The Second Amendment (Part 7)

Justice Thomas continued in relevant part: Evidence from around the adoption of the Fourteenth Amendment also does not support respondents’ position. The “discussion of the right to keep and bear arms in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves,” Heller, 554 U. S., at 614, generally demonstrates that during Reconstruction the right to keep and bear arms had limits that were consistent with a right of the public to peaceably carry handguns for self-defense. The Court acknowledges two Texas cases—English v. State, 35 Tex. 473 and State v. Duke, 42 Tex. 455—that approved a statutory “reasonable grounds” standard for public carry analogous to New York’s proper-cause requirement. But these decisions were outliers and therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. See Heller, 554 U. S., at 632.

Finally, respondents point to the slight uptick in gun regulation during the late-19th century. As the Court suggested in Heller, however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. In addition, the vast majority of the statutes that respondents invoke come from the Western Territories. The bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. See Heller, 554 U. S., at 614. Moreover, these territorial laws were rarely subject to judicial scrutiny, and absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, they do little to inform “the origins and continuing significance of the Amendment.” Ibid.; see also The Federalist No. 37, p. 229.

A potential sad irony of this decision is that it may create a “tail that wags the dog” scenario. That is to say, a drastic uptick in the number of people publicly carrying firearms may lead to an “ordinary self defense need” for everyone to carry a firearm. Put another way, an uptick in public gun violence will make it more reasonable and common for people who would otherwise have no interest in carrying a firearm to carry one.