Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.
Supreme Court briefJul 13, 2021
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No. 20-843
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------NEW YORK STATE RIFLE &
PISTOL ASSOCIATION, INC., et al.,
Petitioners,
v.
KEVIN P. BRUEN, IN HIS OFFICIAL
CAPACITY AS SUPERINTENDENT OF
NEW YORK STATE POLICE, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Second Circuit
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE
PROFESSORS OF SECOND AMENDMENT LAW,
WELD COUNTY, COLORADO,
WELD COUNTY SHERIFF STEVE REAMS,
INDEPENDENCE INSTITUTE, AND
FIREARMS POLICY FOUNDATION
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------DAVID B. KOPEL
INDEPENDENCE INSTITUTE
727 E. 16th Ave.
Denver, CO 80203
GEORGE A. MOCSARY
UNIVERSITY OF WYOMING
COLLEGE OF LAW
1000 E. University Ave.
Laramie, WY 82071
JOSEPH G.S. GREENLEE
FIREARMS POLICY FOUNDATION
5550 Painted Mirage Rd.
Ste. 320
Las Vegas, NV 89149
(970) 485-3303
josephgreenlee@gmail.com
Counsel of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
iv
INTEREST OF THE AMICI CURIAE .................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
II.
The Second Amendment’s text protects
the right to carry arms ..............................
3
A. The text places “bear” on equal footing
with “keep” ...........................................
3
B. Contemporary dictionaries defined
“bear” to mean “carry” .........................
3
The English Bill of Rights protected the
carrying of firearms outside the home ......
4
A. Americans and English believed that
the carrying of arms was the natural
right of self-defense .............................
5
B. Peaceable carry for self-defense was
protected under English tradition ......
7
1. Fourteenth-Century Orders and
Enactments .....................................
8
2. Chune v. Piott..................................
9
3. Sir John Knight’s Case ................... 10
4. William Hawkins and William
Blackstone ...................................... 13
5. Post-Bill of Rights case law ........... 15
ii
TABLE OF CONTENTS—Continued
Page
III.
The Founders deliberately constitutionalized a right to self-defense that was
broader than that of the English ............... 16
A. Americans inherited the natural right
of self-defense ...................................... 16
B. Americans disapproved of the constricted nature of the English right
and deliberately codified a broader
right ..................................................... 18
IV.
Publicly carrying arms was common in
early American history .............................. 21
A. The right of law-abiding citizens to
carry arms in public was largely unrestricted throughout the colonial and
founding eras ....................................... 21
B. The Statute of Northampton did not
forbid peaceable carry in America ....... 24
C. Arms carrying was so important to public safety that it was often required ...... 25
D. The Founders voluntarily carried arms
in their everyday lives ......................... 27
1. John Adams ................................... 28
2. Patrick Henry ................................ 28
3. Daniel Boone .................................. 28
4. Meriwether Lewis .......................... 28
5. Thomas Jefferson ........................... 29
6. James Monroe ................................ 29
iii
TABLE OF CONTENTS—Continued
Page
7. Ira and Ethan Allen ....................... 29
8. Joseph Warren ............................... 30
9. William Drayton ............................ 30
10. General Population ........................ 30
V.
Nineteenth Century case law supports a
right to carry arms beyond the home ........ 32
CONCLUSION..................................................... 36
iv
TABLE OF AUTHORITIES
Page
CASES
Andrews v. State,
50 Tenn. 165 (1871) .................................................35
Bliss v. Commonwealth,
12 Ky. 90 (1822) .......................................................33
Bridges v. California,
314 U.S. 252 (1941) .................................................18
Chune v. Piott,
80 Eng. Rep. 1161 (K.B. 1615) ............................ 9, 10
District of Columbia v. Heller,
554 U.S. 570 (2008) ......................................... passim
King v. Smith,
2 Ir. Rep. 190 (K.B. 1914) ........................................15
Moore v. Madigan,
702 F.3d 933 (7th Cir. 2012) ....................................18
Nunn v. State,
1 Ga. 243 (1846) ................................................ 33, 34
Poe v. Ullman,
367 U.S. 497 (1961) ...................................................4
Rex v. Dewhurst,
1 State Trials, N.S. 529 (1820) ................................15
Rex v. Knight,
Comberbach 38, 90 Eng. Rep. 330 (1686) ...............12
Rex v. Knight,
Comberbach 41, 90 Eng. Rep. 331 (1686) ...............12
Rex v. Meade,
19 L. Times Rep. 540 (1903)....................................15
v
TABLE OF AUTHORITIES—Continued
Page
Simpson v. State,
13 Tenn. 356 (1833) .................................................11
Sir John Knight’s Case,
3 Mod. 117, 87 Eng. Rep. 75 (K.B. 1686) .... 10, 11, 12
State v. Chandler,
5 La. Ann. 489 (1850) ........................................ 32, 35
State v. Huntly,
25 N.C. 418 (1843) ............................................. 24, 25
State v. Jumel,
13 La. Ann. 399 (1858) ............................................35
State v. Reid,
1 Ala. 612 (1840)................................................ 33, 34
Stockdale v. State,
32 Ga. 225 (1861) ....................................................34
Young v. Hawaii,
992 F.3d 765 (9th Cir. 2021) (en banc) ............ passim
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. I ..................................................18
U.S. CONST. amend. II ......................................... passim
STATUTES AND REGULATIONS
1 W. & M., Sess. 2, c. 2 (1689) .......................................5
1692 Mass. Laws No. 6 ...............................................22
1699 N.H. Laws 1........................................................23
1715 Md. Laws 117 .....................................................27
vi
TABLE OF AUTHORITIES—Continued
Page
1797 Del. Laws 104.....................................................27
2 Stat. (Va.) 386 (1676-1677) ......................................23
25 Edw. 3, 320, st. 5, c. 2, §13 (1350) ............................9
Gun License Act, Act 33 & 34 Vict. c. 57 (1870) .........16
OTHER AUTHORITIES
A DIGEST OF THE STATUTE LAWS OF KENTUCKY
1289–90, vol. 2 (A. G. Hodges ed., 1834) .................32
Abbott, Benjamin Vaughn, JUDGE AND JURY: A
POPULAR EXPLANATION OF LEADING TOPICS IN
THE LAW OF THE LAND (1868) ...................................36
Adams, John, LEGAL PAPERS OF JOHN ADAMS, vol.
3 (L. Kinvin Wroth & Hiller B. Zobel eds.,
1965) ...................................................................... 6, 7
AMERICAN ARCHIVES, 4th ser., vol. 3 (Peter Force
ed., 1840) .................................................................30
ARCHIVES OF MARYLAND, vol. 3 (William Hand
Browne ed., 1885) ....................................................26
Blackstone, William, COMMENTARIES, vol. 2 (Edward Christian ed., 12th ed. 1794) ..................... 6, 20
Blackstone, William, COMMENTARIES, vols. 1-4
(1765-69) .......................................................... 6, 7, 15
CALENDAR OF PLEA & MEMORANDA ROLLS OF THE
CITY OF LONDON, 1323-1364 (Dec. 19, 1343),
vol. 1 (A.H. Thomas ed., 1898) ..................................8
vii
TABLE OF AUTHORITIES—Continued
Page
Charles, Patrick J., Judging the Ninth Circuit’s
Use of History in Young v. Hawaii, SECOND
THOUGHTS BLOG, Apr. 16, 2021 ................................11
Cooley, Thomas, THE GENERAL PRINCIPLES OF
CONSTITUTIONAL LAW IN THE UNITED STATES
(1880) .......................................................................20
Cornell, Saul, The Right To Keep And Carry
Arms In Anglo-American Law: Preserving
Liberty And Keeping The Peace, 80 L. & CONTEMP. PROBS. 11 (2017) ............................................32
de Lolme, J.L., THE RISE AND PROGRESS OF THE
ENGLISH CONSTITUTION, vol. 2 (1775) (A.J. Stephens ed., 1838).........................................................7
DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS, vol.
3 (1961) ....................................................................28
DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS: DEBATES IN THE HOUSE OF REPRESENTATIVES: THIRD SESSION, DECEMBER 1790MARCH 1791, vol. 14 (1995) .....................................20
“ESTEEMED BOOKES OF LAWE” AND THE LEGAL CULTURE OF EARLY VIRGINIA (Warren M. Billings &
Brent Tarter eds., 2017) ..........................................12
FEDERAL AND STATE CONSTITUTIONS, COLONIAL
CHARTERS, AND OTHER ORGANIC LAWS OF THE
STATES, TERRITORIES, AND COLONIES NOW OR
HERETOFORE FORMING THE UNITED STATES OF
AMERICA, vols. 1-7 (Francis Newton Thorpe
ed., 1909) ............................................................... 5, 8
viii
TABLE OF AUTHORITIES—Continued
Page
Frothingham, Richard, LIFE AND TIMES OF JOSEPH WARREN (1865) ................................................30
George Wythe Collection, HEINONLINE .......................13
Goodwin, Isaac, NEW ENGLAND SHERIFF (1830) .........35
Halbrook, Stephen, THAT EVERY MAN BE ARMED
(1984) .......................................................................17
Hale, Matthew, THE HISTORY OF THE PLEAS OF
THE CROWN (1736)....................................................31
HANSARD’S PARLIAMENTARY DEBATES, vol. 69, ser.
3 (May 30, 1843) ........................................................6
Hartshorn, Charles, NEW ENGLAND SHERIFF
(1844) .......................................................................35
Hawkins, William, A TREATISE OF THE PLEAS OF
THE CROWN, vol. 1 (4th ed. 1762) ...............................7
Hawkins, William, A TREATISE OF THE PLEAS
OF THE CROWN, vol. 1 (John Curwood ed.,
1824) ............................................................ 11, 13, 14
Hening, William Waller, THE NEW VIRGINIA JUSTICE, COMPRISING THE OFFICE AND AUTHORITY
OF A JUSTICE OF THE PEACE, IN THE COMMONWEALTH OF VIRGINIA (1795) ......................................11
Hening, William Waller, THE STATUTES AT LARGE:
BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, vols. 1-2 (1823) ..............................................26
Holdsworth, William, A HISTORY OF ENGLISH
LAW, vol. 6 (3d ed. 1924) ............................................7
ix
TABLE OF AUTHORITIES—Continued
Page
Johnson, Herbert A., IMPORTED EIGHTEENTHCENTURY LAW TREATISES IN AMERICAN LIBRARIES 1700-1799 (1978) ...............................................12
Johnson, Nicholas, et al., FIREARMS LAW AND THE
SECOND AMENDMENT: REGULATION, RIGHTS AND
POLICY (2d ed. 2017) ................................................20
Johnson, Nicholas, et al., FIREARMS LAW AND THE
SECOND AMENDMENT: REGULATION, RIGHTS AND
POLICY (3d ed. 2021) .......................................... 20, 25
Johnson, Samuel, 1 DICTIONARY OF THE ENGLISH
LANGUAGE (4th ed. 1773) ...........................................3
Kent, James, COMMENTARIES ON AMERICAN LAW,
vol. 2 (O.W. Holmes, Jr. ed., 12th ed. 1873) .... 8, 18, 33
Kopel, David B. & Greenlee, Joseph G.S., The
Second Amendment Rights of Young Adults,
43 S. Ill. U.L.J. 495 (2019) .......................................25
Kopel, David B., The Right to Arms in Nineteenth Century Colorado, 95 DENVER U.L. REV.
329 (2018) ................................................................17
Kopel, David B., The Self-Defense Cases: How
the Supreme Court Confronted a Hanging
Judge in the Nineteenth Century, 27 AM. J.
CRIM. L. 294 (2000) .................................................18
Latrobe, John, THE JUSTICES’ PRACTICE UNDER
THE LAWS OF MARYLAND: INCLUDING THE DUTIES OF A CONSTABLE (1826) .....................................35
Lederer, Jr., Richard, COLONIAL AMERICAN ENGLISH (1985) ...............................................................22
x
TABLE OF AUTHORITIES—Continued
Page
Letter from Albert Gallatin to Alexander Addison, Oct. 7, 1789, MS. in N.Y. Hist. Soc.—A.G.
Papers ......................................................................17
Letter from the Hon. Harrison G. Otis, Chairman of the Roxbury Committee, to the Hon.
William Heath, for Petitioning Congress
Against Permitting Merchant Vessels to Arm
(Apr. 1798) ...............................................................21
MacKenzie, Frederick, A BRITISH FUSILIER IN
REVOLUTIONARY BOSTON (Allen French ed.,
1926) ........................................................................31
Madison, James, Notes for Speech in Congress
Supporting Amendments, June 8, 1789 ..................19
Malone, Dumas, JEFFERSON AND HIS TIME: JEFFERSON THE VIRGINIAN, vol. 1 (1948) ........................29
Martin, Francois-Xavier, A COLLECTION OF THE
STATUTES OF THE PARLIAMENT OF ENGLAND IN
FORCE IN THE STATE OF NORTH-CAROLINA
(1792) .......................................................................24
McGrath, Tim, JAMES MONROE: A LIFE (2020) ...........29
Modern Reports, or, Select Cases Adjudged in the
Courts of Kings Bench, Chancery, Common
Pleas, and Exchequer: Since the Restoration of
His Majesty King Charles II, WILLIAM & MARY
LAW LIBRARY ............................................................12
Morgan, Robert, BOONE (2007) ...................................28
Niles, John, THE CONNECTICUT CIVIL OFFICER
(1823) .......................................................................35
xi
TABLE OF AUTHORITIES—Continued
Page
Parker, James, CONDUCTOR GENERALIS; OR THE
OFFICE, DUTY AND AUTHORITY OF JUSTICES OF
THE PEACE (1st ed. 1764) .........................................11
Pomeroy, John Norton, INTRODUCTION TO THE
CONSTITUTIONAL LAW OF THE UNITED STATES
(1868) .......................................................................36
Potter, Henry, THE OFFICE AND DUTY OF A JUSTICE OF THE PEACE . . . ACCORDING TO THE LAWS
OF NORTH CAROLINA (1816) ......................................35
Preface of the Commissioners of 1838, REVISED
CODE OF NORTH CAROLINA (1855) ............................24
PROVINCE AND COURT RECORDS OF MAINE, 16801692, vol. 3 (Robert Moody ed., 1947) .....................26
Rawle, William, A VIEW OF THE CONSTITUTION OF
THE UNITED STATES OF AMERICA (1825) ............. 19, 21
RECORDS AND FILES OF THE QUARTERLY COURTS OF
ESSEX COUNTY MASSACHUSETTS, 1667-1671,
vol. 4 (1914) .............................................................26
Sheridan, Thomas, A COMPLETE DICTIONARY OF
THE ENGLISH LANGUAGE (6th ed. 1796) .....................3
Story, Joseph, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833) ..........................20
THE AMERICAN STUDENTS’ BLACKSTONE (George
Chase ed., 3d ed. 1884)............................................36
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR THE YEAR
1766 (4th ed. 1785) ..................................................31
THE FEDERALIST NO. 51 .................................................1
xii
TABLE OF AUTHORITIES—Continued
Page
THE GRANTS, CONCESSIONS, AND ORIGINAL CONSTITUTIONS OF THE PROVINCE OF NEW-JERSEY
(1758) .......................................................................22
THE ORIGIN OF THE SECOND AMENDMENT (David
Young ed., 1991) ......................................................19
THE PAPERS OF THOMAS JEFFERSON, RETIREMENT
SERIES, vols. 8-10 (2004) ..........................................29
THE WORKS OF WASHINGTON IRVING, vol. 8 (1866) .......31
THE WRITINGS OF JAMES MADISON 1790-1802, vol.
6 (1906) ....................................................................19
THE WRITINGS OF THOMAS JEFFERSON, vols. 7-8
(H.A. Washington ed., 1855) ....................... 16, 17, 28
Tucker, St. George, BLACKSTONE’S COMMENTARIES,
vols. 1-5 (1803)................................................... 19, 32
Unger, Harlow Giles, LION OF LIBERTY: PATRICK
HENRY AND THE CALL TO A NEW NATION (2010) .........28
Webster, Noah, AMERICAN DICTIONARY OF THE
ENGLISH LANGUAGE, vols. 1-2 (1828) .........................3
Weld, Isaac, TRAVELS THROUGH THE STATES OF
NORTH AMERICA, vol. 1 (2d ed. 1799) .......................31
Wilbur, James, IRA ALLEN: FOUNDER OF VERMONT, 1751-1814, vol. 1 (1928) ................................30
Wilson, James, THE WORKS OF THE HONOURABLE
JAMES WILSON, vol. 3 (1804) ....................................17
WORKS OF FISHER AMES, vol. 1 (Seth Ames ed.,
1854) ........................................................................17
1
INTEREST OF THE AMICI CURIAE1
Amici law professors teach and/or write on the
Second Amendment: Randy Barnett (Georgetown),
Royce Barondes (Missouri), Nicholas Johnson (Fordham), Donald Kilmer (Lincoln), Michael O’Shea (Oklahoma City), Joseph Olson (Mitchell Hamline), Glenn
Reynolds (Tennessee), and Eugene Volokh (UCLA).
Cited by this Court in District of Columbia v. Heller
and McDonald v. Chicago, and oft-cited by lower
courts, these professors include authors of the first law
school textbook on the Second Amendment, and many
other books and law review articles on the subject. See
http://davekopel.org/Bruen/ProfessorBiographies.pdf.
Weld County, Colorado, and County Sheriff
Steve Reams want the right to bear arms of the more
than 300,000 people of the County, and all Americans,
to be protected by the “double security” of “the rights
of the people” inherent in our system of divided sovereignty. THE FEDERALIST NO. 51.
Independence Institute is a nonpartisan public
policy research organization. The Institute’s amicus
briefs in Heller and McDonald (under the name of lead
amicus Int’l Law Enforcement Educators & Trainers
Association (ILEETA)) were cited in the opinions of
Justices Breyer (Heller), Alito (McDonald), and Stevens
(McDonald).
1
All parties consented to the filing of this brief. No counsel
for any party authored the brief in any part. Only amici funded
its preparation and submission.
2
Firearms Policy Foundation (FPF) is a nonprofit organization dedicated to preserving the rights
and liberties protected by the Constitution. FPF focuses on research, education, and legal efforts to ensure that the freedoms guaranteed by the Constitution
are secured for future generations.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The Second Amendment places the right to bear
arms on equal footing with the right to keep arms. As
dictionaries from the founding era attest, to “bear
arms” includes public carriage for lawful purposes.
Americans were the first Englishmen to have a
written guarantee of arms rights. From the earliest colonial days, they carried arms to church, court, public
assemblies, travel, work in the field, and most everywhere else they pleased—starting in childhood.
After the 1689 English Bill of Rights, peaceable
carry was constitutionally protected in England and
America. Still, Americans saw the English right as
subject to abuse, so they deliberately constitutionalized a broader right.
Nineteenth-century sources and case law, including those relied on by this Court for original understanding, support the right of ordinary citizens to carry
for self-defense beyond the home.
---------------------------------♦---------------------------------
3
ARGUMENT
I.
The Second Amendment’s text protects the
right to carry arms.
A. The text places “bear” on equal footing
with “keep.”
The Second Amendment protects both the right to
keep and the right to bear arms. U.S. CONST. amend. II.
Rather than creating a hierarchy, the text protects
both rights equally. Thus, District of Columbia v. Heller
held that the Second Amendment “guarantee[s] the
individual right to possess and carry weapons in case
of confrontation.” 554 U.S. 570, 592 (2008) (emphasis
added). Just as law-abiding citizens cannot be prevented from possessing arms, they cannot be prevented
from carrying arms.
B. Contemporary dictionaries
“bear” to mean “carry.”
defined
Thomas Sheridan defined “To Bear” as “To Carry.”
Thomas Sheridan, A COMPLETE DICTIONARY OF THE
ENGLISH LANGUAGE (6th ed. 1796) (unpaginated).2 Samuel Johnson defined “Bear” as “To convey or carry.”
Samuel Johnson, 1 DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773) (unpaginated).3 The first dictionary of American English defined “Bear” as “To Carry”
and “To wear,” Noah Webster, 1 AMERICAN DICTIONARY
2
Heller relied on Sheridan to define “bear.” Id. at 584.
Heller relied on Johnson to define “arms,” 554 U.S. at 581,
“keep,” id. at 582, “bear,” id. at 584, and “well-regulated,” id. at
597.
3
4
OF THE ENGLISH LANGUAGE (1828) (unpaginated),4 and
in the definition of “pistol,” explained that “Small pistols are carried in the pocket,” 2 id. Heller defined
“bear” as to “wear, bear, or carry . . . upon the person or
in the clothing or in a pocket, for the purpose . . . of
being armed.” 554 U.S. at 584 (quotation omitted).
To carry arms in a pocket (Heller and Webster) or
“upon the person or in the clothing” (Heller) are indicia
of public activity, not confined to the home.
II.
The English Bill of Rights protected the
carrying of firearms outside the home.
In constitutional interpretation, the analytical
baseline for English history is what the Founders
thought of it. See Heller, 554 U.S. at 593 (“By the time
of the founding, the right to have arms had become
fundamental for English subjects.”). The Revolution
and the founding sought to preserve cherished English
liberties and to found a new nation on broader rights
than those of England. Justice John M. Harlan’s famous analysis of American “liberty,” including the
“right to keep and bear arms,” looked to “the balance
struck by this country, having regard to what history
teaches are the traditions from which it developed
as well as the traditions from which it broke.” Poe
v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J.,
4
Heller relied on Webster to define “arms,” id. at 581, “keep,”
id. at 582, “bear,” id. at 584, and “militia,” id. at 595.
5
dissenting). American ideals, not the decrees of tyrannical medieval kings, are the foundation of American
rights.
A. Americans and English believed that
the carrying of arms was the natural
right of self-defense.
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.” For the
first seven years, there would be no taxes on these
America-bound exports. 7 FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS 3787-88 (Francis Thorpe
ed., 1909); 3 id. at 834-35 (New England) (“Armour,
Weapons, Ordinances, Munition, Powder, Shott, Victuals, and all Manner of Cloathing, Implements . . .
all other Things necessary . . . for their Use and Defense”).
For England rather than America, the first arms
right was not written down until the 1689 Declaration
of Rights. Yet, it declared that the right to arms was
among the subjects’ “true, ancient and indubitable
rights.” 1 W. & M., Sess. 2, c. 2 (1689).
As a later Member of Parliament put it, “by the
bill of rights, the right to carry arms for self-defence
6
was not created, but declared as of old existence.” 69
HANSARD’S PARLIAMENTARY DEBATES, ser. 3, 1151 (May
30, 1843) (M.J. O’Connell).
According to Blackstone, “the right of having and
using arms for self-preservation and defence” is part of
“the natural right of resistance and self-preservation.”
1 William Blackstone, COMMENTARIES 139, 140 (1765).
Thus, Edward Christian’s founding-era edition of
Blackstone stated, “every one is at liberty to keep or
carry a gun, if he does not use it for the destruction of
game.” 2 William Blackstone, COMMENTARIES 412 n.2
(Edward Christian ed., 12th ed. 1794).
Few, if any, cases in colonial America were as wellknown as the Boston Massacre trial. The prosecution
and the defense agreed that Bostonians had the right
to carry defensive arms. The prosecution explained
that because of the Redcoats’ behavior in Boston, even
“the most peaceable” Bostonians “found it necessary
to arm themselves with heavy Walking Sticks or
Weapons of Defence when they went abroad.” 3 John
Adams, LEGAL PAPERS OF JOHN ADAMS 274 (Wroth &
Zobel eds., 1965). In the prosecution’s view, “every man
. . . had a right . . . to defend himself if attacked.” Id. at
149.
Defense counsel for the British soldiers, John Adams, agreed: “Here every private person is authorized
to arm himself, and on the strength of this authority, I
do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence,
7
that distinction is material and must be attended to.”
Id. at 248.
Blackstone had described self-defense as “the primary law of nature,” 3 COMMENTARIES, at 4, which Adams quoted as “[t]he primary cannon in the law of
nature,” 3 Adams, LEGAL PAPERS, at 244. Adams cited
William Hawkins for the rule that all people, including
British soldiers, have the right to arm themselves
against rioters. Id. at 247-48 (citing 1 William Hawkins,
A TREATISE OF THE PLEAS OF THE CROWN 71 (4th ed.
1762)).
B. Peaceable carry for self-defense was
protected under English tradition.
King James II was overthrown in 1688 in part
because he was pushing gun control to extremes. The
1689 Bill of Rights resulted from his “refusal to allow
Protestants the right to carry arms for self-defense.”
6 William Holdsworth, A HISTORY OF ENGLISH LAW 241
(3d ed. 1924). The right to arms included armed resistance to criminal tyrants. 2 J.L. de Lolme, THE RISE
AND PROGRESS OF THE ENGLISH CONSTITUTION 886
(1775) (A.J. Stephens ed., 1838).
Parliament offered the crown to William and
Mary, who accepted the Declaration, and it became
the Bill of Rights. It corrected prior violations of “the
rights of Englishmen”—which were expressly guaranteed to Americans by colonial charters. 7 Thorpe 3788
(Virginia, 1606); 3 id. at 1839 (New England, 1620);
8
1 id. at 533 (Connecticut); 2 id. at 773 (Georgia); 3 id.
at 1681 (Maryland); 3 id. at 1857 (Massachusetts Bay);
5 id. at 2747 (Carolina, later divided into North and
South); 6 id. at 3220 (Rhode Island).
According to Chancellor James Kent, “the English
nation . . . had frequently been obliged to recover
their indefeasible rights . . . and then to proclaim
them by the most solemn and positive enactments”
such as “the bill of rights.” 2 James Kent, COMMENTARIES ON AMERICAN LAW *7-8 (O.W. Holmes, Jr. ed.,
12th ed. 1873).
1. Fourteenth-Century Orders and Enactments.
Long before there was a written English right to
arms, the king tried to prevent trouble from a huge
crowd of travelers coming into London for the Feast of
St. Thomas the Apostle. A royal instruction “ordered
London hostelries to warn their guests ‘against going
armed in the City.’ ” 1 CALENDAR OF PLEA & MEMORANDA
ROLLS OF THE CITY OF LONDON, 1323-1364, at 156 (Dec.
19, 1343) (A.H. Thomas ed., 1898). The king also instructed the hostels to refuse travelers “not of good
fame” or “evildoers.” As for “suspicious characters,”
they should be reported to law enforcement. Id. To
the Ninth Circuit, the Feast of St. Thomas instructions
showed how arms carry restrictions “permeated public
life.” Young v. Hawaii, 992 F.3d 765, 789 (9th Cir. 2021)
(en banc).
9
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.
Young stated: “In 1350, Parliament specifically
banned the carrying of concealed arms.” Id. at 788. The
words Young quoted from the statute were accurate: “if
percase any Man of this Realm ride armed [covertly]
or secretly with Men of Arms against any other . . . it
shall be judged . . . Felony or Trespass.” Id. at 788-89;
25 Edw. 3, 320, st. 5, c. 2, §13 (1350).
However, a fuller quote of the statute shows that
it punished concealed carry only when perpetrating violent crime:
if percase any Man of this Realm ride armed
[covertly] or secretly with Men of Arms
against any other, to slay him, or rob him, or
take him, or retain him till he hath made Fine
or Ransom for to have his Deliverance, . . . it
shall be judged . . . Felony or Trespass.
Id. §13 (emphasis added).
2. Chune v. Piott.
The first reported case on the Statute of Northampton involved a defendant who caused a breach of
the peace that terrorized the public. The sheriff could
arrest the perpetrator even if the terrorizing acts did
not occur in the Sheriff ’s presence:
10
Without all question, the sheriffe hath power
to commit, est custos, & conservator pacis, if
contrary to the Statute of Northampton, he
sees any one to carry weapons in the high-way,
in terrorem populi Regis; he ought to take him,
and arrest him, notwithstanding he doth not
break the peace in his presence.
Chune v. Piott, 80 Eng. Rep. 1161, 1162 (K.B. 1615)
(emphasis added).
The Young opinion quoted only part of the above:
“The sheriff could arrest a person carrying arms in
public ‘notwithstanding he doth not break the peace.’ ”
992 F.3d at 790. Chune’s rule was that sheriffs can
arrest if they did not witness the breach. Young misstated the rule to say that sheriffs can arrest when
there was no breach.
3. Sir John Knight’s Case.
The famous case of Sir John Knight—prosecuted
for peaceably defensively carrying a gun when he attended church—is accurately described in the amicus
brief of the Firearms Policy Coalition and Professor
Joyce Lee Malcolm. The leading proponent of a contrary view writes:
[T]here is not a shred of historical evidence to
suggest that the Founding Fathers understood it to be the leading case on the Statute
of Northampton. In fact, the first ever citation
to Sir John Knight’s Case in any American
case, legal commentary, newspaper, or personal correspondence does not appear until
11
1843. 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.
Patrick J. Charles, Judging the Ninth Circuit’s Use of
History in Young v. Hawaii, SECOND THOUGHTS BLOG,
Apr. 16, 2021.5
Actually, William Hawkins’s TREATISE OF THE
PLEAS OF THE CROWN, discussed next, 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, and by
Justice of the Peace manuals in the Early Republic.
See Simpson v. State, 13 Tenn. 356, 358-59 (1833);
William Waller Hening, THE NEW VIRGINIA JUSTICE 1718 (1795); James Parker, CONDUCTOR GENERALIS; OR
THE OFFICE, DUTY AND AUTHORITY OF JUSTICES OF THE
PEACE 11 (1st ed. 1764).6 A survey of 21 early American
5
https://firearmslaw.duke.edu/2021/04/judging-the-ninthcircuits-use-of-history-in-young-v-hawaii/.
6
Parker’s was one of a few colonial law books written by
Americans; Hening “replaced English texts” with “homegrown
12
law libraries found Hawkins in 11; no other English
criminal law treatise was more common in America.
Owners included Thomas Jefferson, John Adams,
Francis Dana (Mass. Chief Justice, Congressman, Continental Congress delegate, signer of Articles of Confederation), Robert Treat Paine (Mass. Justice,
Declaration of Independence signer), Jasper Yeates
(Penn. Justice, delegate to Penn. ratifying convention),
and Theoplilus Parsons (Mass. Chief Justice). Herbert
Johnson, IMPORTED EIGHTEENTH-CENTURY LAW TREATISES IN AMERICAN LIBRARIES 1700-1799, at 29-30, 62
(1978).
The sensational 1686 political trial Sir John
Knight’s Case was reported by two independent reporters. One was Modern Law Reports. 3 Mod. 117 (K.B.
1686) (reported in the nineteenth century in 87 Eng.
Rep. 75). The case was separately reported as Rex v. Sir
John Knight in Comberbach 38 (1686) (90 Eng. Rep.
330). Comberbach followed up with a report a few
months later about Sir Knight having to post bond
for good behavior. Comberbach 41, 90 Eng. Rep. 331
(1686).
George Wythe, America’s first law professor,
owned the complete Modern Law Reports series, including the well-regarded volume 3, with Knight’s
Case. See Modern Reports, WILLIAM & MARY LAW
. . . republican law.” “ESTEEMED BOOKES OF LAWE” AND THE LEGAL
CULTURE OF EARLY VIRGINIA 32, 190 (Billings & Tarter eds., 2017).
13
LIBRARY.7 Wythe also owned the volume of reports by
Roger Comberbach.8
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, see Heller, 554 U.S. at 594).
“Close with Jefferson throughout his life, [Wythe] bequeathed Jefferson his book collection, which Jefferson
later sold to form the Library of Congress.” George
Wythe Collection, HEINONLINE.9 As described in Part
IV.D., the Founders who learned from Professor Wythe
acted as if they had an unquestioned right to carry firearms for personal reasons, doing so since childhood.
4. William Hawkins and William Blackstone.
According to Young, William Hawkins
recognized that the lawful public carry of
arms required some particular need. The
7
http://lawlibrary.wm.edu/wythepedia/index.php/Modern_Reports.
https://lawlibrary.wm.edu/wythepedia/index.php/Report_of_
Several_Cases_Argued_and_Adjudged_in_the_Court_of_King%
27s_Bench_at_Westminster.
9
https://home.heinonline.org/content/legal-classics-library/
#:~:text=In%201779%2C%20at%20the%20College,form%20the%
20Library%20of%20Congress.
8
14
desire for proactive self-defense was not a
good enough reason to go armed openly. “[A]
man cannot excuse the wearing [of ] such armour in public, by alleging that such a one
threatened him, and [that] he wears it for the
safety of his person from his assault.”
992 F.3d at 792 (quoting 1 William Hawkins, A TREATISE OF THE PLEAS OF THE CROWN 489 (John Curwood
ed., 1824)).
But “such armour” was a reference to “dangerous
and unusual Weapons.” 1 Hawkins, A TREATISE OF THE
PLEAS OF THE CROWN, at 488-49. Heller turned “the
historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ” into the principle that
the Second Amendment does not protect such weapons. 554 U.S. at 627. Because handguns are protected
arms, id. at 629, they are not “dangerous and unusual,” and Hawkins’s qualification does not apply to
them.
As for ordinary weapons, Hawkins explained that
“no wearing of arms is within the meaning of this
[Statute of Northampton], unless it be accompanied
with such circumstances as are apt to terrify the people.” 1 Hawkins, A TREATISE OF THE PLEAS OF THE
CROWN, at 489. Thus, “persons of quality are in no danger of offending against this statute by wearing common weapons,” nor are “persons armed with privy
[concealed] coats of mail . . . because they do nothing
in terrorem populi.” Id.
15
Dangerous and unusual weapons were terrifying
but common weapons could be carried, including in a
concealed manner.
Blackstone likewise wrote that “[t]he offence of
riding or going armed with dangerous or unusual
weapons, is a crime against the public peace, by terrifying the good people of the land, and is particularly
prohibited by the Statute of Northampton.” 4 COMMENTARIES, at 148-49. The implication is that, as
Hawkins had said, carrying common arms would not
fall under the statute. Young, however, ignored the
reference to “dangerous or unusual weapons” and read
Blackstone as “stating that the mere act of going
armed in and of itself terrified the people.” 992 F.3d at
793.
5. Post-Bill of Rights case law.
For over two centuries after the Bill of Rights, Parliament never passed a general law against peaceable
carry, and all the case law recognized the right to carry.
In King v. Smith, 2 Ir. Rep. 190, 204 (K.B. 1914), the
King’s Bench held that acting in terrorem populi was
an “essential element” of the Statute of Northampton.
Merely carrying a revolver was not inherently terrifying. See also 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”); Rex v. Dewhurst,
1 State Trials, N.S. 529, 601-02 (1820) (“A man has a
clear right to protect himself when he is going singly
16
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.”); Gun License Act, Act 33 & 34 Vict. c. 57
(1870) (10-shilling annual license from the post office
to carry a firearm; postal clerks had no discretion to
refuse a fee-paying applicant).
No historic post-1686 English or American case interprets the Statute of Northampton to bar peaceable
defensive carry.
III. The Founders deliberately constitutionalized a right to self-defense that was
broader than that of the English.
The American Founders called the English arms
right insufficient. They secured a broader and stronger
right, encompassing their own arms tradition informed by their experiences.
A. Americans inherited the natural right
of self-defense.
Thomas Jefferson wrote that after the Revolution
the Founders “appealed to those [laws] of nature,” rather than “search into musty records, to hunt up royal
parchments.” Thomas Jefferson to Major John Cartwright, June 5, 1824, in 7 THE WRITINGS OF THOMAS
JEFFERSON 356 (H.A. Washington ed., 1855). Consequently, “the constitutions of most of our states”
17
ensured that “it is their [“the people’s”] right and duty
to be at all times armed.” Id. at 357.10
James Wilson said, “the great natural law of self
preservation” that “is expressly recognized” in Pennsylvania’s constitution is the “right of the citizens to
bear arms in the defence of themselves.” 3 James Wilson, THE WORKS OF THE HONOURABLE JAMES WILSON 84
(1804). Wilson addressed using arms for “the defence
of one’s person” separate from the right to “defend his
house.” Id. at 84-85. See Heller, 554 U.S. at 585 (relying on Wilson’s interpretation of the Pennsylvania
Constitution to interpret “bear arms” in the Second
Amendment).
Other Founders identified the right to bear arms
as inalienable. See, e.g., 1 WORKS OF FISHER AMES 54
(Seth Ames ed., 1854) (Second Amendment right “of
bearing arms” was among those “declared to be inherent in the people”); Stephen Halbrook, THAT EVERY
MAN BE ARMED 259 n.169 (1984) (quoting Letter from
Albert Gallatin to Alexander Addison, Oct. 7, 1789, MS.
10
Many state constitutions expressly recognize the right of
self-defense as a natural, essential, or inalienable right. Pennsylvania (1776, 1790); Vermont (1777); Massachusetts (1780); New
Hampshire (1783, 1792, 1902); Delaware (1792, 1831, 1897); Ohio
(1802, 1851, 1912); Indiana (1816); Illinois (1818); Maine (1819);
Iowa (1820); Arkansas (1836 and 1874); Florida (1838, 1868,
1885); New Jersey (1844); California (1849); Kansas (1855); Nevada (1864); Nebraska (1875); Colorado (1876); Idaho (1889);
Montana (1889, 1972); North Dakota (1889); South Dakota
(1889); Kentucky (1890); Utah (1895); New Mexico (1911). See
David Kopel, The Right to Arms in Nineteenth Century Colorado, 95 DENVER U.L. REV. 329, 427-28 n.802 (2018).
18
in N.Y. Hist. Soc.—A.G. Papers, at 2) (“The whole of
that Bill [of Rights] . . . establishes some rights of the
individual as unalienable.”). Or as Chancellor Kent
wrote, “The right of self-defense . . . is founded on the
law of nature, and is not and cannot be superseded by
the law of society.” 2 Kent, COMMENTARIES, at *15
(Holmes ed.).
Because “the interest in self-protection is as great
outside as inside the home,” Moore v. Madigan, 702
F.3d 933, 941 (7th Cir. 2012), this Court has often recognized the right of self-defense beyond the home.
See, e.g., David Kopel, The Self-Defense Cases: How the
Supreme Court Confronted a Hanging Judge in the
Nineteenth Century, 27 AM. J. CRIM. L. 294 (2000).
B. Americans disapproved of the constricted nature of the English right and
deliberately codified a broader right.
Americans were contemptuous of what they considered to be a constricted English arms right. It is
therefore a mistake to incorporate every restriction on
the English right into the Second Amendment. See
Bridges v. California, 314 U.S. 252, 264 (1941) (“to assume that English common law in this [First Amendment] field became ours is to deny the generally
accepted historical belief that one of the objects of the
Revolution was to get rid of the English common law
on liberty of speech and of the press”) (quotation omitted); id. (“Madison . . . wrote that ‘the state of the
press . . . under the common law, cannot . . . be the
19
standard of its freedom in the United States.’ ” (quoting VI THE WRITINGS OF JAMES MADISON 1790-1802, at
387 (1906))).
When James Madison introduced the Second
Amendment in Congress, his notes show that he condemned the limited scope of the “English Decln. of Rts,”
including that it protected only “arms to Protestts”
(Protestants). James Madison, Notes for Speech in Congress Supporting Amendments, June 8, 1789, in THE
ORIGIN OF THE SECOND AMENDMENT 645 (David Young
ed., 1991).
St. George Tucker stressed that the American
right was “without any qualification as to their
condition or degree, as is the case in the British government.” 1 St. George Tucker, BLACKSTONE’S COMMENTARIES 143 n.40 (1803). He denounced statutory
infringements of the English right, using them as evidence that the English right was not as protective as
the American one. Id. at App. 300.
William Rawle, author of an 1825 “influential treatise,” Heller, 554 U.S. at 607, explained, “In most of the
countries of Europe, this right . . . is allowed more or
less sparingly.” William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 122 (1825).
In England, “it is cautiously described to be that of
bearing arms for their defence ‘suitable to their conditions, and as allowed by law,’ ” and was “disgraced by
[a]n arbitrary code for the preservation of game.” Id.
Justice Joseph Story lamented that “under various
pretences the effect of this provision [the English right]
20
has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.”
3 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES 747 (1833).11
Thomas Cooley noted that the Second Amendment
“was adopted with some modification and enlargement
from the English Bill of Rights.” Thomas Cooley, THE
GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE
UNITED STATES 270 (1880).
Regardless of what the English right to “have
arms” protected, Americans secured the right to “keep
and bear arms.”
As Representative James Jackson declared in the
First Federal Congress, “every citizen was not only entitled to carry arms, but also in duty bound to perfect
himself in the use of them.” 14 DOCUMENTARY HISTORY
OF THE FIRST FEDERAL CONGRESS 95 (1995).
11
Americans sometimes overstated the severity of the
British laws. For example, the game laws had indeed been a
pretext for attempting to disarm almost the entire population
under Charles II and James II. But after the Glorious Revolution and the English Bill of Rights, the British could carry
arms freely, so long as commoners did not go hunting. See, e.g.,
2 COMMENTARIES, at 412 n.2 (Edward Christian ed., 1794)
(“everyone is at liberty to keep or carry a gun, if he does not
use it for the destruction of game”); Nicholas Johnson, et al.,
FIREARMS LAW AND THE SECOND AMENDMENT 98-99, 133-36 (2d
ed. 2017) (pp. 114-18, 139-43 in forthcoming 3d edition, Sept.
15, 2021), http://firearmsregulation.org/ (also in online ch. 22.F.4
& H.5, publicly available shortly).
21
Describing limitations on “the right to bear arms,”
Rawle stated that the right “ought not . . . be abused
to the disturbance of the public peace,” and “even the
carrying of arms abroad by an individual, attended
with circumstances giving just reason to fear that he
purposes to make an unlawful use of them, would be
sufficient cause to require a surety of the peace.”
Rawle, VIEW OF THE CONSTITUTION, at 123 (emphasis
added). If peaceable carry was not protected, Rawle’s
exception would make no sense.
IV. Publicly carrying arms was common in
early American history.
A. The right of law-abiding citizens to
carry arms in public was largely unrestricted throughout the colonial and
founding eras.
“The law of Nature and of Nations authorize the
right of carrying arms for self defence, by sea as well
as by land,” declared Rep. Harrison Gray Otis in 1798,
“and no law of the United States has ever prohibited
to our citizens the exercise of this right.” Letter from
the Hon. Harrison G. Otis . . . for Petitioning Congress,
Against Permitting Merchant Vessels to Arm 11 (Apr.
1798).
The Young court thought that “[t]he colonists
shared the English concern that the mere presence of
firearms in the public square presented a danger to
the community.” 992 F.3d at 794. But the right to carry
arms was never prohibited in any colony or state
22
during the colonial or founding eras, and was only
rarely restricted. Massachusetts and New Hampshire
had laws against aggressive carry. Virginia in the late
seventeenth century acknowledged the right to carry
but forbade armed assemblies. Around the same time,
the short-lived colony of East Jersey briefly restricted
concealed carry.
East Jersey, a separate colony from 1674 to 1702,
outlawed in 1686 the concealed carry of “any Pocket
Pistol, Skeines [Irish-Scottish dagger], Stilladoes, Daggers or Dirks, or other unusual or unlawful Weapons.”
The statute also forbade any “Planter” (frontiersman)
to “Ride or go Armed with Sword, Pistol, or Dagger,”
except when in government service. The statute excepted “Strangers, Travelling upon their lawful Occasions through this Province, behaving themselves
peaceably.” 23 THE GRANTS, CONCESSIONS, AND ORIGINAL CONSTITUTIONS OF THE PROVINCE OF NEW-JERSEY
289-90 (1758); Richard Lederer, Jr., COLONIAL AMERICAN ENGLISH 175 (1985) (defining “planter” as “One of
those who settled new and uncultivated territory”).
Thus, the most severe—by far—pre-Second Amendment
restriction allowed all colonists to carry long guns in
any manner, openly or concealed. Further, all colonists except frontiersmen could carry pistols openly.
Massachusetts in 1692 punished “such as shall
Ride, or go Armed Offensively before any of Their Majesties Justices, or other Their Officers or Ministers doing their Office, or elsewhere, by Night or by Day, in
Fear or Affray of Their Majesties Liege People.” 1692
Mass. Laws No. 6, at 11-12 (emphasis added). In 1699,
23
New Hampshire instructed justices of the peace to
arrest “affrayers, rioters, disturbers or breakers of
the peace, or any other who shall go armed offensively. . . .” 1699 N.H. Laws 1 (emphasis added). Reflecting the American understanding of the English
right, these laws applied to only those who went armed
offensively—those who created fear, such as affrayers
or rioters. They did not limit defensive carry.
After the suppression of Bacon’s Rebellion in 1676,
a Virginia statute declared:
[W]hereas by a branch of an act of assembly
under Bacon made in March last, liberty is
granted to all persons to carry their arms
wheresoever they go, which liberty hath been
found to be very prejudicial to the peace and
welfare of this colony. Be it therefore enacted
. . . that if any person or persons shall . . . presume to assemble together in arms to the
number of five or upwards without being legally called together in arms the number of
five or upwards, they be held deemed and adjudged as riotous and mutinous. . . .
An Act for the Releife of Such Loyal Persons as have
Suffered Losse by the Late Rebells, 2 Stat. (Va.) 386
(1676-1677). Thus, individuals or small groups had the
unfettered right to carry.
The totality of restrictions throughout the roughly
two centuries that constitute the colonial and founding
eras in America consisted of four carry restrictions,
none of which were prohibitions. In most colonies and
states, public carry was unrestricted throughout that
entire period.
24
B. The Statute of Northampton did not
forbid peaceable carry in America.
As evidence of the Statute of Northampton’s influence in America, Young 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 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). It 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,
25
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.
C. Arms carrying was so important to public safety that it was often required.
Every colony and state required militiamen (typically, males aged 16 to 60) regularly to carry arms in
public to attend musters. See David Kopel & Joseph
Greenlee, The Second Amendment Rights of Young
Adults, 43 S. Ill. U.L.J. 495 (2019) (describing all colonial and founding era militia statutes).
Additionally, “[m]any colonial statutes required
individual arms-bearing for public-safety reasons.”
Heller, 554 U.S. at 601. Colonies required arms carrying to church,12 court,13 public assemblies,14 travel,15
and work in the field.16
Because firing firearms in the air—which necessarily occurred outside the home—served as the
12
Virginia (1619, 1632, 1643, 1665, 1676, 1738); Plymouth
(1641, 1656, 1658, 1675); Maryland (1642); Connecticut (1644);
New Haven (1644); South Carolina (1740); Georgia (1770). See
Johnson, FIREARMS LAW, at 189-91 (3d ed. 2021).
13
Virginia (1676). Id. at 189.
14
Massachusetts (1637, 1643); Rhode Island (1639, 1643). Id.
at 190.
15
Virginia (1623, 1632); Massachusetts (1631, 1636); Rhode
Island (1639); Maryland (1642). Id. at 189-91.
16
Virginia (1624, 1632). Id. at 189.
26
alarm for Indian attacks, Maryland made it illegal to
“discharge 3 Gunnns within the Space of 1/4 hour,” 3
ARCHIVES OF MARYLAND 103 (William Hand Browne
ed., 1885), and Virginia forbade people to “shoot any
gunns at drinkeing (marriages and ffuneralls onely excepted),” 1 Hening, THE STATUTES AT LARGE: BEING A
COLLECTION OF ALL THE LAWS OF VIRGINIA 401-02 (1823).
If arms were prohibited in public, these laws would
make no sense.
Young’s takeaway from 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. Put differently, because colonies could require arms carrying,
colonies could ban arms carrying. Yet colonies also required church attendance. See 2 Hening, at 48 (1662
Virginia; everyone with “noe lawfull excuse” shall “diligently resort to their parish church and chappell”
every Sunday); 4 RECORDS AND FILES OF THE QUARTERLY
COURTS OF ESSEX COUNTY MASSACHUSETTS, 1667-1671,
at 89-90 (1914) (fining two people “for frequent absenting themselves from the public worship of God on
the Lord’s days”); 3 PROVINCE AND COURT RECORDS OF
MAINE, 1680-1692, at 93 (Robert Moody ed., 1947) (at
the time, part of Massachusetts; fining someone
“for not frequenting the publique worship of God”).
That colonies sometimes required church attendance
does not mean that colonial governments or the people ever thought that colonies could forbid church attendance.
27
D. The Founders voluntarily carried arms
in their everyday lives.
It is not true that when carry was permitted,
“those laws 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,” or that
“the public carrying of arms was always subject to conditions prescribed by the legislature.” Young, 992 F.3d
at 796.
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.
28
1. John Adams
John Adams, as a 9-or-10-year-old schoolboy, carried a gun daily so that he could go hunting after class.
3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 257-59
(1961).
2. Patrick Henry
Patrick Henry would “walk to court, his musket
slung over his shoulder to pick off small game.” Harlow
Giles Unger, LION OF LIBERTY: PATRICK HENRY AND THE
CALL TO A NEW NATION 30 (2010).
3. Daniel Boone
“When Daniel was almost thirteen he was given
his first firearm, a ‘short rifle gun, with which he
roamed the nearby Flying Hills, the Oley Hills, and the
Neversink Mountains.’ ” Robert Morgan, BOONE 14
(2007).
4. Meriwether Lewis
Meriwether Lewis’s neighbor Thomas Jefferson
observed that young Lewis “when only eight years of
age . . . habitually went out, in the dead of night, alone
with his dogs, into the forest to hunt the raccoon &
opossum.” 8 WRITINGS OF THOMAS JEFFERSON, at 482.
29
5. Thomas Jefferson
Thomas Jefferson himself carried as a lad. “When
he was ten he was given a gun by his father and sent
into the forest alone in order to develop self-reliance.”
1 Dumas Malone, JEFFERSON AND HIS TIME: JEFFERSON
THE VIRGINIAN 46 (1948).
As an adult, Jefferson wrote about a holster he
made for one of his Turkish pistols, “having used it
daily while I had a horse who would stand fire,” and he
noted another holster he made “to hang them [the
Turkish pistols] at the side of my carriage for road use.”
10 THE PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 320-21 (2004). Jefferson advised his fifteen-yearold nephew to “[l]et your gun therefore be the constant
companion of your walks.” 8 THE PAPERS OF THOMAS
JEFFERSON 407 (2004).
6. James Monroe
Every day, “[w]ell before dawn, James left for
school, carrying his books under one arm with his powder horn under the other and his musket slung across
his back.” Tim McGrath, JAMES MONROE: A LIFE 9
(2020).
7. Ira and Ethan Allen
Ira and Ethan Allen regularly carried multiple
arms at once. For example, in 1772 Ira, Ethan, and a
cousin went to purchase land near New York’s border
“armed with holsters and pistols, a good case [pair]
30
of pistols each in our pockets, with each a good hanger
[sword].” 1 James Wilbur, IRA ALLEN: FOUNDER OF VERMONT, 1751-1814, at 39 (1928). The next year, during
land disputes between the Allen trio and the Royal
Governor of New York, Ira wrote that the three men
“never walked out without at least a case of pistols.” Id.
at 44.
8. Joseph Warren
Joseph Warren was targeted by the British as tensions rose in April 1775. After spotting the British
watch, one of Warren’s friends “advised Warren not to
visit his patients that evening. But Warren, putting
his pistols in his pocket, replied, ‘I have a visit to make
to Mrs. ___, in Cornhill, this evening, and I will go at
once.’ ” Richard Frothingham, LIFE AND TIMES OF JOSEPH WARREN 452 (1865).
9. William Drayton
When traveling throughout South Carolina in
1775 to promote the Patriot cause, “Drayton always
had about his person, a dirk and a pair of pocket pistols; for the defence of his life.” 3 AMERICAN ARCHIVES,
4th ser., at 258 (Peter Force ed., 1840).
10. General Population
Recalling the Boston Massacre, British Captain
Thomas Preston—commander of the Redcoats stationed in Boston—noted the admonition of a trial
31
judge prior to the incident: “that the inhabitants carried weapons concealed under their clothes, and would
destroy them [Redcoats] in a moment, if they pleased.”
THE ANNUAL REGISTER, OR A VIEW OF THE HISTORY, POLITICS, AND LITERATURE, FOR THE YEAR 1766, at 215 (4th
ed. 1785).
On the annual commemoration of the Massacre
in 1772, Bostonians attended Dr. Joseph Warren’s
stirring oration. Expecting the speech to upset the
Redcoats in attendance, “almost every man [in the audience] had a short stick, or bludgeon, in his hand; and
. . . many of them were privately armed.” Frederick
MacKenzie, A BRITISH FUSILIER IN REVOLUTIONARY BOSTON 37 (Allen French ed., 1926).
Writings from early American history mention
people carrying firearms as part of everyday life. See,
e.g., 1 Isaac Weld, TRAVELS THROUGH THE STATES OF
NORTH AMERICA 233-34 (2d ed. 1799) (1796, on the roads
from Kentucky/Tennessee to and from Philadelphia/
Baltimore, “the people all travel on horseback, with
pistols and swords.”); 8 THE WORKS OF WASHINGTON IRVING 83 (1866) (In 1808 St. Louis, “[n]ow and then a
stark Kentucky hunter . . . with rifle on shoulder and
knife in belt, strode along.”).
Analyzing Matthew Hale’s 1736 English treatise,
The History of the Pleas of the Crown, St. George
Tucker contrasted the English law of treason with
American law. In England, said Hale, an assembly of
armed men created a rebuttable presumption of treason. But there was no “such presumption in America,
32
where the right to bear arms is recognized and secured
in the constitution itself. In many parts of the United
States, a man no more thinks, of going out of his house
on any occasion, without his rifle or musket in his
hand, than an European fine gentleman without his
sword by his side.” 5 Tucker, COMMENTARIES, at 19.17
Apparently the old Virginia statute about armed assemblies, enacted in 1676 after Bacon’s Rebellion, was
long obsolete.
V.
Nineteenth Century case law supports a
right to carry arms beyond the home.
The first states to restrict law-abiding citizens’
ability to bear arms were Kentucky and Louisiana,
which each banned concealed carry in 1813. 2 A DIGEST
OF THE STATUTE LAWS OF KENTUCKY 1289-90 (A.G.
Hodges ed., 1834); State v. Chandler, 5 La. Ann. 489,
489 (1850).
Throughout the nineteenth century, other states
enacted similar restrictions. Far from reaching a
17
According to one commentator, “Tucker’s often quoted observation” was “written in response to the prosecution of Fries’s
Rebellion in Pennsylvania.” Supposedly, “Tucker was commenting on a federal case,” and disagreeing with jury instructions that
Chief Justice Chase had given in a Fries’s Rebellion trial, while
riding circuit. Saul Cornell, The Right To Keep And Carry Arms
In Anglo-American Law: Preserving Liberty And Keeping The
Peace, 80 L. & CONTEMP. PROBS. 11, 39 (2017).
This is not true. As Tucker cited the Chief Justice’s jury instructions, they said nothing about arms. They involved whether
private violence, such as “pulling down . . . bawdy houses was
held to be treason.”
33
consensus, courts differed on these laws. As Chancellor
Kent noted, “it has been a subject of grave discussion,
in some of the state courts, whether a statute prohibiting persons . . . from wearing or carrying concealed
weapons, be constitutional. There has been a great difference of opinion on the question.” 2 Kent, COMMENTARIES, at *340 n.2 (Holmes ed.). The Supreme Court of
Georgia exclaimed, “ ‘tot homines, quot sententiæ.’—so
many men, so many opinions!” Nunn v. State, 1 Ga.
243, 248 (1846).
Approvingly citing five cases interpreting the
right to bear arms, Heller demonstrated which opinions should guide a Second Amendment analysis. Each
held that law-abiding citizens have a right to carry outside the home.
Kentucky’s 1813 concealed carry ban was ruled
unconstitutional in Bliss v. Commonwealth—the case
decided closest to the founding—where the highest
court of Kentucky held that a prohibition on either
concealed or open carry violates the right to bear arms.
12 Ky. 90 (1822); see Heller, 554 U.S. at 585 & n.9. “[I]n
principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding
the wearing such as are exposed; and if the former be
unconstitutional, the latter must be so likewise.” Bliss,
12 Ky. at 92.
The Alabama Supreme Court upheld a concealed
carry ban in State v. Reid in 1840, declaring that the
legislature had “the right to enact laws in regard to the
manner in which arms shall be borne . . . as may be
34
dictated by the safety of the people and the advancement of public morals.” 1 Ala. 612, 616 (1840); see
Heller, 554 U.S. at 585 & n.9, 629. The court held that
bearing arms in general could not be forbidden:
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.
Reid, 1 Ala. at 616-17.
A few years later, in Nunn—which Heller praised
as having “perfectly captured the way in which the operative clause of the Second Amendment furthers the
purpose announced in the prefatory clause, in continuity with the English right,” 554 U.S. at 612—the Georgia Supreme Court followed Reid’s reasoning in
upholding a prohibition on concealed carry while striking a restriction on open carry. The concealed carry
ban “is valid, inasmuch as it does not deprive the
citizen of his natural right of self-defence.” Nunn, 1
Ga. at 251; accord Stockdale v. State, 32 Ga. 225, 227
(1861) (To prohibit both concealed and open carry
“would be to prohibit the bearing of those arms altogether, and to bring the Act within the decision in
Nunn’s case.”).
35
Similarly, the Tennessee Supreme Court held in
Andrews v. State that a general carry “prohibition is
too broad,” but “[i]f the Legislature think proper, they
may by a proper law regulate the carrying of this
weapon publicly, or abroad, in such a manner as may
be deemed most conducive to the public peace.” 50
Tenn. 165, 187-88 (1871); see Heller, 554 U.S. at 608,
614, 629.
Of the cases relied on by Heller, only State v. Chandler indicated that concealed carry was not protected
by the right to bear arms, declaring that open carry “is
the right guaranteed by the Constitution of the United
States.” 5 La. Ann. 489, 490 (1850); see Heller, 554 U.S.
at 585 & n.9, 613, 626. Yet even Chandler was later interpreted by the Louisiana Supreme Court as “prohibiting only a particular mode of bearing arms which is
found dangerous to the peace of society.” State v. Jumel,
13 La. Ann. 399, 400 (1858) (emphasis in original). Like
the other cases, Chandler stands for the proposition
that carry by lawful citizens cannot be prohibited.
The right to bear arms being universally recognized, 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).
36
The nineteenth-century treatises Heller cited also
recognize the right of ordinary citizens to carry arms
in public. See THE AMERICAN STUDENTS’ BLACKSTONE 84,
n.11 (George Chase ed., 3d ed. 1884); John Pomeroy,
INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE
UNITED STATES 152-53 (1868); Benjamin Abbott, JUDGE
AND JURY: A POPULAR EXPLANATION OF LEADING TOPICS
IN THE LAW OF THE LAND 333, 337 (1868).
---------------------------------♦---------------------------------
CONCLUSION
The Second Amendment’s text protects the right
to carry arms. History and tradition confirm this
meaning. New York’s statutes violate the right, and
should be held unconstitutional.
The decision below should be reversed.
Respectfully submitted,
JOSEPH G.S. GREENLEE
FIREARMS POLICY FOUNDATION
5550 Painted Mirage Rd.
Ste. 320
Las Vegas, NV 89149
(970) 485-3303
josephgreenlee@gmail.com
Counsel of Record
37
DAVID B. KOPEL
INDEPENDENCE INSTITUTE
727 E. 16th Ave.
Denver, CO 80203
GEORGE A. MOCSARY
UNIVERSITY OF WYOMING
COLLEGE OF LAW
1000 E. University Ave.
Laramie, WY 82071
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.