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Grace v. District of Columbia

United States District Court, District of Columbia

May 17, 2016

MATTHEW GRACE and PINK PISTOLS, Plaintiffs,
v.
DISTRICT OF COLUMBIA and CATHY LANIER, in her official capacity as Chief of Police for the Metropolitan Police Department, Defendants.

          MEMORANDUM OPINION (MAY 17, 2016) [DKT. #6]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE.

         In 2008, the Supreme Court recognized for the first time that "the Second Amendment conferred an individual right to keep and bear arms." District of Columbia v. Heller, 554 U.S. 570, 595 (2008). As such, it struck down as unconstitutional the District of Columbia's ("the District's") total ban on handguns in the home. Id. at 635. Since then, various courts have considered a multitude of challenges to gun laws, charting the contours of a constitutional right that has been the people's since the infancy of our Nation. In this case, plaintiffs Matthew Grace ("Grace") and the Pink Pistols challenge the constitutionality of yet another law, and set of regulations, enacted by the District. In particular, they contend that the District's requirement that applicants for a license to carry a concealed firearm demonstrate a "good reason to fear injury to his or her person or property" or "any other proper reason for carrying a pistol, " as further defined by District law and regulations (collectively "the 'good reason' requirement"), is inconsistent with the individual right to bear arms under the Second Amendment and therefore unconstitutional. See Compl. ¶¶ 11-15 [Dkt. #1] (quoting D.C. Code § 22-4506(a)). Presently before the Court is plaintiffs' Motion for a Preliminary and/or Permanent Injunction to enjoin the District and Chief of Police Cathy Lanier ("defendants" or "the District") from enforcing the "good reason" requirement. Pls.' Mot. for Prelim, and/or Permanent Inj. [Dkt. #6]. Upon consideration of the record, the relevant law, and the pleadings, briefs, and oral arguments submitted and presented by the parties and the amici curiae, I find that plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that the District's "good reason" requirement is unconstitutional, that they will suffer irreparable harm absent preliminary injunctive relief, and that the equities and the public interest weigh in plaintiffs' favor. I will therefore GRANT plaintiffs' request for a preliminary injunction prohibiting the District from requiring individuals to comply with the "good reason" requirement when applying for a concealed carry permit.

         Statutory and Regulatory Background

         In Heller, the Supreme Court held that the District's ban on the possession of handguns in the home violated the Second Amendment. 554 U.S. at 635. Shortly thereafter, the District adopted the Firearms Registration Amendment Act of 2008 ("FRA"), 56 D.C. Reg. 1365-80 (Feb. 13, 2009), to conform to the Supreme Court's ruling and to provide a "new scheme for regulating firearms.''' Heller v. District of Columbia ("Heller IF), 670 F.3d 1244, 1249 (D.C. Cir. 2011). The FRA required registration of handguns but provided that individuals who were not retired police officers could only obtain "registration of pistols for use in self-defense within the registrant's home" and, therefore, could not carry firearms outside the home. 56 D.C. Reg. 1365. Six years later, in Palmer v. District of Columbia, visiting Judge Frederick J. Scullin, Jr., [1] sitting by designation, ruled that "the carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment." 59 F.Supp. 3d 173, 181-82 (D.D.C. 2014) (quoting Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1166 (9th Cir. 2014)) (alteration in original).[2] He went on to hold that the District's "complete ban on the carrying of handguns in public [was] unconstitutional." Id. at 183.

         Undaunted, the District went back to the drawing board and, mimicking legislation in New York, Maryland, and New Jersey, see Council of the District of Columbia, Comm. on the Judiciary and Pub. Safety, Report on Bill 20-930, at 9 (2014), enacted a concealed carry licensing scheme that became effective June 16, 2015. License to Carry a Pistol Amendment Act of 2014, 62 D.C. Reg. 1944-57 (Feb. 6, 2015). Under the current law, "[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law . . . ." D.C. Code § 22-4504(a). The law provides for a multi-hurdle process for obtaining a concealed carry license, but the open carrying of firearms is, of course, still prohibited. See Id. § 7-2509.07(e); Transcript of Prelim. Inj. Proceedings at 48 [Dkl. #33]. Applicants for a concealed carry license must meet a variety of age, criminal history, personal history, mental health, and physical requirements, D.C. Code §§ 7-2502.03; 7-2509.02. Thereafter, they must satisfactorily complete a mandatory gun training and safety program and an in-person interview with a member of the Metropolitan Police Department to verify the information included in their application form. D.C. Code §§ 7-2509.02(a)(4), (f). Of relevance here, however, is a different hurdle embedded in a provision which states that the Chief of the Metropolitan Police Department "may" issue otherwise suitable applicants a license to carry a concealed firearm only if "it appears that the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol . . . ." Id. § 22-4506(a).

         Chief Lanier was directed to issue rules establishing criteria for determining whether an applicant has shown "good reason to fear injury to his or her person" or another "proper reason for carrying a concealed pistol." D.C. Code § 7-2509.11(1). The criteria to determine "good reason to fear injury lo his or her person" were "at a minimum [to] require a showing of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life." Id. § 7-2509.11(1)(A). As to other "proper reason[s]" the criteria were "at a minimum [to] include types of employment that require the handling of cash or other valuable objects that may be transported upon the applicant's person." Id. § 7-2509.11(1)(B).

         Chief Lanier issued regulations stating, "A person shall demonstrate a good reason to fear injury to his or her person by showing a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks which demonstrate a special danger to the applicant's life." D.C, Mun. Regs. tit. 24, § 2333.1. To satisfy this requirement, an applicant must "allege, in writing, serious threats of death or serious bodily harm, any attacks on his or her person, or any theft of property from his or her person" and must also "allege that the threats are of a nature that the legal possession of a pistol is necessary as a reasonable precaution against the apprehended danger." Id. § 2333.2. "The fact that a person resides in or is employed in a high crime area shall not by itself establish a good reason to fear injury to person or property for the issuance of a concealed carry license." Id. § 2333.4. Furthermore, an applicant "may allege any other proper reason that the Chief may accept for obtaining a concealed carry license, " including that his or her employment "requires the handling of large amounts of cash or other highly valuable objects that must be transported upon the applicant's person" or that the applicant has an immediate family member "who is physically or mentally incapacitated to a point where he or she cannot act in defense of himself or herself and who "can demonstrate a good reason to fear injury to his or her person by showing a special need for self-protection distinguishable from the general community .. . ." Id. § 2334.1.

         FACTUAL AND PROCEDURAL BACKGROUND

         The laws and regulations at issue here were first challenged in Wrenn v. District of Columbia, 107 F.Supp. 3d 1 (D.D.C. 2015), This Court's calendar committee assigned that case to visiting Senior Judge Scullin, and in granting the plaintiffs' Motion for a Preliminary Injunction he held that the "good reason" requirement likely "r[an] afoul of the Second Amendment." Id. at 12. On appeal, however, our Circuit Court ruled that Judge Scullin's designation to this Court "was limited to specific and enumerated cases" and that Wrenn was "not one of those cases." Wrenn, 808 F.3d at 83. Accordingly, the Circuit Court vacated Judge Scullin's order.[3] Id. at 84. Shortly thereafter, on December 22, 2015, the plaintiffs in this case filed a challenge to these same laws in a new complaint against defendants the District of Columbia and Chief Lanier, in her official capacity. See Compl. On December 28, 2015, plaintiffs moved for a preliminary and/or permanent injunction. See Pls.' Mot. for a Prelim, and/or Permanent Inj.

         Plaintiff Grace is a law-abiding, responsible United States citizen and resident of the District. Compl. ¶ 2, 16. He owns four handguns and has lawfully registered them with the District. Compl, ¶ 17. He would like to carry them outside his home for self-defense and has completed the firearm training required under District law to obtain a concealed carry license, Compl. ¶17. Grace concedes he does not face any specific threat that differentiates him from a typical resident of the District; however, several events have contributed to his desire to carry a concealed handgun including his wife being robbed on a public street, the discovery of shell casings in front of his home on the sidewalk, and robberies at gunpoint that occurred in his neighborhood and for which there has been no arrest. Compl. ¶ 18. In August 2015, Grace applied for a District of Columbia concealed carry license. Compl. ¶ 20. The application asked him to state his "special need for self-protection distinguishable from the general community" or any other "proper reason" to carry a firearm under District law. Compl. ¶ 20. Having none, Grace cited the Second Amendment instead. Compl. ¶ 20. On October 19, 2015, his application was denied on the grounds that he did not demonstrate a "good reason to fear injury to person or property, or other proper reason for a concealed carry license." Compl. ¶ 21. This was the sole basis for the rejection of his application. Compl. ¶¶ 21-22.

         The Pink Pistols is a shooting group, of which Grace is a member. Compl. ¶¶ 3, 16. The group advocates for "the use of lawfully owned, lawfully concealed . . . firearms for the self-defense of the sexual minority community." Compl. ¶ 3. The Pink Pistols has dozens of chapters across the country and is open to all regardless of sexual orientation. Compl. ¶ 3. The group believes, as Justice Alito recognized in McDonald v. City of Chicago, that "the right to keep and bear arms ... is especially important for women and members of other groups that may be especially vulnerable to violent crime, " Compl. ¶ 3 (quoting 561 U.S. 742, 790 (2010) (controlling opinion)). The Pink Pistols maintain that the District's "restrictive carry laws are a direct affront to [its] central mission." Compl. ¶ 3.

         Arguing the District's "good reason" requirement violates the Second Amendment, plaintiffs request a preliminary and/or permanent injunction (1) forbidding defendants from denying concealed carry licenses to applicants who meet all of the District's eligibility requirements other than the "good reason" requirement; (2) forbidding defendants from enforcing the District's laws and regulations establishing and further defining the "good reason'" requirement, and (3) directing defendants to issue concealed carry licenses to Grace and other members of the Pink Pistols, who, apart from the "good reason" requirement are eligible for a concealed carry license. Pls.' Proposed Order 1-2 [Dkt. #6-2]. Plaintiffs do not challenge any other aspect of the District's licensing scheme. Mem. of P. & A. in Supp. Pls.' Appl. for a Prelim, and/or Permanent Inj. 7 [Dkt. #6-1] [hereinafter "Pls.' Mem."].

         On February 2, 2016, I heard arguments on plaintiffs' motion from the parties and from amici curiae the National Rifle Association, on behalf of plaintiffs, and Everytown for Gun Safety ("Everytown"), on behalf of defendants. Those amici also submitted briefs [Dkts. ##21, 22], as did amicus curiae the Brady Center to Prevent Gun Violence [Dkt. #31], Ultimately, our Court of Appeals issued its mandate in Wrenn on February 5, 2016, and, on February 9, 2016, that case was reassigned to my colleague Judge Kollar-Kotelly. Wrenn v. District of Columbia, 2016 WL 912174, at *5 (D.D.C. Mar. 7, 2016). Following the reassignment, Judge Kollar-Kotelly chose not to hear oral argument and instead, on March 7, 2016, issued an opinion denying the Wrenn plaintiffs' motion for a preliminary injunction. Id. at *15. Not surprisingly, the Wrenn plaintiffs filed a notice of appeal as to that decision the same day. Notice of Appeal, Wrenn v. District of Columbia, No. 15-162 (D.D.C. Mar. 7, 2016).

         ANALYSIS

         When ruling on a motion for preliminary injunction, the Court must consider "whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest." Sonera, Inc. v. Food & Drug Admin., 621 F.3d 891, 893 (D.C. Cir. 2010) (internal quotation marks omitted).[4] I will address each of these factors in turn.[5]

         I. Plaintiffs Have Demonstrated a Substantial Likelihood of Success on the Merits.

         Our Circuit employs a two-step approach to determining the constitutionality of gun laws, Heller II, 670 F.3d at 1252-53. The Court firsts asks "whether a particular provision impinges upon a right protected by the Second Amendment." Id. at 1252. If it does not, there is no reason for further inquiry, If it does, however, the Court then "determine]['] whether the provision passes muster under the appropriate level of constitutional scrutiny." Id.

         A. Step One: The "Good Reason" Requirement Likely Impinges Upon A Right Protected by the Second Amendment.

         In Heller, the Supreme Court held the Second Amendment secures at least "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S. at 635. The Court did not, however, "undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment[.]" Id. at 626. It therefore left open the questions of whether, and to what extent, the Second Amendment protects a right to carry arms for self-defense outside the home. Heller made clear, however, that the Second Amendment right to keep and bear arms, like other constitutional rights, is "not unlimited" and "include[s] exceptions." 554 U.S. at 595, 635. At the same time, it is not a malleable provision that bends to "future judges' assessments of its usefulness" and is instead "enshrined with the scope [it was] understood to have when the people adopted [it.]" Id. at 634-35. Thus, a "historical understanding of the scope of the right" is critical to the analysis. Id. at 625.

         The Supreme Court identified several 'longstanding prohibitions on the possession of firearms, " and emphasized "nothing in [the] opinion should be taken to cast doubt on" them. Id. at 626-27 (citing "prohibitions on the possession of firearms by felons and the mentally ill, [] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms"). The Court stated these laws are a non-exhaustive set of "presumptively lawful regulatory measures, " id. at 627 n.26, but it "did not explain why" that is so. United States v. Chester, 628 F.3d 673, 676 (4th Cir. 2010). In Heller II, our Circuit Court clarified that longstanding regulations are presumptively lawful because they have "long been accepted by the public, " and are therefore presumed not to cover "activities . . . protected from regulation by the Second Amendment."[6] 670 F.3d at 1253. Although our Circuit Court has yet to address the issue of the burden of proof, it seems only fair that the Government should bear the burden of demonstrating that a challenged regulation is "longstanding" and therefore enjoys a presumption of constitutionality. See, e.g., Kolbe v. Hogan, 813 F.3d 160, 176 (4th Cir. 2016) ("[I]t it is the government's burden to establish that a particular weapon or activity falls outside the scope of the Second Amendment right."), reh'g en banc granted, No. 14-1945, 2016 WL 851670 (4th Cir. Mar. 4, 2016); Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011) (stating the government does not establish a challenged regulation "fall[s] outside the scope of the Second Amendment right . . . where the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected"). If the Government meets this burden, a plaintiff in this Circuit may still rebut the presumption by showing that "the regulation does have more than a de minimis effect upon [his or her Second Amendment] right." Heller II, 670 F.3d at 1253.

         Here, the parties present two potentially dispositive questions. First, is the Second Amendment's applicability limited only to the home? Second, does the "good reason" requirement enjoy a presumption of constitutionality that cannot be rebutted? If the answer to either question is4tyes, " the plaintiffs lose at step one because the Second Amendment has not been implicated.[7] If the answer to both is "no, " the Second Amendment applies, and the Court must proceed to step two.

         1. The Second Amendment's Applicability Is Not Limited to the Home.

         Plaintiffs rely on the text and history of the Second Amendment to argue that the individual rights therein extend beyond the threshold of the home. Pls.' Mem. 9-19. As is the case with all constitutional provisions, the meaning of the Second Amendment "is to be interpreted according to standard tools of statutory interpretation, beginning with its text." Nuclear Energy Inst., Inc. v. EPA, 313 F.3d 1251, 1312 (D.C. Cir. 2004); see also Noel Canning v. NLRB, 705 F.3d 490, 495 (D.C. Cir. 2013) ("When interpreting a constitutional provision, [a court] must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution."). The Second Amendment states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Supreme Court has explained that "[a]t the time of the founding, as now, to 'bear' meant to 'carry.1" Heller, 554 U.S. at 584. One does not typically think of "carrying" as an activity exclusively done within the home. See Peruta, 742 F.3d at 1152 ("Speakers of the English language will all agree: 'bearing a weapon inside the home' does not exhaust this definition of 'carry.'"). Thus, reading the Second Amendment right to "bear" arms as applying only in the home is forced or awkward at best, and more likely is counter-textual. See Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1125 (10th Cir. 2015); Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). Moreover, the Supreme Court recognized that when "bear" is used with "'arms' ... the term has a meaning that refers to carrying for a particular purpose-confrontation." Heller, 554 U.S. at 584; see also Id. (stating that as used in the Second Amendment, the phrase lo "bear arms" means to "wear, bear, or carry [arms] 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" (alterations omitted) (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting))). Surely confrontations do not occur only in the home, and therefore''[t]o confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald." Moore, 702 F.3d at 937. Indeed, confrontations that might necessitate self-defense are less likely to occur in the home than on the streets of a city with many dangerous neighborhoods. See, e.g., Pls.' Supplemental Br. in Supp. of Their App. for a Prelim, and/or Permanent Inj. 2 [Dkt. #40] (citing the Bureau of Justice Statistics and stating "18.4% of violent crimes occur at or in the victim's home, while 26.5% occur on the street or in a parking lot or garage"). Thus, the textual analysis, when viewed with a touch of common sense and logic, weighs heavily in favor of finding that the right to bear arms reaches beyond one's doorstep.[8] Finally, I would emphasize that a legitimate need to protect oneself can arise at the drop of a hat. Thus, the right to "carry weapons in case of confrontation, " Heller, 554 U.S. at 592 (emphasis added), necessarily includes a right to carry firearms to protect oneself against unanticipated and suddenly arising threats. Cf. Heller, 554 U.S. at 679 (Stevens, J., dissenting) (acknowledging "the reality that the need to defend oneself may suddenly arise in a host of locations outside the home").

         Not surprisingly, such a reading is also supported by the historical record. The Second Amendment "codified a pre-existing right, " Heller, 554 U.S. at 592, and therefore the first step in the historical inquiry is examining the right we inherited from English and natural law. England's Bill of Rights of 1689 provided that "the subjects which are Protestants, may have arms for their defense suitable to their conditions, and as allowed by law." 1 W. & M., ch. 2, § 7, in 3 Eng. Stat, at Large 441. As William Blackstone explained, "the subjects of England [were] entitled ... to the right of having and using arms for self-preservation and defence, " which stems from "the natural right of resistance and self-preservation." I William Blackstone, Commentaries *139-40. Early commentators on this side of the pond described the right in substantially similar terms. See, e.g., 1 St. George Tucker, Blackstone's Commentaries, App. 300 (1803) [hereinafter "Tucker's Blackstone"] (stating the that right to keep and bear arms "may be considered the true palladium of liberty" and that "[t]he right of self defence is the first law of nature"); Heller 554 U.S. at 585 ("Justice James Wilson interpreted the Pennsylvania Constitution's arms-bearing right ... as a recognition of the natural right of defense 'of one's person or house'-what he called the law of self-preservation.'" (emphasis added) (quoting 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007))). Notably, these sources in no way suggest that the right to have and use arms in self-defense was considered a domiciliary right.

         Moreover, it is unquestionable that the public carrying of firearms was widespread during the Colonial and Founding Eras. And although this fact alone does not directly prove that the people had a right to do so, see Mclntyre, 514 U.S. at 360 (Thomas, J. concurring) ("'[T]he simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government."), it does provide an essential context for what the people who ratified the Second Amendment understood bearing arms to entail. Indeed, in the Colonial Period, carrying arms publicly was not only permitted-it was often required] i;[A]bout half the colonies had laws requiring arms-carrying in certain circumstances." Nicholas J. Johnson et al., Firearms Law and the Second Amendment 106 (2012). For example, in Virginia colonists were forbidden from traveling unless they were well armed, and they were required to "bring their pieces to church." Id. (citing William Walter Hening, 1 The Statutes at Large; Being a Collection of all the Laws of Virginia from the First Session of the Legislature in the Year 1619, at 198 (1823)). In 1639, a Newport, Rhode Island law provided that "noe man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that none shall come to any public Meeting without his weapon." Id. at 107 (citing 1 Records of the Colony of Rhode Island and Providence Plantations, in New England 94 (John Ressull Bartlett ed., 1856)).

         St. George Tucker, an eminent legal scholar and jurist, observed in 1803 that "[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in hand, than an European fine gentleman without his sword by his side." 5 Tucker's Blackstone at App. 19. Plaintiffs' brief and an amicus brief filed by historians and legal scholars in the Wrenn litigation cite multiple instances of our Founding Fathers carrying or advocating for carrying of firearms-including in populated areas. See Pls.' Mem. 15-16; Br. of Amici Curiae Historians, Legal Scholars, and CRPA Found, in Supp. of Appellees and in Supp. of Affirmance 20-23, Wrenn v. District of Columbia, No. 15 7057 (D.C. Cir. Oct. 7, 2015) [hereinafter "Historians & Scholars Br."]. For example, when George Washington traveled between Alexandria and Mount Vernon he holstered pistols to his saddle, "[a]s was then the custom." Pls.' Mem. 15 (quoting Benjamin Ogle Tayloe, In Memoriam 95 (1872)). Patrick Henry lived "just north of Hanover town, but close enough for him to walk to court, his musket slung over his shoulder to pick off small game ...." Historians & Scholars Br. 21 (quoting Harlow Giles Unger, Lion of Liberty 30 (2010)). Thomas Jefferson, who in an oft-cited letter advised his nephew to have his gun as a "constant companion on [his] walks, " Pls.' Mem. 15 (citing 1 The Writings of Thomas Jefferson 398 (H.A. Washington ed., 1853)), once left his pistol at an inn between Monticello and Washington, D.C. and asked two friends-both members of Congress-to retrieve it and bring it to him at the White House, Historians & Scholars Br. 22-23. Regarding the Boston Massacre, John Adams stated, "every private person is authorized to arm himself; and on the strength of this authority I do not deny the inhabitants had a right to arm themselves at that time for their defense." Pls.' Mem. 15-16 (quoting John Adams, First Day's Speech in Defense of the British Soldiers Accused of Murdering Attucks, Gray, and Others, in the Boston Riot of 1770, in 6 Masterpieces of Eloquence 2569, 2578 (Hazeltine et al. eds. 1905)).

         Finally, and importantly, Antebellum Era jurisprudence confirms that the right to bear arms includes a right to carry weapons in public for self-defense. See Noel Canning, 705 F.3d at 501 ("The interpretation of [a constitutional provision] in the years immediately following [its] ratification is the most instructive historical analysis in discerning the original meaning."). Nine state constitutional provisions were adopted from the late eighteenth century to the early nineteenth century, "which enshrined a right of citizens to 'bear arms in defense of themselves and the state' or 'bear arms in defense of himself and the state.'" Heller 554 U.S. at 584-85 (citing provisions).[9] In the early nineteenth century, several jurisdictions enacted laws that regulated the manner in which firearms could be carried in public by prohibiting the carrying of concealed weapons. See Leider, 89 Ind. L.J. at 1601-06. When these concealed carry bans were challenged as antithetical to the right to bear arms, courts almost uniformly upheld them, provided that open carry was not also prohibited.[10] See, e.g., State v. Re id, 1 Ala. 612, 619 (1840) ("[T]he Legislature cannot inhibit the citizen from bearing arms openly because [the state constitution] authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence."); Nunn, 1 Ga. at 250 (stating a prohibition of concealed carry was constitutionally permissible ''inasmuch as it d[id] not deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms" but making clear that a simultaneous "prohibition against bearing arms openly''' would be "in conflict with the Constitution, and void'); Chandler, 5 La. Ann. at 490 (stating the right to carry arms openly for self-defense "is the right guaranteed by the Constitution of the United States").[11] As the open carrying of weapons at issue was not occurring inside homes, see, e.g., Reid, 1 Ala. at 612-13, these cases are powerful evidence of a "public understanding, " Heller, 554 U.S. at 605, that the right to bear arms includes a right to carry arms outside the home for the purpose of self-defense.

         Given the textual and historical evidence, I have little trouble concluding that under its original meaning the Second Amendment protects a right to carry arms for self-defense in public. Of course, Judge Scullin already reached this same conclusion in Palmer. 59 F.Supp. 3d at 182, And, not surprisingly, the Court of Appeals panels that have directly addressed the issue have also reached the same conclusion. See Moore, 702 F.3d at 936 ('"A right to bear arms thus implies a right to carry a loaded gun outside the home."); Peruta, 742 F.3d at 1166 ("T]he carrying of an operable handgun outside the home for the lawful purpose of self-defense, though subject to traditional restrictions, constitutes 'bear[ing] Arms' within the meaning of the Second Amendment, ") (alteration in original). And other circuits have at least been willing to so assume. See Bonidy, 790 F.3d at 1125; Woollard v.Gallagh ...


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