New York State Rifle & Pistol Association, Inc. v. Bruen

Table of Contents

Saul Cornell article How the Supreme Court’s Conservatives Can Solve Their Guns Dilemma Without Losing Face 2023-12-05

Consequences (partial list)

• 2024-01-12: Middle District of Florida, Tampa Division, ruled that employees may not be prohibited from carrying firearms at work.
• 2024-01-06: 9th Circuit Court dissolved an order by a different 9th Circuit panel from a week earlier that suspended an injunction by U.S. District Judge Cormac Carney preventing California SB 2 from taking effect. SB 2 would prevent concealed carry in 26 categories of "sensitive places" including hospitals, playgrounds, stadiums, zoos and places of worship, regardless whether they had permits to carry concealed weapons.
• 2023-11-21: 4th Circuit Court in Maryland Shall Issue, Inc. et al v. Wes Moore decision invalidating certain Maryland firearms regulations including a “handgun qualification license” which can take up to 30 days to acquire.
• 2023-10-20: Supreme Court in Missouri v. United States refused a request by Missouri to reinstate a state law that bars police officers from enforcing federal restrictions on the sale and ownership of firearms that the state believes violate the Second Amendment. The law prohibits local law enforcement officials from enforcing federal firearms laws that the state believes are unconstitutional, for example, the blanket ban on possession of a gun by individuals convicted of a felony.
  
• 2023-10-07: Supreme Court will hear United States v. Rahimi, (2024)
• 2023-08-07: Switchblades: Three judge panel of the 9th circuit holds Hawaii ban on butterfly knives is unconstitutional.
• Assault Weapons & High Capacity Magazines:
  • Illinois: 2023-12-14 Certiorari denied National Association for Gun Rights v. City of Naperville SCOTUSblog
  • Illinois: 2023-05-17 Ceritorari denied National Association for Gun Rights v. City of Naperville
• Concealed Carry:
  • New York: 2023-11-08 2nd Circuit Court in Antonyuk; Hardaway; Christian; Spencer v. Chiumento opinion upholding in part and vacating in part with remand district court’s injunctions regarding New York’s Concealed Carry Improvement Act (CCIA).
    • Ghost guns:
      • 2023-10-18: Supreme Court order October 16, 2023 vacating The September 14, 2023 order of the United States District Court for the Northern District of Texas. article on same.
      • 2023-09-14: VerDerStok v. Blackhawk Mfg. Grp. US District Court for the Northern District of Texas September 14, 2023 exempting "ghost guns" sold by the parties from background check and serial number requirements.
      • 2023-09-07: Scheduled hearing on the merits before the United States Court of Appeals for the Fifth Circuit.
      • 2023-08-08: Supreme Court stays July 5, 2023 judgment of the United States District Court for the Northern District of Texas pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.
      • 2023-07-13: Garland v. VanDerStok case docketed July 13th, 2023.
      • 2023-07-05: VerDerStok v. Garland US District Court for the Northern District of Texas July 5th, 2023. 5th Circuit denied ATF request for stay. “The liberty interests of law-abiding citizens wishing to engage in historically lawful conduct” — building their own weapons — “outweighs the Government’s competing interest in preventing prohibited persons from unlawfully possessing firearms,”
    • 2023-06-28: Lifetime felon-in-possession U.S. Code Title 18 Chapter 44 Firearms Unlawful acts §922(g)(1): Judge Carlton Reeves Southern District of Mississippi ruled unconstitutional. Another copy
    • 2023-06-06: Non-violent felons §922(g)(1): We agree with [Bryan] Range that, despite his false statement conviction, he remains among “the people” protected by the Second Amendment. And because the Government did not carry its burden of showing that our Nation’s history and tradition of firearm regulation support disarming Range, we will reverse and remand. Opinion of the Third Circuit.
    • Drug users cites New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi obsoleting United States v. Patterson (2005) and United States v. May (2013).
      • 2023-08-09: §922(g)(3): Fifth Circuit Court ruling that §922(g)(3): breaks with historical intoxication laws by prohibiting not just firearm use by those who are actively intoxicated but also firearm possession by those who use controlled substances, even somewhat irregularly. Indictment is therefore DISMISSED.
      • 2023-04-06: §922(d)(3): Opinion of the District Court El Paso Division and brief: "possession of a firearm by an unlawful user of a controlled substance" DISMISSED
      • 2023-04-06: §922(g)(3): Opinion of the District Court El Paso Division and brief: "transferring a firearm and ammunition to her husband, an unlawful user of a controlled substance" DISMISSED
      • 2023-02-03: §922(d)(3): Opinion in United States v. Harrison of the United States District Court, Western District of Oklahoma: "18 U.S.C. § 922(g)(3) violates Harrison's Second Amendment right to possess a firearm" Accordingly, the Indictment is DISMISSED WITH PREJUDICE.
    • Domestic violence offenders
      • ScotusBlog tracking page.
      • 2023-08-14: Brief of United States filed with the Supreme Court.
      • 2023-06-30: Supreme Court grants certiorari in United States v. Rahimi on "Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face."
      • 2023-06-08: Opinion of the Fifth Circuit in United States v. Rahimi, in the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) confirming conviction under state law for "a series of shootings that occurred between December 2020 and January 2021." ??? read to confirm
      • 2023-05-30: Brief of respondent Zackey Rahimi in opposition filed with the Supreme Court.
      • 2023-02-02: Appeal from the United States District Court for the Northern District of Texas regarding §922(g)(8): The question is whether 18 U.S.C. §§922(g)(8) is constitutional under the Second Amendment of the United States Constitution. Per decision of the Fifth Circuit, §922(g)(8) is unconstitutional.
    • "The concurring Justices seem not to have realized the implications of the standard they approved." Albert W. Alschuler Verdict article 2023-06-21.
    • See also The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History
    • Ian Millhiser's 2023-10-24 days before oral argument in United States v. Rahimi, (2024) .
    • Ian Millhiser's 2023-08-01 article on O'Connor's Ghost guns opinion in the US District Court for the Northern District of Texas (see above).

    Notable Items:

    • Majority opinion confuses lack of action (no earlier similar/equivalent laws) for lack of authority (to pass such laws) OR posits an expiration date for utilizing that authority (to pass such laws).
      
    • 'To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” ' Bruen Opinion of the Court page 8 [emphasis added]
    • Summary of the most noteworthy and novel arguments in the more than 80 amicus briefs were filed. Duke University Center for Firearms Law.

    ---

    Petitioners: Brandon Koch and Robert Nash, New York State Rifle & Pistol Association, Inc.,
    Respondent:
    Venue: Supreme Court of the United States
    Opinion of the Court: NYSRPA-Bruen (2022)

    Issue(s) Before the Court:

    Do the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home?

    Petitioner's Claim(s):

    Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right.
    respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non-speculative need for armed self-defense in those areas,”

    Respondent's Claim(s):

    Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right.

    Holding(s) and Disposition:

    Held: Yes.
  • New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.
    Disposition: We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
    (toc)

    Material Facts:

    • In 2014, Nash applied for an unrestricted license to carry a handgun in public.
    • Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense.
    • In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only.
    • Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting.
    • A full recounting of the facts is available below

    Procedural History:

    • In late 2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood.
    • After an informal hearing, the licensing officer denied the request.
    • In late 2017, Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms.
    • Like Nash’s application, Koch’s was denied, except that the officer permitted Koch to “carry to and from work.”
    • Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications on the basis that they had failed to show “proper cause,” i.e., had failed to demonstrate a unique need for self-defense.
    • The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed.
    • We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution.

    Rationale

    Thomas Majority Opinion (Roberts, Alito, Gorsuch, Kavanaugh, Barrett)

    • (a) In District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, the Court held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.
    • ... to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. Pp. 8–22
    • (1) Since Heller and McDonald, the Courts of Appeals have developed a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
    • [the Court] expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
    • (2) ... reliance on history to inform the meaning of constitutional text ... Pp. 15–17.
    • (3) The test that the Court set forth in Heller and applies today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.
    • ... meaning is fixed according to the understandings of those who ratified it.
    • two relevant metrics: first, whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and second, whether that regulatory burden is comparably justified. Pp. 17–22.
    • (b) Having made the constitutional standard endorsed in Heller more explicit, the Court applies that standard to New York’s proper-cause requirement. Pp. 23–62.
    • (1) Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry.
    • (2) The burden then falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.
    • Historical evidence that long predates or postdates either time may not illuminate the scope of the right.
    • (i) The Court cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. Pp. 30–37.
    • (ii) Respondents next direct the Court to the history of the Colonies and early Republic, but they identify only three restrictions on public carry from that time.
    • The statutes essentially prohibited bearing arms in a way that spread “fear” or “terror” among the people, including by carrying of “dangerous and unusual weapons.”
    • (iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate ...
    • Common-Law Offenses: no evidence indicating that these common-law limitations [affray, terror] impaired the right of the general population to peaceable public carry.
    • Statutory Prohibitions: consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues.
    • Surety Statutes: surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.”
    • none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. Pp. 42–51.
    • (iv) Evidence from around the adoption of the Fourteenth Amendment also does not support respondents’ position. Pp. 52–58.
    • (v) ... late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. Pp. 58–62.
    • (vi) ... respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. P. 62.
    • (c) The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need.
    • Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961) [italics added. Is there a nation-wide tradition given the variety of firearm regulation]
    • (From KonigsbergThat view, which, of course, cannot be reconciled with the law relating to libel ... provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.")
    • But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.
    • Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
    • The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U. S., at 50, n. 10.
    • Courts are thus entitled to decide a case based on the historical record compiled by the parties. [note 6] [ substituting history in place of structure (“text, history, and structure.”)]
    • The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.
    • Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts, 577 U.S. 411, 411–412 (2016) (per curiam) (stun guns).
    • Heller further confirmed that the right to “bear arms” refers to the right 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 defensive action in a case of conflict with another person.” [concealed carry included and not distinguished from open carry.]
    • respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non-speculative need for armed self-defense in those areas,”
    • We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.
    • A full description of the rationale is available below

    Barrett Concurrance -- Two Methodological Points

    • First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution.
    • Second and relatedly, the Court avoids another “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was ratified in 1791.
    • ... a practice that “arose in the second half of the 19th century ... cannot by itself establish an early American tradition” informing our understanding of the First Amendment. Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___–___ (2020)
    • So today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.

    Kavanaugh Concurrance -- The Limits of the Court’s Decision (Roberts)

    • ... the Court correctly holds that New York’s outlier “may-issue” licensing regime for carrying handguns for self-defense violates the Second Amendment.
    • First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.
    • New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.
    • Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.
    • As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice.
    • Second, .... Properly interpreted, the Second Amendment allows a “variety” of gun regulations. Heller, 554 U. S., at 636.
    • ... not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... [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,
      • 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.

    Alito Concurrance -- Response to Dissent

    • In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court concluded that the Second Amendment protects the right to keep a handgun in the home for self-defense.
    • The Court’s exhaustive historical survey establishes that point very clearly, and today’s decision therefore holds that a State may not enforce a law, ... that effectively prevents its law-abiding residents from carrying a gun for this purpose.
    • That is all we decide.
    • Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun.
    • Nor does it decide anything about the kinds of weapons that people may possess.
    • Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561 U.S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns.
    • [Rhetorical questions regarding firearm homicides.]
    • [Stories of beneficial effect of carrying a handgun.]
    • My final point concerns the dissent’s complaint that the Court relies too heavily on history and should instead approve the sort of “means-end” analysis employed in this case by the Second Circuit.
    • This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun.
    (toc)

    Breyer dissent (Sotomayor, Kagan)

    (toc)

    ---

    Full Recounting of Facts

    • In 2014, Nash applied for an unrestricted license to carry a handgun in public.
    • Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense.
    • In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only.
    • In late 2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood.
    • After an informal hearing, the licensing officer denied the request.
    • Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting.
    • In late 2017, Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms.
    • Like Nash’s application, Koch’s was denied, except that the officer permitted Koch to “carry to and from work.”
    • A list of the material facts is available above

    Majority Full Argument

    • In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.
    • In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.
    • The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense.
    • ... in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need.
    • Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.
    • [Section I: Summary of Facts]
    • [Section I A]
    • To secure that [unrestricted “have and carry”] license [carry a firearm outside his home or place of business for self-defense], the applicant must prove that “proper cause exists” to issue it.
    • If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.
    • ... New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.”
    • In other words, the decision “must be upheld if the record shows a rational basis for it.”
    • All of these “proper cause” analogues have been upheld by the Courts of Appeals, ...
    • [Section I B]
    • See: A full recounting of the facts is available below
    • [Section I C]
    • Respondents are the superintendent of the New York State Police, ..., and a New York Supreme Court justice.
    • Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications on the basis that they had failed to show “proper cause,” i.e., had failed to demonstrate a unique need for self-defense.
    • The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed.
    • We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution.
    • [Section II ]
    • In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.
    • In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
    • Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
    • Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961) [italics added. Is there a nation-wide tradition given the variety of firearm regulation]
    • (From KonigsbergThat view, which, of course, cannot be reconciled with the law relating to libel ... provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.")
    • [Section II A]
    • At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” E.g., Kanter v. Barr, 919 F.3d 437, 441
    • If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, “then the analysis can stop there; the regulated activity is categorically unprotected.” United States v. Greeno, 679 F.3d 510, 518 (CA6 2012)
    • At the second step, courts often analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Ibid.
    • The Courts of Appeals generally maintain “that the core Second Amendment right is limited to self-defense in the home.” Gould, 907 F. 3d, at 671
    • If a “core” Second Amendment right is burdened, courts apply “strict scrutiny” and ask whether the Government can prove that the law is “narrowly tailored to achieve a compelling governmental interest.” Kolbe v. Hogan, 849 F.3d 114, 133 (CA4 2017)
    • Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is “substantially related to the achievement of an important governmental interest.” Kachalsky, 701 F. 3d, at 96.[4]
    • Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right.
    • [Section II B: Summary of Heller]
    • But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context.
    • Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
    • [Section II B 1]
    • [Summarization of Scalia's opinion of the court in District of Columbia v. Heller (2008) ]
    • [Section II B 2]
    • As the foregoing shows, Heller’s methodology centered on constitutional text and history.
    • Moreover, Heller and McDonald expressly rejected the application of any “judge-empowering ‘interest-balancing inquiry’ that ‘asks 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.’ ” Heller, 554 U. S., at 634 (quoting id., at 689–690 (Breyer, J., dissenting));
    • ... Heller specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt.
    • In sum, the Courts of Appeals’ second step is inconsistent with Heller’s historical approach and its rejection of means-end scrutiny.
    • We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
    • The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U. S., at 50, n. 10.
    • [Section II C: Historicism as Constitutional Interpretation.]
    • This Second Amendment standard accords with how we protect other constitutional rights.
    • Courts are thus entitled to decide a case based on the historical record compiled by the parties. [note 6] [ substituting history in place of structure (“text, history, and structure.”)]
    • And beyond the freedom of speech, our focus on history also comports with how we assess many other constitutional claims. [history??? two cases cited from 2008 and 2015.]
    • But reliance on history to inform the meaning of constitutional text ... is, in our view, more legitimate, and more administrable, than asking judges to “make difficult empirical judgments”
    • But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here.
    • The Second Amendment “is the very product of an interest balancing by the people”.... [True of all amendments to the Constitution.]
    • It is this balance—struck by the traditions of the American people—that demands our unqualified deference. [Why traditions? Embeds historicism as constitutional interpretation.]
    • [Section II D: Explaining Constitutional Standard of Heller] (17)
    • The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.
    • For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. (emphasis added)
    • Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. (emphasis added)
    • Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts, 577 U.S. 411, 411–412 (2016) (per curiam) (stun guns).
    • Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. [open license to define as desired ‘dangerous and unusual weapons’ and other terms]
    • ...we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.
    • Consider, for example, Heller’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
    • Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions.
    • In their [respondant's] view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”
    • [Section III Apply Our History]
    • Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement.
    • [Section III A]
    • We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense.
    • Heller further confirmed that the right to “bear arms” refers to the right 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 defensive action in a case of conflict with another person.” [concealed carry included and not distinguished from open carry.]
    • The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense.
    • [Section III B]
    • respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non-speculative need for armed self-defense in those areas,”
    • To support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation.
    • “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635 (emphasis added).
    • We therefore examined “a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its ... ratification.”
    • Thus, “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.”
    • And we have generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.
    • We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.
    • But apart from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.
    • We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement.
    • Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional.
    • [Section III B 1 English and Early American History]
    • But, in any event, James I’s proclamation in 1616 “was the last one regarding civilians carrying dags,” Schwoerer 63. “After this the question faded without explanation.” Ibid.
    • So, by the time Englishmen began to arrive in America in the early 1600s, the public carry of handguns was no longer widely proscribed. [achronologial. false logic. question set aside does not change answer.]
    • At the very least, we cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection.
    • [Section III B 2 Colonial History]
    • In the colonial era, respondents point to only three restrictions on public carry.
    • Colonial Massachusetts and New Hampshire both authorized justices of the peace to arrest “all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively ... by Night or by Day, in Fear or Affray of Their Majesties Liege People.”
    • Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today.
    • Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. [time dependent meaning of the second amendment.]
    • East New Jersey in 1686. It prohibited the concealed carry of “pocket pistol[s]” or other “unusual or unlawful weapons,” and it further prohibited “planter[s]” from carrying all pistols unless in military service or, if “strangers,” when traveling through the Province.
    • Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.
    • [Section III B 3 Antebellum History]
    • Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate.
    • [Common Law] Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so.
    • [Statutory Prohibitions] In fact, however, the history reveals a consensus that States could not ban public carry altogether.
    • [Surety Statutes] In the mid-19th century, many jurisdictions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public.
    • While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.”
    • Besides, respondents offer little evidence that authorities ever enforced surety laws. [enforcement of law not remarkable, and so not to be commented upon.]
    • None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.
    • [Section III B 4 Postbellum History]
    • We acknowledge that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ “reasonable grounds” standard. But the Texas statute, and the rationales set forth in English (1871) and Duke (1875), are outliers.
    • [Section III B 5 Western Territories]
    • As we suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.
    • The vast majority of the statutes that respondents invoke come from the Western Territories.
    • Two Territories (AZ, NM) prohibited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere.
    • Two others (ID, WY) prohibited the carry of all firearms in towns, cities, and villages, including long guns.
    • And one Territory (OK) completely prohibited public carry of pistols everywhere, but allowed the carry of “shot-guns or rifles” for certain purposes.
    • The exceptional nature of these western restrictions is all the more apparent when one considers the miniscule territorial populations who would have lived under them. [number affected determine constitutionality]
    • When States generally prohibited both open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they exempted army revolvers, or read the laws to exempt at least that category of weapons. See, e.g., Haile v. State, 38 Ark. 564, 567 (1882); Wilson v. State, 33 Ark. 557, 560 (1878); Fife v. State, 31 Ark. 455, 461 (1876); State v. Wilburn, 66 Tenn. 57, 60 (1872); Andrews, 50 Tenn., at 187. [Two states: AR, TN vs five territories)
    • For example, the Kansas Supreme Court upheld a complete ban on public carry enacted by the city of Salina in 1901 based on the rationale that the Second Amendment protects only “the right to bear arms as a member of the state militia, or some other military organization provided for by law.” Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous. See Heller, 554 U. S., at 592.
    • Finally, these territorial restrictions deserve little weight because they were—consistent with the transitory nature of territorial government—short lived.
    • At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement.
    • [Section IV Conclusion]
    • We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.
    • New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.
    • We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
    • The core of the rationale is available above
    © Jonathan M. Bresler