Rogers v. Grewal
Rogers v. Grewal
Opinion
Consistent with this guidance, many jurists have concluded that text, history, and tradition are dispositive in determining whether a challenged law violates the right to keep and bear arms. See,
e.g.
,
Mance v. Sessions
,
But, as I have noted before, many courts have resisted our decisions in
Heller
and
McDonald
. See
Silvester
v.
Becerra
, 583 U. S. ----, ----,
*1867
Under this test, courts first ask "whether the challenged law burdens conduct protected by the Second Amendment."
United States v. Chovan
,
This approach raises numerous concerns. For one, the courts of appeals' test appears to be entirely made up. The Second Amendment provides no hierarchy of "core" and peripheral rights. And "[t]he Constitution does not prescribe tiers of scrutiny."
Whole Woman's Health
v.
Hellerstedt
, 579 U. S. ----, ----,
Even accepting this test on its terms, its application has yielded analyses that are entirely inconsistent with
Heller
. There, we cautioned that "[a] constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all," stating that our constitutional rights must be protected "whether or not future legislatures or (yes) even future judges think that scope too broad."
*1868 Whatever one may think about the proper approach to analyzing Second Amendment challenges, it is clearly time for us to resolve the issue.
II
This case also presents the Court with an opportunity to clarify that the Second Amendment protects a right to public carry. While some Circuits have recognized that the Second Amendment extends outside the home, see
Wrenn v. District of Columbia
,
A
The text of the Second Amendment guarantees that "the right of the people to keep and bear Arms, shall not be infringed." As this Court explained in
Heller
, "[a]t the time of the founding, as now, to 'bear' meant to 'carry.' "
"The most natural reading of this definition encompasses public carry."
Peruta
v.
California
, 582 U. S. ----, ----,
*1869 The meaning of the term "bear Arms" is even more evident when read in the context of the phrase "right ... to keep and bear Arms." U. S. Const., Amdt. 2. "To speak of 'bearing' arms solely within one's home ... would conflate 'bearing' with 'keeping,' in derogation of [ Heller 's] holding that the verbs codified distinct rights." Drake , supra , at 444 (Hardiman, J., dissenting); see also Moore , supra , at 936. In short, it would take serious linguistic gymnastics-and a repudiation of this Court's decision in Heller -to claim that the phrase "bear Arms" does not extend the Second Amendment beyond the home.
B
Cases and treatises from England, the founding era, and the antebellum period confirm that the right to bear arms includes the right to carry in public.
1
"[T]he Second Amendment ... codified a
pre-existing
right."
Heller
,
supra
, at 592,
In 1328, during a time of political transition, the English Parliament enacted the Statute of Northampton. The Statute provided that no man was permitted to "bring ... force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere." Statute of Northampton 1328,
From the beginning, the scope of the Statute of Northampton was unclear. Some officers were ordered to arrest all persons that "go armed," regardless of whether the bearer was carrying arms peacefully. See Letter to Mayor and Bailiffs of York (Jan. 30, 1334), in Calendar of the Close Rolls, Edward III, 1333-1337, p. 294 (H. Maxwell-Lyte ed. 1898). Other officers, however, were ordered to arrest only "persons riding or going armed to disturb the peace ." Letter to Keeper and Justices of Northumberland (Oct. 28, 1332), in Calendar of the Close Rolls, Edward III, 1330-1333, p. 610 (H. Maxwell-Lyte ed. 1898) (emphasis added).
Whatever the initial breadth of the statute, it is clear that it was not strictly enforced in the ensuing centuries. To the contrary, "[d]uring most of England's history, maintenance of an armed citizenry was neither merely permissive nor cosmetic but essential" because "[u]ntil late in the seventeenth century England had no standing army, and until the nineteenth century no regular police force." Malcom, The Right of the People To Keep and Bear Arms: The Common Law Tradition,
The religious and political turmoil in England during the 17th century thrust the scope of the Statute of Northampton to the forefront. See J. Malcom, To Keep and Bear Arms 104-105 (1994) (hereinafter Malcolm). King James II, a Catholic monarch, sought to revive the Statute of Northampton as a weapon to disarm his Protestant opponents.
James II's attempts to disarm his opponents continued. Only two weeks after Knight's acquittal, James II ordered general disarmaments of regions inhabited by his Protestant enemies under the auspices of the Game Act of 1671. See Malcom 105-106. As we explained in
Heller
, "[t]hese experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms."
In 1688, James II was deposed in an uprising which came to be known as The Glorious Revolution. Soon thereafter, the English compiled the Declaration of Rights, which contained a list of grievances against James II and sought assurances from William and Mary that Protestants would not be disarmed. See Malcom 115. William and Mary accepted the Declaration of Rights, which was later codified as the English Bill of Rights, agreeing that "the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." 1 Wm. & Mary, ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).
The Statute of Northampton remained in force following the codification of the English Bill of Rights, but the narrow interpretation of the statute adopted in
Sir John Knight's Case
became blackletter law in England. Writing in 1716, Serjeant William Hawkins, author of an influential English treatise, explained that "no wearing of Arms is within the meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify the People; from whence it seems clearly to follow, That Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons." 1 Pleas of the Crown 136 (1716). Theodore Barlow, another legal
*1871
commentator, also explained that "Wearing Arms, if not accompanied with Circumstances of Terror, is not within this Statute; therefore People of Rank and Distinction do not offend by wearing common Weapons." The Justice of Peace: A Treatise Containing the Power and Duty of That Magistrate 12 (1745). Sir William Blackstone concluded the Statute of Northampton banned only the carrying of "dangerous and unusual weapons."
Heller
,
supra
, at 627,
In short, although England may have limited the right to carry in the 14th century, by the time of the founding, the English right was "an individual right protecting against both
public
and private violence."
Heller
,
supra
, at 594,
2
Founding era legal commentators in America also understood the Second Amendment right to "bear Arms" to encompass the right to carry in public.
St. George Tucker, in his 1803 American edition of Blackstone's Commentaries, explained that the right to armed self-defense is the "first law of nature." 1 Blackstone's Commentaries, App. 300. He described "the right of the people to keep and bear arms" as "the true palladium of liberty."
Similarly, William Rawle, a member of the Pennsylvania Assembly that ratified the Bill of Rights, acknowledged the right to carry arms in public. A View of the Constitution of the United States of America 125-126 (1825). Rawle noted that the right should not "be abused to the disturbance of the public peace" and explained that if a man carried arms "attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them," he may be required "to give surety of the peace."
Other commentators took a similar view. James Wilson, a prominent Framer and one of the six original Justices of the Supreme Court, understood founding era law to prohibit only the carrying of "dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people." 2 Lectures on Law, in Collected Works of James Wilson 1138 (K. Hall & M. Hall eds. 2007). Charles Humphreys, a law professor, reiterated "that in this country the constitution guarranties to all persons *1872 the right to bear arms" and that "it can only be a crime to exercise this right in such a manner, as to terrify the people unnecessarily." A Compendium of the Common Law in Force in Kentucky 482 (1822).
3
This view persisted in the early years of the Republic. The majority of the relevant cases during the antebellum period-many of which Heller relied on-support the understanding that the phrase "bear Arms" includes the right to carry in public.
In
Bliss v. Commonwealth
,
Eleven years after
Bliss
, Tennessee's highest court interpreted its State Second Amendment analog in a similar manner in
Simpson v. State
,
In 1840, the Supreme Court of Alabama concluded that, while the legislature could impose limitations on "the manner in which arms shall be borne," it could not bar the right to bear arms in public for self-defense.
State v. Reid
,
Other state courts adopted a similar view. In
Nunn v. State
,
*1873
but that "a prohibition against bearing arms
openly
is in conflict with the Constitution, and void."
These cases show that, with few exceptions, 5 courts in the antebellum period understood the right to bear arms as including the right to carry in public for self-defense.
C
Finally, in the wake of the Civil War, "there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves."
Heller
,
As I have previously explained, "Southern anxiety about an uprising among the newly freed slaves peaked" after the Civil War.
McDonald
,
The Federal Government acknowledged that these abuses violated blacks' fundamental right to carry arms in public. In 1866, a report of the Commissioner of the Freedmen's Bureau recognized that "[t]he civil law [of Kentucky] prohibits the colored man from bearing arms" and concluded that such a restriction infringed "the right of the people to keep and bear arms as provided in the Constitution." H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. Similarly, a circular in a congressional Report acknowledged that "in some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freedmen ... in plain and direct violation of their personal rights [to keep and bear arms] as guaranteed by the Constitution
*1874
of the United States." Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., 229 (1866) (Proposed Circular of Brigadier Gen. R. Saxton). The circular noted the "peaceful and orderly conduct" of freed slaves when carrying arms, as well as their need "to kill game for subsistence, and to protect their crops from destruction by birds and animals," clearly indicating that the bearing of arms occurs in public.
The importance of the right to carry arms in public during Reconstruction and thereafter cannot be overstated. "The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence."
McDonald
,
In short, the text of the Second Amendment and the history from England, the founding era, the antebellum period, and Reconstruction leave no doubt that the right to "bear Arms" includes the individual right to carry in public in some manner.
III
Recognizing that the Constitution protects the right to carry arms in public does not mean that there is a "right to ... carry any weapon whatsoever in any manner whatsoever and for whatever purpose."
Heller
,
It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish "good cause" or a "justifiable need" for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a "[b]a[n] on the ability of most citizens to exercise an enumerated right."
Wrenn
,
*1875
By contrast, the First, Second, Third, and Fourth Circuits have upheld the constitutionality of licensing schemes with "justifiable need" or "good reason" requirements, applying what purported to be an intermediate scrutiny standard. See
Gould
,
"One of this Court's primary functions is to resolve 'important matter[s]' on which the courts of appeals are 'in conflict.' "
Gee
v.
Planned Parenthood of Gulf Coast, Inc.
, 586 U. S. ----, ----,
* * *
This case gives us an opportunity to provide lower courts with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review. Rather than prolonging our decade-long failure to protect the Second Amendment, I would grant this petition.
See,
e.g.
,
Kachalsky v. County of Westchester
,
It is not clear how these courts can apply the made-up sliding scale test without determining the scope of the right. See
Peruta v. County of San Diego
,
At least one scholar has asserted that Sir John Knight was acquitted because he fell within the Statute of Northampton's exception for the "King's Officers and Ministers." Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review,
Lower courts looking to historical practice have concluded that, even in these circumstances, if a surety was provided or the accused was exempt from providing a surety, he could continue to bear arms in public.
Wrenn v. District of Columbia
,
In
State v. Buzzard
,
Although these discussions occurred well after the ratification of the Bill of Rights,
Heller
treated them as "instructive" in determining the meaning of the Second Amendment.
A panel of the Ninth Circuit, in an exhaustive and scholarly opinion, also held that a law violated the Second Amendment by limiting public carry to those with " 'urgency,' " " 'need,' " or a " 'reason to fear injury.' "
Young
, 896 F.3d, at 1048. That decision, however, was vacated when a majority of the active judges on the Ninth Circuit voted to grant en banc review. See
Reference
- Full Case Name
- Thomas ROGERS, Et Al. v. Gurbir GREWAL, Attorney General of New Jersey, Et Al.
- Status
- among other things
- Syllabus
- 130 S.Ct. 3020