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 ALABAMA AND 20 OTHER STATES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

──────────────────────────

STEVE MARSHALL

Alabama Attorney General

Edmund G. LaCour Jr.*

Solicitor General

A. Barrett Bowdre

Deputy Solicitor General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 353-2196

edmund.lacour@AlabamaAG.gov

*Counsel of Record

Counsel for Amici Curiae

[Additional counsel listed on signature page]

i

QUESTION PRESENTED

Whether the Second Amendment allows the

government to prohibit typical, law-abiding citizens

from carrying handguns outside the home for selfdefense in any manner.

ii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICI CURIAE ................................1

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

ARGUMENT ...............................................................4

I.

The Courts Of Appeals Are Deeply

Divided And The States Are In Need Of

Guidance From This Court. ................................4

II.

The Second Amendment’s Guarantee Is

A Fundamental Right That Extends

Beyond The Home. ............................................ 12

A. The Right to Bear Arms is a

Fundamental Right of Citizenship..............12

B. The Core of the Right Extends

Beyond the Home.........................................15

CONCLUSION ..........................................................19

ADDITIONAL COUNSEL ........................................20

iii

TABLE OF AUTHORITIES

Cases

District of Columbia v. Heller,

554 U.S. 570 (2008)......................................... passim

Drake v. Filko,

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

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011) ....................................6

GeorgiaCarry.Org, Inc. v. U.S. Army Corps of

Eng’rs, 788 F.3d 1318 (11th Cir. 2015) ....................6

Gideon v. Wainwright,

372 U.S. 335 (1963).................................................10

Gould v. Morgan,

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

Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966).................................................10

Heller v. District of Columbia,

670 F.3d 1244 (D.C. Cir. 2011).............................6, 9

Hodgson v. Minnesota,

497 U.S. 417 (1990)...........................................10, 12

Kachalsky v. County of Westchester,

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

McDonald v. City of Chicago,

561 U.S. 742 (2010)......................................... passim

iv

Moore v. Madigan,

702 F.3d 933 (7th Cir. 2012) ......................5, 7, 9, 16

Muscarello v. United States,

524 U.S. 125 (1998) ..................................................15

Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,

Tobacco, Firearms & Explosives,

700 F.3d 185 (5th Cir. 2012) ....................................6

Peruta v. California,

137 S. Ct. 1995 (2017)...............................................2

Peruta v. County of San Diego,

742 F.3d 1144 (9th Cir. 2014) ..............................5, 7

Rogers v. Grewal,

No. 18-824 (U.S. Jan. 18, 2019)..............................11

Staub v. City of Baxley,

355 U.S. 313 (1958)...................................................5

Tennessee v. Garner,

471 U.S. 1 (1985).....................................................10

Tyler v. Hillsdale Cty. Sheriff’s Dep’t,

775 F.3d 308 (6th Cir. 2014) ....................................7

United States v. Chovan,

735 F.3d 1127 (9th Cir. 2013) ..................................6

United States v. Greeno,

679 F.3d 510 (6th Cir. 2012) ....................................6

United States v. Marzzarella,

614 F.3d 85 (3d Cir. 2010) ........................................6

v

United States v. Miller,

307 U.S. 174 (1939).................................................16

United States v. Reese,

627 F.3d 792 (10th Cir. 2010) ..................................6

Woollard v. Gallagher,

712 F.3d 865 (4th Cir. 2013) .......................... passim

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017)......................... passim

Young v. Hawaii,

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

Constitutional Provisions

U.S. Const. amend. II............................................... 16

Statutes

18 Pa. Stat. and Cons. Stat. Ann. § 6109 .................10

430 Ill. Comp. Stat. Ann. 66 / 10...............................10

Ala. Code § 13A-11-75 ...............................................10

Alaska Stat. Ann. § 18.65.700...................................10

Ariz. Rev. Stat. Ann. § 13-3112.................................10

Ark. Code Ann. § 5-73-309 ........................................10

Civil Rights Act of 1866, 14 Stat. 27.........................14

Colo. Rev. Stat. § 18-12-203 ......................................10

Fla. Stat. Ann. § 790.06 ............................................10

vi

Freedmen’s Bureau Act of 1866, 14 Stat. 173..........14

Ga. Code Ann. § 16-11-129........................................10

Idaho Code Ann. § 18-3302 .......................................10

Ind. Code § 35-47-2-3 ................................................10

Iowa Code Ann. § 724.7.............................................10

Kan. Stat. Ann. § 75-7c05 .........................................10

Ky. Rev. Stat. Ann. § 237.110 ...................................10

La. Stat. Ann. § 40:1379.3.........................................10

Me. Rev. Stat. Ann. tit. 25, § 2003............................10

Mich. Comp. Laws Ann. § 28.422 .............................10

Minn. Stat. Ann. § 624.714 .......................................10

Miss. Code Ann. § 45-9-101.......................................10

Mo. Ann. Stat. § 571.101...........................................10

Mont. Code Ann. § 45-8-321......................................10

N.C. Gen. Stat. Ann. § 14-415.12..............................10

N.D. Cent. Code Ann. § 62.1-04-03...........................10

N.H. Rev. Stat. Ann. § 159:6.....................................10

N.M. Stat. Ann. § 29-19-4 .........................................10

Neb. Rev. Stat. Ann. § 69-2430.................................10

Nev. Rev. Stat. Ann. § 202.3657 ...............................10

Ohio Rev. Code Ann. § 2923.125...............................10

vii

Okla. Stat. Ann. tit. 21, § 1272 ................................10

Okla. Stat. Ann. tit. 21, § 1290.5 ..............................10

Or. Rev. Stat. Ann. § 166.291 ...................................10

S.C. Code Ann. § 23-31-215.......................................11

S.D. Codified Laws § 23-7-7 ......................................11

Tenn. Code Ann. § 39-17-1351 ..................................11

Tex. Gov’t Code Ann. § 411.177 ................................11

Utah Code Ann. § 53-5-704 .......................................11

Va. Code Ann. § 18.2-308.04 .....................................11

Va. Code Ann. § 18.2-308.08 .....................................11

W. Va. Code. Ann. § 61-7-4 .......................................11

Wash. Rev. Code Ann. § 9.41.070 .............................11

Wis. Stat. Ann. § 175.60............................................11

Wyo. Stat. Ann. § 6-8-104 .........................................11

Other Authorities

1 William Blackstone, Commentaries

(1765) ..13, 15

3 J. Story, Commentaries on the Constitution of

the United States (1833) .....................................13

John R. Lott, Jr., Concealed Carry Permit

Holders Across the United States: 2017,

Crime Prevention Research Ctr., Jul. 2017 .......11

viii

John R. Lott, Jr., What A Balancing Test Will

Show for Right-to-Carry Laws, 71 Md. L.

Rev. 1205 (2012)..................................................11

Joyce Lee Malcolm, The Right to Carry Your Gun

Outside: A Snapshot History (George Mason

Univ. Legal Studies Research Paper No. LS

19-18)...................................................................13

Vermont Gun Laws, NRA-ILA (Nov. 12, 2014) ........11

1

INTEREST OF AMICI CURIAE1

The amici States—Alabama, Alaska, Arizona,

Arkansas, Georgia, Idaho, Indiana, Kansas,

Louisiana,

Mississippi,

Missouri,

Montana,

Nebraska, North Dakota, Ohio, Oklahoma, South

Carolina, South Dakota, Texas, Utah, and West

Virginia—have a profound interest in protecting the

fundamental right of their citizens to keep and bear

arms. That is why they are counted among the 41

States that have enacted shall-issue licensing

regimes (or their equivalent), which allow any lawabiding citizen who meets objective criteria to

lawfully carry a handgun outside the home.

A handful of States have departed from this

nationwide consensus. They limit the exercise of this

fundamental right to only the rare citizen who can

prove to a bureaucrat’s satisfaction that she needs to

bear a handgun outside the home. These States rely

on concerns about public safety to justify their

restrictions. But the amici States have the same

interest in protecting their citizens, and they do so

without extinguishing their citizens’ rights.

Moreover, the amici States recognize that “the

enshrinement of constitutional rights necessarily

takes certain policy choices off the table.” District of

Columbia v. Heller, 554 U.S. 570, 636 (2008). Even

Pursuant to Rule 37.6, the undersigned certifies that no

parties’ counsel authored this brief, and only amici or their

offices made a monetary contribution to the brief’s preparation

or submission. Consistent with Rule 37.2(a), the amici States

provided notice to the parties’ attorneys more than ten days in

advance of filing.

1

2

so, because of a pronounced circuit split and silence

from this Court, it is unclear what policy choices are

left on the table—much less what standard courts

will use to review those policy choices. The amici

States thus have an interest in having this Court

make clear that laws that preclude law-abiding

citizens from bearing arms outside the home violate

the Second Amendment.

SUMMARY OF THE ARGUMENT

In Heller, 554 U.S. 570, and again in McDonald v.

City of Chicago, 561 U.S. 742 (2010), this Court made

two things clear. First, that “individual self-defense”

constitutes the “central component” of the Second

Amendment’s guarantee. Heller, 554 U.S. at 599

(emphasis omitted); see McDonald, 561 U.S. at 74950. And second, that courts cannot use an “interestbalancing” approach to evaluate restrictions on the

exercise of that right. See Heller, 554 U.S. at 634;

McDonald, 561 U.S. at 785-86.

Courts of Appeals that have faithfully applied

these teachings have arrived at a rather

unremarkable place: They have concluded that the

core of the Second Amendment right to self-defense

extends beyond the home. This conclusion makes

sense both textually and historically. The word

“bear,” after all, means “carry,” Heller, 554 U.S. at

584, so it would be passing strange for that word to

be used “to protect little more than carrying a gun

from the bedroom to the kitchen.” Peruta v.

California, 137 S. Ct. 1995, 1998 (2017) (Thomas, J.,

dissenting from denial of certiorari). Instead, as a

plethora of historical examples show, and as logic

3

would dictate, the Second Amendment right to bear

arms extends beyond the home because the need for

self-defense does too.

Other Courts of Appeals, however, have traveled

to a place far more remarkable. They have held that

only self-defense at home forms the core of the right

protected by the Second Amendment, and thus have

they upheld regimes that prohibit average citizens

from carrying handguns outside the home.

Unsurprisingly, these Courts have embraced just the

kind of free-floating interest-balancing approach that

this Court rejected in Heller, and which would never

pass constitutional muster if used with any other

enumerated right.

As a result of this patchwork, either millions of

citizens are being deprived of the fundamental right

of self-defense outside the home or some federal

courts have wrongfully deprived states of policy

options that the Second Amendment never took off

the table. Amici States submit that it is the former,

not the latter. That is one reason why amici are

among the forty-one States that allow typical, lawabiding citizens to bear handguns outside the home.

And while all States seek to promote their citizens’

safety, amici have found they can do so without

depriving their citizens of fundamental rights.

Despite this nearly uniform practice among the

States, the courts remain sharply divided. This Court

therefore should grant certiorari to provide guidance

both about how courts should analyze laws that

touch on the Second Amendment’s guarantee and

about the scope of the guarantee itself.

4

ARGUMENT

I. The Courts Of Appeals Are Deeply Divided

And The States Are In Need Of Guidance

From This Court.

Raymond Woollard was at home with his wife,

children, and grandchildren on Christmas Eve when

an intruder shattered a window and broke into his

house. Woollard v. Gallagher, 712 F.3d 865, 871 (4th

Cir. 2013). It was his son-in-law, high on drugs and

in search of a car. Woollard and his son brandished

firearms to control the situation until police could

arrive—two-and-a-half hours later. Id. Afterward,

Woollard applied for and received a permit from

Maryland to carry a handgun outside his home for

self-protection. Id. But when he went to renew the

permit for the second time, the Handgun Permit

Unit denied him a license. In its sole determination,

Woollard had “not demonstrated a good and

substantial reason to wear, carry, or transport a

handgun as a reasonable precaution against

apprehended danger,” which is what Maryland law

requires. Id. (quotation marks omitted).

One might think that Maryland’s approach to

licensing constitutional rights is extreme. After all,

the burden is normally on the State to demonstrate

good cause for infringing on the exercise of a

Constitutional right. But in Maryland, it’s the other

way around: The burden is placed on the citizen to

demonstrate a “good and substantial reason” for

carrying a handgun. Under this scheme, bearing

arms in self-defense is not a right, but a privilege

granted by the government to the few deemed to be

5

in dire-enough straits to warrant carrying a

handgun. In no other context would a court allow a

State to condition the exercise of an enumerated

right on the whim of a bureaucrat. See Staub v. City

of Baxley, 355 U.S. 313, 322 (1958) (“[A]n ordinance

which … makes the peaceful enjoyment of freedoms

which the Constitution guarantees contingent upon

the uncontrolled will of an official—as by requiring a

permit or license which may be granted or withheld

in the discretion of such official—is an

unconstitutional censorship or prior restraint upon

the enjoyment of those freedoms.”). But not only has

the Fourth Circuit upheld Maryland’s regime, three

other Courts of Appeals have upheld similar regimes

in other States. See App. 3a; Gould v. Morgan, 907

F.3d 659 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426

(3d Cir. 2013); Kachalsky v. County of Westchester,

701 F.3d 81 (2d Cir. 2012).

In contrast, two Courts of Appeals have firmly

held that “good cause” restrictions on carrying

firearms

outside

the

home

are

plainly

unconstitutional. See Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017); Moore v. Madigan, 702

F.3d 933 (7th Cir. 2012). Two panels of the Ninth

Circuit have also reached this same result, only to

have their decisions vacated by the en banc court.

See Peruta v. County of San Diego, 742 F.3d 1144,

1167 (9th Cir. 2014), vacated, rev’d on reh’g en banc,

824 F.3d 919, 942 (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). This deep

division sows confusion and warrants review by this

Court.

6

1. The Courts of Appeals fundamentally disagree

about how to analyze Second Amendment challenges.

To be sure, most courts have held that a two-step

approach is appropriate, in which the “first question

is whether the challenged law imposes a burden on

conduct falling within the scope of the Second

Amendment’s guarantee” and the second step is

“applying an appropriate form of means-end

scrutiny.” Woollard, 712 F.3d at 875 (internal

quotation marks omitted); see GeorgiaCarry.Org, Inc.

v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322

(11th Cir. 2015); United States v. Chovan, 735 F.3d

1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am.,

Inc. v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United

States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012);

Heller v. District of Columbia, 670 F.3d 1244, 1252

(D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d

684, 703-04 (7th Cir. 2011); United States v.

Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United

States v. Reese, 627 F.3d 792, 800-01 (10th Cir.

2010). But see Wrenn, 864 F.3d at 665-67 (rejecting

two-step approach because D.C.’s “good cause” law

was “necessarily a total ban” on most residents’ right

to carry a gun for ordinary self-defense needs).

But the chaos sets in as soon as courts take the

first step—determining whether a challenged law

infringes on the Second Amendment’s guarantee. By

slicing and dicing this Court’s decision in Heller, the

First, Second, Third, and Fourth Circuits have all

held that “good cause” restrictions do not impose a

significant burden on the exercise of the right to keep

and bear arms because “the ‘core’ protection of the

7

Second Amendment is the ‘right of law-abiding,

responsible citizens to use arms in defense of hearth

and home’”—not to use arms anywhere else.

Kachalsky, 701 F.3d at 94 (emphasis added) (quoting

Heller, 554 U.S. at 634-35); see Gould, 907 F.3d at

672; Drake, 724 F.3d at 431; Woollard, 712 F.3d at

874.

By contrast, other circuits have recognized that

“[a]t the Second Amendment’s core lies the right of

responsible citizens to carry firearms for personal

self-defense beyond the home.” Wrenn, 864 F.3d at

667 (emphasis added); see Moore, 702 F.3d at 942.

That the circuits are so deeply divided on so

fundamental a question is reason enough for this

Court to grant review and provide much-needed

guidance. See Pet. 8-13.

Moreover, the circuits’ disagreement only deepens

when they reach the second step of their analysis

and begin reviewing the constitutionality of a

challenged law. Though most circuits purport to

apply some form of “intermediate scrutiny,” “the

circuits’ actual approaches are less neat—and far

less consistent—than that.” Tyler v. Hillsdale Cty.

Sheriff’s Dep’t, 775 F.3d 308, 324 (6th Cir. 2014),

rev’d en banc, 837 F.3d 678 (6th Cir. 2016); see also

Peruta, 742 F.3d at 1167-68 (collecting cases

demonstrating the “varying sliding-scale and tieredscrutiny approaches”). In fact, the circuits that have

upheld “good cause” licensing regimes have generally

done so by embracing just the kind of “judgeempowering ‘interest-balancing’ inquiry’” that this

Court in Heller so forcefully rejected. 554 U.S. at 634.

There, the Court explained that it would not adopt a

8

test that asks “whether the statute burdens a

protected interest in a way or to an extent that is out

of proportion to the statute’s salutary effects upon

other important governmental interests,” id. (quoting

Breyer, J., dissenting), because it knew of “no other

enumerated constitutional right whose core

protection has been subject to a freestanding

‘interest-balancing’ approach.” Id. Yet that is

precisely the test adopted by some of the circuits.

See, e.g., Drake, 724 F.3d at 439 (deferring to New

Jersey’s judgment that allowing individuals to carry

handguns in public creates a “somewhat heightened

risk to the public [that] may be outweighed by the

potential safety benefit to an individual with a

‘justifiable need’ to carry a handgun”); Woollard, 712

F.3d at 881 (deferring to Maryland’s determination

“that the good-and-substantial reason requirement

strikes an appropriate balance between granting

handgun permits to those persons known to be in

need of self-protection and precluding a dangerous

proliferation of handguns on the streets of

Maryland”); Kachalsky, 701 F.3d at 100 (deferring to

New York’s determination “that limiting handgun

possession to persons who have an articulable basis

for believing they will need the weapon for selfdefense is in the best interest of public safety and

outweighs the need to have a handgun for an

unexpected confrontation”).

Circuits on the other side of the split have instead

taken this Court at its word and rejected the

interest-balancing test used by the majority. See

Wrenn, 864 F.3d at 666-67 (“[W]e needn’t pause to

apply tiers of scrutiny, as if strong enough showings

9

of public benefits could save this destruction of so

many

commonly

situated

D.C.

residents’

constitutional right to bear commons arms for selfdefense in any fashion at all.”); Moore, 702 F.3d at

941 (“[O]ur analysis is not based on degrees of

scrutiny, but on Illinois’s failure to justify the most

restrictive gun law of any of the 50 states.”); see also

Heller, 670 F.3d at 1271 (Kavanaugh, J., dissenting)

(“In my view, 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.”). These courts properly rely on deep dives

into the history of the right to bear arms to

determine the standing of modern laws that affect

that right. See Wrenn, 864 F.3d at 658-61; Moore,

702 F.3d at 935-37. This is something the First,

Second, Third, and Fourth Circuits simply refuse to

do. See Pet. for Cert. at 12-13.

In sum, it is impossible for States to make sense

of, much less plan for, such varying approaches to

how State laws will be reviewed by the judiciary.

This Court thus should clarify the proper mode of

analysis that applies to the Second Amendment.

2. As a result of the circuits’ clashing modes of

analysis, the guarantee of the Second Amendment is

enforced only in a patchwork fashion throughout the

country. But what’s good for quilts is not good for

fundamental rights. The situation is untenable.

In examining the reasonableness of laws that

burden fundamental rights, the Court regularly

looks to the views of the several States for guidance.

10

And while States should generally have the freedom

to adopt different laws than their sisters, other

States’ laws can nonetheless “provide testimony to

the unreasonableness” of another State’s law “and to

the ease with which the State can adopt less

burdensome means” to accomplish its objectives.

Hodgson v. Minnesota, 497 U.S. 417, 455 (1990).

Such reasoning is in keeping with the way this Court

has evaluated similar constitutional questions. See

Tennessee v. Garner, 471 U.S. 1, 15 (1985); Harper v.

Va. State Bd. of Elections, 383 U.S. 663 (1966);

Gideon v. Wainwright, 372 U.S. 335, 345 (1963).

It is instructive, then, that while all States

(including the amici) share the compelling interest in

protecting the health and safety of their citizens,

only a few have deemed it necessary to eliminate

their citizens’ constitutional rights to achieve that

interest. Forty-one States have tailored their

licensing procedures to both secure the constitutional

rights of their citizens and protect safety.2 These so2 There are forty “shall issue” States. See Ala. Code § 13A-11-

75; Alaska Stat. Ann. § 18.65.700; Ariz. Rev. Stat. Ann. § 133112; Ark. Code Ann. § 5-73-309; Colo. Rev. Stat. § 18-12-203;

Fla. Stat. Ann. § 790.06; Ga. Code Ann. § 16-11-129; Idaho Code

Ann. § 18-3302; 430 Ill. Comp. Stat. Ann. 66 / 10; Ind. Code

§ 35-47-2-3; Iowa Code Ann. § 724.7; Kan. Stat. Ann. § 75-7c05;

Ky. Rev. Stat. Ann. § 237.110; La. Stat. Ann. § 40:1379.3; Me.

Rev. Stat. Ann. tit. 25, § 2003; Mich. Comp. Laws Ann. § 28.422

(3); Minn. Stat. Ann. § 624.714; Miss. Code Ann. § 45-9-101; Mo.

Ann. Stat. § 571.101; Mont. Code Ann. § 45-8-321; Neb. Rev.

Stat. Ann. § 69-2430; Nev. Rev. Stat. Ann. § 202.3657; N.H.

Rev. Stat. Ann. § 159:6; N.M. Stat. Ann. § 29-19-4; N.C. Gen.

Stat. Ann. § 14-415.12; N.D. Cent. Code Ann. § 62.1-04-03; Ohio

Rev. Code Ann. § 2923.125; Okla. Stat. Ann. tit. 21, § 1290.5;

Or. Rev. Stat. Ann. § 166.291; 18 Pa. Stat. and Cons. Stat. Ann.

11

called “shall issue” States grant concealed carry

licenses to typical law-abiding citizens who can show

reasonable proficiency with a firearm. John R. Lott,

Jr., What A Balancing Test Will Show for Right-toCarry Laws, 71 Md. L. Rev. 1205, 1207 (2012).

Notably, not one of these States has reverted to a

“good cause” licensing system—something one might

expect a State to do if public safety really was

harmed by allowing law-abiding citizens to carry

handguns outside the home. And in fact, the data

show that public safety tends to increase under

objective permitting systems. See Br. of Attys. Gen.

of Ariz. et al. as Amici Curiae, Rogers v. Grewal, No.

18-824 (U.S. Jan. 18, 2019). As one scholar put it,

“the bottom line is pretty clear: Since permit holders

commit virtually no crimes, right-to-carry laws can’t

increase violent crime rates.” John R. Lott, Jr.,

Concealed Carry Permit Holders Across the United

States: 2017, Crime Prevention Research Ctr., Jul.

2017, at 23. The laws of these States thus “provide

testimony to the unreasonableness” of Maryland’s

§ 6109; S.C. Code Ann. § 23-31-215; S.D. Codified Laws § 23-77; Tenn. Code Ann. § 39-17-1351; Tex. Gov’t Code Ann.

§ 411.177; Utah Code Ann. § 53-5-704; Va. Code Ann. §§ 18.2308.04 (C), 18.2-308.08 (A); Wash. Rev. Code Ann. § 9.41.070;

W. Va. Code. Ann. § 61-7-4; Wis. Stat. Ann. § 175.60; Wyo. Stat.

Ann. § 6-8-104. Additionally, Vermont does not issue gun

permits, because none are required under state law for a citizen

to carry a handgun. Vermont Gun Laws, NRA-ILA (Nov. 12,

2014), https://www.nraila.org/gun-laws/state-gun-laws/vermont/

(last visited Nov. 5, 2019). Finally, in addition to being a “shall

issue” state, Oklahoma recently approved permitless carry for

most law-abiding Oklahomans. See Okla. Stat. tit. 21, § 1272.

12

licensing procedure and to “the ease with which” the

State “can adopt less burdensome means” to

accomplish its ends. Hodgson, 497 U.S. at 455.

It is also striking that a resident of Alabama,

upon moving to Maryland would find such a stark

difference in the treatment of a fundamental right

protected by the United States Constitution.

Although some differences in the law are expected

and welcomed in our federalist system, it offends

basic notions of ordered liberty to have a

constitutionally enshrined right robustly protected in

one jurisdiction—or forty-one of them—and

extinguished elsewhere.

II. The Second Amendment’s Guarantee Is A

Fundamental Right That Extends Beyond

The Home.

Another reason this Court should grant review is

to correct the erroneous decisions by the First,

Second, Third, and Fourth Circuit Courts of Appeals.

Those courts got it wrong, and millions of Americans

are being denied a fundamental right of citizenship

as a result.

A.

The Right to Bear Arms is

Fundamental Right of Citizenship.

a

“[I]t has always been widely understood that the

Second Amendment, like the First and Fourth

Amendments, codified a pre-existing right.” Heller,

554 U.S. at 592. By the time of the passage of the

Bill of Rights, the right to keep and bear arms had

long existed as both (1) an extension of the natural

right to self-defense, and (2) a civil right guaranteed

13

to Englishmen. Blackstone wrote that the

Englishmen’s guarantee “of having arms for their

defence” was a “public allowance, under due

restrictions, of the natural right of resistance and

self-preservation.”

1

William

Blackstone,

Commentaries 136 (1765). Thus, 17th-century

“Englishmen liked to boast that they were ‘the freest

subjects under Heaven’ because, among other things

they had the right ‘to be guarded and defended from

all violence and Force, by their own Arms, kept in

their own hands, and used at their own charge under

their Prince’s Conduct.’” Joyce Lee Malcolm, The

Right to Carry Your Gun Outside: A Snapshot

History 5 (George Mason Univ. Legal Studies

Research Paper No. LS 19-18), available at

https://ssrn.com/abstract=3456940 (quoting “The

Security of Englishmen’s Lives...,” State Tracts: Being

a Further Collection of Several Choice Treatises

Relating to Government from the Year 1660 to 1689

225 (1692)).

As this Court has extensively recorded, the right

to keep and bear arms was likewise held dear in

early America. See Heller, 554 U.S. at 592-03.

“Antifederalists and Federalists alike agreed that the

right to bear arms was fundamental to the newly

formed system of government.” McDonald, 561 U.S.

at 769; see also 3 J. Story, Commentaries on the

Constitution of the United States § 1890 (1833) (“The

right of the citizens to keep and bear arms has justly

been considered, as the palladium of the liberties of a

republic.”). And many of the State constitutions that

were adopted in the years following ratification of

the Second Amendment “unequivocally protected an

14

individual citizen’s right to self-defense.” Heller, 554

U.S. at 603.

Following the Civil War, Congress set about

securing this fundamental right for AfricanAmericans who had previously been denied their

rights as citizens. Congress passed both the Civil

Rights Act of 1866, 14 Stat. 27, and the Freedmen’s

Bureau Act of 1866, 14 Stat. 173, in part to ensure

that (in the language of the latter) “the right ... to

have full and equal benefit of all laws and

proceedings concerning personal liberty, personal

security, and the acquisition, enjoyment, and

disposition of estate, real and personal, including the

constitutional right to bear arms” would “be secured

to and enjoyed by all the citizens ... without respect

to race or color, or previous condition of slavery.” 14

Stat. 176-77 (emphasis added). And “[i]n debating

the Fourteenth Amendment, the 39th Congress

referred to the right to keep and bear arms as a

fundamental right deserving of protection.”

McDonald, 561 U.S. at 775.

Fortunately, those efforts were not in vain. States

that once forbid black citizens from carrying firearms

no longer do. But that history continues to bear

witness to the fact that the right to keep and bear

arms has always been a fundamental right of

citizenship. And a citizen’s ability to exercise that

right should not turn on whether she can persuade a

bureaucrat that the right is really worth having.

15

B.

The Core of the Right Extends Beyond

the Home.

Not only does history demonstrate that the

general right to keep and bear arms was a

fundamental right of citizenship, but the text and

history of the Second Amendment confirm that the

core of the right extends beyond the home. That is

because the core of the right is, just as Blackstone

said, “the natural right of resistance and selfpreservation.” 1 Blackstone, Commentaries 136; see

Heller, 554 U.S. at 592 (“Putting all of these textual

elements together, we find that they guarantee the

individual right to possess and carry weapons in case

of confrontation.”); Wrenn, 864 F.3d at 661 (“[T]he

individual right to carry common firearms beyond

the home for self-defense—even in densely populated

areas, even for those lacking special self-defense

needs—falls within the core of the Second

Amendment’s protections.”).

In Heller, the Court explained that “[a]t the time

of the founding, as now, to ‘bear’ meant to ‘carry.’”

554 U.S. at 584. The Court then endorsed Justice

Ginsburg’s analysis in Muscarello v. United States of

what it means to “carry” a firearm: “Surely a most

familiar meaning is, as the Constitution’s Second

Amendment ... indicate[s]: ‘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. (quoting 524 U.S. 125, 143 (1998)

(Ginsburg, J., dissenting)).

16

This broad definition extends beyond the home.

As the Seventh Circuit explained: “The right to ‘bear’

as distinct from the right to ‘keep’ arms is unlikely to

refer to the home. To speak of ‘bearing’ arms within

one’s home would at all times have been an awkward

usage.” Moore, 702 F.3d at 936. Taken in context, the

natural language of the Second Amendment “implies

a right to carry a loaded gun outside the home.” Id.

Not only that, but an interpretation of the right to

bear arms that did not extend beyond the home

would undermine the Amendment’s prefatory clause:

“A well regulated Militia, being necessary to the

security of a free State....” U.S. Const. amend. II. In

Heller, the Court explained that the prefatory clause

in no way weakens the underlying right to bear

arms. Rather, it “announces the purpose for which

the right was codified: to prevent elimination of the

militia.” Heller, 554 U.S. at 599. And this Court has

also instructed that the scope of the right should be

“consistent with the announced purpose.” Id. at 578

(footnote omitted); see also United States v. Miller,

307 U.S. 174, 178 (1939) (“With obvious purpose to

assure the continuation and render possible the

effectiveness of such forces the declaration and

guarantee of the Second Amendment were made. It

must be interpreted and applied with that end in

view.”). It is difficult to imagine how the right could

accomplish that objective if it were limited to the

confines of the home.

Moreover, the historical examples the Court

invoked in Heller confirm that the right extends

beyond the home. In Heller, the Court explained

that, by the time of the founding, the historical

17

experiences of the English had led to an

understanding of the right as “protecting against

both public and private violence.” 554 U.S. at 594.

And even the historical examples the Court pointed

to as limitations on the right confirm its general

breadth. For example, the Court stated that its

decision in Heller “should [not] be taken to cast doubt

on longstanding prohibitions on the possession of

firearms by felons and the mentally ill, or laws

forbidding the carrying of firearms in sensitive places

such as schools and government buildings, or laws

imposing conditions and qualifications on the

commercial sale of arms.” Id. at 626-27 (emphasis

added). Implicit in these examples is the assumption

that the right generally extends to the public

carrying of arms in the first place.

Finally, the Court’s focus on the purpose of the

Second Amendment—ensuring the means to selfdefense—underscores that the right extends beyond

the home. As the Court reiterated in McDonald, the

“possession of firearms,” which is “essential for selfdefense,” is constitutionally protected because “selfdefense” is the “central component” of the Second

Amendment right. 561 U.S. at 787.

Nor has the Court limited this constitutional

right or its purpose to the home. In Heller, the Court

dealt with the right to keep arms within the home

where the need for self-defense is “most acute,” 554

U.S. at 628, but it did not do so at the expense of the

right to bear arms in public. The Court’s opening line

in McDonald is thus instructive: “Two years

ago ... this Court held that the Second Amendment

protects the right to keep and bear arms for the

18

purpose of self-defense....” 561 U.S. at 742 (emphasis

added). Thus, because the need for self-defense does

not end at the front door of the home, neither does

the right.

*

*

*

Although increasing safety and reducing crime

are compelling government interests, the Court has

made clear that “the very enumeration of the [Second

Amendment] right takes out of the hands 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. Yet this is precisely

what “good cause” regimes like Maryland’s seek to

do. They leave it up to a state agency to determine on

a case-by-case basis whether a citizen’s reasons for

carrying a handgun are good enough (in the agency’s

view) for her to do so, and they deny the vast

majority of citizens the right to bear arms outside

the home. Such regimes “seem almost uniquely

designed to defy” any plausible reading of the Second

Amendment, which at a minimum guarantees the

right of “the typical citizen to carry a gun.” Wrenn,

864 F.3d at 668. And it is telling that most States—

who share Maryland’s interests in public safety—

have not found the elimination of the Second

Amendment right to bear arms necessary to ensure

public safety. This Court should therefore grant

certiorari to bring clarity to the law, resolve the deep

circuit split, and restore the fundamental right to

bear arms to all citizens, no matter in which circuit

they happen to live.

19

CONCLUSION

For the foregoing reasons, the Court should

grant the petition.

Respectfully submitted,

STEVE MARSHALL

Alabama Attorney General

Edmund G. LaCour Jr.*

Solicitor General

A. Barrett Bowdre

Deputy Solicitor General

OFFICE OF ALA. ATT’Y GEN.

501 Washington Avenue

Montgomery, AL 36130

(334) 353-2196

edmund.lacour@AlabamaAG.gov

*Counsel of Record

ADDITIONAL COUNSEL

Kevin G. Clarkson

Attorney General of

Alaska

1031 W. Fourth Ave.

Suite 200

Anchorage, AK 99501

Curtis T. Hill, Jr.

Attorney General of

Indiana

200 West Washington St.

Room 219

Indianapolis, IN 46204

Leslie Rutledge

Attorney General of

Arkansas

323 Center St., Suite 200

Little Rock, AR 72201

Derek Schmidt

Attorney General of

Kansas

120 SW 10th Ave., 2nd Floor

Topeka, KS 66612-1597

Mark Brnovich

Attorney General of

Arizona

2005 N Central Ave.

Phoenix, AZ 85004

Jeff Landry

Attorney General of

Louisiana

P.O. Box 94005

Baton Rouge, LA 70804

Christopher M. Carr

Attorney General of

Georgia

40 Capitol Square, SW

Atlanta, GA 30334

Whitney Lipscomb

Counsel to Mississippi

Governor Phil Bryant

P.O. Box 139

Jackson, MS 39205

Lawrence G. Wasden

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720-0010

Eric S. Schmitt

Attorney General of

Missouri

207 W. High St.

P.O. Box 899

Jefferson City, MO 65102

Tim Fox

Attorney General of

Montana

215 N. Sanders Street

Helena, MT 59601

Alan Wilson

Attorney General of

South Carolina

P.O. Box 11549

Columbia, SC 29211

Doug Peterson

Attorney General of

Nebraska

2115 State Capitol

P.O. Box 98920

Lincoln, NE 68509

Jason Ravnsborg

Attorney General of

South Dakota

1302 E. Highway 14

Suite 1

Pierre, SD 57501-8501

Wayne Stenehjem

Attorney General of

North Dakota

600 E. Boulevard Avenue

Dept. 125

Bismarck, ND 58505

Ken Paxton

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711

Dave Yost

Attorney General of Ohio

30 E. Broad St., 17th Floor

Columbus, OH 43215

Mike Hunter

Attorney General of

Oklahoma

313 N.E. 21st Street

Oklahoma City, OK 73105

Sean D. Reyes

Attorney General of Utah

P.O. Box 142320

Salt Lake City, UT 84114

Patrick Morrisey

Attorney General of West

Virginia

State Capitol Complex

Bldg. 1, Room E-26

Charleston, WV 25305