If the Justices Really Value "Originalism," They Can Only Vote One Way in Guns CaseRoundup
tags: Second Amendment, gun control, legal history, Supreme Court, originalism, Jurisprudence
Saul Cornell is the Paul and Diane Guenther chair in American History at Fordham University and co-author of The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s–1830s.
In NYSRPA v. Bruen, the most important gun case to reach the Supreme Court in the past decade, the justices will decide the future of gun regulation in America. History plays a prominent role in the dozens of briefs filed in the case. And it will present the court’s most conservative justices with a choice: follow their preferred method of judicial interpretation, originalism — which relies upon history, text and tradition — or reach the outcome preferred by political conservatives who, in this case, wish to ignore the long history of regulation and instead rule in favor of nearly unrestricted gun rights.
Virtually all the legal historians who have weighed in on the relevant history, with the notable exception of a small handful closely linked to the National Rifle Association, support New York’s version of the history: Regulations limiting armed travel in public, particularly in populous areas, stretch back over seven centuries. This history stands in stark contrast to the alternative version of the past concocted by gun rights’ advocates over the past half century, which has more in common with fantasy than history. In this other reality, early modern England was a gun-toting paradise, antebellum Southern judges who were enslavers spoke for all Americans, North and South, and the efforts of Republicans during Reconstruction to stem the tide of violence in the South by enacting neutral gun laws never happened.
Yet, the historical record is overwhelmingly clear: The gun rights advocates’ version of the past is simply false. If the justices professing to believe in originalism are sincere about their method, this case offers the rare opportunity to prove that originalism is not always a prescription for results-oriented judging that follows a conservative political agenda.
The statute at the center of NYSRPA v. Bruen — which was enacted in 1911 and revised in 1913 — built on a tradition of limiting armed travel in public that is more than 700 years old. This history, among the oldest continuous traditions in Anglo-American law, dates to the Statute of Northampton enacted in 1328. In fact, in early modern England, ordinary Britons were prohibited from traveling armed in public, because doing so was thought to threaten the peace. A popular legal dictionary, a text owned by Thomas Jefferson and John Adams, explained: “By the common law it is an Offense for Persons to go or ride armed with dangerous and unusual Weapons.” While “Gentlemen” could “wear common Armour according to their Quality,” there was no unfettered right of peaceable carry of arms in public.
The American Revolution set in motion a slow process of change that had profound consequences for firearms law. Although the preservation of the peace was no longer rooted in royal authority, the public (we the people) now endowed justices of the peace, sheriffs and constables with the legal authority to function as conservators of the peace. Before the era of professional police forces, these peace officers retained the authority to detain, disarm, arrest and fine those who traveled armed in populated areas.