public,” the district court upheld the County
policy under intermediate scrutiny. As the court reasoned,
California’s “important and substantial interest in public
safety”—particularly in “reduc[ing] the risks to other
members of the public” posed by concealed handguns’
“disproportionate involvement in life-threatening crimes of
violence”—trumped the applicants’ allegedly burdened
Second Amendment interest. The district court rejected all of
the other claims, and the applicants timely appealed.
PERUTA V. COUNTY OF SAN DIEGO 9
II
As in the district court, on appeal the applicants place one
argument at center stage: they assert that by defining “good
cause” in San Diego County’s permitting scheme to exclude
a general desire to carry for self-defense, the County
impermissibly burdens their Second Amendment right to bear
arms.
The Supreme Court’s opinions in District of Columbia v.
Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 130 S. Ct. 3020 (2010), direct our analysis of this
claim. In Heller, the Court confronted a Second Amendment
challenge to a District of Columbia law that “totally ban[ned]
handgun possession in the home” and “require[d] that any
lawful firearm in the home be disassembled or bound by a
trigger lock.” 554 U.S. at 603, 628–29. The validity of the
measures depended, in the first place, on whether the Second
Amendment codified an individual right, as plaintiff Dick
Heller maintained, or a collective right, as the government
insisted. Id. at 577.
Consulting the text’s original public meaning, the Court
sided with Heller, concluding that the Second Amendment
codified a pre-existing, individual right to keep and bear arms
and that the “central component of the right” is self-defense.
Id. at 592, 599. It further held that, because “the need for
defense of self, family, and property is most acute in the
home,” the D.C. ban on the home use of handguns—“the
most preferred firearm in the nation”—failed “constitutional
muster” under any standard of heightened scrutiny. Id. at
628–29 & n.27 (rejecting rational-basis review). The same
went for the trigger-lock requirement. Id. at 635. The Court
had no need to “undertake an exhaustive historical analysis
10 PERUTA V. COUNTY OF SAN DIEGO
. . . of the full scope of the Second Amendment” to dispose of
Heller’s suit. Id. at 626–27. Nor had it reason to specify, for
future cases, which burdens on the Second Amendment right
triggered which standards of review, or whether a tiered-
scrutiny approach was even appropriate in the first place. Id.at 628–29. By any measure, the District of Columbia law had
overreached.
Two years later, the Court evaluated a similar handgun
ban enacted by the City of Chicago. The question presented
in McDonald, however, was not whether the ban infringed the
city residents’ Second Amendment rights, but whether a state
government could even be subject to the strictures of the
Second Amendment. That depended on whether the right
could be said to be “deeply rooted in this Nation’s history and
tradition” and “fundamental to our scheme of ordered
liberty.” 130 S. Ct. at 3036. To these questions, the
McDonald Court declared, “[o]ur decision in Heller points
unmistakably to the answer.” Id. After all, self-defense,
recognized since ancient times as a “basic right,” is the
“central component” of the Second Amendment guarantee.
Id. Consequently, that right restricted not only the federal
government but, under the Fourteenth Amendment, also the
states. Id. at 3026. Having so concluded, the Court
remanded the case to the Seventh Circuit for an analysis of
whether, in light of Heller, the Chicago handgun ban
infringed the Second Amendment right. Id. at 3050.
It doesn’t take a lawyer to see that straightforward
application of the rule in Heller will not dispose of this case.
It should be equally obvious that neither Heller nor
McDonald speaks explicitly or precisely to the scope of the
Second Amendment right outside the home or to what it takes
to “infringe” it. Yet, it is just as apparent that neither opinion
PERUTA V. COUNTY OF SAN DIEGO 11
is silent on these matters, for, at the very least, “the Supreme
Court’s approach . . . points in a general direction.” Ezell v.
City of Chicago, 651 F.3d 684, 700 (7th Cir. 2011) (noting
that Heller does not leave us “without a framework for how
to proceed”). To resolve the challenge to the D.C.
restrictions, the Heller majority described and applied a
certain methodology: it addressed, first, whether having
operable handguns in the home amounted to “keep[ing] and
bear[ing] Arms” within the meaning of the Second
Amendment and, next, whether the challenged laws, if they
indeed did burden constitutionally protected conduct,
“infringed” the right. We apply that approach here, as we
have done in the past, United States v. Chovan, 735 F.3d
1127, 1136 (9th Cir. 2013), and as many of our sister circuits
have done in similar cases. See, e.g., Nat’l Rifle Ass’n of Am.,
Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185, 194 (5th Cir. 2012) (“A two-step inquiry has
emerged as the prevailing approach.”); United States v.
Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District
of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir.
2011); Ezell, 651 F.3d at 701–04; 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).
A
The first question goes to the scope of the guarantee:
Does the restricted activity—here, a restriction on a
responsible, law-abiding citizen’s2 ability to carry a gun
2
In this case, as in Heller, we consider the scope of the right only with
respect to responsible, law-abiding citizens. See Heller, 554 U.S. at 635(“And whatever else it leaves to future evaluation, it surely elevates above
12 PERUTA V. COUNTY OF SAN DIEGO
outside the home for self-defense—fall within the Second
Amendment right to keep and bear arms for the purpose of
self-defense? Ezell, 651 F.3d at 701; see also Kachalsky v.
Cnty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).
Concerning the precise methods by which that right’s scope
is discerned, the Heller and McDonald Courts were hardly
shy: we must consult “both text and history.” Heller,
554 U.S. at 595; see also McDonald, 130 S. Ct. at 3047(reiterating that “the scope of the Second Amendment right”
is determined by historical analysis and not interest
balancing).
The analysis begins—as any interpretive endeavor
must—with the text. “Constitutional rights are enshrined
with the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes) even
future judges think that scope too broad.” Heller, 554 U.S. at634–35. To arrive at the original understanding of the right,
“we are guided by the principle that ‘[t]he Constitution was
written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from
technical meaning,” unless evidence suggests that the
language was used idiomatically. Id. at 576 (quoting United
States v. Sprague, 282 U.S. 716, 731 (1931)).
all other interests the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.”). With respect to irresponsible or non-
law-abiding citizens, a different analysis—which we decline to undertake
here—applies. Chovan, 735 F.3d at 1138 (holding that a statute “does not
implicate this core Second Amendment right [if] it regulates firearm
possession for individuals with criminal convictions”); see also Heller,
554 U.S. at 626 (“[N]othing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and
the mentally ill . . . .”).
PERUTA V. COUNTY OF SAN DIEGO 13
Since the goal is to arrive at a fair, not a hyper-literal,
reading of the Constitution’s language, Heller’s analysis is
necessarily a contextual—and therefore a historical—one.
See Chester, 628 F.3d at 680 (“This historical inquiry seeks
to determine whether the conduct at issue was understood to
be within the scope of the right . . . .”). It begins with the pre-
ratification “historical background of the Second
Amendment,” since “the Second Amendment . . . codified a
pre-existing right.” Heller, 554 U.S. at 592 (emphasis
omitted). Next, it turns to whatever sources shed light on the
“public understanding [of the Second Amendment] in the
period after its enactment or ratification,” see id. at 605–10,
such as nineteenth-century judicial interpretations and legal
commentary. See id. at 605 (“We now address how the
Second Amendment was interpreted from immediately after
its ratification through the end of the 19th century.”); id. at
610–19 (surveying “Pre–Civil War Case Law,” “Post–Civil
War Legislation,” and “Post–Civil War Commentators”).
Of course, the necessity of this historical analysis
presupposes what Heller makes explicit: the Second
Amendment right is “not unlimited.” Id. at 595. It is “not a
right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. Rather, it
is a right subject to “traditional restrictions,” which
themselves—and this is a critical point—tend “to show the
scope of the right.” McDonald, 130 S. Ct. at 3056 (Scalia, J.,
concurring); see also Kachalsky, 701 F.3d at 96; Nat’l Rifle
Ass’n of Am., 700 F.3d at 196 (“For now, we state that a
longstanding presumptively lawful regulatory measure . . .
would likely [burden conduct] outside the ambit of the
Second Amendment.”); United States v. Skoien, 614 F.3d
638, 640 (7th Cir. 2010) (en banc) (“That some categorical
limits are proper is part of the original meaning.”).
14 PERUTA V. COUNTY OF SAN DIEGO
In short, the meaning of the Second Amendment is a
matter not merely of abstract dictionary definitions but also
of historical practice. As “[n]othing but conventions and
contexts cause [language] to convey a particular idea,” we
begin our analysis of the scope of the Second Amendment
right by examining the text of the amendment in its historical
context. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts xxvii (2012).
1
The Second Amendment secures the right not only to
“keep” arms but also to “bear” them—the verb whose
original meaning is key in this case. Saving us the trouble of
pulling the eighteenth-century dictionaries ourselves, the
Court already has supplied the word’s plain meaning: “At the
time of the founding, as now, to ‘bear’ meant to ‘carry.’”
Heller, 554 U.S. at 584.3 Yet, not “carry” in the ordinary
sense of “convey[ing] or transport[ing]” an object, as one
might carry groceries to the check-out counter or garments to
the laundromat, but “carry for a particular purpose—
confrontation.” Id. The “natural meaning of ‘bear arms,’”
according to the Heller majority, was best articulated by
Justice Ginsburg in her dissenting opinion in Muscarello v.
United States, 524 U.S. 125 (1998): to “‘wear, bear, or carry
. . . upon the person or in the clothing or in a pocket, for the
purpose . . . of being armed and ready for offensive or
3
Although we are dealing with the Second Amendment right as
incorporated against the states through the Fourteenth Amendment,
we—consistent with the Court’s analysis in McDonald—assume that the
right had the same scope at the time of incorporation as it did at the time
of the founding. See, e.g., 130 S. Ct. at 3036 (using the definition of the
Second Amendment right espoused in Heller when analyzing
incorporation against the states).
PERUTA V. COUNTY OF SAN DIEGO 15
defensive action in a case of conflict with another person.’”
Heller, 554 U.S. at 584 (quoting Muscarello, 524 U.S. at 143(Ginsburg, J., dissenting) (quoting Black’s Law Dictionary
214 (6th ed. 1998)); see also id. at 592 (concluding that the
Second Amendment “guarantee[s] the individual right to . . .
carry weapons in case of confrontation”).
Speakers of the English language will all agree: “bearing
a weapon inside the home” does not exhaust this definition of
“carry.” For one thing, the very risk occasioning such
carriage, “confrontation,” is “not limited to the home.”
Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). One
needn’t point to statistics to recognize that the prospect of
conflict—at least, the sort of conflict for which one would
wish to be “armed and ready”—is just as menacing (and
likely more so) beyond the front porch as it is in the living
room. For that reason, “[t]o speak of ‘bearing’ arms within
one’s home would at all times have been an awkward usage.”
Id. To be sure, the idea of carrying a gun “in the clothing or
in a pocket, for the purpose . . . of being armed and ready,”
does not exactly conjure up images of father stuffing a six-
shooter in his pajama’s pocket before heading downstairs to
start the morning’s coffee, or mother concealing a handgun in
her coat before stepping outside to retrieve the mail. Instead,
it brings to mind scenes such as a woman toting a small
handgun in her purse as she walks through a dangerous
neighborhood, or a night-shift worker carrying a handgun in
his coat as he travels to and from his job site.
More importantly, at the time of the Second
Amendment’s enactment, the familiar image that “bear arms”
would have painted is one of an eighteenth-century
frontiersman, who “from time to time [would] leave [his]
home to obtain supplies from the nearest trading post, and en
16 PERUTA V. COUNTY OF SAN DIEGO
route one would be as much (probably more) at risk if
unarmed as one would be in one’s home unarmed.” Id. at
936. Indeed, it was this spirit of the arms-bearing settler that
Senator Charles Sumner invoked (and the Heller Court cited
as instructive of the scope of the right) in the (in)famous
“Crime against Kansas” speech in 1856: “The rifle has ever
been the companion of the pioneer and, under God, his
tutelary protector against the red man and the beast of the
forest. Never was this efficient weapon more needed in just
self-defence, than now in Kansas, and at least one article in
our National Constitution must be blotted out, before the
complete right to it can in any way be impeached.” 4 The
Works of Charles Sumner 211–12 (1875); see also Heller,
554 U.S. at 609.
Other passages in Heller and McDonald suggest that the
Court shares Sumner’s view of the scope of the right. The
Second Amendment, Heller tells us, secures “the right to
‘protect[] [oneself] against both public and private violence,’
thus extending the right in some form to wherever a person
could become exposed to public or private violence.” United
States v. Masciandaro, 638 F.3d 458, 467 (4th Cir. 2011)
(Niemeyer, J., specially concurring) (quoting Heller, 554 U.S.
at 594 (emphasis added)). The Court reinforced this view by
clarifying that the need for the right is “most acute” in the
home, Heller, 554 U.S. at 628, thus implying that the right
exists outside the home, though the need is not always as
“acute.” See also McDonald, 130 S. Ct. at 3044 (2010)
(“[T]he Second Amendment protects a personal right to keep
and bear arms for lawful purposes, most notably for self-
defense within the home.”). In a similar vein, Heller
identifies “laws forbidding the carrying of firearms in
sensitive places such as school and government buildings” as
presumptively lawful. 554 U.S. at 626. Were the right
PERUTA V. COUNTY OF SAN DIEGO 17
restricted to the home, the constitutional invincibility of such
restrictions would go without saying. Finally, both Heller
and McDonald identify the “core component” of the right as
self-defense, which necessarily “take[s] place wherever [a]
person happens to be,” whether in a back alley or on the back
deck. Eugene Volokh, Implementing the Right to Keep and
Bear Arms for Self-Defense: An Analytical Framework and
a Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009);
see also Moore, 702 F.3d at 937 (“To confine the right to be
armed to the home is to divorce the Second Amendment from
the right of self-defense described in Heller and
McDonald.”).
These passages alone, though short of dispositive,
strongly suggest that the Second Amendment secures a right
to carry a firearm in some fashion outside the home. Reading
those lines in light of the plain-meaning definition of “bear
Arms” elucidated above makes matters even clearer: the
Second Amendment right “could not rationally have been
limited to the home.” Moore, 702 F.3d at 936. Though
people may “keep Arms” (or, per Heller’s definition, “have
weapons,” 554 U.S. at 582) in the home for defense of self,
family, and property, they are more sensibly said to “bear
Arms” (or, Heller’s gloss: “carry [weapons] . . . upon the
person or in the clothing or in a pocket,” id. at 584) in
nondomestic settings.4 Kachalsky, 701 F.3d at 89 n.10 (“The
4
Heller and McDonald focus on the Second Amendment right to keep
and bear arms for self-defense—the core component of the right, which
this case implicates. We need not consider, therefore, whether the right
has other ends. See Eugene Volokh, Implementing the Right to Keep and
Bear Arms for Self-Defense: An Analytical Framework and a Research
Agenda, 56 UCLA L. Rev. 1443, 1448 (2009) (suggesting that the right
“may have other components,” such as the right to keep and bear arms for
recreation, hunting, or resisting government tyranny).
18 PERUTA V. COUNTY OF SAN DIEGO
plain text of the Second Amendment does not limit the right
to bear arms to the home.”); see also Drake v. Filko, 724 F.3d
426, 444 (3d Cir. 2013) (Hardiman, J., dissenting) (“To speak
of ‘bearing’ arms solely within one’s home not only would
conflate ‘bearing’ with ‘keeping,’ in derogation of the Court’s
holding that the verbs codified distinct rights, but also would
be awkward usage given the meaning assigned the terms by
the Supreme Court.”).
2
In addition to a textual analysis of the phrase “bear
Arms,” we, like the Court in Heller, look to the original
public understanding of the Second Amendment right as
evidence of its scope and meaning, relying on the “important
founding-era legal scholars.” See Heller, 554 U.S. at 600–03,
605–10 (examining the public understanding of the Second
Amendment in the period after its ratification because “[t]hat
sort of inquiry is a critical tool of constitutional
interpretation”).
The commonsense reading of “bear Arms” previously
discussed finds support in several important constitutional
treatises in circulation at the time of the Second
Amendment’s ratification. See id. at 582–83, 592–93
(treating such sources as instructive of the clause’s original
meaning). Writing on the English right to arms, William
Blackstone noted in his Commentaries on the Laws of
England that the “the right of having and using arms for self-
preservation and defence” had its roots in “the natural right of
resistance and self-preservation.” Heller, 554 U.S. at 594(internal citations and quotations omitted). It was this
inherited right of armed self-defense, according to Heller,
that “by the time of the founding [was] understood to be an
PERUTA V. COUNTY OF SAN DIEGO 19
individual right protecting against both public and private
violence.” Id. (emphasis added). Although Blackstone
elsewhere described a fourteenth-century English statute that
forbad the “riding or going armed with dangerous or unusual
weapons,” that prohibition was understood to cover carriage
of uncommon, frightening weapons only. Indeed, Justice
James Wilson, an early American legal commentator and
framer, confirmed this narrower reading, see 2 James Wilson,
The Works of James Wilson 654 (Robert McCloskey ed.
1967), citing an English commentator for the proposition that
wearing ordinary weapons in ordinary circumstances posed
no problem. See Eugene Volokh, The First and Second
Amendments, 109 Colum. L. Rev. Sidebar 97, 101 (2009)
(“American benchbooks for justices of the peace echoed
[Wilson’s observation].”); Joyce Lee Malcolm, To Keep and
Bear Arms: The Origins of an Anglo-American Right 105
(1994) (quoting an English case recognizing “a general
Connivance to Gentlemen to ride armed for their security,”
notwithstanding the statute); see also William Rawle, A View
of the Constitution of the United States of America 126 (2d
ed. 1829) (observing that the Second Amendment would not
forbid the prohibition of the “carrying of arms abroad by a
single individual, attended with circumstances giving just
reason to fear that he purposes to make an unlawful use of
them”). It is likely for this reason that Heller cites
Blackstone’s commentary on the statute as evidence not of
the scope of the “keep and bear” language but of what
weapons qualify as a Second Amendment “arms.” See
Heller, 554 U.S. at 627.
Writing over thirty years later in what Heller calls the
“most important” American edition of Blackstone’s
Commentaries, id. at 594, St. George Tucker, a law professor
and former Antifederalist, affirmed Blackstone’s comments
20 PERUTA V. COUNTY OF SAN DIEGO
on the British right and commented further on its American
dimensions. The right to armed self-defense, Tucker insisted,
is the “first law of nature,” and any law “prohibiting any
person from bearing arms” crossed the constitutional line. St.
George Tucker, Blackstone’s Commentaries: With Notes of
Reference to the Constitution and Laws of the Federal
Government of the United States; and of the Commonwealth
of Virginia 289 (1803). Tucker went on to note that, though
English law presumed that any gathering of armed men
indicated that treasonous plotting was afoot, it would have
made little sense to apply such an assumption in the colonies,
“where the right to bear arms is recognized and secured in the
constitution itself.” Tucker, supra, vol. 5, app., n.B, at 19.
After all, “[i]n many parts of the United States, a man no
more thinks, of going out of his house on any occasion,
without his rifle or musket in his hand, than a European fine
gentleman without his sword by his side.” Id.; see also
Michael P. O’Shea, Modeling the Second Amendment Right
to Carry Arms (I): Judicial Tradition and the Scope of
“Bearing Arms” for Self-Defense, 61 Am. U. L. Rev. 585,
637–38 (2012). Likewise, Edward Christian—another
Blackstone commentator from that period—maintained that
this inherited right allowed “everyone . . . to keep or carry a
gun, if he does not use it for the [unlawful] destruction of
game.” See Clayton E. Cramer & Joseph Edward Olson,
What Did “Bear Arms” Mean in the Second Amendment?, 6
Geo. J.L. & Pub. Pol’y 511, 517 (2008) (quoting 2 William
Blackstone, Commentaries 441 (Edward Christian ed.,
1795)).
3
In keeping with the views of the important late-
eighteenth-century commentaries, the great weight of
PERUTA V. COUNTY OF SAN DIEGO 21
nineteenth-century precedent on the Second Amendment or
its state-law analogues confirms the Heller-endorsed
understanding of “bear Arms.”5 In fact, as we will show,
many of the same cases that the Heller majority invoked as
proof that the Second Amendment secures an individual right
may just as easily be cited for the proposition that the right to
carry in case of confrontation means nothing if not the
general right to carry a common weapon outside the home for
self-defense.
a
But before turning to the cases themselves, we offer a
word on methodology. We set out to review the bulk of
precedents from this period.6 All are, in a broad sense,
equally relevant, for every historical gloss on the phrase “bear
arms” furnishes a clue of that phrase’s original or customary
5
Following Heller, we credit nineteenth-century judicial interpretations
of the right to bear arms as probative of the Second Amendment’s
meaning. Heller, 554 U.S. at 586; id. at 605 (“We now address how the
Second Amendment was interpreted from immediately after its ratification
through the end of the 19th century.”).
We decline, however, to undertake an exhaustive analysis of
twentieth-century interpretations of the right for the same reason that the
Heller Court presumably did: coming over a hundred years after the
Amendment’s ratification, they seem poor sources of the text’s original
public meaning. Cf. id. at 614 (“Since discussions [in Congress and
elsewhere after the Civil War] took place 75 years after the ratification of
the Second Amendment, they do not provide as much insight into its
original meaning as earlier sources.”).
6
We will inevitably miss some. The briefs filed in this appeal were able
to address only so many before running up against word limits.
22 PERUTA V. COUNTY OF SAN DIEGO
meaning. Still, some cases are more equal than others.7
That’s because, with Heller on the books, the Second
Amendment’s original meaning is now settled in at least two
relevant respects. First, Heller clarifies that the keeping and
bearing of arms is, and has always been, an individual right.
See, e.g., 554 U.S. at 616. Second, the right is, and has
always been, oriented to the end of self-defense. See, e.g., id.Any contrary interpretation of the right, whether propounded
in 1791 or just last week, is error. What that means for our
review is that historical interpretations of the right’s scope are
of varying probative worth, falling generally into one of three
categories ranked here in descending order: (1) authorities
that understand bearing arms for self-defense to be an
individual right, (2) authorities that understand bearing arms
for a purpose other than self-defense to be an individual right,
and (3) authorities that understand bearing arms not to be an
individual right at all.
To illustrate, a precedent in the first category that
declared a general right to carry guns in public would be a
great case for Peruta, while a decision in the same group that
confined exercise of the right to the home would do his
position much damage. By contrast, those cases in the third
category—which, like the dissenting opinions in Heller,
espouse the view that one has a right to bear arms only
collectively in connection with militia service and not for
self-defense within or outside the home—are of no help. The
second category, consisting mostly of cases that embrace the
premise that the right’s purpose is deterring tyranny, is only
7
With apologies to George Orwell. See George Orwell, Animal Farm
118 (2009) (1945) (distilling Manor Farm’s Seven Commandments of
Animalism to a single rule: “All animals are equal, but some animals are
more equal than others”).
PERUTA V. COUNTY OF SAN DIEGO 23
marginally useful. Since one needn’t exactly tote a pistol on
his way to the grocery store in order to keep his government
in check, it is no surprise (and, thus, of limited significance
for purposes of our analysis) when these courts suggest that
the right is mostly confined to the home. Likewise, a second-
category case asserting that the goal of tyranny prevention
does indeed call for public weapon bearing lends only
indirect support for the proposition that bearing arms in case
of confrontation includes carrying weapons in public for self-
defense.
b
Having set forth the methodology to be employed, we
turn to the nineteenth-century case law interpreting the
Second Amendment, beginning with the cases that the Court
itself relied upon in Heller.
The first case is Bliss v. Commonwealth, 12 Ky. (2 Litt.)
90 (1822), cited in Heller, 554 U.S. at 585 n.9, a decision
“especially significant both because it is nearest in time to the
founding era and because the state court assumed (just as
[Heller] does) that the constitutional provision . . . codified a
preexisting right.” Nelson Lund, The Second Amendment,
Heller, and Originalist Jurisprudence, 56 UCLA L. Rev.
1343, 1360 (2009). There, Kentucky’s highest court
interpreted that state’s Second Amendment analogue (“the
right of the citizens to bear arms in defense of themselves and
the state, shall not be questioned”) as invalidating a ban on
“wearing concealed arms.” Bliss, 12 Ky. (2 Litt.) at 90. The
Commonwealth’s lead argument to the contrary had been
that, though Kentucky’s constitution forbad prohibitions on
the exercise of the right, it permitted laws “merely regulating
the manner of exercising that right.” Id. at 91. Although the
24 PERUTA V. COUNTY OF SAN DIEGO
court agreed with the Commonwealth’s argument in
principle, it disagreed with the conclusion that the ban on
“wearing concealed arms” was merely a means of “regulating
the manner of exercising” the right. Id. An act needn’t
amount to a “complete destruction” of the right to be
“forbidden by the explicit language of the constitution,” since
any statute that “diminsh[ed] or impair[ed the right] as it
existed when the constitution was formed” would also be
“void.” Id. at 92. Thus, had the statute purported to prohibit
both the concealed and open carriage of weapons, effecting
an “entire destruction of the right,” it would have been an
obvious nullity; but even as a ban on concealed carry alone
there could be “entertained [no] reasonable doubt but [that]
the provisions of the act import a restraint on the right of the
citizens to bear arms.” Id. at 91–92 (emphasis added).
Striking down the law, the court explained that the
preexisting right to bear arms had “no limits short of the
moral power of the citizens to exercise it, and it in fact
consisted in nothing else but in the liberty of the citizens to
bear arms. Diminish that liberty, therefore, and you
necessarily restrain the right.” Id. at 92.
In Simpson v. State, the Tennessee Supreme Court read
that state’s Second Amendment analogue just as the Bliss
court read Kentucky’s. 13 Tenn. (5 Yer.) 356 (1833), cited in
Heller, 554 U.S. at 585 n.9. Convicted of the crime of affray
for appearing in public “arrayed in a warlike manner” (i.e.,
armed), Simpson argued that the state should have had to
prove that he had committed acts of physical violence to
convict him. Id. at 361–62. The court agreed, concluding in
part that even if the common law did not require proof of
actual violence to punish persons for merely walking around
with weapons, the state constitution’s protection of the “right
to keep and to bear arms” would trump: “[I]t would be going
PERUTA V. COUNTY OF SAN DIEGO 25
much too far, to impair by construction or abridgment a
constitutional privilege which is so declared.” Id. at 360; cf.
State v. Huntly, 25 N.C. (3 Ired.) 418 (1843) (rejecting a
“right to bear arms” defense and upholding an affray
conviction of a defendant who, threatening to kill off a certain
family, was caught carrying an unusual weapon in public). It
went without saying, evidently—for the court offered little in
the way of analysis—that whatever else the constitution
meant by “bear arms,” it certainly implied the right to carry
operable weapons in public. The court confirmed as much in
1871, holding that an act that proscribed openly carrying a
pistol “publicly or privately, without regard to time or place,
or circumstances” went too far, even though the statute
exempted from its prohibitions the carrying of long guns.
Andrews v. State, 50 Tenn. 165, 187 (1871), cited in Heller,
554 U.S. at 608, 629.
Though the Tennessee Supreme Court announced a
slightly different view of the right to bear arms in Aymette v.
State, that case is plainly consistent with—and indeed
affirms—the principle that the right to bear arms extends out
of doors. 21 Tenn. 154 (1840), cited in Heller, 554 U.S. at613–14. Commenting on the “manifest distinction” between
a restriction on “wearing concealed weapons” (which the
court upheld) and a prohibition on open carry, the court
observed with little fanfare that “[i]n the nature of things, if
[persons] were not allowed to bear arms openly, they could
not bear them in their defense of the State at all.” Id. at 160.
The court marshaled this point in support of the second-
category position “whereby citizens were permitted to carry
arms openly, unconnected with any service in a formal
militia, but were given the right to use them only for the
military purpose of banding together to oppose tyranny”—a
view of the right’s end that Heller explicitly rejects. Heller,
26 PERUTA V. COUNTY OF SAN DIEGO
554 U.S. at 613 (“[Aymette’s] odd reading of the right is, to
be sure, not the one we adopt.”). Nonetheless, what remains
of Aymette is its observation that the right to bear arms, even
if not in the service of personal self-defense, must include the
right to carry guns outside the home.
The Alabama Supreme Court weighed in that same year.
See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S.
at 629. Taking a view of the right narrower than that of the
Simpson court, it nonetheless declared that the constitutional
guarantee of “a right to bear arms, in defense of []self and the
State,” meant that an Alabamian must be permitted to carry
a weapon in public in some fashion. Id. at 615. Reid, found
guilty of the “evil practice of carrying weapons secretly,”
challenged the constitutionality of the statute of conviction.
Id. at 614. Rejecting this challenge, the court held that the
state constitution’s enumeration of the right did not strip the
legislature of the power “to enact laws in regard to the
manner in which arms shall be borne . . . as may be dictated
by the safety of the people and the advancement of public
morals.” Id. at 616. And, departing to some degree from the
approach in Bliss, the court concluded that Alabama’s
concealed-carry law was just such a regulation, going no
further than forbidding that means of arms bearing thought
“to exert an unhappy influence upon the moral feelings of the
wearer, by making him less regardful of the personal security
of others.” Id. at 617. The act’s narrowness ensured its
validity:
We do not desire to be understood as
maintaining, that in regulating the manner of
bearing arms, the authority of the Legislature
has no other limit than its own discretion. A
statute which, under the pretence of
PERUTA V. COUNTY OF SAN DIEGO 27
regulating, amounts to a destruction of the
right, or which requires arms to be so borne as
to render them wholly useless for the purpose
of defence, would be clearly unconstitutional.
Id. at 616–17. Read in light of the court’s earlier statement
that a restriction on arms bearing would stand so long as it
simply proscribed the “manner in which arms shall be borne,”
this passage suggests that to forbid nearly all forms of public
arms bearing would be to destroy the right to bear arms
entirely.8
Embracing precisely that position, the Georgia Supreme
Court’s decision in Nunn v. State six years later—praised in
Heller as “perfectly captur[ing]” the relationship between the
Second Amendment’s two clauses, 554 U.S. at 612—made
explicit what Reid intimated. 1 Ga. 243 (1846), cited in
Heller, 554 U.S. at 612, 626, 629. Convicted of keeping a
pistol on his person—a statutory misdemeanor (whether the
pistol was carried openly or “secretly”)—Nunn attacked the
statute of conviction as an unconstitutional infringement of
his right to bear arms under the Second Amendment. Id. at
246. The court began with a statement of the constitutional
standard: “The right of the whole people, old and young,
men, women and boys, and not militia only, to keep and bear
arms of every description, and not such merely as are used by
8
The Indiana Supreme Court appeared to take the same view. Compare
State v. Mitchell, 3 Blackf. 229 (Ind. 1833) (publishing a one-sentence
opinion that reads, “It was held in this case, that the statute of 1831,
prohibiting all persons, except travelers, from wearing or carrying
concealed weapons, is not unconstitutional.”) with Walls v. State, 7
Blackf. 572, 573 (Ind. 1845) (implying that a citizen could avoid legal
trouble under the concealed weapons law if “he exhibited his pistol so
frequently that it could not be said to be concealed”).
28 PERUTA V. COUNTY OF SAN DIEGO
the militia, shall not be infringed, curtailed, or broken in
upon, in the smallest degree.” Id. at 251. Turning to the
statute, the court reasoned that had it merely limited the
manner of the exercise of the right to carry, it would have
withstood scrutiny. As written, however, it went too far:
We are of the opinion, then, that so far as the
act of 1837 seeks to suppress the practice of
carrying certain weapons secretly, that it is
valid, inasmuch as it does not deprive the
citizen of his natural right of self-defence, or
of his constitutional right to keep and bear
arms. But that so much of it, as contains a
prohibition against bearing arms openly, is in
conflict with the Constitution, and void; and
that, as the defendant has been indicted and
convicted for carrying a pistol, without
charging that it was done in a concealed
manner, under that portion of the statute
which entirely forbids its use, the judgment of
the court below must be reversed, and the
proceeding quashed.
Id. In other words, as the same court explained in a later case
involving a defendant charged with illicit open carriage, to
ban both the open and concealed carriage of pistols “would be
to prohibit the bearing of those arms” altogether. Stockdale
v. State, 32 Ga. 225, 227 (1861) (adding that such a set of
restrictions “would . . . bring the Act within the decision in
Nunn’s case”).
Although the Arkansas Supreme Court in State v. Buzzard
appeared at first to take the contrary position, viewing
restrictions on carrying weapons for self-defense as
PERUTA V. COUNTY OF SAN DIEGO 29
permissible police-power regulations, see 4 Ark. 18 (1842);
see also Fife v. State, 31 Ark. 455 (1876) (relying on Buzzard
to uphold a prohibition on concealed carry); Carroll v. State,
28 Ark. 99 (1872) (same), the court staked its position on two
interpretations of the Second Amendment right that the Heller
Court repudiated—and from which the Arkansas court itself
later retreated. According to one judge in the splintered
majority, the Second Amendment secured a right to bear arms
for use in militia service but not a right to bear arms for
personal self-defense. Id. at 22 (opinion of Ringo, C.J.).
Writing separately, the other judge in the majority went
further, asserting that the Second Amendment secured no
individual right. Id. at 32 (opinion of Dickinson, J.); compare
id. at 43 (Lacy, J., dissenting) (arguing that the court should
have embraced the Bliss view). Neither interpretation
survives Heller—which is also to say that neither opinion
elucidates the right’s originally understood scope.9 Yet it
didn’t take Heller to convince the Arkansas Supreme Court
that Buzzard could use some shearing. Writing in 1878, the
court clarified that while “the Legislature might, in the
exercise of the police power of the State, regulate the mode
of wearing arms,” banning “the citizen from wearing or
carrying a war arm, except upon his own premises or when on
a journey . . . or when acting as or in aid of an officer, is an
unwarranted restriction upon his constitutional right to keep
and bear arms.” Wilson v. State, 33 Ark. 557, 560 (1878).
9
By assuming that the right to bear arms is an individual one focused on
militia service rather than self-defense, the Chief Judge Ringo’s opinion
in Buzzard falls into the second-category; Judge Dickinson’s opinion for
the majority is consistent with the third-category position in concluding
that the Second Amendment does not secure an individual right at all.
30 PERUTA V. COUNTY OF SAN DIEGO
State v. Chandler, an 1850 decision of the Louisiana
Supreme Court, proceeds along the lines drawn in Nunn.
5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626.
Rejecting the argument that Louisiana’s ban on carrying
concealed weapons infringed the Second Amendment right,
the court explained that the prohibition was “absolutely
necessary to counteract a vicious state of society, growing out
of the habit of carrying concealed weapons, and to prevent
bloodshed and assassinations committed upon unsuspecting
persons.” Id. at 489–90. A ban on the open carriage of
weapons, by contrast, would enjoy no such justification.
Echoing Reid, the court said:
[The Act] interfered with no man’s right to
carry arms (to use its words) “in full open
view,” which places men upon an equality.
This is the right guaranteed by the
Constitution of the United States, and which
is calculated to incite men to a manly and
noble defence of themselves, if necessary, and
of their country, without any tendency to
secret advantages and unmanly assassinations.
Id. at 490; see also Heller, 554 U.S. at 613 (citing favorably
Chandler’s holding that “citizens had a right to carry arms
openly”); State v. Jumel, 13 La. Ann. 399, 400 (1858)
(invoking Chandler for the proposition that “prohibiting only
a particular mode of bearing arms which is found dangerous
to the peace of society” does not infringe the right).
Nine years later, the Texas Supreme Court declared that
“[t]he right of a citizen to bear arms, in the lawful defense of
himself or the state, is absolute,” permitting even the wielding
of a Bowie knife, “the most deadly of all weapons in common
PERUTA V. COUNTY OF SAN DIEGO 31
use.” Cockrum v. State, 24 Tex. 394, 403 (1859). Though
the state legislature was free to discourage the carriage of
such an “exceeding[ly] destructive weapon,” it could not
adopt measures effectively prohibiting its use as a defensive
arm: “[A]dmonitory regulation of the abuse [of the right]
must not be carried too far. It certainly has a limit. For if the
legislature were to affix a punishment to the abuse of this
right, so great, as in its nature, it must deter the citizen from
its lawful exercise, that would be tantamount to a prohibition
of the right.” Id.10
Thus, the majority of nineteenth century courts agreed
that the Second Amendment right extended outside the home
and included, at minimum, the right to carry an operable
weapon in public for the purpose of lawful self-defense.
Although some courts approved limitations on the manner of
carry outside the home, none approved a total destruction of
the right to carry in public.
Indeed, we know of only four cases from that period
rejecting the presumptive-carry view. Three of the four,
however, are not category-one cases. See Haile v. State,
38 Ark. 564 (1882) (espousing a militia-based reading of the
10
The court rested this holding on the Texas constitution’s guarantee of
the right to bear arms, not that of the Second Amendment, which it read
as a strictly tyranny-deterring measure “based on the idea, that the people
cannot be effectually oppressed and enslaved, who are not first disarmed.”
Cockrum, 24 Tex. at 410. Though Heller, of course, rejects such a reading
as contrary to the Amendment’s original meaning, Cockrum retains
probative value for purposes of our analysis, as it “illustrates the thesis
that, when an antebellum court concluded that a constitutional right to bear
arms had a self-defense component, then this normally entailed
presumptive carry rights, even as applied to a very potent and dangerous
weapon such as the Bowie knife.” O’Shea, supra, at 632.
32 PERUTA V. COUNTY OF SAN DIEGO
right); Hill v. State, 53 Ga. 472 (1874) (same); English v.
State, 35 Tex. 473 (1872) (same). Consequently, they shed
no light on the question whether, if the right to bear arms is an
individual right directed to the end of self-defense, it
sanctions the public carriage of common weapons. In the
fourth case, State v. Duke, the court does begin with the
Heller-endorsed understanding of the right but nonetheless
concludes that, while the right contemplates weapon carrying
in certain places outside the home (e.g., one’s business) and
in circumstances reasonably giving rise to fear of attack, the
right is otherwise subject to heavy-handed regulation.
42 Tex. 455, 459 (1875). Yet, Duke is distinguishable: it
construed the guarantee of the right to bear arms as it
appeared in the Texas Constitution of 1869, which permitted
“such regulations [of the right] as the legislature may
prescribe.” Id. at 458. The Second Amendment’s text
contains no such open-ended clause restricting its application,
and we ought not to go looking for an unwritten one.
4
As the Court did in Heller, we turn next to the post–Civil
War legislative scene. Although consulting post–Civil War
discussions may seem to be an unusual means for discerning
the original public meaning of the right—particularly given
that these discussions postdate the Second Amendment’s
ratification by three-quarters of a century—we hew to the
Supreme Court’s conclusion that they retain some
significance, albeit less than earlier interpretations of the
right. See Heller, 554 U.S. at 614–18; see also McDonald,
130 S. Ct. at 3038–42. After the Civil War, “there was an
outpouring of discussion of Second Amendment in Congress
and in public discourse, as people debated whether and how
to secure constitutional rights for newly freed slaves.”
PERUTA V. COUNTY OF SAN DIEGO 33
Heller, 554 U.S. at 614. As this discussion was led by “those
born and educated in the early 19th century” near the time of
the Second Amendment’s enactment, “their understanding of
the origins and continuing significance of the Amendment is
instructive.” Id.Perhaps unsurprisingly, our review suggests that their
understanding comports with that of most nineteenth-century
courts: then, as at the time of the founding, “[t]he right of the
people . . . to bear arms meant to carry arms on one’s person.”
Stephen P. Halbrook, Securing Civil Rights, Freedmen, the
Fourteenth Amendment, and the Right to Bear Arms 50
(1998).
Our examination of the Civil War legislative scene begins
with the Supreme Court’s infamous decision in Dred Scott v.
Sanford, 60 U.S. 393 (1856). According to the Supreme
Court in Dred Scott, black slaves and their descendants “had
no rights which the white man was bound to respect”—
pouring fuel on the flames of the nation’s already-blazing
sectional crisis just four years before the firing on Fort
Sumter. Id. at 407. At the heart of this holding was the
Court’s conclusion that at no point had blacks ever been
members of the sovereign “people” of the United States. It
apparently followed from this premise that, as constitutional
non-citizens, blacks lacked not only the right to “full liberty
of speech in public and private” and “to hold meetings upon
political affairs” but also the constitutional right “to keep and
carry arms wherever they went.” Id. at 417 (emphasis
added). It was in large part in reaction to Dred Scott’s logic,
on which the Bla ck Codes of the post-war South plainly
rested, that the Reconstruction Congress sprung into action.
Heller, 554 U.S. at 614. It was, of course, no coincidence
that the codes, designed to deny the privileges of
34 PERUTA V. COUNTY OF SAN DIEGO
constitutional citizenship to the freedmen, took aim at that
most fundamental right of keeping and bearing arms. Clayton
E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. &
Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes
adopted after the Civil War required blacks to obtain a license
before carrying or possessing firearms or bowie knives. . . .
These restrictive gun laws played a part in provoking
Republican efforts to get the Fourteenth Amendment
passed.”); see also Stephen P. Halbrook, Personal Security,
Personal Liberty, and “The Constitutional Right to Bear
Arms”: Visions of the Framers of the Fourteenth Amendment,
5 Seton Hall Const. L.J. 341, 348 (1995) (“One did not have
to look hard to discover state ‘statutes relating to the carrying
of arms by negroes’ and to an ‘act to prevent free people of
color from carrying firearms.’” (citations omitted)). As
Heller notes, “[t]hose who opposed these injustices frequently
stated that they infringed blacks’ constitutional right to keep
and bear arms.” Heller, 554 U.S. at 614.
By all accounts, the model of such codes was
Mississippi’s 1865 “Act to Regulate the Relation of Master
and Apprentice Relative to Freedman, Free Negroes, and
Mulattoes,” which provided in part that “no freedman, free
negro or mulatto . . . shall keep or carry fire-arms of any kind,
or any ammunition, dirk or bowie knife” and that “any
freedman, free negro or mulatto found with any such arms or
ammunition” was subject to arrest. 1866 Miss. Laws ch. 23,
§1, 165 (1865). The act, rigorously enforced, led to a
thorough confiscation of black-owned guns, whether found at
home or on the person: “The militia of this country have
seized every gun and pistol found in the hands of the (so
called) freedmen. . . . They claim that the statute laws of
Mississippi do not recognize the negro as having any right to
carry arms. They commenced seizing arms in town,” as well
PERUTA V. COUNTY OF SAN DIEGO 35
as, later, “the plantations.” Harper’s Weekly, Jan. 13, 1866,
at 19, col. 2. A similar law enacted by a city in Louisiana,
which a special report “had brought to Congress’ attention,”
forbad freedmen from carrying firearms or any other kind of
weapon within the limits of town without special permission
from the government and one’s employer. Halbrook, supra,
at 5; see also “The Freedmen’s Bureau Bill,” New York
Evening Post, May 30, 1866, at 2, col. 1 (“In South Carolina
and Florida the freedmen are forbidden to wear or keep
arms.”).
Among the proposed legislative solutions to the problem
of the Black Codes was a bill to add to the powers of the
Freedmen’s Bureau, a federal agency dispatched to the South
to aid the former slaves. One senator, a Democrat from
Indiana, seemed to fear that the bill’s section securing civil
rights to blacks would cast doubt on the legitimacy of his
state’s laws securing only whites’ right to carry weapons
openly. See Halbrook, supra, at 8. Another senator, though
he opposed the bill, knew well the nature of the fundamental
rights it sought to secure: They included “the subordination
of the military to the civil power in peace, in a war, and
always,” “the writ of habeas corpus,” and “trial by jury,” he
declared. They also included the right “for every man
bearing his arms about him and keeping them in his house,
his castle, for his own defense.” Cong. Globe, 39th Cong.,
1st Sess. 340, 371 (Jan. 23, 1866) (Sen. Henry Winter Davis)
(emphasis added), cited in Heller, 554 U.S. at 616.
Meanwhile, in the House, T. D. Eliot, the chairman of the
Committee on Freedman’s Affairs, quoted from the Louisiana
city ordinance mentioned above, citing its prohibition on
“carrying firearms” within the town as an example of the sort
of black code that federal legislation securing fundamental
rights would undo. Cong. Globe, 39th Cong., 1st Sess. 517
36 PERUTA V. COUNTY OF SAN DIEGO
(Jan. 29, 1866). Underscoring the danger that the Southern
states’ abridgement of the right portended for blacks, he
quoted a letter from a teacher at a black school in Maryland,
which told of violence prompting “both the mayor and sheriff
[to] warn[] the colored people to go armed to school, (which
they do).” She apparently added: “The superintendent of
schools came down and brought me a revolver.” Cong.
Globe, 39th Cong., 1st Sess. 658 (Feb. 5, 1866). Concerned
by such peril, Massachusetts Congressman Nathaniel P.
Banks proposed making the language of the act more specific
by explicitly listing “the constitutional right to bear arms”
among the civil rights protected. Cong. Globe, 39th Cong.,
1st Sess. 585 (Feb. 1, 1866). The language made it into both
the first bill, which President Johnson vetoed (though he did
not object to its arms-bearing provision), as well as the final
version, passed by a veto-proof supermajority. Cong. Globe,
39th Cong., 1st Sess. 915–17 (Feb. 19, 1866); Cong. Globe,
39th Cong., 1st Sess. 3842 (July 16, 1866).
Orders of Union commanders charged with managing
Reconstruction in the South lend further support to the notion
that citizens in the post–Civil War era conceived of the right
to bear arms as extending to self-defense outside the home.
The Union commanders, who were given authority over
various “departments” of the defeated South, issued orders
that were just as important to the task of securing the
constitutional rights of liberated slaves as Congressional
legislation. “To the end that civil rights and immunities may
be enjoyed,” General Daniel Sickles issued General Order
No. 1 for the Department of South Carolina, stating in part
that “[t]he constitutional rights of all loyal and well-disposed
inhabitants to bear arms, will not be infringed,” though such
a guarantee neither foreclosed bans on “the unlawful practice
of carrying concealed weapons” nor authorized “any person
PERUTA V. COUNTY OF SAN DIEGO 37
to enter with arms on the premises of another against his
consent.” Cong. Globe, 39th Cong., 1st Sess. 908 (Feb. 17,
1866) (Rep. William Lawrence) (quoting Sickles’ order on
the floor of the House). Congressman William Lawrence of
Ohio lauded Sickles’ order as just the right medicine. Id.The Loyal Georgian, a known black journal, applauded its
issuance, editorializing that blacks “certainly . . . have the
same right to own and carry arms that other citizens have.”
The Loyal Georgian (Augusta), Feb. 3, 1866, 3, col. 4, cited
in Heller, 554 U.S. at 615.
Just as it was “plainly the understanding in the post–Civil
War Congress that the Second Amendment protected an
individual right to use arms for self-defense,” Heller,
554 U.S. at 616, it appears that the right was also understood
to encompass carrying weapons in public in case of
confrontation.
5
We consider next the major “[p]ost–Civil War
[c]ommentators[’]” understanding of the right. Id.; see also
David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 B.Y.U. L. Rev 1359, 1461–1503 (1998)
(collecting relevant commentary from the period). The first
and most influential was Thomas Cooley, judge, professor,
and author of two leading treatises on constitutional law.
Quoted at length in Heller solely for his view that the right is
an individual one, Cooley’s works say little on the self-
defense component of the right. Nonetheless, his treatment
of the Second Amendment in his more popular treatise
supports a self-defense view of the right. There, he notes that
“happily” there has been “little occasion” for consideration by
courts of the extent to which the right may be regulated,
38 PERUTA V. COUNTY OF SAN DIEGO
citing only—and without disapproval—the pro-carriage
decisions in Bliss, Nunn, and a third case on “the right of self-
defence.” Thomas M. Cooley, A Treatise on the
Constitutional Limitations Which Rest upon the Legislative
Power of the States of the American Union 350 & n.1 (1868),
cited in Heller, 554 U.S. at 616–17.11 Also of note, Cooley
observes elsewhere in the book that state constitutions
typically secure (among others) the right of each citizen to
“bear arms for the defence of himself.” Id. at 35–36
(emphasis added). Cooley’s view of the right is thus at least
compatible with the mainstream self-defense view and did not
preclude certain kinds of defensive weapons bearing.12 See
11
The editors of an 1875 edition of Blackstone also highlighted these
three cases in their discussion of “[t]he right of carrying arms for self-
protection.” 1 William Blackstone, Commentaries on the Laws of
England 121 n.64 (Herbert Broom & Edward A. Hadley eds., 1875).
William Draper Lewis, a later editor, wrote “[t]hat the right of carrying
arms as secured by the U.S. Constitution, and generally by State
constitutions, does not include the habitual carrying of concealed deadly
weapons by private individuals.” 1 William Blackstone, Commentaries on
the Laws of England 144 n.91 (William Draper Lewis ed., 1897). Both
these readings, like Cooley’s, presume that some arms bearing for self-
defense outside the home is encompassed in the right.
12
In Cooley’s other treatise, he often described the right to bear arms as
oriented toward the goal of citizenry-wide military readiness. To this end,
“to bear arms implies something more than the mere keeping; it implies
the learning to handle and use them in a way that makes those who keep
them ready for their efficient use; in other words, it implies the right to
meet for voluntary discipline in arms, observing in doing so the laws of
public order.” Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 271 (1880), cited in
Heller, 554 U.S. at 617–18.
Although one might be tempted to read this passage, and the section
in which it appears, as suggesting that Cooley believed the right to be
devoted solely to the defense of the community, two of his later comments
PERUTA V. COUNTY OF SAN DIEGO 39
also Cooley, The General Principles, supra, at 270
(observing that the right was adopted in its inherited English
form, “with some modification and enlargement”).
A second constitutional commentator from the era, also
cited in Heller, seemed to concur in Cooley’s account. See
John Pomeroy, An Introduction to the Constitutional Law of
the United States (8th ed. 1885), cited in Heller, 554 U.S. at
618. Though Pomeroy associated the right with the “object”
of “secur[ing] a well-regulated militia,” he suggested that,
while restrictions on the frowned-upon method of “secret”
carrying would not violate the right, restrictions on open carry
likely would. Consistent with the majority of nineteenth
century courts, Pomeroy did not see “laws forbidding persons
to carry dangerous or concealed weapons” alone as
incompatible with the Amendment’s “intent and design,” (in
contrast with laws barring carry altogether) for the right is not
absolute: “Freedom, not license, is secured.” Id. at 152–53.
The observations of Oliver Wendell Holmes Jr. in his
annotations to James Kent’s canonical Commentaries on
American Law, are in accord. “As the Constitution of the
United States . . . declare[s] the right of the people to keep
suggest otherwise. First, a later line in the same treatise clarifies: “[T]he
secret carrying of those [arms] suited merely to deadly individual
encounters may be prohibited.” Id. at 272. If Cooley understood the right
to allow weapons bearing only for training in “discipline in arms” and the
like, this later clarification would not have been necessary: of course the
Amendment would not foreclose restrictions on concealed carrying, just
as it would not foreclose restrictions on open carrying—or carrying
altogether. And second, as previously noted, Cooley’s more popular
treatise referenced and contemplated a self-defense component to the
right. Cooley, A Treatise on the Constitutional Limitations, supra, at 350
& n.1.
40 PERUTA V. COUNTY OF SAN DIEGO
and bear arms,” he wrote, “it has been a subject of grave
discussion, in some of the state courts, whether a statute
prohibiting persons, when not on a journey, or as travellers,
from wearing or carrying concealed weapons, be
constitutional. There has been a great difference of opinion
on the question.” 2 J. Kent, Commentaries on American Law
*340 n.2 (Holmes ed., 12th ed. 1873), cited in Heller,
554 U.S. at 618. Reviewing a handful of cases “in favor of”
concealed-carry restrictions and others wholly against it,
Holmes tellingly ends with an analysis of Nunn v. State, in
which a statutory prohibition on carrying was “adjudged to be
valid so far as it goes to suppress the wearing of arms
secretly, but unconstitutional so far as it prohibits the bearing
or carrying arms openly.” Id. For his own part, Holmes
thought a state acting pursuant to its general police power
may (and should) prohibit the “atrociously abused” practice
of concealed carry. Id. Notably, though, he stops short of
suggesting that bans on arms bearing altogether would be
appropriate, though he was obviously aware that some courts
had adopted a more aggressive regulatory posture toward the
right.
The account of George Chase, yet another nineteenth-
century editor of Blackstone, also reflects the mainstream
view of the right—and quite explicitly so. Though the right
may not be infringed, he wrote, “it is generally held that
statutes prohibiting the carrying of concealed weapons are not
in conflict with these constitutional provisions, since they
merely forbid the carrying of arms in a particular manner,
which is likely to lead to breaches of the peace and provoke
to the commission of crime, rather than contribute to public
or personal defence.” The American Students’ Blackstone:
Commentaries on the Laws of England 84 n.11 (George
PERUTA V. COUNTY OF SAN DIEGO 41
Chase ed., 3d ed. 1890) [hereinafter “Chase”], cited in Heller,
554 U.S. at 626.
Legal commentator John Odronaux, also cited in Heller,
understood the right clearly to include arms bearing outside
the home. Predating the Constitution, “[t]he right to bear
arms has always been the distinctive privilege of freemen,”
rooted in part in the “necessity of self-protection to the
person.” John Ordronaux, Constitutional Legislation in the
United States: Its Origin, and Application to the Relative
Powers of Congress, and of State Legislatures 241 (1891),
cited in Heller, 554 U.S. at 619. He described the special
province of the privilege in American history: “Exposed as
our early colonists were to the attacks of savages, the
possession of arms became an indispensable adjunct to the
agricultural implements employed in the cultivation of the
soil. Men went armed into the field, and went armed to
church. There was always public danger.” Id. at 242. Still,
for all its robustness, the Amendment has never prevented “a
State from enacting laws regulating the manner in which arms
may be carried. Thus, the carrying of concealed weapons
may be absolutely prohibited without the infringement of any
constitutional right, while a statute forbidding the bearing of
arms openly would be such an infringement.” Id. at 243
(adding that a state may require a private citizen to “obtain a
license in order to be permitted to carry a concealed
weapon”). Thus, Ordronaux squarely comes down on the
side of Nunn and like authorities, affirming in no uncertain
terms the right’s viability outside the home.
That position also prevailed, to a greater or lesser extent,
in some of the minor late-nineteenth-century commentaries.
Henry Campbell Black, Handbook of American
Constitutional Law 463 (1895) (noting that, though the arms-
42 PERUTA V. COUNTY OF SAN DIEGO
bearing privilege belongs to individuals and is a “natural
right,” restrictions on carrying concealed weapons are not
unconstitutional); James Schouler, Constitutional Studies:
State and Federal 226 (1897) (“To the time-honored right of
free people to bear arms was now [in the mid-nineteenth-
century] annexed, . . . the qualification that carrying
concealed weapons was not to be included.”); see also, supra,
n.12 (late-nineteenth-century editors of Blackstone).
That is not to say that this period was without proponents
of a dissenting view. Indeed, there were several. See Joel
Prentiss Bishop, Commentaries on the Law of Statutory
Crimes 497–98 (1873) (disagreeing that the right permits the
carrying of weapons for personal self-defense); J.C. Bancroft
Davis, “Appendix,” in Samuel Freeman Miller, Lectures on
the Constitution of the United States 645 (1893) [hereinafter
“Davis”] (understanding the right to secure the characteristic
activities of “military bodies and associations”); George
Boutwell, The Constitution of the United States at the End of
the First Century 358 (1895) (same); 2 John Randolph
Tucker, The Constitution of the United States 671–72 (Henry
St. George Tucker ed., 1899) (same).13 Yet, we must accord
13
Some of these authorities took their cues from the Supreme Court’s
decision in Presser v. Illinois, 116 U.S. 252 (1886), which they
understood as tying the right exclusively to militia service. See, e.g.,
Davis, supra, at 645. Justice Stevens, dissenting in Heller, read it
similarly. Heller, 554 U.S. at 673 (Stevens, J., dissenting). The majority
called that view “simply wrong,” concluding that “Presser said nothing
about the Second Amendment’s meaning or scope, beyond the fact that it
does not prevent the prohibition of private paramilitary organizations.” Id.
at 621 (majority opinion).
One other nineteenth-century author cited in Heller registers
disapproval of public arms bearing but offers no legal assessment of
whether such bearing is within the scope of the right. See Benjamin
PERUTA V. COUNTY OF SAN DIEGO 43
these commentaries little weight, and for the same reason we
discounted the state cases finding no individual or self-
defense-based right to keep and bear arms: Heller tells us that
they are—and always have been—incorrect interpretations of
the nature and scope of the right.
The weight of authority suggests that the right to bear
arms, as understood in the post–Civil War legal commentary,
included the right to carry weapons outside the home for self-
defense, which, as shown, is consistent with the
understanding of the right articulated in most eighteenth-
century commentary, nineteenth-century court opinions, and
by many post–Civil War political actors.
So concludes our analysis of text and history: the carrying
of an operable handgun outside the home for the lawful
purpose of self-defense, though subject to traditional
restrictions, constitutes “bear[ing] Arms” within the meaning
of the Second Amendment.
6
Our conclusion that the right to bear arms includes the
right to carry an operable firearm outside the home for the
lawful purpose of self-defense is perhaps unsurprising—other
circuits faced with this question have expressly held, or at the
very least have assumed, that this is so. Moore, 702 F.3d at
Vaughan Abbott, Judge and Jury: A Popular Explanation of Leading
Topics in the Law of the Land 333–34 (1880) (“Carrying them for defence,
in the more settled parts of the land, savors of cowardice rather than of
prudence; a well-behaved man has less to fear from violence than from the
blunders of himself and friends in managing the pistol he might carry as
a protection.”), cited in Heller, 554 U.S. at 619.
44 PERUTA V. COUNTY OF SAN DIEGO
936 (“A right to bear arms thus implies a right to carry a
loaded gun outside the home.”); see also, e.g., Drake,
724 F.3d at 431 (recognizing that the Second Amendment
right “may have some application beyond the home”);
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)
(“We . . . assume that the Heller right exists outside the home
. . . .”); Kachalsky, 701 F.3d at 89 (assuming that the Second
Amendment “must have some application in the very
different context of the public possession of firearms”).
Given this consensus, one might consider it odd that we
have gone to such lengths to trace the historical scope of the
Second Amendment right. But we have good reason to do so:
we must fully understand the historical scope of the right
before we can determine whether and to what extent the San
Diego County policy burdens the right or whether it goes
even further and “amounts to a destruction of the right”
altogether. See Heller, 554 U.S. at 629 (quoting Reid, 1 Ala.
at 616–17). Heller instructs that text and history are our
primary guides in that inquiry.
One of Heller’s most important lessons is that the Second
Amendment “codif[ies] a pre-existing right” whose contours
can be understood principally through an evaluation of
contemporaneous accounts by courts, legislators, legal
commentators, and the like. Heller, 554 U.S. at 603, 605; see
also McDonald, 130 S. Ct. at 3056–57 (Scalia, J., concurring)
(“The traditional restrictions [on the keeping and bearing of
arms] go to show the scope of the right.”). Tracing the scope
of the right is a necessary first step in the constitutionality
analysis—and sometimes it is the dispositive one. See Heller,
554 U.S. at 628–35. “[C]onstitutional rights are enshrined
with the scope they were understood to have when the people
adopted them. . . .” Id. at 634–35. A law that “under the
PERUTA V. COUNTY OF SAN DIEGO 45
pretence of regulating, amounts to a destruction of the right”
would not pass constitutional muster “[u]nder any of the
standards of scrutiny that we have applied to enumerated
constitutional rights.” Id. at 628–29. Put simply, a law that
destroys (rather than merely burdens) a right central to the
Second Amendment must be struck down. Id.We thus disagree with those courts—including the district
court in this case—that have taken the view that it is not
necessary (and, thus, necessary not) to decide whether
carrying a gun in public for the lawful purpose of self-defense
is a constitutionally protected activity. See, e.g., Drake,
724 F.3d at 431; Woollard, 712 F.3d at 876; Kachalsky, 701
F.3d at 89; cf. Masciandaro, 638 F.3d at 475. Understanding
the scope of the right is not just necessary, it is key to our
analysis. For if self-defense outside the home is part of the
core right to “bear arms” and the California regulatory
scheme prohibits the exercise of that right, no amount of
interest-balancing under a heightened form of means-ends
scrutiny can justify San Diego County’s policy. See Heller,
554 U.S. at 634 (“The very enumeration of the right takes out
of the hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis
whether the right is really worth insisting upon.”).
B
Having concluded that carrying a gun outside the home
for self-defense comes within the meaning of “bear[ing]
Arms,” we ask whether San Diego County’s “good cause”
permitting requirement “infringe[s]” the right.
46 PERUTA V. COUNTY OF SAN DIEGO
1
a
To determine what constitutes an infringement, our sister
circuits have grappled with varying sliding-scale and tiered-
scrutiny approaches, agreeing as a general matter that “the
level of scrutiny applied to gun control regulations depends
on the regulation’s burden on the Second Amendment right
to keep and bear arms.” Nordkye v. King, 681 F.3d 1041,
1045–46 (9th Cir. 2012) (en banc) (O’Scannlain, J.,
concurring) (collecting cases); see Heller II, 670 F.3d at 1257(requiring a “strong justification” for regulations imposing a
“substantial burden upon the core right of self-defense”);
Ezell, 651 F.3d at 706, 708 (applying more demanding
scrutiny to “severe burden[s] on the core Second Amendment
right”); Masciandaro, 638 F.3d at 469–70 (requiring “strong
justification[s]” for “severe burden[s] on the core Second
Amendment right” (quoting Chester, 628 F.3d at 682–83));
Marzzarella, 614 F.3d at 97 (calibrating the level of scrutiny
to the “severity” of the burden imposed). Under this general
approach, severe restrictions on the “core” right have been
thought to trigger a kind of strict scrutiny, while less severe
burdens have been reviewed under some lesser form of
heightened scrutiny. See, e.g., United States v. Decastro,
682 F.3d 160, 166 (2d Cir. 2012); Heller II, 670 F.3d at 1257;
Masciandaro, 638 F.3d at 470; Chester, 628 F.3d at 682.
Confronting challenges to curtailments of the right to carry,
one court has applied “some form of heightened scrutiny . . .
less than strict scrutiny.” Kachalsky, 701 F.3d at 93–94.
Another, eschewing a tiered approach, required the state to
“justif[y]” the burden. Moore, 702 F.3d at 941 (“Our analysis
is not based on degrees of scrutiny, but on Illinois’s failure to
justify the most restrictive gun law of any of the 50 states.”).
PERUTA V. COUNTY OF SAN DIEGO 47
Still another has applied intermediate scrutiny. See Woollard,
712 F.3d at 876.
And there is, of course, an alternative approach for the
most severe cases—the approach used in Heller itself. In
Heller, applying heightened scrutiny was unnecessary. No
matter what standard of review to which the Court might have
held the D.C. restrictions,14 “banning from the home the most
preferred firearm in the nation to keep and use for protection
of one’s home and family would fail constitutional muster.”
Id. at 628–29 (internal quotation marks and citation omitted).
A law effecting a “destruction of the right” rather than merely
burdening it is, after all, an infringement under any light.
Heller, 554 U.S. at 629 (emphasis added) (quoting Reid,
1 Ala. at 616–17); see also Heller II, 670 F.3d at 1271(Kavanaugh, J., dissenting) (“In my view, Heller and
McDonald leave little doubt that courts are to assess gun bans
and regulations based on text, history, and tradition, not by a
balancing test such as strict or intermediate scrutiny.”).15
b
Our first task, therefore, is to assess the nature of the
infringement that the San Diego County policy purportedly
effects on the right to bear arms—namely, does it burden the
right or, like in Heller, does it destroy the right altogether?
14
Excluding, of course, rational basis review. See Heller, 554 U.S. at628 n.27.
15
In Chovan, we applied intermediate scrutiny to a Second Amendment
claim that involved “a substantial burden on” a right outside the core of
the Second Amendment. 735 F.3d at 1138. Intermediate scrutiny is not
appropriate, however, for cases involving the destruction of a right at the
core of the Second Amendment.
48 PERUTA V. COUNTY OF SAN DIEGO
California’s regulatory scheme addresses two types of
arms-bearing: open and concealed carry. Under California
law, open carry is prohibited in San Diego County16
regardless of whether the weapon is loaded or unloaded. See
Cal. Penal Code §§ 25850, 26350. Because California law
has no permitting provision for open carry, cf. id. §§ 26150,
26155 (providing licensing only for concealed carry), it is
illegal in virtually all circumstances.
California law also severely restricts concealed carry,
although not to the same extent as open carry. As a general
rule, concealed carry is not allowed regardless of whether the
weapon is loaded. See id. § 25400. But there are certain
exceptions. Concealed carry is acceptable with a proper
permit. Id. §§ 26150, 26155. And even without a permit, it
is sanctioned for particular groups, see, e.g., id. § 25450
(peace officers); id. § 25455 (retired peace officers); id.
§ 25620 (military personnel); id. § 25650 (retired federal
officers), in particular locations, see, e.g., id. § 26035 (private
property or place of business); id. § 26040 (where hunting is
allowed), and at particular times, see, e.g., id. § 26045 (when
faced with “immediate, grave danger” in the “brief interval
before and after the local law enforcement agency . . . has
been notified of the danger and before the arrival of its
assistance); id. § 26050 (making or attempting to make a
lawful arrest).
Clearly, the California scheme does not prevent every
person from bearing arms outside the home in every
16
San Diego, like most of the populous cities and counties in California,
is incorporated. See California State Association of Counties, available
at http://www.csac.counties.org/cities-within-each-county (last visited
Feb. 4, 2014).
PERUTA V. COUNTY OF SAN DIEGO 49
circumstance. But the fact that a small group of people have
the ability to exercise their right to bear arms does not end
our inquiry. Because the Second Amendment “confer[s] an
individual right to keep and bear arms,” we must assess
whether the California scheme deprives any individual of his
constitutional rights. Heller, 554 U.S. at 595. Thus, the
question is not whether the California scheme (in light of San
Diego County’s policy) allows some people to bear arms
outside the home in some places at some times; instead, the
question is whether it allows the typical responsible, law-
abiding citizen to bear arms in public for the lawful purpose
of self-defense. The answer to the latter question is a
resounding “no.”17
In California, the only way that the typical responsible,
law-abiding citizen can carry a weapon in public for the
lawful purpose of self-defense is with a concealed-carry
permit. And, in San Diego County, that option has been
taken off the table. The San Diego County policy specifies
that concern for “one’s personal safety alone” does not satisfy
the “good cause” requirement for issuance of a permit.
Instead, an applicant must demonstrate that he suffers a
unique risk of harm: he must show “a set of circumstances
that distinguish [him] from the mainstream and cause[] him
. . . to be placed in harm’s way.” Given this requirement, the
“typical” responsible, law-abiding citizen in San Diego
County cannot bear arms in public for self-defense; a typical
17
It is worth noting that California has one of the most restrictive gun
regulatory regimes in the nation. Indeed, it is one of only eight states with
a “may-issue” permitting regime, meaning that a general desire to carry
in self-defense is not sufficient to justify obtaining a permit. See Drake,
724 F.3d at 442 (Hardiman, J., dissenting).
50 PERUTA V. COUNTY OF SAN DIEGO
citizen fearing for his “personal safety”—by definition—
cannot “distinguish [himself] from the mainstream.”
Although California law provides other specified
exceptions from the general prohibition against public carry,
these do little to protect an individual’s right to bear arms in
public for the lawful purpose of self-defense. The
exemptions for particular groups of law enforcement officers
and military personnel do not protect the typical responsible,
law-abiding citizen. Excluding private property and places of
business does not protect the right to bear arms for public
confrontation. And the exceptions for “making or attempting
to make a lawful arrest” or for situations of “immediate,
grave danger” (to the extent that they are not entirely
illusory—for how would one obtain a gun for use in public
when suddenly faced with such a circumstance?) do not cover
the scope of the right, which includes the right to carry in
case of public confrontation, not just after a confrontation has
occurred. Heller, 554 U.S. at 584 (defining bear arms to
mean carrying a weapon “for the purpose . . . of being armed
and ready for offensive or defensive action in a case of
conflict with another person.” (emphasis added) (quoting
Muscarello, 524 U.S. at 143 (Ginsburg, J., dissenting)). To
reason by analogy, it is as though San Diego County banned
all political speech, but exempted from this restriction
particular people (like current or former political figures),
particular places (like private property), and particular
situations (like the week before an election). Although these
exceptions might preserve small pockets of freedom, they
would do little to prevent destruction of the right to free
speech as a whole. As the Court has said: “The Second
Amendment is no different.” Heller, 554 U.S. at 635. It too
is, in effect, destroyed when exercise of the right is limited to
a few people, in a few places, at a few times.
PERUTA V. COUNTY OF SAN DIEGO 51
c
It is the rare law that “destroys” the right, requiring
Heller-style per se invalidation, but the Court has made
perfectly clear that a ban on handguns in the home is not the
only act of its kind. We quote the relevant paragraph in full,
telling case citations included:
Few laws in the history of our Nation have
come close to the severe restriction of the
District’s handgun ban. And some of those
few have been struck down. In Nunn v. State,
the Georgia Supreme Court struck down a
prohibition on carrying pistols openly (even
though it upheld a prohibition on carrying
concealed weapons). See 1 Ga., at 251. In
Andrews v. State, the Tennessee Supreme
Court likewise held that a statute that forbade
openly carrying a pistol “publicly or privately,
without regard to time or place, or
circumstances,” 50 Tenn., at 187, violated the
state constitutional provision (which the court
equated with the Second Amendment). That
was so even though the statute did not restrict
the carrying of long guns. Ibid. See also State
v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of
regulating, amounts to a destruction of the
right, or which requires arms to be so borne
as to render them wholly useless for the
purpose of defence, would be clearly
unconstitutional”).
52 PERUTA V. COUNTY OF SAN DIEGO
Id. at 629. In other words, D.C.’s complete ban on handguns
in the home amounted to a destruction of the right precisely
because it matched in severity the kinds of complete carry
prohibitions confronted (and struck down) in Nunn and
Andrews. These, in turn, resemble the severe restrictions in
effect in San Diego County, where the open or concealed
carriage of a gun, loaded or not, is forbidden. Heller teaches
that a near-total prohibition on keeping arms (Heller) is
hardly better than a near-total prohibition on bearing them
(this case), and vice versa. Both go too far.
2
The County presents one further argument in support of
the constitutionality of its “good cause” policy, which it
perceives as its ace in the hole: the Heller Court’s description
of concealed-carry restrictions as “presumptively lawful
regulatory measures.” Id. at 627 n.26. “The right [is] not a
right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose,” Heller says. Id. at
626. “For example, the majority of the 19th-century courts to
consider the question held that prohibitions on carrying
concealed weapons were lawful under the Second
Amendment and state analogues.” Id. According to the
County, this means that their concealed-carry policy (which
stops just short of an all-out ban) must also be lawful. Ergo,
this suit must fail.
But the County’s argument has two flaws. First, it
misapprehends Peruta’s challenge. This is not a case where
a plaintiff who is permitted to openly carry a loaded weapon
attacks the validity of a state’s concealed-carry rule because
he would rather carry secretly. Rather, Peruta and his fellow
plaintiffs argue that the San Diego County policy in light of
PERUTA V. COUNTY OF SAN DIEGO 53
the California licensing scheme as a whole violates the
Second Amendment because it precludes a responsible, law-
abiding citizen from carrying a weapon in public for the
purpose of lawful self-defense in any manner. True, Peruta
focuses his challenge on the licensing scheme for concealed
carry, but for good reason: acquiring such a license is the only
practical avenue by which he may come lawfully to carry a
gun for self-defense in San Diego County. See Cal. Penal
Code §§ 26150, 26155 (creating a licensing scheme for
concealed carry only). As we have explained, open carry is
prohibited in San Diego County, and elsewhere in California,
without exception. See id. §§ 25850, 26350. It is against this
backdrop of the California carry regime at large, Peruta
argues, that the unconstitutionality of the County’s restrictive
interpretation of “good cause” becomes apparent. His is not
an attack trained on a restriction against concealed carry as
such, or viewed in isolation. Rather, he targets the
constitutionality of the entire scheme and requests the least
intrusive remedy: that the County of San Diego, in line with
many of the other counties in the State of California, should
be made to issue carry licenses to citizens whose only “good
cause” is the Heller-approved desire for self-defense.
The second, somewhat-related mistake in the County’s
argument is that it reads too much into Heller’s ostensible
blessing of concealed-carry restrictions. A flat-out ban on
concealed carry in a jurisdiction permitting open carry may
or may not infringe the Second Amendment right—the
passage from Heller clearly bears on that issue, which we
need not decide. But whether a state restriction on both
concealed and open carry overreaches is a different matter.
To that question, Heller itself furnishes no explicit answer.
But the three authorities it cites for its statement on
concealed-carry laws do. See Heller, 554 U.S. at 626. We
54 PERUTA V. COUNTY OF SAN DIEGO
have analyzed all three already. The first, State v. Chandler,
stands for the principle that laws prohibiting the carry of
concealed weapons are valid only so long as they do not
destroy the right to carry arms in public altogether. See 5 La.
Ann. at 489–90 (“[The Act] interfered with no man’s right to
carry arms (to use its words) ‘in full open view,’ which places
men upon an equality.”); see also Jumel, 13 La. Ann. at 400
(citing Chandler for the principle that “prohibiting only a
particular mode of bearing arms . . . found dangerous” does
not infringe the right). The second, Nunn v. State, was even
more explicit: “A law which merely inhibits the wearing of
certain weapons in a concealed manner is valid. But so far as
it cuts off the exercise of the right of the citizen altogether to
bear arms, or, under the color of prescribing the mode,
renders the right itself useless—it is in conflict with the
Constitution, and void.” 1 Ga. at 243. Heller’s third and final
source, Chase’s American Students’ Blackstone, takes a
similar stance, concluding that, though the Constitution
forbids the infringement of the right to bear arms, “statutes
prohibiting the carrying of concealed weapons are not in
conflict with [it or its state analogues], since they merely
forbid the carrying of arms in a particular manner, which is
likely to lead to breaches of the peace and provoke to the
commission of crime, rather than contribute to public or
personal defence.” Chase, supra, at 84 n.11.
Of course, these three sources are not the only exponents
of this view. As we have shown, dozens of other cases and
authorities from the same period—many of which Heller cites
as probative of the right’s original meaning—contend
likewise. See, e.g., Reid, 1 Ala. at 616–17 (striking down a
concealed carry law because “the Legislature[ has] the right
to enact laws in regard to the manner in which arms shall be
borne,” but noting that a statute that destroys the right
PERUTA V. COUNTY OF SAN DIEGO 55
altogether under the “pretence of regulating” the manner of
carry “would be clearly unconstitutional”); Bliss, 12 Ky.
(2 Litt.) at 91 (holding that a ban on concealed carry, which
“restrain[ed] the full and complete exercise of [the] right,”
was unconstitutional and void). As Judge Hardiman aptly
summarized “courts have long h[eld] that although a State
may prohibit the open or concealed carry of firearms, it may
not ban both because a complete prohibition on public carry
violates the Second Amendment and analogous state
constitutional provisions.” Drake, 724 F.3d at 449
(Hardiman, J., dissenting).
To be clear, we are not holding that the Second
Amendment requires the states to permit concealed carry.
But the Second Amendment does require that the states
permit some form of carry for self-defense outside the home.
Historically, the preferred form of carry has depended upon
social convention: concealed carry was frowned upon
because it was seen as “evil practice” that endangered “the
safety of the people” and “public morals” by “exert[ing] an
unhappy influence upon the moral feelings of the wearer[
and] making him less regardful of the personal security of
others.” Reid, 1 Ala. at 616–17. States thus often passed
laws banning concealed carry and state courts often allowed
prohibitions on concealed carry so long as open carry was
still permitted. Id.; see also Nunn, 1 Ga. at 251 (“[S]o far as
the act of 1837 seeks to suppress the practice of carrying
certain weapons secretly, th[en] it is valid. . . . But [to the
extent it] contains a prohibition against bearing arms openly,
is in conflict with the Constitution, and void.”).
California, through its legislative scheme, has taken a
different course than most nineteenth-century state
legislatures, expressing a preference for concealed rather than
56 PERUTA V. COUNTY OF SAN DIEGO
open carry.18 See Cal. Penal Code § 26350 (prohibiting open
carry of an unloaded firearm); see also id. §§ 26150, 26155
(establishing a licensing procedure only for concealed carry).
And it has the power to do so: as the historical sources have
repeatedly noted, the state has a right to prescribe a particular
manner of carry, provided that it does not “cut[] off the
exercise of the right of the citizen altogether to bear arms, or,
under the color of prescribing the mode, render[] the right
itself useless.” Nunn, 1 Ga. at 243 (emphasis omitted).
California’s favoring concealed carry over open carry does
not offend the Constitution, so long as it allows one of the
two.
To put it simply, concealed carry per se does not fall
outside the scope of the right to bear arms; but insistence
upon a particular mode of carry does. As we have explained
previously, this is not the latter type of case. Peruta seeks a
concealed carry permit because that is the only type of permit
available in the state. As the California legislature has
limited its permitting scheme to concealed carry—and has
thus expressed a preference for that manner of arms-
bearing—a narrow challenge to the San Diego County
regulations on concealed carry, rather than a broad challenge
to the state-wide ban on open carry, is permissible.19
18
This is likely the result of a changing social convention in favor of
concealed rather than open carry. See Volokh, Implementing the Right,
supra, at 1521 (“In many places, carrying openly is likely to frighten
many people, and to lead to social ostracism as well as confrontations with
the police.”).
19
The dissent curiously misinterprets our opinion as ruling on the
constitutionality of California statutes. We decline to respond to its straw-
man arguments.
PERUTA V. COUNTY OF SAN DIEGO 57
For these reasons, Heller’s favorable mention of
concealed-carry restrictions is not the silver bullet the County
had hoped it was, at least not in this case.
3
Our opinion is not the first to address the question of
whether the Second Amendment protects a responsible, law-
abiding citizen’s right to bear arms outside the home for the
lawful purpose of self-defense. Indeed, we are the fifth
circuit court to opine expressly on the issue, joining an
existent circuit split. Compare Moore, 702 F.3d at 936–42
(holding that “[a] right to bear arms . . . implies a right to
carry a loaded gun outside the home” and striking down the
open-and-concealed-carry regulatory regime in Illinois
because the state failed to justify “so substantial a curtailment
of the right of armed self-defense”), with Drake, 724 F.3d at
431–35 (recognizing that the right to bear arms may have
some application outside the home, but concluding that New
Jersey’s “justifiable need” permitting requirement was a
presumptively lawful longstanding regulation or,
alternatively, that the New Jersey regulatory scheme survived
intermediate scrutiny); Woollard, 712 F.3d at 876, 879–82
(presuming that Second Amendment protections exist outside
the home and upholding Maryland’s regulatory scheme
because it could not “substitute [a different] view[] for the
considered judgment of the General Assembly,” which
“appropriate[ly] balance[d]” the interests involved), and
Kachalsky, 701 F.3d at 89, 97–99 (proceeding on the
“assumption” that the right to bear arms extends outside the
home, but affording “substantial deference to the predictive
judgments of [the legislature]” and thus upholding the gun
regulations under intermediate scrutiny). Our reading of the
Second Amendment is akin to the Seventh Circuit’s
58 PERUTA V. COUNTY OF SAN DIEGO
interpretation in Moore, 702 F.3d at 936–42,20 and at odds
with the approach of the Second, Third, and Fourth Circuits
in Drake, 724 F.3d at 431–35, Woollard, 712 F.3d at 876, and
Kachalsky, 701 F.3d at 89, 97–99.
a
We are unpersuaded by the decisions of the Second,
Third, and Fourth Circuits for several reasons. First, contrary
to the approach in Heller, all three courts declined to
undertake a complete historical analysis of the scope and
nature of the Second Amendment right outside the home.
Compare Heller, 554 U.S. at 605 (examining the post-
ratification interpretations of the Second Amendment because
“the public understanding of a legal text in the period after its
enactment or ratification” is “a critical tool of constitutional
interpretation” (emphasis omitted)), with Drake, 724 F.3d at
431 (noting that the court was “not inclined to address [text,
history, tradition and precedent] by engaging in a round of
full-blown historical analysis” and relying on the Second
Circuit’s conclusion that “[h]istory and tradition do not speak
with one voice” (quoting Kachalsky, 701 F.3d at 91));
Woollard, 712 F.3d at 874–76 (declining to “impart a
definitive ruling” regarding the scope of the Second
Amendment right), and Kachalsky, 701 F.3d at 91 (refusing
to look at “highly ambiguous history and tradition to
determine the meaning of the Amendment”). As a result,
they misapprehend both the nature of the Second Amendment
right and the implications of state laws that prevent the vast
20
The Supreme Court of Illinois has also found Moore persuasive. See
People v. Aguilar, 2013 IL 122116, at *5–6 (Sept. 12, 2013) (ruling “that
the second amendment protects the right to possess and use a firearm for
self-defense outside the home”).
PERUTA V. COUNTY OF SAN DIEGO 59
majority of responsible, law-abiding citizens from carrying in
public for lawful self-defense purposes.
For example, in Kachalsky, the Second Circuit’s
perfunctory glance at the plaintiffs’ historical argument
misunderstood the historical consensus regarding the right to
bear arms outside the home. Relying on three cases, the court
concluded that “history and tradition [did] not speak with one
voice” regarding the ability to restrict public carry because at
least three states “read restrictions on the public carrying of
weapons as entirely consistent with constitutional
protections.” Kachalsky, 701 F.3d at 90–91 (citing Fife v.
State, 31 Ark. 455 (1876), English, 35 Tex. at 473, and
Andrews v. State, 50 Tenn. 165 (1871)). But in its brief
historical analysis, the court missed a critical factor: the cases
it cites in favor of broad public carry restrictions adhere to a
view of the Second Amendment that is and always has been
incorrect. Cf. Moore, 702 F.3d at 941 (referencing
“disagreement . . . with some of the historical analysis in
[Kachalsky because] we regard the historical issues as settled
in Heller”). All three cases interpret the Second Amendment
as a militia-based (rather than a self-defense-centered) right;
they uphold regulations on carrying pistols in public because
pistols are not the type of weapons that would be used by
militia men. See Fife, 31 Ark. at 461 (upholding a prohibition
against carrying pistols in public because such weapons are
“used in private quarrels and brawls” and are not “effective
as a weapon of war, and useful and necessary for ‘the
common defense’”); English, 35 Tex. at 475 (“[W]e shall be
led to the conclusion that the [Second Amendment] protects
only the right to ‘keep’ such ‘arms’ as are used for purposes
of war, in distinction from those which are employed in
quarrels and broils, and fights between maddened individuals
. . . .”); Andrews, 50 Tenn. at 186–87 (affirming the
60 PERUTA V. COUNTY OF SAN DIEGO
constitutionality of a law regulating public carry of certain
weapons which were not the “usual equipment of the soldier”
but remanding for consideration of whether a revolver was
the “character of weapon” used in warfare).
Because the Second Amendment has always been an
individual right to defend oneself, cases that—like
these—uphold gun regulations because they do not offend the
militia-based nature of the right are inapposite and should not
factor into a historical analysis of the right’s scope. See, e.g.,
Heller, 554 U.S. at 605. And with these cases off the table,
the remaining cases speak with one voice: states may not
destroy the right to bear arms in public under the guise of
regulating it. See, e.g., Kachalsky, 701 F.3d at 90
(recognizing that some state courts “offered interpretations of
the Second Amendment” consistent with the plaintiffs’
position that “though a state may regulate open or concealed
carrying of handguns, it cannot ban both”); see also Drake,
724 F.3d at 449 (Hardiman, J., dissenting) (noting that the
“crux of the[] historical precedents[] endorsed by the
Supreme Court, is that a prohibition against both open and
concealed carry without a permit is different in kind, not
merely in degree, from a prohibition covering only one type
of carry”). In light of Heller, the Second Circuit erred in
outright rejecting history and tradition as unhelpful and
ambiguous, and the Third and Fourth Circuits erred in
PERUTA V. COUNTY OF SAN DIEGO 61
following suit.21 See Kachalsky, 701 F.3d at 91; see also
Drake, 724 F.3d at 431; Woollard, 712 F.3d at 875–76.
By evading an in-depth analysis of history and tradition,
the Second, Third, and Fourth Circuits missed a crucial piece
of the Second Amendment analysis. They failed to
comprehend that carrying weapons in public for the lawful
purpose of self defense is a central component of the right to
bear arms. See Moore, 702 F.3d at 941 (criticizing the court
in Kachalsky for “suggest[ing] that the Second Amendment
21
Indeed, the Third Circuit went even further than that. It not only
rejected history and tradition, but specifically relied on more recent mid-
twentieth century developments to justify New Jersey’s permitting
scheme. See Drake, 724 F.3d at 432–34; see also id. at 447–52
(Hardiman, J., dissenting) (criticizing the majority’s reliance on mid-
twentieth-century New Jersey law to justify narrowing the scope of the
Second Amendment right). The Third Circuit majority concluded that
even if the Second Amendment right extended outside the home,
permitting restrictions that required individuals to show a “justifiable need
to carry a handgun” in the form of “specific threats or previous attacks
which demonstrate a special danger to the applicant’s life” were analogous
to the type of “longstanding” regulations that the Supreme Court had
identified as “presumptively lawful” in Heller. Id. at 428–29 (majority
opinion). To reach this conclusion, the Third Circuit relied upon New
Jersey law, which had incorporated some version of the “justifiable need”
requirement into its permitting scheme since 1924. Id. at 432. We reject
this analysis because it goes against the analysis of the Second
Amendment’s scope employed in Heller and McDonald: those cases made
clear that the scope of the Second Amendment right depends not on post-
twentieth century developments, but instead on the understanding of the
right that predominated from the time of ratification through the
nineteenth century. See, e.g., Heller, 554 U.S. at 605; see also Drake,
724 F.3d at 452 (Hardiman, J., dissenting) (“[R]egardless of whether New
Jersey’s justifiable need requirement dates to 1924 or 1966 for purposes
of the inquiry, there is not a sufficiently longstanding tradition of
regulations that condition the issuance of permits on a showing of special
need for self-defense to uphold New Jersey’s law on that basis.”).
62 PERUTA V. COUNTY OF SAN DIEGO
should have a much greater scope inside the home than
outside” and noting that the “interest in self-protection [and
thus in the Second Amendment right] is as great outside as
inside the home”). And further, they failed to comprehend
that regulations on the right, although permissible to an
extent, could not go so far as to enjoin completely a
responsible, law-abiding citizen’s right to carry in public for
self-defense. Such regulations affecting a destruction of the
right to bear arms, just like regulations that affect a
destruction of the right to keep arms, cannot be sustained
under any standard of scrutiny. See Heller, 554 U.S. at 629.
Because the Second, Third, and Fourth Circuits eschewed
history and tradition in their analysis of the constitutionality
of these regulations, despite the Supreme Court’s admonition
that “the public understanding of a legal text in the period
after its enactment or ratification” is a “critical tool of
constitutional interpretation,” we find their approaches
unpersuasive. See Heller, 554 U.S. at 605. Our independent
analysis of history and tradition leads us to take a different
course.
b
Because our analysis paralleled the analysis in Heller
itself, we did not apply a particular standard of heightened
scrutiny. See also Moore, 702 F.3d at 941 (declining to
subject the “most restrictive gun law of any of the 50 states”
to an “analysis . . . based on degrees of scrutiny”). Thus, the
Second, Third, and Fourth Circuits’ extensive discussions
regarding the application of intermediate scrutiny to similar
regulations in other states is not particularly instructive to our
view of the issues in this case.
PERUTA V. COUNTY OF SAN DIEGO 63
Nonetheless, to the extent those opinions suggest that the
type of regulation at issue here can withstand some form of
heightened scrutiny, it is worth noting our disagreement with
their reasoning.
When analyzing whether a “substantial relationship”
existed between the challenged gun regulations and the goal
of “public safety and crime prevention” the Second Circuit
concluded that it owed “substantial deference to the
predictive judgments of [the legislature]” regarding the
degree of fit between the regulations and the public interest
they aimed to serve. Kachalsky, 701 F.3d at 97. Relying on
New York’s historical regulation of handguns from 1911 to
the present, the court deferred to the state legislature’s
“belief” that regulation of handgun possession would have
“an appreciable impact on public safety and crime
prevention.” Id. at 97–98. It thus upheld New York’s
regulatory scheme, emphasizing that there was “general
reticence to invalidate the acts of [our] elected leaders.” Id.
at 100 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.
Ct. 2566, 2579 (2012)). Taking a similar approach, the Third
Circuit deferred to the legislature’s judgment that the
permitting regulations would serve its interest in ensuring
public safety even though “New Jersey [could not] present[]
[the court] with much evidence to show how or why its
legislators arrived at this predictive judgment.” Drake,
724 F.3d at 437; see also id. at 454 (Hardiman, J., dissenting)
(clarifying that in actuality “New Jersey . . . provided no
evidence at all to support its proffered justification . . .”).
And the Fourth Circuit, in a familiar vein, relied on the
legislature’s judgment that “reduc[ing] the number of
handguns carried in public” would increase public safety and
prevent crime, despite conflicting evidence on the issue.
Woollard, 712 F.3d at 879–82.
64 PERUTA V. COUNTY OF SAN DIEGO
This is not an appropriate application of intermediate
scrutiny in at least two respects. First, the analysis in the
Second, Third, and Fourth Circuit decisions is near-identical
to the freestanding “interest-balancing inquiry” that Justice
Breyer proposed—and that the majority explicitly
rejected—in Heller. See Heller, 554 U.S. at 689–90 (Breyer,
J., dissenting) (proposing that in Second Amendment cases
the court should “ask[] whether the statute burdens a
protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests”); see also id. at 634–35
(majority opinion) (rejecting a “judge-empowering ‘interest-
balancing inquiry’” as a test for the constitutionality of
Second Amendment regulations because “no other
enumerated constitutional right [had its] core protection . . .
subjected to [such] a freestanding” inquiry). All three courts
referenced, and ultimately relied upon, the state legislatures’
determinations weighing the government’s interest in public
safety against an individual’s interest in his Second
Amendment right to bear arms. See Kachalsky, 701 F.3d at
100 (deferring to the state legislature’s determination “that
limiting handgun possession to persons who have an
articuable basis for believing they will need the weapon for
self-defense is in the best interest of public safety and
outweighs the need to have a handgun for an unexpected
confrontation” (emphasis added)); see also Drake, 724 F.3d
at 439 (noting that “New Jersey has decided that this
somewhat heightened risk to the public may be outweighed
by the potential safety benefit to an individual with a
justifiable need to carry a handgun” (emphasis added)
(internal quotation marks omitted)); Woollard, 712 F.3d at
880 (relying on the state’s determination that “the good-and-
substantial-reason requirement ‘strikes a proper balance
between ensuring access to handgun permits for those who
PERUTA V. COUNTY OF SAN DIEGO 65
need them while preventing a greater-than-necessary
proliferation of handguns in public places that . . . increases
risks to public safety.’” (emphasis added)). As we previously
explained, such an approach ignores the Heller court’s
admonition that “the very enumeration of the right takes out
of the hands of government . . . the power to decide on a case-
by-case basis whether the right is really worth insisting
upon.” Heller, 554 U.S. at 634; see also Drake, 724 F.3d at
457 (Hardiman, J., dissenting) (recognizing that the Heller
court “rejected this sort of balancing inquiry as inconsistent
with the very idea of constitutional rights”).
Our second disagreement with our sister circuits’
application of intermediate scrutiny relates to the high degree
of deference they afforded the state legislatures’ assessments
of the fit between the challenged regulations and the asserted
government interest they served. Although all three cite
Turner Broadcasting System, Inc. v. FCC (Turner II),
520 U.S. 180 (1997), for the proposition that courts must
afford deference to legislative findings, they apply this
premise in the wrong context. See Drake, 724 F.3d at
436–37; Woollard, 712 F.3d at 881; Kachalsky, 701 F.3d at
97. In Part II.A. of Turner, the Court applied deference to the
legislature’s judgment regarding the first portion of the
intermediate scrutiny analysis: whether there was a “real
harm” amounting to an important government interest and
“whether [the statutory provisions at issue] will alleviate it in
a material way.” Turner, 520 U.S. at 195. But in Part II.B,
when assessing “the fit between the asserted interests and the
means chosen to advance them,” the Court applied no such
deference. Id. at 213. Instead, it required the government to
prove that the statute did not burden the right “‘substantially
more . . . than is necessary to further’ [the government’s
legitimate] interests.” Id. at 214 (quoting Turner
66 PERUTA V. COUNTY OF SAN DIEGO
Broadcasting System, Inc. v. FCC (Turner I), 512 U.S. 622,
662 (1994)).
In Drake, Woollard, and Kachalsky, the government
failed to show that the gun regulations did not burden
“substantially more” of the Second Amendment right than
was necessary to advance its aim of public safety. Indeed, as
the district court noted in Woollard, the government could not
show that the challenged regulation served its needs any
better than a random rationing system, wherein gun permits
were limited to every tenth applicant. See also Drake,
724 F.3d at 455 (Hardiman, J., dissenting) (“[I]t is obvious
that the justifiable need requirement [in New Jersey]
functions as a rationing system designed to limit the number
of handguns carried in [the state].”). As that court so aptly
put it:
The Maryland statute’s failure lies in the
overly broad means by which it seeks to
advance this undoubtedly legitimate end. The
requirement that a permit applicant
demonstrate “good and substantial reason” to
carry a handgun does not, for example,
advance the interests of public safety by
ensuring that guns are kept out of the hands of
those adjudged most likely to misuse them,
such as criminals or the mentally ill. It does
not ban handguns from places where the
possibility of mayhem is most acute, such as
schools, churches, government buildings,
protest gatherings, or establishments that
serve alcohol. It does not attempt to reduce
accidents, as would a requirement that all
permit applicants complete a safety course. It
PERUTA V. COUNTY OF SAN DIEGO 67
does not even, as some other States’ laws do,
limit the carrying of handguns to persons
deemed “suitable” by denying a permit to
anyone “whose conduct indicates that he or
she is potentially a danger to the public if
entrusted with a handgun.”
Rather, the regulation at issue is a
rationing system. It aims, as Defendants
concede, simply to reduce the total number of
firearms carried outside of the home by
limiting the privilege to those who can
demonstrate “good reason” beyond a general
desire for self-defense.
....
The challenged regulation does no more to
combat [the state’s public safety concerns]
than would a law indiscriminately limiting the
issuance of a permit to every tenth applicant.
The solution, then, is not tailored to the
problem it is intended to solve. Maryland’s
“good and substantial reason” requirement
will not prevent those who meet it from
having their guns taken from them, or from
accidentally shooting themselves or others, or
from suddenly turning to a life of crime. . . . If
anything, the Maryland regulation puts
firearms in the hands of those most likely to
use them in a violent situation by limiting the
issuance of permits to “groups of individuals
who are at greater risk than others of being the
victims of crime.”
68 PERUTA V. COUNTY OF SAN DIEGO
Woollard v. Sheridan, 863 F. Supp. 2d 462, 474–75 (D. Md.
2012) (internal citations and quotation marks omitted), rev'd
sub nom. Woollard, 712 F.3d at 865; see also City of
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417–18
(1993) (holding that the “city did not establish the reasonable
fit” between a regulation prohibiting the distribution of
commercial handbills and a government interest in safety and
esthetics and rejecting the city’s argument that it could show
“a close fit between its ban on newsracks dispensing
‘commercial handbills’ and its interest in safety and esthetics
because every decrease in the number of such dispensing
devices necessarily effect[ed] an increase in safety and an
improvement in the attractiveness of the cityscape.”).
In light of the states’ failure to demonstrate sufficient
narrow tailoring in Drake, Woollard, and Kachalsky, the gun
regulations at issue in those cases should have been struck
down even under intermediate scrutiny.
III
We conclude by emphasizing, as nearly every authority
on the Second Amendment has recognized, regulation of the
right to bear arms is not only legitimate but quite appropriate.
We repeat Heller’s admonition that “nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on
the possession”—or carriage—“of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the
commercial sale of arms.” Heller, 554 U.S. at 626–27. Nor
should anything in this opinion be taken to cast doubt on the
validity of measures designed to make the carrying of
PERUTA V. COUNTY OF SAN DIEGO 69
firearms for self-defense as safe as possible, both to the
carrier and the community.
We are well aware that, in the judgment of many
governments, the safest sort of firearm-carrying regime is one
which restricts the privilege to law enforcement with only
narrow exceptions. Nonetheless, “the enshrinement of
constitutional rights necessarily takes certain policy choices
off the table. . . . Undoubtedly some think that the Second
Amendment is outmoded in a society where our standing
army is the pride of our Nation, where well-trained police
forces provide personal security, and where gun violence is
a serious problem. That is perhaps debatable, but what is not
debatable is that it is not the role of this Court [or ours] to
pronounce the Second Amendment extinct.” Id. at 636. Nor
may we relegate the bearing of arms to a “second-class right,
subject to an entirely different body of rules than the other
Bill of Rights guarantees that we have held to be incorporated
into the Due Process Clause.” McDonald, 130 S. Ct. at 3044.
The district court erred in denying the applicant’s motion
for summary judgment on the Second Amendment claim
because San Diego County’s “good cause” permitting
requirement impermissibly infringes on the Second
Amendment right to bear arms in lawful self-defense.22
REVERSED and REMANDED.
22
Because we reverse on the basis of the Second Amendment issue, we
do not reach any of Peruta’s other claims.
70 PERUTA V. COUNTY OF SAN DIEGO
THOMAS, Circuit Judge, dissenting:
In its landmark decision in Heller, the Supreme Court
held that a complete ban on handgun possession in the home
violated the Second Amendment. District of Columbia v.
Heller, 554 U.S. 570, 635 (2008). In doing so, it reminded us
that: “the right secured by the Second Amendment is not
unlimited” and that it “was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” Id. at 626. Significantly for our case, the
Court then specifically discussed restrictions on carrying
concealed weapons, explaining that “the majority of the 19th-
century courts to consider the question held that prohibitions
on carrying concealed weapons were lawful under the Second
Amendment or state analogues.” Id. The Court then
emphasized that “nothing in our opinion should be taken to
cast doubt on longstanding prohibitions,” which it labeled as
“presumptively lawful.” Id. at 626–27 & n.26. Heller’s
pronouncement is consistent with the Supreme Court’s prior
observation that “the right of the people to keep and bear
arms . . . is not infringed by laws prohibiting the carrying of
concealed weapons.” Robertson v. Baldwin, 165 U.S. 275,
281–82 (1897).
This case involves California’s “presumptively lawful”
and longstanding restrictions on carrying concealed weapons
in public and, more specifically, an even narrower question:
the constitutionality of San Diego County’s policy of
allowing persons who show good cause to carry concealed
firearms in public. When we examine the justification
provided for the policy, coupled with Heller’s direction, our
conclusion must be that the County’s policy is constitutional.
PERUTA V. COUNTY OF SAN DIEGO 71
Unfortunately, the majority never answers the question
posed. Instead, in a sweeping decision that unnecessarily
decides questions not presented, the majority not only strikes
down San Diego County’s concealed carry policy, but upends
the entire California firearm regulatory scheme. The majority
opinion conflicts with Heller, the reasoned decisions of other
Circuits, and our own case law.
Therefore, I must respectfully dissent.
I
We are not asked in this case to determine the reach of the
Second Amendment outside the home or to evaluate the
entirety of California’s handgun regulatory scheme. Rather,
the narrow questions presented in this case are: (1) Does the
scope of the Second Amendment extend to protect the
concealed carrying of handguns in public, and (2) if so, does
San Diego County’s policy of allowing public concealed
weapon carry upon a showing of good cause
unconstitutionally infringe on that right?
Second Amendment jurisprudence has rapidly evolved in
the last several years, commencing with the Supreme Court’s
groundbreaking decisions in Heller and McDonald v. City of
Chicago, 130 S. Ct. 3020 (2010). Although these cases are of
recent origin, Heller and McDonald, along with decisions of
our sister circuits, have provided an analytical framework for
examining Second Amendment challenges, which we
recently distilled in United States v. Chovan, 735 F.3d 1127,
1136 (9th Cir. 2013).
The Supreme Court has not as yet defined the extent to
which the Second Amendment applies outside the home, and
72 PERUTA V. COUNTY OF SAN DIEGO
that issue has been the subject of intense debate in the
intermediate appellate courts.1 As Judge Wilkinson has
observed, the question of the extent of the Second
Amendment’s reach beyond the home post-Heller is “a vast
terra incognita that courts should enter only upon necessity
and only then by small degree.” United States v.
Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011) (Wilkinson,
J., concurring).
In this changing landscape, with many questions
unanswered, our role as a lower court is “narrow and
constrained by precedent,” and our task “is simply to apply
the test announced by Heller to the challenged provisions.”
Heller v. District of Columbia, 670 F.3d 1244, 1285 (D.C.
Cir. 2011) (“Heller II”).
In this case, we are not presented with a broad challenge
to restrictions on carrying firearms outside the home. Instead,
we are asked a much more circumscribed question concerning
regulation of public carry of concealed firearms. As the
Supreme Court emphasized in Heller, that issue has a much
different and unique history than the Second Amendment
challenge at issue in Heller, and the history of concealed
carry restrictions differs from the history of open carry
regulations. Those differences are crucial to resolution of the
issues in this case.
Simply put, concealed carry presents an entirely different
Second Amendment issue from possessing handguns in the
home for self-defense. As the Supreme Court recognized in
Heller, courts and state legislatures have long recognized the
1
Compare Moore v. Madigan, 702 F.3d 933, 935–36 (7th Cir. 2012)
with Moore, 702 F.3d at 944–49 (Williams, J., dissenting).
PERUTA V. COUNTY OF SAN DIEGO 73
danger to public safety of allowing unregulated, concealed
weapons to be carried in public. Indeed that danger formed
part of the rationale for allowing police “stop and frisks” in
Terry v. Ohio, 392 U.S. 1 (1968). As Justice Harlan observed
in that case, “[c]oncealed weapons create an immediate and
severe danger to the public.” Id. at 31–32.
Under Heller and Chovan, we employ a two-part inquiry
when reviewing Second Amendment challenges to firearm
regulations. “The first question is whether the challenged law
imposes a burden on conduct falling within the scope of the
Second Amendment’s guarantee.” Chovan, 735 F.3d at 1134
(citing United States v. Chester, 628 F.3d 673, 680 (4th Cir.
2010) (internal quotation marks and citation omitted)).
“This historical inquiry seeks to determine whether the
conduct at issue was understood to be within the scope of the
right at the time of ratification.” Chester, 628 F.3d at 680.
“If it was not, then the challenged law is valid.” Id. “If the
challenged regulation burdens conduct that was within the
scope of the Second Amendment as historically understood,
then we move to the second step of applying an appropriate
form of means-end scrutiny.” Id.II
The first question is whether the challenged law imposes
a burden on conduct falling within the scope of the Second
Amendment’s guarantee. Chovan, 735 F.3d at 1134. The
Supreme Court has instructed that the core of the Second
Amendment is “the right of law-abiding, responsible citizens
to use arms in defense of hearth and home.” Heller, 554 U.S.
74 PERUTA V. COUNTY OF SAN DIEGO
at 635.2 Carrying concealed weapons in public by definition
does not inherently involve defense of hearth and home, so
the core of the Second Amendment is not implicated. Thus,
we must begin by examining the conduct at issue in this case
using the analysis prescribed by Heller and Chovan.
2
In post-Heller jurisprudence, nearly every other circuit that has
addressed this question has similarly identified the Second Amendment’s
core guarantee as the right of responsible, law-abiding adults to possess
usable firearms in their homes. See Kachalsky v. Cnty. of Westchester,
701 F.3d 81, 93 (2d Cir. 2012), cert. denied, 133 S. Ct. 1806 (2013)
(“Heller explains that the ‘core’ protection of the Second Amendment is
the right of law-abiding, responsible citizens to use arms in defense of
hearth and home.”) (some internal quotation marks and citation omitted);
Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, &
Explosives, 700 F.3d 185, 195 (5th Cir. 2012) (describing “a right at the
core of the Second Amendment” as “the right of a law-abiding,
responsible adult to possess and use a handgun to defend his or her home
and family”); United States v. Greeno, 679 F.3d 510, 517 (6th Cir. 2012)
(“The core right recognized in Heller is the right of law-abiding,
responsible citizens to use arms in defense of hearth and home.”) (internal
quotation marks and citation omitted); Heller II, 670 F.3d at 1255(explaining that the “core lawful purpose protected by the Second
Amendment” is that of “a person lawfully to acquire and keep a firearm,
including a handgun, for the purpose of self-defense in the home”)
(internal quotation marks and citation omitted); United States v. Barton,
633 F.3d 168, 170 (3d Cir. 2011) (“At the core of the Second Amendment
is the right of law-abiding, responsible citizens to use arms in defense of
hearth and home.”) (internal quotation marks and citation omitted); United
States v. Chester, 628 F.3d 673, 676 (4th Cir. 2010) (explaining that
Heller “clearly staked out the core of the Second Amendment” as “the
right of law-abiding, responsible citizens to use arms in defense of hearth
and home”) (internal quotation marks and citation omitted); see also
Peterson v. Martinez, 707 F.3d 1197, 1218 (10th Cir. 2013) (Lucero, J.,
concurring separately); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1259 (11th Cir. 2012) (noting that the Heller Court “went to great
lengths to emphasize the special place that the home—an individual’s
private property—occupies in our society.”).
PERUTA V. COUNTY OF SAN DIEGO 75
A
The majority’s first—and crucial—mistake is to
misidentify the “conduct at issue.” Chester, 628 F.3d at 680.
The majority frames the question as “whether a responsible,
law-abiding citizen has a right under the Second Amendment
to carry a firearm in public for self-defense.” This is
certainly an important issue, but it is not the question we are
called upon to answer. The Plaintiffs are not seeking a
general license to carry firearms in public for self-
defense—they are seeking a license to carry concealed
firearms in public.
Properly identifying the “conduct at issue” is the lynchpin
of the two-step inquiry because the first question we ask, as
with all constitutional challenges based on enumerated rights,
is “whether the challenged law imposes a burden on conduct
falling within the scope of the Second Amendment’s
guarantee.” Id. (emphasis added). The Bill of Rights
guarantees that individuals may engage in specified protected
conduct. Challenges based on the Bill of Rights seek to
vindicate its guarantees by striking down laws that interfere
with protected conduct. In the context of firearm regulations,
“[t]he specific constitutional challenge thus delineates the
proper form of relief and clarifies the particular Second
Amendment restriction that is before us.” Peterson, 707 F.3d
at 1209.
Thus, the proper analytic approach is to answer the
historical inquiry as to whether carrying a concealed weapon
in public was understood to be within the scope of the right
protected by the Second Amendment at the time of
ratification. This examination must be approached with
caution, bearing in mind Justice Stevens’ admonition that
76 PERUTA V. COUNTY OF SAN DIEGO
“[i]t is not the role of federal judges to be amateur
historians.” McDonald, 130 S.Ct. at 3119 (Stevens, J.,
dissenting). Care is also required to avoid the danger inherent
in any exercise of historiography: that we assemble history to
fit a pre-conceived theory. As judges undertaking this
examination, we must also set aside any personal views we
may have on the important, but contentious, policy question
of firearm regulation.
B
Heller instructed us to look to the Second Amendment’s
historical background to understand its scope. 554 U.S. at
592; see also Chester, 628 F.3d at 680. In its own
consideration of the Second Amendment’s history, Heller
identified a catalogue of historical materials bearing on the
provision’s meaning. In examining those same
sources—from the history of the right in England to the
interpretations of nineteenth-century American courts and
commentators—we must conclude that carrying concealed
weapons has routinely been restricted, and has often been
outright banned. As the majority fairly acknowledges at
several points in its extensive historical survey, nearly every
source cited in Heller concluded that carrying concealed
weapons is not part of the right to bear arms and that
restrictions on carrying concealed weapons therefore do not
offend the Second Amendment.
Because of the importance attached to the historical
sources by the Supreme Court in Heller, it is necessary to
examine them in some detail.
PERUTA V. COUNTY OF SAN DIEGO 77
1
History of the Right to Bear Arms in England. Because
the Second Amendment “codified a right inherited from our
English ancestors,” the Supreme Court looked to the history
of the right in England to divine whether the Second
Amendment protected an individual or a collective right.
Heller, 554 U.S. at 592–95, 599 (internal quotation marks and
citation omitted). A look at the same history suggests that the
“right inherited from our English ancestors” did not include
a right to carry concealed weapons in public. See id. at
592–95.
Restrictions on the carrying of open and concealed
weapons in public have a long pedigree in England. The
fourteenth-century Statute of Northampton provided that “no
man” 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, upon pain to forfeit their armour to
the King, and their bodies to prison at the King’s pleasure.”
2 Edw. 3, c. 3 (1328). In Sir John Knight’s Case, an English
court explained that the statute had two purposes. 87 Eng.
Rep. 75 (K.B. 1686). One “was to punish people who go
armed to terrify the King’s subjects.” Id. The other was to
codify the common law, which prohibited the described
conduct because it promoted the sense that “the King [was]
not able or willing to protect his subjects.” Id. Ultimately,
the court acquitted Sir John Knight under the statute’s
exception for the king’s ministers and servants and anyone
otherwise authorized “to keep the peace.” 2 Edw. 3, c. 3
(1328).
Following the enactment of the Statute of Northampton,
English monarchs repeatedly called on their officials to
78 PERUTA V. COUNTY OF SAN DIEGO
enforce it. See Patrick Charles, The Faces of the Second
Amendment Outside the Home: History Versus Ahistorical
Standards of Review, 60 Clev. St. L. Rev. 1, 13–30 (2012).
For example, in 1579, Queen Elizabeth I called for the
enforcement of the Statute of Northampton and other laws
prohibiting the carrying of “Dagges, Pistolles, and such like,
not on[]ly in Cities and Townes, [but] in all partes of the
Realme in common high[ways], whereby her Majesties good
qu[i]et people, desirous to live in peaceable manner, are in
feare and danger of their lives.” Id. at 21 (internal quotation
marks and citation omitted). In 1594, the Queen again called
for the enforcement of gun control laws because her subjects
were being terrorized by the carrying of arms, including
concealed “pocket Dags,” in public. Id. at 22 (internal
quotation marks and citation omitted).
More than three centuries after the enactment of the
Statute of Northampton, William and Mary declared “[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., 2d sess., c. 2, § 7 (1689). This provision of the
English Bill of Rights “has long been understood to be the
predecessor to our Second Amendment.” Heller, 554 U.S. at
593. But despite England’s adoption of this right, the Statute
of Northampton remained in full force and was still
understood to sharply limit the freedom to carry arms in
public. In his guide for British constables, Robert Gardiner
interpreted the statute to mean that
if any Person shall Ride or go Arm’d
offensively . . . in Fairs or Markets or
elsewhere, by Day or by Night, in affray of
Her Majesties Subjects, and Breach of the
Peace; or wear or carry any Daggers, Guns
PERUTA V. COUNTY OF SAN DIEGO 79
or Pistols Charged; the Constable upon sight
thereof, may seize and take away their
Armour and Weapons, and have them
apprized as forfeited to Her Majesty.
Robert Gardiner, The Compleat Constable, 18–19 (1708)
(emphasis added). Notably, Gardiner distinguished between
going armed offensively in breach of the peace, on the one
hand, and merely wearing or carrying arms, on the other. Id.This distinction suggests that he considered carrying weapons
in public a violation of the statute, regardless of whether
doing so actually breached the peace. Charles, supra, at
25–28. Blackstone confirmed this understanding:
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,
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.
4 William Blackstone, Commentaries on the Laws of England
148–49 (1st ed. 1769) (citations omitted). According to
Blackstone, the Statute of Northampton proscribed the public
carrying of “dangerous or unusual” weapons because doing
so terrified the people. Id. Thus, in England, as in ancient
Athens, it was an offense simply to go armed—or, at least,
armed in a dangerous manner—in public areas. Id.
80 PERUTA V. COUNTY OF SAN DIEGO
Certainly, this history does not provide a ready or easy
answer to this case. Indeed, history—especially history as
old as that recited here—is often ambiguous or contradictory.
Nonetheless, from what we know, we can be sure that “the
right we inherited from our English ancestors” left ample
leeway for restrictions on the public carrying of firearms in
the interest of public safety.
2
Post-Ratification Commentary. The Heller Court relied
heavily on the post-ratification commentary of St. George
Tucker, William Rawle, and Joseph Story. See 554 U.S. at605–10. Unfortunately, these commentators revealed little of
their opinions about concealed weapons. Still, Rawle wrote
that the Second Amendment right “ought not . . . , in any
government, to be abused to the disturbance of the peace.”
William Rawle, A View of the Constitution of the United
States 123 (1825). Heller cited this statement when it noted
that, “[f]rom Blackstone through the 19th-century cases,
commentators and courts routinely explained that the [Second
Amendment] right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for
whatever purpose.” 554 U.S. at 626. At the least, Heller’s
language suggests that there is room for restricting certain
manners of carrying firearms where they threaten public
peace and safety.
3
Pre-Civil War State Constitutions and Legislation. To
confirm its understanding of the Second Amendment’s
guarantee, the Heller Court looked to state legislation and
state constitutional provisions from the Founding Era and
PERUTA V. COUNTY OF SAN DIEGO 81
subsequent generations. 554 U.S. at 600–03. These same
sources support the conclusion that publicly carrying
concealed weapons falls outside the Second Amendment’s
scope.
By the Founding era, three of the original thirteen
states—Massachusetts, North Carolina, and Virginia—had
expressly adopted the Statute of Northampton. Charles,
supra, at 31–32 & n.166. There is no indication that in doing
so these states meant to exclude the longstanding
interpretations of the statute.
In the early nineteenth century, states increasingly limited
the carrying of concealed firearms.3 And “[m]ost states
enacted laws banning the carrying of concealed weapons.”4
3
See Act of Mar. 25, 1813, 1813 La. Acts at 172; Act of Jan. 14, 1820,
ch. 23, 1820 Ind. Acts at 39; Act of Oct. 19, 1821, ch. XIII, 1821 Tenn.
Pub. Acts. 15 (“[E]ach and every person so degrading himself, by carrying
a dirk, sword cane, French knife, Spanish stiletto, belt or pocket pistols .
. . shall pay a fine.”); Act of Feb. 2 1838, 1838 Va. Acts. ch. 101, at 76
(making it unlawful for a person to “habitually or generally keep or carry
about his person any pistol, dirk, bowie knife, or any other weapon of the
like kind . . . hidden or concealed from common observation”); Act of
Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67–68; Act. of Mar. 18, 1859, 1859
Ohio Laws 56 (providing that “whoever shall carry a weapon or weapons,
concealed on or about his person, such as a pistol, bowie knife, dirk, or
any other dangerous weapon, shall be deemed guilty.”).
4
“See Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67–68; Act of Apr.
1, 1881, ch. 96, § 1, 1881 Ark. Acts at 191; Act of Feb. 1, 1881, 1881
Colo. Sess. Laws at 74; Act of Feb. 12, 1885, ch. 3620, 1885 Fla. Laws at
61; Act of Apr. 16, 1881, 1881 Ill. Laws at 73–74; Act of Jan. 14, 1820,
ch. 23, 1820 Ind. Acts at 39; 29 Ky. Gen.Stat. art. 29, § 1 (as amended
through 1880); Act of Mar. 25, 1813, 1813 La. Acts at 172; 1866 Md.
Laws, ch. 375, § 1; Neb. Gen.Stat., ch. 58, ch. 5, § 25 (1873); Act of Mar.
5, 1879, ch. 127, 1879 N.C. Sess. Laws at 231; N.D. Pen.Code § 457
82 PERUTA V. COUNTY OF SAN DIEGO
Kachalsky, 701 F.3d at 95; see also Saul Cornell & Nathan
DeDino, A Well Regulated Right: The Early American
Origins of Gun Control, 73 Ford. L. Rev. 487, 502–16
(2004). Georgia banned the sale of concealable weapons
altogether, and Tennessee promptly followed suit by banning
the sale of bowie knives. Act of Dec. 25, 1837, 1837 Ga.
Laws 90; Act of Jan. 27, 1838, ch. 137, 1837–38 Tenn. Pub.
Acts 200–01. Notably, some of these bans contained only
narrow exceptions, or no exceptions at all. For example,
Ohio’s concealed-carry ban allowed a narrow exception for
those carrying a weapon in connection with their lawful
employment where a “prudent man” would carry weapons in
defense of himself, his family, or his property. 1859 Ohio
Laws at 56–57. By contrast, Virginia’s ban had no
exceptions at all, even if the defendant was acting in self-
defense when using the concealed weapon. 1838 Va. Acts ch.
101 at 76.
4
Pre-Civil War Case Law. The Heller Court relied heavily
on several early-nineteenth-century court cases interpreting
the Second Amendment and state analogues. 554 U.S. at610–14. For example, when the Court pointed to prohibitions
on carrying concealed weapons as a prime example of how
“the right secured by the Second Amendment is not
unlimited,” it specifically cited the 1846 Georgia case Nunn
(1895); Act of Mar. 18, 1859, 1859 Ohio Laws at 56; Act of Feb. 18,
1885, 1885 Or. Laws at 33; Act of Dec. 24, 1880, no. 362, 1881 S.C. Acts
at 447; S.D. Terr. Pen.Code § 457 (1883); Act of Apr. 12, 1871, ch. 34,
1871 Tex. Gen. Laws at 25–27; Act of Oct. 20, 1870, ch. 349, 1870 Va.
Acts at 510; Wash.Code § 929 (1881); W. Va.Code, ch. 148, § 7 (1891).”
Kachalsky, 701 F.3d at 95 n.21.
PERUTA V. COUNTY OF SAN DIEGO 83
v. State and the 1850 Louisiana case State v. Chandler. Id. at
626. Those cases, and others relied on in Heller, provide
some of the strongest evidence that the Second Amendment
does not protect the carrying of concealed firearms in public.
In State v. Mitchell, 3 Blackf. 229 (Ind. 1833), the Indiana
Supreme Court succinctly declared “that the statute of 1831,
prohibiting all persons, except travelers, from wearing or
carrying concealed weapons, is not unconstitutional.” Id.In the 1840 case of State v. Reid, the defendant—who had
been convicted under Alabama’s Act of February 1, 1839,
which made it a crime for any person to “carry concealed
about his person, any species of fire arms” or “any other
deadly weapon”—challenged his conviction under Alabama’s
arms-bearing constitutional guarantee. 1 Ala. 612, 614–15,
616 (1840) (cited in Heller, 554 U.S. at 629). The Alabama
Supreme Court began its analysis of the defendant’s
challenge by considering the history of the right to bear arms
in England, including the English Bill of Rights, which the
court considered to be the progenitor of the right to bear arms
in Alabama. Id. at 615. After examining this history, the
court held that Alabama’s concealed firearm ban did not
“trench upon the constitutional rights of the citizen.” Id. at
616. The court reasoned that Alabama’s Second Amendment
analogue “neither expressly nor by implication, denied to the
Legislature, the right to enact laws in regard to the manner in
which arms shall be borne.” Id. Just as the English Bill of
Rights allowed Parliament “to determine what arms shall be
borne and how,” the Alabama constitution permitted the
legislature to determine that carrying concealed weapons was
not a proper mode of exercising the right to bear arms. Id.The majority cites Reid as support for the theory that a ban on
concealed weapons carry would not be permitted if
84 PERUTA V. COUNTY OF SAN DIEGO
restrictions on public carry went too far. But Reid plainly
does not stand for that proposition. It rejected the “evil
practice of carrying weapons secretly,” id. at 616, and
supported the power of the legislature to proscribe the
“manner in which arms shall be borne,” id. Reid cannot be
construed as supporting a Second Amendment right to carry
concealed weapons in public.
In the same year as Reid, the Tennessee Supreme Court
considered a similar challenge to the constitutionality of a law
criminalizing the carrying of concealed weapons. Aymette v.
State, 21 Tenn. 154 (1840) (cited in Heller, 554 U.S. at 613).
As in Reid, the court first considered the history of the right
to bear arms in England, including the English Bill of Rights
under William and Mary. Id. at 156, 157. Based on this
history, the court concluded that the Tennessee legislature
was well within its powers to criminalize the carrying of
concealed weapons:
To hold that the Legislature could pass no law
upon this subject by which to preserve the
public peace, and protect our citizens from the
terror which a wanton and unusual exhibition
of arms might produce, or their lives from
being endangered by desperadoes with
concealed arms, would be to pervert a great
political right to the worst of purposes, and to
make it a social evil of infinitely greater
extent to society than would result from
abandoning the right itself.
PERUTA V. COUNTY OF SAN DIEGO 85
Id. at 159.5 The court’s opinion also included the following
passage, which is quite relevant in assessing its view of
legislative power:
Supose [sic] it were to suit the whim of a set
of ruffians to enter the theatre in the midst of
the performance, with drawn swords, guns,
and fixed bayonets, or to enter the church in
the same manner, during service, to the terror
of the audience, and this were to become
habitual; can it be that it would be beyond the
power of the Legislature to pass laws to
remedy such an evil? Surely not. . . . The
convention, in securing the public political
right in question, did not intend to take away
from the Legislature all power of regulating
the social relations of the citizens upon this
subject.
Id. at 159.
The majority concedes that Aymette does not support a
Second Amendment right to bear concealed weapons, but
argues that it is relevant to other Second Amendment rights.
However, if the “conduct at issue” here–the right to bear
concealed weapons in public–is not protected by the Second
Amendment, the existence of other rights is not relevant to
our inquiry.
5
As the majority observes, the Supreme Court rejected Aymette’s
conclusion that the Second Amendment enshrined only a militia-centered
right. Heller, 554 U.S. at 613. However, the Court did not question
Aymette’s reasoning with respect to the validity of the state’s prohibition
on the carrying of concealed weapons. Id.86 PERUTA V. COUNTY OF SAN DIEGO
In State v. Buzzard, 4 Ark. 18 (1842), the Arkansas
Supreme Court held that the Arkansas law banning the
wearing of concealed weapons was not contrary to either the
Arkansas or United States Constitution. Id. at 28. As the
Chief Justice wrote:
The act in question does not, in my judgment,
detract anything from the power of the people
to defend their free state and the established
institutions of the country. It inhibits only the
wearing of certain arms concealed. This is
simply a regulation as to the manner of
bearing such arms as are specified. The
practice of so bearing them the legislative
department of the government has determined
to be wrong, or at least inconsistent with
sound policy. So far, that department had a
discretion in regard to the subject, over which
the judiciary, as I conceive, has no control,
and therefore, the duty of the courts must be
the same, whether the policy of the law be
good or bad. In either event it is binding, and
the obligation of the courts to enforce its
provisions, when legally called upon to do so,
is imperative.
Id. at 27.
In the 1846 case of Nunn v. State, the defendant—who
had been convicted for carrying a pistol in violation of
Georgia’s Act of December 25, 1837—challenged his
conviction under the Second Amendment and Georgia’s
analogous constitutional provision. 1 Ga. at 245, 247 (cited
in Heller, 554 U.S. at 612, 626). After considering State v.
PERUTA V. COUNTY OF SAN DIEGO 87
Reid and the Kentucky case Bliss v. Commonwealth, the
Georgia Supreme Court concluded that a law prohibiting the
carrying of concealed weapons does not violate the right to
keep and bear arms. Nunn, 1 Ga. at 247, 251. Relying on
Reid, the court explained
that so far as the act of 1837 seeks to suppress
the practice of carrying certain weapons
secretly, . . . it is valid, inasmuch as it does
not deprive the citizen of his natural right of
self-defence, or of his constitutional right to
keep and bear arms. But that so much of it, as
contains a prohibition against bearing arms
openly, is in conflict with the Constitution,
and void . . . .
Id. at 251. Because the criminal charges had not specified the
manner in which the defendant carried his pistol, the court
reversed his conviction. Id.Nunn plainly does not support the notion that bearing
concealed weapons falls within the protection of the Second
Amendment. It stands for precisely the opposite proposition.
Nonetheless, the majority embraces Nunn as supporting other
Second Amendment rights. It argues that, if those other
rights are restricted, then the legislature could not prohibit
concealed carry. However, Nunn does not say that. Its
holding is that Georgia’s analogous constitutional protection
of the right to bear arms did not include the right to carry
concealed weapons.6
6
The majority also claims that a later Georgia case, Stockdale v. State,
32 Ga. 225 (1861), explained that “to ban both the open and concealed
carriage of pistols” ‘would be to prohibit the bearing of those arms’
88 PERUTA V. COUNTY OF SAN DIEGO
Finally, in State v. Chandler, the Louisiana Supreme
Court joined its counterparts in Alabama, Tennessee, and
Georgia to hold that a state law criminalizing the carrying of
concealed weapons did not conflict with the Second
Amendment. 5 La. Ann. 489, 490 (1850) (cited in Heller,
554 U.S. at 613, 626). According to the court, the statute
“became absolutely necessary to counteract a vicious state of
society, growing out of the habit of carrying concealed
weapons, and to prevent bloodshed and assassinations
committed upon unsuspecting persons.” Id. at 489–90. It
further explained that the statute
interfered with no man’s right to carry arms
. . . in full open view, which places men upon
an equality. This is the right guaranteed by
the Constitution of the United States, and
which is calculated to incite men to a manly
and noble defence of themselves, if necessary,
altogether.” This stretches Stockdale far beyond what it actually said. In
that case, the defendant had been charged with violating a statute that
forbade the carrying of concealed weapons. Id. at 226. The defendant
requested the judge to instruct the jury that he was not guilty so long as he
wore his pistol in such a way that other people could see that it was a
pistol. Id. The judge refused, and instead instructed the jury that the
defendant was guilty so long as any portion of his pistol was hidden from
view. Id. at 226–27. The Georgia Supreme Court reversed the
defendant’s conviction, holding that the trial judge’s instructions were
erroneous. Id. at 227–28. The court reasoned that it is impossible to carry
a pistol without concealing at least some portion of it, so requiring that
every inch of the pistol be exposed to view would make it practically
impossible to carry it, thereby violating Nunn’s admonition that any
regulation that practically prohibits a person from bearing arms openly is
unconstitutional. Id. at 227. Stockdale was a simple application of Nunn’s
clear holding, and the majority is wrong to attribute a different meaning
to it.
PERUTA V. COUNTY OF SAN DIEGO 89
and of their country, without any tendency to
secret advantages and unmanly assassinations.
Id. at 490 (internal quotation marks omitted). Eight years
later, the Louisiana Supreme Court reaffirmed its holding,
explaining that the state’s concealed-carry ban did not violate
the Second Amendment because it “prohibit[ed] only a
particular mode of bearing arms which is found dangerous to
the peace of society.” State v. Jumel, 13 La. Ann. 399,
399–400 (1858) (emphasis in original).
To be sure, there was at least one state high court whose
voice was out of tune with this nineteenth-century chorus. In
the 1822 case of Bliss v. Commonwealth, the Kentucky high
court reversed the defendant’s conviction for carrying a
concealed weapon (a sword in a cane). 12 Ky. at 93 (cited in
Heller, 554 U.S. at 585 n.9). The court held that under the
Kentucky constitution, any restraint or regulation on the right
to bear arms, including regulations on the manner of carry,
were void. Id. at 92, 93. Therefore, the court saw no
difference between acts forbidding the carrying of concealed
weapons and acts forbidding the carrying of weapons openly.
Id.
But the reign of Bliss was short-lived in Kentucky. The
ruling was met with disbelief by the Kentucky legislature.
Indeed, “[a] committee of the Kentucky House of
Representatives concluded that the state's Supreme Court had
misconstrued the meaning of the state's constitutional
provision on arms bearing.” Saul Cornell, The Early
American Origins of the Modern Gun Control Debate: The
Right to Bear Arms, Firearms Regulation, and the Lessons of
History, 17 Stan. L. & Pol'y Rev. 571, 586 (2006) (citing
Journal of the Kentucky House of Representatives 75.
90 PERUTA V. COUNTY OF SAN DIEGO
(Frankfort, Ky. 1837)). It issued a stinging criticism of Bliss.
Id. And Kentucky eventually amended its constitution
specifically to overrule Bliss. See id. at 587; Ky. Const. of
1850 art. XIII, § 25 (“[T]he rights of the citizens to bear arms
in defence of themselves and the State shall not be
questioned; but the General Assembly may pass laws to
prevent persons from carrying concealed arms.”). As
Professor Cornell concluded, the holding of Bliss was
“bizarre and out of touch with mainstream legal and
constitutional thinking in the early Republic.” Cornell,
17 Stan. L. & Pol'y Rev. at 586.
Bliss was clearly a judicial outlier. The courts in Buzzard,
Reid, Aymette, and Nunn all considered Bliss’s conclusions
and expressly rejected them. Nunn, 1 Ga. at 247–48, 251;
Aymette, 21 Tenn. at 160; Reid, 1 Ala. at 617; Buzzard, 4 Ark.
25–26. Reid speculated that Bliss’s solitary position was the
result of the unique language of Kentucky’s constitution.
1 Ala. at 619. Aymette more directly questioned the
correctness of Bliss’s reasoning, explaining that “there is a
manifest distinction” between carrying arms secretly and
carrying arms openly. 21 Tenn. at 160. Buzzard pointedly
disagreed with Bliss, observing:
However captivating such arguments may
appear upon a merely casual or superficial
view of the subject, they are believed to be
specious, and to rest upon premises at
variance with all the fundamental principles
upon which the government is based; and that,
upon a more mature and careful investigation,
as to the object for which the right was
retained their fallacy becomes evident. The
dangers to be apprehended from the existence
PERUTA V. COUNTY OF SAN DIEGO 91
and exercise of such right, not only to social
order, domestic tranquillity and the upright
and independent administration of the
government, but also to the established
institutions of the country, appears so obvious
as to induce the belief that they are present to
every intelligent mind, and to render their
statement here unnecessary.
4 Ark. 25–26.
In short, Bliss does not in any way alter the great weight
of early-nineteenth century cases holding that carrying
concealed weapons is conduct that falls outside the bounds of
Second Amendment protection.
5
Post-Civil War Legislation and Commentary. Even
though laws enacted after the Civil War were far removed
from the Founding Era, the Heller Court found them
instructive for discerning the Second Amendment’s nature.
554 U.S. at 614. Likewise, the Court looked to post-Civil
War commentaries for illumination. Id. at 616–19. These
sources further cemented the understanding of the early-
nineteenth-century courts that concealed carry is not
protected by the Second Amendment.
By the latter half of the nineteenth century, most states
had enacted bans or limitations on the carrying of concealed
weapons. See Kachalsky, 701 F.3d at 95 & n.21 (collecting
statutes). During that time, three states and one territory even
passed total bans on carrying of pistols, whether concealed or
open. Id. at 90 (citing Ch. 96, §§ 1–2, 1881 Ark. Acts at
92 PERUTA V. COUNTY OF SAN DIEGO
191–92; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Terr.
Comp. Laws, at 352; Act of Apr. 12, 1871, ch. 34, § 1, 1871
Tex. Gen. Laws at 25; Ch. 13, § 1, 1870 Tenn. Acts at 28).
Despite these widespread restrictions on the carrying of
concealed weapons, legal commentators saw no Second
Amendment violations. John Pomeroy wrote that the Second
Amendment’s “inhibition is certainly not violated by laws
forbidding persons to carry dangerous or concealed
weapons.” John Norton Pomeroy, An Introduction to the
Constitutional Law of the United States 152–53 (1868) (cited
in Heller, 554 U.S. at 618). Like the Court in Heller, he
compared the Second Amendment to the First: “The clause is
analogous to the one securing freedom of speech and of the
press. Freedom, not license, is secured; the fair use, not the
libellous abuse, is protected.” Id.; see Heller, 554 U.S. at
618.
In his edition of Kent’s Commentaries, Justice Holmes
noted a “great difference of opinion” among the state courts
on whether prohibitions on carrying concealed weapons were
constitutional. 2 James Kent, Commentaries on American
Law *340 n.2 (Oliver Wendell Holmes, Jr. ed., 12th ed. 1873)
(cited in Heller, 554 U.S. at 618, 626). After summarizing
the state courts’ cases (including those discussed above), he
sided with the courts that found such prohibitions
constitutional: “As the practice of carrying concealed
weapons has been often so atrociously abused, it would be
very desirable, on principles of public policy, that the
respective legislatures should have the competent power to
secure the public peace, and guard against personal violence
by such a precautionary provision.” Id.PERUTA V. COUNTY OF SAN DIEGO 93
George Chase, like Justice Holmes, concluded in The
American Students’ Blackstone (1884) that concealed
weapons bans were necessary to ensure public safety, and that
they were widely deemed lawful: “[I]t is generally held that
statutes prohibiting the carrying of concealed weapons are not
in conflict with these constitutional provisions, since they
merely forbid the carrying of arms in a particular manner,
which is likely to lead to breaches of the peace and provoke
to the commission of crime, rather than contribute to public
or personal defence.” Chase, supra, at 85 n.11 (cited in
Heller, 554 U.S. at 626) (emphasis in original).
John Ordronaux wrote that although “[t]he right to bear
arms has always been the distinctive privilege of freemen,”
the Second Amendment does not limit a state’s power to
“enact[] laws regulating the manner in which arms may be
carried. Thus, the carrying of concealed weapons may be
absolutely prohibited without the infringement of any
constitutional right.” John Ordronaux, Constitutional
Legislation in the United States 241 (1891) (cited in Heller,
554 U.S. at 619) (some emphasis added).
In addition to these commentators cited in Heller, the
majority recognizes other commentators who concluded that
the Second Amendment was not concerned with concealed
carry. For example, Henry Campbell Black wrote simply that
“[t]he right to bear arms is not infringed by a state law
prohibiting the carrying of concealed deadly weapons.”
Henry Campbell Black, Handbook of American
Constitutional Law 463 (1895). And the editor of an 1897
edition of Blackstone wrote that “the right of carrying arms
as secured by the U.S. Constitution, and generally by State
constitutions, does not include the habitual carrying of
concealed deadly weapons by private individuals.” 1 William
94 PERUTA V. COUNTY OF SAN DIEGO
Blackstone, Commentaries on the Laws of England 144 n.91
(William Draper Lewis ed., 1897).
6
Given this extensive history, it is not surprising that in
1897 the Supreme Court endorsed the view that carrying
concealed weapons is not protected conduct under the Second
Amendment. Robertson, 165 U.S. at 281–82. In rejecting a
challenge under the Thirteenth Amendment, the Court noted
that the freedoms enumerated in the Bill of Rights are subject
to “certain well-recognized exceptions.” Id. at 281. As an
example of such a well-recognized exception, the Court
explained that “the right of the people to keep and bear arms
. . . is not infringed by laws prohibiting the carrying of
concealed weapons.” Id. at 281–82. Although this passage
is old, no case, including Heller, has ever called it into
question.
Most of our sister circuits that have considered the
question have reached similar conclusions. In Drake v. Filko,
724 F.3d 426 (3d Cir. 2013), the Third Circuit considered the
New Jersey Handgun Permit Law, which required persons
who wished to carry a handgun in public to apply for permit
and show “justifiable need.” Against a Second Amendment
challenge, the Third Circuit held that “the requirement that
applicants demonstrate a ‘justifiable need’ to publicly carry
a handgun for self-defense qualifies as a ‘presumptively
lawful,’ ‘longstanding’ regulation and therefore does not
burden conduct within the scope of the Second Amendment’s
guarantee. Id. at 429–30.
In Peterson, the Tenth Circuit considered a Second
Amendment challenge to Colorado’s concealed handgun
PERUTA V. COUNTY OF SAN DIEGO 95
licensing regime, which restricted the issuance of licenses to
Colorado residents. The Tenth Circuit concluded that
“[t]here can be little doubt that bans on the concealed
carrying of firearms are longstanding.” 707 F.3d at 1210.
After conducting an historical analysis, the Court concluded
that “the Second Amendment does not confer a right to carry
concealed weapons.” Id. at 1211.
Although the Second Circuit did not reach the question of
the scope of the Second Amendment, it concluded that “state
regulation of the use of firearms in public was ‘enshrined
with[in] the scope’ of the Second Amendment when it was
adopted” and that “extensive state regulation of handguns has
never been considered incompatible with the Second
Amendment.” Kachalsky, 701 F.3d at 96, 100.
C
In sum, employing the analysis prescribed by the
Supreme Court, the answer to the historical inquiry is clear:
carrying a concealed weapon in public was not understood to
be within the scope of the right protected by the Second
Amendment at the time of ratification. This conclusion is in
accord with Heller’s recognition that there were
“longstanding prohibitions” on firearms that were
“presumptively lawful,” 544 U.S. at 626–27 & n.26, and the
Supreme Court’s observation in Robertson that “the right of
the people to keep and bear arms . . . is not infringed by laws
prohibiting the carrying of concealed weapons,” 165 U.S. at281–82. See Peterson, 707 F.3d at 1211. Because the right
asserted is not protected by the Second Amendment, our
inquiry should be at an end: San Diego County’s good cause
requirement for a person to carry a concealed weapon in San
Diego County is constitutional. Chester, 628 F.3d at 680.
96 PERUTA V. COUNTY OF SAN DIEGO
III
Because the act of carrying concealed weapons in public
is not protected by the Second Amendment, it is unnecessary
to reach the second part of the Second Amendment inquiry.
However, even if we were to assume that San Diego County’s
good cause requirement implicates the Second Amendment,
I would conclude that the San Diego County policy easily
passes constitutional muster.
The second Chovan inquiry is whether the challenged
government action survives means-end scrutiny under the
appropriate level of review. Chovan, 735 F.3d at 1136. In
Second Amendment analysis, the level of scrutiny depends on
“‘(1) how close the law comes to the core of the Second
Amendment right,’ and ‘(2) the severity of the law’s burden
on the right.’” Id. at 1138 (quoting Ezell v. City of Chicago,
651 F.3d 684, 703 (7th Cir. 2011)).
The core of the Second Amendment right is “the right of
law-abiding, responsible citizens to use arms in defense of
hearth and home.” Heller, 554 U.S. at 635. Carrying
concealed weapons in public does not implicate the core
right. Assuming, for argument’s sake, that the burden placed
in this case on whatever Second Amendment rights extend
outside the home is substantial, then application of
intermediate scrutiny is appropriate. Chovan, 735 F.3d at
1138.
Surviving intermediate scrutiny requires “(1) the
government’s stated objective to be significant, substantial,
or important; and (2) a reasonable fit between the challenged
PERUTA V. COUNTY OF SAN DIEGO 97
regulation and the asserted objective.” Id. at 1139 (citing
Chester, 628 F.3d at 683).7
The County claims that its application of the good cause
requirement protects the public peace and protects “the safety
of the public from unknown persons carrying concealed,
loaded firearms.” As the Supreme Court has repeatedly made
clear, public safety and preventing crime are important,
indeed compelling, government interests. See, e.g., Schenk v.
Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997)
(public safety is a significant government interest); United
States v. Salerno, 481 U.S. 739, 750 (1987) (preventing crime
is a compelling government interest).
The County argues that the good cause requirement helps
protect public safety because it reduces the number of
concealed firearms circulating in public. According to the
County, reducing the number of guns carried in public
ensures public safety by, among other things:
• Limiting the lethality of violent crimes. According to
an expert declaration filed in support of the County’s
motion for summary judgment, even though the
general availability of guns may or may not influence
the absolute number of violent crimes, when guns are
7
We are not alone in this application. Other circuits that have
considered a restriction similar to the good cause requirement have applied
intermediate scrutiny. See Woollard v. Gallagher, 712 F.3d 865, 869, 876
(4th Cir. 2013) (applying intermediate scrutiny to a Maryland statute
requiring applicants to demonstrate a “good and substantial reason to
wear, carry, or transport a handgun” in order to obtain a license to do so);
Kachalsky, 701 F.3d at 96 (applying intermediate scrutiny to a New York
statute requiring applicants to demonstrate “proper cause” in order to
obtain a license to carry concealed handguns).
98 PERUTA V. COUNTY OF SAN DIEGO
used in such crimes it is much more likely that the
crime will result in the death of the victim.
• Limiting the ability of criminals to legally take
advantage of stealth and surprise.
• Protecting police officers and ensuring their practical
monopoly on armed force in public. According to the
County, more than ninety percent of police officers
who are killed in the line of duty are killed with guns.
• Limiting the danger to other members of the public.
The decision to carry a concealed firearm in public
exposes other people to increased risk of injury or
death without their knowledge or control.
• Limiting the likelihood that minor altercations in
public will escalate into fatal shootings.
The County presented data showing that the more guns
are carried in public, the more likely it is that violent crimes
will result in death and detailing the specific risks posed by
concealed weapons.
Obviously, the Plaintiffs disagree with the efficacy of the
policy to achieve these goals, and have marshaled evidence
challenging conventional wisdom about the correlation
between violence and the prevalence of handguns. But ours
is not the forum in which to resolve that debate. Rather, we
owe “substantial deference to the predictive judgments” of
legislative bodies. Turner Broad. Sys. Inc. v. FCC, 520 U.S.
180, 195 (1997). “In the context of firearm regulation, the
legislature is ‘far better equipped than the judiciary’ to make
sensitive public policy judgments (within constitutional
PERUTA V. COUNTY OF SAN DIEGO 99
limits) concerning the dangers in carrying firearms and the
manner to combat those risks.” Kachalsky, 701 F.3d at 97
(quoting Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 665
(1994)). As the Second Circuit aptly explained, “[i]t is the
legislature’s job, not ours, to weigh conflicting evidence and
make policy judgments.” Id. at 99; accord Woollard,
712 F.3d at 881. Further, the test on the first step of
intermediate scrutiny only requires that “the government’s
stated objective to be significant, substantial, or important.”
Chovan, 735 F.3d at 1139.
The second inquiry in an intermediate scrutiny analysis is
whether there is “a reasonable fit between the challenged
regulation and the asserted objective.” Id. First, as the
majority properly notes, California does not impose a
complete ban on the carrying of concealed weapons in public.
Cal. Penal Code § 25400. A gun owner’s residence, place of
business, and private property are exempt from § 25400. Id.
at § 25605. Carrying a concealable firearm within a vehicle
is not a crime if the firearm is within a vehicle and is either
locked in the vehicle's trunk or in a locked container. Id. at
§ 25610. Peace officers, retired officers, military personnel,
and retired federal officers are permitted to carry concealed
weapons. Id. at §§ 25450, 25455, 25620, 25650. Hunters and
anglers may carry concealable firearms while hunting or
fishing. Id. at § 25640. Section 25400 does not apply to
transportation of firearms to or from gun shows or similar
events, id. at § 25535, nor does it apply to people practicing
shooting targets at established target ranges, whether public
or private, id. at 25635.8 And, of course, California is a
8
Carrying a concealable firearm is permitted in a number of other
circumstances. See generally id. at §§ 25450–25650.
100 PERUTA V. COUNTY OF SAN DIEGO
“may-issue” state, in which concealed public carry is allowed
with a proper permit. Id. § 26150.
Because of these exceptions, the California Court of
Appeal concluded that California’s concealed carry statutes
were “narrowly tailored to protect the public,” and did “not
substantially burden defendant’s exercise of his Second
Amendment right.” People v. Ellison, 196 Cal.App.4th 1342,
1351, 128 Cal.Rptr.3d 245, 252 (Cal.App. 2011).
Second, the San Diego County “good cause” permit
requirement itself does not preclude all carrying of concealed
weapons in public. It limits the risk to public safety by
reducing the number of guns in public circulation, but allows
those who will most likely need to defend themselves in
public to carry a handgun. In this way, the licensing scheme
is “oriented to the Second Amendment’s protections.”
Kachalsky, 701 F.3d at 98. Of course, the good cause
requirement is not perfect. Not everyone who may ultimately
need the protection of a handgun may obtain a permit, and
there is a risk that some concealed-carry license holders may
misuse their firearms. But the good cause requirement does
not have to be perfect; indeed, it is unrealistic to expect any
regulatory measure to perfectly solve the problem to which it
is addressed, especially a problem as complex as gun
violence. Rather, under intermediate scrutiny, the challenged
regulation must strike a reasonable balance between the
burdened right and the public need. By granting concealed-
carry licenses only to those who are known to need them for
self-defense, the good cause requirement strikes a reasonable
balance between individuals’ interest in self-defense and the
public’s interest in limiting the proliferation of handguns in
public spaces.
PERUTA V. COUNTY OF SAN DIEGO 101
When viewed objectively, the San Diego County “good
cause” policy easily survives intermediate scrutiny. The
government has identified significant, substantial, or
important objectives and provided a reasonable fit between
the challenged regulation and the asserted objective.
Therefore, even if the Second Amendment protection were
extended to provide a right to carry concealed weapons in
public, the “good cause” San Diego County requirement
would still pass constitutional muster.
IV
Rather than employing the straightforward methodology
prescribed by Chovan, the majority wanders off in a different
labyrinthian path, both in its analysis of the Second
Amendment right at issue and its analysis of the government
regulation in question. In doing so, it conflicts with the
instruction of the Supreme Court, the holdings of our sister
circuits, and our own circuit precedent. It needlessly intrudes
and disrupts valid and constitutional legislative choices. I
must respectfully disagree with its approach.
A
The majority never answers the question as to whether
carrying concealed weapons in public is protected under the
Second Amendment. Rather, it engages in a broader circular
inquiry. It first exceeds the bounds of Heller by determining
that the Second Amendment protects at least some conduct
outside the home. It then reasons that because the Second
Amendment protects some conduct outside the home, states
may not completely prohibit carrying handguns outside the
home. The majority then examines the California regulatory
scheme and concludes that, because California bans open
102 PERUTA V. COUNTY OF SAN DIEGO
carry in most public areas, it must allow concealed carry
without the necessity of showing good cause. Therefore, it
reasons, San Diego County’s “good cause” requirement must
be unconstitutional.
1
The majority’s logical tapestry quickly unravels under
close examination. If carrying concealed firearms in public
falls outside the Second Amendment’s scope, then
nothing—not even California’s decision to restrict other,
protected forms of carry—can magically endow that conduct
with Second Amendment protection.
An analogy to the First Amendment context illustrates
this point. See Heller, 554 U.S. at 595 (analogizing the
Second Amendment to the First). There are, of course,
certain types of speech that do not fall within the protection
of the First Amendment, such as child pornography, obscene
material without serious literary, artistic, political, or
scientific value, “fighting words,” and speech that materially
assists a foreign terrorist organization.9 If a state decided to
ban all protected First Amendment speech, would that bring
child pornography, obscenity, “fighting words,” and material
assistance to a foreign terrorist organization under the
protection of the First Amendment? Of course not.
However, that is precisely the flawed reasoning that the
majority employs.
9
See New York v. Ferber, 458 U.S. 747, 764 (1982) (child
pornography); Roth v. United States, 354 U.S. 476, 484 (1957)
(obscenity); Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)
(fighting words); Holder v. Humanitarian Law Project, 130 S. Ct. 2705,
2722–23 (2010) (material assistance to terrorists).
PERUTA V. COUNTY OF SAN DIEGO 103
The same logic applies in the Second Amendment
context. If certain conduct falls outside the scope of the
Second Amendment, then restrictions on that conduct are
valid, regardless of the regulatory landscape governing
different activities. Chester, 628 F.3d at 680. The majority
simply makes up the right out of whole cloth, or perhaps
more aptly put, no cloth. Regulation of unrelated conduct
cannot create a new right where none existed before.
Unsurprisingly, the majority does not—and cannot—cite
any authority that supports its assertion. It claims that several
nineteenth-century sources cited in Heller support its
proposition. As I have discussed, those sources support no
such proposition. In Chandler, the Louisiana Supreme Court
explained that a concealed weapons ban “interfered with no
man’s right to carry arms” under the Second Amendment,
which it defined as the right to carry arms “in full open
view.” 5 La. Ann. 489, 490 (1850). In Nunn, the Georgia
Supreme Court held that “[a] law which merely inhibits the
wearing of certain weapons in a concealed manner is valid.”
1 Ga. 243, 243 (1846) (emphasis in original); see also id. at
251. In Reid, the Alabama Supreme Court explained that a
concealed-carry ban did not “come in collision with the
constitution” because it sought to “promote personal security”
by “inhibit[ing] the wearing of certain weapons, in such a
manner as is calculated to exert an unhappy influence upon
the moral feelings of the wearer, by making him less
regardful of the personal security of others.” 1 Ala. 612, 617
(1840). And George Chase’s American Students’ Blackstone
notes a consensus that “statutes prohibiting the carrying of
concealed weapons are not in conflict with these
constitutional provisions, since they merely forbid the
carrying of arms in a particular manner, which is likely to
lead to breaches of the peace and provoke to the commission
104 PERUTA V. COUNTY OF SAN DIEGO
of crime, rather than contribute to public or personal
defence.” 1 The American Students’ Blackstone 84 n.11
(George Chase ed. 1884) (emphasis in original).
Although all the nineteenth-century cases cited by the
majority cautioned against restrictions on the open carrying
of weapons, none of them–except the discredited, outlier
Bliss–suggests that restrictions on carrying concealed
weapons implicate the Second Amendment. See Chandler,
1 La. Ann. at 490; Nunn, 1 Ga. at 251; Reid, 1 Ala. at 616–17.
And nothing in these cases or Chase’s Blackstone even hints
that a restriction on carrying concealed weapons would
become invalid if restrictions were placed on open carry.
Rather, they suggest that restrictions on concealed carry are
always valid, while there are limits to restrictions on open
carry.
The majority concedes that it is in conflict with the
Second, Third, and Fourth Circuits in Drake, Woollard, and
Kachalsky. However, it insists that it is in accord with the
Seventh Circuit’s decision in Moore. But Moore did not
involve a challenge to the implementation of a “good cause”
requirement to carry a concealed weapon in public. Rather,
it was a direct challenge to an Illinois law banning almost all
forms of carrying a loaded firearm outside the home and did
not involve “narrower, better tailored restrictions” such as the
one at issue here. See Moore v. Madigan, 708 F.3d 901, 904
(7th Cir. 2013) (Hamilton, J., dissenting from denial of
rehearing en banc).
2
The majority essentially concedes that the Plaintiffs’
challenge to San Diego County’s “good cause” policy fails
PERUTA V. COUNTY OF SAN DIEGO 105
unless we consider California’s regulatory scheme in its
entirety. According to the majority, the Plaintiffs’ challenge
“is not an attack trained on a restriction against concealed
carry as such, or viewed in isolation.” Rather, the Plaintiffs
“target[] the constitutionality of the entire scheme” of carry
regulation in California. Indeed, if California did not restrict
open carry, Plaintiffs would have no cause for complaint.
And, of course, if California law permitted unrestricted
concealed public carry, there would be no case at all. It is by
California statute that local Sheriffs are invested with the
discretion to grant concealed carry permits. Plaintiffs’ real
quarrel is with the statute. Their theory is that the statutory
discretion afforded Sheriffs should be uniformly excised.
Thus, by arguing that the Second Amendment compels the
County to interpret “good cause” to include a general desire
to carry a concealed gun, the Plaintiffs in reality are
challenging the constitutionality of the § 26150 good cause
provision. Their proposed remedy of preventing California
Counties from exercising discretion eliminates the statutory
“good cause” requirement and transforms it into a “no cause”
limitation for the general public. Thus, Plaintiffs’ complaint
and theory necessarily specifically calls into question the
constitutionality of state concealed carry law. Further, by
arguing that California is required to provide some outlet for
public carry of handguns, it indirectly implicates the
constitutionality of the entire California firearm regulation
scheme.
Although the constitutionality of the entire scheme is at
issue, the Plaintiffs did not name the State of California as a
defendant, and the Plaintiffs have not complied with Fed. R.
Civ. P. 5.1. Under that rule, if the state or one of its agents is
not a party to a federal court proceeding, “[a] party that files
a pleading . . . drawing into question the constitutionality of
106 PERUTA V. COUNTY OF SAN DIEGO
a . . . state statute must promptly” serve the state’s attorney
general with notice of the pleading and the constitutional
question it raises. Fed. R. Civ. P. 5.1(a). In addition, the
district court must certify to the state’s attorney general that
the constitutionality of the state statute has been questioned,
and must permit the state to intervene to defend it. Fed. R.
Civ. P. 5.1(b), (c); 28 U.S.C. § 2403. The rule protects the
public interest by giving the state an opportunity to voice its
views on the constitutionality of its own statutes. Oklahoma
ex rel. Edmondson v. Pope, 516 F.3d 1214, 1216 (10th Cir.
2008).
Given the real essence of the Plaintiffs’ argument, they
were required to comply with Fed. R. Civ. P. 5.1. They did
not. If we are to consider the constitutionality of the entire
California regulatory scheme, California should have been
afforded an opportunity to defend it. And, to the extent that
the majority strikes down the entirety of California firearm
regulations, it should have stayed the mandate to permit a
legislative response, as the Seventh Circuit did in Moore.
708 F.3d at 942.
B
I must also respectfully disagree with the majority’s
analysis of the government regulation at issue, which directly
conflicts with our circuit precedent in Chovan.
1
The majority acknowledges that we, like our sister
circuits, employ a sliding-scale approach, where the level of
scrutiny we apply to a challenged law depends on how severe
a burden the law imposes on the “core” of the Second
PERUTA V. COUNTY OF SAN DIEGO 107
Amendment guarantee. Chovan, 735 F.3d at 1138; see, e.g.,
Kachalsky, 701 F.3d at 93; Heller, 670 F.3d at 1257; Ezell,
651 F.3d at 708; Chester, 628 F.3d at 682; United States v.
Reese, 627 F.3d 792, 801 (10th Cir. 2010); United States v.
Marzzarella, 614 F.3d 85, 96–97 (3d Cir. 2010). But then the
majority purports to take an “alternative approach,” which it
claims was used in Heller. Under that alternative approach,
the majority rejects any means-ends scrutiny. In doing so, it
directly conflicts with Chovan.
Despite whatever pedigree the majority claims for this
alternative approach, we are bound to follow the law of our
Circuit. Further, the majority approach has no support in
Heller. The Heller Court held only that the D.C. handgun
ban was unconstitutional “[u]nder any of the standards of
scrutiny that we have applied to enumerated constitutional
rights” because “[f]ew laws in the history of our Nation have
come close” to the severity of its restriction. Heller, 554 U.S.
at 628, 629. The Court did not expressly reject means-ends
scrutiny, and it is extremely unlikely that the Court rejected
by implication such a well-established method for assessing
the constitutionality of laws. Indeed, by taking care to
specifically rule out rational-basis scrutiny, the Court
necessarily implied that other, heightened levels of means-
ends scrutiny are appropriate. See Heller, 554 U.S. at 628
n.27.
The majority suggests that the Heller Court rejected any
means-ends scrutiny when it rejected Justice Breyer’s
“interest-balancing inquiry.” See 554 U.S. at 634–35; id. at
689–90 (Breyer, J., dissenting). However, the Court did no
such thing. Justice Breyer’s dissent advocated against
applying established tiers of scrutiny, preferring instead to
decide case-by-case whether a challenged law burdened the
108 PERUTA V. COUNTY OF SAN DIEGO
Second Amendment at all. Id. at 689 (Breyer, J., dissenting).
The Heller Court dismissed this case-by-base inquiry, noting
that “[w]e know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
‘interest-balancing’ approach.” Id. at 634 (emphasis added).
By this, the Heller Court did not disavow the means-ends
scrutiny framework for evaluating burdens on enumerated
rights, which has long been a fixture of constitutional rights
jurisprudence. See generally Adam Winkler, Scrutinizing the
Second Amendment, 105 Mich. L. Rev. 683 (2007); see also
Kachalsky, 701 F.3d at 99 n.23 (rejecting the argument that
“handgun possession in public has the ring of an absolute
constitutional right”). Rather, the Court meant only that
severe burdens on “core protections” would fail any level of
scrutiny and cannot be excused through the sort of
freewheeling interest-balancing approach Justice Breyer
proposed. Heller, 554 U.S. at 628 (“Under any of the
standards of scrutiny that we have applied to enumerated
constitutional rights, banning from the home the most
preferred firearm in the nation to keep and use for protection
of one’s home and family would fail constitutional muster.”)
(internal quotation marks, footnote, and citation omitted).
The majority’s new alternative approach to establishing
the appropriate level of scrutiny is unsupported in Supreme
Court precedent and is in direct conflict with our Circuit’s
precedent and the approach taken by our sister circuits.
2
The majority also errs in its alternative intermediate
scrutiny analysis. The majority acknowledges the Chovan
second step inquiry as to whether the government policy is a
reasonable fit between the challenged regulation and the
PERUTA V. COUNTY OF SAN DIEGO 109
asserted objective. But, rather than applying that analysis, it
substitutes the demanding and inappropriate least restrictive
means test.
There is no support for the application of a least
restrictive means test in Chovan, and our sister circuits have
repeatedly and emphatically recognized that, in this context,
intermediate scrutiny does not require the least restrictive
means available. See Masciandaro, 638 F.3d at 474(“[I]ntermediate scrutiny does not require that a regulation be
the least intrusive means of achieving the relevant
government objective, or that there be no burden whatsoever
on the individual right in question.”); Heller, 670 F.3d at
1258 (explaining that under intermediate scrutiny, there must
be a tight fit “‘that employs not necessarily the least
restrictive means but . . . a means narrowly tailored to achieve
the desired objective’” (quoting Bd. of Trustees of the State
Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989)). In other
words, the fit between the good cause requirement and public
safety objectives must be “reasonable, not perfect.”
Marzzarella, 614 F.3d at 98.
The majority also rejects Turner Broadcasting’s
admonition to afford “substantial deference to the predictive
judgments” of legislative bodies, Turner Broad. Sys. Inc. v.
FCC, 520 U.S. 180, 195 (1997), and criticizes our sister
circuits’ reliance on Turner Broadcasting.
However, “[i]n the context of firearm regulation, the
legislature is ‘far better equipped than the judiciary’ to make
sensitive public policy judgments.” Kachalsky, 701 F.3d at
97; see also Drake, 724 F.3d at 436–37; Woollard, 712 F.3d
at 881. This advice is particularly apt when we consider the
widely-varying state and local gun laws that are tailored to
110 PERUTA V. COUNTY OF SAN DIEGO
particular community needs. What law enforcement deems
a critical restriction in urban areas may not be as important in
rural portions of the country. Those sensitive policy
assessments are best made by the respective legislative
branches and, when permitted by statute, by local law
enforcement officials.10
Turner Broadcasting itself provides a sound rejoinder to
the majority: “Even in the realm of First Amendment
questions where Congress must base its conclusions upon
substantial evidence, deference must be accorded to its
findings as to the harm to be avoided and to the remedial
measures adopted for that end, lest we infringe on traditional
legislative authority to make predictive judgments when
enacting nationwide regulatory policy.” Turner, 520 U.S. at
196 (emphasis added).
Finally, the majority derides the good cause requirement
as nothing more than an arbitrary, overbroad rationing
system. In fact, the record supports the opposite conclusion.
The County does not randomly allocate concealed-carry
licenses to people regardless of need. Instead, it makes the
best prediction possible of who actually needs firearms for
10
Indeed, the California State Sheriffs Association, the California Police
Chiefs Association, and the California Peace Officers Association note in
their amicus brief that the diversity of communities and regions in
California warrants the exercise of discretion by chief law enforcement
executives to determine, in the context of the issues presented in their
jurisdiction, the circumstances under which a concealed gun permit should
issue.
PERUTA V. COUNTY OF SAN DIEGO 111
self-defense, and grants concealed-carry licenses
accordingly.11
V
A careful examination of the narrow questions before us
can only lead to the conclusion that San Diego County’s
“good cause” policy falls squarely within the Supreme
Court’s definition of “presumptively lawful regulatory
measures.” Heller, 554 U.S. at 626, 627 n.26, 636. There is
no need to reach any other issue presented in the case. In
dealing a needless, sweeping judicial blow to the public
safety discretion invested in local law enforcement officers
and to California’s carefully constructed firearm regulatory
scheme, the majority opinion conflicts with Supreme Court
11
I would also reject the Plaintiffs’ alternative equal protection claims.
Their first claim is merely an attempt to bootstrap an equal protection
argument to their Second Amendment claim, so it is more appropriately
analyzed under the Second Amendment. Cf. Albright v. Oliver, 510 U.S.
266, 273 (1994); Orin v. Barclay, 272 F.3d 1207, 1213 n.3 (9th Cir. 2001)
(holding that an equal protection claim was “no more than a First
Amendment claim dressed in equal protection clothing” and was therefore
“subsumed by, and co-extensive with” the former). As for their “class of
one” equal protection claim, the Plaintiffs did not establish a genuine issue
of material fact with regard to whether they were situated similarly to the
renewal applicants belonging to the Honorary Deputy Sheriff’s
Association (“HDSA”). See Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam) (recognizing a “class of one” equal
protection claim “where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.”). The HDSA renewal
applicants documented specific threats or otherwise qualified for renewals,
so they were not similarly situated. I would also reject Plaintiffs’
remaining due process and privileges & immunities claims because
Plaintiffs failed to “specifically and distinctly argue [them] in [their]
opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 978 (9th Cir. 1994).
112 PERUTA V. COUNTY OF SAN DIEGO
authority, the decisions of our sister circuits, and our own
circuit precedent.
I respectfully dissent.