No. 18-280

In the Supreme Court of the United States
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC.,
ET AL., PETITIONERS
v.
CITY OF NEW YORK, NEW YORK, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
VIVEK SURI
Assistant to the Solicitor
General
MICHAEL S. RAAB
ABBY C. WRIGHT
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

1. Whether New York City’s ban on transporting a
handgun to a home or a shooting range outside the City
violates the right to keep and bear arms guaranteed by
the Second and Fourteenth Amendments.
2. Whether New York City’s ban on transporting a
handgun to a shooting range outside the State violates
the dormant Commerce Clause.
3. Whether New York City’s ban on transporting a
handgun to a shooting range outside the State violates
the right to travel.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 6
Argument:
I. The transport ban infringes the right to keep and
bear arms .......................................................................... 8
A. The Second Amendment protects a right to
transport arms outside the home........................... 9
B. The transport ban infringes the right to
transport arms outside the home ......................... 13
C. The court of appeals’ reasons for upholding
the transport ban are mistaken ........................... 21
II. The ban on transporting firearms to out-of-state
ranges violates the dormant Commerce Clause,
but not the right to travel ............................................. 28
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES

Cases:
Andrews v. State, 50 Tenn. (3 Heisk.) 165
(1871) ........................................................................ 11, 17, 20
C & A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383 (1994).............................................................. 29
Carr v. State, 34 Ark. 448 (1879) .......................................... 18
City of Junction City v. Mevis, 601 P.2d 1145
(Kan. 1979) ........................................................................... 21
City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) ...... 21
City of Las Vegas v. Moberg, 485 P.2d 737
(N.M. Ct. App. 1971)........................................................... 21
Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868) ........... 30, 31
District of Columbia v. Heller, 554 U.S. 570
(2008) ........................................................................... passim
(III)

 IV
Cases—Continued:

Page

Edenfield v. Fane, 507 U.S. 761 (1993) ............................... 26
Edwards v. California, 314 U.S. 160 (1941) ....................... 31
English v. State, 35 Tex. 473 (1871) ..................................... 15
Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) ....... 17
Griffin v. Breckenridge, 403 U.S. 88 (1971) ........................ 30
Haile v. State, 38 Ark. 564 (1882) ........................................ 17
Heller v. District of Columbia, 670 F.3d 1244
(D.C. Cir. 2011) ............................................................. 15, 21
Hill v. State, 53 Ga. 472 (1874) ............................................. 17
Klenosky, In re, v. New York City Police Dep’t,
428 N.Y.S.2d 256 (N.Y. App. Div. 1980) ................. 2, 16, 22
Luis v. United States, 136 S. Ct. 1083 (2016) ..................... 10
Maryland v. Louisiana, 451 U.S. 725 (1981) ..................... 30
McCullen v. Coakley, 573 U.S. 464 (2014)..................... 26, 27
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) .................................................................................... 10
McDonald v. City of Chicago, 561 U.S. 742
(2010) .................................................................. 13, 14, 21, 24
Nunn v. State, 1 Ga. 243 (1846) ............................................ 20
Oregon Waste Sys., Inc. v. Department of Envtl.
Quality, 511 U.S. 93 (1994) ................................................ 30
Peruta v. California, 137 S. Ct. 1995 (2017) ......................... 9
Pressler v. State, 19 Tex. Ct. App. 52 (1885) ....................... 18
Revocation of Pistol License of Beach, In re,
837 N.Y.S.2d 534 (N.Y. Sup. Ct. 2007),
rev’d on other grounds, Beach v. Kelly,
860 N.Y.S.2d 112 (N.Y. App. Div. 2008) ........................... 22
Saenz v. Roe, 526 U.S. 489 (1999) .................................. 30, 31
Schall v. Martin, 467 U.S. 253 (1984) .................................. 25
Schneider v. State (Town of Irvington), 308 U.S. 147
(1939) .................................................................................... 28
State v. Larkin, 24 Mo. App. 410 (1887) .............................. 18

 V
Cases—Continued:

Page

State v. Reid, 1 Ala. 612 (1840) ............................................. 20
State v. Roberts, 39 Mo. App. 47 (1890) ............................... 18
Town of Greece v. Galloway, 572 U.S. 565 (2014) .............. 23
Underwood v. State, 29 S.W. 777
(Tex. Crim. App. 1895) ....................................................... 18
United States v. Cruikshank, 92 U.S. 542 (1876) ............... 11
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) ...... 27
United States v. Skoien, 614 F.3d 638 (7th Cir. 2010),
cert. denied, 562 U.S. 1303 (2011) ..................................... 14
Waddell v. State, 37 Tex. 354 (1872) .................................... 18
Constitution, statutes, and rules:
U.S. Const.:
Art. I, § 8, Cl. 3 (Commerce Clause) ......4, 5, 8, 28, 29, 30
Art. IV, § 2, Cl. 1 (Privileges and Immunities
Clause) ........................................................................... 30
Amend. I (Free Speech Clause)..................................... 28
Amends. I-X (Bill of Rights) .................................... 12, 27
Amend. II ................................................................ passim
Amend. XIV ................................................................... 6, 8
§ 1 (Privileges or Immunities Clause) ..................... 30
Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271........................... 12
18 U.S.C. 922(a)-(c) ................................................................ 15
18 U.S.C. 922(g)(1) ................................................................. 15
18 U.S.C. 922(g)(3) ................................................................. 15
18 U.S.C. 922(g)(4) ................................................................. 15
18 U.S.C. 922(g)(8) ................................................................. 15
18 U.S.C. 922(g)(9) ................................................................. 15
18 U.S.C. 922(q) ..................................................................... 15
18 U.S.C. 922(q)(2)(B)(iii) ..................................................... 19
18 U.S.C. 922(q)(2)(B)(vii) .................................................... 20

 VI
Statutes and rules—Continued:

Page

18 U.S.C. 922(x)(3) ................................................................. 19
18 U.S.C. 926A ....................................................................... 19
N.Y. Penal Law (McKinney Supp. 2019):
§ 265.00(10)......................................................................... 2
§ 265.01 (McKinney 2017) ................................................. 1
§ 265.20(a)(3) (McKinney 2017) ........................................ 1
§ 400.00(1)........................................................................... 2
§ 400.00(2)..................................................................... 2, 22
§ 400.00(2)(a) ...................................................................... 1
§ 400.00(2)(b) ...................................................................... 1
§ 400.00(2)(c)-(f ) ................................................................. 2
§ 400.00(3)(b) ...................................................................... 2
§ 400.00(4)........................................................................... 2
38 R.C.N.Y.:
Section 5-22(a)(16) ....................................................... 3, 16
Section 5-23(a) ................................................................. 22
Section 5-23(a)(1) ................................................... 2, 16, 22
Section 5-23(a)(2) ......................................................... 2, 22
Section 5-23(a)(3) ......................................................... 3, 16
Section 5-23(a)(4) ......................................................... 3, 16
Miscellaneous:
Benjamin Vaughan Abbott, Judge and Jury:
A Popular Explanation of Leading Topics in the
Law of the Land (1880) ...................................................... 17
Address and Reasons of Dissent of the Minority of
the Convention of the State of Pennsylvania to
their Constituents, reprinted in 2 Bernard
Schwartz, The Bill of Rights: A Documentary
History (1971) ..................................................................... 15

 VII
Miscellaneous—Continued:

Page

Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of
America (1880) .................................................................... 17
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 10
5 The American and English Encyclopedia of Law
(David S. Garland & Lucius P. McGehee eds.,
2d ed., 1897) ......................................................................... 18
Eugene Volokh, Implementing the Right to Keep
and Bear Arms for Self-Defense: An Analytical
Framework and a Research Agenda,
56 UCLA L. Rev. 1443 (2009) ............................................ 18

 In the Supreme Court of the United States
No. 18-280
NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC.,
ET AL., PETITIONERS
v.
CITY OF NEW YORK, NEW YORK, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States has a substantial interest in the
preservation of the right of the people to keep and bear
arms. In addition, Congress has enacted numerous
laws regulating firearms, and the United States has a
substantial interest in defending the constitutionality of
those laws.
STATEMENT

1. The State of New York requires a person to obtain a license before he may possess a handgun. N.Y.
Penal Law §§ 265.01, 265.20(a)(3) (McKinney 2017). A
premises license entitles the holder to “have and possess” a handgun in a “dwelling” or “place of business.”
Id. § 400.00(2)(a) and (b) (McKinney Supp. 2019). In
contrast, a carry license entitles the holder to “carry” a
(1)

 2
“concealed” handgun. Id. § 400.00(2)(c)-(f ) (McKinney
Supp. 2019). An application for either type of license
prompts an investigation into the applicant’s criminal record, mental health, and moral character. Id. §§ 400.00(1),
(3)(b), and (4) (McKinney Supp. 2019). After the investigation, the local licensing officer decides whether the
applicant fulfills the statutory criteria. An applicant
must establish, among other things, that he is at least
21 years old, that he has “good moral character,” and
that there is no “good cause” “for the denial of the license.” Id. § 400.00(1) (McKinney Supp. 2019). An applicant for a carry license must also show “proper
cause” “for the issuance” of the license, id. § 400.00(2)
(McKinney Supp. 2019), which usually means that he
must show “a special need for self-protection distinguishable from that of the general community,” In re
Klenosky v. New York City Police Dep’t, 428 N.Y.S.2d
256, 256 (N.Y. App. Div. 1980). The licensing officer enjoys “considerable discretion” in applying these criteria. Pet. App. 3 (citation omitted).
The licensing officer for the City of New York is the
New York City Police Commissioner. N.Y. Penal Law
§ 265.00(10) (McKinney Supp. 2019). The Police Commissioner has issued a rule—referred to here as the
“transport ban”—under which a residential premises license or business premises license authorizes the possession of a handgun only “inside” “the premises” for
which the license was issued. 38 R.C.N.Y. 5-23(a)(2).
Under the transport ban, handguns ordinarily “may not
be removed from the address specified on the license.”
38 R.C.N.Y. 5-23(a)(1).
The Police Commissioner has made three exceptions
to the transport ban. First, a license-holder may transport a gun “to and from [a] gunsmith,” but only if he

 3
asks for and receives written “permission” from the Police Department. 38 R.C.N.Y. 5-22(a)(16). Second, a license-holder may transport a gun “to and from” designated hunting grounds, but only if he receives a separate hunting authorization from the Police Department.
38 R.C.N.Y. 5-23(a)(4). Third, a license-holder may
transport a gun “to and from an authorized small arms
range/shooting club.” 38 R.C.N.Y. 5-23(a)(3). Only firing ranges located in New York City qualify as “authorized,” and there were seven authorized ranges when petitioners brought this lawsuit. Pet. App. 6, 94-96. Under each of these exceptions, the license-holder must
transport the gun directly to and from the destination,
in a locked container, unloaded, and (except for trips to
a gunsmith) separate from the ammunition. 38 R.C.N.Y.
5-22(a)(16), 5-23(a)(3) and (4).
The Police Commissioner has not established comparable exceptions for the transportation of handguns to
and from the license-holder’s other residences, or to and
from firing ranges outside the City. The transportation
of handguns to and from these locations thus remains
forbidden to premises license-holders, even if the owner
carries the gun unloaded, locked, and separate from the
ammunition. Pet. App. 94-96.
2. Petitioners New York State Rifle and Pistol Association, Inc., Romolo Colantone, Efrain Alvarez, and
Jose Anthony Irizarry brought this lawsuit to challenge
the City’s restrictions on transporting handguns. Colantone, Alvarez, Irizarry, and members of the Association hold residential premises licenses and seek to
transport their handguns to and from firing ranges outside the City. Pet. App. 7. In addition, Colantone seeks
to transport his handgun between his home in the City
and his second home in Hancock, New York. Ibid. As

 4
relevant here, petitioners claimed that the transport
ban violates the Second Amendment, the dormant Commerce Clause, and the right to interstate travel. Id. at 8.
3. The district court denied petitioners’ motions for
summary judgment and for a preliminary injunction,
and granted the City’s cross-motion for summary judgment. Pet. App. 42-76. The court rejected petitioners’
claim that the transport ban violates the Second Amendment right to keep and bear arms. Id. at 59-65. Applying intermediate scrutiny, the court concluded that the
restrictions “are substantially related to the City’s substantial interest in public safety and crime prevention.”
Id. at 62. The court also rejected petitioners’ claims
that the transport ban violates the dormant Commerce
Clause and the right to travel. Id. at 65-76.
4. The court of appeals affirmed. Pet. App. 1-39. Like
the district court, the court of appeals rejected the claim
that the transport ban violates the right to keep and
bear arms. Id. at 9-29. The court used a “two-step inquiry” to evaluate the claim: first, “determine whether
the challenged legislation impinges upon conduct protected by the Second Amendment,” and second, if it
does, “apply the appropriate level of scrutiny.” Id. at 9-10
(citations omitted). The “appropriate level of scrutiny,”
in turn, depends on “two factors”: “ ‘how close the law
comes to the core of the Second Amendment right’ ” and
“ ‘the severity of the law’s burden on the right.’ ” Id. at
11 (citation omitted).
At the first step, the court of appeals assumed without deciding that the transport ban “impinge[d] on conduct protected by the Second Amendment.” Pet. App.
10. At the second step, the court elected to apply intermediate scrutiny, on the ground that the transport ban
imposed “at most trivial limitations on the ability of law-

 5
abiding citizens to possess and use firearms for selfdefense.” Id. at 13.
Under intermediate scrutiny, the court of appeals
upheld the transport ban. Pet. App. 24-29. According
to the court, the City “presented evidence” that the
transport ban served “to protect the public safety of
both license-holding and non-license-holding citizens.”
Id. at 26. The court cited an affidavit from a former
Commander of the City’s License Division, who “explained that premises license holders ‘are * * * susceptible * * * to stressful situations,’ including driving situations that can lead to road rage, ‘crowd situations,
demonstrations, family disputes,’ and other situations
‘where it would be better to not have the presence of a
firearm.’  ” Ibid. (citation omitted). In addition, according to the affidavit, “the New York Police Department
concluded that officers cannot be expected to verify
whether a licensee stopped with a firearm was, in fact,
traveling to a firing range outside of the City.” Id. at
27. The court asserted that, “[i]n contrast,” petitioners
had failed to demonstrate that the transport ban imposed “a substantial burden” on their rights. Id. at 28.
The court stated that a license-holder who wants to
transport a gun from one home to another could instead
“acquir[e] a second gun to keep at that location.” Id. at
15. The court further stated that new guns “can be
rented or borrowed” at “most” gun ranges outside the
City. Id. at 22.
The court of appeals also rejected petitioners’ claims
that the transport ban violates the dormant Commerce
Clause and the right to travel. Pet. App. 30-36. In the
court’s view, the transport ban does not discriminate
against interstate commerce, because petitioners remain
“free to patronize firing ranges outside of New York

 6
City”; “they simply [cannot] do so with their premiseslicensed firearm.” Id. at 31. The court likewise stated
that “[t]he Constitution protects the right to travel, not
the right to travel armed.” Id. at 35.
5. In April 2019, nearly three months after this
Court granted certiorari, the City issued a Notice of
Public Hearing and Opportunity to Comment on Proposed Rule proposing amendments to the transport
ban. The proposed amendments would allow a licenseholder to transport a handgun “directly to and from”
“[a]nother residence or place of business where the licensee is authorized to possess such handgun,” “[a]
small arms range/shooting club authorized by law to operate as such” within or outside the City, and “[a] shooting competition at which the licensee is authorized to
possess such handgun.” Resps.’ Mot. to Hold Briefing
Schedule in Abeyance, Attach. 5. As of the time of the
printing of this brief, the proposal remains under consideration.
SUMMARY OF ARGUMENT

I. New York City’s transport ban infringes the right
to keep and bear arms guaranteed by the Second and
Fourteenth Amendments.
In District of Columbia v. Heller, 554 U.S. 570 (2008),
this Court held that the Second Amendment protects the
right of a law-abiding, responsible citizen to keep a firearm in his home for lawful purposes such as self-defense.
In this case, the Court should confirm that the Second
Amendment also protects the right of a law-abiding, responsible citizen to take his firearm outside his home,
and to transport it to other places—such as a second
home or a firing range—where he may lawfully possess
that firearm. The Second Amendment guarantees both
the right to “keep” and the right to “bear” firearms.

 7
Read naturally, the right to “bear” firearms includes
the right to transport firearms outside the home; otherwise, the right to “bear” would add nothing to the right
to “keep.” In addition, the right to “keep” arms, on its
own, implies the right to transport firearms between
the home and at least some places outside the home—
for instance, the place of purchase, the repair shop, and
the firing range.
Like other rights, the right to transport firearms is
not absolute. To determine whether a law violates this
right, a court should look first to the text of the Second
Amendment, the history of the right to keep and bear
arms before ratification, and the tradition of gun regulation after ratification. In Heller, the Court held that
the District of Columbia’s near-complete ban on the
possession of handguns in the home violated the Second
Amendment because the District had “totally ban[ned]”
an activity protected by the Second Amendment’s text,
because “[f ]ew laws in the history of our Nation have
come close to the severe restriction of the District’s
handgun ban,” and because “some of those few have
been struck down.” 554 U.S. at 628-629. Each of those
observations is also true of the transport ban here. The
transport ban constitutes an almost-total prohibition on
the transportation of arms outside the home; it bans the
carrying of firearms to virtually any destination, including a second home or a firing range outside the City,
even when those firearms are locked, unloaded, and
separate from ammunition. Few laws in the history of
our Nation, or even in contemporary times, have come
close to such a sweeping prohibition on the transportation of arms. And on some of the rare occasions in the
19th and 20th centuries when state and local governments have adopted such prohibitions, state courts have

 8
struck them down. That is enough to establish that the
transport ban is unconstitutional.
II. Petitioners also contend that the ban on transporting handguns to firing ranges outside the City violates the dormant Commerce Clause and the right to interstate travel. Because the ban violates the Second
Amendment, the Court need not reach these additional
constitutional arguments.
In any event, the ban violates the dormant Commerce Clause. Under that doctrine, a state or local government ordinarily may not discriminate against interstate commerce in favor of local commerce. On its face,
the transport ban discriminates against interstate commerce: It allows a license-holder to take his firearm to
a local firing range, but precludes him from taking his
firearm to a firing range outside the City.
Contrary to petitioners’ contentions, however, the
transport ban does not violate the unenumerated right
to interstate travel. This Court has explained that a law
violates this right only if it directly impairs interstate
travel by imposing an obstacle to free movement across
state borders. The transport ban does not directly impair interstate travel. The ban does not regulate travel
as such; rather, it forbids a person to remove his firearm
from his home, irrespective of whether he means to
travel to another State or to do something else.
ARGUMENT
I.

THE TRANSPORT BAN INFRINGES THE RIGHT TO
KEEP AND BEAR ARMS

The Second Amendment, which binds New York City
by virtue of the Fourteenth Amendment, provides: “A
well regulated Milita, being necessary to the security of
a free State, the right of the people to keep and bear
Arms, shall not be infringed.” New York City’s near-

 9
total ban on transporting firearms outside the home—
including to places such as second homes and out-of-city
firing ranges—violates this constitutional guarantee.
A. The Second Amendment Protects A Right To Transport
Arms Outside The Home

The right to keep and bear arms includes more than
the right to possess a firearm at home. It also includes
the right to take that firearm out of the home, and to
transport it to other places—such as an additional home
or a firing range—where the owner has a right to possess and use the firearm for lawful purposes. The government may regulate in certain respects the manner in
which firearms are transported, but it may not forbid
the transportation of firearms altogether.
1. The right to “bear arms” includes a right to
transport arms outside the home for lawful purposes.
The ordinary, common-sense meaning of the term “bear
arms” includes the transportation of arms outside the
home. In District of Columbia v. Heller, 554 U.S. 570
(2008), this Court explained that, “[a]t the time of the
founding, as now, to ‘bear’ meant to ‘carry.’  ” Id. at 584.
The term “bear arms” thus “means * * * simply the
carrying of arms.” Id. at 589. That carrying can occur
outside the home. It is natural to speak of “bearing
arms” outside the home, but awkward to speak of “bearing arms” indoors. And it is “extremely improbable” that
those who adopted the Second Amendment understood
the right to bear arms as nothing more than the right to
carry a gun “from the bedroom to the kitchen.” Peruta
v. California, 137 S. Ct. 1995, 1998 (2017) (Thomas, J.,
dissenting from the denial of certiorari).
This meaning of the term “bear arms” becomes even
more evident in the context of the phrase “right of the
people to keep and bear arms.” On any reasonable

 10
reading, the right to “keep” arms already includes the
right to carry arms within the home—say, from the bedroom to the kitchen. If the right to “bear” arms were
limited to the home, it would be superfluous, adding
nothing to the right to “keep” arms. The word “bear”
contributes something meaningful to the Second Amendment only if it encompasses the “bearing” of arms outside the home.
2. Quite apart from the right to “bear” arms, the
right to “keep” arms includes a right to take arms outside the home for some purposes. It is an “ancient”
principle of interpretation that “[a]uthorization of an
act also authorizes a necessary predicate act.” Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (emphasis omitted).
This principle is especially important in the interpretation of the Constitution, which does not “partake of the
prolixity of a legal code,” and which marks only the
“great outlines” and designates only the “important objects,” leaving “the minor ingredients” to “be deduced
from the nature of the objects themselves.” McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). In accordance with this principle, constitutional rights “implicitly protect those closely related acts necessary to
their exercise.” Luis v. United States, 136 S. Ct. 1083,
1097 (2016) (Thomas, J., concurring in the judgment).
In some circumstances, carrying arms outside the
home is necessary to exercise the right to keep arms
within the home. For example, in order to get the firearm home, the owner must ordinarily first bring it home
from some other place. In order to become proficient in
the use of the firearm for self-defense, the owner may
have to carry it to and from a firing range where he can
practice with it. And in order to keep the firearm in

 11
good repair, the owner may have to carry it to and from
a gunsmith.
The right to “keep” arms has traditionally been understood, on its own, to imply the right to transport
arms to these and similar places. Andrews v. State,
50 Tenn. (3 Heisk.) 165 (1871)—a decision on which this
Court repeatedly relied in Heller, see 554 U.S. at 608,
614, 629—illustrates this point. There, the Tennessee
Legislature had adopted an “absolute prohibition” on
the carrying of pistols “publicly or privately, without regard to time, or place, or circumstances”—even “from
[one’s] home to a gunsmith to be repaired.” Andrews,
50 Tenn. (3 Heisk.) at 187. The Tennessee Supreme
Court held that this absolute prohibition violated the
right to “keep arms” guaranteed by the state constitution. The court explained that the “right to keep arms”
“clearly” includes “the right to carry them to and from
[one’s] home” for purposes such as “purchase” and “repair.” Id. at 178. The court further explained that the
“right to keep arms” “involves the right to practice their
use,” ibid., and acknowledged that the right accordingly
protects the “carrying [of  ] arms” to such places as are
“necessary” for the owner’s “familiarity with them, and
his training and efficiency in their use,” id. at 182.
3. The purposes of the right to keep and bear arms
confirm that the right includes the freedom to take arms
from the home to appropriate places outside the home.
The Second Amendment guarantees a right to keep and
bear arms for “lawful purpose[s].” Heller, 554 U.S. at
620 (quoting United States v. Cruikshank, 92 U.S. 542,
553 (1876)). In Heller, the Court identified several such
lawful purposes: the “core lawful purpose of selfdefense,” id. at 630; “ ‘learning to handle and use [arms],’ ”
id. at 618 (citation omitted); and “hunting,” id. at 599.

 12
But the right to keep and bear arms can serve those
purposes only if one can take one’s arms from the home
to places outside the home. For example, the need for
self-defense can arise outside one’s primary home—say,
in a second home. Training with weapons occurs outside
the home. And hunting occurs outside the home. To
confine a weapon to the home is thus to preclude the
owner from using it for many of the purposes that the
right to keep and bear arms is meant to serve.
The prefatory clause reinforces this reading. The
prefatory clause shows that the Framers of the Bill of
Rights codified the individual right to keep and bear
arms in order to preserve a “well regulated militia.” A
militia, in turn, was considered “necessary to the security of a free State” because it was “useful in repelling
invasions and suppressing insurrections,” made “large
standing armies unnecessary,” and enabled the people
“to resist tyranny.” Heller, 554 U.S. at 597-598. The
militia could serve these functions, however, only if people could take the arms they kept in their homes to
places outside their homes. Indeed, the traditional militia consisted of men who “appear[ed] bearing arms
supplied by themselves”; “weapons used by militiamen
and weapons used in defense of person and home were
one and the same.” Id. at 624-625 (citations omitted). A
statute enacted a year after the Second Amendment
thus required militiamen to appear “armed, accoutered
and provided, when called out to exercise, or into service.” Act of May 8, 1792, ch. 33, § 1, 1 Stat. 271. The
prefatory clause contemplates that people may not only
keep arms within their homes, but also transport those
arms outside their homes, for example to the place of
training.

 13
4. The court of appeals (like some other courts) misread Heller to mean that the “core” of the Second
Amendment is the “right to keep and use firearms in
self-defense in the home.” Pet. App. 17 (emphasis
added). In Heller, this Court explained that the Second
Amendment guarantees “the individual right to possess
and carry weapons in case of confrontation,” without
suggesting that the guarantee is limited to the home.
554 U.S. at 592. The Court’s references to the “core” of
the Second Amendment served to distinguish self-defense
from other lawful purposes such as hunting, not to distinguish the home from places outside the home. The
Court thus explained that “self-defense” is “the central
component of the right,” id. at 599; that the “right of
self-defense” is “central to the Second Amendment
right,” id. at 628; and that the Second Amendment guarantees a right to use firearms “for the core lawful purpose of self-defense,” id. at 630. In McDonald v. City
of Chicago, 561 U.S. 742 (2010), the Court reaffirmed
that “individual self-defense is ‘the central component’
of the Second Amendment right” and that the “  ‘inherent
right of self-defense [is] central to the Second Amendment right.’ ” Id. at 767 (citations omitted). In neither
case did the Court suggest that the right to keep and
bear arms is limited to the home.
B. The Transport Ban Infringes The Right To Transport
Arms Outside The Home

Like the right to possess arms at home for selfdefense, the right to transport arms outside the home is
not absolute. Heller establishes that a court should discern the scope of this right—and other rights secured
by the Second Amendment—by first turning to the
Amendment’s text, the history of the right to keep and
bear arms before ratification, and the tradition of gun

 14
regulation after ratification. In this case, text, history,
and tradition demonstrate the invalidity of the City’s
transport ban. The ban all but negates the textually
protected right to bear arms, and interferes with the
right to keep arms as well; few laws in our history have
restricted the right to keep and bear arms as severely
as the ban does; and some of those few have been struck
down.
1. This Court explained in Heller that a regulation
of firearms is “presumptively lawful” if it is “fairly supported” by “historical tradition.” 554 U.S. at 627 & n.26.
The Court emphasized that “nothing in [its] opinion
should 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 626-627. A
plurality of the Court “repeat[ed] those assurances” in
McDonald. 561 U.S. at 786.
In addition, Heller establishes that modern firearm
regulations can be constitutional even if they do not mirror colonial regulations. Just as the Second Amendment protects some modern weapons that were not “in
existence in the 18th century,” Heller, 554 U.S. at 582,
so too it permits some modern regulations that were not
in existence in the 18th century. It is enough if the modern law is “fairly supported” by tradition—if, for example,
it is reasonably analogous to a restriction that legislatures have traditionally enacted, or traditionally been
understood to have the power to enact. For example,
the historical understanding that the government may
disarm people because of “crimes committed, or real danger of public injury,” United States v. Skoien, 614 F.3d

 15
638, 640 (7th Cir. 2010) (en banc) (quoting Address and
Reasons of Dissent of the Minority of the Convention of
the State of Pennsylvania to their Constituents, reprinted
in 2 Bernard Schwartz, The Bill of Rights: A Documentary History 662, 665 (1971)), cert. denied, 562 U.S.
1303 (2011), fairly supports modern laws disarming felons, drug addicts, people with mental illnesses, stalkers,
and domestic abusers, 18 U.S.C. 922(g)(1), (3), (4), (8),
and (9). The tradition of prohibiting the carrying of
arms in sensitive places, such as “a church,” “a lecture
room,” or “a ball room,” English v. State, 35 Tex. 473,
479 (1871), fairly supports modern laws prohibiting the
carrying of arms in other sensitive places, such as
school zones, 18 U.S.C. 922(q). And the tradition of imposing reasonable “conditions and qualifications on the
commercial sale of arms,” Heller, 554 U.S. at 626-627,
supports modern federal laws that regulate arms sales,
see, e.g., 18 U.S.C. 922(a)-(c).
Conversely, a law presumptively violates the Second
Amendment if it regulates an activity protected by the
Amendment’s text in a way that goes “far beyond the
traditional line of gun regulation.” Heller v. District of
Columbia, 670 F.3d 1244, 1270 (D.C. Cir. 2011) (Heller
II) (Kavanaugh, J., dissenting). For example, in Heller,
this Court concluded that the District of Columbia’s
handgun ban violated the right to keep and bear arms
because it in effect “totally ban[ned]” an activity protected by the Second Amendment’s text, because “[f  ]ew
laws in the history of our Nation have come close to the
severe restriction of the District’s handgun ban,” and
because “some of those few have been struck down.”
554 U.S. at 628-629.
Text, history, and tradition are as definitive here as
they were in Heller. These guides therefore provide

 16
both the starting and the ending point of the constitutional analysis in this case, and the Court need not decide what additional indicia of constitutional meaning
judges should consult when interpreting the Second
Amendment.
2. Like the handgun ban at issue in Heller, the
transport ban at issue in this case amounts to a nearcomplete prohibition. See 554 U.S. at 629. The ban nullifies the right of holders of premises licenses to “bear”
arms, because it all but eliminates their ability to transport their firearms outside their homes. The ban provides that a handgun “may not be removed from the address specified on the license.” 38 R.C.N.Y. 5-23(a)(1).
It applies 24 hours a day, 365 days a year. It applies to
the transportation of firearms anywhere in the City. It
applies regardless of the manner in which the owner
carries the firearm—in fact, even if the owner unloads
the firearm, locks it away, and keeps it separate from
the ammunition.
The narrowness of the exceptions only confirms the
breadth of the ban. A firearm owner who holds a premises license may transport his handgun to firing ranges
in the City, designated hunting grounds, and gunsmiths,
but nowhere else. 38 R.C.N.Y. 5-22(a)(16), 5-23(a)(3)
and (4). The owner may also seek a carry license, but
such a license is ordinarily available only in extremely
limited circumstances. See, e.g., In re Klenosky v. New
York City Police Dep’t, 428 N.Y.S.2d 256, 256 (N.Y.
App. Div. 1980). These narrow exceptions do not meaningfully distinguish the transport ban from a complete
prohibition. In Heller, this Court treated the District of
Columbia’s handgun ban as an effectively complete pro-

 17
hibition even though the ban contained “minor exceptions,” 554 U.S. at 575 n.1; the same course is warranted
here.
In addition to nullifying the right of holders of premises licenses to bear arms, the transport ban also interferes with their right to keep arms in two respects.
First, in Heller, this Court held that the right to keep
arms includes the right to possess a handgun in the
home for self-defense. 554 U.S. at 635. But the transport
ban prevents license-holders from taking handguns from
the City to homes outside the City—homes where, under Heller, they have a right to possess those handguns
for self-defense. Second, courts and commentators
have long recognized that the right to keep firearms for
self-defense must likewise include the “right to acquire
and maintain proficiency in their use,” because the possession of firearms “wouldn’t mean much without the
training and practice that make it effective.” Ezell v.
City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011).1 Indeed, the prefatory clause’s reference to a “well regulated militia” presupposes a right to train in the use of
firearms; “the adjective ‘well-regulated’ implies nothing
more than the imposition of proper discipline and train-

See, e.g., Haile v. State, 38 Ark. 564, 567 (1882) (right to “render
[oneself ] skillful in their use by practice”); Hill v. State, 53 Ga. 472,
480 (1874) (right to acquire “[s]kill and familiarity in the use of
arms”); Andrews, 50 Tenn. (3 Heisk.) at 178 (“right to practice their
use”); Benjamin Vaughan Abbott, Judge and Jury: A Popular Explanation of Leading Topics in the Law of the Land 333 (1880)
(right to “practi[ce] in safe places the use of [arms]”) (quoted in Heller, 554 U.S. at 619); Thomas M. Cooley, The General Principles of
Constitutional Law in the United States of America 271 (1880)
(right includes “learning to handle and use [arms]”) (quoted in Heller, 554 U.S. at 618).
1

 18
ing.” Heller, 554 U.S. at 597. The transport ban, however, interferes with the right to acquire skill and familiarity in the use of arms, because it deprives licenseholders of the freedom to transport their arms to firing
ranges at which the license-holders wish to practice.
3. Also as in Heller, “[f ]ew laws in the history of our
Nation have come close to the severe restriction” of the
City’s transport ban. 554 U.S. at 629. Americans have
long enjoyed the freedom to transport weapons that
they lawfully own. During the early 19th century, multiple States began to restrict the concealed carrying of
firearms, but these laws still allowed people to carry
weapons openly. See Eugene Volokh, Implementing the
Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA
L. Rev. 1443, 1516 (2009). In any event, courts usually
interpreted these laws to prohibit the concealed carrying of a firearm as a weapon—as opposed to the “transportation of a pistol home from the place of purchase,”
“its transportation to a shop for repairs,” or the mere
“removal of a weapon from place to place.” 5 The American and English Encyclopedia of Law 731 n.2 (David
S. Garland & Lucius P. McGehee eds., 2d ed., 1897). 2

See, e.g., Carr v. State, 34 Ark. 448, 450 (1879) (firearm “merely,
and in good faith, * * * transported, to be repaired, or given to
another, or for purposes of trade, or any other object, save to be
used in fight”); State v. Roberts, 39 Mo. App. 47, 49 (1890) (transportation of firearm “as a mere messenger for transmission to a third
party”); State v. Larkin, 24 Mo. App. 410, 412 (1887) (transportation
of firearm “as a mere article of merchandise”); Waddell v. State,
37 Tex. 354, 356 (1872) (transportation “from the place where [the
owner] purchased” the firearm “to his home”); Underwood v. State,
29 S.W. 777, 777 (Tex. Crim. App. 1895) (transportation “to the gunsmith for repairs”); Pressler v. State, 19 Tex. Ct. App. 52, 53 (1885)
2

 19
Even in contemporary times, a near-complete ban on
transporting weapons remains unusual. Indeed, we are
unaware of any modern state law that is as restrictive
as the transport ban.
The City’s near-total ban on the transportation of
firearms also contrasts with federal statutes that address the transportation of firearms outside the home.
Federal law provides that a lawful owner of a firearm is
“entitled,” notwithstanding contrary state law, “to
transport [the] firearm” for lawful purposes between
places where “he may lawfully possess and carry” it, if
“during such transportation the firearm is unloaded,
and neither the firearm nor any ammunition being
transported is readily accessible.” 18 U.S.C. 926A.3 Federal law prohibits juveniles from knowingly possessing
handguns, but even this prohibition does not apply “during the transportation by the juvenile of an unloaded
handgun in a locked container” on the way to a place
where the juvenile may use the handgun in the course
of “employment,” “ranching or farming,” “hunting,”
“target practice,” or “a course of instruction.” 18 U.S.C.
922(x)(3). And federal law prohibits the possession of a
gun in a school zone, but this prohibition does not apply
to the possession of a firearm that is “not loaded” and
“in a locked container,” 18 U.S.C. 922(q)(2)(B)(iii), or to
(transportation to one’s “home,” to a “place of business,” “to the
shop to be repaired,” or “from the shop after it has been repaired”).
3
Petitioners raised an alternative claim under this provision in
the district court. The court rejected the claim on the ground that
the statute applies where a person may “ ‘lawfully possess and
carry’ ” the firearm at both the origin and destination of the trip, but
petitioners lacked the right to “carry” firearms in New York City
because they lacked a carry license. Pet. App. 67-68 (quoting
18 U.S.C. 926A). Petitioners did not appeal that decision, which is
not at issue here.

 20
a person who possesses an “unloaded” firearm while
lawfully “traversing school premises for the purpose of
gaining access to public or private lands open to hunting,” 18 U.S.C. 922(q)(2)(B)(vii). In contrast, the City’s
ban subjects adults to more severe restrictions than
Congress considered necessary for children, and it subjects the entire city to more severe restrictions than
Congress considered necessary for school zones.
4. Finally, as in Heller, some of the rare laws that
have categorically prohibited the carrying of firearms
“have been struck down.” 554 U.S. at 629. In fact, when
the Court in Heller observed that courts had struck
down laws resembling the District of Columbia’s handgun ban, all of the Court’s cited cases involved carrying
firearms in public. See ibid. In Nunn v. State, 1 Ga. 243
(1846), the Georgia Supreme Court struck down a categorical ban on carrying pistols openly. Id. at 251 (cited
in Heller, 554 U.S. at 629). In Andrews, the Tennessee
Supreme Court struck down an “absolute prohibition”
on the carrying of pistols “without regard to time, or
place, or circumstances.” 50 Tenn. (3 Heisk.) at 187 (cited
in Heller, 554 U.S. at 629). Relatedly, in State v. Reid,
1 Ala. 612 (1840), the Alabama Supreme Court upheld a
concealed-carry ban as a permissible exercise of the
State’s power to regulate “the manner of bearing arms,”
but warned that “[a] statute which, under the pretence
of regulating, amounts to a destruction of the right, or
which requires arms to be so borne as to render them
wholly useless for the purpose of defence, would be
clearly unconstitutional.” Id. at 616-617 (cited in Heller,
554 U.S. at 629).
The understanding that laws akin to the transport
ban violate the right to keep and bear arms has persisted into the 20th century. In one case, the Colorado

 21
Supreme Court held that a city violated the state constitution by adopting an ordinance “to prohibit individuals from transporting guns to and from * * * places of
business” such as “gunsmiths, pawnbrokers and sporting goods stores.” City of Lakewood v. Pillow, 501 P.2d
744, 745 (1972) (en banc). In another, the Kansas Supreme Court held that a city violated the state constitution by prohibiting an owner from transporting his gun
“from the place where he purchased it or had it repaired
or between his office and his home.” City of Junction
City v. Mevis, 601 P.2d 1145, 1152 (Kan. 1979). In a
third, a court in New Mexico held that a city’s ban on
carrying guns “den[ied] the people the constitutionally
guaranteed right to bear arms.” City of Las Vegas v.
Moberg, 485 P.2d 737, 738 (N.M. Ct. App. 1971). In
McDonald, Justice Breyer identified these three transportation bans as examples of laws that state courts had
struck down even under “a highly deferential” approach
to gun-control legislation. 561 U.S. at 939 (Breyer, J.,
dissenting). In short, the transport ban goes “far beyond the traditional line of gun regulation.” Heller II,
670 F.3d at 1270 (Kavanaugh, J., dissenting).
C. The Court Of Appeals’ Reasons For Upholding The
Transport Ban Are Mistaken

1. The court of appeals asserted that, “[t]o the extent that [petitioners] are limited in their ability to
carry firearms in public, those limitations are not imposed by [the transport ban], but rather are inherent in
their lack of carry permits.” Pet. App. 13 n.7. That assertion is incorrect. The City’s regulations do limit petitioners’ right to transport firearms in public. A City
regulation provides that, under a premises license,
“[t]he possession of the handgun for protection is restricted to the inside of the premises [whose] address is

 22
specified on the license.” 38 R.C.N.Y. 5-23(a)(2). A City
regulation provides that the handgun “may not be
removed from the address specified on the license.”
38 R.C.N.Y. 5-23(a)(1). And the City has failed to make
an exception for the transportation of a firearm to an
additional home or to a firing range outside the City.
See 38 R.C.N.Y. 5-23(a). Those are the restrictions that
petitioners challenge as violative of their Second Amendment rights.
Petitioners have no obligation to challenge the
State’s concealed-carry regime as well. That regime
primarily addresses a different activity that is not at issue in this case: the carrying of “loaded handgun[s]” for
self-defense in public. In re Revocation of Pistol License
of Beach, 837 N.Y.S.2d 534, 535 (N.Y. Sup. Ct. 2007),
rev’d on other grounds, Beach v. Kelly, 860 N.Y.S.2d
112 (N.Y. App. Div. 2008). To obtain a carry license, an
applicant must show “proper cause,” N.Y. Penal Law
§ 400.00(2) (McKinney Supp. 2019), which usually
means that he must “demonstrate a special need for
self-protection distinguishable from that of the general
community,” Klenosky, 428 N.Y.S.2d at 256. Petitioners do not seek a right to transport loaded handguns for
self-defense in public. Rather, they seek only the right
to transport unloaded, locked, and inoperable handguns
to certain destinations. The proper targets for their
constitutional challenge are thus the City’s restrictions
on the transportation of unloaded guns, not the State’s
licensing regime for the carrying of loaded guns.
2. The court of appeals also held that the transport
ban was constitutional because it satisfied the court’s
sliding-scale test for applying the Second Amendment.
The court first weighed “two factors”: “  ‘how close the
law comes to the core of the Second Amendment right’ ”

 23
and the “ ‘severity of the law’s burden on the right.’ ”
Pet. App. 11 (citation omitted). On the basis of those
factors, the court chose a “proper level of scrutiny”—in
its view, intermediate scrutiny. Id. at 12. It then concluded that the transport ban satisfied intermediate
scrutiny, because it considered the City’s interest “substantial enough to * * * justify the insignificant and
indirect costs” that the ban imposes on “Second Amendment interests.” Id. at 29.
There is no need to decide in this case whether or
how to import doctrinal tests from other contexts into
Second Amendment adjudication. At a minimum, these
tests should supplement, not supplant, an analysis of
the constitutional text, history, and tradition. As this
Court explained in Heller, a law that clearly contradicts
text, history, and tradition would be unconstitutional
under “any of the standards of scrutiny” that “appl[y]
to enumerated constitutional rights.” 554 U.S. at 628.
And as the Court has explained elsewhere, it is “unnecessary” to turn to “  ‘formal tests’ ” where “history” definitively resolves the constitutional issue at hand. Town
of Greece v. Galloway, 572 U.S. 565, 575 (2014) (citation
and internal quotation marks omitted). In this case, as
in Heller, text, history, and tradition definitively establish the unconstitutionality of the City’s near-total ban
on the transportation of handguns outside the home.
Moreover, the particular mode of analysis that the
court of appeals applied—a sliding-scale standard under which a court uses a threshold, case-by-case evaluation of factors to select a level of scrutiny—itself conflicts with this Court’s precedents. In Heller, this Court
explicitly rejected Justice Breyer’s proposal to evaluate
gun-control laws under an “interest-balancing inquiry,
with the interests protected by the Second Amendment

 24
on one side and the governmental public-safety concerns
on the other,” 554 U.S. at 689 (Breyer, J., dissenting).
Observing that it could identify “no other enumerated
constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach,”
the Court explained that “[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. And the plurality in McDonald
confirmed that the Court in Heller had “expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest
balancing.” McDonald, 561 U.S. at 785.
The court of appeals’ sliding-scale standard essentially replicates the interest-balancing inquiry that this
Court has twice rejected. The court treated the Second
Amendment like “no other enumerated constitutional
right,” Heller, 554 U.S. at 634, and its analysis, at bottom, calls for a case-by-case judgment about whether
the government’s interest outweighs the individual right.
Pet. App. 10-11. The court of appeals thus summed up
its decision by stating that “review of state and local gun
control” involves a “balancing of the individual’s constitutional right to keep and bear arms against the states’
obligation to ‘prevent armed mayhem,’  ” that the City
“has a clear interest in protecting public safety through
regulating the possession of firearms in public,” that the
“burdens imposed by the Rule” do not “substantially”
impair the right to keep and bear arms, and that the
“state interest” is “substantial enough” to “justify the
insignificant and indirect costs” imposed on “Second
Amendment interests.” Id. at 29 (citation omitted). That
is straightforward interest balancing.

 25
3. The court of appeals further concluded that the
transport ban is constitutional because it “seeks to protect public safety.” Pet. App. 25. “The ‘legitimate and
compelling state interest’ in protecting the community
from crime cannot be doubted.” Schall v. Martin,
467 U.S. 253, 264 (1984) (citation omitted). “But the enshrinement of constitutional rights necessarily takes
certain policy choices off the table.” Heller, 554 U.S. at
636. For example, in Heller, text, history, and tradition
established that the Constitution denied the District of
Columbia the power to ban all handguns, even though
the District of Columbia considered the “prohibition of
handgun ownership” “a solution” to “the problem of
handgun violence.” 554 U.S. at 636. So too here, text,
history, and tradition establish that the Constitution denies the City the power to ban almost all transportation
of firearms, even though the City believes that the ban
promotes public safety.
Even assuming that the Court should apply intermediate scrutiny to assess the City’s stated interest, moreover, the transport ban would still violate the Second
Amendment. The City claims that the transport ban
promotes public safety by enabling the police “to monitor and enforce the limited circumstances under which
premises licensees can possess a handgun in public.”
Br. in Opp. 22. The City, however, fails to establish that
it has an important interest in ensuring that people
transport locked and unloaded firearms only in “limited
circumstances.” The City claims that it must limit firearm transportation because some holders of premises
licenses may be “ ‘susceptible’ ” to “ ‘stressful situations’ ”
—such as “ ‘crowd situations,’ ” “ ‘family disputes,’ ” and
“road rage”—“ ‘where it would be better to not have the
presence of a firearm.’  ” Pet. App. 26 (citation omitted).

 26
Under intermediate scrutiny, however, the government
must “demonstrate that the harms it recites are real,”
rather than “speculat[ive].” Edenfield v. Fane, 507 U.S.
761, 770-771 (1993). The City has made no effort to
show that license-holders often find themselves in
“stressful situations,” no effort to explain why licenseholders are more likely to face these “stressful situations” when traveling to out-of-city firing ranges than
when traveling to local ones, and no effort to demonstrate that license-holders (who have passed rigorous
background checks) are apt to misuse firearms that are
locked and unloaded when they confront such “stressful
situations.”
In addition, even assuming that the City has an important interest in confining the transportation of handguns to “limited circumstances,” the City fails to establish that the restrictions at issue are appropriately tailored to the objective of helping police officers “monitor
and enforce” those limitations. Br. in Opp. 22. The City
worries that license-holders could transport firearms to
improper destinations “and then if discovered create an
explanation about traveling for target practice” outside
the City. Pet. App. 27 (citation omitted). Under intermediate scrutiny, however, a law violates the Constitution if it is “substantially more” burdensome than “necessary to achieve” the government’s interests. McCullen
v. Coakley, 573 U.S. 464, 490 (2014). Here, the City ignores a substantially less restrictive alternative means
of refuting the fictitious explanations that it fears:
Looking up the address of the out-of-state range and
checking whether the license-holder is taking a direct
route to that destination. To be sure, it may be easier
for the City to ban transportation outright, but the ap-

 27
propriate response to the transportation of guns to illegal destinations or for illegal purposes is to punish that
conduct, not to ban all or almost all transportation. After all, “the prime objective” of the Bill of Rights “is not
efficiency,” and a law does not become constitutional
“simply” because “the chosen route is easier” than the
alternatives. Id. at 495.
4. The court of appeals also concluded that the City
may ban the transportation of guns because petitioners
could exercise their rights in alternative ways. See Pet.
App. 14-15, 19, 22. The possibilities highlighted by the
court do not make the transport ban constitutional.
The court of appeals first posited that people do not
need to transport guns to second homes or firing
ranges, because they could buy, rent, or borrow new
guns to use at those locations. Pet. App. 14-15, 22. The
Second Amendment, however, protects a right to keep
and bear arms, not just a right to rent and borrow them.
The government may not deny a person the right to
“bear” arms on the theory that he can achieve the goals
of defending himself and learning how to defend himself
without exercising that right. That line of reasoning
improperly “abstracts from the right to its purposes,
and then eliminates the right.” United States v. GonzalezLopez, 548 U.S. 140, 145 (2006) (citation omitted). In
addition, the Second Amendment guarantees that people may, if they wish, “keep” and “bear” the same set of
“arms” for different lawful purposes. Thus, at the time
of the framing, “weapons used by militiamen and weapons used in defense of person and home were one and
the same.” Heller, 554 U.S. at 625. And during the
19th century, “pioneer[s]” could use the same “rifle[s]”
for “self-defense” and for hunting “the beast of the forest.” Id. at 609 (citation omitted). The City therefore

 28
may not require holders of premises licenses to acquire
a new set of firearms for each new use.
The court of appeals also asserted that the City may
prohibit the transportation of handguns to ranges outside the City because owners could still take their handguns to one of the seven ranges within the City. This
Court has explained, however, that a person may exercise his constitutional rights in the “natural and proper
places” for doing so, and that “one is not to have the exercise of [a constitutional right] in appropriate places
abridged on the plea that it may be exercised in some
other place.” Schneider v. State (Town of Irvington),
308 U.S. 147, 163 (1939). For example, under the Free
Speech Clause, a city may not prevent a person from
bringing back books from out-of-town libraries, even if
there are seven libraries in town. So too, under the Second Amendment, a city may not prevent a law-abiding,
responsible citizen from taking a gun to an out-of-town
firing range, even if there are seven firing ranges in
town.
* * *
All in all, the transport ban denies the holders of
premises licenses the right to bear arms, and it interferes with their right to keep arms to boot. None of the
court of appeals’ rationales for upholding the ban is
sound. The ban therefore infringes petitioners’ right to
keep and bear arms.
II. THE BAN ON TRANSPORTING FIREARMS TO OUTOF-STATE RANGES VIOLATES THE DORMANT COMMERCE CLAUSE, BUT NOT THE RIGHT TO TRAVEL

Petitioners also contend that the ban on transporting
firearms to out-of-state firing ranges violates the dormant
Commerce Clause and the right to interstate travel. A
ruling that rests on these doctrines would decide only

 29
the part of the case that concerns firing ranges outside
the City, not the part that concerns additional homes,
because the additional home in this case is located
within the State of New York. The Court would therefore need to address petitioners’ Second Amendment
claim regardless, and because the transport ban violates the Second Amendment, the Court need not reach
petitioners’ additional constitutional arguments. In any
event, the ban violates the dormant Commerce Clause,
but not the right to interstate travel.
A. This Court has interpreted the Commerce Clause
to forbid States and municipalities from discriminating
against interstate commerce. Under this Court’s precedents, “[d]iscrimination against interstate commerce
in favor of local business or investment is per se invalid,
save in a narrow class of cases in which the municipality
can demonstrate, under rigorous scrutiny, that it has no
other means to advance a legitimate local interest.”
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S.
383, 392 (1994). And “local governments may not use
their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors.” Id. at 394.
A straightforward application of these precedents
establishes the invalidity of the City’s ban on transporting firearms to firing ranges outside the City. This ban,
on its face, discriminates against interstate commerce
in favor of local business; it allows petitioners to take
their firearms to local firing ranges, but not to firing
ranges outside the City. And the City has not shown
that the ban satisfies “rigorous scrutiny”—that it has
“no other means” to advance its interest in protecting
public safety. C & A Carbone, 511 U.S. at 392. The ban
is thus “per se invalid.” Ibid.

 30
The court of appeals reasoned that the ban “does not
facially discriminate against interstate commerce, as it
does not prohibit a premises licensee from patronizing
an out-of-state firing range.” Pet. App. 31 (emphasis
added). That reasoning is flawed. In this context, “ ‘discrimination’ simply means differential treatment of instate and out-of-state economic interests that benefits
the former and burdens the latter.” Oregon Waste Sys.,
Inc. v. Department of Envtl. Quality, 511 U.S. 93, 99
(1994). And a discriminatory law violates the dormant
Commerce Clause regardless of the “precise * * * extent
of the discrimination.” Maryland v. Louisiana, 451 U.S.
725, 759-760 (1981). Here, although the transport ban
does not prohibit anyone from using out-of-state
ranges, it does treat out-of-state ranges less favorably
than local ranges, allowing residents of the City to use
their own guns at the latter but not the former. That
means it is impermissibly discriminatory.
B. This Court has also held that the Constitution protects a right to travel from State to State. See Crandall
v. Nevada, 73 U.S. (6 Wall.) 35, 44 (1868). This right to
travel consists of “three different components”: (1) an
implied right “to enter and to leave” a State, (2) an express right, guaranteed by the Privileges and Immunities Clause of Article IV, “to be treated as a welcome
visitor rather than an unfriendly alien when temporarily present in the second State,” and (3) an express
right, guaranteed by the Privileges or Immunities Clause
of the Fourteenth Amendment, to “  ‘become a citizen of
any State.’ ” Saenz v. Roe, 526 U.S. 489, 500-503 (1999)
(citation omitted). The Court has held that the implied
right to cross state borders “is assertable against private as well as governmental interference.” Griffin v.
Breckenridge, 403 U.S. 88, 105 (1971).

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This case involves the first component of the right to
travel: the implied right to cross state borders. This
Court has explained that a law violates this right only if
it “directly impair[s]” the right to leave or enter a State,
Saenz, 526 U.S. at 501—for instance, by taxing departure, see Crandall, 73 U.S. (6 Wall.) at 49, or by prohibiting entry, see Edwards v. California, 314 U.S. 160, 173
(1941). If a law “impose[s] no obstacle” to a citizen’s
entry or departure, but has only an incidental effect on
travel, the law does not violate the implied right. Saenz,
526 U.S. at 501.
The City’s transport ban does not directly impair the
right to travel from State to State. The ban does not
target interstate travel as such. It precludes a licenseholder from removing his handgun from his home, regardless of whether he wants to take it to another State,
to another city in the same State, or to another place in
the same city. The ban thus has only an incidental, not
a direct, effect on interstate travel.

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CONCLUSION

The judgment of the court of appeals should be
reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
VIVEK SURI
Assistant to the Solicitor
General
MICHAEL S. RAAB
ABBY C. WRIGHT
Attorneys

MAY 2019