The Volokh Conspiracy
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The U.S. Supreme Court has granted certiorari to hear a major case on the right to bear arms, New York State Rifle & Pistol Association Inc. v. Corlett. By happy coincidence, the best book on the legal history of the right has just been published: Stephen P. Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? Post Hill Press, 371 pages, $17.99, paperback.
Halbrook's book will be central to the Supreme Court case, just as Halbrook's previous work was for the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago—not only in direct citations, but also in the many original sources that Halbrook was the first to write about, and which the Court incorporated in its opinions. Indeed, Halbrook's scholarship was a foundation of McDonald case, for he had demonstrated in irrefutable detail that Congress passed the Fourteenth Amendment for the explicit purpose of, inter alia, protecting the right to arms of former slaves to keep and bear arms for personal and family defense.
As some readers may know, I have coauthored one book and two law review articles with Halbrook. (Supreme Court Gun Cases (2003); Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-toting in Texas in the Nineteenth Century—and Today, 9 Journal of Law and Policy 737 (2001); Tench Coxe and the Right to Keep and Bear Arms in the Early Republic, 7 William and Mary Bill of Rights Journal 347 (1999).)
Before becoming a lawyer, Halbrook was a philosophy professor at Tuskegee, Howard, and George Mason universities, and The Right to Bear Arms reflects his background. The book is legal history from early England to 2021, methodically and logically presented. The book is not about pro/con social science studies, and although it engages with post-Heller cases on the right to bear arms, most of the book covers the pre-Heller period.
At 377 pages, The Right to Bear Arms is the right length to thoroughly address its topic, supported by meticulous footnotes. Given Halbrook's role since 1981 as the leading modern scholar of Second Amendment legal history, it is no surprise that some parts of the Right to Bear Arms are derived from Halbrook's prior detailed work on particular subjects. For example, he addressed the American Revolution and the origin of the Second Amendment in The Founders' Second Amendment, addressed Reconstruction and the Fourteenth Amendment in Securing Civil Rights: Freedmen, the Fourteenth Amendment, & the Right to Bear Arms, and the 1886 Supreme Court case Presser v. Illinois (against armed public parades) with the only law review to provide the full history of the case.
With citations in 122 federal cases, Halbrook also has a 3-0 record as the lead attorney in Supreme Court cases, including Printz v. United States, which held that the federal government may not order state and local officials to enforce federal laws. That case secured the legal foundation for decisions of many state and local governments not to assist the federal enforcement of various laws involving immigration, marijuana, or gun control. Any serious person involved in the legal debate over the right to bear arms will have to address the arguments in Halbrook's latest book.
Halbrook begins the story in the late thirteenth century, in the reign of England's King Edward I. About a third of the book is devoted to legal history of the United Kingdom, through the twenty-first century. Although the American Second Amendment was expressly intended and interpreted as being broader than the English right, the English right is the most important ancestor of the American one.
The 1328 Statute of Northampton restricted arms carrying, particularly by armed criminal gangs working for local magnates. According to a 7-4 decision by the en banc Ninth Circuit this March, the Second Amendment "right to bear arms" means that individuals can be forbidden to bear arms anywhere outside their property. (The majority opinion in Young v. State of Hawaii is critiqued in the forthcoming University of Illinois Law Review Online article by George Mocsary and me, Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii.) Relying on the writings of Fordham history professor Saul Cornell and of Patrick Charles, the Ninth Circuit majority declares that the Statute of Northampton was a total ban on bearing arms, and that the ban was so applied and enforced not only in England in 1328, but in the American colonies and then in the United States in the nineteenth century.
As Halbrook shows, the argument is incompatible with every known case that interpreted the Statute of Northampton and its ban on carrying arms in "affray"—from the seventeenth century to the twenty-first. In 1686 Sir John Knight's Case clearly held the Statute to only apply to carrying arms in malo animo, with bad intent. So when John Knight, a political enemy of King James II, carried a gun to church one Sunday, he was acquitted, because the evidence showed that his bearing arms was peaceable and defensive.
In 1689, Parliament enacted the English Bill of Rights, which guaranteed "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." Neither textually nor in practice was the right limited to the home.
As Halbrook details, the subsequent case law—as well as parliamentary debates on gun laws—agreed that individuals could carry defensive arms with no need for a license. However, they could not assemble armed in large public crowds; they could not carry "dangerous and unusual" weapons (e.g., a battleaxe rather than sword), nor, if they were commoners, could they carry arms for hunting.
Although rarely invoked in court, the Statute of Northampton stayed on the books until formal repeal in 1967. A few twentieth century English cases involved the Statute, and all of them agreed that it an essential element of the crime was that the arms carrying cause "terror of the people"—such as by a person walking around town drunk and shooting into someone's window. Peaceable carry was fully lawful in England until a 1920 statute required a discretionary license. The only court that has ever interpreted the Statute of Northampton as a ban on all defensive carry is the Ninth Circuit in 2021. All the English cases say the opposite, and so do the American cases that interpreted the common law rule underlying the Statute.
While describing the United Kingdom's legal history, Halbrook shows how often the phrase "bear arms" was used to mean the carrying of guns by individuals for personal purposes. This refutes the assertions of some (including the Vermont Supreme Court in its 2021 Vermont v. Misch decision) that "bear arms" meant solely to carry arms while serving in a militia.
One contribution of The Right to Bear Arms is its detailed analysis of arms laws aimed at Catholics in Ireland in the eighteenth and nineteenth centuries, when Ireland was under English control. As the statutes, cases, and political discussions showed, the English (including Catholics in England who would swear a loyalty oath to the English monarch) could carry guns with no need for a license. In Parliamentary debate, Lord John Russell (who would serve as Prime Minister 1846-52 and 1865-66) explained the difference between English and Irish law on bearing arms:
[T]he right to bear arms, which is the universal right in England, and qualified only by individual circumstances, is reversed in Ireland; the right to bear arms here being the rule, the right to bear arms in Ireland being the exception. … [I]t has been the principle of all Governments that you should require in Ireland a licence to bear arms, and that the right to bear arms should he held an exception to the general rule, although it be the general rule in England without any licence that every individual should be entitled to bear arms.
70 Hansard's Parliamentary Debates 66 (June 16, 1843).
Part II of The Right to Bear Arms covers the American colonies and the adoption of the Second Amendment, and Part III is the nineteenth century in America. Like in England, American statutes and common law forbade carrying arms "offensively" or to cause "terror." Except for the targets of discrimination (namely slaves, and free people of color in some slave states), peaceable carry with no need for a permit was the norm.
The one exception was the colony of East Jersey, which for a brief period was split from West Jersey. The East Jersey carry restrictions for the general population had disappeared by the early eighteenth century.
Starting in 1813, some states banned concealed carry. By the time of the Civil War, eight had done so, and more would follow afterwards.
Several states in the North or Midwest had surety of the peace statutes. If a person were carrying arms in a manner that threatened to create a breach of the peace, and if a complaint were filed against him, he would have to post a bond for good behavior. The same advocates who before Heller contended that the Second Amendment was only for militiamen now contend that the surety statutes were a comprehensive prohibition on arms carrying. Halbrook examines the illogic of their theory. According to the advocates, arms bearing was forbidden to the general public, but was allowed for persons who had been found to by a court to be carrying in threatening manner; they, and they alone, could carry guns, once they posted a bond. Actually, when states with surety statutes wished to restrict gun carrying in general, they did so with plain statutes, such as concealed carry limits.
During the nineteenth century, the South was the most ardent region for gun control, partly for racial reasons. Most of the early statutes against concealed carry came from South, and most of them were upheld as long as open carry was allowed. While Saul Cornell and others have attempted to portray the South as unique because only Southern cases protected the right to carry (while letting the legislature determine the mode of carry), the truth is different. The reason there is not a body of cases from the antebellum North on the right to bear arms is that no northern state prohibited peaceable carry.
It should not be surprising that Northern legislatures restricted the right to bear arms less than their Southern counterparts did. As Halbrook details, when state conventions were debating ratification for the proposed U.S. Constitution, most of the calls for what would become the Second Amendment came from Northern states that had already abolished slavery or would soon do so. The idea that the Southeast was more strongly in favor of the right to bear arms than the Northeast is true today, but not when the Second Amendment was written, nor in the Amendment's first century.
In addressing the arguments of today's opponents of the right, The Right to Bear Arms often juxtaposes their words with the words of the document they purport to rely on. For example, the Tennessee Supreme Court addressed the Statute of Northampton in the 1833 case Simpson v. State: "But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, or portion of the common law, our constitution has completely abrogated it." Yet according to Patrick Charles, the Simpson court "never answered whether the Tennessee Constitution superseded the Statute of Northampton…"
Part IV of The Right to Bear Arms takes the story up to the present. Halbrook acknowledges deviations from the right, such as New York's 1911 Sullivan Act that targeted immigrants and sent them to prison for peaceable carry. Likewise, several Western territories had broad restrictions on handgun carrying, especially in towns. But once the people of the territories met in convention to create state constitutions, the new states constitution expressly guaranteed the right to bear arms. Oklahoma authorized the new state legislature to regulate the manner of carrying, while most other new constitutions rejected amendments to allow such limits.
The Right to Bear Arms does not attempt to solve every legal issue. The book assumes that the right is sufficiently protected by the modern laws in the large majority of states that allow a person to obtain a handgun carry permit after passing a background check and safety training. What clearly violates the right, according to Halbrook, are the laws in a handful of states, such as New York, that make carry permits contingent on a government official's decision about whether a person has a special "need" or "good cause" for self-defense.
What The Right to Bear Arms does demonstrate–beyond any serious dispute–is that law in England (but not Ireland) from at least the late seventeenth century until 1920 recognized the right to bear arms. So too, and with fewer ancillary restrictions, did the laws of the American colonial period, the Founding Era, the Early Republic, and the rest of the nineteenth century—with some exceptions that mainly related to the South's maintenance of a racial caste system.
When the Court examines the Second Amendment right to bear arms later this Fall, the overwhelming evidence of text, history, and tradition marshaled by Stephen Halbrook will be at the heart of the case.