New York State Rifle & Pistol Assn., Inc. v. Bruen

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEW YORK STATE RIFLE & PISTOL ASSOCIATION,

INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW

YORK STATE POLICE, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 20–843. Argued November 3, 2021—Decided June 23, 2022

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 de-

cision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had

sustained New York’s proper-cause standard, holding that the require-

ment was “substantially related to the achievement of an important

governmental interest.” Id., at 96.

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Syllabus

Held: New York’s proper-cause requirement violates the Fourteenth

Amendment by preventing law-abiding citizens with ordinary self-de-

fense 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 pro-

tects 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 devel-

oped a “two-step” framework for analyzing Second Amendment chal-

lenges that combines history with means-end scrutiny. The Court re-

jects that two-part approach as having one step too many. Step one is

broadly consistent with Heller, which demands a test rooted in the Sec-

ond Amendment’s text, as informed by history. But Heller and McDon-

ald 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 legisla-

tive interest balancing is understandable—and, elsewhere, appropri-

ate—it is not deference that the Constitution demands here. The Sec-

ond 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 under-

standing. 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

Cite as: 597 U. S. ____ (2022) 3

Syllabus

can, and must, apply to circumstances beyond those the Founders spe-

cifically 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 im-

pose a comparable burden on the right of armed self-defense, and sec-

ond, 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 consti-

tutional muster. For example, courts can use analogies to “longstand-

ing” “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 require-

ment as a “sensitive-place” law lacks merit because there is no histor-

ical basis for New York to effectively declare the island of Manhattan

a “sensitive place” simply because it is crowded and protected gener-

ally 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 ordi-

nary, 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.

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

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(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 va-

riety of historical sources from the late 1200s to the early 1900s. But

when it comes to interpreting the Constitution, not all history is cre-

ated 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 post-

dates 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 Eng-

lish 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 spe-

cial need for self-protection. Pp. 30–37.

(ii) Respondents next direct the Court to the history of the Col-

onies 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 “fear” or “terror” among the people, including by car-

rying 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 quintes-

sential 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 heav-

ily 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.

Cite as: 597 U. S. ____ (2022) 5

Syllabus

Common-Law Offenses. As during the colonial and founding peri-

ods, 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 com-

mon-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 pis-

tols and other small weapons. But the antebellum state-court deci-

sions 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 individu-

als 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 op-

erated 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 “discus-

sion 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 peace-

ably 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 pub-

lic. See Heller, 554 U. S., at 632. Pp. 52–58.

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

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(v) Finally, respondents point to the slight uptick in gun regu-

lation 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 ev-

idence. 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 under-

stood 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 re-

strictions 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 re-

quirement. 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.

Cite as: 597 U. S. ____ (2022) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–843

_________________

NEW YORK STATE RIFLE & PISTOL ASSOCIATION,

INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN

HIS OFFICIAL CAPACITY AS SUPERINTENDENT

OF NEW YORK STATE POLICE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 23, 2022]

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 recog-

nized 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, petition-

ers and respondents agree that ordinary, law-abiding citi-

zens 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 hand-

gun for self-defense outside the home.

The parties nevertheless dispute whether New York’s li-

censing regime respects the constitutional right to carry

handguns publicly for self-defense. In 43 States, the gov-

ernment issues licenses to carry based on objective criteria.

But in six States, including New York, the government fur-

ther conditions issuance of a license to carry on a citizen’s

showing of some additional special need. Because the State

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

of New York issues public-carry licenses only when an ap-

plicant demonstrates a special need for self-defense, we con-

clude that the State’s licensing regime violates the Consti-

tution.

I

A

New York State has regulated the public carry of hand-

guns 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 mag-

istrate.” 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 “Sulli-

van Law” expanded the State’s criminal prohibition to the

possession of all handguns—concealed or otherwise—with-

out 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 pos-

sessing 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, pun-

ishable 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). Mean-

while, possessing a loaded firearm outside one’s home or

place of business without a license is a felony punishable by

Cite as: 597 U. S. ____ (2022) 3

Opinion of the Court

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 lim-

ited purpose, such as hunting, target shooting, or employ-

ment. 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 ex-

ample, living or working in an area “ ‘noted for criminal ac-

tivity’ ” 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, at-

tacks 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

4 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 re-

view is limited. New York courts defer to an officer’s appli-

cation 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 li-

censing officials discretion to deny licenses based on a per-

ceived lack of need or suitability.1 Meanwhile, only six

——————

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–

Cite as: 597 U. S. ____ (2022) 5

Opinion of the Court

States and the District of Columbia have “may issue” licens-

ing 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

——————

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), https://courts.delaware.gov/

forms/download.aspx?ID=125408. 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 Per-

mit Requirement To Carry a Concealed Gun, PolitiFact (Apr. 12, 2022),

https://www.politifact.com/article/2022/apr/12/more-states-remove-per-

mit-requirement-carry-concea/ (“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”).

6 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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. Ha-

waii, 992 F. 3d 765, 773 (CA9 2021) (en banc), with Wrenn

v. District of Columbia, 864 F. 3d 650, 668 (CADC 2017).

B

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 orga-

nized to defend the Second Amendment rights of New York-

ers. 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 ap-

plication for an unrestricted license but granted him a re-

stricted license for hunting and target shooting only. In late

2016, Nash asked a licensing officer to remove the re-

strictions, citing a string of recent robberies in his neigh-

borhood. After an informal hearing, the licensing officer de-

nied the request. The officer reiterated that Nash’s existing

license permitted him “to carry concealed for purposes of off

——————

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 rea-

son,” 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) (“justifiable need”).

Cite as: 597 U. S. ____ (2022) 7

Opinion of the Court

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.

C

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 Rensse-

laer 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 sus-

tained New York’s proper-cause standard, holding that the

requirement was “substantially related to the achievement

of an important governmental interest.” Id., at 96.

8 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

We granted certiorari to decide whether New York’s de-

nial of petitioners’ license applications violated the Consti-

tution. 593 U. S. ___ (2021).

II

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 Amend-

ment’s plain text covers an individual’s conduct, the Consti-

tution 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 con-

sistent with this Nation’s historical tradition of firearm reg-

ulation. 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

——————

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).

Cite as: 597 U. S. ____ (2022) 9

Opinion of the Court

A

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 govern-

ment 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 con-

duct 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 con-

duct falls beyond the Amendment’s original scope, “then the

analysis can stop there; the regulated activity is categori-

cally 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 sug-

gests that the regulated activity is not categorically unpro-

tected,” 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. (inter-

nal quotation marks omitted). The Courts of Appeals gen-

erally 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 pub-

lic 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 tai-

lored to achieve a compelling governmental interest.” Kolbe

v. Hogan, 849 F. 3d 114, 133 (CA4 2017) (internal quotation

10 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

marks omitted). Otherwise, they apply intermediate scru-

tiny 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 intermedi-

ate scrutiny is appropriate when text and history are un-

clear in attempting to delineate the scope of the right. See

Brief for Respondents 37; Brief for United States as Amicus

Curiae 4.

B

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.

1

To show why Heller does not support applying means-end

scrutiny, we first summarize Heller’s methodological ap-

proach to the Second Amendment.

In Heller, we began with a “textual analysis” focused on

——————

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, To-

bacco, 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).

Cite as: 597 U. S. ____ (2022) 11

Opinion of the Court

the “ ‘normal and ordinary’ ” meaning of the Second Amend-

ment’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 in-

fringed”—“guarantee[s] the individual right to possess and

carry weapons in case of confrontation” that does not de-

pend 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 Amend-

ment . . . codified a pre-existing right.” Ibid. The Amend-

ment “was not intended to lay down a novel principle but

rather codified a right inherited from our English ances-

tors.” 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 con-

ferred 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 Amend-

ment,” 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 “exami-

nation 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 consti-

tutional interpretation,” id., at 605 (majority opinion).

In assessing the postratification history, we looked to four

12 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

different types of sources. First, we reviewed “[t]hree im-

portant founding-era legal scholars [who] interpreted the

Second Amendment in published writings.” Ibid. Second,

we looked to “19th-century cases that interpreted the Sec-

ond 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 Amend-

ment in Congress and in public discourse” after the Civil

War, “as people debated whether and how to secure consti-

tutional rights for newly freed slaves.” Id., at 614. Fourth,

we considered how post-Civil War commentators under-

stood 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 ex-

plained 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 car-

rying 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 Eng-

land 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 scru-

tinizing whether it comported with history and tradition.

Although we noted that the ban “would fail constitutional

Cite as: 597 U. S. ____ (2022) 13

Opinion of the Court

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 prece-

dent,” including “various restrictive laws in the colonial pe-

riod,” we addressed each purported analogue and concluded

that they were either irrelevant or “d[id] not remotely bur-

den 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 Ameri-

cans for self-defense in the home.” Id., at 629.

2

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 govern-

mental 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 Amend-

ment does not permit—let alone require—“judges to assess

14 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 use-

fulness is no constitutional guarantee at all.” Ibid.

Not only did Heller decline to engage in means-end scru-

tiny generally, but it also specifically ruled out the interme-

diate-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 (dis-

senting 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 chal-

lenged law is “substantially related to an important govern-

ment 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 (in-

ternal quotation marks omitted), it necessarily rejected in-

termediate scrutiny.5

——————

5 The dissent asserts that we misread Heller to eschew means-end scru-

tiny 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.” Hel-

ler, 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

Cite as: 597 U. S. ____ (2022) 15

Opinion of the Court

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 gov-

ernment 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 Amend-

ment’s “unqualified command.” Konigsberg, 366 U. S., at

50, n. 10.

C

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 ac-

tions.” United States v. Playboy Entertainment Group, Inc.,

529 U. S. 803, 816 (2000); see also Philadelphia Newspa-

pers, Inc. v. Hepps, 475 U. S. 767, 777 (1986). In some cases,

that burden includes showing whether the expressive con-

duct 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,

——————

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) (Ka-

vanaugh, J., dissenting), than a reflection of Heller’s methodology or

holding.

16 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 constitu-

tional 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 his-

tory 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 some-

times 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 legiti-

mate, and more administrable, than asking judges to “make

difficult empirical judgments” about “the costs and benefits

of firearms restrictions,” especially given their “lack [of] ex-

pertise” in the field. Id., at 790–791 (plurality opinion).6

——————

6 The dissent claims that Heller’s text-and-history test will prove un-

workable compared to means-end scrutiny in part because judges are rel-

atively 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

Cite as: 597 U. S. ____ (2022) 17

Opinion of the Court

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 scru-

tiny” often defer to the determinations of legislatures. But

while that judicial deference to legislative interest balanc-

ing is understandable—and, elsewhere, appropriate—it is

not deference that the Constitution demands here. The Sec-

ond Amendment “is the very product of an interest balanc-

ing 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 peo-

ple—that demands our unqualified deference.

D

The test that we set forth in Heller and apply today re-

quires courts to assess whether modern firearms regula-

tions 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 sim-

ilar historical regulation addressing that problem is rele-

vant evidence that the challenged regulation is inconsistent

with the Second Amendment. Likewise, if earlier genera-

tions addressed the societal problem, but did so through

materially different means, that also could be evidence that

——————

is to resolve legal questions presented in particular cases or controver-

sies. That “legal inquiry is a refined subset” of a broader “historical in-

quiry,” 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.

18 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

a modern regulation is unconstitutional. And if some juris-

dictions 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 his-

torical 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 per-

ceived societal problem—firearm violence in densely popu-

lated 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 his-

torical 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 “false proposition”).

New York’s proper-cause requirement concerns the same

alleged societal problem addressed in Heller: “handgun vio-

lence,” primarily in “urban area[s].” Ibid. Following the

course charted by Heller, we will consider whether “histor-

ical 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, in-

fra.

While the historical analogies here and in Heller are rel-

atively simple to draw, other cases implicating unprece-

dented societal concerns or dramatic technological changes

may require a more nuanced approach. The regulatory

challenges posed by firearms today are not always the same

Cite as: 597 U. S. ____ (2022) 19

Opinion of the Court

as those that preoccupied the Founders in 1791 or the Re-

construction generation in 1868. Fortunately, the Found-

ers 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.” McCul-

loch v. Maryland, 4 Wheat. 316, 415 (1819) (emphasis de-

leted). Although its meaning is fixed according to the un-

derstandings of those who ratified it, the Constitution can,

and must, apply to circumstances beyond those the Found-

ers specifically anticipated. See, e.g., United States v.

Jones, 565 U. S. 400, 404–405 (2012) (holding that installa-

tion 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 cen-

tury.” 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 exist-

ence 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 fa-

cilitate 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 anal-

ogy—a commonplace task for any lawyer or judge. Like all

20 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

analogical reasoning, determining whether a historical reg-

ulation is a proper analogue for a distinctly modern firearm

regulation requires a determination of whether the two reg-

ulations are “relevantly similar.” C. Sunstein, On Analogi-

cal Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And be-

cause “[e]verything is similar in infinite ways to everything

else,” id., at 774, one needs “some metric enabling the anal-

ogizer 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 in-

stance, 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 compo-

nent’ 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 mod-

ern 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

——————

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 (empha-

sis altered). Analogical reasoning requires judges to apply faithfully the

balance struck by the founding generation to modern circumstances, and

Cite as: 597 U. S. ____ (2022) 21

Opinion of the Court

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 his-

torical analogue,” because doing so “risk[s] endorsing outli-

ers that our ancestors would never have accepted.” Drum-

mond v. Robinson, 9 F. 4th 217, 226 (CA3 2021). On the

other hand, analogical reasoning requires only that the gov-

ernment identify a well-established and representative his-

torical 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 mus-

ter.

Consider, for example, Heller’s discussion of “longstand-

ing” “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 rela-

tively few 18th- and 19th-century “sensitive places” where

weapons were altogether prohibited—e.g., legislative as-

semblies, polling places, and courthouses—we are also

aware of no disputes regarding the lawfulness of such pro-

hibitions. 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 Ami-

cus 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 Amend-

ment. And courts can use analogies to those historical reg-

ulations of “sensitive places” to determine that modern reg-

ulations prohibiting the carry of firearms in new and

analogous sensitive places are constitutionally permissible.

Although we have no occasion to comprehensively define

——————

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.

22 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

“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, “sen-

sitive places” where the government may lawfully disarm

law-abiding citizens include all “places where people typi-

cally 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 cat-

egory of “sensitive places” far too broadly. Respondents’ ar-

gument would in effect exempt cities from the Second

Amendment and would eviscerate the general right to pub-

licly carry arms for self-defense that we discuss in detail

below. See Part III–B, infra. Put simply, there is no his-

torical 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 Po-

lice Department.

Like Heller, we “do not undertake an exhaustive histori-

cal analysis . . . of the full scope of the Second Amendment.”

554 U. S., at 626. And we acknowledge that “applying con-

stitutional principles to novel modern conditions can be dif-

ficult 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 ju-

dicial 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.

Cite as: 597 U. S. ____ (2022) 23

Opinion of the Court

III

Having made the constitutional standard endorsed in

Heller more explicit, we now apply that standard to New

York’s proper-cause requirement.

A

It is undisputed that petitioners Koch and Nash—two or-

dinary, 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. Respond-

ents 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 ele-

ments” of the Second Amendment’s operative clause— “the

right of the people to keep and bear Arms, shall not be in-

fringed”—“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 Mus-

carello v. United States, 524 U. S. 125, 143 (1998) (Gins-

burg, 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 ta-

ble. Although individuals often “keep” firearms in their

home, at the ready for self-defense, most do not “bear” (i.e.,

24 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

carry) them in the home beyond moments of actual confron-

tation. 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 cen-

tral 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 “in-

dividual right to possess and carry weapons in case of con-

frontation,” 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 else-

where. 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.

B

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 “per-

mits a State to condition handgun carrying in areas ‘fre-

quented 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

——————

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

Cite as: 597 U. S. ____ (2022) 25

Opinion of the Court

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 pe-

riods as follows: (1) medieval to early modern England;

(2) the American Colonies and the early Republic; (3) ante-

bellum 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 cre-

ated 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

——————

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 con-

cealed-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 demon-

strated 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 be-

cause 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 li-

censing officers have applied the proper-cause standard differently to

other concealed-carry license applicants; Nash’s and Koch’s constitu-

tional rights to bear arms in public for self-defense were still violated.

26 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

Fourteenth in 1868. Historical evidence that long predates

either date may not illuminate the scope of the right if lin-

guistic 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 ‘pe-

riod immediately before and after the framing of the Con-

stitution.’ ” 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. Car-

penters, 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 his-

tory 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 Amer-

ica’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. Califor-

nia, 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 postenact-

ment history more weight than it can rightly bear. It is true

Cite as: 597 U. S. ____ (2022) 27

Opinion of the Court

that in Heller we reiterated that evidence of “how the Sec-

ond Amendment was interpreted from immediately after its

ratification through the end of the 19th century” repre-

sented 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 govern-

mental practice has been open, widespread, and unchal-

lenged since the early days of the Republic, the practice

should guide our interpretation of an ambiguous constitu-

tional provision.” NLRB v. Noel Canning, 573 U. S. 513,

572 (2014) (Scalia, J., concurring in judgment); see also My-

ers 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 incon-

sistent with the original meaning of the constitutional text

28 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

obviously cannot overcome or alter that text.” Heller, 670

F. 3d, at 1274, n. 6 (Kavanaugh, J., dissenting); see also Es-

pinoza 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 mean-

ing as earlier sources.” 554 U. S., at 614; cf. Sprint Com-

munications 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 commen-

tary 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 Amend-

ment 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

Cite as: 597 U. S. ____ (2022) 29

Opinion of the Court

scope of the protection applicable to the Federal Govern-

ment 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 Eth-

ics 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 pre-

vailing understanding of an individual right when the Four-

teenth 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: Crea-

tion and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-

Speaking the Bill of Rights: A New Doctrine of Incorpora-

tion (Jan. 15, 2021) (manuscript, at 2), https://papers.ssrn

.com/sol3/papers.cfm?abstract_id=3766917 (“When the peo-

ple 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 be-

cause, 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 tra-

ditionally been subject to well-defined restrictions govern-

ing 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

30 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

prohibiting the public carry of commonly used firearms for

self-defense. Nor is there any such historical tradition lim-

iting 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 iden-

tify an American tradition justifying New York’s proper-

cause requirement. Under Heller’s text-and-history stand-

ard, the proper-cause requirement is therefore unconstitu-

tional.

1

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

——————

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. Birming-

ham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of

facts, the exercise of judgment, and the formation of an opinion,” Cant-

well v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify

proper-cause standards like New York’s. That said, because any permit-

ting scheme can be put toward abusive ends, we do not rule out constitu-

tional 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.

Cite as: 597 U. S. ____ (2022) 31

Opinion of the Court

(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 lan-

guage of the Constitution cannot be interpreted safely ex-

cept by reference to the common law and to British institu-

tions 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 prin-

ciples. We find that history ambiguous at best and see little

reason to think that the Framers would have thought it ap-

plicable 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 appar-

ent 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, commit-

ting 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. Ver-

duyn, The Politics of Law and Order During the Early

32 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 Min-

isters 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 “rid[ing]” or

“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” ob-

viously 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,

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Opinion of the Court

weapons like launcegays makes sense given that armor and

lances were generally worn or carried only when one in-

tended to engage in lawful combat or—as most early viola-

tions 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 posses-

sion. 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 con-

cerns about their safety but rather their inefficacy. Henry

VIII worried that handguns threatened Englishmen’s pro-

ficiency 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 Ag-

incourt. See R. Payne-Gallwey, The Crossbow 32, 34

(1903); L. Schwoerer, Gun Culture in Early Modern Eng-

land 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,

34 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 expla-

nation.” 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, re-

spondents’ 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 in-

structive. 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 Eng-

lishmen . . . 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 Northamp-

ton 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

——————

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 success-

ful. 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–

Cite as: 597 U. S. ____ (2022) 35

Opinion of the Court

that the act of “go[ing] armed to terrify the King’s subjects”

was “a great offence at the common law” and that the Stat-

ute 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 ap-

pear to be malo animo,” 1 Comb., at 39, 90 Eng. Rep., at

330, with evil intent or malice. Knight was ultimately ac-

quitted by the jury.11

——————

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 limi-

tation is inconsistent with Heller’s historical analysis regarding the Sec-

ond Amendment’s meaning at the founding and thereafter. So, even if a

severe restriction on keeping firearms in the home may have seemed ap-

propriate in the mid-1500s, it was not incorporated into the Second

Amendment’s scope. We see little reason why the parts of the 1541 stat-

ute 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 para-

mount need for self-defense trumped the Crown’s interest in firearm sup-

pression 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 Amend-

ment’s bare text covers petitioners’ public carry, the respondents here

shoulder the burden of demonstrating that New York’s proper-cause re-

quirement is consistent with the Second Amendment’s text and histori-

cal scope. See supra, at 15. To the extent there are multiple plausible

36 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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, guarantee-

ing 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). Alt-

hough this right was initially limited—it was restricted to

Protestants and held only against the Crown, but not Par-

liament—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 individ-

ual 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 dec-

ades 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 Northamp-

ton], 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” be-

cause, in those circumstances, it would be clear that they

——————

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 De-

fence of his House or Person.” 1 Wm. & Mary c. 15, §4, in 3 Eng. Stat. at

Large 399 (1688).

Cite as: 597 U. S. ____ (2022) 37

Opinion of the Court

had no “Intention to commit any Act of Violence or Disturb-

ance 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, “do-

mestic 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 cen-

tury—and near the founding—they had gained a fairly se-

cure 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.

2

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 re-

strictions on public carry. For starters, we doubt that three

colonial regulations could suffice to show a tradition of pub-

lic-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. Colo-

nial Massachusetts and New Hampshire both authorized

justices of the peace to arrest “all Affrayers, Rioters, Dis-

turbers, or Breakers of the Peace, and such as shall ride or

38 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

go armed Offensively . . . by Night or by Day, in Fear or Af-

fray 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 of-

fensively” meant bearing any offensive weapons, including

firearms. See Brief for Respondents 33. In particular, re-

spondents’ 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 in-

cluded firearms, see also post, at 40–42 (BREYER, J., dis-

senting).

Respondents, their amici, and the dissent all misunder-

stand 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, indi-

cating 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 re-

strictions on the public carry of handguns today. At most,

respondents can show that colonial legislatures sometimes

prohibited the carrying of “dangerous and unusual weap-

ons”—a fact we already acknowledged in Heller. See 554

U. S., at 627. Drawing from this historical tradition, we ex-

plained there that the Second Amendment protects only the

carrying of weapons that are those “in common use at the

Cite as: 597 U. S. ____ (2022) 39

Opinion of the Court

time,” as opposed to those that “are highly unusual in soci-

ety 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 “dan-

gerous 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 weap-

ons,” 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 ap-

plied only to certain “unusual or unlawful weapons,” includ-

ing “pocket pistol[s].” Ibid. It also did not apply to all pis-

tols, 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

40 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

open carry of larger, presumably more common pistols, ex-

cept as to “planters.”13 In colonial times, a “planter” was

simply a farmer or plantation owner who settled new terri-

tory. 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),

https://www.nj.gov/state/archives/pdf/proprietors.pdf. 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” be-

tween planters and the Colony’s proprietors “respecting ti-

tles 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

——————

13 Even assuming that pocket pistols were, as East Jersey in 1686

deemed them, “unusual or unlawful,” it appears that they were com-

monly 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. Hen-

drick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun

Safety and Forensics 44 (2008).

Cite as: 597 U. S. ____ (2022) 41

Opinion of the Court

history in half a Colony roughly a century before the found-

ing sheds little light on how to properly interpret the Sec-

ond 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, disturb-

ers, 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 per-

son 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 stat-

utes: They prohibit bearing arms in a way that spreads

“fear” or “terror” among the people. As we have already ex-

plained, Chief Justice Holt in Sir John Knight’s Case inter-

preted this in Terrorem Populi element to require some-

thing 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

——————

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”).

42 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

and in the first decade after its adoption, there is no histor-

ical basis for concluding that the pre-existing right en-

shrined in the Second Amendment permitted broad prohi-

bitions on all forms of public carry.

3

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 prohibi-

tions, and “surety” statutes. None of these restrictions im-

posed 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 go-

ing 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 specifi-

cally, 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 citi-

zens, did make an affray.” Id., at 361. The Tennessee Su-

preme Court quashed the indictment, holding that the Stat-

ute 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

Cite as: 597 U. S. ____ (2022) 43

Opinion of the Court

made, as an “independent ground of affray,” the mere arm-

ing 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 guar-

antee, 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 “mis-

chievous 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 recog-

nized that the common law did not punish the carrying of

——————

15 The dissent concedes that Huntly, 25 N. C. 418, recognized that citi-

zens 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 “business” and “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.

44 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

deadly weapons per se, but only the carrying of such weap-

ons “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 pub-

licly 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 con-

cealed carry of pistols and other small weapons. As we rec-

ognized 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. Re-

spondents unsurprisingly cite these statutes16—and deci-

sions upholding them17—as evidence that States were his-

torically free to ban public carry.

In fact, however, the history reveals a consensus that

States could not ban public carry altogether. Respondents’

——————

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 prohibi-

tion could not extend to open carry consistent with the Second Amend-

ment. See infra, at 45–46. Between 1846 and 1859, only one other State,

Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, mean-

while, 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. Common-

wealth, 12 Ky. 90 (1822). See generally 2 J. Kent, Commentaries on

American Law *340, n. b.

Cite as: 597 U. S. ____ (2022) 45

Opinion of the Court

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 Loui-

siana. See State v. Chandler, 5 La. 489, 490 (1850).19 Ken-

tucky, meanwhile, went one step further—the State Su-

preme 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 “wearing” or “carrying” pistols

“as arms of offence or defence,” without distinguishing be-

tween concealed and open carry. 1837 Ga. Acts 90, §1. To

the extent the 1837 Act prohibited “carrying certain weap-

ons secretly,” the court explained, it was “valid.” Nunn, 1

——————

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 prohibi-

tion “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 peo-

ple 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 unconstitu-

tional.” Mitchell, 3 Blackf., at 229. Similarly, the Arkansas Supreme

Court upheld Arkansas’ prohibition, but without reaching a majority ra-

tionale. 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).

46 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

Ga., at 251. But to the extent the Act also prohibited “bear-

ing 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 con-

stitutional pale in antebellum America to altogether pro-

hibit public carry.

Finally, we agree that Tennessee’s prohibition on carry-

ing “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 sub-

stantively 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 (dis-

cussing 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

——————

21 Shortly after Andrews, 50 Tenn. 165, Tennessee codified an excep-

tion 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

Cite as: 597 U. S. ____ (2022) 47

Opinion of the Court

Surety Statutes. In the mid-19th century, many jurisdic-

tions 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 mis-

placed. These laws were not bans on public carry, and they

typically targeted only those threatening to do harm.

As discussed earlier, Massachusetts had prohibited rid-

ing 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 Common-

wealth 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 in-

jury, or violence to his person, or to his family or prop-

erty, he may, on complaint of any person having rea-

sonable 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 ap-

pealing 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

——————

that were localized in the Western Territories, New Mexico’s prohibition

ended when the Territory entered the Union as a State in 1911 and guar-

anteed 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.

48 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 gen-

eral 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

——————

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).

Cite as: 597 U. S. ____ (2022) 49

Opinion of the Court

. . . everyone started out with robust carrying rights” and

only those reasonably accused were required to show a spe-

cial need in order to avoid posting a bond. Ibid. These an-

tebellum special-need requirements “did not expand carry-

ing 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 pre-

vented 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 Cu-

riae 31 (quoting Grover v. Bullock, No. 185 (Worcester Cty.,

50 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Region-

alism 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 enforce-

ment. 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 Rob-

ert Leider et al. as Amici Curiae 31–32. That is surely too

slender a reed on which to hang a historical tradition of re-

stricting 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 coun-

terintuitive 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 na-

ture of the weapon rather than the manner of carry that

——————

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 ana-

logues to New York’s proper-cause standard, we consider the barren rec-

ord of enforcement to be simply one additional reason to discount their

relevance.

Cite as: 597 U. S. ____ (2022) 51

Opinion of the Court

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 di-

rect 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 man-

ner likely to terrorize others. Similarly, although surety

statutes did not directly restrict public carry, they did pro-

vide financial incentives for responsible arms carrying. Fi-

nally, 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 be-

cause none operated to prevent law-abiding citizens with

ordinary self-defense needs from carrying arms in public for

that purpose.

52 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

4

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 de-

bated 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 ma-

terials 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 re-

mained a central component of the protection that the Four-

teenth Amendment secured for all citizens.

A short prologue is in order. Even before the Civil War

commenced in 1861, this Court indirectly affirmed the im-

portance of the right to keep and bear arms in public. Writ-

ing 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 recog-

nized (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 funda-

mental 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”

Cite as: 597 U. S. ____ (2022) 53

Opinion of the Court

made to disarm blacks); id., at 845–847 (THOMAS, J., con-

curring 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 Four-

teenth 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 super-

intendent 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 Or-

leans 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 Vir-

ginia 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 Bu-

reau from Alabama similarly reported that men were “rob-

bing 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) (describ-

ing a Ku Klux Klan outfit that rode “through the country

54 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

. . . robbing every one they come across of money, pistols,

papers, &c.”); id., at 36 (noting how a black man in Tennes-

see had been murdered on his way to get book subscrip-

tions, with the murderer taking, among other things, the

man’s pistol).

Blacks had “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 govern-

ment 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 se-

curity . . . 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 Ken-

tucky 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 is-

sued 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 un-

lawful practice of carrying concealed weapons. . . . And no

Cite as: 597 U. S. ____ (2022) 55

Opinion of the Court

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 edi-

tors of The Loyal Georgian, a prominent black-owned news-

paper, were asked by “A Colored Citizen” whether “colored

persons [have] a right to own and carry fire arms.” The ed-

itors responded that blacks had “the same right to own and

carry fire arms that other citizens have.” The Loyal Geor-

gian, 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 con-

victed of making an improper or dangerous use of weapons,”

even though “no military or civil officer has the right or au-

thority 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

——————

26 Respondents invoke General Orders No. 10, which covered the Sec-

ond 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 spec-

ified that a violation of this prohibition would “render the offender ame-

nable to trial and punishment by military commission,” ibid., rather than

a jury otherwise guaranteed by the Constitution. There is thus little in-

dication that these military dictates were designed to align with the Con-

stitution’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 nat-

urally 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

56 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

As for Reconstruction-era state regulations, there was lit-

tle 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 stat-

utes 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, Ten-

nessee essentially reenacted its 1821 prohibition on the

public carry of handguns but, as explained above, Tennes-

see 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 pub-

lic 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 re-

interpreted Texas’ State Constitution to protect not only

——————

also H. R. Rep. No. 16, 39th Cong., 2d Sess., 427 (1867).

Cite as: 597 U. S. ____ (2022) 57

Opinion of the Court

military-style weapons but rather all arms “as are com-

monly 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 con-

stitutional protection, Duke held that requiring any pistol-

bearer to have “ ‘reasonable grounds fearing an unlawful at-

tack 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 stat-

ute, 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 pro-

tected arms in public.

In the end, while we recognize the support that postbel-

lum 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 overwhelm-

ing weight of other evidence regarding the right to keep and

58 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

bear arms for defense” in public. 554 U. S., at 632.

5

Finally, respondents point to the slight uptick in gun reg-

ulation 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 contra-

dicts 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 dis-

tance from the founding.

The vast majority of the statutes that respondents invoke

come from the Western Territories. Two Territories prohib-

ited 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 vil-

lages, 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 eve-

rywhere, 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

——————

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 car-

rying for “the lawful defence of themselves, their families or their prop-

erty, 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.

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Opinion of the Court

proper-cause requirement for several reasons. First, the

bare existence of these localized restrictions cannot over-

come 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 Na-

tion’s earlier approach to firearm regulation, are most un-

likely to reflect “the origins and continuing significance of

the Second Amendment” and we do not consider them “in-

structive.” Heller, 554 U. S., at 614.

The exceptional nature of these western restrictions is all

the more apparent when one considers the miniscule terri-

torial 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 Mex-

ico, 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 Elev-

enth 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 ex-

plained that we will not stake our interpretation of the Sec-

ond 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 su-

pra, at 57–58. Similarly, we will not stake our interpreta-

tion 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 popula-

tion, and also “contradic[t] the overwhelming weight” of

60 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 per-

ceived legality. When States generally prohibited both

open and concealed carry of handguns in the late-19th cen-

tury, 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. Wil-

burn, 66 Tenn. 57, 60 (1872); Andrews, 50 Tenn., at 187.30

Those state courts that upheld broader prohibitions with-

out 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 unprece-

dented 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,

——————

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 in-

fringed by laws prohibiting the carrying of concealed weapons”).

Cite as: 597 U. S. ____ (2022) 61

Opinion of the Court

at 229 (explaining that the meaning of ambiguous constitu-

tional provisions can be “liquidated and ascertained by a se-

ries 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 un-

constitutional shortly after passage. See In re Brickey, 8

Idaho 597, 70 P. 609 (1902). Others did not survive a Ter-

ritory’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 West-

ern State—Kansas—that instructed cities with more than

15,000 inhabitants to pass ordinances prohibiting the pub-

lic 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 unilat-

erally,32 the lone late-19th-century state law respondents

——————

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 “uncov-

ered, 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 circum-

stances were “such as to justify a prudent man in carrying such weapon,

62 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

Opinion of the Court

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 jus-

tifying 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 reasona-

ble, 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.

IV

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 guaran-

tees.” 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-

——————

for the defense of his person, property or family.” Salina, Kan., Rev. Or-

dinance No. 268, §2.

Cite as: 597 U. S. ____ (2022) 63

Opinion of the Court

ers some special need. That is not how the First Amend-

ment 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 Four-

teenth 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 pro-

ceedings consistent with this opinion.

It is so ordered.

Cite as: 597 U. S. ____ (2022) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–843

_________________

NEW YORK STATE RIFLE & PISTOL ASSOCIATION,

INC., ET AL., PETITIONERS v. KEVIN P. BRUEN, IN

HIS OFFICIAL CAPACITY AS SUPERINTENDENT

OF NEW YORK STATE POLICE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 23, 2022]

JUSTICE ALITO, concurring.

I join the opinion of the Court in full but add the following

comments in response to the dissent.

I

Much of the dissent seems designed to obscure the spe-

cific 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 ex-

plained, 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 peo-

ple face a serious risk of lethal violence when they venture

2 NEW YORK STATE RIFLE & PISTOL ASSN., INC. v. BRUEN

ALITO, J., concurring

outside their homes, the Second Amendment was under-

stood at the time of adoption to apply under those circum-

stances. The Court’s exhaustive historical survey estab-

lishes 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 res-

idents 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 re-

strictions that may be imposed on the possession or carry-

ing 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 atroc-

ities? 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 sh

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