Rogers v. Grewal , 207 L. Ed. 2d 1059 ( 2020 )

Cite as: 590 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
THOMAS ROGERS, ET AL. v. GURBIR GREWAL,
ATTORNEY GENERAL OF NEW JERSEY, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 18–824. Decided June 15, 2020
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins
as to all but Part II, dissenting from the denial of certiorari.
The text of the Second Amendment protects “the right of
the people to keep and bear Arms.” We have stated that
this “fundamental righ[t]” is “necessary to our system of or-
dered liberty.” McDonald v. Chicago, 561 U. S. 742, 778
(2010). Yet, in several jurisdictions throughout the country,
law-abiding citizens have been barred from exercising the
fundamental right to bear arms because they cannot show
that they have a “justifiable need” or “good reason” for doing
so. One would think that such an onerous burden on a fun-
damental right would warrant this Court’s review. This
Court would almost certainly review the constitutionality
of a law requiring citizens to establish a justifiable need be-
fore exercising their free speech rights. And it seems highly
unlikely that the Court would allow a State to enforce a law
requiring a woman to provide a justifiable need before seek-
ing an abortion. But today, faced with a petition challeng-
ing just such a restriction on citizens’ Second Amendment
rights, the Court simply looks the other way.
Petitioner Rogers is a law-abiding citizen who runs a
business that requires him to service automated teller ma-
chines in high-crime areas. He applied for a permit to carry
his handgun for self-defense. But, to obtain a carry permit
in New Jersey, an applicant must, among other things,
2 ROGERS v. GREWAL
THOMAS, J., dissenting
demonstrate “that he has a justifiable need to carry a hand-
gun.” N. J. Stat. Ann. §2C:58–4(c) (West 2019 Cum. Supp.).
For a “private citizen” to satisfy this “justifiable need” re-
quirement, he must “specify in detail the urgent necessity
for self-protection, as evidenced by specific threats or previ-
ous attacks which demonstrate a special danger to the ap-
plicant’s life that cannot be avoided by means other than by
issuance of a permit to carry a handgun.” Ibid.; see also
N. J. Admin. Code §13:54–2.4 (2020). “Generalized fears for
personal safety are inadequate.” In re Preis, 118 N. J. 564,
571, 573 A. 2d 148, 152 (1990). Petitioner could not satisfy
this standard and, as a result, his permit application was
denied. With no ability to obtain a permit, petitioner is
forced to operate his business in high-risk neighborhoods
with no firearm for self-defense.
Petitioner asks this Court to grant certiorari to determine
whether New Jersey’s near-total prohibition on carrying a
firearm in public violates his Second Amendment right to
bear arms, made applicable to the States through the Four-
teenth Amendment. See McDonald, 561 U. S., at 750; see
id., at 806 (THOMAS, J., concurring in part and concurring
in judgment). This case gives us the opportunity to provide
guidance on the proper approach for evaluating Second
Amendment claims; acknowledge that the Second Amend-
ment protects the right to carry in public; and resolve a
square Circuit split on the constitutionality of justifiable-
need restrictions on that right. I would grant the petition
for a writ of certiorari.
I
It has been more than a decade since this Court’s deci-
sions in McDonald v. Chicago, supra, and District of Colum-
bia v. Heller, 554 U. S. 570 (2008). In the years since those
decisions, lower courts have struggled to determine the
proper approach for analyzing Second Amendment chal-
lenges.
Cite as: 590 U. S. ____ (2020) 3
THOMAS, J., dissenting
Although our decision in Heller did not provide a precise
standard for evaluating all Second Amendment claims, it
did provide a general framework to guide lower courts. In
Heller, we recognized that “the Second Amendment . . . cod-
ified a pre-existing right.” Id., at 592. This right was “en-
shrined with the scope [it was] understood to have when the
people adopted” it. Id., at 634. To determine that scope, we
analyzed the original meaning of the Second Amendment’s
text as well as the historical understanding of the right. We
noted that “limitation[s]” on the right may be supported by
“historical tradition,” but we declined to “undertake an ex-
haustive historical analysis . . . of the full scope of the Sec-
ond Amendment.” Id., at 626–627. Instead, we indicated
that courts could conduct historical analyses for restrictions
in the future as challenges arose. Id., at 635.
Consistent with this guidance, many jurists have con-
cluded that text, history, and tradition are dispositive in de-
termining whether a challenged law violates the right to
keep and bear arms. See, e.g., Mance v. Sessions, 896 F. 3d
390, 394 (CA5 2018) (Elrod, J., joined by Jones, Smith, Wil-
lett, Ho, Duncan, and Engelhardt, JJ., dissenting from de-
nial of reh’g en banc); Tyler v. Hillsdale Cty. Sheriff ’s Dept.,
837 F. 3d 678, 702–703 (CA6 2016) (Batchelder, J., concur-
ring in most of judgment); Gowder v. Chicago, 923 F. Supp.
2d 1110, 1123 (ND Ill. 2012); Heller v. District of Columbia,
670 F. 3d 1244, 1285 (CADC 2011) (Heller II) (Kavanaugh,
J., dissenting).
But, as I have noted before, many courts have resisted
our decisions in Heller and McDonald. See Silvester v.
Becerra, 583 U. S. ___, ___ (2018) (opinion dissenting from
denial of certiorari) (slip op., at 11). Instead of following the
guidance provided in Heller, these courts minimized that
decision’s framework. See, e.g., Gould v. Morgan, 907 F. 3d
659, 667 (CA1 2018) (concluding that our decisions “did not
provide much clarity as to how Second Amendment claims
should be analyzed in future cases”). They then “filled” the
4 ROGERS v. GREWAL
THOMAS, J., dissenting
self-created “analytical vacuum” with a “two-step inquiry”
that incorporates tiers of scrutiny on a sliding scale. Na-
tional Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms, and Explosives, 700 F. 3d 185, 194 (CA5 2012);
Powell v. Tompkins, 783 F. 3d 332, 347, n. 9 (CA1 2015)
(compiling Circuit opinions adopting some form of the
sliding-scale framework).
Under this test, courts first ask “whether the challenged
law burdens conduct protected by the Second Amendment.”
United States v. Chovan, 735 F. 3d 1127, 1136 (CA9 2013).
If so, courts proceed to the second step—determining the
appropriate level of scrutiny. Ibid. To do so, courts gener-
ally consider “how close the law comes to the core of the
Second Amendment right” and “the severity of the law’s
burden on the right.” Id., at 1138 (internal quotation marks
omitted); see also, e.g., Gould, supra, at 670–671. Depend-
ing on their analysis of those two factors, courts then apply
what purports to be either intermediate or strict scrutiny—
at least recognizing that Heller barred the application of
rational basis review. Chovan, supra, at 1137.
This approach raises numerous concerns. For one, the
courts of appeals’ test appears to be entirely made up. The
Second Amendment provides no hierarchy of “core” and pe-
ripheral rights. And “[t]he Constitution does not prescribe
tiers of scrutiny.” Whole Woman’s Health v. Hellerstedt, 579
U. S. ___, ___ (2016) (THOMAS, J., dissenting) (slip op., at
12); see also Heller II, supra, at 1283 (Kavanaugh, J., dis-
senting) (listing constitutional rights that are not subject to
means-ends scrutiny). Moreover, there is nothing in our
Second Amendment precedents that supports the applica-
tion of what has been described as “a tripartite binary test
with a sliding scale and a reasonable fit.” Duncan v.
Becerra, 265 F. Supp. 3d 1106, 1117 (SD Cal. 2017), aff ’d,
742 Fed. Appx. 218 (CA9 2018).
Even accepting this test on its terms, its application has
yielded analyses that are entirely inconsistent with Heller.
Cite as: 590 U. S. ____ (2020) 5
THOMAS, J., dissenting
There, we cautioned that “[a] constitutional guarantee sub-
ject to future judges’ assessments of its usefulness is no con-
stitutional guarantee at all,” stating that our constitutional
rights must be protected “whether or not future legislatures
or (yes) even future judges think that scope too broad.” 554
U. S., at 634–635. On that basis, we explicitly rejected the
invitation to evaluate Second Amendment challenges under
an “interest-balancing inquiry, with the interests protected
by the Second Amendment on one side and the governmen-
tal public-safety concerns on the other.” Id., at 689(BREYER, J., dissenting). But the application of the test
adopted by the courts of appeals has devolved into just
that.1 In fact, at least one scholar has contended that this
interest-balancing approach has ultimately carried the day,
as the lower courts systematically ignore the Court’s actual
holding in Heller. See Rostron, Justice Breyer’s Triumph
in the Third Battle Over the Second Amendment, 80 Geo.
Wash. L. Rev. 703 (2012). With what other constitutional
right would this Court allow such blatant defiance of its
precedent?
Whatever one may think about the proper approach to
analyzing Second Amendment challenges, it is clearly time
——————
1 See, e.g., Kachalsky v. County of Westchester, 701 F. 3d 81, 100 (CA2
2012) (deferring to the legislature’s conclusion that “public safety . . . out-
weighs the need to have a handgun for an unexpected confrontation”);
New York State Rifle & Pistol Assn., Inc. v. New York, 883 F. 3d 45, 64
(CA2 2018) (stating that a “review of state and local gun control” involves
a “balancing of the individual’s constitutional right to keep and bear
arms against the states’ obligation to ‘prevent armed mayhem’ ” (quoting
Kachalsky, supra, at 96)), vacated and remanded, ante, p. ___; Gould v.
Morgan, 907 F. 3d 659, 676 (CA1 2018) (stating that “courts must defer
to a legislature’s choices among reasonable alternatives” when the legis-
lature has “take[n] account of the heightened needs of some individuals
to carry firearms for self-defense and balance[d] those needs against the
demands of public safety”); Drake v. Filko, 724 F. 3d 426, 440 (CA3 2013)
(“refus[ing] . . . to intrude upon the sound judgment and discretion of the
State of New Jersey” that only “those citizens who can demonstrate a
‘justifiable need’ to do so” may carry handguns outside the home).
6 ROGERS v. GREWAL
THOMAS, J., dissenting
for us to resolve the issue.
II
This case also presents the Court with an opportunity to
clarify that the Second Amendment protects a right to pub-
lic carry. While some Circuits have recognized that the Sec-
ond Amendment extends outside the home, see Wrenn v.
District of Columbia, 864 F. 3d 650, 665 (CADC 2017);
Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012), many
have declined to define the scope of the right, simply assum-
ing that the right to public carry exists for purposes of ap-
plying a scrutiny-based analysis, see Woollard v. Gallagher,
712 F. 3d 865, 876 (CA4 2013); Drake v. Filko, 724 F. 3d
426, 431 (CA3 2013); Kachalsky v. County of Westchester,
701 F. 3d 81, 89 (CA2 2012).2 Other courts have specifically
indicated that they would not interpret the Second Amend-
ment to apply outside the home without further instruction
from this Court. United States v. Masciandaro, 638 F. 3d
458, 475 (CA4 2011) (“On the question of Heller’s applica-
bility outside the home environment, we think it prudent to
await direction from the Court itself”); Williams v. State,
417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011) (“If the Su-
preme Court . . . meant its holding [in Heller] to extend be-
yond home possession, it will need to say so more plainly”).
We should provide the requested instruction.
A
The text of the Second Amendment guarantees that “the
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2 It is not clear how these courts can apply the made-up sliding scale
test without determining the scope of the right. See Peruta v. County of
San Diego, 742 F. 3d 1144, 1166 (CA9 2014) (noting that courts “must
fully understand the historical scope of the right before [they] can deter-
mine whether and to what extent the [challenged law] burdens the right
or whether it goes even further and amounts to a destruction of the right
altogether” (internal quotation marks omitted)), vacated and reh’g en
banc granted, 781 F. 3d 1106 (CA9 2015).
Cite as: 590 U. S. ____ (2020) 7
THOMAS, J., dissenting
right of the people to keep and bear Arms, shall not be in-
fringed.” As this Court explained in Heller, “[a]t the time
of the founding, as now, to ‘bear’ meant to ‘carry.’ ” 554
U. S., at 584. “When used with ‘arms,’ . . . the term has a
meaning that refers to carrying for a particular purpose—
confrontation.” Ibid. Thus, 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 con-
flict with another person.’ ” Ibid. (quoting Muscarello v.
United States, 524 U. S. 125, 143 (1998) (GINSBURG, J., dis-
senting); alterations and some internal quotation marks
omitted).
“The most natural reading of this definition encompasses
public carry.” Peruta v. California, 582 U. S. ___, ___ (2017)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 5). Confrontations, of course, often occur outside the
home. See, e.g., Moore, supra, at 937 (noting that “most
murders occur outside the home” in Chicago). Thus, the
right to carry arms for self-defense inherently includes the
right to carry in public. This conclusion not only flows from
the definition of “bear Arms” but also from the natural use
of the language in the text. As I have stated before, it is
“extremely improbable that the Framers understood the
Second Amendment to protect little more than carrying a
gun from the bedroom to the kitchen.” Peruta, supra, at ___
(opinion dissenting from denial of certiorari) (slip op., at 5).
The meaning of the term “bear Arms” is even more evi-
dent when read in the context of the phrase “right . . . to
keep and bear Arms.” U. S. Const., Amdt. 2. “To speak of
‘bearing’ arms solely within one’s home . . . would conflate
‘bearing’ with ‘keeping,’ in derogation of [Heller’s] holding
that the verbs codified distinct rights.” Drake, supra, at 444
(Hardiman, J., dissenting); see also Moore, supra, at 936.
In short, it would take serious linguistic gymnastics—and
a repudiation of this Court’s decision in Heller—to claim
8 ROGERS v. GREWAL
THOMAS, J., dissenting
that the phrase “bear Arms” does not extend the Second
Amendment beyond the home.
B
Cases and treatises from England, the founding era, and
the antebellum period confirm that the right to bear arms
includes the right to carry in public.
1
“[T]he Second Amendment . . . codified a pre-existing
right.” Heller, supra, at 592. So, as in Heller, my analysis
of the scope of that right begins with our country’s English
roots.
In 1328, during a time of political transition, the English
Parliament enacted the Statute of Northampton. The Stat-
ute provided that no man was permitted to “bring . . . force
in affray of the peace, nor to go nor ride armed by night nor
by day, in Fairs, Markets, nor in the presence of the Jus-
tices or other Ministers, nor in no part elsewhere.” Statute
of Northampton 1328, 2 Edw. 3, ch. 3. On its face, the stat-
ute could be read as a sweeping ban on the carrying of arms.
However, both the history and enforcement of the statute
reveal that it created a far more limited restriction.
From the beginning, the scope of the Statute of North-
ampton was unclear. Some officers were ordered to arrest
all persons that “go armed,” regardless of whether the
bearer was carrying arms peacefully. See Letter to Mayor
and Bailiffs of York (Jan. 30, 1334), in Calendar of the Close
Rolls, Edward III, 1333–1337, p. 294 (H. Maxwell-Lyte ed.
1898). Other officers, however, were ordered to arrest only
“persons riding or going armed to disturb the peace.” Letter
to Keeper and Justices of Northumberland (Oct. 28, 1332),
in Calendar of the Close Rolls, Edward III, 1330–1333, p.
610 (H. Maxwell-Lyte ed. 1898) (emphasis added).
Whatever the initial breadth of the statute, it is clear that
it was not strictly enforced in the ensuing centuries. To the
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THOMAS, J., dissenting
contrary, “[d]uring most of England’s history, maintenance
of an armed citizenry was neither merely permissive nor
cosmetic but essential” because “[u]ntil late in the seven-
teenth century England had no standing army, and until
the nineteenth century no regular police force.” Malcom,
The Right of the People To Keep and Bear Arms: The Com-
mon Law Tradition, 10 Hastings Const. L. Q. 285, 290
(1983). Citizens were not only expected to possess arms,
they were encouraged to maintain skills in the use of those
arms, which, of course, required carrying arms in public.
See, e.g., id., at 292 (describing King Henry VIII’s order re-
quiring villages to maintain targets at which local men
were to practice shooting).
The religious and political turmoil in England during the
17th century thrust the scope of the Statute of Northamp-
ton to the forefront. See J. Malcom, To Keep and Bear Arms
104–105 (1994) (hereinafter Malcolm). King James II, a
Catholic monarch, sought to revive the Statute of North-
ampton as a weapon to disarm his Protestant opponents.
Id., at 104. To this point, “[a]lthough men were occasionally
indicted for carrying arms to terrorize their neighbours, the
strict prohibition [of the Statute of Northampton] had never
been enforced.” Ibid. But, in November 1686, the Attorney
General brought Sir John Knight—an opponent of James
II—to trial before the King’s Bench. The information al-
leged that Knight violated the Statute of Northampton by
“walk[ing] about the streets armed with guns, and [enter-
ing] 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. At
trial, the Chief Justice of the King’s Bench stated that the
Statute of Northampton only “punish[ed] people who go
armed to terrify the King’s subjects.” Id., at 118, 87 Eng.
Rep., at 76 (emphasis added). He explained that the Stat-
ute of Northampton was “almost gone in desuetudinem” for
“now there be a general connivance to gentlemen to ride
10 ROGERS v. GREWAL
THOMAS, J., dissenting
armed for their security.” Rex v. Sir John Knight, 1 Comb.
38, 39, 90 Eng. Rep. 330 (1686). The Chief Justice also
noted that only “where the crime shall appear to be malo
animo [i.e., with a wrongful intent,] it will come within the
Act.” Ibid. In other words, the Statute of Northampton was
almost obsolete from disuse and prohibited only the carry-
ing arms to terrify. Knight was ultimately acquitted.3
James II’s attempts to disarm his opponents continued.
Only two weeks after Knight’s acquittal, James II ordered
general disarmaments of regions inhabited by his
Protestant enemies under the auspices of the Game Act of
1671. See Malcom 105–106. As we explained in Heller,
“[t]hese experiences caused Englishmen to be extremely
wary of concentrated military forces run by the state and to
be jealous of their arms.” 554 U. S., at 593.
In 1688, James II was deposed in an uprising which came
to be known as The Glorious Revolution. Soon thereafter,
the English compiled the Declaration of Rights, which con-
tained a list of grievances against James II and sought as-
surances from William and Mary that Protestants would
not be disarmed. See Malcom 115. William and Mary ac-
cepted the Declaration of Rights, which was later codified
as the English Bill of Rights, agreeing that “the Subjects
which are Protestants may have Arms for their Defence
suitable to their Conditions, and as allowed by Law.” 1 Wm.
& Mary, ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).
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3 At least one scholar has asserted that Sir John Knight was acquitted
because he fell within the Statute of Northampton’s exception for the
“King’s Officers and Ministers.” Charles, The Faces of the Second
Amendment Outside the Home: History Versus Ahistorical Standards of
Review, 60 Clev. St. L. Rev. 1, 28, 30 (2012) (internal quotation marks
omitted). This assertion has been repudiated by subsequent scholarship.
See Kopel, The First Century of Right to Arms Litigation, 14 Geo. J. L.
& Pub. Pol’y 127, 135, n. 46 (2016); see also Young v. Hawaii, 896 F. 3d
1044, 1064, n. 17 (CA9 2018), reh’g en banc granted, 915 F. 3d 681 (CA9
2019). Moreover, regardless of the ground for acquittal, the Chief Jus-
tice’s pronouncement of law remains.
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THOMAS, J., dissenting
The Statute of Northampton remained in force following
the codification of the English Bill of Rights, but the narrow
interpretation of the statute adopted in Sir John Knight’s
Case became blackletter law in England. Writing in 1716,
Serjeant William Hawkins, author of an influential English
treatise, explained that “no wearing of Arms is within the
meaning of [the Statute of Northampton], unless it be ac-
companied with such Circumstances as are apt to terrify
the People; from whence it seems clearly to follow, That
Persons of Quality are in no Danger of Offending against
this Statute by wearing common Weapons.” 1 Pleas of the
Crown 136 (1716). Theodore Barlow, another legal com-
mentator, also explained that “Wearing Arms, if not accom-
panied with Circumstances of Terror, is not within this
Statute; therefore People of Rank and Distinction do not of-
fend by wearing common Weapons.” The Justice of Peace:
A Treatise Containing the Power and Duty of That Magis-
trate 12 (1745). Sir William Blackstone concluded the Stat-
ute of Northampton banned only the carrying of “dangerous
and unusual weapons.” Heller, supra, at 627 (internal quo-
tation marks omitted). He explained that the right to arms
protected by the 1689 English Bill of Rights preserved “the
natural right of resistance and self-preservation” and “the
right of having and using arms for self-preservation and de-
fence.” 1 Commentaries on the Laws of England 139–140
(1765); see also 2 id., at 412, n. 2 (E. Christian ed. 1794)
(“[E]veryone is at liberty to keep or carry a gun, if he does
not use it for the [illegal] destruction of game” (editor’s
note)).
In short, although England may have limited the right to
carry in the 14th century, by the time of the founding, the
English right was “an individual right protecting against
both public and private violence.” Heller, supra, at 594 (em-
phasis added). And for purposes of discerning the original
meaning of the Second Amendment, it is this founding era
understanding that is most pertinent.
12 ROGERS v. GREWAL
THOMAS, J., dissenting
2
Founding era legal commentators in America also under-
stood the Second Amendment right to “bear Arms” to en-
compass the right to carry in public.
St. George Tucker, in his 1803 American edition of Black-
stone’s Commentaries, explained that the right to armed
self-defense is the “first law of nature.” 1 Blackstone’s Com-
mentaries, App. 300. He described “the right of the people
to keep and bear arms” as “the true palladium of liberty.”
Ibid. Tucker makes clear that bearing arms in public was
common practice at the founding: “In many parts of the
United States, a man no more thinks, of going out of his
house on any occasion, without his rifle or musket in his
hand, than a European fine gentleman without his sword
by his side.” 5 id., at 19.
Similarly, William Rawle, a member of the Pennsylvania
Assembly that ratified the Bill of Rights, acknowledged the
right to carry arms in public. A View of the Constitution of
the United States of America 125–126 (1825). Rawle noted
that the right should not “be abused to the disturbance of
the public peace” and explained that if a man carried arms
“attended with circumstances giving just reason to fear that
he purposes to make an unlawful use of them,” he may be
required “to give surety of the peace.” Id., at 126.4 But his
general understanding appeared to mirror Hawkins’ artic-
ulation of the English right—public carry was permitted so
long as it was not done to terrify.
Other commentators took a similar view. James Wilson,
a prominent Framer and one of the six original Justices of
the Supreme Court, understood founding era law to pro-
hibit only the carrying of “dangerous and unusual weapons,
——————
4 Lower courts looking to historical practice have concluded that, even
in these circumstances, if a surety was provided or the accused was ex-
empt from providing a surety, he could continue to bear arms in public.
Wrenn v. District of Columbia, 864 F. 3d 650, 661 (CADC 2017) (explain-
ing the application of surety laws); Young, 896 F. 3d, at 1061–1062.
Cite as: 590 U. S. ____ (2020) 13
THOMAS, J., dissenting
in such a manner, as will naturally diffuse a terrour among
the people.” 2 Lectures on Law, in Collected Works of
James Wilson 1138 (K. Hall & M. Hall eds. 2007). Charles
Humphreys, a law professor, reiterated “that in this coun-
try the constitution guarranties to all persons the right to
bear arms” and that “it can only be a crime to exercise this
right in such a manner, as to terrify the people unneces-
sarily.” A Compendium of the Common Law in Force in
Kentucky 482 (1822).
3
This view persisted in the early years of the Republic.
The majority of the relevant cases during the antebellum
period—many of which Heller relied on—support the un-
derstanding that the phrase “bear Arms” includes the right
to carry in public.
In Bliss v. Commonwealth, 12 Ky. 90 (1822), the Ken-
tucky Court of Appeals held that its state constitutional
right to “bear arms” invalidated a concealed carry re-
striction. Id., at 91–92. The court stated that “whatever
restrains the full and complete exercise of [the right to bear
arms], though not an entire destruction of it, is forbidden
by the explicit language of the constitution.” Ibid.Eleven years after Bliss, Tennessee’s highest court inter-
preted its State Second Amendment analog in a similar
manner in Simpson v. State, 13 Tenn. 356 (1833). In that
case, a jury convicted Simpson of carrying arms “in a war-
like manner . . . and to the great terror and disturbance of
. . . good citizens.” Id., at 357. Simpson challenged the con-
viction, arguing that the State merely proved that he car-
ried arms, not that he did so in a manner to provoke vio-
lence. Id., at 358. The State asserted that violence was not
“essential” to support the conviction, pointing to a state-
ment of Serjeant Hawkins regarding the English Statute of
Northampton. Ibid. The court rejected the State’s argu-
ment. First, it noted that the State had selectively quoted
14 ROGERS v. GREWAL
THOMAS, J., dissenting
Hawkins’ statement about “ ‘dangerous and unusual weap-
ons,’ ” and that Hawkins actually explained that “persons of
quality are in no danger of offending [the Statute of North-
ampton] by wearing their common weapons . . . in such
places and upon occasions in which it is the common fashion
to make use of them without causing the least suspicion of
an intention to commit any act of violence or disturbance of
the peace.” Id., at 358–359. Second, the court held that
even assuming “that our ancestors adopted and brought
over with them [the Statute of Northampton], or [a] portion
of the common law,” the state-law “right to keep and to bear
arms” “completely abrogated it.” Id., at 359–360 (internal
quotation marks omitted).
In 1840, the Supreme Court of Alabama concluded that,
while the legislature could impose limitations on “the man-
ner in which arms shall be borne,” it could not bar the right
to bear arms in public for self-defense. State v. Reid, 1 Ala.
612, 616–619. The court upheld a prohibition on the “prac-
tice of carrying weapons secretly.” Id., at 616 (internal quo-
tation marks omitted). In doing so, however, the court rec-
ognized that there were limits to the State’s ability to
restrict the right to carry in public: “A statute which, under
the pretence of regulating, amounts to a destruction of the
right [to bear arms], or which requires arms to be so borne
as to render them wholly useless for the purpose of defence,
would be clearly unconstitutional.” Id., at 616–617. In the
court’s view, “it is only when carried openly, that [arms] can
be efficiently used for defence.” Id., at 619. Thus, the court
allowed some regulation of the form of carrying arms in
public, but it firmly concluded that the right to carry in pub-
lic for self-defense could not be eliminated altogether.
Other state courts adopted a similar view. In Nunn v.
State, 1 Ga. 243 (1846), the Supreme Court of Georgia held
that “seek[ing] to suppress the practice of carrying certain
weapons secretly . . . is valid” but that “a prohibition against
bearing arms openly is in conflict with the Constitution, and
Cite as: 590 U. S. ____ (2020) 15
THOMAS, J., dissenting
void.” Id., at 251. And, in State v. Chandler, 5 La. 489(1850), the Supreme Court of Louisiana held that the State
could ban concealed carry but that the “right to carry arms
. . . in full open view” was “guaranteed by the Constitution
of the United States.” Id., at 489–490 (internal quotation
marks omitted).
These cases show that, with few exceptions,5 courts in the
antebellum period understood the right to bear arms as in-
cluding the right to carry in public for self-defense.
C
Finally, in the wake of the Civil War, “there was an out-
pouring of discussion of the Second Amendment in Con-
gress and in public discourse, as people debated whether
and how to secure constitutional rights for newly free
slaves.” Heller, 554 U. S., at 614. These discussions con-
firm that the Second Amendment right to bear arms was
understood to protect public carry at the time the Four-
teenth Amendment was ratified.6
As I have previously explained, “Southern anxiety about
an uprising among the newly freed slaves peaked” after the
Civil War. McDonald, 561 U. S., at 846 (opinion concurring
in part and concurring in judgment). Acting on this fear,
States of the “old Confederacy” engaged in “systematic ef-
forts” to disarm recently freed slaves and many of the
180,000 blacks who served in the Union Army. Id., at 847
——————
5 In State v. Buzzard, 4 Ark. 18 (1842), the Supreme Court of Arkansas
upheld a law that prohibited concealed carry. Id., at 27 (opinion of Ringo,
C. J.); id., at 32 (opinion of Dickinson, J.); but see id., at 34–35 (Lacy, J.,
dissenting).
6 Although these discussions occurred well after the ratification of the
Bill of Rights, Heller treated them as “instructive” in determining the
meaning of the Second Amendment. 554 U. S., at 614. The discussions
also inform our understanding of the right to keep and bear arms guar-
anteed by the Fourteenth Amendment as a privilege of American citizen-
ship. See McDonald v. Chicago, 561 U. S. 742, 837 (2010) (THOMAS, J.,
concurring in part and concurring in judgment).
16 ROGERS v. GREWAL
THOMAS, J., dissenting
(internal quotation marks omitted). “Throughout the
South, armed parties, often consisting of ex-Confederate
soldiers serving in the state militias, forcibly took firearms
from newly freed slaves.” Id., at 772 (majority opinion). In
addition, some States passed laws that explicitly prohibited
blacks from carrying arms without a license (a requirement
not imposed on white citizens) or barred blacks from pos-
sessing arms altogether. See Cottrol & Diamond, The Sec-
ond Amendment: Toward an Afro–Americanist Reconsider-
ation, 80 Geo. L. J. 309, 344–345 (1991) (compiling laws
from Alabama, Louisiana, and Mississippi).
The Federal Government acknowledged that these
abuses violated blacks’ fundamental right to carry arms in
public. In 1866, a report of the Commissioner of the Freed-
men’s Bureau recognized that “[t]he civil law [of Kentucky]
prohibits the colored man from bearing arms” and con-
cluded that such a restriction infringed “the right of the peo-
ple to keep and bear arms as provided in the Constitution.”
H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236.
Similarly, a circular in a congressional Report acknowl-
edged that “in some parts of [South Carolina,] armed par-
ties are, without proper authority, engaged in seizing all
fire-arms found in the hands of the freedmen . . . in plain
and direct violation of their personal rights [to keep and
bear arms] as guaranteed by the Constitution of the United
States.” Joint Comm. on Reconstruction, H. R. Rep. No. 30,
39th Cong., 1st Sess., 229 (1866) (Proposed Circular of Brig-
adier Gen. R. Saxton). The circular noted the “peaceful and
orderly conduct” of freed slaves when carrying arms, as well
as their need “to kill game for subsistence, and to protect
their crops from destruction by birds and animals,” clearly
indicating that the bearing of arms occurs in public. Ibid.Finally, numerous Congressmen expressed dismay at the
denial of blacks’ rights to bear arms when discussing the
Civil Rights Act of 1866, the Freedmen’s Bureau Act of
1866, and the Fourteenth Amendment. See Halbrook, The
Cite as: 590 U. S. ____ (2020) 17
THOMAS, J., dissenting
Jurisprudence of the Second and Fourteenth Amendments,
4 Geo. Mason L. Rev. 1, 21–25 (1981).
The importance of the right to carry arms in public dur-
ing Reconstruction and thereafter cannot be overstated.
“The use of firearms for self-defense was often the only way
black citizens could protect themselves from mob violence.”
McDonald, 561 U. S., at 857 (opinion of THOMAS, J.). And,
unfortunately, “[w]ithout federal enforcement of the inal-
ienable right to keep and bear arms, . . . militias and mobs
were tragically successful in waging a campaign of terror”
against Southern blacks. Id., at 856. On this record, it is
clear that “the Framers of the Privileges or Immunities
Clause and the ratifying-era public understood—just as the
Framers of the Second Amendment did—that the right to
keep and bear arms” encompassed the right to carry arms
in public for self-defense. Id., at 858.
In short, the text of the Second Amendment and the his-
tory from England, the founding era, the antebellum period,
and Reconstruction leave no doubt that the right to “bear
Arms” includes the individual right to carry in public in
some manner.
III
Recognizing that the Constitution protects the right to
carry arms in public does not mean that there is a “right to
. . . carry any weapon whatsoever in any manner whatso-
ever and for whatever purpose.” Heller, 554 U. S., at 626.
“The protections enumerated in the Second Amendment . . .
are not absolute prohibitions against government regula-
tion.” Voisine v. United States, 579 U. S. ___, ___ (2016)
(THOMAS, J., dissenting) (slip op., at 17). States can impose
restrictions on an individual’s right to bear arms that are
consistent with historical limitations. “Some laws, how-
ever, broadly divest an individual of his Second Amend-
ment rights” altogether. Ibid. This case gives us the ideal
opportunity to at least begin analyzing which restrictions
18 ROGERS v. GREWAL
THOMAS, J., dissenting
are consistent with the historical scope of the right to bear
arms.
It appears that a handful of States throughout the coun-
try prohibit citizens from carrying arms in public unless
they can establish “good cause” or a “justifiable need” for
doing so. The majority of States, while regulating the car-
rying of arms to varying degrees, have not imposed such a
restriction, which amounts to a “[b]a[n] on the ability of
most citizens to exercise an enumerated right.” Wrenn, 864
F. 3d, at 666. The Courts of Appeals are squarely divided
on the constitutionality of these onerous “justifiable need”
or “good cause” restrictions. The D. C. Circuit has held that
a law limiting public carry to those with a “good reason to
fear injury to [their] person or property” violates the Second
Amendment. Wrenn, 864 F. 3d, at 655 (internal quotation
marks omitted).7 By contrast, the First, Second, Third, and
Fourth Circuits have upheld the constitutionality of licens-
ing schemes with “justifiable need” or “good reason” re-
quirements, applying what purported to be an intermediate
scrutiny standard. See Gould, 907 F. 3d, at 677; Kachalsky,
701 F. 3d, at 101; Drake, 724 F. 3d, at 440; Masciandaro,
638 F. 3d, at 460.
“One of this Court’s primary functions is to resolve ‘im-
portant matter[s]’ on which the courts of appeals are ‘in con-
flict.’ ” Gee v. Planned Parenthood of Gulf Coast, Inc., 586
U. S. ___, ___ (2018) (THOMAS, J., dissenting from denial of
certiorari) (slip op., at 1) (quoting this Court’s Rule 10(a)).
The question whether a State can effectively ban most citi-
zens from exercising their fundamental right to bear arms
——————
7 A panel of the Ninth Circuit, in an exhaustive and scholarly opinion,
also held that a law violated the Second Amendment by limiting public
carry to those with “ ‘urgency,’ ” “ ‘need,’ ” or a “ ‘reason to fear injury.’ ”
Young, 896 F. 3d, at 1048. That decision, however, was vacated when a
majority of the active judges on the Ninth Circuit voted to grant en banc
review. See 915 F. 3d 681.
Cite as: 590 U. S. ____ (2020) 19
THOMAS, J., dissenting
surely qualifies as such a matter. We should settle the con-
flict among the lower courts so that the fundamental pro-
tections set forth in our Constitution are applied equally to
all citizens.
* * *
This case gives us an opportunity to provide lower courts
with much-needed guidance, ensure adherence to our prec-
edents, and resolve a Circuit split. Each of these reasons is
independently sufficient to grant certiorari. In combina-
tion, they unequivocally demonstrate that this case war-
rants our review. Rather than prolonging our decade-long
failure to protect the Second Amendment, I would grant
this petition.