Second Amendment professors brief in Supreme Court right to bear arms case
October 6, 2021 | Tags: second amendment
On November 3, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment right to "bear arms" is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need. The Supreme Court's docket page for the case shows about three dozen amicus briefs filed on each side. In the next several weeks, I will write about some of those briefs. I'll start with the amicus brief that I co-authored with George Mocsary (U. of Wyoming law school) and Joseph Greenlee (Firearms Policy Foundation).
The amici are law professors who teach and/or write on the Second Amendment, namely VC writers Randy Barnett (Georgetown) and Eugene Volokh (UCLA), plus Royce Barondes (Missouri), Nicholas Johnson (Fordham), Donald Kilmer (Lincoln), Michael O'Shea (Oklahoma City), Joseph Olson (Mitchell Hamline, emeritus), and Glenn Reynolds (Tennessee). Also joining the brief are Weld County, Colorado; Weld County Sheriff Steve Reams, the Independence Institute (the Denver think, where I am research director), and the Firearms Policy Foundation. Our brief focuses on legal history, particularly in the Founding Era and before. In this post, I will summarize parts of the brief, and, for some parts, provide additional background information.
Part I briefly looks at the text of the Second Amendment, which protects the right to "keep" arms and the right to "bear" arms. Rather than creating a hierarchy, the text protects both rights equally. Dictionaries cited in the Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined "bear" as to "carry" or "wear."
Part II delves into English history. The first Englishmen to have a written guarantee of arms rights were the settlers of the Virginia Colony in 1607 and the New England Colony in 1620. Their royal charters gave them and all succeeding immigrants the perpetual right to import from the King's dominion's "the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence or otherwise."
Back in England, there was no written right to arms until the 1689 English Bill of Rights: "That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law." Yet the same Parliament that enacted the English Bill of Rights declared the right to arms, and other provisions, to be "true, ancient and indubitable rights." Like Americans such as John Adams, the English believed the right of self-defense and the right to arms to be based in natural law.
At the time of the American Founding, English law was clear: "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game"—as Edward Christian wrote in his 1794 annotated edition of Blackstone. The 1689 English Bill of Rights had not changed the English rule that commoners could not hunt unless a noble gave them permission to hunt on the noble's land. The American colonies never had any class-based limits on hunting.
The English Bill of Rights aimed to rectify the past abuses of monarchs, including the despotic King James II, who was overthrown in 1688 partly because of attempt to disarm the English people and rule via the force of a standing army.
Persons who argue that Americans have no right to bear arms contend that the 1328 Statute of Northampton comprehensively prohibited arms carrying, that the 1328 statute was always interpreted as a prohibition, and that this prohibition was adopted in the American colonies and incorporated in the Second Amendment. One problem with this theory is English case law. As will be discussed below, in 1686, the King Bench's held in Knight's Case that the Statute of Northampton only applied to carrying "in malo animo" – that is, with evil intent or malice. Every known English case after 1686 (Knight's Case) and 1689 (Bill of Rights) follows this interpretation.
For example, in 1819, following civil unrest, Parliament had enacted a temporary statute against seditious armed assemblies in several counties. The law was upheld against a constitutional challenge because it did not violate the right to carry firearms for self-defense. According to the court: "A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business" but not to carry arms in a manner "calculated to produce terror and alarm." Rex v. Dewhurst, 1 State Trials, N.S. 529, 601-02 (1820). Likewise, cases in the early twentieth century distinguished peaceable carry from terrorizing carry. King v. Smith, 2 Ir. Rep. 190, 204 (King's Bench 1914) (acting "in terrorem populi" [to the terror of the people] is an an "essential element" of the Statute of Northampton; merely carrying a revolver is not inherently terrifying); Rex v. Meade, 19 L. Times Rep. 540, 541 (1903) (right to peaceable carry does not include "firing a revolver in a public place, with the result that the public were frightened or terrorized").
Although the Statute of Northampton was only rarely seen in criminal prosecutions, it did remain on the books until formal repeal in 1967. The notion that it prohibited peaceable carry would have come as a surprise to the Parliament of 1870, which enacted a statute requiring a 10-shilling annual license from the post office to carry a firearm outside one's property. Postal clerks had no discretion to refuse a fee-paying applicant. Gun License Act, Act 33 & 34 Vict. c. 57 (1870).
What about English history before 1686? Persons who deny the existence of the right to bear arms—such as the Ninth Circuit en banc majority in the 2021 case Young v. State of Hawaii—offer a litany of citations, but these do not hold up under scrutiny. For example, in 1343, huge crowds were coming to London for the Feast of St. Thomas. The king ordered London hostelers to tell their guests not to carry arms in London. According to the Ninth Circuit, this shows that arms carry restrictions "permeated public life." To the contrary, the Feast of St. Thomas decree presumes that travelers will be carrying arms and will expect to continue carrying in London. The king ordered the hostelers to tell the visitors to pause their usual practices.
The Young majority claimed that a 1350 statute outlawed concealed carry. In fact, the statute declared the punishment for concealment when doing so in furtherance of murder, robbery, or kidnapping.
The first reported case on the Statute of Northampton, Chune v. Piott (1615) held that a sheriff could arrest someone whose arms carrying caused a breach of the peace, even if the breach did not occur in the presence of the sheriff. The Young majority chopped the quote and claimed that the sheriff could arrest even when the arms carrying did not cause a breach of the peace.
The sensational 1686 political trial of Knight's Case involved an Anglican nobleman who was at odds with the England King James II, a Catholic. Sir John Knight loved to assist in the enforcement of England's statutes against Catholics. As a result, some Irish Catholics living in the English town of Bristol began looking for him so they could kill him. One Sunday Knight attended worship at his hometown Anglican Church–St. Michael, in Bristol–and brought a defensive gun. For that act, he was prosecuted under the Statute of Northampton and acquitted by the jury. As the Chief Justice of the King's Bench explained, the Statute only prohibited carrying in malo animo, and the jury didn't think that Knight's peaceable defensive carry was with bad intent.
The theories of Patrick Charles
The modern writer who produced the most material arguing that there is no right to bear arms is Patrick Charles. The Ninth Circuit's Young v. Hawaii majority draws heavily on Charles's writing. Charles penned many articles claiming that Knight was acquitted because he was acting in government service—which was an express statutory exception to the Statute of Northampton. Indeed, Charles wrote that people who disagreed with his government service theory were "purporting a historical myth to advance a Second Amendment agenda." The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Cleveland State L. Rev. 1, 30 (identifying Joyce Malcolm, David Hardy, Clayton Cramer, and me).
In Second Amendment scholarships the "Standard Model" (a phrase coined by Glenn Reynolds) is that the Second Amendment guarantees a strong but not unlimited right to individuals to possess and carry firearms, including for personal self-defense. Charles argues that there is no such right. In Charles' view, "The historical evidence is irrefutable despite the attempts of Standard Model writers who persistently claim otherwise." The Statute of Northampton by the Late Eighteenth Century: Clarifying The Intellectual Legacy, 16 Fordham Urban L.J. City Square 10, 27 (2013). For example, "Standard Model writers invoke Sir John Knight's Case to support their hasty reading, but the facts, history, and holding in that case only further undermine their claims." Id. at 16 n. 36 (case cite omitted). Charles here cited his Cleveland article, which he summarized as "showing Knight was acquitted because he fell under the government officer exception in the 1396 amendment to the Statute of Northampton"
Commendably, Charles later acknowledged he was mistaken. Brief of Amicus Curiae Patrick J. Charles in Support of Neither Party at 23 n.10, New York State Rifle & Pistol Ass'n v. City of New York, 140 S. Ct. 1525 (2020) (No. 18-280), 2019 WL 2173982 (". . . Knight was prosecuted under the Statute of Northampton for a later, separate instance in which government officials were not present.").
To understand why, you don't have to be an expert on English legal history. You just have to read the case report, which quotes the indictment, and alleges where the alleged crime took place: "St. Michael, in Bristol." St. Michael in Bristol was and is part of the Anglican Church—the established Church of England. Charles conflated the gun-carrying incident for which Knight was prosecuted (carrying at St. Michael) with an incident earlier in the year; then, Knight had helped some local Bristol officials break up a secret Catholic mass. Knight's Case was obviously not about that incident. Catholic Churches were illegal at the time, so Catholics attempting to hold a secret mass would not do so in public buildings. St. Michael was a very public building.
Knight's Case in Early America
Charles's new claim is that the Founders had no idea about Knight's Case, since the first reported American cite of Knight's Case (also known as Rex v. Knight) was the 1843 North Carolina State v. Huntley. Charles writes:
"Stop and think about that for a moment. How can anyone claim the Founding Fathers understood a case to be authoritative if it was never mentioned or appeared in American discourse from the time it was decided in 1686 to 1843? The answer—at least to historians— is the claim is a complete fabrication. And fabricated history is quite simply not history at all. It is fiction."
In response, the law professor amicus brief shows some of the ways that Americans learned the rule from Knight's Case. First, William Hawkins's Treatise of the Pleas of the Crown cited Knight's Case for the precise point that peaceable defensive carry of ordinary arms is lawful. Published in England in 1716, with eight editions through 1824, Hawkins was the leading criminal law treatise of the eighteenth century, and widely used in America. Hawkins's explanation that arms carrying was generally legal was cited by the Tennessee Supreme Court in 1833 (Simpson v. State), and by Justice of the Peace manuals in the Early Republic. William Waller Hening, The New Viriginia Justice 17-18 (1795); James Parker, Conductor Generalis; Or the Office, Duty and Authority of Justices of the Peace 11 (1st ed. 1764).
The trial of Sir John Knight was reported in volume 3 of Modern Law Reports and in the single volume of case reports by Roger Comberbach. George Wythe, America's first law professor, owned both of these books. A signer of the Declaration of Independence, Professor Wythe served in the Continental Congress and the Philadelphia Convention. Among his apprentices and students were Chief Justice John Marshall, Justice Bushrod Washington, President Thomas Jefferson, President James Monroe, and St. George Tucker (author of the preeminent constitutional law treatise of the Early Republic). Wythe bequeathed his books to Thomas Jefferson, who later sold them to form the Library of Congress.
American laws restricting bearing arms
Whatever the English Bill of Rights protected, it was not good enough for Americans. James Madison's notes for his speech introducing the Bill of Rights in Congress show that he regarded much of the English Bill of Rights as deficient, including the Protestants-only provision of the right to arms. St. George Tucker, William Rawle (author of an influential 1825 treatise on American constitutional law), and Joseph Story all denounced the English right to arms as feeble and as far inferior to the Second Amendment.
During the colonial and founding period, no colony or state forbade carrying arms. Only a few addressed the issue. Massachusetts in 1692 outlawed going "Armed Offensively." Likewise, New Hampshire in 1699 ordered justices of the peace to arrest "affrayers, rioters, disturbers or breakers of the peace, or any other who shall go armed offensively." Being armed "offensively" is the opposite of peaceable defensive carry.
After the suppression of Bacon's Rebellion in 1676, a Virginia statute noted that the previous legislature had enacted a law that "liberty is granted to all persons to carry their arms wheresoever they go." However, the new legislature prohibited unauthorized armed assemblies of five or more men. Thus, individuals or small groups had the unfettered right to carry.
The one colony that did restrict peaceable personal carry was East Jersey, which was was a separate colony from 1674 to 1702, and was adjacent to New York City. In 1686, East Jersey outlawed concealed carry of "any Pocket Pistol" (a pistol small enough to fit in a pocket). Further, any "Planter" was forbidden to "go Armed with Sword, Pistol, or Dagger." A "planter" is "One of those who settled new and uncultivated territory." Richard Lederer, American Colonial English 175 (1985). So East Jersey frontiersman could open carry long guns, but not handguns.
Whether the East Jersey carry law continued in force after the Jerseys were consolidated in 1712 is unclear. The New Jersey legislature did not seem to view statute of former East Jersey as having continuing force. When the legislature restricted concealed carry in 1905, it did so by enacting a licensing statute. Open carry of handguns and long guns was legal in New Jersey until 1966.
American law after the Second Amendment
As evidence of the Statute of Northampton's influence in America, the Young majority cites a 1792 North Carolina statute that supposedly copied the English statute verbatim, including text about "the King's servants." 992 F.3d at 778. Young cites "1792 N.C. Laws 60, 61 ch. 3," but the lengthier cite is Francois-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North Carolina 60-61(1792). The State of North Carolina later officially declared that the book "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State." Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).
The North Carolina Supreme Court determined that the Statute of Northampton had simply embodied the enduring common law rule against "riding or going about armed with unusual and dangerous weapons, to the terror of the people." State v. Huntly, 25 N.C. 418, 420 (1843). The Court then set forth the common law offense:
"[T]he carrying of a gun per se constitutes no offence. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun. It is the wicked purpose—and the mischievous result—which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."
Id. at 423-24. This paragraph authoritatively describes the Statute of Northampton's meaning in America.
Arms carry mandates
It is recognized that almost all the American colonies required males and sometimes females to carry arms outside of militia settings. Mandates included carrying to church, court, public assemblies, travel, and work in the field. The mandates cast down on the notions of the Young court and Patrick Charles that Americans were inherently terrified by the sight of someone carrying a firearm.
Young's takeaway from all the carry mandates was that "the colonies assumed that they had the power to regulate—whether through mandates or prohibitions—the public carrying of arms." 992 F.3d at 796. Because colonies could require arms carrying, colonies could ban arms carrying. Non sequiter. Some colonies also required church attendance. The church attendance mandates do not mean that colonial governments or the people ever thought that colonies could forbid church attendance.
According to Young, the carry mandates "were tied to the overarching duty to bear arms in defense of the community, and it was the role of local government, not individuals, to decide when that duty justified or mandated public carry." Likewise, "the public carrying of arms was always subject to conditions prescribed by the legislature." Young, 992 F.3d at 796.
However, as a threshold matter, it was not always government that decided who could carry. Some statutes forbade carry by slaves unless their masters issued them licenses. See, e.g., 1715 Md. Laws 117 ("no negro or other slave within this province shall be permitted to carry any gun, or any other offensive weapon, from off their master's land, without licence from their said master"); 1797 Del. Laws 104 (no "Negro or Mulatto slave shall presume to carry any guns, swords, pistols, fowling pieces, clubs, or other arms and weapons whatsoever, without his master's special license for the same"). It is implausible that people could grant permission for slaves to carry but could not carry themselves.
Moreover, both the Founders and the founding citizenry at large voluntarily carried arms routinely for defense and sport. Our amicus brief cites examples from John Adams, Patrick Henry, Daniel Boone, Meriwether Lewis, Thomas Jefferson, James Monroe, Ira and Ethan Allen, Joseph Warren, William Drayton, and the general population—with examples having nothing to do with any carry mandate.
Peaceable carry in America being universally recognized as lawful, criminal justice officer manuals from early America did not contain instructions to arrest people for peaceably carrying arms. See Isaac Goodwin, New England Sheriff (1830); Charles Hartshorn, New England Sheriff (1844); John Niles, The Connecticut Civil Officer (1823); John Latrobe, The Justices' Practice Under the Laws of Maryland (1826); Henry Potter, The Office and Duty of a Justice of the Peace…According to the Laws of North Carolina (1816).
The Heller case cited five antebellum state supreme court cases concealed carry laws. Only one of them asserted that concealed carry was outside the right to bear arms. The main line of the cases indicate that concealed carry can be banned as long as open carry is allowed. Or vice versa. Because New York State prohibits open carry, the statutory system of concealed carry licensing may not be misused so as to prohibit the vast majority of law-abiding, trained adults from obtaining a carry permit.