O’SCANNLAIN, Circuit Judge:

We must decide whether the Second Amendment encompasses the right of a responsible law-abiding citizen to carry a firearm openly for self-defense outside of the home.

I

A

George Young wishes to carry a firearm publicly for personal self-defense in the State of Hawaii. He twice in 2011 applied for a license to carry a handgun, either concealed or openly. His application was denied each time by the County of Hawaii’s Chief of Police, Harry Kubojiri, because Young failed to satisfy the requirements set forth in section 134-9 of the Hawaii Revised Statutes (“H.R.S.”).

Section 134-9 acts as a limited exception to the State of Hawaii’s “Place[s] to Keep” statutes, which generally require that gun owners keep their firearms at their “place of business, residence, or sojourn.” H.R.S. §§ 134-23, 134-24, 134-25. The exception allows citizens to obtain a license to carry a loaded handgun in public, either concealed or openly, under certain circumstances. H.R.S. § 134-9. Respecting concealed carry, section 134-9 provides that “[i]n an exceptional case, when an applicant shows reason to fear injury to the applicant’s person or property, the chief of police . . . may grant a license to an applicant . . . to carry a pistol or revolver and ammunition therefor concealed on the person.” The chief of police may, under section 134-9, grant a license for the open carry of a loaded handgun only “[w]here the urgency or the need has been sufficiently indicated” and the applicant “is engaged in the protection of life and property.” The County of Hawaii has promulgated regulations to clarify that open carry is proper only when the license-holder is “in the actual performance of his duties or within the area of his assignment.” Police Dep’t of Cty. of Haw., Rules and Regulations Governing the Issuance of Licenses 10 (Oct. ^[22], 1997).

Absent a license under section 134-9, a person may only transport an unloaded firearm, in an enclosed container, to and from a place of repair, a target range, a licensed dealer, a firearms exhibit, a hunting ground, or a police station, H.R.S. §§ 134-23, 134-24, 134-25, 134-26, 134-27, and may only use those firearms while “actually engaged” in hunting or target shooting, H.R.S. § 134-5.

B

On June 12, 2012, Young filed this suit pro se under 42 U.S.C. § 1983 against the State of Hawaii, its then- Governor, Neil Abercrombie, and its then-Attorney General, David Louie (collectively “the State”), as well as the County of Hawaii, its then-Mayor, William Kenoi, the Hilo County Police Department, and its then-Chief of Police, Harry Kubojiri (collectively “the County”). Primarily alleging that denying his application for a handgun license violates his Second Amendment right to carry a loaded firearm in public for self-defense, Young requested, among other things, injunctive and declaratory relief from the enforcement of section 134-9’s licensing requirements.

The State filed a motion to dismiss Young’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the County filed a motion to dismiss the claims under Rule 12(b)(6). The district court granted both. As for the State of Hawaii, the district court found Young’s action to be barred by sovereign immunity. Young’s action against the State officials—while not barred by sovereign immunity under Ex Parte Young, 209 U.S. 123 (1908)—was dismissed because the district court found their general oversight of the enforcement of Hawaii’s laws “insufficient to establish a nexus between [such] officials and the alleged violation of [Young’s] civil rights.”

Dismissing Young’s action against the County on the merits, the district court found that section 134-9 “does not implicate activity protected by the Second Amendment,” because that Amendment “establishes only a narrow individual right to keep an operable handgun at home for self-defense.” In the alternative, the district court indicated that it would uphold section 134-9’s open and concealed carry limitations under intermediate scrutiny. As the court reasoned, the State’s “substantial interest in safeguarding the public from the inherent dangers of firearms” was reasonably furthered by policies that “enable[] officials to effectively differentiate between individuals who need to carry a gun for self-defense and those who do not.”

Young timely appealed. ^[1] The County and the State respond that Young’s claim is foreclosed by our en banc decision in Peruta v. County of San Diego (Peruta II), 824 F.3d 919 (2016) (en banc), which overturned a three-judge panel’s decision striking down a concealed carry licensing regime, see Peruta v. County of San Diego (Peruta I), 742 F.3d 1144 (9th Cir. 2014).

In Peruta II, we considered a challenge to San Diego’s limitations on the concealed carry of handguns outside of the home. 824 F.3d at 924. California law generally prohibits carrying firearms in public, whether concealed or openly. See Cal. Penal Code §§ 25400, 25850, 26350. But San Diego County leaves open the opportunity to carry a concealed firearm upon the demonstration of “good cause.” See Peruta II, 824 F.3d at 926. Rejecting Peruta’s challenge, our en banc court held that “the Second Amendment right to keep and bear arms does not include, in any degree, the right of a member of the general public to carry concealed firearms in public.” Id. at 939 (emphasis added). But, as even the dissent acknowledges, our court explicitly left unresolved the question of whether the Second Amendment encompasses a right to open carry. See id. (“There may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public. The Supreme Court has not answered that question, and we do not answer it here.”). Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.

Our interpretation of the Second Amendment is guided by the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010). In Heller, the Court invalidated a District of Columbia ban on handgun possession in the home, holding that the Second Amendment guarantees an individual right to keep a handgun in one’s home for self-defense, and rejecting a collective view of the right. See 554 U.S. at 635. Because the District of Columbia law had completely banned “the quintessential self-defense weapon” within the home, the Court saw no need to clarify further the scope of the right or the level of scrutiny it demands. See id. at 629. “Under any of the standards of scrutiny that [the Court has] applied to enumerated constitutional rights,” such a severe deprivation must fail. Id. at 628–29.

In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. 561 U.S. at 750. In determining whether the pre-existing right codified by the Second Amendment was “fundamental to our scheme of ordered liberty,” the Court stressed the centrality of self-defense: “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day . . . .” Id. at 767. Consequently, the Court held it “clear that this right is ‘deeply rooted in this Nation’s history and tradition,’” thus binding the States alongside the federal government. Id. at 768 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)); see also id. at 805–06 (Thomas, J., concurring in part and concurring in the judgment) (agreeing that the Second Amendment is “fully applicable to the States,” but via the Fourteenth Amendment’s Privileges or Immunities Clause).

As was the case in Peruta II, we find ourselves navigating waters uncharted by Heller and McDonald: the degree to which the Second Amendment protects, or does not protect, the carrying of firearms outside of the home.

B

Our circuit, like others, employs a two-step approach to Second Amendment challenges. See Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see also United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). We first ask “whether the challenged law burdens conduct protected by the Second Amendment.” Jackson, 746 F.3d at 960 (quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)). If so, we must “apply an appropriate level of scrutiny.” Id. And because Heller makes clear that evaluating restrictions of Second Amendment rights under rational basis review is inappropriate, see 554 U.S. at 628 n.27, any means-end scrutiny applied must be some form of heightened scrutiny, such as intermediate or strict scrutiny. Of course, we remain ever mindful not to treat the Second Amendment any differently from other individual constitutional rights. It is not “a second-class right,” McDonald, 561 U.S. at 780, nor a “constitutional orphan,” Silvester v. Becerra, No. 17-342, 2018 WL 943032, at *8 (U.S. Feb. ^[20], 2018) (Thomas, J., dissenting from denial of certiorari).

Heller and McDonald set the goalposts for our inquiry, which requires determining the scope of the Second Amendment with respect to public carry. We must discern the scope of the Amendment not as it appears to us now, but “with the scope [it was] understood to have when the people adopted [it].” Heller, 554 U.S. at 634–35. Our lodestars are “text and history,” id. at 595, because they bear most strongly on what the right was understood to mean, at the time of enactment, to the public. Because “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” id. at 576 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)), our approach is not just a textual one, but also a contextual one. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, at xxv (2012) (“Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words.”). History and convention, therefore, illuminate our understanding of the text.

We are not the first circuit to grapple with how far, and to what extent, the Second Amendment applies outside the home. Two circuits, looking closely at the text and history of the Amendment, have held that the Second Amendment indeed protects a general right to carry firearms in public for self-defense. See Wrenn v. District of Columbia, 864 F.3d 650, 665 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 936–37 (7th Cir. 2012). 4 Three others have simply assumed the Second Amendment applies outside the home, without We begin with Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822), cited in Heller, 554 U.S. at 585 n. 9, a decision “especially significant both because it is nearest in time to the founding era and because the state court assumed (just as [Heller] does) that the constitutional provision at issue codified a preexisting right.” Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1360 (2009). Interpreting Kentucky’s Second Amendment analogue—providing that “the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned”—the state’s highest court had no doubt that any law restricting the public carry of firearms would “import a restraint on the right of the citizens to bear arms.” Bliss, 12 Ky. at 90–92. The court then invalidated a restriction on the concealed carry of weapons, despite the availability of open carry, reasoning that “whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution.” See id. The Bliss court’s strict approach to restraints on the concealed carry of firearms was an outlier in the Nineteenth Century, see Peruta II, 824 F.3d at 935– 36, and Kentucky did later amend its constitution to allow the legislature to “pass laws to prevent persons from carrying concealed arms,” Ky. Const. art. XIII, § 25. Nonetheless, the Kentucky constitutional convention left untouched the premise in Bliss that the right to bear arms protects open carry.

In Tennessee, the state’s highest court offered its interpretation of the right to bear arms eleven years after Bliss. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585 n.9. After he was convicted of disturbing the peace by appearing armed in public, Simpson faulted the indictment for failing clearly to require proof of actual violence. Id. at 357–58. The high court agreed, because—even assuming that colonial law did not require proof of actual violence to punish colonists for walking with weapons—the Tennessee “constitution ha[d] completely abrogated it.” Id. at 360. No such prohibition could survive the state constitution’s grant of “an express power . . . secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature.” Id. Absent an act of violence, then, Simpson’s indictment for merely carrying firearms could allege no crime tolerable to the constitution of Tennessee. See id. at 360–62.

The Alabama Supreme Court joined the chorus seven years later. See State v. Reid, 1 Ala. 612 (1840), cited in Heller, 554 U.S. at 629. Interpreting the Alabama “right to bear arms, in defense of []self and the State,” the high court declared that an Alabamian must be permitted some means of carrying a weapon in public for self-defense. Id. at 615– 16. The court ultimately upheld a restriction on “the evil practice of carrying weapons secretly,” citing the legislature’s power “to enact laws in regard to the manner in which arms shall be borne. . . . as may be dictated by the safety of the people and the advancement of public morals.” Id. at 616. But the court made clear where that power of the legislature ran dry:

We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. 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.

See id. at 616–17.

The Georgia Supreme Court embraced precisely that position six years later, making explicit what Reid intimated. See Nunn v. State, 1 Ga. 243 (1846), cited in Heller, 554 U.S. at 612, 626, 629. There, the Georgia high court considered a Second Amendment challenge to a statute creating a misdemeanor for carrying a pistol, either openly or concealed. Id. at 246. Starting off with a clear statement of the constitutional guarantee, the court explained: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree . . . .” Id. at 251 (emphasis omitted). And with those Second Amendment lines properly set, the court held that Georgia’s statute went too far:

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void . . .

Id. (emphasis added). Critically, we must afford Nunn’s understanding of the Second Amendment a good deal of weight, because, as Heller explains, “[i]ts opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause.” 554 U.S. at 612; see also O’Shea, supra, at 627 (“No case, historic or recent, is discussed more prominently or positively in Heller than the Georgia Supreme Court’s 1846 decision in Nunn v. State.”).

The Louisiana Supreme Court soon followed the course set by Alabama and Georgia. See State v. Chandler, 5 La. Ann. 489 (1850), cited in Heller, 554 U.S. at 613, 626. The high court first rejected Chandler’s Second Amendment challenge to a Louisiana law prohibiting concealed carry, reasoning that the law was “absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons.” Id. at 489–90. But, in precisely the same manner as the Nunn and Reid courts, the Chandler court drew the line which the legislature could not cross. As the court explained: “[The prohibition on concealed carry] interfered with no man’s right to carry arms . . . ‘in full open view,’ which places men upon an equality. This is the right guaranteed by the Constitution of the United States . . . .” Id. at 490; see also Heller, 554 U.S. at 613 (citing favorably Chandler’s holding that “citizens had a right to carry arms openly”).

Thus, each of these nineteenth century cases found instructive by Heller when settling the Second Amendment as an individual right to self-defense is just as instructive when evaluating the application of that right outside the home. While nineteenth century legislatures enjoyed latitude to regulate the “manner in which arms shall be borne,” no legislature in these states could, “under the pretence of regulating,” destroy the right to carry firearms in public altogether. See Reid, 1 Ala. at 616–17. Accordingly, even though our court has read these cases to exclude concealed carry from the Second Amendment’s protections, see Peruta II, 824 F.3d at 933–36, the same cases command that the Second Amendment must encompass a right to open carry. ^[9] We are well aware that there were judicial proponents of a more limited right to bear arms during the nineteenth century.

Most prominent is the Arkansas Supreme Court’s 1842 interpretation of the right in State v. Buzzard, 4 Ark. ^[18] (1842). There, a divided court upheld an Arkansas prohibition on the concealed carry of “any pistol, dirk, butcher or large knife, or a sword in a cane,” but each judge in the splintered majority appeared poised to go much further. Chief Justice Ringo advocated his view that the Second Amendment served as no bar to the Arkansas legislature’s authority to restrict any carrying of firearms: “[N]o enactment on this subject, which neither directly nor indirectly so operates as to impair or render inefficient the means provided by the Constitution for the defense of the State, can be adjudged invalid on the ground that it is repugnant to the Constitution.” Id. at 27. But Justice Dickinson went even further, writing that the Second Amendment was nothing “but an assertion of that general right of sovereignty belonging to independent nations to regulate their military force,” thus finding no individual right within its guarantee. Id. at 32; but see id. at 34–35 (Lacy, J., dissenting) (viewing the Second Amendment as an individual right to self-defense).

As a more fundamental matter, too, we cannot agree with the dissent’s choice to cast aside Southern cases. Heller placed great emphasis on cases from the South, and Nunn in particular. We are an inferior court. Can we really, while keeping a straight face, now say that such cases have little persuasive effect in analyzing the contours of the Second Amendment? We think not.

Several nineteenth century courts hewed to Buzzard’s approach and upheld restrictions on the public carry of weapons without emphasizing, as did courts in Nunn’s camp, the limits of legislative authority. See Hill v. State, 53 Ga. 472, 474–75 (1874) (upholding prohibition on carrying weapons “to any court of justice . . . or any place of public worship, or any other public gathering . . . except militia muster grounds”); English v. State, 35 Tex. 473, 474 (1871) (upholding prohibition on carrying “pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives”); State v. Workman, 14 S.E. ^[9], 10–12 (W. Va. 1891) (upholding presumption of criminality “when a man is found going around with a revolver, razor, billy, or brass knuckles upon his person”).

Yet, with Heller on the books, cases in Buzzard’s flock furnish us with little instructive value. That’s because Heller made clear that the Second Amendment is, and always has been, an individual right centered on self-defense; it has never been a right only to be exercised in connection with a militia. See, e.g., 554 U.S. at 592, 599, 616, 628. And bound as the inferior court that we are, we may only assess whether the right to bear arms extends outside the home on the understanding that the right is an individual one centered on self-defense. Thus, Heller knocks out the load-bearing bricks in the foundation of cases like Buzzard, for those courts only approved broad limitations on the public carry of weapons because such limitations in no way detracted from the common defense of the state. See, e.g., Buzzard, 4 Ark. at 27 (opinion of Ringo, C.J.) (“The act in question does not, in my judgment, detract anything from the power of the people to defend their free state and the established institutions of the country.”); Hill, 53 Ga. at 475 (“In what manner the right to keep and bear these pests of society [dirks, bowie knives, and the like], can encourage or secure the existence of a militia, and especially of a well regulated militia, I am not able to divine.”); English, 35 Tex. at 477 (“The terms dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives, belong to no military vocabulary.”); Workman, 14 S.E. at 11 (“So, also, in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia . . . .”); see also Wrenn, 864 F.3d at 658 (reasoning that such cases are “sapped of authority by Heller”); Moore, 702 F.3d at 941 (regarding “the historical issues as settled by Heller”); O’Shea, supra, at 653 (same). 10 Once we set aside each of those cases that rest on a militia-focused view of the right to bear arms, we find only two cases from the nineteenth century that might be read to allow severe deprivations on open carry.

As one would expect, delineating the precise lines within which a fourteenth century English statute was enforced is a difficult task. See, e.g., See Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. ^[1], 12 (2012). In the immediate period after Parliament enacted the statute, it appears that some English constables were ordered to enforce the statute literally and to arrest all those who dared to “go armed,” without regard for the bearer’s apparent peacefulness. See Letter to the Mayor and Bailiffs of York (Jan. 30, 1334), in Calendar of the Close Rolls, Edward III, 1333–1337 294 (H.C. Maxwell-Lyte ed. 1898). But not all English constables faced similar orders; for example, Northumberland officers were ordered in 1332 to arrest only “persons riding or going armed to disturb the peace.” Letter to the Keeper and Justices of Northumberland (Oct. 28, 1332), in Calendar of the Close Rolls, Edward III, 1330– 1333 610 (H.C. Maxwell-Lyte ed. 1898) (emphasis added).

Nevertheless, looking only to Chaucer’s fourteenth century England provides little instructive force, particularly because “[c]ommon-law rights developed over time.” See Wrenn, 864 F.3d at 660. And over the next few centuries, a narrow interpretation of the statute—like that given to Northumberland constables in 1332—began to dominate the English legal landscape. Writing almost 300 years after the statute was enacted, Serjeant William Hawkins, an English legal commentator praised by Blackstone, explained that “no wearing of Arms is within the meaning of this Statute, unless it be accompanied with such Circumstances as are apt to terrify the People; from whence it seems clearly to follow, That Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons.” 1 William Hawkins, A Treatise of the Pleas of the Crown 136 § 9 (1716). 16 Hawkins’s narrow interpretation of the statute was in accord with that of the Court of King’s Bench, which clarified that “the meaning of the [Statute of Northampton] was to punish people who go armed to terrify the King’s subjects.” Sir John Knight’s Case, 87 Eng. Rep. 75, 76, 3 Mod. 117 (K.B. 1686) (emphasis added). 17 More fundamentally, however, we respectfully decline the County’s and the State’s invitation to import English law wholesale into our Second Amendment jurisprudence. While English law is certainly relevant to our historical inquiry because the Second Amendment “codified a preexisting right,” Heller, 554 U.S. at 592, our aim here is not merely to discover the rights of the English. Indeed, there is a scholarly consensus that the 1689 English right to have arms was less protective than its American counterpart. See Jonathan Meltzer, Note, Open Carry for All: Heller and Our Nineteenth-Century Second Amendment, 123 Yale L.J. 1486, 1500 (2014); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 120–21 (1994). That is because the English right was “not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.” Heller, 554 U.S. at 593. Accordingly, it only guaranteed the right of Protestants to have arms “as allowed by law.” See Malcom, supra, at 121, 162. But not all laws that restricted the right of Englishmen to have arms found a place across the Atlantic. As St. George Tucker observed, it would have been strange to apply in the United States an English law that presumed any gathering of armed men was treasonous, because “the right to bear arms is recognized and secured in the [American] constitution itself.” See Tucker, supra, vol. ^[5], app., n.B, at 19; see also Cooley, supra, at 270 (noting that the Second Amendment “was adopted with some modification and enlargement from the English Bill of Rights”); William Rawle, A View of the Constitution of the United States of America 126 (2d ed. 1829) (writing that the English right, unlike the Second Amendment, “is allowed more or less sparingly, according to circumstances”).

Thus, instead of stitching into the Second Amendment every odd law that hemmed in the rights of fourteenth century Englishmen, we consider those English laws only to the extent they inform the original public understanding of the Second Amendment. See Heller, 554 U.S. at 594 (“By the time of the founding, the right to have arms had become fundamental for English subjects.” (emphasis added)). With our historical inquiry properly framed, the fog encircling the Statute of Northampton’s “true” meaning clears away, for the American understanding and implementation of the statute was unambiguously consistent with a robust Second Amendment right to open carry.

To the extent the Framers considered the Statute of Northampton as instructive of the pre-existing right to bear arms, they took a narrow view of its prohibitions. See Eugene Volokh, The First and Second Amendments, 109 Colum. L.Rev. Sidebar 97, 101 (2009). In that vein, Justice James Wilson, a leading drafter of the Constitution, credited Serjeant Hawkins and construed the statute to prohibit arming oneself “with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.” 2 James Wilson, Collected Works of James Wilson 654 (Kermit L. Hall & Mark D. Hall eds. 1967); see also Volokh, The First and Second Amendments, supra, at 101 (“American benchbooks for justices of the peace echoed [Wilson’s observation], citing Hawkins . . . .”). William Rawle, a prominent member of the Pennsylvania Assembly that ratified the Constitution, likewise cited Hawkins and wrote that the right to bear arms would not rule out a law prohibiting “the carrying of arms abroad by a single individual, attended with circumstances giving [observers] just reason to fear that he purposes to make an unlawful use of them.” Rawle, supra, at 126. 18 We thus disagree with the dissent’s view that carrying a weapon was itself sufficient to face punishment under a state-enacted Northampton analogue. Dissent at 65 n.1. As that argument goes, when the drafters of virtually every single state Northampton analogue criminalized going armed “to the terror” or “in affray” of others, the terror or affray language was just purposive; that is, “terrorizing the public was the consequence of going armed,” so such language was incorporated into the statutes merely to clarify why going armed was itself unlawful. See Ruben & Cornell, supra, at 129–30; Charles, supra, at 33.

What an odd way it would be to write a criminal statute! To interpret such language as merely purposive is to remove its operative effect, for if going armed was itself unlawful then clarifying the consequences of going armed adds not an iota of substance to the crime. Of course, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do.” Heller, 554 U.S. at 578 n.3. But it is entirely another endeavor to read language mixed in among operative elements in a criminal statute as merely purposive. See id. (“[O]perative provisions should be given effect as operative provisions, and prologues as prologues.”); Ratzlaf v. United States, 510 U.S. 135, 140–41 (1994) (counseling “heightened” resistance before treating statutory terms as “words of no consequence . . . when the words describe an element of a criminal offense”). For instance, Maine’s 1821 Northampton analogue authorized the arrest of “all affrayers, rioters, disturbers or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this State, or such others as may utter any menaces or threatening speeches.” 1821 Me. Laws 285. If riding armed were itself unlawful because it terrorized the good citizens of Maine, it strains credulity to suggest that Maine drafters would have felt the need to clarify such reasoning right in the middle of the statute’s operative provisions. Indeed, why only clarify the consequences of riding armed, and no other prohibited conduct?

More troubling, reading the “to the terror” language as merely purposive frequently places a Northampton analogue in conflict with its neighboring criminal provisions. Take a closer look at the Northampton analogue in chapter 97 section 13 of Delaware’s 1852 Revised Statutes, which—in familiar fashion—authorized the arrest of “all who go armed offensively to the terror of the people, or are otherwise disorderly and dangerous.” Revised Statutes of the State of Delaware, to the Year of Our Lord One Thousand Eight Hundred and Fifty-Two, Inclusive 333 § 13 (Dover, W.B. Keen 1852). With that provision in mind, turn to Section 30, where the Delaware Code authorized justices of the peace to “punish any slave . . . who shall, without the special permission of his master, go armed with any dangerous weapon.” Id. at 336 § 30. How might one grant another permission to “go armed with any dangerous weapon” if one had no lawful authority to go armed in the first place? Or consider Tennessee’s 1831 Revised Statutes, which, immediately after providing its standard-form Northampton analogue, authorized sheriffs to arrest any person “armed with the intention of committing a riot or affray.” 1 The Statute Laws of the State of Tennessee, of a Public and General Nature 10 (Knoxville, John Haywood & Robert L. Cobbs 1831). Why on earth would Tennessee have so limited a sheriff’s authorization to arrest if going armed was itself unlawful?

Thus, utterly confused by how we might read a Northampton analogue to prohibit all arms carry, we feel the better approach with these statutes is to take them at their word: an American, just like an Englishman, could not go armed offensively to the terror of the people. Such a reasonable restriction on public carry is perfectly consistent with a robust right peacefully to carry a firearm in public. In all, then, the various Northampton analogues found in states across the United States confirm that, “whatever Northampton banned on the shores of England,” the American right to carry common weapons openly for self-defense “was not hemmed in by longstanding bans on carrying.” Wrenn, 864 F.3d at 660–61.

G

Concluding our analysis of text and review of history, we remain unpersuaded by the County’s and the State’s argument that the Second Amendment only has force within the home. Once identified as an individual right focused on self-defense, the right to bear arms must guarantee some right to self-defense in public. While the concealed carry of firearms categorically falls outside such protection, see Peruta II, 824 F.3d at 939, we are satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense. Because section 134-9 restricts Young in exercising such right to carry a firearm openly, it burdens conduct protected by the Second Amendment.

IV

Accordingly, we must evaluate section 134-9 under “an appropriate level of scrutiny.” Jackson, 746 F.3d at 962. In doing so, we consider “(1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on the right.” Id. at 963 (internal quotations omitted).

We treat this approach as a “sliding scale.” Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016). On one end, “[a] law that imposes such a severe restriction on [a] core right [of the Amendment] that it ‘amounts to a destruction of the . . . right,’ is unconstitutional under any level of scrutiny.” Jackson, 746 F.3d at 961 (quoting Heller, 554 U.S. at 629). On the other end of the spectrum, intermediate scrutiny is appropriate if the challenged law “does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right.” Id.

A

So, what constitutes the core of the Second Amendment? As we know, the Second Amendment protects the right “to keep and bear arms.” U.S. Const. amend. II. The key inquiry is whether the core of the right encompasses both verbs, or only one: keeping and bearing arms for self-defense, or, more narrowly, only keeping arms for self-defense within the home. ^[19]

Heller aids our inquiry but provides no definitive answer. On the one hand, in rejecting the collective view of the right, Heller made clear that “self-defense had little to do with the right’s codification; it was the central component of the right itself.” 554 U.S. at 599 (emphasis in original); see also id. at 628 (“[T]he inherent right of self-defense has been central to the Second Amendment right.”). On the other hand, Heller noted that “whatever else [the Amendment] leaves to future evaluation, it surely elevates above all other First, and foremost, the dissent chooses to omit one-half of the inquiry. According to the dissent, the only question a court must answer under intermediate scrutiny is whether the government action “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Dissent at 74 (quoting Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015)). That is incomplete, because a court must also determine whether the government action “‘burden[s] substantially more [protected conduct] than is necessary to further’ that interest.” Turner Broad. Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180, 213–14 (1997) (quoting Turner Broad. Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 622, 662 (1994)); see also Shapero v. Ky. Bar Ass’n, 486 U.S. 466, 476 (1988) (invalidating a flat ban on direct-mail solicitation by lawyers because the government could regulate “abuses . . . through far less restrictive and more precise means”). Thus, while intermediate scrutiny surely does not require the government to pursue the least restrictive means of achieving an important interest, the substantial overbreadth or impreciseness of a government action must be considered.

Here, however, the dissent simply points out Hawaii’s low firearm death rate and claims victory, at no point seriously analyzing whether the State could reduce gun violence through means considerably more targeted than section 134-9.

Confounding the dissent’s erroneous understanding of intermediate scrutiny is its willingness to defer entirely to the State regarding the constitutionality of section 134-9. Dissent at 74–75. The dissent relies on the Supreme Court’s decision in Turner Broadcasting to justify its analysis, but in reality the decision undermines the level of deference the dissent would offer.

“Although we do ‘accord substantial deference to the predictive judgments’ of the legislature” when conducting intermediate scrutiny, “the [State] is not thereby ‘insulated from meaningful judicial review.’” Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1259 (D.C. Cir. 2011) (quoting Turner II, 520 U.S. at 195 & Turner I, 512 U.S. at 666). Quite the contrary, a court must determine whether the legislature has “base[d] its conclusions upon substantial evidence.” Turner II, 520 U.S. at 196. Indeed, despite the deference owed, the State bears the burden “affirmatively [to] establish the reasonable fit we require.” See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

The State and County here offer some empirical studies in support of their argument that section 134-9 is a reasonable means of reducing gun violence, but where does the dissent actually engage with such evidence? It doesn’t. Its analysis of the evidence is nothing more than the conclusory assertion that “Hawaii has met its burden by citing to significant empirical evidence [apparently two or so pages in its brief is “significant”] and by explaining the logical inferences behind its policy choices.” Dissent at 75 (emphasis added).

Mere citation is an inadequate application of intermediate scrutiny, even according deference to the predictive judgment of a legislature, and Turner Broadcasting itself shows why. There, the Supreme Court extensively analyzed over the course of twenty pages the empirical evidence cited by the government, and only then concluded that the government’s “policy [was] grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.” See Turner II, 520 U.S. at 196–224. To say that the dissent’s treatment of the State’s evidence is in any way comparable to the analysis of Turner Broadcasting is to omit nearly the entirety of the Court’s opinion; the Court did much more than cite-check the government’s brief.

The dissent is comfortable letting the State perform its intermediate scrutiny analysis because “[i]t is the legislature’s job, not ours, to weigh conflicting evidence and make policy judgments.” Dissent at 74 (quoting Kachalsky, 701 F.3d at 99). No statement could more clearly indicate where the dissent goes wrong: we are certainly not evaluating a mere “policy judgment” but rather determining the scope and application of a constitutional right. At bottom, the dissent would have us fundamentally reject Heller and construe the Second Amendment as nothing more than an illusory promise. While the dissent might think Heller was wrongly decided, it is far beyond our power to overrule it.

VI

We do not take lightly the problem of gun violence, which the State of Hawaii “has understandably sought to fight . . . with every legal tool at its disposal.” Wrenn, 864 F.3d at 667. We see nothing in our opinion that would prevent the State from regulating the right to bear arms, for the Second Amendment leaves the State “a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.” Heller, 554 U.S. at 636.

But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense. We would thus flout the Constitution if we were to hold that, “in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.” Reid, 1 Ala. at 616. While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

Young has indeed stated a claim that section 134-9’s limitations on the issuance of open carry licenses violate the Second Amendment. ^[22]

REVERSED as to the County, DISMISSED as to the State, 23 and REMANDED for further proceedings consistent with this opinion. ^[24]

CLIFTON, Circuit Judge, dissenting:

Morris Udall once observed at a congressional committee hearing that “everything has been said but not everyone has said it.” After decades of relative inattention, the Second Amendment has sparked substantial comment in the last forty years. Others have said things that reflect my view. I do not feel the need to repeat them.