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
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------NEW YORK STATE RIFLE & PISTOL ASSOCIATION,
INC., ROBERT NASH, BRANDON KOCH,
Petitioners,
v.
KEVIN P. BRUEN, in His Official Capacity as
Superintendent of the New York State Police,
RICHARD J. MCNALLY, JR., in His Official Capacity as
Justice of the New York Supreme Court, Third Judicial
District, and Licensing Officer for Rensselaer County,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Second Circuit
---------------------------------♦--------------------------------BRIEF OF PROFESSORS ROBERT LEIDER
AND NELSON LUND, AND THE BUCKEYE
FIREARMS ASSOCIATION AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------DEREK DEBROSSE
Counsel of Record
CHESHIRE DEBROSSE, P.C.
503 South Front Street,
Suite 240B
Columbus, OH 43215
(888) 399-7863
derek@MunitionsGroup.com
RONALD JAMES LEMIEUX
Co-counsel
#0093536
P.O. Box 19183
Cleveland, OH 44119
(216) 339-3284
rlemieux@
ronaldlemieuxlaw.com
Not admitted to the
U.S. Supreme Court
Attorneys for Amici Curiae
July 20, 2021
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
1
ARGUMENT ........................................................
5
I.
The Common-Law Crime of Going Armed
to the Terror of the People Did Not Apply
to Peaceful Carry .......................................
8
A. American Common Law Did Not Ban
Public Carry ........................................
9
B. The Common-Law Crime Had Little
Known Record of Enforcement ............ 16
II.
Surety Laws ............................................... 19
A. The Surety Statutes Did Not Prohibit
Carrying Firearms for Lawful Purposes .................................................... 23
B. The Surety Statutes Have Virtually
No Known Record of Enforcement ...... 30
CONCLUSION..................................................... 34
APPENDIX
Surety Laws ......................................................... App. 1
Criminal Laws Restricting Carrying Concealed
Weapons in Surety States ................................ App. 6
ii
TABLE OF AUTHORITIES
Page
CASES
Andrews v. State, 50 Tenn. (3 Heisk.) 165 (1871) .... 2, 6
Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840) ..... 5, 15
Chune v. Piott (1615) 80 Eng. Rep. 1161 (K.B.) .........11
Commonwealth v. Cushard, 132 A.2d 366 (Pa.
Super. Ct. 1957) ......................................................... 31
Commonwealth v. Miller, 305 A.2d 346 (Pa.
1973) ........................................................................31
Commonwealth v. Murphy, 44 N.E. 138 (Mass.
1896) .................................................................. 25, 26
Commonwealth v. Wilkins, 138 N.E. 11 (Mass.
1923) ........................................................................19
District of Columbia v. Heller, 554 U.S. 570
(2008) ................................................................... 5, 22
Grace v. District of Columbia, 187 F. Supp. 3d
124 (D.D.C. 2016) ....................................................31
In re Brickey, 70 P. 609 (Idaho 1902) ..................... 6, 29
Mapp v. Ohio, 367 U.S. 643 (1961) .............................19
NLRB v. Noel Canning, 573 U.S. 513 (2014)..............22
Norman v. State, 215 So.3d 18 (Fla. 2017) ....... 7, 30, 31
Nunn v. State, 1 Ga. 243 (1846) ............................ 2, 5, 6
Presser v. Illinois, 116 U.S. 252 (1886) .......................25
R v. Sir John Knight (1686) 90 Eng. Rep. 330
(K.B.) ........................................................................10
Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833) ..... 14, 15
iii
TABLE OF AUTHORITIES – Continued
Page
Sir John Knight’s Case (1686) 87 Eng. Rep. 75
(K.B.) .............................................................. 8, 10, 11
State v. Chandler, 5 La. Ann. 489 (1850) .....................6
State v. Christian, 274 P.3d 262 (Or. Ct. App.
2012) ........................................................................31
State v. Dawson, 159 S.E.2d 1 (N.C. 1968) ........ 14, 16
State v. Huntly, 25 N.C. (3 Ired.) 418 (1843) ... 3, 12, 13, 16
State v. Kerner, 107 S.E. 222 (N.C. 1921) ............... 6, 13
State v. Nieto, 130 N.E. 663 (Ohio 1920) ....................29
State v. Reid, 1 Ala. 612 (1840) ................................. 2, 6
State v. Rosenthal, 55 A. 610 (Vt. 1903) .......................6
State v. Roten, 86 N.C. 701 (1882) .......................... 3, 13
State v. Shelby, 2 S.W. 468 (Mo. 1886) ..........................6
Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829) .........11
Wilson v. State, 33 Ark. 557 (1878)........................... 2, 6
Wrenn v. District of Columbia, 864 F.3d 650
(D.C. Cir. 2017) ........................................................31
Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) .... passim
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. II .......................................... passim
iv
TABLE OF AUTHORITIES – Continued
Page
STATUTES
1860 Mass. Stat. ch. 164, § 10 ....................................25
1893 Mass. Stat. ch. 367, § 124 ..................................25
Act of Apr. 15, 1850, ch. 194, § 1, 1850 Mass. Acts
401 ...........................................................................25
Act of Nov. 4, 1857, in GENERAL LAWS OF THE CORPORATION OF THE CITY OF WASHINGTON 75
(Washington, Robert A. Waters 1860).....................29
An Act Declaring the Rights and Liberties of the
Subject, and Settling the Succession of the
Crown (Bill of Rights) 1689, 1 W. & M., c. 2
(Eng.), in 9 STATUTES AT LARGE 67 (Pickering
1764) ........................................................................15
N.Y. PENAL LAW § 255.17 (McKinney 2021) ............ 33
Of Proceedings to Prevent the Commission of
Crimes, ch. 14, § 16, 1847 Va. Acts 127, 129 ...........32
Of Proceedings to Prevent the Commission of
Crimes, ch. 134, § 16, in THE REVISED STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS, 748 (Boston, Dutton & Wentworth
1836) .............................................................. 7, 20, 21
Resolve Providing for a Revision of the General
Statutes of the Commonwealth, ch. 30, in RESOLVES OF THE GENERAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS 103 (1832) ............20
Statute of Northampton, 2 Edw. 3 c. 3 (1328) .......... 3, 9
WIS. STAT. § 944.16 (West 2021) ................................33
v
TABLE OF AUTHORITIES – Continued
Page
RULES
U.S. Sup. Ct. R. 37.6 ......................................................1
OTHER AUTHORITIES
3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1891 (Boston,
Hilliard, Gray, & Co. 1833) .....................................15
4 WILLIAM BLACKSTONE, COMMENTARIES ...................... 23
About Concealed Weapons, BOS. DAILY GLOBE,
June 9, 1898 ............................................................25
Arrests for Carrying Concealed Weapons, THE
LIBERATOR, Apr. 11, 1851 ................................... 17, 18
BOS. DAILY GLOBE, June 29, 1896 ...............................27
Carrying Weapons, BOS. DAILY GLOBE, Jan. 18,
1889 .........................................................................26
CHARLES HUMPHREYS, A COMPENDIUM OF THE
COMMON LAW IN FORCE IN KENTUCKY 482 (Lexington, Ky., William Gibbes Hunt 1822). ................15
Complaint, Commonwealth v. Snowden, No.
1443 (Bos. Police Ct. Apr. 5, 1851) ..........................19
Complaint, Grover v. Bullock, No. 185 (Worcester Cty. Aug. 13, 1853) .............................................31
Commonwealth v. Snowden, Bos. Police Ct. R.
Book 1117 (May 1851) ...................................... 18, 19
Concealed Weapons, BOS. DAILY ADVERTISER,
July 13, 1895 ...........................................................27
vi
TABLE OF AUTHORITIES – Continued
Page
Concealed Weapons, DETROIT FREE PRESS, Feb.
26, 1873 ...................................................................28
Concealed Weapons, EVENING STAR, Nov. 11,
1858 .........................................................................29
David B. Kopel & George A. Mocsary, Errors of
Omission: Words Missing from the Ninth Circuit’s Young v. Hawaii, 2021 U. ILL. L. REV.
ONLINE 172 ..............................................................11
Deadly Weapons, PHILA. INQUIRER, Dec. 30, 1897 ......28
Docket, Commonwealth v. Snowden, No. 1443
(Bos. Police Ct. Apr. 5, 1851) ...................................18
Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 YALE L.J.F.
121 (2015) .................................................. 6, 7, 26, 31
EVENING J., Dec. 15, 1899...................................... 28, 29
Everybody’s Column, PHILA. INQUIRER, Nov. 25,
1900 .........................................................................28
JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS:
THE ORIGINS OF AN ANGLO-AMERICAN RIGHT
102 (1994) ................................................................10
Local Matters: Deadly Weapons, RICHMOND DISPATCH, June 18, 1855 ...............................................32
Nelson Lund, The Future of the Second Amendment in a Time of Lawless Violence, 116 NW.
L. REV. (forthcoming 2021), https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=3701185 ............12
vii
TABLE OF AUTHORITIES – Continued
Page
P.A. Bridgham, Dangerous Weapons, BOS. DAILY
GLOBE, Sept. 27, 1891 ..............................................33
PERCY A. BRIDGHAM, ONE THOUSAND LEGAL QUESTIONS ANSWERED BY THE PEOPLE’S LAWYER OF
THE BOSTON DAILY GLOBE 129 (1890) ......................27
Robert Leider, Constitutional Liquidation, Surety
Laws, and the Right to Bear Arms, in NEW HISTORIES OF GUN RIGHTS AND REGULATION: ESSAYS ON THE PLACE OF GUNS IN AMERICAN LAW
AND SOCIETY (Joseph Blocher, Jacob D. Charles,
Darrell A.H. Miller eds., forthcoming ___), https://
papers.ssrn.com/sol3/papers.cfm?abstract_id=
3697761 ................................................. 16, 17, 22, 32
Saul Cornell, The Right to Carry Firearms Outside of the Home, 39 FORDHAM URB. L.J. 1695
(2012) .......................................................................23
STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS:
A CONSTITUTIONAL RIGHT OF THE PEOPLE OR A
PRIVILEGE OF THE RULING CLASS?, 42 (2021) ........... 10
THE FEDERALIST NO. 37 (James Madison) (Jacob
E. Cooke, ed. 1961) ..................................................21
THOMAS W. WATERMAN, THE WISCONSIN AND IOWA
JUSTICE 620 (New York, Banks, Gould & Co.
1853) ........................................................................24
1
INTEREST OF AMICI CURIAE1
Amicus Robert Leider is Assistant Professor of
Law at the Antonin Scalia Law School of George Mason University. His research focuses on the Second
Amendment and the right of self-defense.
Amicus Nelson Lund is University Professor at
the Antonin Scalia Law School of George Mason University. He is the former Patrick Henry Professor of
Constitutional Law and the Second Amendment and
author of many leading law review articles on the Second Amendment.
Amicus Buckeye Firearms Association is a 501(c)(4)
social welfare organization that, through grassroots efforts, aims to defend and advance the right of more
than 4 million Ohio citizens to own and use firearms
for all legal activities, including self-defense, hunting,
competition, and recreation. Accordingly, BFA has an
interest in ensuring the proper application of the Second Amendment to the United States Constitution.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The Second Amendment does not permit legislatures to enact broad prohibitions that make it unlawful
1
Pursuant to this Court’s Rule 37.6, counsel for amici certifies that this brief was not authored in whole or in part by counsel
for any party and that no person or entity other than amici and
their counsel has made a monetary contribution intended to fund
the preparation or submission of this brief. All parties have consented to the filing of this brief.
2
for most citizens to carry firearms for self-defense. In
the nineteenth century, most courts recognized that
such broad bans were unconstitutional; they upheld
narrower prohibitions against the carrying of concealed weapons only because such laws still granted
individuals a reasonable avenue to exercise their right
by bearing arms openly. See, e.g., State v. Reid, 1 Ala.
612, 619 (1840); Wilson v. State, 33 Ark. 557, 559–60
(1878); Nunn v. State, 1 Ga. 243, 251 (1846); Andrews
v. State, 50 Tenn. (3 Heisk.) 165, 192 (1871).
Some courts and commentators now argue that
these restrictive judicial decisions actually reflect a peculiarly Southern “permissive” culture. They posit another common-law regulatory tradition that generally
prohibited Americans from carrying weapons in public
for self-defense. And, they claim, certain nineteenthcentury surety statutes continued the common-law restrictions by prohibiting carrying weapons, except by
those who had reasonable grounds to fear attack. They
call this the “Massachusetts model,” which supposedly
demonstrates that early Americans did not recognize a
Second Amendment right to public carry, except (perhaps) by a person who was at imminent risk of attack.
These claims are based on a false historical account
and flawed legal reasoning.
I. The eighteenth-century American commonlaw offense of going armed to the terror of the people
did not prohibit the carrying of firearms for lawful purposes.
3
A. Some have argued, based on the Statute of
Northampton, 2 Edw. 3 c. 3 (1328), that English law
prohibited publicly going armed, but this reading conflicts with substantial historical evidence. Despite its
broad language, English judges understood the Statute of Northampton to prohibit the carrying of arms
only when done in terrorem populi.
In any event, eighteenth-century American common law was not coextensive with English common
law or with fourteenth-century English statutory law.
Early American statutes implementing the commonlaw offense uniformly required that a person went
armed “to the terror of the people” or some equivalent language. American courts of record likewise
uniformly held that merely going armed was not a
common-law crime; a person committed the commonlaw offense only when he went armed with a “wicked
purpose” and created the “mischievous result” of terrorizing the public. E.g., State v. Huntly, 25 N.C. (3
Ired.) 418, 423 (1843).
B. The common law was not used to prevent people from carrying arms for lawful purposes. American
common law only criminalized those who “abused” the
right to carry arms. State v. Roten, 86 N.C. 701, 704
(1882). While the precise contours of what constituted
“abuse” may be unclear, that is because the commonlaw offense was rarely prosecuted in England or in this
country, and few judicial decisions examine the offense.
Searches of available newspaper databases produce
few reports of arrests for the crime in the United
States during the nineteenth century.
4
Most importantly, common-law prosecutions for
carrying weapons for self-defense are almost nonexistent. The handful of examples known to exist involve
African-American defendants and likely involve racist
prosecutions. One case did result in a conviction in police court, but the prosecutor abandoned the case on
appeal. There was no tradition of prosecuting people
under the common law when they carried arms for
lawful purposes.
II. In the mid-nineteenth century, ten jurisdictions patterned their new legal codes on Massachusetts’ Revised Statutes. Within these enormous new
legal codes, one provision authorized justices of the
peace to require sureties under certain circumstances
from those who went armed. These laws are not evidence that legislatures had discretion to ban publicly
carrying firearms for lawful self-defense.
A. The surety laws were not criminal prohibitions on public carry. At most, an individual who went
armed would have to post a bond and pledge that he
would not commit an act of violence or otherwise
breach the peace. The application of surety laws in almost all jurisdictions was further restricted by a standing requirement that a plaintiff could not seek a surety
unless he had “reasonable cause to fear an injury” or
a “breach of the peace.” Infra p. 24. This standing requirement made surety laws largely irrelevant to
those carrying weapons for lawful purposes.
Eighteenth-century newspaper stories strongly
corroborate that these laws did not prohibit or
5
restrict the carrying of weapons for self-defense. Much
like their counterparts in the South, legislatures
in so-called “Massachusetts model” states primarily
regulated public carry by restricting the carrying of
concealed weapons. And some jurisdictions—including Massachusetts itself—had no law prohibiting the
carrying of weapons for self-defense, whether openly or
concealed.
B. There is strong evidence that the surety laws
were largely ignored. There is not a single nineteenthcentury decision in any court of record deciding a case
involving a surety law. And there are few known cases
in justice of the peace courts, let alone cases that involve allegations of carrying weapons for lawful selfdefense. Laws that have fallen into desuetude cannot
demonstrate either a settled historical practice or a liquidation of the Second Amendment’s meaning. This
Court should not be misled by those who seek to conjure a Second Amendment that reflects only the policy
preferences of today’s gun control advocates.
---------------------------------♦---------------------------------
ARGUMENT
From the earliest American judicial decisions,
courts have recognized that the Second Amendment
and state analogues protect two distinct rights: keeping arms and carrying them. See, e.g., Nunn v. State, 1
Ga. 243, 251 (1846); Aymette v. State, 21 Tenn. (2 Hum.)
154, 158 (1840); see also District of Columbia v. Heller,
554 U.S. 570, 581–92 (2008). Many courts have upheld
6
limited place and manner restrictions. These include
prohibitions against carrying concealed weapons, the
carrying of firearms in sensitive places such as courthouses, and carrying firearms while intoxicated. See,
e.g., State v. Reid, 1 Ala. 612, 619 (1840); State v. Chandler, 5 La. Ann. 489, 490 (1850); State v. Shelby, 2 S.W.
468, 469 (Mo. 1886); State v. Kerner, 107 S.E. 222, 225
(N.C. 1921). But courts have routinely struck down
broad prohibitions against the public carrying of weapons that constitute “arms” within the meaning of the
Second Amendment or state analogues. See, e.g., Wilson v. State, 33 Ark. 557, 559–60 (1878); Nunn, 1 Ga. at
243; In re Brickey, 70 P. 609 (Idaho 1902); Kerner, 107
S.E. 222; Andrews v. State, 50 Tenn. (3 Heisk.) 165, 192
(1871); State v. Rosenthal, 55 A. 610 (Vt. 1903); see also
Reid, 1 Ala. at 619 (upholding ban on concealed weapons but explaining that a ban on unconcealed weapons
would be unconstitutional); Chandler, 5 La. Ann. at
490 (similar).
Recently, some commentators and courts have
tried to resist this overwhelming precedent by embarking on a rewrite of history. They contend that decisions
upholding restrictions only on concealed carry reflect
an anomalously permissive approach because these decisions acknowledge that individuals may carry arms
openly. Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum
Case Law in Context, 125 YALE L.J.F. 121, 124 (2015).
They claim that this putatively permissive approach
was unique to the South, id. at 128, and they contrast
it with what they call the restrictive “Massachusetts
7
model.” The Massachusetts model, they claim, “generally restrict[ed] public carry with limited exceptions
for people with reasonable cause to fear attack.” Id. at
133.
As evidence, these commentators point to surety
statutes adopted in ten jurisdictions, most of which required an individual to find “sureties of the peace” upon
“complaint of any person having reasonable cause to fear
an injury, or breach of the peace” if the person “shall go
armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause
to fear an assault or other injury, or violence to his person, or to his family or property.” Of Proceedings to Prevent the Commission of Crimes, ch. 134, § 16, in THE
REVISED STATUTES OF THE COMMONWEALTH OF MASSACHUSETTS, 748, 750 (Boston, Dutton & Wentworth
1836) [hereinafter REV. STAT. OF MASS.]. They claim
that these laws were lineal descendants of the common-law offense of “going armed to the terror of the
people,” which supposedly banned carrying weapons in
public. Ruben & Cornell, supra, at 130. Some courts
have accepted this revisionist history. See, e.g., Young
v. Hawaii, 992 F.3d 765, 799–800 (9th Cir. 2021) (en
banc); Norman v. State, 215 So.3d 18 (Fla. 2017).
The historical record refutes these claims. Both
the common-law offense and the surety statutes governed circumstances in which a person’s public carrying of weapons threatened to breach the peace. Neither
restricted public carry for lawful purposes. Worse, any
consensus about the meaning of the constitutional
right to bear arms that might be inferred from these
8
sources is a mirage. There is virtually no evidence that
they were commonly enforced in this country, or, more
relevantly, that they were enforced against people carrying firearms for lawful purposes. Unenforced laws
cannot imply a societal consensus about anything, let
alone the kind of settled historical practice that might
be relevant to interpreting the meaning of the Constitution.
I.
The Common-Law Crime of Going Armed
to the Terror of the People Did Not Apply
to Peaceful Carry
Courts holding that the Second Amendment does
not protect a right to bear arms in public have relied
heavily upon the common law, which prohibited going
armed to the terror of the people, and the fourteenthcentury Statute of Northampton, which was said to be
“an affirmance of ” that common-law crime, Sir John
Knight’s Case (1686) 87 Eng. Rep. 75, 76 (K.B.). See,
e.g., Young, 992 F.3d at 787–93. The Statute of Northampton provided:
[T]hat no man great nor small, of what condition soever he be, except the King’s servants
in his presence, and his ministers in executing
of the King’s precepts, or of their office, and
such as be in their company assisting them,
and also [upon a cry made for arms to keep
the peace, and the same in such places where
such acts happen,] be so hardy to come before
the King’s justices, or other of the King’s ministers doing their office, with force and arms,
9
nor bring no force in affray of the peace, nor to
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,
upon pain to forfeit their armour to the King,
and their bodies to prison at the King’s pleasure.
2 Edw. 3 c. 3 (1328) (footnote omitted).
Relying on the common law and the Statute of
Northampton to support broad restrictions against
public carry in the United States is wishful thinking.
American statutes recognizing the offense did not
make the carrying of weapons a crime unless it was
done to the terror of the people. Even then, the common-law crime was seldom enforced here, and there
was no tradition of applying the crime against public
carry for lawful purposes.
A. American Common Law Did Not Ban
Public Carry
At the time of the Framing, American common law
did not prohibit individuals from going armed for lawful purposes. The effort to rewrite the history of public
carry in the United States by relying on the (alleged)
history of English practice rests on a series of profound
mistakes.
1. The English historical record does not support
claims that the Statute of Northampton traditionally
served to prohibit the carrying of weapons for lawful
purposes.
10
Whatever the statute was meant to do in the fourteenth century, it evidently had fallen into desuetude
long before our nation was founded. See, e.g., STEPHEN
P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE PEOPLE OR A PRIVILEGE OF THE RULING CLASS?, 42–58 (2021); JOYCE LEE MALCOLM, TO KEEP
AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN
RIGHT 102–06 (1994). As the Ninth Circuit conceded,
“[w]e have record of few indictments under the Statute
of Northampton.” Young, 992 F.3d at 789.
More difficult than finding someone charged under the statute is finding someone convicted for violating it. At the time of the Framing, the only significant
precedent involving the statute was Sir John Knight’s
Case (1686) 87 Eng. Rep. 75 (K.B.). Depending on
which case report one reads, the Chief Justice said either that “the meaning of the statute . . . was to punish
people who go armed to terrify the King’s subjects,” id.
at 76, or that “tho’ this statute be almost gone in desuetudinem, yet where the crime shall appear to be malo
animo, it will come within the Act (tho’ now there be a
general connivance to gentlemen to ride armed for
their security),” R v. Sir John Knight (1686) 90 Eng.
Rep. 330 (K.B.). Knight, moreover, was acquitted by the
jury. Id. While the reason for Knight’s acquittal may be
the subject of academic curiosity, the case cannot possibly demonstrate that, around the time of the Framing, the Statute of Northampton applied against those
who carried weapons for self-defense. No such cases
are known to exist.
11
In an effort to find any precedent suggesting that
English law broadly banned public carry, the Ninth
Circuit relied on Chune v. Piott (1615) 80 Eng. Rep.
1161 (K.B.). Young, 992 F.3d at 790. But the court inaccurately portrayed Justice Croke’s opinion in Chune.
The Ninth Circuit stated that the King’s Bench “concluded that . . . [t]he sheriff could arrest a person carrying arms in public ‘notwithstanding he doth not
break the peace.’ ” Young, 992 F.3d at 790 (quoting
Chune, 80 Eng. Rep. at 1162). But Justice Croke actually said that the sheriff could arrest “notwithstanding
he doth not break the peace in his presence.” Chune, 80
Eng. Rep. at 1162 (emphasis added). This is almost the
opposite of what the Ninth Circuit would have us believe. See David B. Kopel & George A. Mocsary, Errors
of Omission: Words Missing from the Ninth Circuit’s
Young v. Hawaii, 2021 U. ILL. L. REV. ONLINE 172, 175–
76.
2. But even if the Statute of Northampton had
applied more broadly in England, it still would not
matter for this case. Conflating English practice with
American law is legally and historically wrong. “The
common law of England is not to be taken in all respects to be that of America. Our ancestors brought
with them its general principles, and claimed it as
their birthright; but they brought with them and
adopted only that portion which was applicable to their
situation.” Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 144
(1829).
Unlike the Statute of Northampton—but consistent with Knight’s Case—every analogous early
12
American statute expressly provided that going armed
was a crime only when it was done “to the terror of the
people” (or some equivalent phraseology). See Nelson
Lund, The Future of the Second Amendment in a Time
of Lawless Violence, 116 NW. L. REV. (forthcoming
2021) (manuscript at 23), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3701185 (collecting statutes).
There appear to be few examples of either these
statutes or the common law being enforced in this
country. See infra Part I.B. That alone suggests the offense was rarely committed, presumably because it applied only to extraordinary behavior, which carrying a
weapon in public was not. In any event, what little judicial precedent can be found refutes the notion that
American common law criminalized the carrying of
firearms for lawful self-defense, or that applying the
common law in that manner would have been constitutional.
The only significant nineteenth-century judicial
decision involving the common-law offense came from
the North Carolina Supreme Court in State v. Huntly,
25 N.C. (3 Ired.) 418 (1843). That case did not involve
lawful self-defense. The court’s reporter of decisions
recorded the facts as the defendant went armed with a
gun and threatened to murder the victim to resolve a
dispute over slaves. Id. at 419. On appeal, the defendant argued that the indictment did not allege a recognized common-law crime. Id. at 420.
13
Leaving no doubt about the right to carry firearms
for lawful purposes, the North Carolina Supreme
Court stated:
[I]t is to be remembered that the carrying of a
gun per se constitutes no offence. For any lawful purpose—either of business or amusement—the citizen is at perfect liberty to carry
his gun. It is the wicked purpose—and the
mischievous result—which essentially constitute the crime. He shall not carry about this
or any other weapon of death to terrify and
alarm, and in such manner as naturally will
terrify and alarm, a peaceful people.
Id. at 422–23. The court affirmed Huntly’s conviction
because he publicly went armed in a violent manner.
See id. at 421–22.
Since Huntly, North Carolina’s courts have understood the common-law crime to apply only to those who
“abused” the right to bear arms by carrying arms “to
terrify and alarm, and in such manner as naturally
will terrify and alarm a peaceful people.” State v. Roten, 86 N.C. 701, 704 (1882) (quoting Huntly, 25 N.C. at
423); accord Kerner, 107 S.E. at 225 (“It would also be
a reasonable regulation and not an infringement of the
right to bear arms to prohibit the carrying of deadly
weapons . . . in a manner calculated to inspire terror,
which was forbidden at common law.”). In its most
significant exposition of the common-law offense, the
North Carolina Supreme Court defined “the essential elements of the crime” to be that the defendant
“(1) armed himself with unusual and dangerous
14
weapons . . . (2) for the unlawful purpose of terrorizing
the people . . . , and, (3) thus armed, he went about the
public highways of the county (4) in a manner to cause
terror to the people.” State v. Dawson, 159 S.E.2d 1,
11–12 (N.C. 1968). Carrying firearms for lawful selfdefense would not satisfy these elements.
The Tennessee Supreme Court also construed the
common-law crime narrowly. In Simpson v. State, the
defendant was charged with an affray because “with
force and arms” he was “arrayed in a warlike manner,
in a certain public street or highway situate.” 13 Tenn.
(5 Yer.) 356, 361 (1833). The court primarily held that
the indictment was insufficiently specific. Id. at 362.
But the court also explained that merely being armed
could not constitute “an independent ground of affray”
because that would violate the constitutional right to
bear arms. Id. at 360 (“[A]fter so solemn an instrument
[as the state’s constitution] hath said the people may
carry arms, can we be permitted to impute to the acts
thus licensed such a necessarily consequent operation
as terror to the people to be incurred thereby; we must
attribute to the framers of it the absence of such a
view.”).
None of the North Carolina or Tennessee decisions
even suggests that American law criminalized the carrying of firearms for lawful self-defense. They recognized that interpreting the offense so broadly would
violate the constitutional right to bear arms.
3. Whatever restrictions speculation might impute to English common law, the right to bear arms
15
protected by the Second Amendment and many state
constitutions was widely acknowledged to be broader
than its English counterpart. See Aymette, 21 Tenn. (2
Hum.) at 158 (explaining that the constitutional right
to bear arms is much broader than the version in the
English Bill of Rights). The English Bill of Rights was
narrower on its face than American constitutional provisions. Moreover, although the English Bill of Rights
guaranteed that “the subjects which are Protestants
may have arms for their defense suitable to their conditions, and as allowed by law,” An Act Declaring the
Rights and Liberties of the Subject, and Settling the
Succession of the Crown (Bill of Rights) 1689, 1 W. &
M., c. 2 (Eng.), in 9 STATUTES AT LARGE 67, 69 (Pickering
1764), that privilege, as Justice Story explained, “under
various pretences . . . ha[d] been greatly narrowed,” and
by the time of the Framing, was more “nominal than
real,” 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1891, at 608 (Boston,
Hilliard, Gray, & Co. 1833). To the extent that the
American right to bear arms could conceivably have
conflicted with some ancient English statute, that statute would not be recognized as part of the common law
in the United States. Simpson, 13 Tenn. at 359; see also
CHARLES HUMPHREYS, A COMPENDIUM OF THE COMMON
LAW IN FORCE IN KENTUCKY 482 (Lexington, Ky., William Gibbes Hunt 1822) (“Riding or going armed with
dangerous or unusual weapons, is a crime against the
public peace. . . . But here it should be remembered,
that in this country the constitution guarantees to
all persons the right to bear arms; then it can only be
16
a crime to exercise this right in such a manner, as to
terrify the people unnecessarily.”).
B. The Common-Law Crime Had Little
Known Record of Enforcement
The vigorous modern debate about the commonlaw crime of going armed to the terror of the people is
made possible by the fact that this crime largely went
unenforced. But this fact cuts in favor of the petitioners: there is no historical tradition in this country of
using the common law to prevent people from carrying
arms for self-defense.
There is very little discussion of the common-law
offense in courts of record. North Carolina was one of
the few jurisdictions with a judicial decision recognizing and applying the offense. See Huntly, 25 N.C. (3
Ired.) 418. In 1968, the North Carolina Supreme Court
reported that “prosecutions for the common-law crime
of going armed to the terror of the people have been
infrequent.” Dawson, 159 S.E.2d at 11.
Although it is difficult to search justice of the
peace records, one amicus has searched nineteenthcentury newspaper databases for evidence that individuals were arrested for going armed to the terror of
the people. See Robert Leider, Constitutional Liquidation, Surety Laws, and the Right to Bear Arms, in NEW
HISTORIES OF GUN RIGHTS AND REGULATION: ESSAYS ON
THE PLACE OF GUNS IN AMERICAN LAW AND SOCIETY (Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller
17
eds., forthcoming ___) (manuscript at 18).2 In August
2020, searches of the Library of Congress newspaper
database from 1800–1900 of the exact phrase “armed
to the terror of the people” or “armed offensively” produced 68 and 37 results, respectively. A search of
Newspapers.com of “armed to the terror of the people”
during the same time period produced 28 results. A
search of that database for “armed offensively” produced 23 matches. Very few of these results—at most
a handful—are reports of arrests or court proceedings.
Id. Contrast these results with searches of the same
databases for the phrase “carrying concealed weapons.”
In a search of newspapers between 1800 and 1900, the
Library of Congress database returned 24,531 results,
including reports of more arrests than can be readily
counted. Id. The Newspaper.com database returned
104,474 matches for the phrase. Id. These statistics indicate that almost all nineteenth-century arrests for
carrying weapons were for violations of statutory law,
primarily laws against carrying concealed weapons.
Even more rare is finding defendants charged
with going armed to the terror of the people when the
defendants carried weapons for lawful self-defense.
One such case occurred on April 5, 1851. Two brothers,
Isaac and Charles Snowden, were arrested in Boston
while carrying concealed weapons. Arrests for Carrying Concealed Weapons, THE LIBERATOR, Apr. 11, 1851,
at 59. Both were charged with going armed offensively
to the terror of the people. Id. The Justice of the Peace
2
A draft of the chapter is available at https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=3697761.
18
ordered Charles to find a surety to keep the peace.
Docket, Commonwealth v. Snowden, No. 1443 (Bos. Police Ct. Apr. 5, 1851).
But Isaac’s case proceeded to a criminal judgment.
In court, “[t]he [arresting] watchmen testified that the
only reason for [the Snowdens’] arrest was [their] being seen walking up and down before the chained
Court House” at 1:00 AM, and that “they neither spoke
to, threatened, nor struck anyone” and that “there was
nothing about them suspicious, but their presence in
the street at that hour.” Arrests for Carrying Concealed
Weapons, supra, at 59. The defendants testified that
they carried the weapons for protection. Id. The Justice
of the Peace convicted Isaac and fined him $1, taxed
him $6 in costs, and required him to post a $500 bond
to appeal. Id.3
A contemporaneous newspaper account was incredulous that “walking peacefully, up and down the
street, with arms in your pocket, which you neither use
nor threaten to use” could constitute going armed offensively to the terror of the people. Id. The newspaper
also believed the high appeal bond resulted from the
fact that Isaac was poor and African-American. Id.
Isaac appealed his conviction to the Municipal
Court. If mere public carry were enough to constitute
3
The newspaper incorrectly reported a $600 appeal bond.
For the correct amount, see Commonwealth v. Snowden, Bos. Police Ct. R. Book 1117 (May 1851). All records from Massachusetts
unreported case decisions can be found at https://www.law.gmu.
edu/faculty/docs/unreported_massachusetts_cases.
19
the common-law crime, his appeal would have been
meritless; he was caught red-handed, and in 1851, he
could not challenge the admission of evidence using
the exclusionary rule. See Commonwealth v. Wilkins,
138 N.E. 11, 12 (Mass. 1923) (holding that unconstitutionally seized evidence was admissible), abrogated by
Mapp v. Ohio, 367 U.S. 643, 655 (1961). Yet, on appeal,
the Commonwealth abandoned the prosecution, declaring: “And now said Snowden having behaved quietly & peaceably, [and] the object of the prosecution
being satisfied by the preservation of the peace, I will
no further prosecute said Snowden on this appeal &
complaint.” Complaint, Commonwealth v. Snowden,
No. 1443 (Bos. Police Ct. Apr. 5, 1851); see also Commonwealth v. Snowden, Bos. Police Ct. R. Book 1117
(May 1851) (similar). This dropped prosecution cannot
possibly tell us what the common law forbade.
The common law requires cases for development.
Cases involving going armed to the terror of the people
were few, and cases involving defendants engaged in
lawful activities extraordinarily rare. Consequently,
there was little judicial development of the offense’s essential elements or of the limits that the constitutional
right to bear arms would impose. There is no basis for
concluding that the common law forbade carrying
weapons in public.
II.
Surety Laws
Claims that mid-nineteenth-century surety laws
show the absence of a right to carry weapons in public
20
are based on a provision in the first Massachusetts legal code. In 1832, the Massachusetts General Court
authorized the creation of a Commission “to revise, collate and arrange . . . the general statutes of the Commonwealth, which are or may be in force at the time
such commissioners may finally report their doings in
the premises.” Resolve Providing for a Revision of the
General Statutes of the Commonwealth, ch. 30, in RESOLVES OF THE GENERAL COURT OF THE COMMONWEALTH
OF MASSACHUSETTS 103 (1832). The product of this effort was the Revised Statutes of the Commonwealth of
Massachusetts, which passed the legislature on November 4, 1835. REV. STAT. OF MASS., supra, at 801. The
Revised Statutes totaled about 800 pages. As major legal codification projects often go, the Revised Statutes
partly compiled existing law and partly revised it. One
revision occurred on page 750, which altered the powers that justices of the peace could exercise over persons going armed. The revised provision, Section 16,
read:
If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to
fear an assault or other injury, or violence to
his person, or to his family or property, he may,
on complaint of any person having reasonable
cause to fear an injury, or breach of the peace,
be required to find sureties for keeping the
peace, for a term not exceeding six months,
with the right of appealing as before provided.
REV. STAT. OF MASS., supra, at 750.
21
Massachusetts’ Revised Statutes served as a template for other states codifying their laws. Nine other
jurisdictions—Wisconsin (1839), Maine (1840), Michigan (1846), Virginia (1848), Minnesota (1851), Oregon
(1853), the District of Columbia (1857), Pennsylvania
(1860), and West Virginia (1870)—adopted an identical
or nearly identical provision to Section 16, authorizing
justices of the peace to bind over some people who carried weapons. App. 1–5.
As an initial matter, it is not clear that the surety
laws are even relevant to interpreting the meaning of
the Second Amendment. As explained below, the laws
did not actually prohibit public carry, and they were
passed approximately a half century after the Second
Amendment’s ratification. They tell us nothing about
how the Founding generation understood the federal
Constitution or the scope of the right to bear arms for
self-defense.
Nor do the surety laws reflect any known post-enactment effort to liquidate the meaning of the right to
bear arms. It may be, as James Madison believed, that
“All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature
deliberation, are considered as more or less obscure
and equivocal, until their meaning be liquidated and
ascertained by a series of particular discussions and
adjudications.” THE FEDERALIST NO. 37, at 236 (James
Madison) (Jacob E. Cooke, ed. 1961). But there is no
known evidence that the Massachusetts legislature—
or any of the legislatures that copied the Massachusetts provision—reached any considered judgment
22
about the scope of the Second Amendment when enacting the surety laws. In fact, there is no known evidence
that they debated the surety laws or their constitutionality at all. See Leider, supra, at 12. These surety laws
were a minor justice of the peace provision buried in
huge code reform projects.
That leaves settled practice. In District of Columbia v. Heller, this Court looked to post-enactment practice “to determine the public understanding” of the
Second Amendment “in the period after its enactment
or ratification.” 554 U.S. at 605. And in other contexts,
this Court has looked to post-enactment practice to
settle the meaning of disputed constitutional provisions. See, e.g., NLRB v. Noel Canning, 573 U.S. 513,
527–38 (2014) (looking to post-enactment practice to
determine what constitutes a legislative “recess”).
Some commentators and judges have argued that
the surety laws demonstrate that settled nineteenthcentury historical practice restricted public carry to
those who had reasonable cause to fear attack. This is
wrong. The surety statutes, on their face, did not prohibit public carry for lawful purposes, and the evidence
strongly suggests that the statutes were rarely invoked. A fortiori, they would not have been enforced
against those carrying weapons for lawful purposes.
23
A. The Surety Statutes Did Not Prohibit
Carrying Firearms for Lawful Purposes
1. Some commentators have pointed to the Massachusetts law and concluded that it “forbade arming
oneself except in unusual situations,” Saul Cornell, The
Right to Carry Firearms Outside of the Home, 39 FORDHAM URB. L.J. 1695, 1720 (2012). That characterization
is demonstrably false.
Massachusetts-style surety laws simply required
that, in some cases, persons going armed could be required to find sureties to keep the peace. Surety laws
were not criminal statutes. As Blackstone explained,
sureties served as a:
caution . . . intended merely for prevention,
without any crime actually committed by the
party, but arising only from 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 impudence in giving just ground of
apprehension.
4 WILLIAM BLACKSTONE, COMMENTARIES *251–52. Surety
laws were a means to prevent the commission of a
crime; they were not a means of prosecuting violations
of the criminal law. This is why states that actually
sought to restrict public carry—including those that
already had surety laws—passed criminal laws governing the carrying of concealed weapons. See App. 6–
11.
24
2. Not only were the surety laws not criminal,
they would have been difficult to invoke against public
carry for lawful purposes. A person would only have
standing to file a complaint if the person had “reasonable cause to fear an injury” or a “breach of the peace.”4
As a Wisconsin justice of the peace manual makes
clear, the form complaint required that the plaintiff
have “reasonable cause to fear a breach of the peace,
and personal injury at the hands of the [defendant].”
THOMAS W. WATERMAN, THE WISCONSIN AND IOWA JUSTICE 620 (New York, Banks, Gould & Co. 1853). The
“reasonable cause” self-defense exception only kicked
in after the plaintiff could plead reasonable cause to
fear injury or a breach of the peace. And even if the
self-defense exception failed, a person would only have
to post a surety to keep the peace; the carrying of a
weapon was still not a crime.
Although the surety law remained on the books for
decades, there is little evidence that Massachusetts
viewed this law as a significant limitation on public
carry. To the contrary, when the legislature wanted to
impose restrictions on public carry, it enacted new criminal statutes. Beginning in 1850, Massachusetts made
it a crime for a person to be “armed with any dangerous
weapon, of the kind usually called slung shot” when
committing or being arrested for committing a crime.
4
Virginia (and West Virginia after separation) did not adopt
the standing limitation. App. 4–5. But what little information
about it amici have found suggests that Virginia’s surety law was
not seriously enforced. See infra p. 32.
25
Act of Apr. 15, 1850, ch. 194, § 1, 1850 Mass. Acts 401,
App. 6. This statutory crime soon expanded to cover
other dangerous weapons. 1860 Mass. Stat. ch. 164,
§ 10, App. 7. Newspaper accounts indicate that this law
became the principal way in which Massachusetts
punished some people for carrying concealed weapons.
See, e.g., About Concealed Weapons, BOS. DAILY GLOBE,
June 9, 1898, at 4 (explaining that, in Suffolk County
(which includes Boston), “it is customary to prosecute”
individuals found with concealed weapons when arrested for “disturbance of the peace or of any offense
more serious than drunkenness”).
Massachusetts restricted public carry further in
1893, when it prohibited armed bodies of men from
drilling and parading with firearms. 1893 Mass. Stat.
ch. 367, § 124. The passage of this law is hardly consistent with an understanding that individuals had already been forbidden since 1836 to carry firearms
except when they were in danger.
There is also circumstantial evidence that the
Massachusetts Supreme Judicial Court did not view
the surety law as a general ban on public carry. In
1896, the court resolved a constitutional challenge to
the prohibition against parading with firearms. Commonwealth v. Murphy, 44 N.E. 138 (Mass. 1896). Citing
this Court’s decision in Presser v. Illinois, 116 U.S. 252
(1886), the court held that “[t]he right to keep and bear
arms for the common defense does not include the
right to associate together as a military organization.”
Murphy, 44 N.E. at 138. The court, moreover, noted that
“[t]he protection of a similar constitutional provision
26
has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legislature may regulate and limit
the mode of carrying arms.” Id. For support, the decision went on to cite seven Southern cases and an early
Indiana case, id.,—the same state cases that Massachusetts-model proponents claim lacked influence outside the South. See Ruben & Cornell, supra, at 123–24.
Murphy is also significant because of what the
opinion did not say. The court omits any mention of the
surety statute. Yet, if Massachusetts had generally
prohibited public carry since 1836 (and if that were
thought constitutional), then it would have followed
that the state could ban public carry in a parade. Yet,
the Supreme Judicial Court did not mention Massachusetts’ supposed 60-year history of banning public
carry.
3. Nineteenth-century Massachusetts newspaper accounts indicate that the surety law did not ban
public carry. Percy A. Bridgham, a member of the Suffolk County bar, answered readers’ legal questions
in the Boston Daily Globe. In 1889, someone asked
whether it was unlawful to carry concealed weapons.
Bridgham responded that Massachusetts law only
criminalized carrying weapons while being arrested,
but that law “does not prohibit any one from carrying
weapons with which to defend themselves.” Carrying
Weapons, BOS. DAILY GLOBE, Jan. 18, 1889, at 4. In a
book Bridgham published with a collection of legal
questions, he noted that “[t]here is no statute in this
State which expressly forbids the carrying of weapons,
27
but there is a statute that provides that a person so
carrying may be required to give bonds to keep the
peace.” See PERCY A. BRIDGHAM, ONE THOUSAND LEGAL
QUESTIONS ANSWERED BY THE PEOPLE’S LAWYER OF THE
BOSTON DAILY GLOBE 129 (1890); see also id. at 170
(“There is no penalty in this State for carrying concealed weapons, except in cases where they are found
on a person who is attempting to commit another
crime.”). Bridgham finally grew exasperated answering the question, and in 1896 wrote:
The law in regard to concealed weapons has
been answered in this column until it is worn
out, and will not be responded to hereafter.
There is practically no law against carrying
concealed weapons in New Hampshire or
Massachusetts. If a person committing an offense is found to have weapons he can be punished for it, but you can carry as many as you
can pile on if you do not commit any crime
while doing so.
BOS. DAILY GLOBE, June 29, 1896, at 4. In 1895, the Boston Daily Advertiser also reported that “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.” Concealed Weapons, BOS. DAILY
ADVERTISER, July 13, 1895, at 4.
Newspaper accounts in other surety states confirm that their surety laws were not bans on public
28
carry. Michigan passed its surety law in 1846. Yet, in
1873, the Detroit Free Press reported that “in this State
there is no statute whatever against the carrying of
concealed weapons.”5 Concealed Weapons, DETROIT
FREE PRESS, Feb. 26, 1873, at 2. The newspaper also believed that if the surety law were a broad restriction
on public carry, it would violate the state and federal
right to bear arms because the law “makes no distinction between the open and secret carrying of weapons.”
Id. Pennsylvania passed its surety law in 1860. See
App. 4. Yet, The Philadelphia Inquirer reported decades later that Pennsylvania law did not prohibit carrying weapons openly nor did it prohibit carrying
concealed deadly weapons with lawful intent. See
Deadly Weapons, PHILA. INQUIRER, Dec. 30, 1897, at 2
(recognizing that Pennsylvania law did not prohibit
carrying arms openly and that “the right to openly bear
arms is guaranteed by the federal constitution” (capitalization altered)); Everybody’s Column, PHILA. INQUIRER, Nov. 25, 1900, at 8.
Newspaper accounts of unreported cases confirm
this. In 1899, a man who had been twice previously
committed to an asylum entered Philadelphia City
Hall visibly armed and sought an interview with the
Mayor. EVENING J., Dec. 15, 1899, at 2. Police disarmed
him, and arrested him for carrying a concealed deadly
weapon. Id. The court acquitted him and “allowed him
to go forth armed” because “[h]is deadly weapon was
5
Michigan restricted the carrying of concealed weapons in
1887. App. 7.
29
not concealed and the law does not prohibit lunatics
from carrying unconcealed weapons.” Id.
4. Like Massachusetts, virtually every other
surety jurisdiction eventually adopted statutory criminal laws restricting the carrying of concealed weapons. Proceeding chronologically, Virginia restricted the
carrying of concealed weapons in 1838, Pennsylvania
in 1850, the City of Washington in 1858,6 Wisconsin in
1872, Oregon in 1885, Michigan in 1887, Maine in
1917, and Minnesota in 1917. App. 6–11 (collecting
statutes). None of these laws prohibited carrying firearms openly for self-defense or other lawful purposes.
What some commentators have called the “Southern
model” (prohibiting concealed weapons while allowing
open carry) was not limited to the South. Throughout
much of the country, it was the generally accepted form
of regulating public carry while respecting the right to
bear arms. See, e.g., In re Brickey, 70 P. 609, 609 (Idaho
1902) (“A statute prohibiting the carrying of concealed
deadly weapons would be a proper exercise of the police power of the state. But the statute in question does
not prohibit the carrying of weapons concealed . . . but
prohibits the carrying of them in any manner in cities,
towns, and villages. We are compelled to hold this statute void.”); State v. Nieto, 130 N.E. 663, 664 (Ohio 1920)
6
The City passed a law banning all public carry in 1857, Act
of Nov. 4, 1857, in GENERAL LAWS OF THE CORPORATION OF THE CITY
OF WASHINGTON 75 (Washington, Robert A. Waters 1860), but
modified it to apply only to concealed weapons in 1858 because
members of the city council believed that a complete ban on public
carry would not withstand a court challenge. See Concealed Weapons, EVENING STAR, Nov. 11, 1858, at 3.
30
(“The statute does not operate as a prohibition against
carrying weapons, but as a regulation of the manner of
carrying them. The gist of the offense is the concealment.”).
*
*
*
Some courts have cited the surety laws to claim
that “most states outside of the South in the midnineteenth century prohibited in most instances the
carrying of firearms in public, whether carried concealed or openly.” See, e.g., Norman, 215 So.3d at
30 n.12. But they have bought into a false history.
Even outside the South, the carrying of firearms for
self-defense was generally lawful during the nineteenth century, including in states that adopted
surety laws.
B. The Surety Statutes Have Virtually No
Known Record of Enforcement
Not only did the surety statutes not ban public
carry, there is substantial evidence that these laws
were hardly invoked. Only a few known cases arose under the surety statutes. There is not a single known
decision from a court of record—not one—applying the
surety laws. In the history of the United States, there
have been five cases from courts of record discussing
surety laws. All are from the twenty-first century, and
31
all involve Second Amendment challenges to modern
bans on public carry.7
It is also incredibly difficult to find complaints before justices of the peace seeking a surety because a
person went armed. Proponents of the Massachusetts
model offer only a single case, Grover v. Bullock, in
which the justice of the peace declined to require a
surety. Ruben & Cornell, supra, at 130 n.53. Moreover,
the plaintiff in that case alleged that the defendant
“did threaten to beat, would, main, and kill” him, Complaint, Grover v. Bullock, No. 185 (Worcester Cty. Aug.
13, 1853), so the example does not even suggest that
surety laws restricted the carrying of firearms for lawful self-defense.
Massachusetts model proponents try to explain
away this lack of precedent. They contend that because
these cases were resolved at the justice of the peace
level, we should not expect “Westlaw-searchable case
law.” Ruben & Cornell, supra, at 130 n.53. But lack of
evidence confirming their theory is not evidence in
7
Young, 992 F.3d at 819–20; Grace v. District of Columbia,
187 F. Supp. 3d 124, 140–41 (D.D.C. 2016); Wrenn v. District of
Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017); Norman, 215 So.3d
at 30 n.12; State v. Christian, 274 P.3d 262, 279–80 (Or. Ct. App.
2012) (Edmonds, S.J., dissenting). Two other Pennsylvania cases
quote the provision for reasons not relevant to the weapon-carrying provision. Commonwealth v. Miller, 305 A.2d 346 (Pa. 1973)
(complaint resulting from a husband who threatened in his wife
with a gun in their own home; the question was whether the defendant was entitled to a trial by jury in a surety case); Commonwealth v. Cushard, 132 A.2d 366, 367–68 (Pa. Super. Ct. 1957)
(complaint resulting from a threat of “bodily harm”).
32
support of their theory. Whatever might establish a
constitutionally relevant body of precedent, such precedent cannot be conjured by sheer speculation. Proponents of this theory bear the burden to show a real
tradition or practice.
It is true that archival research in justice of the
peace courts is difficult and many records no longer exist. But there are indirect ways to search for relevant
evidence. Nineteenth-century newspapers routinely
reported on local court matters. One amicus has tried
to locate any news reports of surety cases alleging
the carrying of arms. He has only found a handful of
possible additional cases, involving African-American
defendants in the District of Columbia and Massachusetts. See Leider, supra, at 16–17.
Consistent with this lack of evidence, nineteenthcentury newspapers reported that surety laws were
not actively enforced. Virginia had an unusually broad
surety provision that authorized sureties for anyone
carrying weapons; unlike most states, there was no
standing limitation to those who faced a threat or
feared a breach of the peace. Of Proceedings to Prevent
the Commission of Crimes, ch. 14, § 16, 1847 Va. Acts
127, 129, App. 4–5. Yet, in 1855, the Richmond Dispatch reported, “We have frequently seen deadly weapons in the possession of persons who should not have
been allowed to carry them, in court rooms, but do not
now remember ever having seen the law enforced
against one of them.” Local Matters: Deadly Weapons,
RICHMOND DISPATCH, June 18, 1855, at 2. In 1891,
Bridgham, the Massachusetts lawyer, reported that
33
“inquiry at the office of the clerk of the Municipal
Court reveals the fact that there has not been a single
complaint before the court for the past year” under the
surety statute. P.A. Bridgham, Dangerous Weapons,
BOS. DAILY GLOBE, Sept. 27, 1891, at 20.
Although the Ninth Circuit has claimed that the
surety laws constituted “a severe constraint on anyone
thinking of carrying a weapon in public,” Young, 992
F.3d at 820, that contention has no support in the historical record. It would be easier to argue that modern
criminal statutes prohibiting adultery, see, e.g., N.Y.
PENAL LAW § 255.17 (McKinney 2021); WIS. STAT.
§ 944.16 (West 2021), constitute a “severe constraint”
on extramarital affairs. Unlike the surety laws, these
statutes at least purport to criminalize the behavior in
question. But laws that have fallen into desuetude do
not constrain behavior. Moreover, no one could think
that unenforced laws prohibiting widespread conduct
prove that the laws would be constitutional if they
were ever enforced.
---------------------------------♦---------------------------------
34
CONCLUSION
Amici curiae respectfully request that this Court
hold that the Second Amendment protects the right to
carry a pistol outside the home for self-defense.
Respectfully submitted,
DEREK DEBROSSE
Counsel of Record
CHESHIRE DEBROSSE, P.C.
503 South Front Street,
Suite 240B
Columbus, OH 43215
(888) 399-7863
derek@MunitionsGroup.com
RONALD JAMES LEMIEUX
Co-counsel
#0093536
P.O. Box 19183
Cleveland, OH 44119
(216) 339-3284
rlemieux@
ronaldlemieuxlaw.com
Not admitted to the
U.S. Supreme Court
Attorneys for Amici Curiae
July 20, 2021
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