Amicus Curiae Brief — Brian Kirk Malpasso, et al., Petitioners v. William M. Pallozzi, in His Official Capacity as Maryland Secretary of State Police

No. 19-423

In the

Supreme Court of the United States

──────────────────────────

BRIAN KIRK MALPASSO and MARYLAND STATE

RIFLE AND PISTOL ASSOCIATION, INC.,

Petitioners,

v.

WILLIAM M. PALLOZZI, in his official capacity as

Maryland Secretary of State Police,

Respondent.

──────────────────────────

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

──────────────────────────

BRIEF OF AMICUS CURIAE

NATIONAL RIFLE ASSOCIATION

OF AMERICA, INC.

IN SUPPORT OF PETITIONERS

──────────────────────────

November 18, 2019

John Parker Sweeney

Counsel of Record

James Wallace Porter, III

Marc A. Nardone

Bradley Arant Boult

Cummings LLP

1615 L Street NW

Suite 1350

Washington, DC 20036

(202) 393-7150

jsweeney@bradley.com

Counsel for Amicus

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS ................................... 1

SUMMARY OF THE ARGUMENT ............................ 2

ARGUMENT ............................................................... 3

I.

This Court was clear: laws infringing

on the fundamental right to keep and

bear arms must be assessed under

the Second Amendment’s text,

history, and tradition. ........................... 3

II.

Despite this clarity, a circuit split

exists over how to analyze laws that

prohibit law-abiding, responsible

citizens from carrying arms for selfdefense outside the home. ..................... 4

III.

Fractured holdings will persist

among the circuits until this Court

reaffirms that laws prohibiting lawabiding, responsible citizens from

carrying arms outside the home must

be assessed under the Second

Amendment’s text, history, and

tradition. ................................................ 9

CONCLUSION .......................................................... 11

ii

TABLE OF AUTHORITIES

Cases

Caetano v. Massachusetts,

136 S. Ct. 1027 (2016) .................................. 3, 4

District of Colombia v. Heller,

554 U.S. 570 (2008) ......................... 3, 4, 7, 8 10

Drake v. Filko,

724 F.3d 426 (3d Cir. 2013) .................. 5, 7, 8, 9

Gould v. Morgan,

907 F.3d 659 (1st Cir. 2018) ................. 5, 7, 8, 9

Grace v. District of Columbia,

187 F. Supp. 3d 124 (D.D.C. 2016) .................. 9

Kachalsky v. Cty. of Westchester,

701 F.3d 81 (2d Cir. 2012) .................... 5, 7, 8, 9

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) .................................. 3, 4, 8

Moore v. Madigan,

702 F.3d 933 (7th Cir. 2012) ........................ 5, 6

Murdock v. Com. of Pa.,

319 U.S. 105 (1943) .......................................... 8

Peruta v. California,

137 S. Ct. 1995 (2017) .................................... 11

Peruta v. Cty. of San Diego,

742 F.3d 1144 (9th Cir. 2014) ...................... 5, 6

iii

Peruta v. Cty. of San Diego

824 F.3d 919 (9th Cir. 2016) ............................ 5

Saenz v. Roe,

526 U.S. 489 (1999) .......................................... 8

Woollard v. Gallagher,

712 F.3d 865 (4th Cir. 2013) ................ 5, 7, 8, 9

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) .................. 5, 6, 9

Young v. Hawaii,

896 F.3d 1044 (9th Cir. 2018) ...................... 5, 6

Young v. Hawaii

915 F.3d 681 (9th Cir. 2019) ............................ 5

Other Authorities

Crime in the United States by Metropolitan

Statistical Area, FBI (2017) ........................... 11

Joyce Lee Malcolm, The Right to Carry Your Gun:

A Snapshot History, Forthcoming; George

Mason Legal Studies Research Paper No. LS

19-18, at pp. 1–26 (Sept. 19, 2019) .................. 9

Rules

U.S. Sup. Ct. R. 10(c) ................................................ 10

1

INTEREST OF THE AMICUS

Founded in 1871, the National Rifle Association

of America, Inc. (“NRA”) is the Nation’s oldest civilrights organization and foremost defender of Second

Amendment rights. 1 Since its founding, the NRA’s

membership has grown to include more than five

million law-abiding, responsible citizens; its

education, training, and safety programs have

reached millions more. The NRA is the country’s

leading provider of firearm marksmanship and safety

training for civilians and law-enforcement officers,

and its self-defense seminars have aided more than

120,000 would-be victims of crime. The NRA has a

compelling interest in this case because its outcome

will affect the fundamental, enumerated rights of

NRA members to carry (i.e., bear) a handgun, the

quintessential self-defense weapon, outside their

homes for self-defense.

1 Amicus provided notice and obtained consent from the parties

to file this amicus curiae brief more than 10 days before its filing.

No party or its counsel authored this brief in whole or in part. No

party, counsel, or any other person except the NRA and its

counsel contributed to the cost of preparing or submitting this

brief.

2

SUMMARY OF THE ARGUMENT

This Court should grant review to resolve the

open and acknowledged conflict in the lower courts

over whether the Second Amendment allows the

government to prohibit law-abiding, responsible

citizens from carrying handguns for self-defense

outside the home. This case presents an ideal vehicle

for resolving that conflict, as the petition for a writ of

certiorari sets forth. It also provides an excellent

opportunity for this Court to resolve a related circuit

conflict over how to analyze these laws. While the

Seventh and D.C. Circuits have faithfully analyzed

the text, history, and tradition of the Second

Amendment when deciding whether laws prohibiting

law-abiding, responsible citizens from carrying

handguns for self-defense outside the home are

constitutional, the First, Second, Third, and Fourth

Circuits have not.

This doctrinal split is important because it has

proven outcome determinative. The Seventh and D.C.

Circuits struck down these laws by concluding that

they are inconsistent with the text, history, and

tradition of the Second Amendment as well as this

Court’s precedent. The First, Second, Third, and

Fourth Circuits, meanwhile, ignored and downplayed

the Second Amendment’s text, history, and tradition

to uphold these laws under a weak form of

intermediate scrutiny. Americans who justly rely

upon the Bill of Rights deserve better than this unjust,

ad hoc wandering by the lower courts.

This Court should grant the petition to confirm

that the text, history, and tradition analysis applies to

all Second Amendment challenges and that this

3

analysis compels the conclusion that law-abiding,

responsible citizens have a right to carry a handgun

for self-defense outside the home. That is the only way

to curtail the lower courts’ continued misapplication

of this Court’s Second Amendment precedent.

ARGUMENT

I.

This Court was clear: laws infringing on

the fundamental right to keep and bear

arms must be assessed under the Second

Amendment’s text, history, and tradition.

This Court has provided a clear standard for

analyzing Second Amendment challenges: laws that

are not sufficiently rooted in the text, history, and

tradition

of

the

Second

Amendment

are

unconstitutional because they are inconsistent with

the right of law-abiding, responsible citizens to keep

and bear arms for lawful purposes, such as selfdefense. This Court established this standard a

decade ago in District of Columbia v. Heller, 554 U.S.

570, 636 (2008). Two years later, in McDonald v. City

of Chicago, Ill., 561 U.S. 742, 767–68 (2010), this

Court memorialized this standard as the only proper

framework for evaluating the constitutionality of

firearm restrictions. And in Caetano v. Massachusetts,

136 S. Ct. 1027, 1027–28 (2016), this Court reiterated

that this standard may not be disregarded by the

lower courts.

This Court has also rejected interest balancing

as a method to resolve Second Amendment challenges.

In Heller, this Court stated that “Constitutional rights

are enshrined with the scope they were understood to

have when the people adopted them, whether or not

4

future legislatures or (yes) even future judges think

that scope too broad.” 554 U.S. at 634–35. Indeed,

“[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.”

Id. at 634 (emphasis in original). Because the Second

Amendment “is the very product of an interest

balancing by the people” at the time of its enactment,

it “elevates above all other interests the right of lawabiding, responsible citizens to use arms in defense of

hearth and home.” Id. at 635 (emphasis in original).

McDonald likewise “rejected the argument that the

scope of the Second Amendment right should be

determined by judicial interest balancing.” 561 U.S. at

785 (citing Heller, 554 U.S. at 633–35); see also Heller

v. District of Columbia, 670 F.3d 1244, 1271 (D.C. Cir.

2011) (Kavanaugh, J., dissenting) (“Heller and

McDonald leave little doubt that courts are to assess

gun bans and regulations based on text, history, and

tradition, not by a balancing test such as strict or

intermediate scrutiny.”). Caetano demonstrated that

interest balancing has no place in a proper Second

Amendment analysis by foregoing it entirely. 136 S.

Ct. at 1027–1028.

II.

Despite this clarity, a circuit split exists

over how to analyze laws that prohibit

law-abiding, responsible citizens from

carrying arms for self-defense outside the

home.

In addition to the circuit split over whether the

Second Amendment permits the government to

prohibit law-abiding, responsible citizens from

5

carrying handguns for self-defense outside the home,

there is a related circuit split over the proper approach

a court should take when analyzing that question. The

Seventh and D.C. Circuits correctly held that the

Second Amendment forbids the government from

prohibiting law-abiding, responsible citizens from

carrying arms for self-defense outside the home. See

Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012);

Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir.

2017). Two panels of the Ninth Circuit reached the

same conclusion, but en banc panels vacated both

decisions. See Peruta v. Cty. of San Diego, 742 F.3d

1144 (9th Cir. 2014), vacated, rev’d on reh’g en banc,

824 F.3d 919 (9th Cir. 2016); Young v. Hawaii, 896

F.3d 1044 (9th Cir. 2018), vacated, reh’g en banc

granted, 915 F.3d 681 (9th Cir. 2019). The First,

Second, Third, and Fourth Circuits, meanwhile, have

held differently. See Gould v. Morgan, 907 F.3d 659

(1st Cir. 2018); Kachalsky v. Cty. of Westchester, 701

F.3d 81 (2d Cir. 2012); Drake v. Filko, 724 F.3d 426

(3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865

(4th Cir. 2013).

The split among the circuits is not limited to

their holdings; the circuits are doctrinally split over

how to analyze laws that infringe the Second

Amendment. The Seventh and D.C. Circuits’ holdings,

as well as the Peruta and Young panel decisions,

faithfully followed this Court’s instruction: they

assessed laws prohibiting law-abiding, responsible

citizens from carrying arms for self-defense outside

the home under the Second Amendment’s text,

6

history, and tradition. 2 See Moore, 702 F.3d at 942;

Wrenn, 864 F.3d at 667–68; Young, 896 F.3d at 1048;

Peruta, 742 F.3d at 1148. The D.C. Circuit in Wrenn

and the Young panel dedicated considerable

discussion to the origin of the right to keep and bear

arms, citing relevant legal treatises and nineteenthcentury case law before concluding that the Second

Amendment protects the right to carry arms outside

the home. See Wrenn, 864 F.3d at 658–61; Young, 896

F.3d at 1053-68. And in Moore, the Seventh Circuit

extensively reviewed the text, history, and tradition of

the right to keep and bear arms before concluding that

“the constitutional right of armed self-defense is

broader than the right to have a gun in one’s home.”

702 F.3d at 935–37. Moore also rejected Illinois’s

request “to repudiate [the Supreme] Court’s historical

analysis.” Id.

After assessing the Second Amendment’s text,

history, and tradition, the Seventh and D.C. Circuits

and the Peruta and Young panels ruled that the right

to carry arms outside the home lies at the core of the

Second Amendment’s protections. Each held that laws

infringing on the exercise of this right are

unconstitutional because they are inconsistent with

the Second Amendment’s text, history, and tradition.

These analyses and conclusions reflect the clarity that

this Court provided for the Second Amendment more

than a decade ago.

The First, Second, Third, and Fourth Circuits’

holdings reflect the opposite. Contrary to this Court’s

2 The laws at issue in the D.C. Circuit and Young panel were

materially indistinguishable from Maryland’s

substantial reason” regime at issue in this case.

“good

and

7

instruction, these circuits opted to follow their own,

contradictory approach toward the rights guaranteed

by the Second Amendment. Gould, 907 F.3d at 670;

Kachalsky, 701 F.3d at 89; Drake, 724 F.3d at 431;

Woollard, 712 F.3d at 874–76. To achieve their desired

end, these circuits ignored and downplayed the

Second Amendment’s text, history, and tradition in

their assessments of laws that prohibit carrying arms

outside the home. Id. According to these circuits,

unless the individual can demonstrate a reason for

doing so beyond a general desire for self-defense

(“good reason” restrictions), the right to bear arms

does not exist. In lieu of a meaningful analysis, each

court simply declared that some lesser form of the

Second Amendment right applies to bearing arms

than to keeping them. Id.

For instance, the Second and Third Circuits in

Kochalsky and Drake declared that they were “not

inclined to address [text, history, tradition and

precedent] by engaging in a round of full-blown

historical analysis,” and casually dismissed that

required approach because “‘history and tradition do

not speak with one voice.’” Drake, 724 F.3d at 431

(quoting Kachalsky, 701 F.3d at 91). Similarly, the

Fourth Circuit in Woollard “refrain[ed] from any

assessment of whether Maryland’s ‘good reason’

requirement for obtaining a handgun permit

implicates Second Amendment protections.” 712 F.3d

at 876. And while the First Circuit in Gould offered a

brief nod to the importance of history, it perfunctorily

dismissed the historical citations on which Heller

relied as the “practices in one region of the country.”

907 F.3d at 669.

8

As if Heller and McDonald had not rejected

interest balancing as a method to resolve Second

Amendment challenges, the First, Second, Third, and

Fourth Circuits used an interest balancing test that

they called intermediate scrutiny to assess “good

reason” restrictions. Gould, 907 F.3d at 670;

Kachalsky, 701 F.3d at 96; Drake, 724 F.3d at 431;

Woollard, 712 F.3d at 874–76. The Second Circuit did

nothing more than echo New York’s circular

conclusion that carrying handguns must be inherently

dangerous to rule that “a reasonable method for

combating these dangers [i]s to limit handgun

possession in public to those showing proper cause.”

Kachalsky, 701 F.3d at 97. Likewise, the Fourth

Circuit held that Maryland’s “good reason” restriction

only needed to survive intermediate scrutiny “because

it reduces the number of handguns carried in public.”

Woollard, 712 F.3d at 879. In each instance, the court

ignored this Court’s precedent to drive the analysis

into their desired conclusion.

The First and Third Circuits upheld “good

reason” restrictions in like fashion. See Gould, 907

F.3d at 675 (citing Woollard, 712 F.3d at 879–80);

Drake, 724 F.3d at 439. These analyses were

particularly egregious because any law that reduces

the exercise of a right to achieve its purposes is

“patently unconstitutional.” See, e.g., Saenz v. Roe,

526 U.S. 489, 499 n. 11 (1999) (“If a law has no other

purpose . . . than to chill the assertion of constitutional

rights by penalizing those who choose to exercise

them, then it is patently unconstitutional.”) (internal

quotations omitted); Murdock v. Com. of Pa., 319 U.S.

105, 110–11 (1943) (the state may not enact a law for

the purpose of reducing the exercise of a constitutional

9

right); see also Grace v. District of Columbia, 187 F.

Supp. 3d 124, 148 (D.D.C. 2016), aff’d sub nom. Wrenn

v. District of Columbia, 864 F.3d 650.

Based on their refusal to assess the Second

Amendment’s text, history, and tradition and their

use of an interest balancing test, each court wrongly

upheld laws prohibiting law-abiding, responsible

citizens from carrying arms outside the home. Gould,

907 F.3d at 674; Kachalsky, 701 F.3d at 99; Drake, 724

F.3d at 439–40; Woollard, 712 F.3d at 882. Each

court’s incorrect holding followed its refusal to apply

the correct standard articulated by this Court more

than a decade ago.

III.

Fractured holdings will persist among the

circuits until this Court reaffirms that

laws prohibiting law-abiding, responsible

citizens from carrying arms outside the

home must be assessed under the Second

Amendment’s text, history, and tradition.

The doctrinal split among the circuits has

proven outcome determinative. Circuits that

faithfully apply the correct standard reach the correct

result, while circuits that shirk the correct standard

reach the incorrect result. This is untenable. The

Second Amendment’s text, history, and tradition

confirm a fundamental guarantee: the right of lawabiding, responsible citizens to defend themselves

outside the home. See Petition for Writ of Certiorari,

Malpasso v. Pallozzi, No. 19-423 (Sept. 23, 2019), at

pages 13–25; see also Joyce Lee Malcolm, The Right to

Carry Your Gun: A Snapshot History, Forthcoming;

George Mason Legal Studies Research Paper No. LS

19-18, at pp. 1–26 (Sept. 19, 2019) (“The right of self-

10

defense does not stop at the domestic doorstep. . . . We

are here, therefore, to address this latest, in a string

of denials of a clear constitutional right, this time of

the right to bear a gun outside the home. Back we

must go through the history of firearms use and

regulation in England, its transition to colonial

America and the intent of the Second Amendment.”). 3

Laws prohibiting the exercise of this

fundamental right are inconsistent with the Second

Amendment and patently unconstitutional. Because

the Second Amendment’s text, history, and tradition

are so conclusive on this point, the only way to uphold

“good reason” restrictions is to disregard what is

conclusive in favor of a different and more favored

conclusion. That is exactly what the First, Second,

Third, and Fourth Circuits did. Section II, infra.

Review is warranted because the Fourth Circuit’s

decision and the decisions in the First, Second, and

Third Circuits conflict with Heller. U.S. Sup. Ct. R.

10(c).

The circuits’ doctrinal split is having real-world

consequences. Because the First, Second, Third, and

Fourth Circuits have refused to faithfully apply this

Court’s Second Amendment precedent to uphold “good

reason” restrictions, tens of millions of law-abiding,

responsible Americans are prohibited from exercising

their fundamental right to carry arms outside their

homes for self-defense in violation of the Second

Amendment. These prohibitions unconstitutionally

restrict the rights of law-abiding citizens in some of

our largest and most dangerous metropolitan areas

(Boston, New York City, Philadelphia, Baltimore, and

3 Available at https://ssrn.com/abstract=3456940.

11

Newark). See Crime in the United States by

Metropolitan Statistical Area, FBI (2017). 4 American

citizens’ freedom to effectively defend themselves by

carrying a handgun is not limited to their homes. The

freedom is a fundamental, constitutional right

guaranteed to all “the people” that cannot be allowed

to depend upon the politics of the jurisdiction in which

the citizen resides.

The time has come for this Court to definitively

answer whether the Second Amendment protects the

right of law-abiding, responsible citizens to carry a

handgun for self-defense outside the home, and, in

doing so, end the contemptuous disregard shown by a

handful circuits to this Court’s Second Amendment

teachings. This case presents a perfect opportunity for

this Court to correct the constitutional course against

“a distressing trend: the treatment of the Second

Amendment as a disfavored right.” Peruta v.

California, 137 S. Ct. 1995, 1999 (2017) (Thomas, J.,

dissenting from the denial of certiorari). This Court

should resolve that trend by confirming that laws

prohibiting law-abiding, responsible citizens from

carrying arms outside the home must be assessed

under the Second Amendment’s text, history, and

tradition, and that this analysis compels the

conclusion that those laws are unconstitutional.

CONCLUSION

This Court should grant the petition to ensure

that this Court’s clear and consistent Second

Amendment teachings are faithfully applied by the

4 Available at https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-

the-u.s.-2017/tables/table-6.

12

lower federal courts in the context of carrying arms for

self-defense in case of confrontation outside the home

and to ensure that the constitutional rights of

Maryland—and all American—citizens are protected.

Respectfully submitted,

November 18, 2019

John Parker Sweeney

Counsel of Record

James Wallace Porter, III

Marc A. Nardone

Bradley Arant Boult

Cummings LLP

1615 L Street NW

Suite 1350

Washington, DC 20036

(202) 393-7150

jsweeney@bradley.com

Counsel for Amicus