Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi

Supreme Court briefNov 2, 2023

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NO. 22-915

In the Supreme Court of the United States

________________

UNITED STATES OF AMERICA,

Petitioner,

ZACKEY RAHIMI.

________________

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________________

MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF OF PROFESSOR LORIANNE

UPDIKE TOLER IN SUPPORT OF NEITHER

PARTY

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Lorianne Updike Toler

Swen Parson Hall

Northern Illinois

University College of

Law

DeKalb, IL 60115

(617)595-0837

lupdiketoler@niu.edu

Counsel for Amicus Curiae

November 2, 2023

In the Supreme Court of the United States

______________________

No. 22-915

UNITED STATES OF AMERICA,

Petitioner,

ZACKEY RAHIMI.

_____________________

On Writ of Certiorari

to the United States Court of Appeals,

for the Fifth Circuit

____________________

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF OUT OF TIME

____________________

Pursuant to Supreme Court Rule 37.3, amicus curiae

Professor Lorianne Updike Toler requests leave to file the

following brief in support of neither party in the abovecaptioned matter. In support of that motion, Amicus would

show the following:

1. Movant is an assistant professor at Northern Illinois

University College of Law specializing in constitutional legal history. Amicus Curiae has an interest in the Court

having an informed understanding of the constitutional

history of the Second Amendment.

2. Amicus briefs in support of neither party in this case

were due August 21, 2023. And while Rule 37.3 provides

that motions to extend the time will not be entertained,

Movant hopes the Court will make an exception for the academic project represented by the proposed brief and allow this brief to be filed in advance of the argument that is

scheduled for November 10, 2023. Movant and her counsel

have been working diligently to prepare the brief with the

assistance of law students in Professor Updike Toler’s constitutional history class. Because of the press of Prof. Updike Toler’s academic responsibilities and her students’

schedules, the brief has only recently been completed.

3. Both the Petitioner and the Respondent take no position on the relief requested in this motion.

4. Movant’s proposed brief would assist the Court in resolving this case. In N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen, 142 S. Ct. 2111 (2022), the test that the Court applied “requires courts to assess whether modern firearms

regulations are consistent with the Second Amendment’s

text and historical understanding.” Movant’s proposed

amicus brief provides a unique form of neutral historical

background on domestic violence and disarming of dangerous citizens before and during the Founding as well as

the possible gloss provided by the “rule of thumb” (limiting

the size of the implements of domestic violence to the

width of a man’s thumb) on the Second Amendment.

Accordingly, Movant respectfully requests leave to file

the enclosed amicus curiae brief in support of neither

party.

Respectfully submitted,

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Lorianne Updike Toler

Swen Parson Hall

Northern Illinois

University College of

Law

DeKalb, IL 60115

(617)595-0837

lupdiketoler@niu.edu

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether 18 U.S.C. 922(g)(8), which prohibits the

possession of firearms by persons subject to domestic

violence restraining orders, has any historical analogues

under NY State Rifle Assoc. v. Bruen, 597 U.S. ___ (2022)

and thus violates the Second Amendment on its face?

(I)

TABLE OF CONTENTS

Question presented ............................................................. I

Table of authorities ............................................................ IV

Statement of interest .......................................................... 1

Summary of argument ........................................................ 2

Argument ............................................................................. 4

A Husband’s Right to Beat His Wife was Limited

by Reasonableness under British Common Law,

Colonial Law, and the Antebellum South by the

Rule of Thumb ............................................................. 4

British Common Law Between 1500-1776

Prevented Husbands From Unreasonably

“Chastising” Wives, Including Killing Them

or Causing Serious Bodily Injury ...................... 4

Colonial Laws Placed Similar Limits on

Husband’s Privileges, but were Frequently

Unenforced ........................................................... 7

The Rule of Thumb as Found in the

Antebellum South at the time of the

Fourteenth Amendment’s Ratification May

Limit the Use of Arms by Domestic Abusers

............................................................................... 8

II. British and Colonial Sources Punished Those

Who Posed a Threat of Violence Against the

Community with Disarmament and Those Who

Posed a Threat of Violence Against Specific

Individuals with Fines............................................... 13

English Law Permitted Seizure of Firearms

from Certain Dangerous Groups ..................... 13

(II)

III

Disarmament and Surety Bonds in Colonial

America Were Often Required of Criminal

Offenders Who Posed Harm or Threats of

Harm to Others .................................................. 14

Under Colonial Law, Those Who Posed a

Violent Threat to the Community as

Opposed to Individuals Could Be Disarmed,

Imprisoned and Fined ....................................... 16

III. During the Founding itself, Only Those Who

Refused to Take an Oath of Allegiance Were

Considered Dangerous enough to the Public to

be Disarmed ............................................................... 19

Conclusion .......................................................................... 24

Addendum:

HAMPSHIRE CHRONICLE (Sep. 23, 1782) ............... add. I

DUBLIN EVENING POST (Sep. 28, 1782) ................... add. II

JAMES GILLRAY, JUDGE THUMB OR STICKS OF LAWFUL

SIZE FOR FAMILY DISCIPLINE, IN THE WORKS OF

JAMES GILLRAY (1847)............................................add. III

JAMES GILLRAY, MR. JUSTICE THUMB IN THE ACT OF

FLAGELLATION, THE RAMBLER (JAN. 1783) ...... add. IV

TABLE OF AUTHORITIES

Cases:

State v. Oliver,

70 N.C. 60 (1874) ............................................................ 12

Fulgham v. State,

46 Ala. 143 (1871) ........................................................... 12

State v. Rhodes,

61 N.C. 453 (1868) .......................................................... 12

Bradley v. State,

1 Miss. 156, 1 Walker 156 (1824) .................................. 12

Dominus Rex v. Lister,

1 Strange 478, 93 Eng. Rep. 645 (K.B. 1721) ............... 5

The King against the Lord Lee,

2 Levinz 127, 83 Eng. Rep. 482 (K.B. n.d.1675) ........... 5

Manby v. Scott,

Siderfin 109, 82 Eng. Rep. 1000, 1001 (Ex. 1659) ....... 5

Wife of Cloburn against Her Husband,

Hetley 150, 124 Eng. Rep. 414 (C.P. n.d.) (1630) ........ 5

Sir Thomas Seymor’s Case, Moore (K.B.) 875, 72 Eng.

Rep. 966 (1615). ............................................................... 5

Statutes:

An Act for Punishing Criminal Offenders 1662, in 1

THE CHARTER GRANTED BY HIS MAJESTY KING

CHARLES THE SECOND, TO THE COLONY OF RHODEISLAND, AND PROVIDENCE-PLANTATIONS, IN

AMERICA (1719) .................................................................. 18

(IV)

Statutes—continued:

An Act for Ordering the Forces in the Several

Counties of this Kingdom (1662), in 5 STATUTES OF

THE REALM (John Raithby ed. 1628-80) .................... 13, 14

The Oaths of Fidelity to his Majesty and the Lord

Proprietor of the Providence of New Jersey 1675,

in GRANTS, CONCESSIONS, AND ORIGINAL

CONSTITUTIONS OF THE PROVINCE OF

NEW-JERSEY: THE ACTS PASSED DURING THE

PROPRIETARY (1753) ........................................................... 21

ENGLISH BILL OF RIGHTS (1689) ...................................... 14

Liberties of Women, COLONIAL LAWS OF MASSACHUSETTS REPRINTED FROM THE EDITION OF 1672,

WITH THE SUPPLEMENTS THROUGH 1686 (1686) ............... 7

An Act for Punishment of Criminal Offenders

1692-1693, in 1 ACTS AND RESOLVES, PUBLIC

AND PRIVATE, OF THE PROVIDENCE OF MASS.

BAY (1869)................................................................ 15, 16, 18

An Act for Punishing Criminal Offenders 1696,

in ACTS AND LAWS OF HIS MAJESTY'S PROVINCE OF

NEW-HAMPSHIRE: IN NEW-ENGLAND; WITH SUNDRY

ACTS OF PARLIAMENT (1771) ............................................. 17

An Act About Binding the Peace (1700), in 2

STATUTES AT LARGE OF PENNSYLVANIA FROM

1682 TO 1801 (1700-1809). ................................................... 15

An Act About Binding the Peace (1700), in 1 LAWS

OF THE STATE OF DELAWARE FROM THE

FOURTEENTH DAY OF OCTOBER, ONE THOUSAND

SEVEN HUNDRED, TO THE EIGHTEENTH DAY OF

AUGUST, ONE THOUSAND SEVEN HUNDRED AND

NINETY-SEVEN (1797) ........................................................ 15

Statutes—continued:

An Act Declaring that All Persons of Foreign Birth,

Heretofore Inhabiting Within This Colony and Dying

Seizes of Any Lands, Tenements, or Hereditaments,

Shall Be Forever Hereafter Deemed, Talem, and

Assumed to Have to Been Naturalized and For

Naturalizing all Protestants of Foreign Birth, Now

Inhabiting this Colony (1715), in LAWS OF

NEW-YORK, FROM THE YEAR 1691, TO 1773

INCLUSIVE (1774) ................................................................ 21

An Act for the Security of His Majesties

Government (1722), in ACTS OF THE GENERAL

ASSEMBLY OF THE PROVINCE OF NEW-JERSEY,

FROM THE TIME OF THE SURRENDER OF THE

GOVERNMENT IN THE SECOND YEAR OF THE REIGN

OF QUEEN ANNE TO THIS PRESENT TIME

(1752) .................................................................................... 20

An Act to Appoint Constables (1751) in 1 REVISAL

OF ALL THE ACTS OF ASSEMBLY, OF THE PROVINCE OF

NORTH-CAROLINA, NOW IN FORCE AND USE (1773) ...... 18

An Act Forbidding and Punishing Affrays (1786), in

REVISED CODE OF THE STATE OF VIRGINIA

(1819) .................................................................................... 17

An Act Directing the Trial of Slaves Committing

Capital Crimes; and for the More Effectual

Punishing Conspiracies and Insurrection of Them;

and For the Better government of Negros,

Mulattoes, and Indians, Bond or Free (1751), in 1

ACTS OF ASSEMBLY, NOW IN FORCE, IN THE COLONY

OF VIRGINIA (1752) ............................................................. 19

VII

Statutes—continued:

An Act for Disarming Papist and Reputed Papist,

Refusing to Take the Oaths to the Government

Statutes at Large 1756, in BEING A COLLECTION OF

ALL THE LAWS OF VIRGINIA, FROM THE FIRST

SESSION OF THE LEGISLATURE (1820) ............................. 20

An Act for the Executing in the Colony of the

Massachusetts Bay, In New England, One Resolve

of the American Congress, Dated 14, 1776,

Recommending the Disarming Such Persons As are

Notoriously Disaffected to the Cause of America…

(1775-1776), in 5 ACTS AND RESOLVES, PUBLIC AND

PRIVATE, OF THE PROVINCE OF THE MASSACHUSETTS

BAY (1886)............................................................................ 22

An Act for Repealing Part of An Act, Entitled “A

Further Supplement to the Act, Entitled ‘An Act for

Further Security of Government; and For Disarming

Person Who Shall Not Have Given Attestations of

allegiance And Fidelity to This State or Some Other

of The United States’” 1778 in 9 STATUTES AT

LARGE OF PENNSYLVANIA FROM 1682 TO 1801

(1776-1779) .......................................................................... 23

An Act Against Treason And Misprision Of Treason

And For Regulating Trials In Such Cases And For

Directing Modes Of Executing Judgements Against

Persons Convicted Of Those Crimes 1777, in

PERPETUAL LAWS OF THE STATE OF NEWHAMPSHIRE, FROM THE SESSION OF THE GENERALCOURT, JULY 1776, TO THE SESSION IN DECEMBER

1788, CONTINUED INTO THE PRESENT YEAR 1789

(1789) .................................................................................... 22

VIII

Statutes—continued:

An Act for Establishing Justices of the Peace and

Vesting Them With Certain Powers (1798), in PUBLIC

LAWS OF THE STATE OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS PASSED SINCE THE SESSION OF

THE GENERAL ASSEMBLY IN JANUARY, A.D. 1798, (17981813) ..................................................................................... 23

An Act Requiring All Persons to Take the Oaths Appointed to Be Taken Instead of Allegiance and Supremacy, in ACTS AND LAWS OF HIS MAJESTY'S PROVINCE OF

NEW-HAMPSHIRE: IN NEW-ENGLAND; WITH SUNDRY

ACTS OF PARLIAMENT (1771) ............................................. 21

1777 N.J. Laws 90, ch. 40 § 20 ........................................... 23

An Act for the Punishment of High-Treason and

Other Atrocious Crimes Against the State, in 1 ACTS

AND LAWS OF THE STATE OF CONNECTICUT IN

AMERICA (1784) .................................................................. 21

Letters:

Letter From Benjamin Lincoln to George

Washington (Dec. 4, 1786), in THE PAPERS OF

GEORGE WASHINGTON DIGITAL EDITION (2008) ............ 24

Letter From James Madison to Thomas Jefferson

(Mar. 19, 1787), THE PAPERS OF JAMES MADISON

DIGITAL EDITION (2010) .................................................... 24

Other authorities:

ABERDEEN PRESS AND JOURNAL (OCT. 14, 1782)............ 10

Jordan J. Al-Rawi, The Case for Relaxing Bruen’s

Historical Analogues Test: Rahimi, 18 U.S.C.

§922(g)(8), and Domestic Violence Regulation in

Colonial and Post-Enactment America, 39 BERKLEY

J. GENDER L. & JUST. 1, 14 (forthcoming Spring 2024) .. 8

Other authorities—continued:

ANSWERS TO CORRESPONDENCE, EUROPEAN

MAGAZINE AND LONDON REVIEW FRONTISPIECE (NOV.

1782) ..................................................................................... 11

Bertram Barnett, Small Arms in the Civil War, Anchor, A

North Carolina History Online Resource,

https://www.ncpedia.org/anchor/small-arms-civil-war

[https://perma.cc/HQ4P-WZPB], (last visited October

30, 2023) ............................................................................... 13

Royce de R. Barondes, The Odious Intellectual Company of Authority Restricting Second Amendment

Rights to the "Virtuous", 25 TEX. REV. L. & POL. 245

(2021) ................................................................................... 14

BATH CHRONICAL AND WEEKLY GAZETTE

(OCT. 3, 1782) ......................................................................... 9

BATH CHRONICAL AND WEEKLY GAZETTE

(JAN. 2, 1783) ....................................................................... 11

Sir William Blackstone, 1 & 4 COMMENTARIES ON

THE LAW OF ENGLAND (1765-1769)

(1979 reprint) .............................................................. 4, 6, 15

CHESTER CHRONICAL (DEC. 24, 1782). ............................ 11

Robert H. Churchill, Gun Regulation, the Police

Power, and the Right to Keep Arms in Early America:

The Legal Context of the Second Amendment, 25 LAW

AND HIST. REV. 139 (2007). ................................................. 19

Sir Edward Coke, INSTITUTES ON THE LAWS OF

ENGLAND (1628-1644) ........................................................ 10

24 THE COLONIAL AND STATE RECORDS

(1777) .................................................................................... 24

Other authorities—continued:

Affraye, John Comwell, THE INTERPRETER, OR, BOOKE

CONTAINING THE SIGNIFICATION OF WORDS (Cambridge: Printed by John Legate 1st ed. 1607) ................. 16

William Prideaux Courtney, Francis Buller, 7 DICTIONARY OF NATIONAL BIOGRAPHY, 1855-1900 ......................... 8

DUBLIN CHRONICAL EVENING POST (Sep. 28, 1782) .. 9, 10

Anthony Fitzherbert, THE NEW NATURA BREVIUM

80F, 179 (London, 1704) ...................................................... 5

G.A. Gilbert, The Connecticut Loyalists, 4 AM. HIST.

REV. 273 (1899) .................................................................. 21

Joseph G.S. Greenlee, The Historical Justification

for Prohibiting Dangerous Persons from Possessing

Firearms, 20 WYO. L. REV. 249 (2020) ............................. 14

HAMPSHIRE CHRONICLE (Sep. 23, 1782). .......... 8, 9, 10, 11

HAMPSHIRE CHRONICAL (DEC. 30, 1782) ......................... 11

Henry A. Kelly, “Rule of Thumb” and the Folklaw of

the Husband’s Stick, 4 J. OF LEGAL EDUC. 353 (1994) . 11

1 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789

(Way and Gideon ed., 1823)............................................... 22

Lyle Koehler, A SEARCH FOR POWER: THE WEAKER

SEX ” IN SEVENTEENTH-CENTURY NEW ENGLAND. Urbana: University of Illinois Press 140-141 (1980) ............ 8

Nelson Lund, The Past and Future of the Individual’s

Right to Arms, 31 GA. L. REV. 1 (1996) ........................... 14

NORFOLK CHRONICAL (Sep. 21, 1782) ................................ 9

Nan Oppenlander, The Evolution of Law and Wife

Abuse, 3 LAW & POL. Q. 382 (1981) ................................... 11

Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-1980, 11 CRIME AND JUSTICE 19 (1989) ........ 7

Other authorities—continued:

SOCIETY OF THE MIDDLE TEMPLE (1782-1909),

https://drive.google.com/file/d/1GD19MSLSsu3oryaqkoKySYieWYqPiB5y/view .......................................... 12

REVISED CROMPTON: LOFFICE ET AUCTORITIE DE JUSTICES DE PEACE (London: 1617) ................................... 5

SALISBURY AND WINCHESTER JOURNAL

(Sep. 23, 1782) ............................................................ 9

1 A TREATISE OF THE PLEAS OF THE CROWN 127,

130 (1724) (2nd. ed.) .............................................................. 5

Christina Vogel, Mapping the Language of Male

Partner Violence: An Historical Examination of Power,

Meaning, and Ambivalence, 29 VIOLENCE AGAINST

WOMEN 2787 (2023) ………………………………..4, 7, 11

In the Supreme Court of the United States

No. 22-915

UNITED STATES OF AMERICA.,

Petitioners,

ZACKEY RAHIMI.

_____________________

On Writ of Certiorari

to the United States Court of Appeals,

for the Fifth Circuit

____________________

BRIEF AMICUS CURIAE

PROFESSOR LORIANNE UPDIKE TOLER

IN SUPPORT OF NEITHER PARTY

____________________

STATEMENT OF INTEREST1

Amicus Curiae Lorianne Updike Toler is an assistant

professor at Northern Illinois University College of Law

who specializes in constitutional legal history. Amicus has

an interest in ensuring that the Court has an informed

understanding of the constitutional history of the Second

Amendment.

No counsel for any party authored this brief in whole or in part,

and no person or entity other than amici or their counsel made a monetary contribution intended to fund the brief ’s preparation or submission.

(1)

SUMMARY OF ARGUMENT

The short answer to the question presented in this case

is “no.” History has not been kind to wives trapped in dangerous marriages. A husband’s “ancient” right to beat his

wife was limited beginning in the 1500s by a “reasonableness” standard under British Common Law. Contemporaneous colonial laws prohibited husbands from committing

acts of physical violence against wives, but these were frequently unenforced. After the Revolution, the “rule of

thumb” was introduced in 1782 in England, supplementing the “reasonableness” standard with a bright line rule

allowing husbands to beat wives with sticks smaller than

the diameter of a judge’s thumb. There is some doubt

whether the infamous and widely-ridiculed “rule of

thumb” nevertheless became the law in England thereafter, but the rule was introduced into the antebellum South

and was prevalent during Reconstruction. The rule of

thumb could potentially provide a gloss on the incorporated Second Amendment in preventing husbands from

using firearms in domestic violence, which were, on average, thicker than a man’s thumb.

History predating the Founding Era suggests a difference in punishments for those who posed a threat of violence against the community as compared to those who

posed a threat of individual violence against specific individuals. English law allowed the seizure of firearms from

certain groups of people who were deemed “dangerous to

the peace of the kingdom.” However, in Colonial America,

surety bonds were often required of criminal offenders

who posed harm or threats of harm to others. Those who

posed a threat to the community were subject to harsher

punishment such as disarmament, imprisonment and

forced fines. This compared to those who posed a threat to

individuals were merely fined.

Comprehensively, there are no pre-Founding laws directly on point which disarmed perpetrators of domestic

violence. However, on a broader level of generality, because domestic violence was considered a crime against

the community, British and pre-Founding history may be

construed to support disarming those who posed a harm

or threat of harm against an individual.

Founding Era sources provide less support for disarmament. Non-association laws were enacted to effectuate the

disarming of those who refused to take an oath of allegiance to the United States. These laws suggest that those

who refused to take an oath of allegiance to the rebel cause

were considered dangerous to public safety and therefore

were disarmed. However, this was the only context in

which individuals were disarmed during the Founding.

In all, the sources presented in this brief do not evidence

any history directly on point supporting disarmament of

domestic abusers, but it may be possible to broadly interpret the rule of thumb or disarmament laws for crimes

against the community as providing translatable historical

analogues for disarming domestic abusers, but this must

be done on a higher level of generality.

ARGUMENT

A Husband’s Right to Beat His Wife was Limited

by Reasonableness under British Common Law,

Colonial Law, and the Antebellum South by the

Rule of Thumb

A. British Common Law Between 1500-1776

Prevented Husbands From Unreasonably

“Chastising” Wives, Including Killing Them or

Causing Serious Bodily Injury

William Blackstone recognized an “antient privilege” of

husbands to beat their wives. Dating back to Roman and

Biblical times, this “privilege” was based in the conception

of wives as property “subject to control.” The privilege of

“wife beating” persisted, but began to be limited begin4

ning in the early modern period. One shift undergirding

this change was “public condemnation of husbands killing

or using extreme forms of violence towards their wives.”

Gradually, this condemnation took on the imprimatur of

Sir William Blackstone, 1 & 4 COMMENTARIES ON THE LAW OF

ENGLAND at 433 (1765-1769) (1979 reprint).

Christina Vogel, Mapping the Language of Male Partner Violence:

An Historical Examination of Power, Meaning, and Ambivalence, 29

VIOLENCE AGAINST WOMEN 2787, 2793 (2023).

Id.

law as judges began penalizing unreasonable violence

against wives.

On the eve of the Revolution, Blackstone confirmed both

the antiquity of the wife-beating privilege and its more

modern limit of reasonableness. Blackstone’s language

(translated from the Latin where necessary) on point is as

follows:

The husband also (by the old law) might give

his wife moderate correction. For, as he is to

answer for her misbehavior, the law thought

it reasonable to intrust him with this power

of restraining her, by domestic chastisement, in the same moderation that a man is

allowed to correct his servants or children;

for whom the master or parent is also liable

Anthony Fitzherbert, THE NEW NATURA BREVIUM 80F, 179 (London, 1704 (permitting wives to obtain a writ against husbands if he

threatens to beat or kill her); REVISED CROMPTON: LOFFICE ET AUCTORITIE DE JUSTICES DE PEACE…(London: 1617) (permitting husbands to correct his wife “reasonably”); Sir Thomas Seymor’s Case,

MOORE (K.B.) 875, 72 Eng. Rep. 966 (1615 (permitting a wife to divorce her husband “pur unreasonable correccõn”); Wife of Cloburn

against Her Husband, HETLEY 150, 124 Eng. Rep. 414 (C.P. n.d.)

(1630) (rejecting husband’s contention that boxing his wife’s ear, spitting in her face, and calling her a damn whore was not unreasonable

cruely); Manby v. Scott, SIDERFIN 109, 82 Eng. Rep. 1000, 1001 (Ex.

1659) (prohibiting a husband from killing, beating, and starving his

wife); The King against the Lord Lee, 2 LEVINZ 127, 83 Eng. Rep. 482

(K.B. n.d.1675)(Limiting recovery of wife for hsuband’s “unkindnesses” to sureties); Dominus Rex v. Lister, 1 STRANGE 478, 93 Eng.

Rep. 645 (K.B. 1721)(limiting husband’s privilege to restrain wife

when required to “preserve his honour and estate” inapplicable here);

1 A TREATISE OF THE PLEAS OF THE CROWN 127, 130 (1724) (2nd. ed.)

(recognizing the right of a wife to a surety of peace as against her husband when he chastises her unreasonably).

in some cases to answer. But this power of

correction was confined within reasonable

bounds; and the husband was prohibited to

use any violence to his wife, aliter quam ad

virum, ex causa regiminis et castigationis

uxoris Suae, licite et rationabiliter pertinet

[for the reason of the rule and chastisement

of the wife, belongs otherwise to the husband lawfully and reasonably]. The civil law

gave the husband the same, or a larger, authority over his wife; allowing him, for some

misdemesnors, flagellis et sustibus acriter

verberare uxorem [to beat his wife severely

with whips]; for others, only modicum castigationem adhibere [to apply a little chastisement]. But, with us, in the politer reign of

Charles the second, this power of correction

began to be doubted: and a wife may now

have security of the peace against her husband; or, in return, a husband against his

wife. Yet the lower rank of people, who were

always fond of the old common law, still

claim and exert their antient privilege; and

the courts of law will still permit a husband

to restrain a wife of her liberty, in case of any

gross misbehaviour.

Blackstone here recognized that the “old law” permitted

a husband to control his wife through violence, but that

more modern law recognized limits of reasonableness and

proportionality based on provocation. Blackstone further

opines that the influence of “polite” civilization limited

1 Blackstone, supra n. 2 at 432-33.

wife-beating to the lower classes. While domestic violence

was not limited to the lower classes in 1765 (wealthier

women were actually more vulnerable ), Blackstone’s

summation of the common law and its evolution in 1765

was otherwise accurate.

B. Colonial Laws Placed Similar Limits on

Husband’s Privileges, but were Frequently

Unenforced

British limits on domestic violence found analogues in

colonial America. In 1641, Massachusetts passed one of

the first laws regarding domestic abuse.9 That law states

that “Everie marryed woeman shall be free from bodilie

correction or stripes by her husband, unlesse it be in his

owne defence upon her assault.”10 Essentially no married

woman should face physical violence (“bodilie correction”

or “stripes”) from her husband unless her husband was

defending himself from the wife’s attack.11 Because the

Massachusetts’ “Body of Liberties” specifically entitled a

section “Liberties of Women,” it could be interpreted that

the legislature intended to give women safety in the

home.12 Yet court records from colonial Massachusetts indicate that a very limited number of offenders received

Vogel, supra n. 3.

Liberties of Women, COLONIAL LAWS OF MASSACHUSETTS REPRINTED FROM THE EDITION OF 1672, WITH THE SUPPLEMENTS

THROUGH 1686, 51 (1686).

Id.

Elizabeth Pleck, Criminal Approaches to Family Violence,

1640-1980, 11 CRIME AND JUST. 19, 23 (1989).

any type of punishment other than admonition or fines.13

On occasion, offenders were appointed “supervisors,” or

ordered to submit a bond to ensure good behavior.14 Given

the infrequency of enforcement and narrow range of enforcement mechanisms, such protections provided little

more than parchment barriers for wives to withstand violent partners.15

C. The Rule of Thumb as Found in the

Antebellum South at the time of the

Fourteenth Amendment’s Ratification May

Limit the Use of Arms by Domestic Abusers

After the break with England and at the close of the

Revolutionary War, British limits on domestic violence

took on a different form. The test of "reasonableness” was

replaced by at least one judge with a more bright-line rule

regarding the size of the instrument of violence. At the assizes of September 1782 in Westminster, Sir Francis

Buller, appointed as the youngest-ever English judge to

the King’s Bench at 32 in 1778, infamously introduced the

“rule of thumb” into British Common Law. A man was

Lyle Koehler, A SEARCH FOR POWER: THE WEAKER SEX” IN

SEVENTEENTH-CENTURY NEW ENGLAND. Urbanda: University of

Illinois Press, 140-141 (1980).

Id. at 141 (1980).

Jordan J. Al-Rawi, The Case for Relaxing Bruen’s Historical

Analogues Test: Rahimi, 18 U.S.C. §922(g)(8), and Domestic Violence Regulation in Colonial and Post-Enactment America, 39

BERKLEY J. GENDER L. & JUST. 1, 14 (forthcoming Spring 2024).

William Prideaux Courtney, Francis Buller, 7 DICTIONARY OF

NATIONAL BIOGRAPHY, 1855-1900, 248-49 (1921-22).

HAMPSHIRE CHRONICLE (Sep. 23, 1782), infra at addendum 1.

tried for beating his wife with a faggot (a stick used for

firewood), “value one farthing,” killing her. Counsel for

the defense argued that a husband had a common law

right to chastise his wife, citing scripture and the example

of “all wise nations.” If chastisement was legal, so too,

argued the defense, was the consequence (here, death).

At this point, instead of objecting to the death of the wife,

“[t]he Judge laid down the law—He said the

great point for consideration was, the instrument used by the husband—had it been

a whip, had it been a switch, any thing that

bent and could break no bones, it would have

been different—but the prisoner had beat

his wife with a faggot. Here the council for

the prisoner asked, what sized stick a man

might chastise his wife with? The learned

Judge thrust forth his thumb…”

According to the most widely-published account of the

trial, Justice Buller then said “of the size of my thumb.”

The response was electric. Within the Courtroom, which

was “full of women,” a Dublin reporter observed women

mocking the judge, who asked each other if anyone could

DUBLIN EVENING POST (Sep. 28, 1782), infra at addendum 2.

Id.

HAMPSHIRE CHRONICLE, supra n. 17; the same account was published in the following newspapers, SALISBURY AND WINCHESTER

JOURNAL (Sep. 23, 1782), NORFOLK CHRONICLE (Sep. 21, 1782), BATH

CHRONICLE AND WEEKLY GAZETTE (Oct. 3, 1782).

be “kept under” by a stick so thin; “if we are to be beaten”

they said, “let us be beaten by something we can feel.”

Ladies outside of the Courtroom sent messages to his

lodgings, to “obtain the exact measure of his Lordship’s

thumb,” presumably to know the legal limits of their

abuse.

The mocking continued for months thereafter. By midOctober, an advertisement was run for the publication of

“The Thumb-stick, a judicial poem, addressed to new married men, with a few thoughts on the nature of faggots, by

Sir F. Buller, Knt.” Prominent caricaturist James Gillray

sketched two cartoons of Justice Buller in November 1782

for publications, both attached as addendums to this

brief. The first depicts Justice Buller selling a bundle of

“thumb sticks” for wife-beating. The second, entitled “Mr.

Justice Thumb in the Act of Flagellation” wherein the

judge is beating his wife with a thin stick depicts a scroll

in the corner with the words, “a Husband may chastise his

wife with a stick the size of his thumb. COKE.” The publication of this cartoon was heavily advertised throughout

England as an enticement to purchase The Rambler,

DUBLIN EVENING POST, supra n. 18.

HAMPSHIRE CHRONICLE, supra n. 17.

ABERDEEN PRESS AND JOURNAL (Oct. 14, 1782).

See addendums 3-4.

See addendum 5. No such reference to a rule of thumb or even any

reference to the “reasonableness” standard limiting wife-beating appears in Sir Edward Coke’s INSTITUTES ON THE LAWS OF ENGLAND

(1628-1644).

newly published in 1783. The entire country was in on the

joke.

There is some doubt whether the infamous and widelyridiculed “rule of thumb” nevertheless became the law in

England thereafter. In the initial report of the case, “the

lawyers have given their opinion, that if a husband should

use a stick, differing in dimensions from Judge [Buller]’s

thumb, an action will lie, and heavy damages be recovera29

ble by the wife.” In the European Magazine and London

Review of November 1, another Lord’s thumb was “inadmissible, as the Size of a Cane or Stick, with which a Man

may lawfully correct his Wife, was settled by Judge

Buller.” Historians differ as to the effect of Judge

Buller’s pronouncement upon the law, but most indicate

that the “rule of thumb” made its way into the common

law after 1782.

See., e.g., CHESTER COURANT (Dec. 24, 1782); HAMPSHIRE

CHRONICLE (Dec. 30, 1782); BATH CHRONICLE AND WEEKLY GAZETTE (Jan. 2, 1783), all of which ran the advertisement, “On Wednesday, the First of January, 1783, will be published, Price 6d. to be continued the first of every month….Also an Engraving in caricature, in

the manner of Hogarth, of Mr. Justice Thumb, in the Act of Glagellation, Number 1 of The Rambler’s Magazine; or, the Annals of Gallantry, Glee, Pleasure, or the Bon Ton…”

HAMPSHIRE CHRONICLE, supra n. 17.

Answers to Correspondence, EUROPEAN MAGAZINE AND LON-

DON REVIEW, frontispiece (Nov. 1782).

Cf., Henry Ansgar Kelly, “Rule of Thumb” and the Folklaw of the

Husband’s Stick, 44 JOURNAL OF LEGAL EDUCATION 341 (1994); Vogel, supra n. 3 at 2794; Nan Oppenlander, The Evolution of Law and

Wife Abuse, 3 LAW & POL. Q. 382, 387 (1981).

Regardless of the impact of the “rule” on the British

Isles, it was clearly embraced as a common law rule in the

antebellum south. This may have been facilitated by the

late eighteenth century practice of aristocratic slave-owning families sending their sons to England for their legal

education. Beginning the very year that Judge Buller

made his infamous pronouncement, Middle Temple’s registry from 1782-1813 lists 49 enrolled American students

from Boston down to the Caribbean islands, most from

slave-holding states.

The ”rule of thumb” made its American debut in an 1824

Mississippi case, Bradley v. State, wherein the court recognized that a whip or rattan “no bigger than my thumb”

was considered part of the “reasonable” allowance permit33

ted a husband to “give his wife moderate correction.” It

reappeared during Reconstruction in an 1867 North Carolina case and in an 1871 Alabama case, but was finally re34

jected in North Carolina in 1874.

In all, the presence of the infamous “rule of thumb’s”

limit on the instrumentalities of domestic violence in the

South at the time of the Fourteenth Amendment’s ratifi-

2 REGISTER OF ADMISSIONS TO THE HONOURABLE SOCIETY OF

MIDDLE

TEMPLE

394-427

(1782-1909),

https://drive.google.com/file/d/1GD19MSLSsu3oryaqkoKySYieWYqPiB5y/view (last visited Oct. 28, 2023).

THE

Bradley v. State, 1 MISS. 156, 1 WALKER 156 (1824).

State v. Rhodes, 61 N.C. 453 (1868); Fulgham v. State, 46 Ala. 143

(1871); State v. Oliver, 70 N.C. 60 (1874) (“The doctrine of years ago,

that a husband had the right to whip his wife, provided, he used a

switch no larger than his thumb, no longer governs the decisions of

our Courts”).

cation may provide a gloss on the incorporation of the Second Amendment. If instrumentalities or weapons of domestic abuse were limited to those no bigger than a

judge’s thumb, it would likely prohibit the use of guns

against wives, which were, at that stage, larger thicker in

diameter than a thumb. Though nothing in this prefounding, founding, and ratification history of domestic violence laws speak to disarmament, at a higher level of abstraction, the rule of thumb limit could also be viewed as a

prohibition on a domestic abuser’s access to such arms.

II. British and Colonial Sources Punished Those

Who Posed a Threat of Violence Against the

Community with Disarmament and Those Who

Posed a Threat of Violence Against Specific

Individuals with Fines

A. English Law Permitted Seizure of Firearms

from Certain Dangerous Groups

The English Militia Act of 1662 enabled the Crown to

“seize all arms in the custody or possession of any person”

who were deemed “dangerous to the Peace of the Kingdom.”36 Two interpretations of this Act follow: first, that

Bertram Barnett, Small Arms in the Civil War, Anchor, A

North Carolina History Online Resource, https://www.ncpedia.org/anchor/small-arms-civil-war https://perma.cc/3H5Q-9FNG,

(last visited Oct. 30, 2023) (The popular rifles and pistols carried

during this time had a wide range of calibers; the diameter of the

bores of barrels and the ammunition used were mostly larger than

the diameter of an average man’s thumb.).

An Act for Ordering the Forces in the Several Counties of this

Kingdom, STATUTES OF THE REALM (1662), in 5 STATUTES OF THE

REALM 360 (John Raithby ed., 1628-80).

England had established a well-practiced tradition of disarming dangerous persons who were deemed a threat to

the Crown,37 and second, that the Act was created to suppress political enemies by disarming them.38 Regardless,

the government’s ability to seize arms led to the grievance

that Protestants were being disarmed while papists were

“armed and employed contrary to law” in the English Bill

of Rights of 1689.39 As a corrective, the English Bill of

Rights secured to Protestants the right “have arms” 40

while presumably permitting the government to seize

Catholics’ arms deemed “dangerous to the Peace of the

Kingdom.”

B. Disarmament and Surety Bonds in Colonial

America Were Often Required of Criminal

Offenders Who Posed Harm or Threats of

Harm to Others

Colonial laws permitted the forfeiture of arms in a limited subset of crimes, both violent and non-violent.42 These

Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Firearms, 20 WYO. L. REV.

249, 261 (2020).

Nelson Lund, The Past and Future of the Individual’s Right to

Arms, 31 GA. L. REV. 1, 8 (1996).

THE BILL OF RIGHTS (1689).

Id.

An Act for Ordering the Forces, supra n. 36.

Royce de R. Barondes, The Odious Intellectual Company of Authority Restricting Second Amendment Rights to the "Virtuous," 25

TEX. REV. L. & POL. 245, 284 (2021) (Citing An Act for the Punishing

of Criminal Offenders (1692), ch. 11, § 6, reprinted in THE CHARTERS AND GENERAL LAWS OF THE COLONY AND PROVINCE OF MASSACHUSETTS BAY 237, 240 (T. B. Wait & Co. 1814)).

crimes included the use of any menaces or threatening

speech,43 threatening another person to “wound, kill or destroy him,”44 or harm a person or his estate.45 Simultaneously, offenders were required to post a surety bond in order to maintain their arms. This tracked British law:

Blackstone’s Commentaries provided that if a party could

demonstrate he had “just cause to fear” another or that

there was suspicion that a crime was foreseeable, they

could “demand surety of the peace against such a person.”46 This applied to wives vis-à-vis husbands and vice

versa. Colonial laws permitted the disarmament of convicted criminals as well as requiring surety bonds of those

who posed harm or threat of harm.

An Act for Punishment of Criminal Offenders 1692-1693, in 1

ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVIDENCE OF

MASS. BAY 51-55 (1869).

An Act About Binding the Peace 1700, in 2 STATUTES AT LARGE

OF PENNSYLVANIA FROM 1682 TO 1801, 23 (1700-1809).

An Act About Binding the Peace 1700, in 1 LAWS OF THE STATE

OF DELAWARE FROM THE FOURTEENTH DAY OF OCTOBER, ONE

THOUSAND SEVEN HUNDRED, TO THE EIGHTEENTH DAY OF AUGUST,

ONE THOUSAND SEVEN HUNDRED AND NINETY-SEVEN, 52 (1797).

4 BLACKSTONE, supra n. 2 at 252 (1769) (1979 Reprint).

Id. at 251.

C. Under Colonial Law, Those Who Posed a

Violent Threat to the Community as Opposed

to Individuals Could Be Disarmed, Imprisoned

and Fined

In 1692, Massachusetts passed a law entitled: An Act for

the Punishment of Criminal Offenders.48 This Act empowered each judicial figure to arrest all “affrayers, rioters,

disturbers or breakers of the peace…”49 “Affray” here is

defined as “the fighting of two or more persons in some

public place to the terror of the people.”50 Upon confession

or conviction, the Act authorized imprisonment until he

“f[ound] sureties for the peace and good behavior.”51 Additionally, the Act called for the seizure of the offender’s “armor or weapons,” which were then forfeited to the King.52

Although this Act goes on to punish “breach of the peace

in any person that shall smite or strike another,” the language of this Act limits disarmament to people who participated in more serious disorderly conduct which involved disruption of the community and could lead to potential uprisings.53 It is possible to infer that because the

legislature was willing to disarm those who were a threat

An Act for Punishment of Criminal Offenders (1692-1693), supra

n. 43.

Id.

Affraye, John Comwell, THE INTERPRETER, OR, BOOKE CONTAINING THE SIGNIFICATION OF WORDS, 32 (Cambridge: Printed by

John Legate 1607)

An Act for Punishment of Criminal Offenders, supra n. 43 at 51-

55.

Id.

An Act for Punishment of Criminal Offenders (1692-1693), supra

n. 43. (Requiring only a fine or a surety for peace and good behavior

for striking another).

to the community, they were deemed too dangerous to

have firearms, as compared to those who may individually

cause harm to another.

The New Hampshire legislature passed an Act in 1771

entitled “An Act for Punishing Criminal Offenders.”54 The

language of this act is nearly identical to the 1692 statute

from Massachusetts.55 This law committed the offender to

prison until they paid some form of surety bond and enabled the government to seize and to sell the arms used by

offenders.

Virginia’s analogue varied the language of the statute

slightly: “[N]o man . . . [shall] go [ ] or ride armed by night

or by day, in fairs or markets, or in other places, in terror

of the country, upon pain of being arrested and committed

to prison by any justice on his view, or proof of others,

there to a time for so long a time as a jury, to be sworn for

that purpose by the said justice, shall direct, and in like

manner to forfeit his armour to the Commonwealth . . . .”56

These laws targeted those who posed a threat to society

by disarming them, in addition to fines and potential jail

time.

A similar statute in North Carolina required constables

to “arrest all such persons as, in your sight, shall ride or

An Act for Punishing Criminal Offenders (1696), in ACTS AND

LAWS OF HIS MAJESTY'S PROVINCE OF NEW-HAMPSHIRE: IN NEWENGLAND; WITH SUNDRY ACTS OF PARLIAMENT, 16-19 (1771).

Id.

An Act Forbidding and Punishing Affrays (1786), in REVISED

CODE OF THE STATE OF VIRGINIA 554 (1819).

go armed offensively, or shall commit or make any riot, affray, or other breach of his Majesty’s peace . . .”57 This statute did not provide for forfeiture of firearms, yet its goal

was still to suppress threats of violence to the community.

In contrast, Rhode Island passed an Act in entitled “An

Act for Punishing Criminals.”58 This Act calls for imprisonment for twelve months or a fine of ten pounds if a person is convicted of rioting.59 This Act separates the offenses of rioting and breach of the peace from assault and

battery.60 Although disarmament of offenders is not discussed, there is a stark difference in the punishment. A

conviction of rioting elevated the monetary punishment by

tenfold, as compared to a conviction of breaching the

peace. The significant difference in the value of the fine

tracks the 1692 Massachusetts law. There, the harsher

punishment of disarmament was reserved for those who

posed a threat to the community, as compared to those

who posed a threat to an individual, resulting in the payment of a fine.61

An Act to Appoint Constables (1751), in 1 REVISAL OF ALL THE

ACTS OF ASSEMBLY, OF THE PROVINCE OF NORTH-CAROLINA, NOW

IN FORCE AND USE (1773).

An Act for Punishing Criminal Offenders (1662), in 1 THE CHARTER GRANTED BY HIS MAJESTY KING CHARLES THE SECOND, TO

THE COLONY OF RHODE-ISLAND, AND PROVIDENCE-PLANTATIONS,

IN AMERICA 4-9 (1719).

Id.

An Act for Punishment of Criminal Offenders (1692 -1693), supra n. 43 (Allows for disarming of offenders who breach the peace

and cause fear in King’s subjects but requiring only a fine or a sureties for peace and good behavior for striking another).

These statutes underly a distinction with a difference:

only offenders who threatened or disturbed the public

were punished with disarmament; private violent offenders received the lesser punishments of fines and payments

of sureties. Some states’ laws that punished offenders who

threatened specific individuals with imprisonment effectively disarmed the offenders while in prison; however,

many laws do not speak to whether firearms were taken

away after the prison sentence nor of the return of firearms once the surety bond was paid. In all, these statutes

provide historical evidence for reserving the harsher punishment of disarmament for those who posed a threat to

the community.

III. During the Founding itself, Only Those Who

Refused to Take an Oath of Allegiance Were

Considered Dangerous enough to the Public to be

Disarmed

During the Founding, the types of individuals posing a

threat to society shifted to those disloyal to the rebel

cause. Under British rule, free white colonists were disarmed only if they refused to take a test of allegiance that

defined membership in the body politic. Before the Revolution, this meant allegiance to King George III.63 One

Robert H. Churchill, Gun Regulation, the Police Power, and the

Right to Keep Arms in Early America: The Legal Context of the Second Amendment, 25 LAW AND HIST. REV., 139, 158 (2007). In contrast

to free whites, slaves and Native Americans were not permitted guns

during this period; See An Act Directing the Trial of Slaves Committing Capital Crimes; and for the More Effectual Punishing Conspiracies and Insurrection of Them; and For the Better government of Negros, Mulattoes, and Indians, Bond or Free (1751), in 1 ACTS OF ASSEMBLY, NOW IN FORCE, IN THE COLONY OF VIRGINIA 349 (1752).

Id.

such act is New Jersey’s 1752 An Act for the Security of

His Majesty’s Government of New Jersey.64 This law provided that “[W]hereas some persons…disaffected to His

Majesty’s Person and government…to the great Hurt of

His Majesty’s faithful and loyal subjects inhabiting within

the same…will, if not prevented, prove dangerous to the

Government of this Providence.” 65 Under this law, oaths

of allegiance were administered to “any person or persons

whatsoever who they shall or may suspect to be Dangerous or disaffected to his Majesty or his Government.”66 If

a person refused to take the oath, they were deemed a

“Popish Recusant Convict,” and were subjected to any forfeiture, and legal process that the Laws of England permitted. 67 A refusal to take an oath of allegiance to the King

of England was interpreted to be a crime against the

King’s people, which in turn resulted in being labeled dangerous and led to a criminal conviction. Although this particular law does not specifically state that those who refused to take the oath led to disarmament, it effectively

disarmed them, as it permitted a “popish recusant” conviction, which prevented disabled offenders from owning

any “arms or weapons” unless a special allowance was

made.68 Each state had analogous laws which required

An Act for the Security of His Majesties Government 1722, in

ACTS OF THE GENERAL ASSEMBLY OF THE PROVINCE OF NEW-JERSEY… 92-98 (1752).

Id.

An Act for Disarming Papist and Reputed Papist, Refusing to

Take the Oaths to the Government Statutes at Large (1756), in BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST

proof of loyalty to the King of England by taking an oath

of allegiance to the King, or face disarmament.

The battles of Lexington & Concord and the later siege

of Boston provided a turning point; thereafter, colonists

required allegiance to the rebel cause. Those who actively

assisted the British were imprisoned and those who libeled or defamed acts of the Continental Congress were

disenfranchised and ultimately prohibited from keeping

arms, holding office, or serving in the military.70

The Continental Congress recommended that colonies

disarm persons “who are notoriously disaffected to the

cause of America, or who have not associated, and shall

SESSION OF THE LEGISLATURE 35-39 (1820) (No Papist, may have,

or keep in any arms, weapons, gunpowder or ammunition).

An Act Declaring that All Persons of Foreign Birth, Heretofore

Inhabiting Within This Colony and Dying Seizes of Any Lands, Tenements, or Hereditaments, Shall Be Forever Hereafter Deemed, Talem, and Assumed to Have to Been Naturalized and For Naturalizing

all Protestants of Foreign Birth, Now Inhabiting this Colony 1715, in

LAWS OF NEW-YORK, FROM THE YEAR 1691, TO 1773 INCLUSIVE 97100 (1774); An Act Requiring All Persons to Take the Oaths Appointed

to Be Taken Instead of Allegiance and Supremacy, ACTS AND LAWS

OF HIS MAJESTY'S PROVINCE OF NEW-HAMPSHIRE: IN NEW-ENGLAND; WITH SUNDRY ACTS OF PARLIAMENT 1-2 (1771); The Oaths of

Fidelity to his Majesty and the Lord Proprietor of the Providence of

New Jersey (1675), in GRANTS, CONCESSIONS, AND ORIGINAL CONSTITUTIONS OF THE PROVINCE OF NEW-JERSEY: THE ACTS PASSED

DURING THE PROPRIETARY 51 (1753).

G.A. Gilbert, The Connecticut Loyalists, 4 AM. HIST. REV. 273,

282 (1899); An Act for the Punishment of High-Treason and Other

Atrocious Crimes Against the State, in 1 ACTS AND LAWS OF THE

STATE OF CONNECTICUT IN AMERICA 251 (1784).

refuse to associate, to defend, by arms, these United Colonies.”71 Committees of Correspondence were created in

Massachusetts which inspected and determined the safety

of an individual and determined if a person should be

deemed dangerous.72 Massachusetts then took disarming

citizens who were “notoriously disaffected to the cause of

America . . . and [ ] appl[ied] the arms taken from such

persons . . . to the arming of the continental troops.”73 Nonassociators, as they were called, were considered dangerous, and disarmed.

Other states followed suit. New Hampshire’s non-associator law specified that those who conspired against the

United States of America or in any way “aid[ed] the enemies [ ] of the United States,” were imprisoned at a term

not exceeding five years, where they forfeited all real and

personal property, presumably including guns.74 Rhode Island’s law predating the Revolution called for death and

1 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 285

(Way and Gideon ed., 1823) (declaration and resolves of the First

Continental Congress on March 14, 1776).

An Act for the Executing in the Colony of the Massachusetts

Bay, In New England, One Resolve of the American Congress,

Dated 14, 1776, Recommending the Disarming Such Persons As are

Notoriously Disaffected to the Cause of America… 1775-1776, in 5

ACTS AND RESOLVES, PUBLIC AND PRIVATE, OF THE PROVINCE OF

THE MASSACHUSETTS BAY 479 (1886).

Id.

An Act Against Treason And Misprision Of Treason And For

Regulating Trials In Such Cases And For Directing Modes Of Executing Judgements Against Persons Convicted Of Those Crimes

1777, in PERPETUAL LAWS OF THE STATE OF NEW-HAMPSHIRE,

FROM THE SESSION OF THE GENERAL-COURT, JULY 1776, TO THE

SESSION IN DECEMBER 1788, CONTINUED INTO THE PRESENT YEAR

1789, 226-231 (1789).

the forfeiture of all land, goods and chattel for those who

were convicted of high treason and petit treason.75 In 1798,

the law empowered Justices of the Peace to require “sureties for the good behavior of all dangerous and disorderly”

people who had committed treason and simultaneously

permitted the sheriff to levy warrants on the offender’s

goods and chattels.76 One interpretation of this law is that

committing treason made one dangerous and thus permitted disarmament through the levying of chattels. Another

interpretation is that sheriffs had power to disarm, but

only through legal means. The Pennsylvania legislature

deemed it “improper and dangerous” to allow non-associators to possess any firearms, weapons or gunpowder and

thereby empowered lieutenants in the military to disarm

anyone who had not taken an oath to the state.77 New Jersey’s legislature similarly empowered its Council of Safety

“to deprive and take from such Persons as they shall judge

disaffected and dangerous to the present Government, all

the Arms, Accoutrements, and Ammunition which they

own or possess.”78 North Carolina’s non-associator law

held that “all Persons failing or refusing to take the Oath

An Act for Punishing Criminal Offenders 1662, supra n. 58.

An Act for Establishing Justices of the Peace and Vesting Them

With Certain Powers 1798, in PUBLIC LAWS OF THE STATE OF

RHODE-ISLAND AND PROVIDENCE PLANTATIONS PASSED SINCE THE

SESSION OF THE GENERAL ASSEMBLY IN JANUARY, A.D. 1798, 6-7

(1798-1813).

An Act for Repealing Part of An Act, Entitled “A Further Supplement to the Act, Entitled ‘An Act for Further Security of Government; and For Disarming Person Who Shall Not Have Given Attestations of allegiance And Fidelity to This State or Some Other of The

United States’” 1778 in 9 STATUTES AT LARGE OF PENNSYLVANIA

FROM 1682 TO 1801, 346-348 (1776-1779).

1777 N.J. Laws 90, ch. 40 § 20.

of Allegiance…shall not keep Guns or other Arms within

his or their house, but the same may be seized by a written

Order of a Justice of the County in which he or they reside…”79 The choice in all of these states was between taking the oath of allegiance or facing punishment which almost certainly included disarmament.

Disarmament for dangerously affiliating with the wrong

side of history persisted after the Revolution. During

Shay’s Rebellion, General Benjamin Lincoln relayed to

George Washington that he intended to use government

troops to “break the little knots of those in arms which

were collected in various parts of the Counties.”80 In a letter the following month, James Madison later details how

General Lincoln had disarmed and disenfranchised disaffected debtors before they were later pardoned to Thomas

Jefferson.81

Maintaining arms required first allegiance to the rebel

cause and then the establishment. Disarmament was justified again on the basis of danger to the community.

CONCLUSION

Throughout the British, colonial, and founding history

discussed above, disarmament was exercised only on individuals considered dangerous to the community as a

whole. Those who committed violent crimes on individuals

were fined or received some lesser type of punishment.

24 THE COLONIAL AND STATE RECORDS 84-89, 85 (1777).

Letter From Benjamin Lincoln to George Washington (Dec. 4,

1786), in THE PAPERS OF GEORGE WASHINGTON DIGITAL EDITION

(2008).

Letter From James Madison to Thomas Jefferson (Mar. 19,

1787), in THE PAPERS OF JAMES MADISON DIGITAL EDITION (2010).

Domestic violence was unfortunately permitted but limited by a reasonableness standard, though these limits

were infrequently enforced. The only limit on the instruments of domestic violence was found in the common law

rule of thumb, which limited the width of the wife-beating

stick to no bigger than a judge’s thumb. Though there is

some doubt as to this infamous rule being implemented in

England, it was clearly adopted in the antebellum South,

presumably by southerners who studied law in England.

It is found in Court rulings contemporaneous to Reconstruction and the ratification of the Fourteenth Amendment in 1868. This rule could potentially provide a gloss

on the incorporated Second Amendment by limiting the

size of the weapons and arms used in domestic violence.

Respectfully submitted,

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Lorianne Updike Toler

Swen Parson Hall

Northern Illinois

University College of

Law

DeKalb, IL 60115

(617)595-0837

lupdiketoler@niu.edu

Counsel for Amicus Curiae

November 22, 2023

APPENDIX

APPENDIX TABLE OF CONTENTS

Addendum I: HAMPSHIRE CHRONICLE (SEP. 23, 1782) ................................................... 1

Addendum II: DUBLIN EVENING POST (SEP. 28, 1782) ................................................... 2

Addendum III: James Gilray, Judge Thumb, or Sticks of Lawful Size for Family

Discipline (NOV. 21, 1782), in THE WORKS OF JAMES GILRAY FROM ORIGINAL PLATES,

image 13 (1851) ............................................................................................................... 3

Addendum IV: James Gilray, Mr. Justice Thumb in The Act of Flagellation, THE

RAMBLER (JAN. 1783) ....................................................................................................... 4

ADDENDUM I

HAMPSHIRE CHRONICLE (Sep. 23, 1782)

ADDENDUM II

DUBLIN EVENING POST (Sep. 28, 1782)

ADDENDUM III

James Gilray, Judge Thumb, or Sticks of Lawful Size for Family Discipline (NOV. 21, 1782),

in THE WORKS OF JAMES GILRAY FROM ORIGINAL PLATES, image 13 (1851)

ADDENDUM IV

James Gilray, Mr. Justice Thumb in the Act of Flagellation,

THE RAMBLER (Jan. 1783)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.