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 20, 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 SECOND AMENDMENT
FOUNDATION, BUCKEYE FIREARMS FOUNDATION,
CONNECTICUT CITIZENS DEFENSE LEAGUE, FLORIDA CARRY, GRASS ROOTS NORTH CAROLINA,
ILLINOIS STATE RIFLE ASS’N, LOUISIANA SHOOTING ASS’N, MARYLAND SHALL ISSUE, MINNESOTA
GUN OWNERS CAUCUS, NEW JERSEY SECOND
AMENDMENT SOCIETY, SPORTSMEN’S ASS’N FOR
FIREARMS EDUCATION, TENNESSEE FIREARMS
ASS’N, AND VIRGINIA CITIZENS DEFENSE LEAGUE
IN SUPPORT OF PETITIONERS AND REVERSAL
_________________________________________________________
DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
COOPER & KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com
July 20, 2021
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICI CURIAE ................................ 1
INTRODUCTION AND SUMMARY OF ARGUMENT .......................................................................... 2
ARGUMENT ............................................................... 5
I.
The right to carry firearms was widely
enjoyed and protected in Founding-Era
America. .............................................................. 5
II.
The tradition of freely allowing public
carriage of firearms continued into the
nineteenth century. .......................................... 20
CONCLUSION .......................................................... 34
ii
TABLE OF AUTHORITIES
Page
CASES
Andrews v. State,
50 Tenn. 165 (1871) ......................................... 28, 30
Atwater v. City of Lago Vista,
532 U.S. 318 (2001).................................................. 8
Aymette v. State,
21 Tenn. 154 (1840) ......................................... 27, 30
Barron v. Baltimore,
7 Pet. (32 U.S.) 243 (1833) ..................................... 32
Bliss v. Commonwealth,
12 Ky. (2 Litt.) 90 (1822) ................................. 26, 31
Cockrum v. State,
24 Tex. 394 (1859).................................................. 27
Commonwealth v. Murphy,
166 Mass. 171 (1896) ............................................. 33
District of Columbia v. Heller,
554 U.S. 570 (2008)...................................... 2, 10, 31
English v. State,
35 Tex. 473 (1871).................................................. 29
Fife v. State,
31 Ark. 455 (1876) ................................................. 29
Gamble v. United States,
587 U.S. ___, 139 S. Ct. 1960 (2019) ..................... 20
iii
Haile v. State,
38 Ark. 564 (1882) ................................................. 29
Hill v. State,
53 Ga. 472 (1874) ................................................... 29
Nunn v. State,
1 Ga. 243 (1846) ..................................................... 28
Ramos v. Louisiana,
590 U.S. ___, 140 S. Ct. 1390 (2020) ....................... 5
Rex v. Knight,
90 Eng. Rep. 330 (K.B. 1686) .................................. 8
Simpson v. State,
13 Tenn. 356 (1833) ............................................... 11
Sir John Knight’s Case,
87 Eng. Rep. 75 (K.B. 1686) ................................ 7, 8
State v. Buzzard,
4 Ark. 18 (1842) ..................................................... 29
State v. Chandler,
5 La. Ann. 489 (1850) ............................................ 27
State v. Duke,
42 Tex. 455 (1875)...................................... 30, 31, 32
State v. Huntly,
25 N.C. (3 Ired.) 418 (1843) ............................. 11, 12
State v. Jumel,
13 La. Ann. 399 (1858) .......................................... 27
State v. Mitchell,
3 Blackf. 229 (Ind. 1833) ....................................... 27
iv
State v. Reid,
1 Ala. 612 (1840) ................................................ 4, 27
State v. Speller,
86 N.C. 697 (1882) ................................................. 27
State v. Wilforth,
74 Mo. 528 (1881)................................................... 27
Stockdale v. State,
32 Ga. 225 (1861) ................................................... 28
Walburn v. Territory,
59 P. 972 (Okla. 1899) ..................................... 30, 31
Walls v. State,
7 Blackf. 572 (Ind. 1845) ....................................... 27
Wilson v. State,
33 Ark. 557 (1878) ................................................. 29
Wrenn v. District of Columbia,
864 F.3d 650 (D.C. Cir. 2017) .......................... 25, 30
Young v. Hawaii,
992 F.3d 765 (9th Cir. 2021) ............... 21, 22, 30, 32
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. CONST. amend. II ................................................ 2
1839 Ala. Acts 67, § 1 ............................................... 26
1837 Ark. Rev. Stat. 280 .......................................... 26
1
PUBLIC RECORDS OF THE COLONY OF
CONNECTICUT 95 (1850) ......................................... 19
v
An Act For the Trial Of Negroes, ch. 43, § 6,
1797 Del. Laws 104 ............................................... 20
1855 D.C. Code 570, ch. 141, § 16 ............................ 24
Act of Nov. 4, 1857, ch. 5, in GENERAL LAWS OF
THE CORPORATION OF THE CITY OF WASHINGTON
75 (Robert A. Waters ed., 1860) ............................... 28
Act of Nov. 18, 1858, in GENERAL LAWS OF THE
CORPORATION OF THE CITY OF WASHINGTON
114 (Robert A. Waters ed., 1860) .......................... 28
1839 Fla. Acts 423 .................................................... 26
1770 Ga. Laws 137, § 1 ............................................ 19
1819 Ind. Acts 39 ...................................................... 26
1813 Ky. Acts 100, ch. 89, § 1 .................................. 26
1813 La. Acts 172, § 1 .............................................. 26
1821 Me. Laws 285, ch. 76, § 1 ............................ 9, 23
1841 Me. Laws 707, ch. 169, § 16 ............................ 21
1642 Md. Laws 103 .................................................. 19
1715 Md. Laws 117 .................................................. 20
1636 Mass. Laws 190 § 322...................................... 19
1694 Mass. Laws 12, no. 6 ..................................... 7, 9
1795 Mass. Laws 436, ch 2................................... 7, 23
1836 Mass. Laws 748, ch. 134, § 16 ................... 21, 23
1836 Mass. Laws 749-50, §§ 4, 9, 16 ........................ 22
1836 Mass. Laws 750, § 16....................................... 22
vi
1846 Mich. Laws 690, ch. 162, § 16 ................... 21, 32
1887 Mich. Pub. Acts 144, § 1 .................................. 32
1851 Minn. Laws 526, ch. 112, § 18 ......................... 21
1699 N.H. Laws 1 ................................................... 7, 9
1686 N.J. 289, ch. 9 .................................................... 6
1641 Laws of the Colony of New Plymouth 69 ........ 19
1859 Ohio Laws 56, § 1 ............................................ 26
1853 Or. Laws 220, ch. 16, § 17 ......................... 21, 32
1885 Or. Laws 33, § 1 ............................................... 32
1861 Pa. Laws 248, § 6 ............................................. 21
1639 R.I. Laws 93 ..................................................... 19
1740 S.C. Laws 417 .................................................. 19
1801 Tenn. Laws 710, § 6........................................... 9
1821 Tenn. Pub. Acts 15, ch. 13 ............................... 28
1869-1870 Tenn. Pub. Acts, ch. 13, § 1 .................... 28
1624 Va. Laws 121, §§ 24 & 25 ................................ 19
1631 Va. Laws 174, No. 51 ....................................... 19
2 Va. Stat. 381 .......................................................... 19
1786 Va. Laws 33, ch. 21 ...................................... 9, 23
1838 Va. Acts 76, ch. 101, § 1 ............................ 26, 32
1847 Va. Laws 127, ch. 14, § 15 ......................... 21, 23
1847 Va. Laws 127, ch. 14, § 16 ......................... 21, 32
1870 W. Va. Code 692, ch. 148, § 7 .......................... 32
vii
1870 W. Va. Code 702, ch. 153, § 8 .......................... 32
1838 Wis. Laws 378, § 16 ................................... 21, 32
1872 Wis. Laws 17, ch. 7, § 1 ................................... 32
2 Edw. 3, 258, c. 3 (1328) ........................................... 7
OTHER AUTHORITIES
John Adams, Argument for the Defense: 3-4
December 1770, NAT’L ARCHIVES FOUNDERS
ONLINE, https://bit.ly/35FCuRh ............................ 14
3 DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS
(L.H. Butterfield ed., 1961) ................................... 14
John Adams, To the Inhabitants of the Colony
of Massachusetts-Bay, NAT’L ARCHIVES
FOUNDERS ONLINE (Feb. 6, 1775), https://
bit.ly/2SwaXi4 ........................................................ 17
John Quincy Adams, October 6th, 1785, NAT’L
ARCHIVES FOUNDERS ONLINE, HTTPS://BIT.LY
/3KMMTIT ................................................................ 14
John Quincy Adams, August 29th, 1787, NAT’L
ARCHIVES FOUNDERS ONLINE, https://bit.ly
/3reIdaq .................................................................. 14
BERNARD BAILYN, THE BARBAROUS YEARS
(2012)...................................................................... 16
JOHN W. BARBER & HENRY HOWE, HISTORICAL
COLLECTIONS OF NEW JERSEY (1868)............... 17, 18
12 THEODORE BARLOW, THE JUSTICE OF PEACE
(1745)........................................................................ 8
viii
2 JOEL PRENTISS BISHOP, COMMENTARIES ON
THE CRIMINAL LAW (4th ed. 1868) ......................... 29
1 BLACKSTONE COMMENTARIES (St. George
Tucker ed., 1803) ................................................... 10
4 BLACKSTONE COMMENTARIES ............................ 8, 22
City Intelligence, BOSTON COURIER, Mar. 4,
1853 .................................................................. 24, 25
Boston Daily Advertiser, July 13, 1895 ................... 24
PERCY A. BRIDGHAM, ONE THOUSAND LEGAL
QUESTIONS ANSWERED BY THE “PEOPLE’S LAWYER” OF THE BOSTON DAILY GLOBE (1891) ............. 23
Patrick J. Charles, The Faces of the Second
Amendment Outside the Home, 60 CLEV. ST.
L. REV. 1 (2012) .................................................. 7, 19
THOMAS M. COOLEY, THE GENERAL PRINCIPLES
OF CONSTITUTIONAL LAW IN THE UNITED
STATES OF AMERICA (1870) .................................... 29
Saul Cornell, The Right to Keep and Carry
Arms in Anglo-American Law, 80 LAW & CONTEMP. PROBS. (2017) ................................... 12, 33, 34
WILLIAM M. DARLINGTON, CHRISTOPHER GIST’S
JOURNALS (1893) .................................................... 12
JOHN A. DUNLAP, THE NEW YORK JUSTICE
(1815)........................................................................ 9
Carrying Concealed Weapons, EVENING STAR,
Nov. 26, 1856 ......................................................... 24
ix
Concealed Weapons, EVENING STAR, Nov. 11,
1858 ........................................................................ 29
EVENING STAR, Dec. 5, 1887 ..................................... 24
NOAH FELDMAN, THE THREE LIVES OF JAMES
MADISON (2017)................................................ 16, 17
1 HUGH D. GRAHAM & TED R. GURR, VIOLENCE
IN AMERICA (1969) .................................................. 15
2 VIOLENCE IN AMERICA (Ted R. Gurr ed.,
1989) ....................................................................... 18
STEPHEN P. HALBROOK, THE RIGHT TO BEAR
ARMS (2021) .............................................. 5, 6, 9, 19,
20, 21, 25
ALLAN MCLANE HAMILTON, THE INTIMATE LIFE
OF ALEXANDER HAMILTON (1910) ........................... 13
2 WILLIAM HAWKINS, TREATISE OF THE PLEAS OF
THE CROWN (1795) .............................................. 8, 12
PAUL L. HAWORTH, GEORGE WASHINGTON:
FARMER (1915) ....................................................... 12
JOHN HAYWOOD, THE DUTY AND OFFICE OF JUSTICES OF THE PEACE, AND OF SHERIFFS, CORONERS, CONSTABLES (1800) ................................ 11, 12
WALTER ISAACSON, BENJAMIN FRANKLIN
(2004)................................................................ 14, 15
1 THE WRITINGS OF THOMAS JEFFERSON (letter
of Aug. 19, 1785) (H. A. Washington ed.,
1884) ....................................................................... 13
x
Thomas Jefferson, Letter to John Cartwright,
June 5, 1824, NAT’L ARCHIVES FOUNDERS
ONLINE, https://bit.ly/2TedtKb .............................. 13
2 J. KENT, COMMENTARIES ON AMERICAN LAW
(O. Holmes ed., 1873) ............................................ 33
1 THE PAPERS OF JAMES MADISON (William T.
Hutchinson & William M.E. Rachal eds.,
1962) ....................................................................... 13
Jack D. Marietta & G.S. Rowe, Violent Crime,
Victims, and Society in Pennsylvania,
1682-1800, 66 EXPLORATIONS IN EARLY AM.
CULTURE 24 (1999) ................................................ 18
THE REVOLUTIONARY WAR: A CONCISE MILITARY
HISTORY OF AMERICA’S WAR FOR INDEPENDENCE (Maurice Matloff ed.,1980) ........................... 16
TIM MCGRATH, JAMES MONROE (2020)..................... 15
5 THE PAPERS OF JAMES MONROE (Daniel Preston ed., 2014).......................................................... 15
Firearms, MONTICELLO, https://bit.ly/3hJJsvb ........ 13
JOHN ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STATES (1891).......................... 29
Michael P. O’Shea, Modeling the Second
Amendment Right to Carry Arms (I): Judicial
Tradition and the Scope of “Bearing Arms” for
Self-Defense, 61 AM. U. L. REV. 585 (2012) ........... 31
WILLIAM RAWLE, A VIEW OF THE CONSTITUTION
OF THE UNITED STATES OF AMERICA (1825) ........... 10
xi
RANDOLPH ROTH, AMERICAN HOMICIDE (2009) ........ 18
Eric M. Ruben & Saul Cornell, Firearm
Regionalism and Public Carry, 125 YALE L.J.
FORUM 121 (2015) .................................................. 33
Eugene Volokh, Implementing the Right to Keep
and Bear Arms for Self-Defense, 56 U.C.L.A.
LAW. REV. 1443 (2009) ........................................... 26
SAMUEL WALKER & CHARLES M. KATZ, THE POLICE IN AMERICA (2012) .................................... 17, 25
GEORGE WEBB, THE OFFICE & AUTHORITY OF A
JUSTICE OF PEACE (1736) ......................................... 9
3 JAMES WILSON, THE WORKS OF THE HONOURABLE JAMES WILSON (1804) ...................................... 11
PAUL M. ZALL, WASHINGTON ON WASHINGTON
(2003) ..................................................................... 12
1
INTEREST OF AMICI CURIAE1
The Second Amendment Foundation, Inc.,
(“SAF”) is a non-profit membership organization with
over 700,000 members and supporters, in every State
of the Union. Its purposes include education, research,
publishing, and legal action focusing on the Constitutional right to keep and bear arms. SAF has an intense interest in this case because it has many members residing in States like New York that enforce
“proper-cause”-type licensing regimes that effectively
ban them from carrying firearms for self-defense outside the home.
SAF is joined in this brief by Buckeye Firearms
Foundation, Connecticut Citizens Defense League,
Florida Carry, Grass Roots North Carolina, Illinois
State Rifle Association, Louisiana Shooting Association, Maryland Shall Issue, Minnesota Gun Owners
Caucus, New Jersey Second Amendment Society,
Sportsmen’s Association for Firearms Education, Tennessee Firearms Association, and Virginia Citizens
Defense League. Each of these non-profit associations,
like SAF, is organized for the purpose of defending the
1 Pursuant to SUP. CT. R. 37.3(a), amici certify that all par-
ties have consented to the filing of this brief. Pursuant to SUP.
CT. R. 37.6, amici certify that no counsel for any party authored
this brief in whole or in part, no party or party’s counsel made a
monetary contribution to fund its preparation or submission, and
no person other than amici or their counsel made such a monetary contribution.
2
constitutional right to keep and bear arms, and each
is also deeply interested in the outcome of this case.
INTRODUCTION AND
SUMMARY OF ARGUMENT
In District of Columbia v. Heller, this Court held
that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” and that the test for determining whether
a governmental restriction falls afoul of that right is
to measure the restriction against the Second Amendment’s text as understood by “ordinary citizens in the
founding generation,” as well as Founding-Era history
bearing on “the public understanding” of the “pre-existing right” the Amendment was adopted to protect.
554 U.S. 570, 577, 592, 605 (2008) (emphases omitted). The plain text of the Second Amendment addresses with perfect clarity the question whether the
government may effectively ban ordinary, law-abiding
adults from carrying firearms outside the home, by
protecting the right to “bear” arms in addition to the
right to “keep” them. U.S. CONST. amend. II. And
American history answers this question just as unequivocally as the text itself.
From Independence through the end of the Civil
War, no State imposed a broad ban prohibiting the
carrying of firearms in any manner—with the exception of two nineteenth-century laws in Georgia and
Tennessee that were partially struck down as inconsistent with the right to bear arms. By the time of the
Second Amendment’s ratification, ten States do not
3
appear to have enacted statutory restrictions on the
public carrying of firearms by law-abiding citizens at
all—and the remaining three merely imposed Americanized versions of the English Statute of Northampton, which (as in England) were understood to restrict
only the carrying of firearms for a malicious purpose
or in a particularly terrorizing manner. While some
have attempted to read these statutes as a general
ban on carrying firearms in public, the text of these
statutes and the historical record conclusively refute
that revisionist interpretation. Indeed, the many
Founders—including the first six Presidents—who
routinely carried arms outside the home would surely
have been surprised to learn that doing so made them
all habitual criminals.
Throughout the eighteenth and nineteenth centuries, Americans continued to routinely carry arms
for lawful purposes. Beginning in 1836, a number of
States began enacting laws requiring some individuals to post a bond or “surety” before carrying arms—
but these applied only upon a complaint that the individual posed a reasonable threat to public safety, only
after the individual had an opportunity to present evidence in his defense, and only after a judge concluded
the threat to public safety was a real one. Even for this
limited subset of the population, these individuals
were still allowed to carry firearms provided they
posted a bond. These laws did not broadly ban public
carry. In fact, their enactment confirms that the
Northampton-style prohibition—in place in many of
the same States that later imposed a surety
4
requirement—plainly cannot have been understood as
a general ban on carrying arms. For under that interpretation, the effect of enacting a surety-type law in
these States would have been to allow only those reasonably accused of posing a threat to public safety to
carry arms.
The other type of restriction that began to
emerge in the early-nineteenth century—restrictions
on carrying arms in a concealed manner, which was
then considered by some to be particularly dishonorable—left people free to carry firearms openly (and
were only upheld as constitutional because they did).
In every State, ordinary, law-abiding citizens retained
the unfettered right to carry arms for lawful purposes
in at least some appropriate manner.
The record from every relevant period of American history thus could not be more clear: while the
government may bar people from carrying firearms
for unlawful and violent purposes, and may impose
regulations on the mode of carrying (open vs. concealed), it may not enforce a law “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.”
State v. Reid, 1 Ala. 612, 616 (1840).
5
ARGUMENT
I.
The right to carry firearms was widely enjoyed and protected in Founding-Era America.
The Founding-Era history of the Second Amendment—from the decade or so before the Declaration of
Independence, through the ratification of the Bill of
Rights in 1791, and up to the Founding generation’s
gradual exit from the public scene by roughly the end
of the first quarter of the nineteenth century—confirms that it protects the right to bear arms outside
the home.2 Early American colonists—and, later, citizens—enjoyed, in the main, an unfettered right to
carry firearms for self-defense and other lawful purposes. Apart from race-based limitations, discussed
below, only four of the Colonies appear to have enacted statutory restrictions on carrying firearms: New
Jersey, Virginia, Massachusetts, and New Hampshire. See STEPHEN P. HALBROOK, THE RIGHT TO BEAR
ARMS 123 (2021). And of these, only New Jersey enforced a restriction—temporarily, and in just part of
2 While this case involves the application of the Second
Amendment to State restrictions via the Fourteenth Amendment, the relevant period for determining the original meaning
of the right to keep and bear arms is the Founding, given this
Court’s settled rule “that incorporated provisions of the Bill of
Rights bear the same content when asserted against States as
they do when asserted against the federal government.” Ramos
v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1397 (2020).
6
the Colony—that even arguably touched upon the
right of law-abiding citizens to carry arms peacefully.
In 1686, East New Jersey enacted a law providing that no person “shall presume privately to wear
any pocket pistol, skeines, stilettoes, daggers or dirks,
or other unusual or unlawful weapons,” and that “no
planter shall ride or go armed with sword, pistol or
dagger” except certain officials and “strangers, travelling upon their lawful occasions through this Province, behaving themselves peaceably.”3 The law did
not apply in West New Jersey (which was then governed separately). HALBROOK, supra, at 128-29. On its
face, the first prohibition only limited concealed carry;
and given that limitation, the second prohibition
against riding armed was presumably understood—
consistently with the contemporaneous understanding of the similarly-worded Statute of Northampton
discussed below—as barring only carrying for offensive, malicious purposes (else, it would have rendered
the first clause’s limit on concealed carriage redundant). See also id. at 129 (noting contemporaneous
East New Jersey law instructing constables to arrest
those who “ride or go arm’d offensively, or shall make
or commit any riot, affray, or other breach of the
King’s peace”). The 1686 East New Jersey law was no
longer in force by the time of the American Revolution,
and may not have even survived into the 18th century.
Id. at 130-31.
3 1686 N.J. 289, 289-90, ch. 9.
7
The only other two colonies that enacted statutes
restricting public carry explicitly specified that they
merely limited carrying arms in a way that disturbed
the peace. Massachusetts in 1694 provided for the arrest of “all Affrayers, Rioters, Disturbers, or Breakers
of the Peace, and 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.”4 In 1699, New Hampshire enacted a similar
prohibition.5
These statutes contained language patterned after the English Statute of Northampton, which provided, inter alia, that “no Man great nor small” shall
“go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”6 Some have asserted
that Northampton imposed “a broad prohibition on
the public carrying of arms.” Patrick J. Charles, The
Faces of the Second Amendment Outside the Home, 60
CLEV. ST. L. REV. 1, 8 (2012). But in reality, the law
was conclusively understood—at least by the end of
the seventeenth century—as only regulating the right
to carry firearms in a narrow and peripheral way, if it
had any continuing vitality at all. As Chief Justice
Holt of the King’s Bench explained in the influential
Sir John Knight’s Case, Northampton was merely
4 1694 Mass. Laws 12, no. 6. Massachusetts enacted a re-
vised version of the statute in 1795. 1795 Mass. Laws 436, ch 2.
5 1699 N.H. Laws 1.
6 2 Edw. 3, 258, c. 3 (1328).
8
declaratory of the common-law rule against “go[ing]
armed to terrify the King’s subjects.” 87 Eng. Rep. 75,
76 (K.B. 1686). “[T]ho’ this statute be almost gone into
desuetudinem,” Lord Holt added, “yet where the crime
shall appear to be malo animo”—that is, with a specific, evil intent—“it will come within the Act (tho’ now
there be a general connivance to gentlemen to ride
armed for their security).” Rex v. Knight, 90 Eng. Rep.
330 (K.B. 1686) (different reporter).
In the years leading up to the American Revolution, Knight’s narrow interpretation of Northampton
was widely cited and adopted. Sergeant William Hawkins’s “widely read Treatise of the Pleas of the
Crown,” Atwater v. City of Lago Vista, 532 U.S. 318,
331 (2001), explained—with a citation to Knight—
that “no wearing of Arms is within the meaning of this
Statute, unless it be accompanied with such Circumstances as are apt to terrify the People,” 2 WILLIAM
HAWKINS, TREATISE OF THE PLEAS OF THE CROWN 21
(1795) (citing 3 Mod. 117, an alternate citation of 87
Eng. Rep. 75). Theodore Barlow’s 1745 treatise likewise noted (also citing Knight) that “[w]earing Arms,
if not accompanied with Circumstances of Terror, is
not within this Statute.” THEODORE BARLOW, THE JUSTICE OF PEACE 12 (1745). And Blackstone similarly interpreted the statute as proscribing “[t]he offence of
riding or going armed, with dangerous or unusual
weapons,” since such conduct “terrif[ied] the good people of the land.” 4 BLACKSTONE COMMENTARIES *14849 (emphasis added).
9
Thus, even in England, Northampton was understood to prohibit carrying arms in public only if it was
done in a menacing, terrorizing way, with the intent
to disturb the peace. And when the American Colonies
imported Northampton’s prohibition, they effectively
codified Knight’s limitation by limiting their scope to
those who carried arms “[o]ffensively.”7
The Colony of Virginia may have enforced a similar common-law prohibition on going “offensively
armed, in Terror of the People.” See GEORGE WEBB,
THE OFFICE & AUTHORITY OF A JUSTICE OF PEACE 9293 (1736). In any event, in 1786, after obtaining statehood, Virginia enacted a Northampton-like prohibition by statute.8 Between the Revolution and 1825,
another two States enacted similar Northampton analogues: Tennessee (1801) and Maine (1821).9 New
York and North Carolina, and perhaps other States,
may also have enforced like restrictions under the
common law offense of “affray.” See JOHN A. DUNLAP,
THE NEW YORK JUSTICE 8 (1815); HALBROOK, supra, at
263 n.778 (discussing North Carolina).
All told, from colonial times through 1825, only 5
of the 24 States admitted to the Union by that time
appear to have enforced a statutory version of Northampton. And whether applied by statute or through
7 1694 Mass. Laws 12, no. 6; 1699 N.H. Laws 1.
8 1786 Va. Laws 33, ch. 21.
§ 1.
9 See 1801 Tenn. Laws 710, § 6; 1821 Me. Laws 285, ch. 76,
10
the common law, the evidence is overwhelming that
the Northampton-like restriction was understood in
the same narrow way as in late-seventeenth-century
England: as proscribing the carrying of arms only
when done maliciously or in a specially terrifying
manner.
That is evident from the leading American legal
commentators of the time. St. George Tucker’s influential early American edition of Blackstone reproduced Blackstone’s discussion of Northampton (with a
notation that Virginia had adopted an analogous law),
but it also (a) explained that “[i]n 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 a sword by his side,” and (b) made clear that Congress would exceed its authority if it “pass[ed] a law
prohibiting any person from bearing arms.” 1 BLACKSTONE COMMENTARIES App. n.D, at 289 (St. George
Tucker ed., 1803); 5 id. at 149 & n.14; 5 id. at App.
n.B, at 19.
Similarly, William Rawle wrote in his “influential treatise,” Heller, 554 U.S. at 607, that only “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 him to give surety of the
peace.” WILLIAM RAWLE, A VIEW OF THE CONSTITUTION
OF THE UNITED STATES OF AMERICA 123 (1825) (emphasis added). James Wilson, a leading Framer and
Supreme
Court
Justice,
likewise
described
11
Northampton in his widely read Lectures on Law in
terms that echo Blackstone: as reaching only the carrying of “dangerous and unusual weapons, in such a
manner, as will naturally diffuse a terrour among the
people.” 3 JAMES WILSON, THE WORKS OF THE HONOURABLE JAMES WILSON 79 (1804). And John Haywood, in
his turn-of-the-century treatise on North Carolina
law, noted that a version of Northampton applied in
the State but was limited to “dangerous or unusual
weapons” and that the ordinary “[w]earing of arms,
however, is not within the meaning of the statute, unless accompanied with such circumstances as are apt
to terrify the people.” JOHN HAYWOOD, THE DUTY AND
OFFICE OF JUSTICES OF THE PEACE, AND OF SHERIFFS,
CORONERS, CONSTABLES 11 (1800).
Early-American case law provides further evidence. The Tennessee Supreme Court explained in
1833 that because the state constitution “hath said
the people may carry arms,” it would be impermissible
to “impute to the acts thus licensed such a necessarily
consequent operation as terror to the people to be incurred thereby.” Simpson v. State, 13 Tenn. 356, 360
(1833). In like form, the North Carolina Supreme
Court explained that “the carrying of a gun per se constitutes no offence,” because “[f]or 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.” State v.
Huntly, 25 N.C. (3 Ired.) 418, 422-23 (1843).
This evidence also disposes of the contention that
firearms were inherently “offensive weapons,” such
12
that the mere carrying of a firearm satisfied any requirement that the going or riding armed be done “offensively.” See Saul Cornell, The Right to Keep and
Carry Arms in Anglo-American Law, 80 LAW & CONTEMP. PROBS. 11, 20 (2017); see also id. at 22. Plainly,
if “the carrying of a gun per se constitutes no offence,”
Huntly, 25 N.C. at 422-23, such that it offended
Northampton only if “accompanied with such circumstances as are apt to terrify the people,” HAYWOOD, supra, at 11, the bare fact that firearms may have
counted as “offensive weapons” for certain other purposes did not bring the peaceable carrying of arms
within the ambit of these laws. Accord 2 HAWKINS, supra, at 21-22. Rather, as Hawkins’s treatise explained, whether a weapon counted as “offensive”
“must greatly depend on the circumstances of the
case,” and it “is therefore a question of fact for the
jury, whether the instrument was carried for the purposes of offence or not?” 1 id. at 492.
The practices of the Founding generation confirm
that early Americans enjoyed and widely practiced
the right to carry firearms out of doors:
x
George Washington regularly used a gun for
hunting, PAUL L. HAWORTH, GEORGE WASHINGTON: FARMER 255 (1915), and advised his
grandson to do the same, PAUL M. ZALL,
WASHINGTON ON WASHINGTON 136-37
(2003). He also carried a firearm on a trip
into the Ohio Country. WILLIAM M. DARLINGTON, CHRISTOPHER GIST’S JOURNALS 8586 (1893).
13
x
Thomas Jefferson advised his nephew to
“[l]et your gun … be the constant companion
of your walks,” 1 THE WRITINGS OF THOMAS
JEFFERSON 398 (letter of Aug. 19, 1785) (H.
A. Washington ed., 1884) (emphasis added),
and Jefferson himself traveled with pistols
for self-protection and designed a holster to
allow for their ready retrieval, see Firearms,
MONTICELLO, https://bit.ly/3hJJsvb. He also
described the Constitution as protecting the
People’s “right and duty to be at all times
armed.” Thomas Jefferson, Letter to John
Cartwright, June 5, 1824, NAT’L ARCHIVES
FOUNDERS ONLINE, https://bit.ly/2TedtKb.
x
James Madison used arms sufficiently frequently to develop a good enough aim that
he “should not often miss … on a fair trial at
[100 yards’] distance.” 1 THE PAPERS OF
JAMES MADISON 151-54 (William T.
Hutchinson & William M.E. Rachal eds.,
1962).
x
Alexander Hamilton was often “seen wandering through the woods of Harlem with a
single-barrelled
fowling-piece.”
ALLAN
MCLANE HAMILTON, THE INTIMATE LIFE OF
ALEXANDER HAMILTON 349 (1910).
x
In defending the British soldiers charged in
the Boston Massacre, rather than arguing
that the colonists who clashed with his clients had no right to bear arms in public,
14
John Adams conceded that, in this country,
“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.” John Adams, Argument for the Defense: 3-4 December 1770, NAT’L ARCHIVES
FOUNDERS ONLINE, https://bit.ly/35FCuRh.
x
Adams spoke from experience: as a schoolboy he was so fond of shooting for sport that
he used to take his gun “to school and leave
it in the entry and the moment it was over
went into the field to kill crows and squirrels.” 3 DIARY AND AUTOBIOGRAPHY OF JOHN
ADAMS 257-61 (L.H. Butterfield ed., 1961).
x
Taking after his father, John Quincy Adams
also frequently used arms for hunting as a
young man. His diary repeatedly records
how he “went out with the gun,” John
Quincy Adams, October 6th, 1785, NAT’L ARCHIVES FOUNDERS ONLINE, https://bit.ly
/3kmmtIt, or “went with my gun down upon
the marshes,” John Quincy Adams, August
29th, 1787, NAT’L ARCHIVES FOUNDERS
ONLINE, https://bit.ly/3reIdaq.
x
In 1765, an angry mob besieged Benjamin
Franklin’s home while he was away in London, forcing his wife Deborah to call upon local friends and relatives “to fetch a gun or
two” and rally to defend the home. WALTER
15
ISAACSON,
(2004).
BENJAMIN
FRANKLIN
224-25
x
Similarly, in the 1779 “Fort Wilson Riot,”
James Wilson and his supporters, armed,
defended his home from attack by an angry
mob rioting over high wartime prices. 1
HUGH D. GRAHAM & TED R. GURR, VIOLENCE
IN AMERICA 408-09 (1969).
x
James Monroe was accustomed to carrying
his “musket slung across his back” on his
way to school in the 1760s, TIM MCGRATH,
JAMES MONROE 9 (2020), and later described
how he “kept my pistols by me in the carriage” when travelling, 5 THE PAPERS OF
JAMES MONROE 294 (Daniel Preston ed.,
2014).
Given this historical record, this Court must either declare each of these Founders to be habitual criminals
or acknowledge that there was, in fact, no prohibition
on carrying firearms at the time of the Founding. And
it is not just the Founders that, according to Respondents’ reading of history, are scofflaws. Hunting was a
primary means of sustenance in much of Virginia and
Massachusetts and the other States with Northampton analogues. Respondents cannot point to a single
hunter (or any other law-abiding citizen) who was
prosecuted for the daily violations of the law that Respondents hypothesize.
Others in the Founding generation also routinely
carried arms outside the home for self-defense.
16
Tensions between the European colonists and the native peoples started early. Bernard Bailyn vividly recounts a series of surprise attacks in 1622 near the
Jamestown settlement:
In plantation after plantation …, the Indians turned on their unsuspecting hosts, in
some places while sharing breakfast with
people at their tables, and with axes, hammers, shovels, tools, and knives slaughtered
them indiscriminately, not sparing eyther
age or sexe, man, woman, or childe; so sodaine in their cruell execution that few or
none discerned the weapon or blow that
brought them to destruction.10
Continued westward expansion by the Colonists only
exacerbated the tensions with the Native Americans
who were being slowly displaced. And those tensions
were further stoked by the great Old World powers,
who repeatedly sought to enlist the help of native
tribes in the contest to dominate the new American
continent.11
By 1774, James Madison feared that the native
peoples were “determined in the extirpation of the
10 BERNARD BAILYN, THE BARBAROUS YEARS 101-02 (2012)
(quotation marks omitted).
11 THE REVOLUTIONARY WAR: A CONCISE MILITARY HISTORY
OF AMERICA’S WAR FOR INDEPENDENCE 16-17 (Maurice Matloff
ed.,1980).
17
inhabitants.”12 A year later, John Adams described
how the “hardy, robust” colonists had become “habituated … to carry their fuzees or rifles upon one shoulder to defend themselves against the Indians, while
they carry’d their axes, scythes and hoes upon the
other to till the ground.”13 So intense was the fear of
dreadful attack by the native peoples that one of the
“Abuses and Usurpations” charged of King George the
III in the Declaration of Independence was that the
Crown had “endeavoured to bring on the Inhabitants
of our Frontiers, the merciless Indian Savages, whose
known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions.”
The Founding generation also found it necessary
to carry firearms for self-defense against ordinary
criminals. Modern organized police forces did not
begin to appear until the 1830s; at the time of Founding, government-backed “policing was ineffective in
cities and towns” and “almost nonexistent on the frontier.”14 And violent crime was rampant.
For example, in the late eighteenth century the
New Jersey coastal area known as the Pinelands
“were infested with numerous robbers,” who “[a]t the
12 NOAH FELDMAN, THE THREE LIVES OF JAMES MADISON 15
(2017).
13 John Adams, To the Inhabitants of the Colony of Massa-
chusetts-Bay, NAT’L ARCHIVES FOUNDERS ONLINE (Feb. 6, 1775),
https://bit.ly/2SwaXi4.
SAMUEL WALKER & CHARLES M. KATZ, THE POLICE IN
AMERICA 29 (2012).
14
18
dead of night … would sally forth from their dens to
plunder, burn, and murder.”15 “The inhabitants, in
constant terror, were obliged for safety to carry their
muskets with them into the fields, and even to the
house of worship.”16 Elsewhere, “the brutal Harpe
brothers … in 1798-99 accounted for anywhere from
about 20 to 38 victims in the frontier States of Kentucky and Tennessee.”17 Early American urban areas
were no more civilized: “Philadelphia’s homicide rate
for 1720-1780 was two and a half times that of London
in the same period.”18 All told, a leading study of historical crime records concludes that “[t]hroughout
most of the seventeenth century,” the “peacetime murder rates for adult colonists … ranged from 100 to 500
or more per year per 100,000 adults, ten to fifty
times the rate in the United States today.”19
Because of these violent conditions, over half the
colonies enforced arms-bearing requirements that
obliged people to carry arms in certain circumstances
such as when traveling or attending church. See
15 JOHN W. BARBER & HENRY HOWE, HISTORICAL COLLEC-
TIONS OF NEW JERSEY 351 (1868).
16 Id.
17 2 VIOLENCE IN AMERICA 34 (Ted R. Gurr ed., 1989)
18 Jack D. Marietta & G.S. Rowe, Violent Crime, Victims,
and Society in Pennsylvania, 1682-1800, 66 EXPLORATIONS IN
EARLY AM. CULTURE 24, 26 (1999).
RANDOLPH ROTH, AMERICAN HOMICIDE 27, 39 fig.1.3
(2009) (emphasis added).
19
19
HALBROOK, supra, at 133-35.20 It would have been incongruous indeed for Colonies such as Virginia (which
enacted such a requirement as early as 1619) and
Massachusetts (1636) to (1) enforce a Northamptontype statute they purportedly understood as “a broad
prohibition on the public carrying of arms,”
Charles, Faces of the Second Amendment, supra, at 8,
and simultaneously (2) require travelers and churchgoers to carry arms for self-defense.
A similar point follows from Virginia’s 1677 statute—enacted in response to Bacon’s Rebellion—temporarily forbidding the colonists “to assemble together
in armes to the number of five or upwards.”21 It
plainly follows that but for this prohibition, Virginians
were free to carry arms in public. Indeed, when the
restraint was lifted after residents of James County
complained to the Crown’s officials the officials explained that “[n]ow every man may bear arms.”
HALBROOK, supra, at 126-27.
Finally, the racist laws many Colonies (and later
States) enacted specifically forbidding enslaved or
free African Americans from carrying firearms in
20 See, e.g., 1624 Va. Laws 121, 127 §§ 24 & 25 (travel and
farming); 1631 Va. Laws 174, No. 51 (church); 1636 Mass. Laws
190, § 322 (travel); 1639 R.I. Laws 93, 94 (travel and public meetings); 1641 Laws of the Colony of New Plymouth 69, 70 (church);
1 PUBLIC RECORDS OF THE COLONY OF CONNECTICUT 95 (1850)
(church); 1642 Md. Laws 103 (travel and church); 1740 S.C. Laws
417 (church); 1770 Ga. Laws 137, 138 § 1 (church).
21 2 Va. Stat. 381, 386.
20
public removes any conceivable doubt that free whites
enjoyed the right to carry arms. A 1715 Maryland
statute, for example, provided that “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.”22 Like prohibitions were enacted in Virginia
(1680), South Carolina (1740), North Carolina (1741),
Georgia (1768), and Delaware (1797).23 These laws
would have been completely inexplicable had Northampton’s prohibition been understood to prohibit anyone from carrying arms.
II.
The tradition of freely allowing public carriage of firearms continued into the nineteenth century.
The evidence from the years immediately after
ratification provides “confirmation” of what earlier
sources establish concerning “the public understanding in 1791 of the right codified by the Second Amendment.” Gamble v. United States, 587 U.S. ___, 139 S.
Ct. 1960, 1976-77 (2019). From the early nineteenth
century through the Civil War, Americans continued
to freely enjoy the right to peaceably carry arms outside the home. Again: the carrying of arms by lawabiding citizens was freely allowed in every State.
Through 1861, 14 of the 34 States admitted at the outbreak of the War do not appear to have enforced any
22 1715 Md. Laws 117.
23 See HALBROOK, supra, at 127, 135-37, 255-61; An Act For
the Trial Of Negroes, ch. 43, § 6, 1797 Del. Laws 104.
21
statutes regulating the carrying of firearms. And the
two new types of regulations that began to emerge
decades after the Founding in several of the remaining 20 States—“surety-style” laws and restrictions on
concealed carry—did not meaningfully limit public
carriage.
A. In 1836, Massachusetts adopted a statute allowing “any person having reasonable cause to fear”
that someone carrying arms in public might cause “an
injury, or breach of the peace” to make a complaint to
a local judge, who then had discretion to require the
arms-bearer “to find sureties for keeping the peace” if
he wanted to continue to “go armed”—unless he could
show that he himself had “reasonable cause to fear an
assault or other injury, or violence to his person, or to
his family or property,” in which case he could continue to carry arms without posting the surety.24 Between 1836 and the beginning of the Civil War, seven
additional States (or territories granted Statehood
shortly thereafter) adopted similar “surety-style”
laws.25
These surety laws have been characterized as “a
severe constraint” that limited public carry “to persons who could demonstrate their need to carry.”
24 1836 Mass. Laws 748, 750, ch. 134, § 16; see HALBROOK,
supra, at 222-33.
25 See 1838 Wis. Laws 378, 381 § 16; 1841 Me. Laws 707,
709 ch. 169, § 16; 1846 Mich. Laws 690, 692 ch. 162, § 16; 1847
Va. Laws 127, ch. 14, § 16; 1851 Minn. Laws 526, ch. 112, § 18;
1853 Or. Laws 220, ch. 16, § 17; 1861 Pa. Laws 248, 250 § 6.
22
Young v. Hawaii, 992 F.3d 765, 799, 820 (9th Cir.
2021) (en banc). The bare text of these statutes refutes
that description. These laws were triggered only when
someone who reasonably felt threatened lodged a complaint—and a judge agreed the fear was reasonable.26
The party complained of had a right to “be heard in
his defense” before any judicial decision was made,
and he also had a right of appeal.27
Moreover, he could nonetheless continue to carry,
so long as he posted a surety, or bond.28 As Blackstone
explained, a surety was “intended merely for prevention” in circumstances where there was “a probable
suspicion, that some crime is intended or likely to happen; and consequently it is not meant as any degree of
punishment, unless perhaps for a man’s imprudence
in giving just ground of apprehension.” 4 BLACKSTONE
COMMENTARIES *249 (emphasis added). Finally, these
laws were also accompanied by a safe-harbor provision for anyone carrying a firearm because of “reasonable cause to fear an assault or other injury” to one’s
person, family, or property.29
The enactment of surety-style laws confirms that
Northampton-type laws were not understood as bans
on carriage. Virginia, Massachusetts, and Maine all
(1) enacted a Northampton-analogue and then subse26 1836 Mass. Laws 750, § 16.
27 Id. at 749-50, §§ 4, 9, 16.
28 Id. at 750, § 16.
29 Id.
23
quently (2) enacted a surety-style law.30 Not only
would surety laws have been superfluous in those
States, if the broad, revisionist interpretation of
Northampton were correct, but the effect of their
adoption would have been inexplicable and bizarre.
For if Northampton-type laws really did broadly ban
carrying arms, the enactment of a surety-style law
would have had the effect of allowing public carry—
but only by someone reasonably accused and adjudged
of posing a risk to public safety. Respondents offer no
explanation—and there is none—as to why States
would create such a schizophrenic regime: law-abiding citizens are forbidden to carry, but those who are
found to be a threat to public safety alone can carry.
To state Respondents’ view of history is to refute it.
Consistent with their text, surety-style laws
were not understood or enforced as general bans on
carrying firearms. In 1890, for example, Percy
Bridgham—a noted legal journalist for the Boston
Daily Globe—explained that “[t]here is no statute in
this State which expressly forbids the carrying of
weapons, but there is a statute that provides that a
person so carrying may be required to give bonds to
keep the peace.” PERCY A. BRIDGHAM, ONE THOUSAND
LEGAL QUESTIONS ANSWERED BY THE “PEOPLE’S LAWYER” OF THE BOSTON DAILY GLOBE 129 (1891). In 1895,
the Boston Daily Advertiser similarly explained that
30 Compare 1786 Va. Laws 33, ch. 21, 1795 Mass. Laws 436,
ch. 2, and 1821 Me. Laws 285, ch. 76, § 1, with 1847 Va. Laws
127, ch. 14, § 15, 1836 Mass. Laws 748, 750, ch. 134, § 16, and
1841 Me. Laws 707, ch. 169, § 16.
24
“Massachusetts has no specific law against carrying
concealed weapons…. The ordinary citizen who has
not otherwise offended against the law is able to arm
himself without fear of police interference, so long as
he does not attempt to violate the law against the procession of armed organizations.”31
When surety laws were enforced, it was often
with racial overtones. In 1856, two African Americans
were arrested in the District of Columbia (where a
surety-style law was enacted in 1855)32 and “ordered
to give security to keep the peace” for “having loaded
pistols with them at a fair held by colored persons in
the Fourth Ward.”33 Another African American, Lucas
Dabney, was arrested in 1887 for “carrying a loaded
revolver”; the judge “took Dabney’s personal bonds,
and he was released.”34
Other newspaper accounts also do not support
the revisionist interpretation of the surety-style laws.
A March 7, 1853 item, for example, relates that one
“George W. Ransom of South Boston” was “charged
with carrying a concealed weapon” on March 4.35 It is
clear from the rest of the article and from other historical sources that Ransom was one of a large number
31 Boston Daily Advertiser, July 13, 1895, at 4.
32 1855 D.C. Code 570, ch. 141, § 16.
33 Carrying Concealed Weapons, EVENING STAR, Nov. 26,
1856, at 3.
34 EVENING STAR, Dec. 5, 1887, at 5.
35 City Intelligence, BOSTON COURIER, Mar. 4, 1853 at 4.
25
of persons arrested for taking part in a violent riot in
Charlestown.36 Clearly, this was not an instance of
peaceably carrying arms for self-defense.
Some have cited the 1836 jury charge by Boston
Municipal Judge Peter Oxenbridge Thacher, which
opined that in Massachusetts “no person may go
armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable
cause to apprehend an assault or violence to his person, family, or property.” Charles, supra, at 39-40
(quoting PETER OXENBRIDGE THACHER, TWO CHARGES
TO THE GRAND JURY OF THE COUNTY OF SUFFOLK 27-28
(1837)). But Thacher’s speech was merely a welcome
address at the opening of the grand jury term, not an
instruction in a particular case; it did not purport to
analyze all of the elements of the surety law—which
by its plain text was narrowly limited in the way described above.
B. The other type of regulation that States began
to adopt in the 19th century—restrictions on carrying
concealed firearms—regulated the manner of carrying
arms, but they did so against the background of freely
allowing the open carrying of arms, thus “le[aving]
ample opportunities for bearing arms.” Wrenn v. District of Columbia, 864 F.3d 650, 662 (D.C. Cir. 2017).
The first such law appears to have been enacted in
Kentucky in 1813; it imposed a fine on anyone “who
shall hereafter wear a pocket pistol, dirk, large knife,
or sword in a cane, concealed as a weapon, unless
36 Id.; see also HALBROOK, supra, at 231.
26
when travelling on a journey.”37 Similar laws were enacted in seven additional States or territories by
1860.38
Such laws were consistent with “the social conventions of the time” which saw “concealed carry [as]
the behavior of criminals,” manifesting “a hostile, and,
if the expression may be allowed, a piratical disposition against the human race.” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 U.C.L.A. LAW. REV. 1443, 1522-24 (2009)
(quoting On Wearing Concealed Arms, DAILY NAT’L INTELLIGENCER, Sept. 9, 1820, at 2)). But they left the
socially-preferred open manner of carrying untouched.
Even so limited, the initial judicial reception to
these laws was unfavorable: in Bliss v. Commonwealth, the Kentucky Supreme Court struck down
Kentucky’s concealed-carry restriction as “forbidden
by the explicit language of the constitution,” reasoning that if the government could restrict either open
or concealed carry singly, it would have power “by successive enactments, to entirely cut off the exercise of
the right of the citizens to bear arms.” 12 Ky. (2 Litt.)
90, 92 (1822). And while later courts generally upheld
concealed carry restrictions, they made absolutely
clear that the linchpin of these laws’ constitutionality
37 1813 Ky. Acts 100, ch. 89, § 1.
38 1813 La. Acts 172, § 1; 1819 Ind. Acts 39; 1837 Ark. Rev.
Stat. 280; 1838 Va. Acts 76, ch. 101, § 1; 1839 Fla. Acts 423; 1839
Ala. Acts 67, § 1; 1859 Ohio Laws 56, § 1.
27
was the fact that they left some manner of carrying
arms—in these cases, openly—unfettered.
In State v. Reid, for example, the Supreme Court
of Alabama held that the right to bear arms left the
government with the authority to regulate the manner of carrying arms “as may be dictated by the safety
of the people and the advancement of public morals.”
1 Ala. 612, 616 (1840). But “the Legislature cannot inhibit the citizen from bearing arms openly,” since “[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.” Id. at 616-17, 619. Case after case
followed the same path, upholding limits on carrying
concealed arms but making clear that their constitutionality depended on the continued availability of the
right to carry firearms openly. See Aymette v. State, 21
Tenn. 154, 160-61 (1840); State v. Chandler, 5 La.
Ann. 489, 490 (1850); State v. Jumel, 13 La. Ann. 399,
399-400 (1858); State v. Wilforth, 74 Mo. 528, 531
(1881); State v. Speller, 86 N.C. 697, 700 (1882); see
also Cockrum v. State, 24 Tex. 394, 403 (1859) (concluding that “[t]he right to carry a bowie-knife for lawful defense is secured, and must be admitted”); compare State v. Mitchell, 3 Blackf. 229, 229 (Ind. 1833)
(upholding ban on concealed carry), with Walls v.
State, 7 Blackf. 572, 573 (Ind. 1845) (suggesting defense would exist if defendant “exhibited his pistol so
frequently that it could not be said to be concealed”).
28
In the few States that did attempt to restrict the
right to carry arms openly as well, the courts struck
such laws down. In Nunn v. State—a case that Heller
significantly relied upon and praised for “perfectly
captur[ing]” the relationship between the Second
Amendment’s prefatory and operative clauses—the
Georgia Supreme Court made clear that to the extent
that State’s law “contains a prohibition against bearing arms openly, [it] is in conflict with the Constitution, and void.” 1 Ga. 243, 251 (1846); accord Stockdale v. State, 32 Ga. 225, 227 (1861). Similarly, while
Tennessee attempted to limit both open and concealed
carry,39 that State’s highest court ultimately struck
the ban on open carry down. Andrews v. State, 50
Tenn. 165, 181, 187 (1871).
These judicial decisions were widely influential.
For example, an abortive attempt in Washington D.C.
to ban carrying firearms in any manner was swiftly
replaced with a restriction on concealed carrying
only,40 with the City Council explaining that “the
word ‘concealed’ ” had been added because “[f]or want
of that word in the former bill, it is now certain that
the corporation will lose every case before the circuit
court by appeal from the decisions of the police
39 1821 Tenn. Pub. Acts 15, ch. 13; accord 1869-1870 Tenn.
Pub. Acts, ch. 13, § 1.
40 Compare Act of Nov. 4, 1857, ch. 5, in GENERAL LAWS OF
THE CORPORATION OF THE CITY OF WASHINGTON 75 (Robert A.
Waters ed., 1860), with Act of Nov. 18, 1858, in id. at 114.
29
magistrates.”41 Prof. Cooley’s 1870 treatise explained
that “to bear arms implies something more than the
mere keeping,” but cited Andrews for the proposition
that “the secret carrying of those suited merely to
deadly individual encounters may be prohibited.”
THOMAS M. COOLEY, THE GENERAL PRINCIPLES OF
CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 271-72 (1870). Another treatise likewise explained
that “the carrying of concealed weapons may be absolutely prohibited without the infringement of any constitutional right, while a statute forbidding the bearing of arms openly would be such an infringement.”
JOHN ORDRONAUX, CONSTITUTIONAL LEGISLATION IN
THE UNITED STATES 242-43 (1891).
To be sure, a handful of cases from the post-Civil
War era drew a different line in the sand. Interpreting
the right to bear arms as limited to the militia context,
these cases reasoned that it extended “to the arms of
a militiaman or soldier,” such as “the musket and bayonet,” but not smaller pistols, “dirks, daggers, slungshots, sword-canes, brass-knuckles and bowie knives.”
English v. State, 35 Tex. 473, 476-77 (1871); compare
State v. Buzzard, 4 Ark. 18, 18 (1842), Fife v. State, 31
Ark. 455, 458-61 (1876), and Haile v. State, 38 Ark.
564, 566-67 (1882), with Wilson v. State, 33 Ark. 557,
559 (1878); see also Hill v. State, 53 Ga. 472, 474-75
(1874); 2 JOEL PRENTISS BISHOP, COMMENTARIES ON
THE CRIMINAL LAW 74-75, § 124 (4th ed. 1868). Hints
of this reasoning are also present in a few of the cases
41 Concealed Weapons, EVENING STAR, Nov. 11, 1858, at 3.
30
that held that some form of carriage must be left unrestricted. See Aymette, 21 Tenn. at 160-61; Andrews,
50 Tenn. at 179, 186-88.
The fatal difficulty of relying on the cases articulating this alternative view, however, is that they are
premised upon an interpretation of the right to keep
and bear arms that was expressly repudiated in Heller. That case “made clear that the Second Amendment is, and always has been, an individual right centered on self-defense; it has never been a right to be
exercised only in connection with a militia.” Young,
992 F.3d at 837 (O’Scannlain, J., dissenting). These
few historical precedents are accordingly “sapped of
authority by Heller.” Wrenn, 864 F.3d at 658. Put differently, while a minority of historical cases concluded
that a flat ban on carrying certain arms in public did
not violate a right to bear arms for militia service,
they did not even so much as suggest that such a restriction was consistent with the right to bear arms
for self-defense.
Indeed, we are aware of only one case before the
twentieth century that can plausibly be read as supporting that view: the Texas Supreme Court’s postbellum decision in State v. Duke, 42 Tex. 455 (1875).42
42 Walburn v. Territory, in the course of reversing Walburn’s conviction “for carrying a revolver” on evidentiary
grounds, stated that “[a]s at present advised, we are of the opinion that the statute violates none of the inhibitions of the constitution of the United States.” 59 P. 972, 973 (Okla. 1899). However, it is impossible to determine what the basis for this decision
31
In Duke, the court overruled its earlier decision in
English that the right to bear arms was limited to
arms suitable to militia service, but nonetheless held
that a ban on carrying concealable arms either concealed or openly, except when reasonably needed for
self-defense, was “a legitimate and highly proper regulation” of the right.” Id. at 459. For at least three reasons, however, Duke cannot support the proposition
that the Second Amendment is limited to the home.
First, the solitary decision in Duke was “an outlier which marks perhaps the most restrictive interpretation that any nineteenth-century court gave to
the defense-based right to bear arms.”43 Cf. Heller,
554 U.S. at 632 (“we would not stake our interpretation of the Second Amendment upon a single law, in
effect in a single city, that contradicts the overwhelming weight of other evidence”). Second, Duke was not
decided until 1875, over three-quarters of a century
after the Second Amendment’s ratification. By contrast, the decision in Bliss—written just three decades
after ratification—concluded that “[t]he right of the
citizens to bear arms in defence of themselves and the
state, must be preserved entire.” 12 Ky. at 91.
was—Walburn cited “[n]o authorities” and did not press his constitutional defense “very earnestly.” Id.
Michael P. O’Shea, Modeling the Second Amendment
Right to Carry Arms (I): Judicial Tradition and the Scope of
“Bearing Arms” for Self-Defense, 61 AM. U. L. REV. 585, 655
(2012).
43
32
Third, Duke—citing this Court’s decision in Barron v. Baltimore, 7 Pet. (32 U.S.) 243 (1833)—confined
its reasoning to Texas’s arms guarantee, which expressly subjected the right to keep and bear arms to
“such regulations as the Legislature may prescribe.”
Duke, 42 Tex. 458 (quoting TEX. CONST. art. I, § 13
(1866)). “While the Second Amendment surely tolerates some degree of regulation, its very text conspicuously omits any such regulatory caveat. We shouldn’t
pencil one in.” Young, 992 F.3d at 838-39
(O’Scannlain, J., dissenting)
Once again, the very existence of restrictions on
concealed carry explodes the notion that the surety
laws discussed above were understood as blanket
bans on carrying arms. For during the nineteenth century, at least five States enacted both types of laws.44
Indeed, one of those States—West Virginia—adopted
both types of laws simultaneously. That would be utterly nonsensical if surety-style laws really constituted general bans on carriage.
Indeed, the fact that there was debate over the
validity of concealed-carry restrictions proves that the
right to bear arms was universally understood to extend beyond the home. For example, Oliver Wendell
44 Compare 1838 Va. Acts 76, ch. 101, § 1, with 1847 Va.
Laws 127, ch. 14, § 16; 1846 Mich. Laws 690, 692 ch. 162, § 16,
with 1887 Mich. Pub. Acts 144, § 1; 1838 Wis. Laws 378, 381, §
16, with 1872 Wis. Laws 17, ch. 7, § 1; 1853 Or. Laws 220, ch. 16,
§17, with 1885 Or. Laws 33, § 1; and 1870 W. Va. Code 692, ch.
148, § 7, with 1870 W. Va. Code 702, ch. 153, § 8.
33
Holmes, Jr., in his edition of James Kent’s Commentaries, noted that
As the Constitution of the United States,
and the constitutions of several of the states,
in terms more or less comprehensive, declare the right of the people to keep and bear
arms, 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 J. KENT, COMMENTARIES ON AMERICAN LAW *340 n.2
(O. Holmes ed., 1873). This debate would have been
inexplicable if either the surety or Northampton-type
laws were understood to generally ban carrying arms.
Some have sought to dismiss cases like Bliss,
Nunn, and Reid as based on an understanding of the
Second Amendment right arising “almost exclusively
from the slaveholding South” and rooted in “a time,
place, and culture where slavery, honor, violence, and
the public carrying of weapons were intertwined.” Eric
M. Ruben & Saul Cornell, Firearm Regionalism and
Public Carry, 125 YALE L.J. FORUM 121, 123, 125
(2015). That is completely ahistorical. The same rule
applied by Georgia in Nunn and Alabama in Reid was
followed by Massachusetts in Commonwealth v. Murphy, 166 Mass. 171, 172 (1896). And more generally,
the supposed “regional variation in the [Northern and
Southern] regulatory tradition[s],” Cornell, supra, at
34
38, simply did not exist. Concealed carry restrictions
were adopted not only in Southern States like Georgia
and Tennessee but also in several Northern States, including Indiana and Ohio in the antebellum period,
and later New Jersey, New York, Michigan, Iowa,
Wisconsin and Oregon. And the surety-style laws that
purportedly represent the “more restrictive” Northern
tradition, id. at 39; but see supra, Part II.A, were
adopted not only in Northern locales like Massachusetts but also in Slave States like Virginia and Texas.
Indeed, as shown above, the one “regional variation,” Cornell, supra, at 38, that decidedly did exist
was the South’s enforcement of the notorious Slave
Codes. See supra, pp. 19-20. Accordingly, to the extent
that the Southern States’ “distinct cultural phenomena of slavery and honor,” Ruben & Cornell, supra, at
126, has any continuing relevance to the interpretation of the Second Amendment, it is this: it was the
refusal by the Slave States to recognize the free and
equal citizenship of African Americans that led those
States to impose the very laws that constitute the closest historical analogues to the “proper cause” licensing
restriction challenged in this case.
CONCLUSION
The Court should reverse the judgment of the
Second Circuit.
35
July 20, 2021
Respectfully submitted,
DAVID H. THOMPSON
Counsel of Record
PETER A. PATTERSON
COOPER & KIRK, PLLC
1523 New Hampshire
Avenue, N.W.
Washington, D.C. 20036
(202) 220-9600
dthompson@cooperkirk.com
Counsel for Amici Curiae
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