Second Amendment professors brief in Supreme Court right to bear arms case
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
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