George K. Young, Jr., Plaintiff-Appellant,
State of Hawaii; Neil Abercrombie, in his capacity as Governor of the State of Hawaii; David Mark Louie I, Esquire, in his capacity as State Attorney General; County of Hawaii, as a sub-agency of the State of Hawaii; William P. Kenoi, in his capacity as Mayor of the County of Hawaii; Hilo County Police Department, as a sub-agency of the County of Hawaii; Harry S. Kubojiri, in his capacity as Chief of Police; John Does, 1- 25; Jane Does, 1-25; Doe Corporations, 1-5; Doe Entities, 1-5, Defendants-Appellees.
and Submitted February 12, 2018 Honolulu, Hawaii
from the United States District Court for the District of
Hawaii Helen W. Gillmor, Senior District Judge, Presiding
D.C. No. 1:12-cv-00336-HG-BMK
A. Beck (argued), Law Offices of Alan Beck, San Diego,
California; Stephen D. Stamboulieh, Stamboulieh Law PLL,
Madison, Mississippi; for Plaintiff-Appellant.
Kaena Horowitz (argued), County of Hawaii Deputy Corporation
Counsel; Laureen L. Martin, County of Hawaii Assistant
Corporation Counsel; Office of the Corporation Counsel, Hilo,
Hawaii; for Defendants-Appellees County of Hawaii, William P.
Kenoi, and Harry S. Kubojiri.
Kimberly Tsumoto Guidry, First Deputy Solicitor General;
Robert Tadao Nakatsuji, Deputy Solicitor General; Department
of the Attorney General, Honolulu, Hawaii; for
Defendant-Appellee and Amicus Curiae State of Hawaii.
appearance for Defendants-Appellees Neil Abercrombie and
David Mark Louie I.
Before: Diarmuid F. O'Scannlain, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
panel reversed the district court's dismissal of claims
brought against the County of Hawaii, dismissed
plaintiff's appeal as to the State of Hawaii, and
remanded, in plaintiff's 42 U.S.C. § 1983 action
alleging that the denial of his application for a handgun
license violated his Second Amendment right to carry a loaded
firearm in public for self-defense.
County of Hawaii's Chief of Police denied plaintiff's
application to carry a handgun because he failed to satisfy
Hawaii's licensing requirements, as set forth in section
134-9 of the Hawaii Revised Statutes. Section 134-9 acts as a
limited exception to the State of Hawaii's "Place[s]
to Keep" statutes, which generally require that gun
owners keep their firearms at their "place of business,
residence, or sojourn." H.R.S. §§ 134-23,
134-24, 134-25. The exception allows citizens to obtain a
license to carry a loaded handgun in public, either concealed
or openly, under certain circumstances. Plaintiff alleged
that the County violated the Second Amendment by enforcing
against him the State's limitations in section 134-9 on
the open carry of firearms to those "engaged in the
protection of life and property" and on the concealed
carry of firearms to those who can demonstrate an
panel acknowledged that while the concealed carry of firearms
categorically falls outside Second Amendment protection,
see Peruta v. County of San Diego, 824 F.3d 919, 939
(2016) (en banc), it was satisfied that the Second Amendment
encompasses a right to carry a firearm openly in public for
self-defense. Analyzing the text of the Second Amendment and
reviewing the relevant history, including founding-era
treatises and nineteenth century case law, the panel stated
that it was unpersuaded by the County's and the
State's argument that the Second Amendment only has force
within the home. The panel stated that once identified as an
individual right focused on self-defense, the right to bear
arms must guarantee some right to self-defense in
public. The panel held that because Hawaii law restricted
plaintiff in exercising the right to carry a firearm openly,
it burdened conduct protected by the Second Amendment.
determining the appropriate level of scrutiny to apply to
section 134-9, the panel first held that the right to carry a
firearm openly for self-defense falls within the core of the
Second Amendment. The panel stated that restricting open
carry to those whose job entails protecting life or property
necessarily restricts open carry to a small and insulated
subset of law-abiding citizens. The panel reasoned that the
typical, law-abiding citizen in the State of Hawaii was
entirely foreclosed from exercising the core Second Amendment
right to bear arms for self-defense. The panel concluded that
Hawaii's limitation on the open carry of firearms to
those "engaged in the protection of life and
property" violated the core of the Second Amendment and
was void under any level of scrutiny.
Judge Clifton stated the majority opinion disregarded the
fact that states and territories in a variety of regions have
long allowed for extensive regulations of and limitations on
the public carry of firearms. Judge Clifton wrote that such
regulations are presumptively lawful under District of
Columbia v. Heller, 554 U.S. 570 (2008), and do not
undercut the core of the Second Amendment. In addition, Judge
Clifton stated that the majority opinion misconceived the
intermediate scrutiny test, assumed without support in the
record that Hawaii's statute operates as a complete ban,
and substituted its own judgment about the efficacy of less
restrictive regulatory schemes.
O'SCANNLAIN, CIRCUIT JUDGE:
decide whether the Second Amendment encompasses the right of
a responsible law-abiding citizen to carry a firearm openly
for self-defense outside of the home.
Young wishes to carry a firearm publicly for personal
self-defense in the State of Hawaii. He twice in 2011 applied
for a license to carry a handgun, either concealed or openly.
His application was denied each time by the County of
Hawaii's Chief of Police, Harry Kubojiri, because Young
failed to satisfy the requirements set forth in section 134-9
of the Hawaii Revised Statutes ("H.R.S.").
134-9 acts as a limited exception to the State of
Hawaii's "Place[s] to Keep" statutes, which
generally require that gun owners keep their firearms at
their "place of business, residence, or sojourn."
H.R.S. §§ 134-23, 134-24, 134-25. The exception
allows citizens to obtain a license to carry a loaded handgun
in public, either concealed or openly, under certain
circumstances. H.R.S. § 134-9. Respecting concealed
carry, section 134-9 provides that "[i]n an exceptional
case, when an applicant shows reason to fear injury to the
applicant's person or property, the chief of police . . .
may grant a license to an applicant . . . to carry a pistol
or revolver and ammunition therefor concealed on the
person." The chief of police may, under section 134-9,
grant a license for the open carry of a loaded handgun only
"[w]here the urgency or the need has been sufficiently
indicated" and the applicant "is engaged in the
protection of life and property." The County of Hawaii
has promulgated regulations to clarify that open carry is
proper only when the license-holder is "in the actual
performance of his duties or within the area of his
assignment." Police Dep't of Cty. of Haw., Rules
and Regulations Governing the Issuance of Licenses 10
(Oct. 22, 1997).
a license under section 134-9, a person may only transport an
unloaded firearm, in an enclosed container, to and from a
place of repair, a target range, a licensed dealer, a
firearms exhibit, a hunting ground, or a police station,
H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27,
and may only use those firearms while "actually
engaged" in hunting or target shooting, H.R.S. §
12, 2012, Young filed this suit pro se under 42
U.S.C. § 1983 against the State of Hawaii, its
then-Governor, Neil Abercrombie, and its then-Attorney
General, David Louie (collectively "the State"), as
well as the County of Hawaii, its then-Mayor, William Kenoi,
the Hilo County Police Department, and its then-Chief of
Police, Harry Kubojiri (collectively "the County").
Primarily alleging that denying his application for a handgun
license violates his Second Amendment right to carry a loaded
firearm in public for self-defense, Young requested, among
other things, injunctive and declaratory relief from the
enforcement of section 134-9's licensing requirements.
State filed a motion to dismiss Young's claims under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and
the County filed a motion to dismiss the claims under Rule
12(b)(6). The district court granted both. As for the State
of Hawaii, the district court found Young's action to be
barred by sovereign immunity. Young's action against the
State officials-while not barred by sovereign immunity under
Ex Parte Young, 209 U.S. 123 (1908)-was dismissed
because the district court found their general oversight of
the enforcement of Hawaii's laws "insufficient to
establish a nexus between [such] officials and the alleged
violation of [Young's] civil rights."
Young's action against the County on the merits, the
district court found that section 134-9 "does not
implicate activity protected by the Second Amendment,"
because that Amendment "establishes only a narrow
individual right to keep an operable handgun at home for
self-defense." In the alternative, the district court
indicated that it would uphold section 134-9's open and
concealed carry limitations under intermediate scrutiny. As
the court reasoned, the State's "substantial
interest in safeguarding the public from the inherent dangers
of firearms" was reasonably furthered by policies that
"enable officials to effectively differentiate between
individuals who need to carry a gun for self-defense and
those who do not."
argument is straightforward: he asserts that the County has
violated the Second Amendment by enforcing against him the
State's limitations in section 134-9 on the open carry of
firearms to those "engaged in the protection of life and
property" and on the concealed carry of firearms to
those who can demonstrate an "exceptional
County and the State respond that Young's claim is
foreclosed by our en banc decision in Peruta v. County of
San Diego (Peruta II), 824 F.3d 919 (2016) (en
banc), which overturned a three-judge panel's decision
striking down a concealed carry licensing regime, see
Peruta v. County of San Diego (Peruta I), 742
F.3d 1144 (9th Cir. 2014).
Peruta II, we considered a challenge to San
Diego's limitations on the concealed carry of handguns
outside of the home. 824 F.3d at 924. California law
generally prohibits carrying firearms in public, whether
concealed or openly. See Cal. Penal Code
§§ 25400, 25850, 26350. But San Diego County leaves
open the opportunity to carry a concealed firearm upon the
demonstration of "good cause." See Peruta
II, 824 F.3d at 926. Rejecting Peruta's challenge,
our en banc court held that "the Second Amendment right
to keep and bear arms does not include, in any
degree, the right of a member of the general public to
carry concealed firearms in public." Id. at 939
(emphasis added). But, as even the dissent acknowledges, our
court explicitly left unresolved the question of whether the
Second Amendment encompasses a right to open carry. See
id. ("There may or may not be a Second Amendment
right for a member of the general public to carry a firearm
openly in public. The Supreme Court has not answered that
question, and we do not answer it here."). Young's
claim therefore picks up where Peruta's left off and
presents an issue of first impression for this circuit:
whether the Second Amendment encompasses a right to carry
firearms openly in public for self-defense.
interpretation of the Second Amendment is guided by the
Supreme Court's decisions in District of Columbia v.
Heller, 554 U.S. 570 (2008), and McDonald v. City of
Chicago, 561 U.S. 742 (2010). In Heller, the
Court invalidated a District of Columbia ban on handgun
possession in the home, holding that the Second Amendment
guarantees an individual right to keep a handgun in one's
home for self-defense, and rejecting a collective view of the
right. See 554 U.S. at 635. Because the District of
Columbia law had completely banned "the quintessential
self-defense weapon" within the home, the Court saw no
need to clarify further the scope of the right or the level
of scrutiny it demands. See id. at 629. "Under
any of the standards of scrutiny that [the Court has] applied
to enumerated constitutional rights," such a severe
deprivation must fail. Id. at 628-29.
McDonald, the Court incorporated the Second
Amendment against the States through the Fourteenth
Amendment, invalidating a Chicago law that effectively banned
handgun possession by residents of the city. 561 U.S. at 750.
In determining whether the pre-existing right codified by the
Second Amendment was "fundamental to our scheme
of ordered liberty," the Court stressed the centrality
of self-defense: "Self-defense is a basic right,
recognized by many legal systems from ancient times to the
present day . . . ." Id. at 767. Consequently,
the Court held it "clear that this right is 'deeply
rooted in this Nation's history and tradition,
'" thus binding the States alongside the federal
government. Id. at 768 (quoting Washington v.
Glucksberg, 521 U.S. 702, 721 (1997)); see also
id. at 805-06 (Thomas, J., concurring in part and
concurring in the judgment) (agreeing that the Second
Amendment is "fully applicable to the States," but
via the Fourteenth Amendment's Privileges or Immunities
the case in Peruta II, we find ourselves navigating
waters uncharted by Heller and McDonald:
the degree to which the Second Amendment protects, or does
not protect, the carrying of firearms outside of the home.
circuit, like others, employs a two-step approach to Second
Amendment challenges. See Jackson v. City & Cty. of
San Francisco, 746 F.3d 953, 960 (9th Cir. 2014);
see also United States v. Chester, 628 F.3d 673, 680
(4th Cir. 2010); United States v. Marzzarella, 614
F.3d 85, 89 (3d Cir. 2010). We first ask "whether the
challenged law burdens conduct protected by the Second
Amendment." Jackson, 746 F.3d at 960 (quoting
United States v. Chovan, 735 F.3d 1127, 1136 (9th
Cir. 2013)). If so, we must "apply an appropriate level
of scrutiny." Id. And because Heller
makes clear that evaluating restrictions of Second Amendment
rights under rational basis review is inappropriate,
see 554 U.S. at 628 n.27, any means-end scrutiny
applied must be some form of heightened scrutiny, such as
intermediate or strict scrutiny. Of course, we remain ever
mindful not to treat the Second Amendment any differently
from other individual constitutional rights. It is not
"a second-class right," McDonald, 561 U.S.
at 780, nor a "constitutional orphan,"
Silvester v. Becerra, No. 17-342, 2018 WL 943032, at
*8 (U.S. Feb. 20, 2018) (Thomas, J., dissenting from denial
and McDonald set the goalposts for our inquiry,
which requires determining the scope of the Second Amendment
with respect to public carry. We must discern the scope of
the Amendment not as it appears to us now, but "with the
scope [it was] understood to have when the people adopted
[it]." Heller, 554 U.S. at 634-35. Our
lodestars are "text and history," id. at
595, because they bear most strongly on what the right was
understood to mean, at the time of enactment, to the public.
Because "words and phrases were used in their normal and
ordinary as distinguished from technical meaning,"
id. at 576 (quoting United States v.
Sprague, 282 U.S. 716, 731 (1931)), our approach is not
just a textual one, but also a contextual one. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, at xxv (2012)
("Words don't have intrinsic meanings; the
significance of an expression depends on how the interpretive
community alive at the time of the text's adoption
understood those words."). History and convention,
therefore, illuminate our understanding of the text.
not the first circuit to grapple with how far, and to what
extent, the Second Amendment applies outside the home. Two
circuits, looking closely at the text and history of the
Amendment, have held that the Second Amendment indeed
protects a general right to carry firearms in public for
self-defense. See Wrenn v. District of Columbia, 864
F.3d 650, 665 (D.C. Cir. 2017); Moore v. Madigan,
702 F.3d 933, 936-37 (7th Cir. 2012). Three others have simply
assumed the Second Amendment applies outside the home,
without delving into the historical nature of the right.
See Woollard v. Gallagher, 712 F.3d 865, 876 (4th
Cir. 2013); Drake v. Filko, 724 F.3d 426, 431 (3d
Cir. 2013); Kachalsky v. Cty. of Westchester, 701
F.3d 81, 89 (2d Cir. 2012).
start, as we must, with the text. The Second Amendment
provides: "A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed." U.S. Const.
amend. II. It is apparent from the face of the text that the
Amendment protects the right not only to "keep" but
also to "bear" arms. The latter verb is central to
provides useful guidance. To "bear," the Court
explained, means to "wear" or to "carry . . .
upon the person or in the clothing or in a pocket, for the
purpose . . . of being armed and ready for offensive or
defense action in a case of conflict with another
person." Heller, 554 U.S. at 584 (quoting
Muscarello v. United States, 524 U.S. 125, 143
(1998) (Ginsburg, J., dissenting)). And Heller
explained that "bear arms" did not solely refer to
carrying a weapon as part of a militia. Id. at 585.
Rather, to "bear" an object means to carry it, and
"[w]hen used with 'arms,' . . . the term has a
meaning that refers to carrying for a particular purpose-
confrontation." Id. at 584.
prospect of confrontation is, of course, not limited to
one's dwelling. See Wrenn, 864 F.3d at 657
("After all, the Amendment's core lawful purpose is
self-defense, and the need for that might arise beyond as
well as within the home." (internal quotations and
citations omitted)); Moore, 702 F.3d at 941
("[T]he interest in self-protection is as great outside
as inside the home."). Thus, carrying firearms outside
the home fits comfortably within Heller's
definition of "bear."
the fact that the Second Amendment protects bearing as
well as keeping arms implies some level of public carry
in case of confrontation. A right to "keep" arms,
on its own, necessarily implies a right to carry those arms
to some extent. For instance, in order to "keep"
arms, one would have to carry them home from the place of
purchase and occasionally move them from storage place to
storage place. Cf. Ezell v. City of Chicago, 651
F.3d 684, 704 (7th Cir. 2011) (holding that the right to
possess firearms "implies a corresponding right to
acquire and maintain proficiency in their use"). The
addition of a separate right to "bear" arms, beyond
keeping them, should therefore protect something more than
mere carrying incidental to keeping arms. See Thomas
M. Cooley, The General Principles of Constitutional Law
in the United States of America 271 (1880) ("[T]o
bear arms implies something more than mere keeping.").
Understanding "bear" to protect at least some level
of carrying in anticipation of conflict outside of the home
provides the necessary gap between "keep" and
"bear" to avoid rendering the latter guarantee as
mere surplusage. See Marbury v. Madison, 5 U.S. (1
Cranch) 137, 174 (1803) ("[I]t cannot be presumed that
any clause in the constitution is intended to be without
effect . . . .").
and McDonald suggest a similar understanding of
"bear." Heller described the
"inherent right of self-defense" as "most
acute" within the home, implying that the right exists,
perhaps less acutely, outside the home. 554 U.S. at
McDonald similarly described the right as "most
notabl[e]" within the home, implying the right exists,
perhaps less notably, outside the home. 561 U.S. at 780.
Heller also identified "laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings" as presumptively lawful. 554 U.S.
at 626. Why bother clarifying the definition of sensitive
public places if the Second Amendment did not apply, at all,
to any public place?
short, the text of the Amendment, as interpreted by
Heller and McDonald, points toward the
conclusion that "bear" implies a right to carry
firearms publicly for self-defense.
consider the writings of "important founding-era legal
scholars" to discern the original public understanding
of the Second Amendment right, because, as Heller
explains, "[t]hat sort of inquiry is a critical tool of
constitutional interpretation." 554 U.S. at 605; see
also Jackson, 746 F.3d at 960, 962-63.
legal treatises that were in wide circulation throughout the
founding era support our textual understanding of "bear
arms." In an early American edition of Blackstone's
Commentaries on the Laws of England- indeed, the
"most important" edition, as Heller points
out, see 554 U.S. at 594-St. George Tucker, a law
professor at the College of William & Mary and former
influential Antifederalist, insisted that the right to armed
self-defense is the "first law of nature" and that
"the right of the people to keep and bear arms" is
the "true palladium of liberty." 1 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 app. n.D. at 300 (Phil., William Young Birch
& Abraham Small 1803); see also McDonald, 561
U.S. at 769 (treating Tucker's notes on Blackstone as
heavily instructive in interpreting the Second Amendment);
Heller, 554 U.S. at 606 (same). And in advocating
for the prerogative of the Judiciary to strike down
unconstitutional statutes, Tucker wrote: "If, for
example, congress were to pass a law prohibiting any person
from bearing arms, as a means of preventing insurrections,
the judicial courts, . . . would be able to pronounce
decidedly upon the constitutionality of these means."
Tucker, supra, at 289; 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). Indeed, as Tucker explained, "[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." Tucker, supra, vol. 5, app., n.B,
himself espoused a similarly sacred view on the right to bear
arms for Englishmen, which was most notably codified in the
1689 English Declaration of Rights as the right of
Protestants to "have Arms for their Defense suitable to
their Conditions and as allowed by Law." Bill of Rights
1689, 1 W. & M., c. 2 (Eng.); see also Alden v.
Maine, 527 U.S. 706, 715 (1999) (noting that
Blackstone's works "constituted the preeminent
authority on English law for the founding generation").
As Blackstone explained, the 1689 Declaration enshrined
"the natural right of resistance and
self-preservation" and "the right of having and
using arms for self-preservation and defence." 1 William
Blackstone, Commentaries *144. It followed from Blackstone's
premise that such a right, the predecessor to our Second
Amendment, "was by the time of the founding understood
to be an individual right protecting against both
public and private violence." Heller,
554 U.S. at 594 (emphasis added); see also 2 William
Blackstone, Commentaries on the Laws of England 441
(Edward Christian ed., 1795) ("[E]veryone is at liberty
to keep or carry a gun, if he does not use it for the
[unlawful] destruction of game.").
Heller's historical imperative, we next move to
nineteenth century judicial interpretations of the right to
bear arms, whether as part of the Second Amendment or
analogous state constitutional provisions. See 554
U.S. at 605 ("We now address how the Second Amendment
was interpreted from immediately after its ratification
through the end of the 19th century."). As we will soon
discover, many of the same nineteenth century cases
marshalled in Heller to prove that the Second
Amendment secures an individual right to self-defense reveal
just as persuasively that the Second Amendment must encompass
a right to carry a firearm openly outside the home.
begin with 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 at issue codified a preexisting
right." Nelson Lund, The Second Amendment, Heller,
and Originalist Jurisprudence, 56 UCLA L. Rev. 1343,
1360 (2009). Interpreting Kentucky's Second Amendment
analogue-providing that "the right of the citizens to
bear arms in defense of themselves and the state, shall not
be questioned"-the state's highest court had no
doubt that any law restricting the public carry of firearms
would "import a restraint on the right of the citizens
to bear arms." Bliss, 12 Ky. at 90-92. The
court then invalidated a restriction on the concealed carry
of weapons, despite the availability of open carry, reasoning
that "whatever restrains the full and complete exercise
of [the right to bear arms], though not an entire destruction
of it, is forbidden by the explicit language of the
constitution." See id. The Bliss
court's strict approach to restraints on the
concealed carry of firearms was an outlier in the
Nineteenth Century, see Peruta II, 824 F.3d at 935-
36, and Kentucky did later amend its constitution to allow
the legislature to "pass laws to prevent persons from
carrying concealed arms," Ky. Const. art. XIII, §
25. Nonetheless, the Kentucky constitutional convention left
untouched the premise in Bliss that the right to
bear arms protects open carry.
Tennessee, the state's highest court offered its
interpretation of the right to bear arms eleven years after
Bliss. See Simpson v. State, 13 Tenn. (5
Yer.) 356 (1833), cited in Heller, 554 U.S. at 585
n.9. After he was convicted of disturbing the peace by
appearing armed in public, Simpson faulted the indictment for
failing clearly to require proof of actual violence.
Id. at 357-58. The high court agreed, because-even
assuming that colonial law did not require proof of actual
violence to punish colonists for walking with weapons-the
Tennessee "constitution ha[d] completely abrogated
it." Id. at 360. No such prohibition could
survive the state constitution's grant of "an
express power . . . secured to all the free citizens of the
state to keep and bear arms for their defence, without any
qualification whatever as to their kind or nature."
Id. Absent an act of violence, then, Simpson's
indictment for merely carrying firearms could allege no crime
tolerable to the constitution of Tennessee. See id.
Alabama Supreme Court joined the chorus seven years later.
See State v. Reid, 1 Ala. 612 (1840), cited in
Heller, 554 U.S. at 629. Interpreting the Alabama
"right to bear arms, in defense of self and the
State," the high court declared that an Alabamian must
be permitted some means of carrying a weapon in
public for self-defense. Id. at 615- 16. The court
ultimately upheld a restriction on "the evil practice of
carrying weapons secretly," citing the legislature's
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. But the court made clear where that
power of the legislature ran dry:
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 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.
See id. at 616-17.
Georgia Supreme Court embraced precisely that position six
years later, making explicit what Reid intimated.
See Nunn v. State, 1 Ga. 243 (1846), cited in
Heller, 554 U.S. at 612, 626, 629. There, the Georgia
high court considered a Second Amendment challenge to a
statute creating a misdemeanor for carrying a pistol, either
openly or concealed. Id. at 246. Starting off with a
clear statement of the constitutional guarantee, the court
explained: "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 the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree . . . ."
Id. at 251 (emphasis omitted). And with those Second
Amendment lines properly set, the court held that
Georgia's statute 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 .
Id. (emphasis added). Critically, we must afford
Nunn's understanding of the Second Amendment a
good deal of weight, because, as Heller explains,
"[i]ts opinion perfectly captured the way in which the
operative clause of the Second Amendment furthers the purpose
announced in the prefatory clause." 554 U.S. at 612;
see also O'Shea, supra, at 627
("No case, historic or recent, is discussed more
prominently or positively in Heller than the Georgia
Supreme Court's 1846 decision in Nunn v.
Louisiana Supreme Court soon followed the course set by
Alabama and Georgia. See State v. Chandler, 5 La.
Ann. 489 (1850), cited in Heller, 554 U.S. at 613,
626. The high court first rejected Chandler's Second
Amendment challenge to a Louisiana law prohibiting concealed
carry, reasoning that the law 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. But, in precisely the same manner as
the Nunn and Reid courts, the
Chandler court drew the line which the legislature
could not cross. As the court explained: "[The
prohibition on concealed carry] 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 . . . ."
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").
each of these nineteenth century cases found instructive by
Heller when settling the Second Amendment as an
individual right to self-defense is just as instructive when
evaluating the application of that right outside the home.
While nineteenth century legislatures enjoyed latitude to
regulate the "manner in which arms shall be borne,"
no legislature in these states could, "under the
pretence of regulating," destroy the right to carry
firearms in public altogether. See Reid, 1 Ala. at
616-17. Accordingly, even though our court has read these
cases to exclude concealed carry from the Second
Amendment's protections, see Peruta II, 824 F.3d
at 933-36, the same cases command that the Second Amendment
must encompass a right to open carry.
well aware that there were judicial proponents of a more
limited right to bear ...