The U.S. Supreme Court is set to hear oral arguments in November 3. New York State Rifle & Pistol Association vIt is. Bruen. It will be decided if the Second Amendment right of “bear arm” is an actual legal right. Conversely, law-abiding adult who have completed a safety course and passed a biometric background screening can still be denied a concealed carrying permit. Permitting officials will only grant concealed carry permits to applicants with a “special need”. On the Supreme Court docket page, there are approximately three dozen amicus papers filed by each side. Some of these briefs will be covered by me in the coming weeks. Let me start by mentioning the amicus brief I wrote with George Mocsary, U. of Wyoming’s law school, and Joseph Greenlee, Firearms Policy Foundation.
Law professors, including Eugene Volokh (UCLA) and Randy Barnett, are the amici. Weld County in Colorado, Weld County Sheriff Steve Reams and the Independence Institute, which I direct, are also part of the brief. This brief will focus on legal history from the Founding Era to earlier. Here are some highlights of our brief. I’ll also provide more background information on certain parts.
Part I looks briefly at the Second Amendment. It protects both the right “keep” or “bearer” of arms. This text doesn’t create any hierarchy. It protects both the right to “keep” and the right to “bear” arms equally. In the Dictionary Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined “bear” as to “carry” or “wear.”
Part II delves into English history. In 1607, the Virginia Colony settlers and 1620 the New England Colony settlers were the first Englishmen to receive a written guarantee for arms rights. They and their descendants were granted the right by royal charters to continue to receive from the King the “goods, chattels, armour, munition, furniture, and other supplies necessary for the manufacture of the Apparel, food, defence or any other purpose.”
Until the 1689 English Bill of Rights, England had no written right of arms. The English Bill of Rights was enacted by the Parliament which declared that the right to arms and all other provisions were “true and ancient rights.” As Americans like John Adams believed, English also held the self-defense right and right to arm rights to be grounded in natural law.
At the time of the American Founding, English law was clear: “every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game”—as Edward Christian wrote in his 1794 annotated edition of Blackstone. English Bill of Rights 1689 had not altered the English rule that commoners couldn’t hunt without permission from a noble. There were no class-based restrictions on hunting in the American colonies.
The English Bill of Rights was created to correct the abuses of monarchs in the past, such as King James II who tried to overthrow the English people by disarming them and governing via the use of a standing army.
People who claim that Americans don’t have the right to bear arms argue that the Northampton 1328 Statute prohibits arms carrying. They also contend that this ban was always understood as a prohibition and was adopted by the American colonies. This prohibition is then incorporated into the Second Amendment. English case law is a problem with this theory. The King Bench’s were held in 1686. Knight’s Case that the Statute of Northampton only applied to carrying “in malo animo” – that is, with evil intent or malice. Each English case known after 1686Knight’s CaseThis interpretation follows a similar one for 1689 (Bill of Rights).
After civil unrest in 1819 Parliament had passed a temporary statute to stop seditious, armed assemblies from several counties. This law did not infringe on the right to possess firearms for self defense and was therefore upheld. The court ruled that “a man has the right to defend himself whether he travels alone or with a small group on the same road. He can also carry firearms for self-defense when necessary.” However, a person cannot use weapons to “produce terror or alarm”. Rex v. DewhurstN.S. 5, 601-02 (1820). In the same way, early 20th century cases differentiated peaceful from terroristic carry. King v. Smith, 2 Ir. Rep. 190 (King’s Bench 1914), 204 (acting in terrorem populi [to the terror of the people]It is an essential element of the Statute of Northampton. Simply carrying a revolver does not make you more frightening. Rex v. Meade19 L. Times Rep. 541, 541 (1903). The right to peaceful carry doesn’t include the “firing of a revolver at a public location, which results in the public being scared or terrorized”.
The Statute of Northampton wasn’t often used in criminal cases, but it was still in force until its formal repeal in 1967. To the Parliament in 1870, the idea that it prohibits peaceful carry was not surprising. It enacted an act requiring 10shillings per year from the postal office for one to be able to transport a firearm without leaving the owner’s home. The post office clerks were not allowed to deny a fee-paying application. Gun License Act, Act 33 & 34 Vict. c.57 (1870).
How about English history prior to 1686? Persons who deny the existence of the right to bear arms—such as the Ninth Circuit en banc majority in the 2021 case Young v. State of Hawaii—offer a litany of citations, but these do not hold up under scrutiny. For instance, massive crowds would have gathered in London for St. Thomas’ Feast of 1343. According to the king, London hostels were required to inform their guests that they could not carry weapons in London. The Ninth Circuit ruled that this means arms are subject to restrictions, which “permeate public life.” Contrary to what the Feast of St. Thomas decree states, it assumes that travellers will carry arms in London. The King ordered that the hosts tell visitors to stop their normal routines.
It Young Most believed that concealment carry had been banned under a 1350 law. The statute actually made concealment a crime when it was done in support of murder, robbery or kidnapping.
This is the first case reported under the Northampton Statute. Chune v. Piott1615 stated that an arrest warrant could be issued by a sheriff to any person whose arms had caused a breach in peace. It is the Young Majority of people cut the quote, claiming that even arms-carrying did not result in arrests by the sheriff Not To cause an infringement of the peace
A sensational political trial in 1686. Knight’s CaseAn Anglican nobleman was involved who was against the England King James II. He was a Catholic. Sir John Knight was a great help in the enforcement England’s laws against Catholics. Many Irish Catholics in Bristol started looking for him to kill them. One Sunday Knight attended worship at his hometown Anglican Church–St. Michael, in Bristol–and brought a defensive gun. He was charged under the Statute of Northampton for that crime and the jury acquitted him. The Statute did not prohibit carrying, as the Chief Justice on the King’s Bench stated. in malo animoAnd the jury found Knight’s defensive, peaceful carry not to have been motivated by bad intent.
Patrick Charles theories
Patrick Charles is the modern author who has produced most of the material supporting that there’s no right to bear arm. The Ninth Circuit Young v. HawaiiCharles’s writing has a large influence on the majority. Charles penned many articles claiming that Knight was acquitted because he was acting in government service—which was an express statutory exception to the Statute of Northampton. Charles claimed that anyone who disagreed in his theory of government service was “purporting history to advance an agenda for the Second Amendment.” Faces of the Second Amendment Other Than the House: History Versus Ahistorical Standards of review, 60 Cleveland State Rev. 1, 30 (identifying Joyce Malcolm and David Hardy as well as Clayton Cramer and me).
Second Amendment Scholarships the “Standard Model”, a term Glenn Reynolds coined, is that the Second Amendment gives individuals strong but limited rights to own and possess firearms. This includes personal defense. Charles claims that such a right is not possible. Charles believes the historical evidence to be incontrovertible, regardless of Standard Model authors who insist on claiming otherwise. The Late Eighteenth Century Statute of Northampton: Clearing The Intellectual Legacy, 16 Fordham Urban L.J. City Square 10, 27 (2012). Example: “Standard Model writers invoke Sir John Knight’s Case to back their hasty reading. But the facts and history of that case further undercut their claims.” It is. at 16 n. 36 (case cite omitted). Charles here referenced his Cleveland article.
Charles admitted that he had made a mistake, which is commendable. Brief of Amicus Curiae Patrick J. Charles, Supporting Neither Party at 23, n.10. New York State Rifle & Pistol Ass’n v. City of New York140 S. Ct.1525 (2020). (No. 18-280), 2019 WLR 2173982 (“. . . Knight was charged under the Statutes of Northampton in a separate case where government officials weren’t present.”
It doesn’t take a lot of knowledge about English legal history to see why. The case report contains the entire indictment. This includes the allegation that the crime was committed at “St. Michael” in Bristol. St. Michael in Bristol was and is part of the Anglican Church—the established Church of England. Charles confused Knight’s gun-carrying offense (carrying at St. Michael), and another earlier in this year. Knight, then, had assisted local Bristol officials to end a secret Catholic mass. Knight’s CaseEvidently, it was not related to that incident. Catholic Churches at the time were considered illegal. Catholics trying to hold secret masses in public buildings would have their Masses banned. St. Michael is a public building.
Knight’s CaseEarly America
Charles now claims that the Founders did not know anything about Charles. Knight’s CaseSince the American first reported American citation of Knight’s CaseAlso known as Rex v. Knight() Was the 1843 North Carolina State v. Huntley.Charles wrote:
Stop and take a look at that. It is impossible to claim that the Founding Fathers considered a case authoritative, if the matter has not been mentioned in American discourse between 1686 and 1843. The answer—at least to historians— is the claim is a complete fabrication. Fake history is simply not history. It’s fiction.
A brief by a law professor, as amicus, explains some ways in which the rule was learned from Americans. Knight’s CaseThis is the end of this article. First William Hawkins. The Pleas of the Crown: A TreatiseCite Knight’s CaseThis is the reason why peaceable defense carry of ordinary arms can be legal. Hawkins, which was published in England in 1716 and eight subsequent editions, were widely adopted in America. In 1833, the Tennessee Supreme Court cited Hawkins’s argument that arm carrying is generally allowed.Simpson v. State), and by Justice of the Peace manuals in the Early Republic. William Waller Hening and James Parker in The New Viriginia Justice 17-18 (1795). Conductor generalis; or the Office, Duty and Authority of Justices of the Peace 11 (1st ed. 1764
Reports on Sir John Knight’s trial were published in Modern Law Reports volume 3, and Roger Comberbach’s one-volume case report. These books belonged to George Wythe. He was America’s first professor of law. Wythe was a signer of The Declaration of Independence and served as a member of both the Continental Congress (and the Philadelphia Convention). His apprentices and students included Chief Justice John Marshall and Justice Bushrod Washington. President Thomas Jefferson and President James Monroe were among his fellow members. St. George Tucker, the author of The Preeminent Constitutional Law Treatise of Early Republic, was also one of Wythe’s students. Wythe gave his books and manuscripts to Thomas Jefferson. They were later sold to the Library of Congress.
American laws restricting bearing arms
However, the English Bill of Rights was inadequate for Americans. James Madison’s notes from his speech in Congress introducing the Bill of Rights show that he considered many of the English Bill of Rights to be deficient. This included the Protestant-only right to arms provision. St. George Tucker and William Rawle, who wrote an important 1825 treatise about American constitutional law, and Joseph Story denounced both the English and American right to arms for being weaker than the Second Amendment.
The founding and colonial periods were the only times that arms carrying was allowed in a state or colony. The issue was only briefly addressed by a handful of states. Massachusetts banned the practice of being “armed offensively” in 1692. In 1699, New Hampshire also ordered justices to make arrests for “affrayers”, rioters and disturbers of peace or anyone else who will go armed offensively.” Armed “offensively,” is the opposite to peaceable defensive carry.
A Virginia statute stated that Bacon’s Rebellion was defeated in 1676. It also noted that the prior legislature had passed a law that allowed all people to take their guns wherever they went. The new legislation prohibited the formation of unauthorised armed groups of more than five men. Therefore, individual or small group members had unrestricted rights to carry.
East Jersey, which had been a colony between 1674 and 1702 but was not allowed to carry personal firearms, was the one that restricted peaceable carrying. East Jersey banned concealed carrying of any Pocket Pistol (a small pistol that can be carried in your pocket) from 1686. A “Planter” could not “go Armed With Sword, Pistol or Dagger.” The definition of a “planter” means “One who settles new and uncultivated territories.” Richard Lederer, American Colonial English 175 (1985). The East Jersey frontiersmen could therefore openly carry handguns but long guns.
It is not clear whether the East Jersey Carry Law remained in effect after 1712’s consolidation of the Jerseys. New Jersey legislator did not appear to see the statutes of East Jersey that were previously in effect as continuing to be valid. In 1905, the New Jersey legislature banned concealed carry. It passed a licensing law. New Jersey allowed the open carrying of both long guns and handguns from 1966 to 1966.
American law after Amendment 2
The Statute of Northampton was influential in America and the following is evidence: Young The majority refers to a North Carolina 1792 statute which is believed to have copied the English statute word for word, and even included text concerning “the King’s servants.” 992 F.3d 778. Young cites “1792 N.C. Laws 60, 61 ch. 3, but Francois-Xavier Martin is the longer citation. The North Carolina State Legislature has compiled a collection of statutes from the Parliament of England that are currently in force in North Carolina60-61% (1792). Later, the State of North Carolina declared the book to be “utterly unworthy of talents and industry of distinguished compiler” and omitted many statutes that were always in force and added many more which are not and could never have been. Preface of Commissioners of 1838. Revised Code of North Carolina. xiii (1855).
North Carolina Supreme Court found that the Statute of Northampton only embodied the long-standing common law rule that “riding and going about arming with unusually dangerous weapons, to terrorize the people,” State v. Huntly25 N.C. 418. 420 (1843). The Court then outlined the common law offense.
“[T]The mere possession of a firearm is not an offense. To any lawful use . . Citizens are free to own guns. It is the wicked purpose—and the mischievous result—which essentially constitute the crime. The law states that he shall not transport this weapon or other weapons of death in order to terrorize and alarm peaceful persons.
Italicsat 423-24 at 423-24. This sentence explains the meaning of Northampton’s Statute of Northampton in America.
Armes are subject to mandates
It’s well-known that males, and sometimes women in almost every American colony were required to be armed outside of militia situations. Mandates required that one carry arms to the church, court and public assemblies as well as travel in order to work in the field. Mandates were given to the idea of the Young Court and Patrick Charles both stated that Americans are naturally terrified of the sight or sound of an individual carrying a gun.
Young’s takeaway from all the carry mandates was that “the colonies assumed that they had the power to regulate—whether through mandates or prohibitions—the public carrying of arms.” 992 F.3d 796. Colonies could prohibit arms-carrying because they could be required to carry arms. Non sequiter. Some colonies even required that they attend church. These church attendance requirements do not necessarily mean that the colonial government or people thought colonies could prohibit church attendance.
According to YoungThe carry requirements “were linked to the fundamental duty to bear arms for the defense of the community and it was up to local governments to determine when this duty justified or required public carry.” “The public carrying of arms was also subject to the conditions set by law.” Young992 F.3d at 796.
It was not always the government who decided who can carry, but it is a threshold issue. Slavery was prohibited by some statutes, unless the master issued licenses. Check out You can find it at www.e.g.., 1715 Maryland. Laws. 117. (“No negro, nor any other slave, within this province, shall be allowed to carry any gun or other offensive weapon off the master’s territory, without licence from his master”); 1797 Del. Laws 104 (“No “Negro” or Mulatto slave may carry guns, weapons, knives, pistols or fowling items without the master’s permission”) Although it is unlikely that slave owners could allow their slaves to have guns, they could not own them.
Both the Founding Citizens and the Founders volunteered to carry arms regularly for defense or sport. In our amicus brief, we cite examples of John Adams Patrick Henry Daniel Boone, Meriwether Lewis Thomas Jefferson, James Monroe, Ira & Ethan Allen Joseph Warren William Drayton, and the general population—with examples having nothing to do with any carry mandate.
It is legal to carry peacefully in America. Kriminal Justice officer Manuals Starting at Early America didn’t contain any instructions for arresting people Peacefully carrying weapons. Check outIsaac Goodwin New England Sheriff (1830); Charles Hartshorn New England Sheriff(1844); John Niles TThe Connecticut Civil Officer (1823); John Latrobe TThe Practice of the Maryland Justices(Henry, 1826 Potter The Office and Duty of a Justice of the Peace…North Carolina Laws(1816).
It Heller Five antebellum state supreme courts cases pertaining to concealed carry were cited in the case. None of these cases stated that concealed carry is prohibited by the right to bear weapons. These cases show that concealed carry may be prohibited as long as it is permitted. Or vice versa. New York State bans open carry. The statutory system for concealed carry licensing cannot be used to prevent the majority of law-abiding and trained adults from getting a permit.