The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Should D.C. residents have the same right to the licensed carry of defensive handguns as the people in most states? That is the issue currently before the D.C. Circuit, in Wrenn v. District of Columbia. The D.C. government lost on this issue in federal district court. D.C.'s brief to the D.C. Circuit argues that "For as long as citizens have owned firearms, English and American law has restricted any right to carry in populated public places." According to the brief, the pre-existing right to arms, which was protected by the Second Amendment, "did not encompass carrying in densely populated cities." Further, D.C. says that in the 19th century, carry prohibitions were widespread in the United States. An amicus brief on behalf of Michael Bloomberg's organization "Everytown" makes similar claims.
In an amicus brief filed this week, several legal historians, including me, dispute the D.C. and Bloomberg claims. Besides me, the amici are Joyce Malcolm (George Mason Law; the leading historian on the history of English gun control and gun rights), Robert Cottrol (co-appointment at George Washington in Law and in History; a specialist in the history of race, including the racial aspects of gun laws), Clayton Cramer (author of three books and many articles on the history of firearms law in Early America and the 19th century) and Nicholas Johnson (Fordham Law; most recent book is Negroes and the Gun: The Black Tradition of Arms). Our attorneys were Stephen Halbrook and Dan Peterson. Halbrook has a 5-0 record in the U.S. Supreme Court, all on firearms law cases, and is himself a leading scholar on the legal history of the right to arms.
The claim that there was a general prohibition on the carrying of arms is based on the 1328 Statute of Northampton, which D.C. characterizes as a public carrying ban. As our brief explains, the case law is contrary to such a broad interpretation of the 1328 Statute. For example, Sir John Knight's Case (1686) said that the statute applies only to "people who go armed to terrify the King's subjects." There was a lot of weapons-carrying in England, partly because of public duties, such as keeping "watch and ward," as well as required target practice (in longbows and muskets) at the target ranges that every village was required to maintain. The peaceable carrying of arms was an ordinary thing to see, not a terrifying one.
In the American colonies, nobody appears to have thought that they could not carry arms because of a 1328 English statute. Rather, the colonies mandated gun carrying in certain situations, such as when traveling or when going to church. To the extent that a few early states (and later, D.C.) enacted statutes expressing common law restrictions on arms carrying, the statutes (like the common law) only applied when a person did so "in terror of the country." (D.C. 1818 statute; similar language in the states). In the colonial period, and in the first 37 years of independence, there were no restrictions on concealed carry. Several states enacted concealed carry bans thereafter, but of course these did not limit open carry. Moreover, our first "four Presidents openly carried firearms." The notion that they, or anyone else, thought Americans were prohibited from doing so by a 1328 English statute is implausible.
Later, the District, like some states, enacted "surety of the peace" statutes. If a person were carrying arms in a manner which created probable cause to believe that he would breach the peace, he could be required to post a bond for good behavior. This was a form of regulation for individuals who by their previous misconduct had given some reason, which could be proved in court, that they were dangerous—unlike persons who carried arms in an ordinary and peaceable manner. Hence, a proactive intervention was permissible, requiring an identifiably dangerous person to post a bond. This is an example of constitutionally permissible regulation, very different from the near-prohibitory system currently in effect in D.C.
Finally, the amicus brief addresses the assertion that bans on arms carrying in urban areas were common by the late 19th century. To the contrary, only two of the 100 most populous cities had bans on public carry (Syracuse and Nashville). The District identified eight smaller municipalities which had carry bans by 1900. Most of them were "in the cattle drive area extending from Texas through Kansas, and up into Nebraska and Wyoming." These smaller towns had to deal with "the frequent mass arrival of large numbers of transient cowboys eager for excitement in town." The laws do not support the claim that laws against peaceful carry were common, or that they were widely accepted in big cities.