818 Fed. Appx. 99, reversed and remanded.
Supreme Court Docket No. 20–843. Argued November 3, 2021 — Decided June 23, 2022
SUPREME COURT OF THE UNITED STATES
The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to
have and carry a concealed
pistol or revolver if he can prove that
proper cause exists for doing so. N. Y. Penal Law Ann. §400.00(2)(f). An applicant satisfies the
proper cause requirement only if he can
demonstrate a special need for self-protection distinguishable from that of the general community. E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257.
Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the
proper cause requirement. Petitioners then sued respondents — state officials who oversee the processing of licensing applications — for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior decision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was
substantially related to the achievement of an important governmental interest. Id., at 96.
Held: New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. Pp. 8–63.
(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. Under Heller, when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and 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 rejects that two-part approach as having one step too many. Step one is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny. Pp. 9–15.
(2) Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to
make difficult empirical judgments about
the costs and benefits of firearms restrictions, especially given their
lack [of] expertise in the field. McDonald, 561 U. S., at 790–791 (plurality opinion). Federal courts tasked with making difficult empirical judgments regarding firearm regulations under the banner of
intermediate scrutiny often defer to the determinations of legislatures. While 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, and it
surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense. Heller, 554 U. S., at 635. 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. Of course, the regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. But the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated, even though its meaning is fixed according to the understandings of those who ratified it. See, e.g., United States v. Jones, 565 U. S. 400, 404–405. Indeed, the Court recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to
arms does not apply
only [to] those arms in existence in the 18th century. 554 U. S., at 582.
To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least 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. Because
individual self-defense is ‘the central component’ of the Second Amendment right, these two metrics are
central considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).
To be clear, even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. For example, courts can use analogies to
laws forbidding the carrying of firearms in sensitive places such as schools and government buildings to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a
sensitive-place law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a
sensitive place simply because it is crowded and protected generally by the New York City Police Department. 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) It is undisputed that petitioners Koch and Nash — two ordinary, law-abiding, adult citizens — are part of
the people whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons
in common use today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct — carrying handguns publicly for self-defense. 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. Moreover, the Second Amendment guarantees an
individual right to possess and carry weapons in case of confrontation, id., at 592, and confrontation can surely take place outside the home. Pp. 23–24.
(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. To do so, respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. But when it comes to interpreting the Constitution, not all history is created equal.
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them. Heller, 554 U. S., at 634–635. The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Pp. 24–62.
(i) Respondents’ substantial reliance on English history and custom before the founding makes some sense given Heller’s statement that the Second Amendment
codified a right ‘inherited from our English ancestors.’ 554 U. S., at 599. But the Court finds that history ambiguous at best and sees little reason to think that the Framers would have thought it applicable in the New World. 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. While the Court doubts that just three colonial regulations could suffice to show a tradition of public-carry regulation, even looking at these laws on their own terms, the Court is not convinced that they regulated public carry akin to the New York law at issue. The statutes essentially prohibited bearing arms in a way that spread
terror among the people, including by carrying of
dangerous and unusual weapons. See 554 U. S., at 627. Whatever the likelihood that handguns were considered
dangerous and unusual during the colonial period, they are today
the quintessential self-defense weapon. Id., at 629. Thus, these colonial laws provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. Pp. 37–42.
(iii) Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and
surety statutes. None of these restrictions imposed a substantial burden on public carry analogous to that imposed by New York’s restrictive licensing regime.
Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of
affray or going armed
to the terror of the people continued to impose some limits on firearm carry in the antebellum period. But there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.
Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. But the antebellum state-court decisions upholding them evince a consensus view that States could not altogether prohibit the public carry of arms protected by the Second Amendment or state analogues.
Surety Statutes. In the mid-19th century, many jurisdictions began adopting laws that required certain individuals to post bond before carrying weapons in public. Contrary to respondents’ position, these surety statutes in no way represented direct precursors to New York’s proper-cause requirement. 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. Mass. Rev. Stat., ch. 134, §16 (1836). Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee.
In sum, the historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but 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. The
discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves, Heller, 554 U. S., at 614, generally demonstrates that during Reconstruction the right to keep and bear arms had limits that were consistent with a right of the public to peaceably carry handguns for self-defense. The Court acknowledges two Texas cases — English v. State, 35 Tex. 473 and State v. Duke, 42 Tex. 455 — that approved a statutory
reasonable grounds standard for public carry analogous to New York’s proper-cause requirement. But these decisions were outliers and therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. See Heller, 554 U. S., at 632. Pp. 52–58.
(v) Finally, respondents point to the slight uptick in gun regulation during the late-19th century. As the Court suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. See Heller, 554 U. S., at 614. Moreover, these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform
the origins and continuing significance of the Amendment. Ibid.; see also The Federalist No. 37, p. 229. Finally, these territorial restrictions deserve little weight because they were, consistent with the transitory nature of territorial government, short lived. Some were held unconstitutional shortly after passage, and others did not survive a Territory’s admission to the Union as a State. Pp. 58–62.
(vi) After reviewing the Anglo-American history of public carry, the Court concludes that respondents have not met their burden to identify an American tradition justifying New York’s proper-cause requirement. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor have they generally required law-abiding, responsible citizens to
demonstrate a special need for self-protection distinguishable from that of the general community to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428 N. Y. S. 2d, at 257. P. 62.
(c) The constitutional right to bear arms in public for self-defense is not
a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public. Pp. 62–63.
818 Fed. Appx. 99, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Alito, J., filed a concurring opinion. Kavanaugh, J., filed a concurring opinion, in which Roberts, C. J., joined. Barrett, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.
Justice Thomas delivered the opinion of the Court.
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. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.
The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But 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.
New York State has regulated the public carry of handguns at least since the early 20th century. In 1905, New York made it a misdemeanor for anyone over the age of 16 to
have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license … issued to him by a police magistrate. 1905 N. Y. Laws ch. 92, §2, pp. 129–130; see also 1908 N. Y. Laws ch. 93, §1, pp. 242–243 (allowing justices of the peace to issue licenses). In 1911, New York’s
Sullivan Law expanded the State’s criminal prohibition to the possession of all handguns — concealed or otherwise — without a government-issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could
issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon only if that person proved
good moral character and
proper cause. 1913 N. Y. Laws ch. 608, §1, p. 1629.
Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess
any firearm without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West 2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and (3)(b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Meanwhile, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to 15 years in prison. §§265.03(3) (West 2017), 70.00(2)(c) and (3)(b), 80.00(1)(a).
A license applicant who wants to possess a firearm at home (or in his place of business) must convince a
licensing officer — usually a judge or law enforcement officer — that, among other things, he is of good moral character, has no history of crime or mental illness, and that
no good cause exists for the denial of the license. §§400.00(1)(a)–(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to
have and carry a concealed
pistol or revolver. §400.00(2)(f ). To secure that license, the applicant must prove that
proper cause exists to issue it. Ibid. 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. See, e.g., In re O’Brien, 87 N. Y. 2d 436, 438–439, 663 N. E. 2d 316, 316–317 (1996); Babernitz v. Police Dept. of City of New York, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d 309, 311 (1978); In re O’Connor, 154 Misc. 2d 694, 696–698, 585 N. Y. S. 2d 1000, 1003 (Westchester Cty. 1992).
No New York statute defines
proper cause. But New York courts have held that an applicant shows proper cause only if he can
demonstrate a special need for self-protection distinguishable from that of the general community. E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This
special need standard is demanding. For example, living or working in an area
noted for criminal activity does not suffice. In re Bernstein, 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence
of particular threats, attacks or other extraordinary danger to personal safety. In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of
extraordinary personal danger, documented by proof of recurrent threats to life or safety (quoting 38 N. Y. C. R. R. §5–03(b))).
When a licensing officer denies an application, judicial review is limited. New York courts defer to an officer’s application of the proper-cause standard unless it is
arbitrary and capricious. In re Bando, 290 App. Div. 2d 691, 692, 735 N. Y. S. 2d 660, 661 (2002). In other words, the decision
must be upheld if the record shows a rational basis for it. Kaplan, 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The rule leaves applicants little recourse if their local licensing officer denies a permit.
New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States — 43 by our count — are
shall issue jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.1 Meanwhile, only six States and the District of Columbia have
may issue licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the
proper cause standard.2 All of these
proper cause analogues have been upheld by the Courts of Appeals, save for the District of Columbia’s, which has been permanently enjoined since 2017. Compare Gould v. Morgan, 907 F. 3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester, 701 F. 3d 81, 101 (CA2 2012); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013); United States v. Masciandaro, 638 F. 3d 458, 460 (CA4 2011); Young v. Hawaii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017).
As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members.
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. The officer reiterated that Nash’s existing license permitted him
to carry concealed for purposes of off road back country, outdoor activities similar to hunting, such as
fishing, hiking & camping etc. App. 41. But, at the same time, the officer emphasized that the restrictions were
intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public. Ibid.
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. Id., at 114.
Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. 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. See 818 Fed. Appx. 99, 100 (CA2 2020). Both courts relied on the Court of Appeals’ prior decision in Kachalsky, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was
substantially related to the achievement of an important governmental interest. Id., at 96.
We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution. 593 U. S. ___ (2021).
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 doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. 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. 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. Konigsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).3
Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. 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 (CA7 2019) (internal quotation marks omitted). But see United States v. Boyd, 999 F. 3d 171, 185 (CA3 2021) (requiring claimant to show
a burden on conduct falling within the scope of the Second Amendment’s guarantee). The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. E.g., United States v. Focia, 869 F. 3d 1269, 1285 (CA11 2017). 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) (internal quotation marks omitted). But if the historical evidence at this step is
inconclusive or suggests that the regulated activity is not categorically unprotected, the courts generally proceed to step two. Kanter, 919 F. 3d, at 441 (internal quotation marks omitted).
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. (internal quotation marks omitted). 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 (emphasis added). But see Wrenn, 864 F. 3d, at 659 (
[T]he Amendment’s core generally covers carrying in public for self defense). 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) (internal quotation marks omitted). 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. See Brief for Respondents 37; Brief for United States as Amicus Curiae 4.
Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. 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.
To show why Heller does not support applying means-end scrutiny, we first summarize Heller’s methodological approach to the Second Amendment.
In Heller, we began with a
textual analysis focused on the
normal and ordinary meaning of the Second Amendment’s language. 554 U. S., at 576–577, 578. That analysis suggested that the Amendment’s operative clause —
the right of the people to keep and bear Arms shall not be infringed —
guarantee[s] the individual right to possess and carry weapons in case of confrontation that does not depend on service in the militia. Id., at 592.
From there, we assessed whether our initial conclusion was
confirmed by the historical background of the Second Amendment. Ibid. We looked to history because
it has always been widely understood that the Second Amendment … codified a pre-existing right. Ibid. The Amendment
was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors. Id., at 599 (alterations and internal quotation marks omitted). After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found
no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Id., at 595.
We then canvassed the historical record and found yet further confirmation. That history included the
analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment, id., at 600–601, and
how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century, id., at 605. When the principal dissent charged that the latter category of sources was illegitimate
postenactment legislative history, id., at 662, n. 28 (opinion of Stevens, J.), we clarified that
examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification was
a critical tool of constitutional interpretation, id., at 605 (majority opinion).
In assessing the postratification history, we looked to four different types of sources. First, we reviewed
[t]hree important founding-era legal scholars [who] interpreted the Second Amendment in published writings. Ibid. Second, we looked to
19th-century cases that interpreted the Second Amendment and found that they
universally support an individual right to keep and bear arms. Id., at 610. Third, we examined the
discussion of the Second Amendment in Congress and in public discourse after the Civil War,
as people debated whether and how to secure constitutional rights for newly freed slaves. Id., at 614. Fourth, we considered how post-Civil War commentators understood the right. See id., at 616–619.
After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that,
[l]ike most rights, the right secured by the Second Amendment is not unlimited. Id., at 626.
From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Ibid. For example, we found it
fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ that the Second Amendment protects the possession and use of weapons that are
in common use at the time. Id., at 627 (first citing 4 W. Blackstone, Commentaries on the Laws of England 148–149 (1769); then quoting United States v. Miller, 307 U. S. 174, 179 (1939)). That said, we cautioned that we were not
undertak[ing] an exhaustive historical analysis today of the full scope of the Second Amendment and moved on to considering the constitutionality of the District of Columbia’s handgun ban. 554 U. S., at 627.
We assessed the lawfulness of that handgun ban by scrutinizing whether it comported with history and tradition. Although we noted that the ban
would fail constitutional muster
[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, id., at 628–629, we did not engage in means-end scrutiny when resolving the constitutional question. Instead, we focused on the historically unprecedented nature of the District’s ban, observing that
[f]ew laws in the history of our Nation have come close to [that] severe restriction. Id., at 629. Likewise, when one of the dissents attempted to justify the District’s prohibition with
founding-era historical precedent, including
various restrictive laws in the colonial period, we addressed each purported analogue and concluded that they were either irrelevant or
d[id] not remotely burden the right of self-defense as much as an absolute ban on handguns. Id., at 631–632; see id., at 631–634. Thus, our earlier historical analysis sufficed to show that the Second Amendment did not countenance a
complete prohibition on the use of
the most popular weapon chosen by Americans for self-defense in the home. Id., at 629.
As the foregoing shows, Heller’s methodology centered on constitutional text and history. Whether it came to defining the character of the right (individual or militia dependent), suggesting the outer limits of the right, or assessing the constitutionality of a particular regulation, Heller relied on text and history. It did not invoke any means-end test such as strict or intermediate scrutiny.
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)); see also McDonald, 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit — let alone require —
judges to assess the costs and benefits of firearms restrictions under means-end scrutiny). We declined to engage in means-end scrutiny because
[t]he 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. Heller, 554 U. S., at 634. We then concluded:
A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Ibid.
Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt. Dissenting in Heller, Justice Breyer’s proposed standard —
ask[ing] whether [a] 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, id., at 689–690 (dissenting opinion) — simply expressed a classic formulation of intermediate scrutiny in a slightly different way, see Clark v. Jeter, 486 U. S. 456, 461 (1988) (asking whether the challenged law is
substantially related to an important government objective). In fact, Justice Breyer all but admitted that his Heller dissent advocated for intermediate scrutiny by repeatedly invoking a quintessential intermediate-scrutiny precedent. See Heller, 554 U. S., at 690, 696, 704–705 (citing Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997)). Thus, when Heller expressly rejected that dissent’s
interest-balancing inquiry, 554 U. S., at 634 (internal quotation marks omitted), it necessarily rejected intermediate scrutiny.5
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.
This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U. S., at 582, 595, 606, 618, 634–635. In that context,
[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections. See, e.g., United States v. Stevens, 559 U. S. 460, 468–471 (2010) (placing the burden on the government to show that a type of speech belongs to a
historic and traditional categor[y] of constitutionally unprotected speech
long familiar to the bar (internal quotation marks omitted)).
And beyond the freedom of speech, our focus on history also comports with how we assess many other constitutional claims. If a litigant asserts the right in court to
be confronted with the witnesses against him, U. S. Const., Amdt. 6, we require courts to consult history to determine the scope of that right. See, e.g., Giles v. California, 554 U. S. 353, 358 (2008) (
admitting only those exceptions [to the Confrontation Clause] established at the time of the founding (internal quotation marks omitted)). Similarly, when a litigant claims a violation of his rights under the Establishment Clause, Members of this Court
loo[k] to history for guidance. American Legion v. American Humanist Assn., 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 25). We adopt a similar approach here.
To be sure,
[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it. McDonald, 561 U. S., at 803–804 (Scalia, J., concurring). But reliance on history to inform the meaning of constitutional text — especially text meant to codify a pre-existing right — is, in our view, more legitimate, and more administrable, than asking judges to
make difficult empirical judgments about
the costs and benefits of firearms restrictions, especially given their
lack [of] expertise in the field. Id., at 790–791 (plurality opinion).6
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of
intermediate scrutiny often defer to the determinations of legislatures. 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 and it
surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense. Heller, 554 U. S., at 635. It is this balance — struck by the traditions of the American people — that demands our unqualified deference.
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. In some cases, that inquiry will be fairly straightforward. 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. 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. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.
Heller itself exemplifies this kind of straightforward historical inquiry. One of the District’s regulations challenged in Heller
totally ban[ned] handgun possession in the home. Id., at 628. The District in Heller addressed a perceived societal problem — firearm violence in densely populated communities — and it employed a regulation — a flat ban on the possession of handguns in the home — that the Founders themselves could have adopted to confront that problem. Accordingly, after considering
founding-era historical precedent, including
various restrictive laws in the colonial period, and finding that none was analogous to the District’s ban, Heller concluded that the handgun ban was unconstitutional. Id., at 631; see also id., at 634 (describing the claim that
there were somewhat similar restrictions in the founding period a
New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller:
handgun violence, primarily in
urban area[s]. Ibid. Following the course charted by Heller, we will consider whether
historical precedent from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, infra.
While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution — and a Second Amendment —
intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. McCulloch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012) (holding that installation of a tracking device was
a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted).
We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to
arms does not apply
only [to] those arms in existence in the 18th century. 554 U. S., at 582.
Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Ibid. (citations omitted). 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. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy — a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are
relevantly similar. C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because
[e]verything is similar in infinite ways to everything else, id., at 774, one needs
some metric enabling the analogizer to assess which similarities are important and which are not, F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is
things that are green. See ibid. They are not relevantly similar if the applicable metric is
things you can wear.
While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, 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. As we stated in Heller and repeated in McDonald,
individual self-defense is ‘the central component’ of the Second Amendment right. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599); see also id., at 628 (
the inherent right of self-defense has been central to the Second Amendment right). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are
central considerations when engaging in an analogical inquiry. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).7
To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not
uphold every modern law that remotely resembles a historical analogue, because doing so
risk[s] endorsing outliers that our ancestors would never have accepted. Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.
Consider, for example, Heller’s discussion of
laws forbidding the carrying of firearms in sensitive places such as schools and government buildings. 554 U. S., at 626. 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. See D. Kopel & J. Greenlee, The
Sensitive Places Doctrine, 13 Charleston L. Rev. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were
sensitive places where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of
sensitive places to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
Although we have no occasion to comprehensively define
sensitive places in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a
sensitive-place law. In their 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. Brief for Respondents 34. It is true that people sometimes congregate in
sensitive places, and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of
sensitive places simply to all places of public congregation that are not isolated from law enforcement defines the category of
sensitive places far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. See Part III–B, infra. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a
sensitive place simply because it is crowded and protected generally by the New York City Police Department.
Like Heller, we
do not undertake an exhaustive historical analysis … of the full scope of the Second Amendment. 554 U. S., at 626. And we acknowledge that
applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins. Heller v. District of Columbia, 670 F. 3d 1244, 1275 (CADC 2011) (Kavanaugh, J., dissenting).
But that is hardly unique to the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution. Ibid. We see no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims.
Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement.
It is undisputed that petitioners Koch and Nash — two ordinary, law-abiding, adult citizens — are part of
the people whom the Second Amendment protects. See Heller, 554 U. S., at 580. Nor does any party dispute that handguns are weapons
in common use today for self-defense. See id., at 627; see also Caetano, 577 U. S., at 411–412. 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.
We have little difficulty concluding that it does. Respondents do not dispute this. See Brief for Respondents 19. Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the
textual elements of the Second Amendment’s operative clause —
the right of the people to keep and bear Arms, shall not be infringed —
guarantee the individual right to possess and carry weapons in case of confrontation. 554 U. S., at 592. 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. Id., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted).
This definition of
bear naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often
keep firearms in their home, at the ready for self-defense, most do not
bear (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to
bear arms to the home would nullify half of the Second Amendment’s operative protections.
Moreover, confining the right to
bear arms to the home would make little sense given that self-defense is
the central component of the [Second Amendment] right itself. Heller, 554 U. S., at 599; see also McDonald, 561 U. S., at 767. After all, the Second Amendment guarantees an
individual right to possess and carry weapons in case of confrontation, Heller, 554 U. S., at 592, and confrontation can surely take place outside the home.
Although we remarked in Heller that the need for armed self-defense is perhaps
most acute in the home, id., at 628, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012) (
[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower). The text of the Second Amendment reflects that reality.
The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to
bear arms in public for self-defense.
Conceding that the Second Amendment guarantees a general right to public carry, contra, Young, 992 F. 3d, at 813, 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, Brief for Respondents 19 (citation omitted).8 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. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct.
Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these periods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.
We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal.
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). The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to
reac[h] back to the 14th century for English practices that
prevailed up to the ‘period immediately before and after the framing of the Constitution.’ Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 311 (2008) (Roberts, C. J., dissenting). It is quite another to rely on an
ancient practice that had become
obsolete in England at the time of the adoption of the Constitution and never
was acted upon or accepted in the colonies. Dimick v. Schiedt, 293 U. S. 474, 477 (1935).
As with historical evidence generally, courts must be careful when assessing evidence concerning English common-law rights. The common law, of course, developed over time. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 533, n. 28 (1983); see also Rogers v. Tennessee, 532 U. S. 451, 461 (2001). And English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution. Even
the words of Magna Charta — foundational as they were to the rights of America’s forefathers —
stood for very different things at the time of the separation of the American Colonies from what they represented originally in 1215. Hurtado v. California, 110 U. S. 516, 529 (1884). Sometimes, in interpreting our own Constitution,
it [is] better not to go too far back into antiquity for the best securities of our liberties, Funk v. United States, 290 U. S. 371, 382 (1933), unless evidence shows that medieval law survived to become our Founders’ law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice.
Similarly, we must also guard against giving postenactment history more weight than it can rightly bear. It is true that in Heller we reiterated that evidence of
how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century represented a
critical tool of constitutional interpretation. 554 U. S., at 605. We therefore examined
a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its … ratification. Ibid. And, in other contexts, we have explained that
‘a regular course of practice’ can ‘liquidate & settle the meaning of ’ disputed or indeterminate ‘terms & phrases’ in the Constitution. Chiafalo v. Washington, 591 U. S. ___, ___ (2020) (slip op., at 13) (quoting Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)); see also, e.g., Houston Community College System v. Wilson, 595 U. S. ___, ___ (2022) (slip op., at 5) (same); The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison); see generally C. Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). In other words, we recognize that
where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision. NLRB v. Noel Canning, 573 U. S. 513, 572 (2014) (Scalia, J., concurring in judgment); see also Myers v. United States, 272 U. S. 52, 174 (1926); Printz v. United States, 521 U. S. 898, 905 (1997).
But to the extent later history contradicts what the text says, the text controls.
‘[L]iquidating’ indeterminacies in written laws is far removed from expanding or altering them. Gamble v. United States, 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 13); see also Letter from J. Madison to N. Trist (Dec. 1831), in 9 Writings of James Madison 477 (G. Hunt ed. 1910). 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. Heller, 670 F. 3d, at 1274, n. 6 (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip op., at 15).
As we recognized in Heller itself, because post-Civil War discussions of the right to keep and bear arms
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. 554 U. S., at 614; cf. Sprint Communications Co., 554 U. S., at 312 (Roberts, C. J., dissenting) (
The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787]). And we made clear in Gamble that Heller’s interest in mid- to late-19th-century commentary was secondary. Heller considered this evidence
only after surveying what it regarded as a wealth of authority for its reading — including the text of the Second Amendment and state constitutions. Gamble, 587 U. S., at ___ (majority opinion) (slip op., at 23). In other words, this 19th-century evidence was
treated as mere confirmation of what the Court thought had already been established. Ibid.
A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government. See, e.g., Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (slip op., at 7); Timbs v. Indiana, 586 U. S. ___, ___–___ (2019) (slip op., at 2–3); Malloy v. Hogan, 378 U. S. 1, 10–11 (1964). 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. See, e.g., Crawford v. Washington, 541 U. S. 36, 42–50 (2004) (Sixth Amendment); Virginia v. Moore, 553 U. S. 164, 168–169 (2008) (Fourth Amendment); Nevada Comm’n on Ethics v. Carrigan, 564 U. S. 117, 122–125 (2011) (First Amendment).
We also acknowledge that there is an 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 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g., A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (manuscript, at 2) (
When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings). 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.
With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. 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. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.9 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.
Respondents’ substantial reliance on English history and custom before the founding makes some sense given our statement in Heller that the Second Amendment
codified a right ‘inherited from our English ancestors.’ 554 U. S., at 599 (quoting Robertson v. Baldwin, 165 U. S. 275, 281 (1897)); see also Smith v. Alabama, 124 U. S. 465, 478 (1888). But this Court has long cautioned that the English common law
is not to be taken in all respects to be that of America. Van Ness v. Pacard, 2 Pet. 137, 144 (1829) (Story, J., for the Court); see also Wheaton v. Peters, 8 Pet. 591, 659 (1834); Funk, 290 U. S., at 384. Thus,
[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted, not as they existed in the Middle Ages. Ex parte Grossman, 267 U. S. 87, 108–109 (1925) (emphasis added); see also United States v. Reid, 12 How. 361, 363 (1852).
We interpret the English history that respondents and the United States muster in light of these interpretive principles. We find that history ambiguous at best and see little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.
To begin, respondents and their amici point to several medieval English regulations from as early as 1285 that they say indicate a longstanding tradition of restricting the public carry of firearms. See 13 Edw. 1, 102. The most prominent is the 1328 Statute of Northampton (or Statute), passed shortly after Edward II was deposed by force of arms and his son, Edward III, took the throne of a kingdom where
tendency to turmoil and rebellion was everywhere apparent throughout the realm. N. Trenholme, The Risings in the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650, 651 (1901). At the time,
[b]ands of malefactors, knights as well as those of lesser degree, harried the country, committing assaults and murders, prompted by a more general
spirit of insubordination that led to a
decay in English national life. K. Vickers, England in the Later Middle Ages 107 (1926).
The Statute of Northampton was, in part,
a product of … the acute disorder that still plagued England. A. Verduyn, The Politics of Law and Order During the Early Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993). It provided that, with some exceptions, Englishmen could not
come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no 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, 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).
Respondents argue that the prohibition on
go[ing] … armed was a sweeping restriction on public carry of self-defense weapons that would ultimately be adopted in Colonial America and justify onerous public-carry regulations. Notwithstanding the ink the parties spill over this provision, the Statute of Northampton — at least as it was understood during the Middle Ages — has little bearing on the Second Amendment adopted in 1791. The Statute of Northampton was enacted nearly 20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment.
The Statute’s prohibition on going or riding
armed obviously did not contemplate handguns, given they did not appear in Europe until about the mid-1500s. See K. Chase, Firearms: A Global History to 1700, p. 61 (2003). Rather, it appears to have been centrally concerned with the wearing of armor. See, e.g., Calendar of the Close Rolls, Edward III, 1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed. 1898); id., at 243 (May 28, 1331); id., Edward III, 1327–1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond armor, it applied to such weapons as the
launcegay, a 10- to 12-foot-long lightweight lance. See 7 Rich. 2 c. 13 (1383); 20 Rich. 2 c. 1 (1396).
The Statute’s apparent focus on armor and, perhaps, weapons like launcegays makes sense given that armor and lances were generally worn or carried only when one intended to engage in lawful combat or — as most early violations of the Statute show — to breach the peace. See, e.g., Calendar of the Close Rolls, Edward III, 1327–1330, at 402 (July 7, 1328); id., Edward III, 1333–1337, at 695 (Aug. 18, 1336) (1898). Contrast these arms with daggers. In the medieval period,
[a]lmost everyone carried a knife or a dagger in his belt. H. Peterson, Daggers and Fighting Knives of the Western World 12 (2001). While these knives were used by knights in warfare,
[c]ivilians wore them for self-protection, among other things. Ibid. Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns.
When handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression. For example, Henry VIII issued several proclamations decrying the proliferation of handguns, and Parliament passed several statutes restricting their possession. See, e.g., 6 Hen. 8 c. 13, §1 (1514); 25 Hen. 8 c. 17, §1 (1533); 33 Hen. 8 c. 6 (1541); Prohibiting Use of Handguns and Crossbows (Jan. 1537), in 1 Tudor Royal Proclamations 249 (P. Hughes & J. Larkin eds. 1964). But Henry VIII’s displeasure with handguns arose not primarily from concerns about their safety but rather their inefficacy. Henry VIII worried that handguns threatened Englishmen’s proficiency with the longbow — a weapon many believed was crucial to English military victories in the 1300s and 1400s, including the legendary English victories at Crécy and Agincourt. See R. Payne-Gallwey, The Crossbow 32, 34 (1903); L. Schwoerer, Gun Culture in Early Modern England 54 (2016) (Schwoerer).
Similarly, James I considered small handguns — called dags —
utterly unserviceable for defence, Militarie practise, or other lawful use. A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols (R. Barker printer 1616). 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.
When we look to the latter half of the 17th century, respondents’ case only weakens. As in Heller, we consider this history
[b]etween the [Stuart] Restoration [in 1660] and the Glorious Revolution [in 1688] to be particularly instructive. 554 U. S., at 592. During that time, the Stuart Kings Charles II and James II ramped up efforts to disarm their political opponents, an experience that
caused Englishmen … to be jealous of their arms. Id., at 593.
In one notable example, the government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly
did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects. Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Holt explained that the Statute of Northampton had
almost gone in desuetudinem, Rex v. Sir John Knight, 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse.10 And the Chief Justice further explained that the act of
go[ing] armed to terrify the King’s subjects was
a great offence at the common law and that the Statute of Northampton
is but an affirmance of that law. 3 Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added). Thus, one’s conduct
will come within the Act, — i.e., would terrify the King’s subjects — only
where the crime shall appear to be malo animo, 1 Comb., at 39, 90 Eng. Rep., at 330, with evil intent or malice. Knight was ultimately acquitted by the jury.11
Just three years later, Parliament responded by writing the
predecessor to our Second Amendment into the 1689 English Bill of Rights, Heller, 554 U. S., at 593, guaranteeing that
Protestants … may have Arms for their Defence suitable to their Conditions, and as allowed by Law, 1 Wm. & Mary c. 2, §7, in 3 Eng. Stat. at Large 417 (1689). Although this right was initially limited — it was restricted to Protestants and held only against the Crown, but not Parliament — it represented a watershed in English history. Englishmen had
never before claimed … the right of the individual to arms. Schwoerer 156.12 And as that individual right matured,
by the time of the founding, the right to keep and bear arms was
understood to be an individual right protecting against both public and private violence. Heller, 554 U. S., at 594.
To be sure, the Statute of Northampton survived both Sir John Knight’s Case and the English Bill of Rights, but it was no obstacle to public carry for self-defense in the decades leading to the founding. Serjeant William Hawkins, in his widely read 1716 treatise, confirmed 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. 1 Pleas of the Crown 136. To illustrate that proposition, Hawkins noted as an example that
Persons of Quality were
in no Danger of Offending against this Statute by wearing common Weapons because, in those circumstances, it would be clear that they had no
Intention to commit any Act of Violence or Disturbance of the Peace. Ibid.; see also T. Barlow, The Justice of Peace 12 (1745). Respondents do not offer any evidence showing that, in the early 18th century or after, the mere public carrying of a handgun would terrify people. In fact, the opposite seems to have been true. As time went on,
domestic gun culture [in England] softened any
terror that firearms might once have conveyed. Schwoerer 4. Thus, whatever place handguns had in English society during the Tudor and Stuart reigns, by the time we reach the 18th century — and near the founding — they had gained a fairly secure footing in English culture.
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.
Respondents next point us to the history of the Colonies and early Republic, but there is little evidence of an early American practice of regulating public carry by the general public. This should come as no surprise — English subjects founded the Colonies at about the time England had itself begun to eliminate restrictions on the ownership and use of handguns.
In the colonial era, respondents point to only three restrictions on public carry. For starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation. In any event, even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us.
Two of the statutes were substantively identical. 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. 1692 Mass. Acts and Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being
armed offensively meant bearing any offensive weapons, including firearms. See Brief for Respondents 33. In particular, respondents’ amici argue that
offensive arms in the 1600s and 1700s were what Blackstone and others referred to as
dangerous or unusual weapons, Brief for Professors of History and Law as Amici Curiae 7 (quoting 4 Blackstone, Commentaries, at 148–149), a category that they say included firearms, see also post, at 40–42 (Breyer, J., dissenting).
Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. See supra, at 34–37. For instance, the Massachusetts statute proscribed
go[ing] armed Offensively … in Fear or Affray of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s. Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Holt in Sir John Knight’s Case indicated that the English common law did not do so.
Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today. At most, respondents can show that colonial legislatures sometimes prohibited the carrying of
dangerous and unusual weapons — a fact we already acknowledged in Heller. See 554 U. S., at 627. Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those
in common use at the time, as opposed to those that
are highly unusual in society at large. Ibid. (internal quotation marks omitted). Whatever the likelihood that handguns were considered
dangerous and unusual during the colonial period, they are indisputably in
common use for self-defense today. They are, in fact,
the quintessential self-defense weapon. Id., at 629. 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.
The third statute invoked by respondents was enacted in 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. An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions). These restrictions do not meaningfully support respondents. The law restricted only concealed carry, not all public carry, and its restrictions applied only to certain
unusual or unlawful weapons, including
pocket pistol[s]. Ibid. It also did not apply to all pistols, let alone all firearms.
Pocket pistols had barrel lengths of perhaps 3 or 4 inches, far smaller than the 6-inch to 14-inch barrels found on the other belt and hip pistols that were commonly used for lawful purposes in the 1600s. J. George, English Pistols and Revolvers 16 (1938); see also, e.g., 14 Car. 2 c. 3, §20 (1662); H. Peterson, Arms and Armor in Colonial America, 1526–1783, p. 208 (1956) (Peterson). Moreover, the law prohibited only the concealed carry of pocket pistols; it presumably did not by its terms touch the open carry of larger, presumably more common pistols, except as to
planters.13 In colonial times, a
planter was simply a farmer or plantation owner who settled new territory. R. Lederer, Colonial American English 175 (1985); New Jersey State Archives, J. Klett, Using the Records of the East and West Jersey Proprietors 31 (rev. ed. 2014). While the reason behind this singular restriction is not entirely clear, planters may have been targeted because colonial-era East New Jersey was riven with
strife and excitement between planters and the Colony’s proprietors
respecting titles to the soil. See W. Whitehead, East Jersey Under the Proprietary Governments 150–151 (rev. 2d ed. 1875); see also T. Gordon, The History of New Jersey 49 (1834).
In any event, we cannot put meaningful weight on this solitary statute. First, although the
planter restriction may have prohibited the public carry of pistols, it did not prohibit planters from carrying long guns for self-defense — including the popular musket and carbine. See Peterson 41. Second, it does not appear that the statute survived for very long. By 1694, East New Jersey provided that no slave
be permitted to carry any gun or pistol … into the woods, or plantations unless their owner accompanied them. Grants and Concessions 341. If slave-owning planters were prohibited from carrying pistols, it is hard to comprehend why slaves would have been able to carry them in the planter’s presence. Moreover, there is no evidence that the 1686 statute survived the 1702 merger of East and West New Jersey. See 1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1752). At most eight years of history in half a Colony roughly a century before the founding sheds little light on how to properly interpret the Second Amendment.
Respondents next direct our attention to three late-18th-century and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that
no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country. Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).14 A Massachusetts statute from 1795 commanded justices of the peace to arrest
all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth. 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would
publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person to post a surety; otherwise, his continued violation of the law would be
punished as for a breach of the peace, or riot at common law. 1801 Tenn. Acts pp. 260–261.
A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads
terror among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra, at 34–35. Respondents give us no reason to think that the founding generation held a different view. 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.
Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and
surety statutes. None of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime.
Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of
affray or going armed
to the terror of the people continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.
For example, the Tennessee attorney general once charged a defendant with the common-law offense of affray, arguing that the man committed the crime when he
arm[ed] himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people. Simpson v. State, 13 Tenn. 356, 358 (1833). More specifically, the indictment charged that Simpson
with force and arms being arrayed in a warlike manner … unlawfully, and to the great terror and disturbance of divers good citizens, did make an affray. Id., at 361. The Tennessee Supreme Court quashed the indictment, holding that the Statute of Northampton was never part of Tennessee law. Id., at 359. But even assuming that Tennesseans’ ancestors brought with them the common law associated with the Statute, the Simpson court found that if the Statute had made, as an
independent ground of affray, the mere arming of oneself with firearms, the Tennessee Constitution’s Second Amendment analogue had
completely abrogated it. Id., at 360. At least in light of that constitutional guarantee, the court did not think that it could attribute to the mere carrying of arms
a necessarily consequent operation as terror to the people. Ibid.
Perhaps more telling was the North Carolina Supreme Court’s decision in State v. Huntly, 25 N. C. 418 (1843) (per curiam). Unlike the Tennessee Supreme Court in Simpson, the Huntly court held that the common-law offense codified by the Statute of Northampton was part of the State’s law. See 25 N. C., at 421–422. However, consistent with the Statute’s long-settled interpretation, the North Carolina Supreme Court acknowledged
that the carrying of a gun for a lawful purpose
per se constitutes no offence. Id., at 422–423. Only carrying for a
wicked purpose with a
mischievous result … constitute[d a] crime. Id., at 423; see also J. Haywood, The Duty and Office of Justices of Peace 10 (1800); H. Potter, The Office and Duties of a Justice of the Peace 39 (1816).15 Other state courts likewise recognized that the common law did not punish the carrying of deadly weapons per se, but only the carrying of such weapons
for the purpose of an affray, and in such manner as to strike terror to the people. O’Neil v. State, 16 Ala. 65, 67 (1849). Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so.
Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller,
the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. 554 U. S., at 626. Respondents unsurprisingly cite these statutes16 — and decisions upholding them17 — as evidence that States were historically free to ban public carry.
In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619–621 (1840).18 It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850).19 Kentucky, meanwhile, went one step further — the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 90 (1822).20
The Georgia Supreme Court’s decision in Nunn v. State, 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited
as arms of offence or defence, without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited
carrying certain weapons secretly, the court explained, it was
valid. Nunn, 1 Ga., at 251. But to the extent the Act also prohibited
bearing arms openly, the court went on, it was
in conflict with the Constitutio[n] and void. Ibid.; see also Heller, 554 U. S., at 612. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry.
Finally, we agree that Tennessee’s prohibition on carrying
publicly or privately any
belt or pocket pisto[l], 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller, 554 U. S., at 629. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would
violat[e] the constitutional right to keep arms. Andrews v. State, 50 Tenn. 165, 187 (1871); see also Heller, 554 U. S., at 629 (discussing Andrews).21
All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of
arms protected by the Second Amendment or state analogues.22
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. Although respondents seize on these laws to justify the proper-cause restriction, their reliance on them is misplaced. These laws were not bans on public carry, and they typically targeted only those threatening to do harm.
As discussed earlier, Massachusetts had prohibited riding or going
armed offensively, to the fear or terror of the good citizens of this Commonwealth since 1795. 1795 Mass. Acts and Laws ch. 2, at 436, in Laws of the Commonwealth of Massachusetts. In 1836, Massachusetts enacted a new law providing:
If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.Mass. Rev. Stat., ch. 134, §16.
In short, the Commonwealth required any person who was reasonably likely to
breach the peace, and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm. Between 1838 and 1871, nine other jurisdictions adopted variants of the Massachusetts law.23
Contrary to respondents’ position, these
reasonable-cause laws in no way represented the
direct precursor to the proper-cause requirement. Brief for Respondents 27. 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. Mass. Rev. Stat., ch. 134, §16 (1836).24 As William Rawle explained in an influential treatise, an individual’s carrying of arms was
sufficient cause to require him to give surety of the peace only when
attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them. A View of the Constitution of the United States of America 126 (2d ed. 1829). Then, even on such a showing, the surety laws did not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer
could go on carrying without criminal penalty so long as he
post[ed] money that would be forfeited if he breached the peace or injured others — a requirement from which he was exempt if he needed self-defense. Wrenn, 864 F. 3d, at 661.
Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban. All told, therefore,
[u]nder surety laws … everyone started out with robust carrying rights and only those reasonably accused were required to show a special need in order to avoid posting a bond. Ibid. These antebellum special-need requirements
did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless. Ibid.
One Court of Appeals has nonetheless remarked that these surety laws were
a severe constraint on anyone thinking of carrying a weapon in public. Young, 992 F. 3d, at 820. That contention has little support in the historical record. Respondents cite no evidence showing the average size of surety postings. And given that surety laws were
intended merely for prevention and were
not meant as any degree of punishment, 4 Blackstone, Commentaries, at 249, the burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York’s proper-cause standard — a violation of which can carry a 4-year prison term or a $5,000 fine. In Heller, we noted that founding-era laws punishing unlawful discharge
with a small fine and forfeiture of the weapon … , not with significant criminal penalties, likely did not
preven[t] a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. 554 U. S., at 633–634. Similarly, we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century.
Besides, respondents offer little evidence that authorities ever enforced surety laws. The only recorded case that we know of involved a justice of the peace declining to require a surety, even when the complainant alleged that the arms-bearer
did threaten to beat, wou[n]d, mai[m], and kill him. Brief for Professor Robert Leider et al. as Amici Curiae 31 (quoting Grover v. Bullock, No. 185 (Worcester Cty., Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130, n. 53 (2015). And one scholar who canvassed 19th-century newspapers — which routinely reported on local judicial matters — found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement. See R. Leider, Constitutional Liquidation, Surety Laws, and the Right To Bear Arms 15–17, in New Histories of Gun Rights and Regulation (J. Blocher, J. Charles, & D. Miller eds.) (forthcoming); see also Brief for Professor Robert Leider et al. as Amici Curiae 31–32. That is surely too slender a reed on which to hang a historical tradition of restricting the right to public carry.25
Respondents also argue that surety statutes were severe restrictions on firearms because the
reasonable cause to fear standard was essentially pro forma, given that
merely carrying firearms in populous areas breached the peace per se. Brief for Respondents 27. But that is a counterintuitive reading of the language that the surety statutes actually used. If the mere carrying of handguns breached the peace, it would be odd to draft a surety statute requiring a complainant to demonstrate
reasonable cause to fear an injury, or breach of the peace, Mass. Rev. Stat., ch. 134, §16, rather than a reasonable likelihood that the arms-bearer carried a covered weapon. After all, if it was the nature of the weapon rather than the manner of carry that was dispositive, then the
reasonable fear requirement would be redundant.
Moreover, the overlapping scope of surety statutes and criminal statutes suggests that the former were not viewed as substantial restrictions on public carry. For example, when Massachusetts enacted its surety statute in 1836, it reaffirmed its 1794 criminal prohibition on
go[ing] armed offensively, to the terror of the people. Mass. Rev. Stat., ch. 85, §24. And Massachusetts continued to criminalize the carrying of various
dangerous weapons well after passing the 1836 surety statute. See, e.g., 1850 Mass. Acts ch. 194, §1, p. 401; Mass. Gen. Stat., ch. 164, §10 (1860). Similarly, Virginia had criminalized the concealed carry of pistols since 1838, see 1838 Va. Acts ch. 101, §1, nearly a decade before it enacted its surety statute, see 1847 Va. Acts ch. 14, §16. It is unlikely that these surety statutes constituted a
severe restraint on public carry, let alone a restriction tantamount to a ban, when they were supplemented by direct criminal prohibitions on specific weapons and methods of carry.
To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry — concealed carry — so long as they left open the option to carry openly.
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.
Evidence from around the adoption of the Fourteenth Amendment also fails to support respondents’ position. For the most part, respondents and the United States ignore the
outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves after the Civil War. Heller, 554 U. S., at 614. Of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is respondents’ burden. Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.
A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right
to keep and carry arms wherever they went. Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms — a right free blacks were often denied in antebellum America.
After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some of the Southern abuses violating blacks’ right to keep and bear arms. See McDonald, 561 U. S., at 771 (noting the
systematic efforts made to disarm blacks); id., at 845–847 (Thomas, J., concurring in part and concurring in judgment); see also S. Exec. Doc. No. 43, 39th Cong., 1st Sess., 8 (1866) (
Pistols, old muskets, and shotguns were taken away from [freed slaves] as such weapons would be wrested from the hands of lunatics).
In the years before the 39th Congress proposed the Fourteenth Amendment, the Freedmen’s Bureau regularly kept it abreast of the dangers to blacks and Union men in the postbellum South. The reports described how blacks used publicly carried weapons to defend themselves and their communities. For example, the Bureau reported that a teacher from a Freedmen’s school in Maryland had written to say that, because of attacks on the school,
[b]oth the mayor and sheriff have warned the colored people to go armed to school, (which they do,) and that the
[t]he superintendent of schools came down and brought [the teacher] a revolver for his protection. Cong. Globe, 39th Cong., 1st Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th Cong., 2d Sess., 91 (1867) (noting how, during the New Orleans riots, blacks under attack
defended themselves … with such pistols as they had).
Witnesses before the Joint Committee on Reconstruction also described the depredations visited on Southern blacks, and the efforts they made to defend themselves. One Virginia music professor related that when
[t]wo Union men were attacked … they drew their revolvers and held their assailants at bay. H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 110 (1866). An assistant commissioner to the Bureau from Alabama similarly reported that men were
robbing and disarming negroes upon the highway, H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 297 (1866), indicating that blacks indeed carried arms publicly for their self-protection, even if not always with success. See also H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., 41 (1868) (describing a Ku Klux Klan outfit that rode
through the country … robbing every one they come across of money, pistols, papers, & c.); id., at 36 (noting how a black man in Tennessee had been murdered on his way to get book subscriptions, with the murderer taking, among other things, the man’s pistol).
procured great numbers of old army muskets and revolvers, particularly in Texas, and
employed them to protect themselves with
vigor and audacity. S. Exec. Doc. No. 43, 39th Cong., 1st Sess., at 8. Seeing that government was inadequately protecting them,
there [was] the strongest desire on the part of the freedmen to secure arms, revolvers particularly. H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 3, at 102.
On July 6, 1868, Congress extended the 1866 Freedmen’s Bureau Act, see 15 Stat. 83, and reaffirmed that freedmen were entitled to the
full and equal benefit of all laws and proceedings concerning personal liberty [and] personal security … including the constitutional right to keep and bear arms. §14, 14 Stat. 176 (1866) (emphasis added). That same day, a Bureau official reported that freedmen in Kentucky and Tennessee were still constantly under threat:
No Union man or negro who attempts to take any active part in politics, or the improvement of his race, is safe a single day; and nearly all sleep upon their arms at night, and carry concealed weapons during the day. H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., at 40.
Of course, even during Reconstruction the right to keep and bear arms had limits. But those limits were consistent with a right of the public to peaceably carry handguns for self-defense. For instance, when General D. E. Sickles issued a decree in 1866 pre-empting South Carolina’s Black Codes — which prohibited firearm possession by blacks — he stated:
The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons… And no disorderly person, vagrant, or disturber of the peace, shall be allowed to bear arms. Cong. Globe, 39th Cong., 1st Sess., at 908–909; see also McDonald, 561 U. S., at 847–848 (opinion of Thomas, J.).26 Around the same time, the editors of The Loyal Georgian, a prominent black-owned newspaper, were asked by
A Colored Citizen whether
colored persons [have] a right to own and carry fire arms. The editors responded that blacks had
the same right to own and carry fire arms that other citizens have. The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. And, borrowing language from a Freedmen’s Bureau circular, the editors maintained that
[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons, even though
no military or civil officer has the right or authority to disarm any class of people, thereby placing them at the mercy of others. Ibid. (quoting Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865); see also McDonald, 561 U. S., at 848–849 (opinion of Thomas, J.).27
As for Reconstruction-era state regulations, there was little innovation over the kinds of public-carry restrictions that had been commonplace in the early 19th century. For instance, South Carolina in 1870 authorized the arrest of
all who go armed offensively, to the terror of the people, 1870 S. C. Acts p. 403, no. 288, §4, parroting earlier statutes that codified the common-law offense. That same year, after it cleaved from Virginia, West Virginia enacted a surety statute nearly identical to the one it inherited from Virginia. See W. Va. Code, ch. 153, §8. Also in 1870, Tennessee essentially reenacted its 1821 prohibition on the public carry of handguns but, as explained above, Tennessee courts interpreted that statute to exempt large pistols suitable for military use. See supra, at 46.
Respondents and the United States, however, direct our attention primarily to two late-19th-century cases in Texas. In 1871, Texas law forbade anyone from
carrying on or about his person … any pistol … unless he has reasonable grounds for fearing an unlawful attack on his person. 1871 Tex. Gen. Laws §1. The Texas Supreme Court upheld that restriction in English v. State, 35 Tex. 473 (1871). The Court reasoned that the Second Amendment, and the State’s constitutional analogue, protected only those arms
as are useful and proper to an armed militia, including holster pistols, but not other kinds of handguns. Id., at 474–475. Beyond that constitutional holding, the English court further opined that the law was not
contrary to public policy, id., at 479, given that it
ma[de] all necessary exceptions allowing deadly weapons to
be carried as means of self-defense, and therefore
fully cover[ed] all wants of society, id., at 477.
Four years later, in State v. Duke, 42 Tex. 455 (1875), the Texas Supreme Court modified its analysis. The court reinterpreted Texas’ State Constitution to protect not only military-style weapons but rather all arms
as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense. Id., at 458. On that understanding, the court recognized that, in addition to
holster pistol[s], the right to bear arms covered the carry of
such pistols at least as are not adapted to being carried concealed. Id., at 458–459. Nonetheless, after expanding the scope of firearms that warranted state constitutional protection, Duke held that requiring any pistol-bearer to have
reasonable grounds fearing an unlawful attack on [one’s] person was a
legitimate and highly proper regulation of handgun carriage. Id., at 456, 459–460. Duke thus concluded that the 1871 statute
appear[ed] to have respected the right to carry a pistol openly when needed for self-defense. Id., at 459.
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 and Duke, are outliers. In fact, only one other State, West Virginia, adopted a similar public-carry statute before 1900. See W. Va. Code, ch. 148, §7 (1887). The West Virginia Supreme Court upheld that prohibition, reasoning that no handguns of any kind were protected by the Second Amendment, a rationale endorsed by no other court during this period. See State v. Workman, 35 W. Va. 367, 371–374, 14 S. E. 9, 11 (1891). The Texas decisions therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public.
In the end, while we recognize the support that postbellum Texas provides for respondents’ view, we will not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not
stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense in public. 554 U. S., at 632.
Finally, respondents point to the slight uptick in gun regulation during the late-19th century — principally in the 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. See id., at 614; supra, at 28.28 Here, moreover, respondents’ reliance on late-19th-century laws has several serious flaws even beyond their temporal distance from the founding.
The vast majority of the statutes that respondents invoke come from the Western Territories. Two Territories prohibited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16; 1869 N. M. Laws ch. 32, §§1–2, p. 72.29 Two others prohibited the carry of all firearms in towns, cities, and villages, including long guns. See 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23. And one Territory completely prohibited public carry of pistols everywhere, but allowed the carry of
shot-guns or rifles for certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§1–2, 5, p. 495.
These territorial restrictions fail to justify New York’s proper-cause requirement for several reasons. First, the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. For starters,
[t]he very transitional and temporary character of the American [territorial] system often
permitted legislative improvisations which might not have been tolerated in a permanent setup. E. Pomeroy, The Territories and the United States 1861–1890, p. 4 (1947). These territorial
legislative improvisations, which conflict with the Nation’s earlier approach to firearm regulation, are most unlikely to reflect
the origins and continuing significance of the Second Amendment and we do not consider them
instructive. Heller, 554 U. S., at 614.
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. To put that point into perspective, one need not look further than the 1890 census. Roughly 62 million people lived in the United States at that time. Arizona, Idaho, New Mexico, Oklahoma, and Wyoming combined to account for only 420,000 of those inhabitants — about two-thirds of 1% of the population. See Dept. of Interior, Compendium of the Eleventh Census: 1890, Part I.–Population 2 (1892). Put simply, these western restrictions were irrelevant to more than 99% of the American population. We have already explained that we will not stake our interpretation of the Second Amendment upon a law in effect in a single State, or a single city,
that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms in public for self-defense. Heller, 554 U. S., at 632; see supra, at 57–58. Similarly, we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also
contradic[t] the overwhelming weight of other, more contemporaneous historical evidence. Heller, 554 U. S., at 632.
Second, because these territorial laws were rarely subject to judicial scrutiny, we do not know the basis of their perceived legality. 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 187.30 Those state courts that upheld broader prohibitions without qualification generally operated under a fundamental misunderstanding of the right to bear arms, as expressed in Heller. 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.
Absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they inform
the origins and continuing significance of the Amendment. Id., at 614; see also The Federalist No. 37, at 229 (explaining that the meaning of ambiguous constitutional provisions can be
liquidated and ascertained by a series of particular discussions and adjudications (emphasis added)).
Finally, these territorial restrictions deserve little weight because they were — consistent with the transitory nature of territorial government — short lived. Some were held unconstitutional shortly after passage. See In re Brickey, 8 Idaho 597, 70 P. 609 (1902). Others did not survive a Territory’s admission to the Union as a State. See Wyo. Rev. Stat., ch. 3, §5051 (1899) (1890 law enacted upon statehood prohibiting public carry only when combined with
intent, or avowed purpose, of injuring [one’s] fellow-man). Thus, they appear more as passing regulatory efforts by not-yet-mature jurisdictions on the way to statehood, rather than part of an enduring American tradition of state regulation.
Beyond these Territories, respondents identify one Western State — Kansas — that instructed cities with more than 15,000 inhabitants to pass ordinances prohibiting the public carry of firearms. See 1881 Kan. Sess. Laws §§1, 23, pp. 79, 92.31 By 1890, the only cities meeting the population threshold were Kansas City, Topeka, and Wichita. See Compendium of the Eleventh Census: 1890, at 442–452. Even if each of these three cities enacted prohibitions by 1890, their combined population (93,000) accounted for only 6.5% of Kansas’ total population. Ibid. Although other Kansas cities may also have restricted public carry unilaterally,32 the lone late-19th-century state law respondents identify does not prove that Kansas meaningfully restricted public carry, let alone demonstrate a broad tradition of States doing so.
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. The Second Amendment guaranteed to
all Americans the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to
demonstrate a special need for self-protection distinguishable from that of the general community in order to carry arms in public. Klenosky, 75 App. Div., at 793, 428 N. Y. S. 2d, at 257.
The constitutional right to bear arms in public for self-defense is not
a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. McDonald, 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government offic ers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.
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.
It is so ordered.
1. See Ala. Code §13A–11–75 (Cum. Supp. 2021); Alaska Stat. §18.65.700 (2020); Ariz. Rev. Stat. Ann. §13–3112 (Cum. Supp. 2021); Ark. Code Ann. §5–73–309 (Supp. 2021); Colo. Rev. Stat. §18–12–206 (2021); Fla. Stat. §790.06 (2021); Ga. Code Ann. §16–11–129 (Supp. 2021); Idaho Code Ann. §18–3302K (Cum. Supp. 2021); Ill. Comp. Stat., ch. 430, §66/10 (West Cum. Supp. 2021); Ind. Code §35–47–2–3 (2021); Iowa Code §724.7 (2022); Kan. Stat. Ann. §75–7c03 (2021); Ky. Rev. Stat. Ann. §237.110 (Lexis Cum. Supp. 2021); La. Rev. Stat. Ann. §40:1379.3 (West Cum. Supp. 2022); Me. Rev. Stat. Ann., Tit. 25, §2003 (Cum. Supp. 2022); Mich. Comp. Laws §28.425b (2020); Minn. Stat. §624.714 (2020); Miss. Code Ann. §45–9–101 (2022); Mo. Rev. Stat. §571.101 (2016); Mont. Code Ann. §45–8–321 (2021); Neb. Rev. Stat. §69–2430 (2019); Nev. Rev. Stat. §202.3657 (2021); N. H. Rev. Stat. Ann. §159:6 (Cum. Supp. 2021); N. M. Stat. Ann. §29–19–4 (2018); N. C. Gen. Stat. Ann. §14–415.11 (2021); N. D. Cent. Code Ann. §62.1–04–03 (Supp. 2021); Ohio Rev. Code Ann. §2923.125 (2020); Okla. Stat., Tit. 21, §1290.12 (2021); Ore. Rev. Stat. §166.291 (2021); 18 Pa. Cons. Stat. §6109 (Cum. Supp. 2016); S. C. Code Ann. §23–31–215(A) (Cum. Supp. 2021); S. D. Codified Laws §23–7–7 (Cum. Supp. 2021); Tenn. Code Ann. §39–17–1366 (Supp. 2021); Tex. Govt. Code Ann. §411.177 (West Cum. Supp. 2021); Utah Code §53–5–704.5 (2022); Va. Code Ann. §18.2–308.04 (2021); Wash. Rev. Code §9.41.070 (2021); W. Va. Code Ann. §61–7–4 (2021); Wis. Stat. §175.60 (2021); Wyo. Stat. Ann. §6–8–104 (2021). Vermont has no permitting system for the concealed carry of handguns. Three States — Connecticut, Delaware, and Rhode Island — have discretionary criteria but appear to operate like
shall issue jurisdictions. See Conn. Gen. Stat. §29–28(b) (2021); Del. Code, Tit. 11, §1441 (2022); R. I. Gen. Laws §11–47–11 (2002). Although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a
suitable person, see Conn. Gen. Stat. §29–28(b), the
suitable person standard precludes permits only to those
individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon. Dwyer v. Farrell, 193 Conn. 7, 12, 475 A. 2d 257, 260 (1984) (internal quotation marks omitted). As for Delaware, the State has thus far processed 5,680 license applications and renewals in fiscal year 2022 and has denied only 112. See Del. Courts, Super. Ct., Carrying Concealed Deadly Weapon (June 9, 2022). Moreover, Delaware appears to have no licensing requirement for open carry. Finally, Rhode Island has a suitability requirement, see R. I. Gen. Laws §11–47–11, but the Rhode Island Supreme Court has flatly denied that the
[d]emonstration of a proper showing of need is a component of that requirement. Gadomski v. Tavares, 113 A. 3d 387, 392 (2015). Additionally, some
shall issue jurisdictions have so-called
constitutional carry protections that allow certain individuals to carry handguns in public within the State without any permit whatsoever. See, e.g., A. Sherman, More States Remove Permit Requirement To Carry a Concealed Gun, PolitiFact (Apr. 12, 2022)
Twenty-five states now have permitless concealed carry laws … The states that have approved permitless carry laws are: Alabama, Alaska, Arizona, Arkansas, Idaho, Indiana, Iowa, Georgia, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming.
2. See Cal. Penal Code Ann. §26150 (West 2021) (
Good cause); D. C. Code §§7–2509.11(1) (2018), 22–4506(a) (Cum. Supp. 2021) (
proper reason, i.e.,
special need for self-protection); Haw. Rev. Stat. §§134–2 (Cum. Supp. 2018), 134–9(a) (2011) (
exceptional case); Md. Pub. Saf. Code Ann. §5–306(a)(6)(ii) (2018) (
good and substantial reason); Mass. Gen. Laws, ch. 140, §131(d) (2020) (
good reason); N. J. Stat. Ann. §2C:58–4(c) (West Cum. Supp. 2021) (
3. Rather than begin with its view of the governing legal framework, the dissent chronicles, in painstaking detail, evidence of crimes committed by individuals with firearms. See post, at 1–9 (opinion of Breyer, J.). The dissent invokes all of these statistics presumably to justify granting States greater leeway in restricting firearm ownership and use. But, as Members of the Court have already explained,
[t]he right to keep and bear arms … is not the only constitutional right that has controversial public safety implications. McDonald v. Chicago, 561 U. S. 742, 783 (2010) (plurality opinion).
4. See Association of N. J. Rifle & Pistol Clubs, Inc. v. Attorney General N. J., 910 F. 3d 106, 117 (CA3 2018); accord, Worman v. Healey, 922 F. 3d 26, 33, 36–39 (CA1 2019); Libertarian Party of Erie Cty. v. Cuomo, 970 F. 3d 106, 127–128 (CA2 2020); Harley v. Wilkinson, 988 F. 3d 766, 769 (CA4 2021); National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185, 194–195 (CA5 2012); United States v. Greeno, 679 F. 3d 510, 518 (CA6 2012); Kanter v. Barr, 919 F. 3d 437, 442 (CA7 2019); Young v. Hawaii, 992 F. 3d 765, 783 (CA9 2021) (en banc); United States v. Reese, 627 F. 3d 792, 800–801 (CA10 2010); GeorgiaCarry.Org, Inc. v. Georgia, 687 F. 3d 1244, 1260, n. 34 (CA11 2012); United States v. Class, 930 F. 3d 460, 463 (CADC 2019).
5. The dissent asserts that we misread Heller to eschew means-end scrutiny because Heller mentioned that the District of Columbia’s handgun ban
would fail constitutional muster
[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights. Heller, 554 U. S., at 628–629; see post, at 23 (opinion of Breyer, J.). But Heller’s passing observation that the District’s ban would fail under any heightened
standar[d] of scrutiny did not supplant Heller’s focus on constitutional text and history. Rather, Heller’s comment
was more of a gilding-the-lily observation about the extreme nature of D.C.’s law, Heller v. District of Columbia, 670 F. 3d 1244, 1277 (CADC 2011) (Kavanaugh, J., dissenting), than a reflection of Heller’s methodology or holding.
6. The dissent claims that Heller’s text-and-history test will prove unworkable compared to means-end scrutiny in part because judges are relatively ill equipped to
resolv[e] difficult historical questions or engage in
searching historical surveys. Post, at 26, 30. We are unpersuaded. The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That
legal inquiry is a refined subset of a broader
historical inquiry, and it relies on
various evidentiary principles and default rules to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example,
[i]n our adversarial system of adjudication, we follow the principle of party presentation. United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3). Courts are thus entitled to decide a case based on the historical record compiled by the parties.
7. This does not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the
product of an interest balancing by the people, not the evolving product of federal judges. Heller, 554 U. S., at 635 (emphasis altered). Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent’s assertion, there is nothing
[i]roni[c] about that undertaking. Post, at 30. It is not an invitation to revise that balance through means-end scrutiny.
8. The dissent claims that we cannot answer the question presented without giving respondents the opportunity to develop an evidentiary record fleshing out
how New York’s law is administered in practice, how much discretion licensing officers in New York possess, or whether the proper cause standard differs across counties. Post, at 20. We disagree. The dissent does not dispute that any applicant for an unrestricted concealed-carry license in New York can satisfy the proper-cause standard only if he has
a special need for self-protection distinguishable from that of the general community. Post, at 13 (quoting Kachalsky v. County of Westchester, 701 F. 3d 81, 86 (CA2 2012)). And in light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense. See infra, at 62. That conclusion does not depend upon any of the factual questions raised by the dissent. Nash and Koch allege that they were denied unrestricted licenses because they had not
demonstrate[d] a special need for self-defense that distinguished [them] from the general public. App. 123, 125. If those allegations are proven true, then it simply does not matter whether licensing officers have applied the proper-cause standard differently to other concealed-carry license applicants; Nash’s and Koch’s constitutional rights to bear arms in public for self-defense were still violated.
9. To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’
shall-issue licensing regimes, under which
a general desire for self-defense is sufficient to obtain a [permit]. Drake v. Filko, 724 F. 3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent
law-abiding, responsible citizens from exercising their Second Amendment right to public carry. District of Columbia v. Heller, 554 U. S. 570, 635 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact,
law-abiding, responsible citizens. Ibid. And they likewise appear to contain only
narrow, objective, and definite standards guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the
appraisal of facts, the exercise of judgment, and the formation of an opinion, Cantwell v. Connecticut, 310 U. S. 296, 305 (1940) — features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.
10. Another medieval firearm restriction — a 1541 statute enacted under Henry VIII that limited the ownership and use of handguns (which could not be shorter than a yard) to those subjects with annual property values of at least £100, see 33 Hen. 8 c. 6, §§1–2 — fell into a similar obsolescence. As far as we can discern, the last recorded prosecutions under the 1541 statute occurred in 1693, neither of which appears to have been successful. See King and Queen v. Bullock, 4 Mod. 147, 87 Eng. Rep. 315 (K. B. 1693); King v. Litten, 1 Shower, K. B. 367, 89 Eng. Rep. 644 (K. B. 1693). It seems that other prosecutions under the 1541 statute during the late 1600s were similarly unsuccessful. See King v. Silcot, 3 Mod. 280, 280–281, 87 Eng. Rep. 186 (K. B. 1690); King v. Lewellin, 1 Shower, K. B. 48, 89 Eng. Rep. 440 (K. B. 1689); cf. King and Queen v. Alsop, 4 Mod. 49, 50–51, 87 Eng. Rep. 256, 256–257 (K. B. 1691). By the late 1700s, it was widely recognized that the 1541 statute was
obsolete. 2 R. Burn, The Justice of the Peace, and Parish Officer 243, n. (11th ed. 1769); see also, e.g., The Farmer’s Lawyer 143 (1774) (
entirely obsolete); 1 G. Jacob, Game-Laws II, Law-Dictionary (T. Tomlins ed. 1797); 2 R. Burn, The Justice of the Peace, and Parish Officer 409 (18th ed. 1797) (calling the 1541 statute
a matter more of curiosity than use). In any event, lest one be tempted to put much evidentiary weight on the 1541 statute, it impeded not only public carry, but further made it unlawful for those without sufficient means to
kepe in his or their houses any
handgun. 33 Hen. 8 c. 6, §1. Of course, this kind of limitation is inconsistent with Heller’s historical analysis regarding the Second Amendment’s meaning at the founding and thereafter. So, even if a severe restriction on keeping firearms in the home may have seemed appropriate in the mid-1500s, it was not incorporated into the Second Amendment’s scope. We see little reason why the parts of the 1541 statute that address public carry should not be understood similarly.We note also that even this otherwise restrictive 1541 statute, which generally prohibited shooting firearms in any city, exempted discharges
for the defence of [one’s] p[er]son or house. §4. Apparently, the paramount need for self-defense trumped the Crown’s interest in firearm suppression even during the 16th century.
11. The dissent discounts Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, because it only
arguably supports the view that an evil-intent requirement attached to the Statute of Northampton by the late 1600s and early 1700s. See post, at 37. But again, because the Second Amendment’s bare text covers petitioners’ public carry, the respondents here shoulder the burden of demonstrating that New York’s proper-cause requirement is consistent with the Second Amendment’s text and historical scope. See supra, at 15. To the extent there are multiple plausible interpretations of Sir John Knight’s Case, we will favor the one that is more consistent with the Second Amendment’s command.
12. Even Catholics, who fell beyond the protection of the right to have arms, and who were stripped of all
Arms, Weapons, Gunpowder, [and] Ammunition, were at least allowed to keep
such necessary Weapons as shall be allowed … by Order of the Justices of the Peace … for the Defence of his House or Person. 1 Wm. & Mary c. 15, §4, in 3 Eng. Stat. at Large 399 (1688).
13. Even assuming that pocket pistols were, as East Jersey in 1686 deemed them,
unusual or unlawful, it appears that they were commonly used at least by the founding. See, e.g., G. Neumann, The History of Weapons of the American Revolution 150–151 (1967); see also H. Hendrick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun Safety and Forensics 44 (2008).
14. The Virginia statute all but codified the existing common law in this regard. See G. Webb, The Office and Authority of a Justice of Peace 92 (1736) (explaining how a constable
may take away Arms from such who ride, or go, offensively armed, in Terror of the People).
15. The dissent concedes that Huntly, 25 N. C. 418, recognized that citizens were
‘at perfect liberty’ to carry for ‘lawful purpose[s].’ Post, at 42 (quoting Huntly, 25 N. C., at 423). But the dissent disputes that such
lawful purpose[s] included self-defense, because Huntly goes on to speak more specifically of carrying arms for
business or amusement. Id., at 422–423. This is an unduly stingy interpretation of Huntly. In particular, Huntly stated that
the citizen is at perfect liberty to carry his gun
[f]or any lawful purpose, of which
amusement were then mentioned. Ibid. (emphasis added). Huntly then contrasted these
lawful purpose[s] with the
wicked purpose … to terrify and alarm. Ibid. Because there is no evidence that Huntly considered self-defense a
wicked purpose, we think the best reading of Huntly would sanction public carry for self-defense, so long as it was not
in such [a] manner as naturally will terrify and alarm. Id., at 423.
16. Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibition could not extend to open carry consistent with the Second Amendment. See infra, at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, meanwhile, enacted in 1821 a broader law that prohibited carrying, among other things,
belt or pocket pistols, either public or private, except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423.
17. See State v. Mitchell, 3 Blackf. 229 (Ind. 1833); State v. Reid, 1 Ala. 612, 616 (1840); State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, 1 Ga. 243 (1846); State v. Chandler, 5 La. 489 (1850); State v. Smith, 11 La. 633 (1856); State v. Jumel, 13 La. 399 (1858). But see Bliss v. Commonwealth, 12 Ky. 90 (1822). See generally 2 J. Kent, Commentaries on American Law *340, n. b.
18. See Reid, 1 Ala., at 619 (holding that
the Legislature cannot inhibit the citizen from bearing arms openly); id., at 621 (noting that there was no evidence
tending to show that the defendant could not have defended himself as successfully, by carrying the pistol openly, as by secreting it about his person).
19. See, e.g., Chandler, 5 La., at 490 (Louisiana concealed-carry prohibition
interfered with no man’s right to carry arms (to use its words) ‘in full open view,’ which places men upon an equality); Smith, 11 La., at 633 (The
arms described in the Second Amendment
are such as are borne by a people in war, or at least carried openly); Jumel, 13 La., at 399–400 (
The statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society).
20. With respect to Indiana’s concealed-carry prohibition, the Indiana Supreme Court’s reasons for upholding it are unknown because the court issued a one-sentence per curiam order holding the law
not unconstitutional. Mitchell, 3 Blackf., at 229. Similarly, the Arkansas Supreme Court upheld Arkansas’ prohibition, but without reaching a majority rationale. See Buzzard, 4 Ark. 18. The Arkansas Supreme Court would later adopt Tennessee’s approach, which tolerated the prohibition of all public carry of handguns except for military-style revolvers. See, e.g., Fife v. State, 31 Ark. 455 (1876).
21. Shortly after Andrews, 50 Tenn. 165, Tennessee codified an exception to the State’s handgun ban for
an[y] army pistol, or such as are commonly carried and used in the United States Army so long as they were carried
openly in [one’s] hands. 1871 Tenn. Pub. Acts ch. 90, §1; see also State v. Wilburn, 66 Tenn. 57, 61–63 (1872); Porter v. State, 66 Tenn. 106, 107–108 (1874).
22. The Territory of New Mexico made it a crime in 1860 to carry
any class of pistols whatever
concealed or otherwise. 1860 Terr. of N. M. Laws §§1–2, p. 94. This extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court. Its value in discerning the original meaning of the Second Amendment is insubstantial. Moreover, like many other stringent carry restrictions that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that
[t]he people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons. N. M. Const., Art. II, §6 (1911); see infra, at 61.
23. See 1838 Terr. of Wis. Stat. §16, p. 381; Me. Rev. Stat., ch. 169, §16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); 1847 Va. Acts ch. 14, §16; Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat. ch. 16, §17, p. 220; D. C. Rev. Code ch. 141, §16 (1857); 1860 Pa. Laws p. 432, §6; W. Va. Code, ch. 153, §8 (1868).
24. It is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety. See 1847 Va. Acts ch. 14, §16; W. Va. Code, ch. 153, §8 (1868).
25. The dissent speculates that the absence of recorded cases involving surety laws may simply
show that these laws were normally followed. Post, at 45. Perhaps. But again, the burden rests with the government to establish the relevant tradition of regulation, see supra, at 15, and, given all of the other features of surety laws that make them poor analogues to New York’s proper-cause standard, we consider the barren record of enforcement to be simply one additional reason to discount their relevance.
26. Respondents invoke General Orders No. 10, which covered the Second Military District (North and South Carolina), and provided that
[t]he practice of carrying deadly weapons, except by officers and soldiers in the military service of the United States, is prohibited. Headquarters Second Military Dist., Gen. Orders No. 10 (Charleston, S. C., Apr. 11, 1867), in S. Exec. Doc. No. 14, 40th Cong., 1st Sess., 64 (1867). We put little weight on this categorical restriction given that the order also specified that a violation of this prohibition would
render the offender amenable to trial and punishment by military commission, ibid., rather than a jury otherwise guaranteed by the Constitution. There is thus little indication that these military dictates were designed to align with the Constitution’s usual application during times of peace.
27. That said, Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny. One lieutenant posted in Saint Augustine, Florida, remarked how local enforcement of concealed-carry laws discriminated against blacks:
To sentence a negro to several dollars’ fine for carrying a revolver concealed upon his person, is in accordance with an ordinance of the town; but still the question naturally arises in my mind, ‘Why is this poor fellow fined for an offence which is committed hourly by every other white man I meet in the streets?’ H. R. Exec. Doc. No. 57, 40th Cong., 2d Sess., 83 (1867); see also H. R. Rep. No. 16, 39th Cong., 2d Sess., 427 (1867).
28. We will not address any of the 20th-century historical evidence brought to bear by respondents or their amici. As with their late-19th-century evidence, the 20th-century evidence presented by respondents and their amici does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence.
29. The New Mexico restriction allowed an exception for individuals carrying for
the lawful defence of themselves, their families or their property, and the same being then and there threatened with danger. 1869 Terr. of N. M. Laws ch. 32, §1, p. 72. The Arizona law similarly exempted those who have
reasonable ground for fearing an unlawful attack upon his person. 1889 Ariz. Terr. Sess. Laws no. 13, §2, p. 17.
30. Many other state courts during this period continued the antebellum tradition of upholding concealed carry regimes that seemingly provided for open carry. See, e.g., State v. Speller, 86 N. C. 697 (1882); Chatteaux v. State, 52 Ala. 388 (1875); Eslava v. State, 49 Ala. 355 (1873); State v. Shelby, 90 Mo. 302, 2 S. W. 468 (1886); Carroll v. State, 28 Ark. 99 (1872); cf. Robertson v. Baldwin, 165 U. S. 275, 281–282 (1897) (remarking in dicta that
the right of the people to keep and bear arms … is not infringed by laws prohibiting the carrying of concealed weapons).
31. In 1875, Arkansas prohibited the public carry of all pistols. See 1875 Ark. Acts p. 156, §1. But this categorical prohibition was also short lived. About six years later, Arkansas exempted
pistols as are used in the army or navy of the United States, so long as they were carried
uncovered, and in [the] hand. 1881 Ark. Acts p. 191, no. 96, §§1, 2.
32. In 1879, Salina, Kansas, prohibited the carry of pistols but broadly exempted
cases when any person carrying [a pistol] is engaged in the pursuit of any lawful business, calling or employment and the circumstances were
such as to justify a prudent man in carrying such weapon, for the defense of his person, property or family. Salina, Kan., Rev. Ordinance No. 268, §2.
Justice Alito, concurring.
I join the opinion of the Court in full but add the following comments in response to the dissent.
Much of the dissent seems designed to obscure the specific question that the Court has decided, and therefore it may be helpful to provide a succinct summary of what we have actually held. 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. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in
the natural right of resistance and self-preservation. Id., at 594.
[T]he inherent right of self-defense, Heller explained, is
central to the Second Amendment right. Id., at 628.
Although Heller concerned the possession of a handgun in the home, the key point that we decided was that
the people, not just members of the
militia, have the right to use a firearm to defend themselves. And because many people face a serious risk of lethal violence when they venture outside their homes, the Second Amendment was understood at the time of adoption to apply under those circumstances. 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, like New York’s Sullivan 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.
In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post, at 1–8 (opinion of Breyer, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post, at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.
What is the relevance of statistics about the use of guns to commit suicide? See post, at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside?
The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s?
The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).1
The dissent cites the large number of guns in private hands — nearly 400 million — but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. See post, at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense.
No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns,2 and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury.
Ordinary citizens frequently use firearms to protect themselves from criminal attack. According to survey data, defensive firearm use occurs up to 2.5 million times per year. Brief for Law Enforcement Groups et al. as Amici Curiae 5. A Centers for Disease Control and Prevention report commissioned by former President Barack Obama reviewed the literature surrounding firearms use and noted that
[s]tudies that directly assessed the effect of actual defensive uses of guns … have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies. Institute of Medicine and National Research Council, Priorities for Research To Reduce the Threat of Firearm-Related Violence 15–16 (2013) (referenced in Brief for Independent Women’s Law Center as Amicus Curiae 19–20).
Many of the amicus briefs filed in this case tell the story of such people. Some recount incidents in which a potential victim escaped death or serious injury only because carrying a gun for self-defense was allowed in the jurisdiction where the incident occurred. Here are two examples. One night in 1987, Austin Fulk, a gay man from Arkansas,
was chatting with another man in a parking lot when four gay bashers charged them with baseball bats and tire irons. Fulk’s companion drew his pistol from under the seat of his car, brandished it at the attackers, and fired a single shot over their heads, causing them to flee and saving the would-be victims from serious harm. Brief for DC Project Foundation et al. as Amici Curiae 31 (footnote omitted).
On July 7, 2020, a woman was brutally assaulted in the parking lot of a fast food restaurant in Jefferson City, Tennessee. Her assailant slammed her to the ground and began to drag her around while strangling her. She was saved when a bystander who was lawfully carrying a pistol pointed his gun at the assailant, who then stopped the assault and the assailant was arrested. Ibid. (citing C. Wethington, Jefferson City Police: Legally Armed Good Samaritan Stops Assault, ABC News 6, WATE.com (July 9, 2020)).
In other incidents, a law-abiding person was driven to violate the Sullivan Law because of fear of victimization and as a result was arrested, prosecuted, and incarcerated. See Brief for Black Attorneys of Legal Aid et al. as Amici Curiae 22–25.
Some briefs were filed by members of groups whose members feel that they have special reasons to fear attacks. See Brief for Asian Pacific American Gun Owners Association as Amicus Curiae; Brief for DC Project Foundation et al. as Amici Curiae; Brief for Black Guns Matter et al. as Amici Curiae; Brief for Independent Women’s Law Center as Amicus Curiae; Brief for National African American Gun Association, Inc., as Amicus Curiae.
I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional.
This brings me to Part II–B of the dissent, post, at 11–21, which chastises the Court for deciding this case without a trial and factual findings about just how hard it is for a law-abiding New Yorker to get a carry permit. The record before us, however, tells us everything we need on this score. At argument, New York’s solicitor general was asked about an ordinary person who works at night and must walk through dark and crime-infested streets to get home. Tr. of Oral Arg. 66–67. The solicitor general was asked whether such a person would be issued a carry permit if she pleaded:
[T]here have been a lot of muggings in this area, and I am scared to death. Id., at 67. The solicitor general’s candid answer was
in general, no. Ibid. To get a permit, the applicant would have to show more — for example, that she had been singled out for attack. Id., at 65; see also id., at 58. A law that dictates that answer violates the Second Amendment.
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. Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction. See post, at 20. 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. Two examples illustrate the point.
The first is the Second Circuit’s decision in a case the Court decided two Terms ago, New York State Rifle & Pistol Assn., Inc. v. City of New York, 590 U. S. ___ (2020). The law in that case affected New York City residents who had been issued permits to keep a gun in the home for self-defense. The city recommended that these permit holders practice at a range to ensure that they are able to handle their guns safely, but the law prohibited them from taking their guns to any range other than the seven that were spread around the city’s five boroughs. Even if such a person unloaded the gun, locked it in the trunk of a car, and drove to the nearest range, that person would violate the law if the nearest range happened to be outside city limits. The Second Circuit held that the law was constitutional, concluding, among other things, that the restriction was substantially related to the city’s interests in public safety and crime prevention. See New York State Rifle & Pistol Assn., Inc. v. New York, 883 F. 3d 45, 62–64 (2018). But after we agreed to review that decision, the city repealed the law and admitted that it did not actually have any beneficial effect on public safety. See N. Y. Penal Law Ann. §400.00(6) (West Cum. Supp. 2022); Suggestion of Mootness in New York State Rifle & Pistol Assn., Inc. v. City of New York, O. T. 2019, No. 18–280, pp. 5–7.
Exhibit two is the dissent filed in Heller by Justice Breyer, the author of today’s dissent. At issue in Heller was an ordinance that made it impossible for any District of Columbia resident to keep a handgun in the home for self-defense. See 554 U. S., at 574–575. Even the respondent, who carried a gun on the job while protecting federal facilities, did not qualify. Id., at 575–576. The District of Columbia law was an extreme outlier; only a few other jurisdictions in the entire country had similar laws. Nevertheless, Justice Breyer’s dissent, while accepting for the sake of argument that the Second Amendment protects the right to keep a handgun in the home, concluded, based on essentially the same test that today’s dissent defends, that the District’s complete ban was constitutional. See id., at 689, 722 (under
an interest-balancing inquiry … the dissent would
conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it).
Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit.3 That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that. See post, at 25–28.
Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection.
Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.
1 The dissent makes no effort to explain the relevance of most of the incidents and statistics cited in its introductory section (post, at 1–8) (opinion of Breyer, J.). Instead, it points to studies (summarized later in its opinion) regarding the effects of
shall issue licensing regimes on rates of homicide and other violent crimes. I note only that the dissent’s presentation of such studies is one-sided. See RAND Corporation, Effects of Concealed-Carry Laws on Violent Crime (Apr. 22, 2022); see also Brief for William English et al. as Amici Curiae 3 (
The overwhelming weight of statistical analysis on the effects of [right-to-carry] laws on violent crime concludes that RTC laws do not result in any statistically significant increase in violent crime rates); Brief for Arizona et al. as Amici Curiae 12 (
[P]opulation-level data on licensed carry is extensive, and the weight of the evidence confirms that objective, non-discriminatory licensed-carry laws have two results: (1) statistically significant reductions in some types of violent crime, or (2) no statistically significant effect on overall violent crime); Brief for Law Enforcement Groups et al. as Amici Curiae 12 (
[O]ver the period 1991–2019 the inventory of firearms more than doubled; the number of concealed carry permits increased by at least sevenfold, but
murder rates fell by almost half, from 9.8 per 100,000 people in 1991 to 5.0 per 100,000 in 2019 and
[v]iolent crimes plummeted by over half ).
2 NYPD statistics show approximately 6,000 illegal guns were seized in 2021. A. Southall, This Police Captain’s Plan To Stop Gun Violence Uses More Than Handcuffs, N. Y. Times, Feb. 4, 2022. According to recent remarks by New York City Mayor Eric Adams, the NYPD has confiscated 3,000 firearms in 2022 so far. City of New York, Transcript: Mayor Eric Adams Makes Announcement About NYPD Gun Violence Suppression Division (June 6, 2022).
3 If we put together the dissent in this case and Justice Breyer’s Heller dissent, States and local governments would essentially be free to ban the possession of all handguns, and it is unclear whether its approach would impose any significant restrictions on laws regulating long guns. The dissent would extend a very large measure of deference to legislation implicating Second Amendment rights, but it does not claim that such deference is appropriate when any other constitutional right is at issue.
Justice Kavanaugh, with whom The Chief Justice joins, concurring.
The Court employs and elaborates on the text, history, and tradition test that Heller and McDonald require for evaluating whether a government regulation infringes on the Second Amendment right to possess and carry guns for self-defense. See District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald v. Chicago, 561 U. S. 742 (2010). Applying that test, the Court correctly holds that New York’s outlier
may-issue licensing regime for carrying handguns for self-defense violates the Second Amendment.
I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.
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.
The Court’s decision addresses only the unusual discretionary licensing regimes, known as
may-issue regimes, that are employed by 6 States including New York. As the Court explains, 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 features of New York’s regime — the unchanneled discretion for licensing officials and the special-need requirement — in effect deny the right to carry handguns for self-defense to many
ordinary, law-abiding citizens. Ante, at 1; see also Heller, 554 U. S., at 635. The Court has held that
individual self-defense is ‘the central component’ of the Second Amendment right. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense.
By contrast, 43 States employ objective shall-issue licensing regimes. 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. Brief for Arizona et al. as Amici Curiae 7. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. 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. Tr. of Oral Arg. 50−51.
Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.
Second, as Heller and McDonald established and the Court today again explains, the Second Amendment
is neither a regulatory straightjacket nor a regulatory blank check. Ante, at 21. Properly interpreted, the Second Amendment allows a
variety of gun regulations. Heller, 554 U. S., at 636. As Justice Scalia wrote in his opinion for the Court in Heller, and Justice Alito reiterated in relevant part in the principal opinion in McDonald:
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was 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. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.Heller, 554 U. S., at 626−627, and n. 26 (citations and quotation marks omitted); see also McDonald, 561 U. S., at 786 (plurality opinion).
With those additional comments, I join the opinion of the Court.
Justice Barrett, concurring.
I join the Court’s opinion in full. I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. See ante, at 24–29. Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g., Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one). To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original public meaning? Cf. McCulloch v. Maryland, 4 Wheat. 316, 401 (1819) (citing practice
introduced at a very early period of our history). What form must practice take to carry weight in constitutional analysis? See Myers v. United States, 272 U. S. 52, 175 (1926) (citing a
legislative exposition of the Constitution … acquiesced in for a long term of years). And may practice settle the meaning of individual rights as well as structural provisions? See Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 49–51 (2019) (canvassing arguments). The historical inquiry presented in this case does not require us to answer such questions, which might make a difference in another case. See ante, at 17–19.
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. Ante, at 29. Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them. But if 1791 is the benchmark, then New York’s appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little). Cf. Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___–___ (2020) (slip op., at 15–16) (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). 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. On the contrary, the Court is careful to caution
against giving postenactment history more weight than it can rightly bear. Ante, at 26.