Amicus Curiae Brief — 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.

No. 20-843

In the Supreme Court of the United States

_________________

NEW YORK STATE RIFLE & PISTOL ASSOCIATION, ET AL.,

Petitioners,

v.

KEVIN P. BRUEN, ET AL.,

Respondents.

_________________

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

_________________

BRIEF OF AMICI CURIAE NATIONAL

FOUNDATION FOR GUN RIGHTS AND

NATIONAL ASSOCIATION FOR GUN RIGHTS IN

SUPPORT OF PETITIONERS

__________________

David A. Warrington*

*Counsel of Record

Harmeet K. Dhillon

Karin Sweigart

DHILLON LAW GROUP, INC.

177 Post Street, Suite 700

San Francisco, CA 94108

Phone: 1.415.433.1700

dwarrington@dhillonlaw.com

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

Interest of the Amici Curiae ....................................... 1

Summary of the Argument ......................................... 2

Argument ..................................................................... 3

I. The Right to Keep and Bear Arms is Not a

Second-Class Right................................................... 3

II. History, Tradition, and Contemporary Sources

Support that the Right to Keep and Bear Arms

Extends to Outside the Home .................................. 7

III. There is No Distinction Between Exercising

Rights Protected Under the Bill of Rights in the

Home Versus Outside the Home ........................... 17

Conclusion.................................................................. 21

ii

TABLE OF AUTHORITIES

Cases

Page

Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991) ................................................ 19

California Motor Transp. Co. v. Trucking Unlimited,

404 U.S. 508 (1972) ................................................ 19

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) ................................................ 19

City of Los Angeles, Calif. v. Patel,

576 U.S. 409 (2015) ................................................ 20

Cox v. State of La.,

379 U.S. 536 (1965) ................................................ 18

District of Columbia v. Heller,

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

Florida v. Jardines,

569 U.S. 1 (2013). ................................................... 20

Kachalsky v. Cty. of Westchester,

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

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) .................................... 3, 5, 7, 17

Miranda v. Arizona,

384 U.S. 436 (1966) .......................................... 19, 20

Orozco v. Texas, 394 U.S. 324 (1969) ........................ 19

Rogers v. Grewal,

140 S. Ct. 1865, (2020) ................................. 6, 18, 21

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) ................................................ 20

Silvester v. Becerra,

138 S. Ct. 945 (2018) .............................................. 17

iii

State v. Huntley,

25 N.C. 418, 422-23 (1843) ..................................... 10

State v. Speller,

86 N.C. 697 (1882) .................................................. 11

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ................................................ 18

United States v. Place,

462 U.S. 696 (1983) ................................................ 20

United States v. Stevens,

559 U.S. 460 (2010) ................................................ 19

W. Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................ 17

Statutes

IRC § 501(c)(3) ............................................................. 1

IRC § 501(c)(4) ............................................................. 1

N.Y. Penal Law §400.00 .............................................. 2

Other Authorities

1 William Blackstone, Commentaries 143 (1765) .. 8, 9

Federalist 46 ...................................................... passim

Rules

Supreme Court Rule 37.6 ............................................ 1

Constitutional Provisions

Mass Dec. of Rights, art. I (1780) ............................. 11

Mass Dec. of Rights, art. XVII (1780) ....................... 11

Mass Dec. of Rights, arts. I and XVII (1780)............ 12

N.C. Dec. of Rights, art. XVII (1776) ........................ 10

Pa. Dec. of Rights, art. XXI (1790) ............................ 10

U.S. Const. amend. III............................................... 18

1

INTEREST OF THE AMICI CURIAE 1

Amicus Curiae the National Foundation for

Gun Rights, Inc. (“NFGR”) is a nonprofit educational,

research, and legal aid organization, exempt from

income tax operating under the Internal Revenue

Code (“IRC”) § 501(c)(3). The NFGR was established,

inter alia, to conduct research and inform and educate

the public on the right to keep and bear arms as

protected by the Second Amendment to the United

States Constitution. NFGR accomplishes its mission

through public communications and litigation.

Through its litigation program, the NFGR has filed

amicus briefs, in this Court and others, and has

assisted gun owners in both criminal and civil matters

where their rights have been violated.

Amicus Curiae the National Association for

Gun Rights, Inc. (“NAGR”) is a non-profit social

welfare organization exempt from income tax

operating under IRC § 501(c)(4). The NAGR was

established to inform the public on matters related to

the Second Amendment, including publicizing the

related voting records and public positions of elected

officials.

The NAGR encourages and assists

Americans

in

public

participation

and

communications with elected officials and policy

makers to promote and protect the right to keep and

1 All parties have consented to the filing of this brief. Pursuant

to Rule 37.6 no counsel for a party authored this brief in whole or

in part; and no person other than these amici curiae, their

members, or their counsel made a monetary contribution to its

preparation or submission.

2

bear arms through the legislative and public policy

process.

SUMMARY OF THE ARGUMENT

New York law prohibits citizens from carrying

a handgun outside of the home without a permit. N.Y.

Penal Law §400.00. New York officials only grant a

permit if an applicant can show “proper cause.”

Kachalsky v. Cty. of Westchester, 701 F.3d 81, 86 (2d

Cir. 2012). The term “proper cause” is not defined

within the statute. Id. And, as the Petitioners have

pointed out, New York courts have fashioned a body of

law that essentially makes it impossible for the typical

law-abiding New Yorker to obtain such a permit. Pet.

at 16-18. This Court granted Certiorari on the

question of “whether the [New York] state’s denial of

petitioners’ applications for concealed-carry licenses

for self-defense violated the Second Amendment.”

Requiring law-abiding citizens to obtain a

special permit to keep and bear arms, whether for

concealed or open-carry, violates the Second

Amendment. This is clear from the history and

traditions of this right as understood by Americans

who voted for the adoption of the Second Amendment.

This is also clear from the text of the Second

Amendment itself, which enumerated the right and

declared that it “shall not be infringed.”

The jurisprudence of this Court commands that

New York’s restriction on its citizens’ right to keep and

bear arms is unconstitutional and must fail. In this

case, to hold otherwise would treat the right to keep

3

and bear arms as a second-class right, worthy of less

protection than the other enumerated rights in the

Constitution and Bill of Rights. Such a result would

be repugnant to the history and traditions of our

nation, and inconsistent with the text of the Second

Amendment. Further, it would mark a dramatic

departure from this Court’s jurisprudence.

ARGUMENT

I.

The Right to Keep and Bear Arms is

Not a Second-Class Right

The right to keep and bear arms protected by

the Second Amendment is not a "second-class right,

subject to an entirely different body of rules than the

other Bill of Rights guarantees." McDonald v. City of

Chicago, Ill., 561 U.S. 742, 780 (2010) (plurality

opinion). Yet that is precisely how many lower courts

have treated and continue to treat the right to keep

and bear arms.

The right to keep and bear arms is a

“fundamental righ[t] necessary to our system of

ordered liberty.” Id. at 742. Further, it is an

individual right that existed prior to the Founding.

District of Columbia v. Heller, 554 U.S. 570, 599 (2008)

(stating the Second Amendment “codified a right

‘inherited from our English ancestors.’”). The right to

keep and bear arms is an advantage to that system of

ordered liberty, “which the Americans possess over the

people of almost every other nation.” Federalist 46.

This pre-existing right is protected by the Second

Amendment which states, “the right of the people to

4

keep and bear Arms, shall not be infringed.” New

York’s attempt to limit the right to keep and bear

handguns to the home, simply because those

handguns may be concealed, finds no support in the

understanding of the right at the time of the founding.

The scope of the right to keep and bear arms

extends as far as it was understood to extend by the

people who adopted the Second Amendment. Heller,

at 634 (“Constitutional rights are enshrined with the

scope they were understood to have when the people

adopted them, whether or not future legislatures or

(yes) even future judges think that scope too broad.”).

That original understanding binds government from

creating policy and regulations which encroach on the

original understanding of the pre-existing right that

the Second Amendment protects.

The history,

tradition, and textual analysis conducted by this

Court in Heller gives no support to the notion that the

right to keep and bear arms is limited to the home.

Indeed, Heller’s analysis forecloses that

argument. 2 554 U.S. at 591. Just as the phrase “bear

arms’” common usage in the military context did not

negate the presence of other non-military historical

examples, so here the historical emphasis of the rights’

protection in the home cannot supplant the myriad

examples of the right’s historical application outside

of the home. Id. (“At the time of the founding, as now,

2 To the extent Heller’s decision has been read to invite federal,

state, and municipal restrictions on the right to keep and bear

arms because the Court declined to decide situations not before

it, this Court should take the opportunity to clarify such a

reading is in error.

5

to ‘bear’ meant to ‘carry’…the phrase implies that the

carrying of the weapon is for the purpose of ‘offensive

or defensive action,’ [and] it in no way connotes

participation in a structured military organization.”)

Yet, for far too long, governmental entities

including the federal government—New York is not

alone—have attempted to restrict the right of

Americans to keep and bear arms. Even after Heller

and

McDonald—which

applied

the

Second

Amendment to the states through the Fourteenth

Amendment—governmental entities at all levels have

both sought to maintain existing laws that infringe

upon the right to keep and bear arms and even enact

new restrictions contrary to this Court’s holdings.

Unfortunately, many lower courts have upheld those

restrictions. In doing so, those courts often ignore

Heller’s guidance that any law that restricts the right

to keep and bear arms must be analyzed against the

historical context of the right as understood at the

Founding, and any decision must be made in light of

that understanding. Heller, 554 U.S. at 635. Lower

courts often treat Heller’s reasoning and discussion as

creating constraining limits on the rights’ application,

rather than taking to heart this Court’s guidance that

Heller left “many applications of the right to keep and

bear arms in doubt,” which should be worked out by

analyzing potential Second Amendment violations in

light of the right’s “historical justifications.” Id.

In essence, many courts eschew the roadmap

for examining Second Amendment rights provided by

Heller, de facto adopting Justice Breyer’s “weighing

needs and burdens” balancing test approach proffered

6

in his Heller dissent. Heller, 554 U.S. at 710.

Balancing tests and sliding scales find no support in

either the text of the Second Amendment or the

history and traditions of the right to keep and bear

arms as understood by Americans at the Founding.

Rogers v. Grewal, 140 S. Ct. 1865, 1867 (2020)

(Thomas, J. dissenting from denial of certiorari).

Heller could not have been clearer on this point:

We know of no other enumerated

constitutional

right

whose

core

protection has been subjected to a

freestanding

‘interest-balancing’

approach. The 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.

A

constitutional guarantee subject to

future judges’ assessments of its

usefulness is no constitutional guarantee

at all.

554 U.S. at 634. Yet these infringements persist in

the lower courts.

This persistence demonstrates that the lower

courts often treat the right to keep and bear arms as a

second-class right. Such treatment has no basis in the

history or traditions of the right. This inferior

treatment does not find any refuge in the text of the

Second Amendment, nor should it find any in the

jurisprudence of this Court or any lower court either.

7

II.

History, Tradition, and Contemporary

Sources Support that the Right to

Keep and Bear Arms Extends to

Outside the Home

It is not necessary to rehash the exhaustive

histories of the right to keep and bear arms discussed

in Heller and McDonald. Instead, this Court should

focus on the fact that the exercise of the right to keep

and bear arms, concealed or not, was never

understood, in the history and traditions of that right,

at the Founding, to be limited to the home. The

writings of Sir William Blackstone and, more

importantly, James Madison are instructive on this

point. So too are state constitutions and laws in effect

at the time of the Founding.

These sources

contemporary with the Founding demonstrate the

understanding of those who adopted the Second

Amendment that the right to keep and bear arms was

not limited to being exercised in one’s home. To the

contrary, these sources enforce the understanding

that a right so limited to one’s home would be no

“right” at all.

The text of the Second Amendment broadly

prohibits anyone from infringing the people’s right to

“bear Arms.” Analyzing these sources, Heller held

that the combination of the words “bear” and “Arms”

refers to carrying arms “for a particular purpose—

confrontation.” 554 U.S. 584. And Heller further held

that the individual right secured by the Second

Amendment guaranteed Americans the right to

defend themselves against “both public and private

8

violence.” Id. at 594. This understanding is consistent

with the writings of Blackstone.

A.

Blackstone’s Writings

Blackstone’s account of the right to bear arms

provides strong evidence that this right was not

cabined to citizens’ homes. Blackstone rooted the right

to bear arms in “the natural right of resistance and

self preservation,” and described how the right was

enshrined in English law for situations “when the

sanctions of society and laws are found insufficient to

restrain the violence of oppression.” 1 William

Blackstone, Commentaries 143 (1765).

Blackstone provided no reason to infer that the

right to resist physical violence or to defend oneself,

which Blackstone believed formed the foundation for

the right to bear arms, ends at one’s door. And when

society’s laws fail in restraining violence or

oppression, nothing in Blackstone’s writings indicates

that citizens would be limited to opposing such

violence or oppression to areas behind the threshold of

their homes. Restricting the absolute right to bear

arms to one’s home, then, makes little sense based on

Blackstone’s reasoning.

In fact, Blackstone never limited the right to

bear arms to any specific location. Instead, he

frequently described the expansive nature of the right

to bear arms, and wrote that “to vindicate [their]

rights, when actually violated or attacked, the

subjects of England are entitled ... to the right of

having and using arms for self-preservation and

9

defense.” Id. at 143-44. Given that there is no

limitation on where one may be violated or attacked,

and indeed, one is more likely to be the subject of

violence or oppression outside of one’s dwelling, it

logically follows that the right to keep and bear arms

is an expansive right where individuals have the right

to possess and use arms to preserve and defend

themselves from attack both inside and outside the

home.

Further support for understanding that the

right to keep and bear arms existed outside the home

can be found in Blackstone’s discussion of historical

examples of the public bearing of arms:

The custom of the ancient Germans was

to give their young men a shield and a

lance in the great council: this was

equivalent to the toga virilis of the

Romans: before this they were not

permitted to bear arms, but were

accounted as part of the father's

household; after it, as part of the

community.

Id. at 403. While Blackstone’s writings, as a leading

authority on the law at the time of the Founding, are

important to the understanding of the right to keep

and bear arms at that time, state constitutions and

laws of the time also edify that understanding.

B.

10

Contemporary State Constitutions

and Laws

During America’s Founding, the right to keep

and bear arms was enshrined in many state

constitutions and laws that support Petitioners’

argument that the right was not simply limited to the

home. Pennsylvania’s Declaration of Rights, adopted

in 1790, provided that “[t]he right of the citizens to

bear arms in defense of themselves and the State shall

not be questioned.” Pa. Dec. of Rights, art. XXI (1790).

Nothing cabined this right to a citizen’s home, and this

provision made crystal clear that citizens held a broad

right to bear arms for purposes of self-defense and

defense of the state, both inside and outside the home.

Likewise, in North Carolina, delegates met at

the state constitutional convention in 1776 and

adopted a Declaration of Rights that stated: “the

People have a Right to bear Arms for the Defense of

the State.” N.C. Dec. of Rights, art. XVII (1776). The

Supreme Court of North Carolina later interpreted

this provision to mean that a citizen may carry a gun

outside his home for any lawful purpose but cannot

use arms to terrify regular citizens. State v. Huntley,

25 N.C. 418, 422-23 (1843). The North Carolina court

emphasized that “it is to be remembered that the

carrying of a gun per se constitutes no offence.” Id.

Nothing in North Carolina’s Declaration of Rights

limited the right to bear arms to the home. As ably

stated by the North Carolina court, the right to bear

arms included the right to carry arms outside of one’s

home for a lawful purpose:

11

For any lawful purpose-either of business

or amusement-the citizen is at perfect

liberty to carry his gun. It is the wicked

purpose-and the mischievous resultwhich essentially constitute the crime.

He shall not carry about this or any other

weapon of death to terrify and alarm, and

in such manner as naturally will terrify

and alarm, a peaceful people.

Id. at 423. It was well understood that it was the

“wicked purpose-and the mischievous result-which”

would constitute a crime, not merely the possession or

carrying of a gun. State v. Speller, 86 N.C. 697, 700

(1882) (holding the “right to keep and bear arms”

protected the open wearing of the arms in public).

This understanding that the mere possession or

bearing of arms was not to be restricted was common

to the understanding of those citizens of the several

states who later formed the United States by adoption

of the Constitution.

The Massachusetts Declaration of Rights from

1780 also included a broad guarantee regarding the

right to keep and bear arms, providing that “[t]he

people have a right to keep and bear arms for the

common defense.” Mass Dec. of Rights, art. XVII

(1780). The declaration also stated that citizens had

certain inalienable rights including “defending their

lives and liberties . . . and protecting property.” Mass

Dec. of Rights, art. I (1780).

Both of these provisions substantiate that the

people had the right to “keep” their firearms in the

12

home, or “bear” them outside the home, for “the

common defense” and for “defending their lives and

liberties . . . and protecting property.” Mass Dec. of

Rights, arts. I and XVII (1780). A Massachusetts law

passed in 1795 permitted justices of the peace to arrest

only those who “ride or go armed offensively, to the

fear or terror of the good citizens of this

Commonwealth,” confirming the right to bear arms

outside the home for legitimate purposes. Act of Jan.

29, 1795, in 1 The Perpetual Laws of the

Commonwealth of Massachusetts, From the

Establishment of Its Constitution in The Year 1780,

To The End of the Year 1800, 259 (1801). Again, the

citizens of Massachusetts at the time of the Founding

understood, like those citizens of North Carolina, that

it was the “wicked purpose” and “mischievous result”

that was the crime, not mere possession or carrying of

arms.

In light of these contemporary historical

examples, it is not surprising that James Madison

considered the right to keep and bear arms an

advantage that Americans possessed superior to those

rights possessed by the citizens of any other nation.

Federalist 46.

C.

James Madison and Federalist 46

James Madison’s Federalist 46 provides a

uniquely American understanding of the right to keep

and bear arms as understood at the time. Madison’s

arguments in Federalist 46 bolster the position that

the Second Amendment right to bear arms was not

constrained to the home. For Madison, the right of

13

American citizens to bear arms outside the home was

foundational to American exceptionalism and selfgovernment. This right acted as a bulwark against

potential oppression by a far-off federal government

and differentiated the United States from tyrannical

nations in Europe who refused their citizens similar

access to firearms. Madison understood that American

citizens had the right to bear arms outside of their

homes to defend against enemies both foreign and

domestic, and that this right was crucial to preserve

the American system of government and individual

liberty.

Our particular form of government, which was

largely developed by Madison and others, was based

on the idea of federalism, where state and federal

governments have separate spheres, rights, and

responsibilities limited by the Constitution. In this

system, it is the individual citizen who stands as the

ultimate source of governmental power and authority.

It is the individual citizen who ultimately possesses

inalienable and pre-existing rights such as the right to

keep and bear arms for self-defense against tyranny

and violence.

With the backdrop of the American Revolution,

where the colonists revolted against an overbearing

government, the concern over an all-powerful federal

government’s ability to transgress against those

inalienable and pre-existing rights was foremost in

the citizens’ mind. The state governments were seen

as the first line of defense against such transgressions.

14

Responding to those who believed that the

federal government would maintain a standing army

that would enable “the downfall of the State

governments,” Madison first pointed out the unlikely

sequence of events that would need to happen for that

downfall to occur. James Madison, Federalist 46, The

Federalist Papers 290 (Charles R. Kesler and Clinton

Rossiter, eds., 2003). Madison argued that it was

highly unlikely that “the people and the States should,

for a sufficient period of time, elect an uninterrupted

succession of men ready to betray both,” and “that the

traitors should, throughout this period, uniformly and

systematically pursue some fixed plan for the

extension of the military establishment.” Id. Further,

it was unlikely “that the governments and the people

of the States should silently and patiently behold the

gathering storm, and continue to supply the materials,

until it should be prepared to burst on their own

heads.” Id.

If the federal government did form a regular

army “fully equal to the resources of the country” and

“entirely at the devotion of the federal government,”

Madison reasoned that “the State governments, with

the people on their side, would be able to repel the

danger.” Id. According to Madison, the states would

be able to unite a militia “amounting to near half a

million of citizens with arms in their hands, officered

by men chosen from among themselves, fighting for

their common liberties, and united and conducted by

governments possessing their affections and

confidence” against a much smaller federal force. Id.

15

This does not mean that Madison understood

the right to keep and bear arms to be solely for the

purpose of confronting an overreaching federal or

foreign power through service in a militia. He

understood it to be a pre-existing individual right.

Citizens too had the right to bear arms outside the

home to fight for their common and individual

liberties and could be called upon to unite for the

common defense precisely because they were

rightfully armed as individual citizens. Nothing in

Madison’s writings limited the right to keep and bear

arms to the home.

This understanding was absolutely crucial in

Madison’s mind to ensure the preservation of

federalism in the American system of government

which was designed to protect the individual liberty of

its citizens where the ultimate authority rested with

the individual citizen. Madison cited the American

colonies’ “last successful resistance . . . against the

British arms” as evidence that a state militia

composed of citizens with the right to bear arms

outside the home could not be conquered by a federal

force. Id. Remember that the American Revolution

was fought to secure the individual rights the colonists

possessed that the Crown and Parliament violated.

To Madison, Americans’ broad right to keep and

bear arms was a key advantage and was a right

unique to the American citizen that the people of

almost every other nation lacked:

Besides the advantage of being armed,

which the Americans possess over the

16

people of almost every other nation, the

existence of subordinate governments, to

which the people are attached, and by

which the militia officers are appointed,

forms a barrier against the enterprises of

ambition, more insurmountable than any

which a simple government of any form

can admit of.

Id. This was a uniquely American right.

As Madison pointed out, “[n]otwithstanding the

military establishments in the several kingdoms of

Europe, which are carried as far as the public

resources will bear, the governments are afraid to

trust the people with arms.”

Id.

European

governments refused to trust their people with arms.

In stark contrast, the right of Americans to keep and

bear arms was protected by the adoption of the Second

Amendment.

In arguing for the adoption of the Bill of Rights,

Madison reflected the understanding of the times of

the Americans who were voting to adopt the Bill of

Rights.

If possession and bearing of arms were

limited to being exercised solely within the home, it is

likely the American Revolution would never have

occurred, much less succeeded, and neither the

Constitution nor the Bill of Rights would have been

adopted.

III.

17

There is No Distinction Between

Exercising Rights Protected Under the

Bill of Rights in the Home Versus

Outside the Home

“The very purpose of a Bill of Rights was to

withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach

of majorities and officials and to establish them as

legal principles to be applied by the courts.” W.

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,

638 (1943). The right to keep and bear arms is

supposed to be one of those protected subjects.

Nonetheless, officials, such as the New York state

officials here, and lower courts have hollowed out this

right to the point that its meaning shifts with every

change in political winds, despite it being settled that

the Second Amendment protects an individual right to

keep and bear arms that applies against both the

federal government and the states. Heller, 554 U.S.

570; McDonald, 561 U.S. 742.

Though Heller acknowledged that the right is

not unlimited, 554 U.S. at 595, the onerous

restrictions lower courts have placed on the right to

keep and bear arms protected by the Second

Amendment

have

no

parallel

among

the

Constitution’s other enumerated rights. See Silvester

v. Becerra, 138 S. Ct. 945 (2018) (Thomas, J.

dissenting from denial of certiorari) (“If a lower court

treated another right so cavalierly, I have little doubt

that this Court would intervene. But as evidenced by

our continued inaction in this area, the Second

Amendment is a disfavored right in this Court.”).

18

There is no historical or legal basis for states’ and

courts’ treatment of the Second Amendment as a

second-class right.

In this case and others, courts of appeal have

upheld state laws which essentially treat the Second

Amendment as a right of domicile rather than an

individual right. See, e.g., Rogers v. Grewal, 140 S. Ct.

1865, 1867 (Thomas, J., dissenting from denial of

certiorari). But for the Third Amendment 3 which, by

its terms, applies solely to the home, the Second

Amendment alone among the enumerated rights

seems to bears this burden in the lower courts.

Consider the value of the rights to speech,

assembly, and religion were they to be relegated only

to being exercised within the home. Such limitation

would neuter the right to the point of it being

meaningless.

Of course, those fundamental rights are not

treated as being limited to the home. Yet, for some

lower courts, the right to keep and bear arms is

somehow different. Contrast the right to free speech

which may be freely exercised at the schoolhouse,

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969) (“It can hardly be argued that either

students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse

gate.”), the courthouse, Cox v. State of La., 379 U.S.

536, 546 (1965) (holding civil rights protesters could

3 “No Soldier shall, in time of peace be quartered in any house,

without the consent of the Owner, nor in time of war, but in a

manner to be prescribed by law.” U.S. Const. amend. III.

19

not be prosecuted for breach of the peace for their

peaceful protest which ended at a courthouse), and the

people’s house, see e.g., California Motor Transp. Co.

v. Trucking Unlimited, 404 U.S. 508, 512 (1972)

(“Certainly the right to petition extends to all

departments of the Government”).

An individual may exercise his or her right to

free speech outside of the home even when much of

society would deem that speech offensive, United

States v. Stevens, 559 U.S. 460, 471–72 (2010)

(striking down a law restricting depictions of animal

cruelty), exploitive, Barnes v. Glen Theatre, Inc., 501

U.S. 560, 567 (1991) (limiting restrictions on nude

dancing as violative of free speech), or dangerous,

Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 793

(2011) (striking down speech restrictions on violent

video games). The individual right to free speech

attaches to the individual, not the domicile. And such

rights are meaningful because they may be exercised

where they are needed and may be most effective.

Likewise, the right to freely exercise one’s

religion is not limited to an individual’s home. Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 524 (1993) (holding members of the Santeria

church at the Church of Lukumi Babalu Aye, Inc.

could exercise their religion—outside of their homes—

free from government interference). Similarly, the

right to be free from self-incrimination applies both

inside and outside the home, see Orozco v. Texas, 394

U.S. 324, 326 (1969) (holding persons questioned in

their bed retain a Fifth Amendment right against selfincrimination); Miranda v. Arizona, 384 U.S. 436, 492

20

(1966) (holding persons being interrogated must be

informed of their Fifth Amendment right against selfincrimination).

In Heller, the Supreme Court emphasized the

importance of the Second Amendment’s application in

the home. Heller, 554 U.S. at 628. Yet, lower courts,

inexplicably, interpret this emphasis as a limiting

principle rather than merely a point of explanation

and the Court simply deciding the case before it based

on the facts of the case. As discussed above, there is

no historical or legal basis for the lower courts

restricting the right to keep and bear arms, concealed

or not, to being exercised solely within the home.

The Fourth Amendment generally prevents the

government from compelling a suspect to consent to a

search of his home. See Schneckloth v. Bustamonte,

412 U.S. 218, 248–249 (1973). This Court has stated

the “very core” of the individual right to be free from

unreasonable search and seizure in the Fourth

Amendment is “‘the right of a man to retreat into his

own home and there be free from unreasonable

governmental intrusion.’” Florida v. Jardines, 569

U.S. 1, 6 (2013). Yet, this acknowledgment of the

right’s gravity as applied within the home has not

stopped this or lower courts from applying it without.

Fourth Amendment protections extend to cars,

Brendlin v. California, 551 U.S. 249, 255 (2007),

airports, United States v. Place, 462 U.S. 696 (1983),

motels, City of Los Angeles, Calif. v. Patel, 576 U.S.

409, 412 (2015), and beyond. Only the right to keep

and bear arms protected by the Second Amendment,

for some lower courts, ends at the front door.

21

As Justices Thomas and Kavanaugh recently

noted, “[t]he Second Amendment provides no

hierarchy of ‘core’ and peripheral rights.” Rogers v.

Grewal, 140 S. Ct. 1865, 1867 (2020) (dissenting from

the denial of certiorari). The general framework for

analyzing Second Amendment cases requires a review

of the “text, history, and tradition” to determine

whether a challenged law violates the right to keep

and bear arms. Id. (citing Heller, 554 U.S. at 635).

Governments and courts that fear or dislike arms

should not be able to cavalierly treat the right of

citizens to keep and bear arms, concealed or not, as a

lesser right than the right to speech, assemble, or

practice one’s religion.

CONCLUSION

History, tradition, and text demonstrate that

the right to keep and bear arms is not a second-class

right limited to being exercised within the home if the

arm is carried concealed. This Court’s jurisprudence

treats no other enumerated right in such a manner.

This Court should put to rest states’ and lower courts’

treating the right to keep and bear arms, as protected

by the Second Amendment, as a second-class right.

22

DATED: July 20, 2021

Respectfully submitted,

David A. Warrington*

*Counsel of Record

Harmeet K. Dhillon

Karin Sweigart

DHILLON LAW GROUP, INC.

177 Post Street, Suite 700

San Francisco, CA 94108

Phone: 1.415.433.1700

Facsimile: 1.415.520.6593

dwarrington@dhillonlaw.com

Attorneys for Amici Curiae