New York’s Futile Search for Historical Precedents for its Handgun Carry Restrictions
In yesterday’s post, we discussed the Statute of Northampton and how it was read in English precedent, and enacted in American statutory analogues, to prohibit going armed offensively in a manner that terrified others. In antebellum America, those statutes were revised in substance and procedure as exemplified by what has been called the Massachusetts Model, 1836 Mass. Acts 750, ch. 134, § 16, as follows:
If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.
As the language of the statute makes clear, citizens generally were free to carry. Only those who abused that right and caused a reasonable fear of harm could, upon complaint and absent good cause, be required to post what today would be called a peace bond—and even they could continue to carry. New York’s law essentially reverses the Massachusetts Model, requiring a person to show good cause before being allowed to carry, and, unlike under the Massachusetts law, a person who fails to do so is barred from carrying entirely.
Yet New York seeks to justify its current “proper cause” requirement for issuance of carry licenses by reference to “early American reasonable-cause laws” like that of Massachusetts, under which “‘any person’ who feared ‘injury’ or a ‘breach of the peace’ could complain to a magistrate that another person was carrying a firearm in public.” NY Br. 27. Hold on there. The complainant must show “reasonable cause to fear an injury, or breach of the peace,” meaning that the
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