Don't Know Much About History

New York’s Supreme Court brief on the Second Amendment is flawed.

Thanks to Eugene for inviting me to blog about the historical arguments made by the State of New York and its supporting amici in New York State Rifle & Pistol Association v. Bruen. Bruen presents the issue of whether states may limit the right to carry firearms in public for self-defense to those individuals who can convince licensing officials that they have some special need to do so. If states can limit the right to carry in this way, then it is not really a right but rather a privilege subject to government control and rationing.

In my recent book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, I extensively survey the historical evidence and conclude that the founding generation understood the right to bear arms to be a genuine right not subject to the types of limitations New York and other "may issue" states place upon it. Nothing that New York and its amici have said undermines that conclusion. Indeed, my book anticipates and addresses most if not all of the arguments made and primary historical sources cited by New York and its amici.

In this series, I plan to address several key points of contention among the parties about what history shows about the right to carry, including the Statute of Northampton and its American analogues and the so-called "Massachusetts model" of regulating individuals carrying firearms in a threatening manner through a surety system. I also will address the historical arguments made in the amicus brief filed by former Judge Michael Luttig, who surprisingly to many supports the State of New York in this case.

At the outset, however, I will begin by emphasizing the overwhelming evidence that during the Founding generation the carrying of firearms in public was a common and unremarkable practice. This evidence is impossible to square with the argument that public carry was heavily restricted and in most cases criminal at the Founding, and it therefore casts serious doubt on New York's arguments to the contrary before the details of those arguments are even assessed.

In 1803, shortly after the adoption of the Bill of Rights, St. George Tucker, a prominent lawyer, law professor, and judge in the Early Republic, produced an influential edition of Blackstone's Commentaries on the Laws of England. In an appendix to that work, he explains that "[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without a sword by his side." This ringing affirmation of the ubiquity of public carry is fundamentally inconsistent with any interpretation of ambiguous founding-era laws that would hold the public carrying of firearms to be typically outlawed.

The truth of Tucker's observation is shown by the practices of the most prominent citizens of the Founding generation, including our Nation's first Presidents. New York attempts to dismiss such examples as "anecdotes about founding fathers carrying guns" (NY Br. 23), but they cannot so easily be swept aside. If New York's interpretation of Founding-era statutes and common law were correct, it would mean that our Nation's most illustrious citizens were engaged in recurrent criminal behavior and encouraged others to do the same. That is utterly implausible.

A few examples should suffice to show how incongruous New York's interpretation of history is.

• Thomas Jefferson advised his nephew to "[l]et your gun . . . be the constant companion of your walks."
• Alexander Hamilton was often "seen wandering through the woods of Harlem with a single-barrelled fowling-piece."
• John Adams was so enthusiastic about shooting that he would take his gun "to school and leave it in the entry and the moment it was over went into the field to kill crows and squirrels."
• James Monroe similarly would carry his "musket slung across his back" when on his way to school.

These are just a few of the examples discussed in the historical brief filed in Bruen by the Second Amendment Foundation and other groups (see SAF Br. 12–15), which I recommend in addition to my book to anyone interested in these historical issues.

Further evidence against New York's interpretation of history is provided by the restrictions on carry by slaves and free persons of color that were on the books at the founding. I discuss these restrictions in Faux Histoire of the Right to Bear Arms: Young v. Hawaii (9th Cir. 2021), my comprehensive critique of the Ninth Circuit's decision effectively holding that there is no right to bear arms in public.

One example, quoted at pp. 27–28 of my paper, is an 1811 Virginia law providing that "[n]o free negro or mulatto, shall be suffered to keep or carry any fire-lock of any kind, any military weapon, or any powder or lead, without first obtaining a license from the court" where he resided. On New York's telling, this law would have given free persons of color greater rights to carry arms than white citizens, because on New York's view public carry generally was broadly restricted and there was no mechanism for white citizens to get a license to carry. This plainly was not the case. In reality, white citizens presumptively had a right to carry and it was a mark of the shameful treatment of free persons of color as lacking the fundamental rights and privileges of citizenship that their ability to keep and bear arms was subject to the discretionary judgments of state licensing officials.

Indeed, this is exactly what Chief Justice Taney explained in the infamous Dred Scott decision, reasoning that were free persons of color able to be citizens they would be entitled to "carry arms wherever they went." 60 U.S. at 417. The Fourteenth Amendment sought to eliminate this legacy of prejudice by extending the rights of citizenship, including the right to bear arms, to all Americans, regardless of race. New York, through its revisionist history, is seeking to move in the opposite direction and constrict the fundamental freedoms of all Americans. Tomorrow, I will address one of the key historical pillars of New York's case—the 14th Century Statute of Northampton.

Disclosure: I filed an amicus curiae brief pro bono in support of petitioners in Bruen on behalf of the National African American Gun Association, Inc.

Comments

[Tom for equal rights]

I have read the book and like most all books / studies, there are agenda's which in the case of this book was to show the pro- 2A History.
That being, the historical facts supporting the individual rights are overwelming such as the considerable historical writing regarding the right to kba for self defence and common defence of the communities, the british banning of guns in Massachucetts in the early 1770's, etc

Note Stevens' dishonesty in his Heller dissent to state that there was no historical writing that discussed self defence.

[Brett Bellmore]

Sometimes an agenda has the advantage of happening to be aligned with reality. Conveniently for Halbrook, you don't need to make anything up to portray a pro- 2nd amendment history.

The people on the other side of the debate are not so fortunate, but they do have the singular advantage of arguing for something most legal professionals and political elites favor, which makes up for an awful lot of historical inaccuracy.

[Tom for equal rights]

Concur with your assessment

I scan for the agenda in any article / study/ blog post/ book that I read. Its a good tool to assess the validity of results.

[Brett Bellmore]

I expect that NY's case rests not so much on persuasive historical evidence, as on anticipating ideological sympathy on the part of most members of the Court. Many of the justices simply can't be expected to follow the facts where they don't want to go, and upholding the 2nd amendment is NOT a popular destination for jurists.

And this is the case for some of the members of the Heller majority, too. You only have to compare the way Scalia characterized the Miller decision's holding to the actual decision to realize that; He completely erased the Court's reference to military utility, in order to avoid admitting that the Miller Court had actually found a right to keep and bear military arms.

[dwb68]

Honestly I read NYC brief and I don't understand their strategy, unless it's to "lose big time." Worse than not even acknowledging some of the historical facts, they lied and mislead about the facts of the case. It's a strategy that could backfire even with Kagan and the libs.

[Brett Bellmore]

Perhaps they anticipate losing regardless, and are just trying to look good to the rest of the anti-gun community, while setting up a record some future packed Court would run with?

[dwb68]

replied below, ended up in the wrong place

[Krychek_2]

Those of us who are not originalists are not so concerned with what the founders considered to be the right of private ownership, just as we don't care that their version of cruel and unusual punishment allowed for what today would certainly be considered torture. The question is what do we understand the meaning of the words to be. And the wild, wild West interpretation that Second Amendment absolutists put on the text is absolutely not how most people today would most likely understand it.

[dwb68]

Yeah when I write a contract I am not so concerned about the original agreement, I just deliver the goods on my own personal schedule as to whatever I feel the words to mean at the time. Who cares about the rule of law, anyway.

[Krychek_2]

Is it now 235 years since your contract was executed? Because if it is, I'll bet most of it is no longer being carried out as drafted.

[dwb68]

So make a persuasive case and amend it. of you can.

[Sarcastr0]

That formulation of a dead hand Constitution isn't even originalist.

[Greg J]

You want to throw out the US Constitution?

You want to throw out Roe, Lawrence v Texas, Obergefell, Miranda?

Ah, so now that there's 6 potentially honest members of the Supreme Court, and you fear they won't force your agenda on the rest of us any more, you want to get rid of all their power?

You think the previous left wing orders are going to survive that destruction?

What kind of moron whines about SCOTUS not blocking States from doing things he thinks are "cruel and unusual punishments", and then in the same breath says that SCOTUS shouldn't be able to block other laws because the Constitution is 235 years old?

Have you never even heard of a principle?

[Tom for equal rights]

Krychek_2
October.11.2021 at 9:01 am
Flag Comment Mute User
>Those of us who are not originalists are not so concerned with what the founders considered to be the right of private ownership, <

In other words, the written constitution has no meaning. It is means whatever we want it to mean.

You do realize there is an amendment process to change what you prefer it to mean.

[Krychek_2]

And you do realize that "no meaning" and "originalism" are not the only two alternatives; that in between those two extremes, there are plenty of other options.

Yes, there's an amendment process, and it's a complete shell game in which the only way to win is not to play.

[Tom for equal rights]

Krychek_2
October.11.2021 at 9:08 am
Flag Comment Mute User
>Is it now 235 years since your contract was executed? Because if it is, I’ll bet most of it is no longer being carried out as drafted.
Krychek_2
October.11.2021 at 9:10 am
Flag Comment Mute User
And you do realize that “no meaning” and “originalism” are not the only two alternatives; that in between those two extremes, there are plenty of other options.

Yes, there’s an amendment process, and it’s a complete shell game in which the only way to win is not to play.<

You are doing a great job explaining the complete lack in intellectual honesty that dominates the progressive's view of constitutional law.

[Krychek_2]

It's not a complete lack of honesty. I do not play poker with someone who insists on starting with a royal flush. I do not play chess with someone who insists on getting two moves for every one of mine. And I do not respect the legitimacy of an amendment process in which something like 20% of the population can thwart the wishes of the other 80%. You can pretend it's legitimate if you want.

[Tom for equal rights]

Krychek_2
October.11.2021 at 9:47 am
Flag Comment Mute User
>It’s not a complete lack of honesty. I do not play poker with someone who insists on starting with a royal flush. I do not play chess with someone who insists on getting two moves for every one of mine. And I do not respect the legitimacy of an amendment process in which something like 20% of the population can thwart the wishes of the other 80%. You can pretend it’s legitimate if you want.<

So the Putin/chavez/Castro system is what you prefer where the 1% can trwart the wishes of the other 99.9%

[Krychek_2]

Did I say anything even remotely approaching that I support the Putin/Chavez/Castro system? You are aware that "false alternative" is a logical fallacy, right?

And by the way, on the subject of honesty, if you were, you would change your handle. You sure don't support California voters having equal rights with South Dakota voters. If you did, you would join me in calling for an end to the electoral college, two senators per state, and a 3/4 of the states requirement to amend the Constitution. But nope, those inequalities you're fine with.

[Tom for equal rights]

Krycheck2 - "And by the way, on the subject of honesty, if you were, you would change your handle. You sure don’t support California voters having equal rights with South Dakota voters. If you did, you would join me in calling for an end to the electoral college, two senators per state, and a 3/4 of the states requirement to amend the Constitution. But nope, those inequalities you’re fine with."

You are confusing the different purposes of the House with the Senate. but you have already stated, you dont mind changing the meaning of the words in the constitution

[Krychek_2]

The Senate has a different purpose than it did in 1789, though there is some overlap. And just to be clear, change the meaning, yes, but not the words themselves. You still have to make a plausible argument that the text supports an interpretation.

[Sarcastr0]

There was no different purpose - it was a compromise between small states and big.
It was not a reformulated house of lords and a house of commons.

[Greg J]

You're not that stupid Sarcastr0. Well, no, maybe you are. After all you were recently claiming that the Biden* Admin got 20k Americans out of Afghanistan, when the BA was claiming less than 7k.

The purpose of the House is to provide votes roughly congruent to what the US population wants. Which is why it has the power of the purse.

The purpose of the Senate was to provide votes roughly congruent with the interests of the States, be they large or small. It got the power of confirmation of appointments and treaties because the Founders didn't want a large majority in a small area to be able to bully everyone else.

You lefties' problem is that you do want a majority in a small area to be able to bully everyone else, and are upset that the US Constitution was deliberately set up to block your thugishness

[Rossami]

I think Sarcastr0 agrees with you here, Greg. Did you mean to address that reply to Krychek?

[Kazinski]

But 2 Senators from each state is the only provision of the constitution that cannot be amended by the normal process.

I suppose you've already answered the question of whether you are ready to overthrow the constitution completely. If you are ready to completely ignore the 2nd amendment, and complain that following the process of amending the constitution is a suckers game then you are really no different than those that claim that Mike Pence had the unilateral authority on Jan 6 to set aside the results of any states he thought were questionable.

[Krychek_2]

Who said anything about ignoring the Second Amendment? Not me.
Any interpretation still has to be grounded in the text. The disagreement between us is whether it is the text as we understand it, or as the framers understood it.

And the difference between me and the January 6 rioters is that they really had lost an election fair and square. Even giving them the enormous procedural advantage of the electoral college, they still lost. I'm willing to lose so long as it's a fair election, meaning each vote counts as much as every other vote regardless of geography.

[Brett Bellmore]

"The disagreement between us is whether it is the text as we understand it, or as the framers understood it."

Where you think you're entitled to 'understand it' to mean something that doesn't get in the way of anything you want to do.

[Greg J]

"You sure don’t support California voters having equal rights with South Dakota voters."

You are such a pathetic moron.

You need to pick one:
Are people "Californians"? "South Dakotans"? Or are the "Americans"?

If we are our State, then since the United States is a collection of States, the point of the US Senate is to have a place where each State gets equal say.

Not each voter, each State.

If we are Americans, then you have the right to move to any State you want. You want to have the Senate vote power of a South Dakotan? Then move to South Dakota. You want the benefits of living in CA? Then stay there, and have absolutely no impact on the US Senate (because it doesn't matter how you vote, teh Democrat is going to win).

There's plenty of Republicans living in every big city in the county, whose votes don't count, because they'll never get a Republican representative.

Get over it, you whining baby

[Brett Bellmore]

The whole point of having an amendment process, is that not every possible amendment will succeed. Sure, that's unfortunate for people who want unpopular amendments...

[Krychek_2]

Brett, it's been a while since I did the math, but if I recall correctly something like 20% of the population is represented by state legislatures sufficient to prevent ratification of an amendment, even if it's wildly popular among the remaining 80%. This is not a situation in which it's unpopular amendments that don't pass; this is a situation that requires the functional equivalent of unanimous consent.

[Brett Bellmore]

Likewise, it's been a while since I looked at the numbers, but I recall that no real world constitutional amendment has ever failed in that way. The ERA, for instance, failed ratification in states whose proportion of the population was about as close to their share of the whole number of states as you could possibly ask.

[Rossami]

Feature, not a bug. It keeps busybodies like you from permanently restricting (or sacrificing) fundamental rights merely because an inflammatory demagogue whips up passions in a transient majority.

If you can't convince a broad majority of both urban and rural constituents, then your idea is just not as good as you think it is. And, yes, many of our anti-democratic institutions are intended to mitigate the long-standing cultural tension between urban and rural ways of life - tensions that long pre-date the current political polarization.

[Commenter_XY]

You nailed it = If you can’t convince a broad majority of both urban and rural constituents, then your idea is just not as good as you think it is.

That is the part that drives the progressives wild.

[Sarcastr0]

It's also not how constitutional law was intended to operate.

Which seems pretty obvious, if you consider how societies aren't static and change doesn't come via supermajorities.

[Brett Bellmore]

No, it actually is how it was intended to operate.

[Krychek_2]

If that's how it was intended to operate then the framers were certifiable lunatics. The reality is that societies change and what worked a generation ago frequently no longer does. And what you're advocating essentially forbids government to change to keep up. In practice, we're going to be stuck in 1789 forever.

And the essence of my living Constitutionalism is that you may think being governed by the Mad Hatter's Tea Party is a good thing, but I don't. That klunker of a Constitution, which has the added bug of being damn near impossible to amend, outlived its usefulness a long time ago. Perhaps progressives are to be forgiven for trying to make things work.

[Sarcastr0]

No, Brett. Originalist scholarship has shown that the contemporary legal understanding in the Founding era was that constitutions followed common law traditions of incremental drift in areas of ambiguity. And they left plenty of ambiguity, alongside a method for more radical change should it be needed.

I also think it's a pretty useless Constitution indeed that locks in the norms of it's original creation. But that's because I'm not an originalist.

But even if I were, you'd still be wrong. I know you read Baude's arguments on the issue, so I don't know why you're sticking to this debunked paradigm.

[Brett Bellmore]

"in areas of ambiguity."

The modern innovation is that EVERYTHING is 'ambiguous'.

[Greg J]

"It’s also not how constitutional law was intended to operate."

On what grounds do you make that claim?

Which seems pretty obvious, if you consider how societies aren’t static and change doesn’t come via supermajorities.

What's obvious is you're full of shit.

The US Constitution leaves large amounts of power to the voters, with just a few small areas where the majority is just not allowed to go there. Freedom of speech & Religion. Right to keep and bear arms. Right to trial by jury. Right to confront your accusers.

You think a punishment is wrong, and shouldn't be done? Then get a majority of your fellow citizens to agree with you, and the laws will change to get rid of those punishments.

No super majority needed. No God-King "judges" needed.

The reason why you lefties "need" a Constitution that changes at the whim of your God-King "judges" is because your ideas are shit, your policies are shit, and you can't get them put into place by actually winning elections.

Which, if you were decent human beings, would tell you you needed different policies

[NOVA Lawyer]

Interesting that you are all in on this concept while Republican legislatures around the country are trying their best to make sure that elections are as unrepresentative as possible by (take North Carolina) specifically choosing voting times, locations, and IDs that are used least by black Americans (or in other cases/states, other minority populations). Aside from the pretty disgusting parallels to poll taxes, this isn't behavior of anyone interested in making sure that laws reflect the will of a broad majority of people.

[Brett Bellmore]

Yeah, that's an amusing allegation, being made to justify a federal takeover of election administration, but it doesn't look particularly legitimate to me.

[Krychek_2]

Rossami, we just narrowly averted a default disaster because of those anti-democratic institutions you love so much. There would have been no January 6 without those anti-democratic institutions that you love so much. If we were actually getting good governance out of it, I might concede you have a point, but we're not.

Governance has two prongs: The substance of what is good policy, and the nuts and bolts of keeping the trains running on time. Whatever may be the merits of the policy arguments, our governmental trains are barely running, never mind on time.

[Absaroka]

I'm not sure that any form of government that has people like Hank Johnson or Mo Brooks in positions of power is going to function very well.

[Krychek_2]

So defeat them for re-election if you don't like their policies, but don't say that the people who do like their policies don't have votes that count on an equal basis with other people's votes.

And by the way, Rossami's comment sent us on a bit of a sidetrack. That he, and you, like being able to keep liberal votes from counting because you like conservative policies does not respond to my underlying point, which is why shouldn't liberals, whose votes largely don't count, do whatever end runs around an unjust system as they are able to do? You're assuming that the rural areas *should* be able to veto anything they don't like, an assumption not everyone shares.

[Rossami]

It's not a sidetrack at all. You are continuing to wish away the fact that the things preventing you from doing things you want but that lots of other people don't want also prevent those others from doing things that they want but you don't. It's not an unjust system. It's a necessary system to preserve liberties in a diverse community with competing (and often conflicting) values.

Note that these anti-democratic institutions do not give anything close to a veto to minorities. They merely provide a handicap to induce the majority to negotiate in good faith. Of course, when the majority fails to negotiate in good faith (Obamacare anyone?)*, classical Game Theory predicts an escalation of tit-for-tat responses - which is exactly what we've seen.

* In fairness, the tit-for-tat games probably go further back than Obamacare. That's merely when I first noticed that party solidarity had displaced the traditional House vs Senate rivalry. Whatever date you put to it, however, that represented the seismic shift in our government and triggered the dysfunction you are whining about.

[Krychek_2]

I'm not wishing anything away; I am very bluntly saying that there is zero reason the majority should adhere to a system that effectively disenfranchises them.

And Obamacare is a good example. While I support single payer health care, Obamacare is a terrible bill, but the reason it's a terrible bill is that even with 60 votes in the Senate, Obama couldn't lose a single vote to get it passed. Hence, a bunch of really bad stuff made it into the bill because it was the only way to get to 60. And as far as the GOP, what was to negotiate? They had already said they wouldn't support it no matter what. You can't negotiate with people whose negotiating position is that they're against it no matter what. Is there any version of Obamacare that would have gotten GOP votes? I doubt it.

[Brett Bellmore]

And there is very little reason for a geographically distinct and not much smaller minority to agree to continue to be bound by a system that takes away their protection against the that majority.

The House is by population, the Senate by state. So the smaller states are not given the power to impose anything on the larger, they just have a veto.

You want rid of that veto because you want to run roughshod over them, that's the bottom line. But why should they agree to being run roughshod over?

[Rossami]

"effectively disenfranchises" the majority is just a laughable position. Especially coming from someone who unabashedly wants to disenfranchise the rest of us. You are a petty tyrant with no appreciation of the lessons of history. Thankfully, the Founders were far wiser than you are.

[Krychek_2]

No, Rossami, a tyrant is someone who governs without elections. I want the opposite. If my side loses fair and square after an honest election, so be it. But at least give us fair elections in which every vote counts the same regardless of geography. And that's really what this boils down to: Your side can't win fair elections, so you're determined not to have them.

Brett, whomever loses an election will probably feel run roughshod over; that's the nature of democracy. But again, your side can no longer win fair elections.

[Kazinski]

No Krychek, a tyrant is one who rules without the rule of law.

Like a DOJ that wants to outlaw dissent at a school board meeting.

[Absaroka]

"your side can no longer win fair elections"

I thought I'd have a look at historical presidential popular vote totals. There have been 4 elections where the electoral college winner did not also win the popular vote:

1876 Rutherford B Hayes
1888 Benjamin Harrison
2000 GW Bush
2016 Donald Trump

So we have a pair 12 years apart, a gap of 112 years, and a pair 16 years apart. As someone who votes for roughly equal number of R's and D's, I'm not seeing a 'OMG! Crisis! Change Everything!' pattern.

Fun fact I didn't know from that page: George Washington apparently won 100.000000% of the popular vote. Now that's what I call a mandate from the people.

[Krychek_2]

Kazinski, if you look up the etymology of the word "tyrant" you will find its original meaning (you're an originalist, no?) is someone who rules undemocratically.

And yours is a badly flawed moral equivalency anyway. My view is the the majority is entitled to self governance. Yours is that it is not.

[Krychek_2]

Absaroka, in those four elections, in all four of them -- 100% -- the electoral college gave the election to a Republican. There has never been a case in which the Democrat won the White House after losing the popular vote. And if there were, it would be amusing to watch all the Republicans decide that maybe the EC isn't such a great idea after all.

[Absaroka]

"And if there were, it would be amusing to watch all the Republicans decide that maybe the EC isn’t such a great idea after all."

I' sure you're right. Partisans, R and D, always think it a monumental tragedy that their guy didn't win. But for those of us in the middle, it's kind of a yawn.

Note that the largest discrepancy there - Rutherford B. Hayes - was 3%. That's probably getting down into the measurement error range - hold the election a week or two sooner or later, do or don't have a snowstorm, have the economy (that is mostly outside a president's control) tick up or down a little and you'd get a different result. What 3% surely isn't is indicative of a country that wants a huge change. Partisans want huge changes; we middle of the roaders don't.

When the country has strong preferences, it makes that clear: Nixon beat McGovern by 23%, Reagan beat Mondale by 18%, Johnson beat Goldwater by 22%. Monroe beat Adams by 64%!, yet Adams[1] got the presidency next time via the House of Reps despite a 10% loss in the popular vote.

When the parties pander to the middle instead of their bases, they can win big.

[1]I note Adams was a D, since you care, although I don't think mapping the parties from 100+ years ago onto the current parties is a useful exercise

[Rossami]

Interesting comment on etymology. And, as usual for your comments, factually wrong. Tyrant derives from the Greek tyrannos meaning "lord, master, sovereign, absolute ruler unlimited by law or constitution". Nothing in there about democracy being the only allowable alternative that would be 'limited by law or constitution'.

[Stephen Lathrop]

Rossami, your urban-rural distinction is no part of founding era political philosophy. At the time of the first census, the most urbanized state in the nation was Rhode Island, and it was overwhelmingly rural. Actual rural predominance of population continued until 1920. In short, until then, there was no possibility of urban dominance, and of course no political pressure to offset it. Every bit of advocacy claiming a designed-in handicap in favor of rural people is made-up, late 20th century baloney.

[Sarcastr0]

Brett, as we've discussed in my Deep Dive discussion, the idea that amendments are the only way for the interpretation of the Constitution to change is not even what was originally intended, much less the only valid method of interpretation.

[Greg J]

"And you do realize that “no meaning” and “originalism” are not the only two alternatives; that in between those two extremes, there are plenty of other options."

Sure. You can be a domestic enemy to the US Constitution, and violate it.

You can acknowledge technology change, which is why the 1st Amendment protects you from being arrested for posting "Let's Go Brandon" on the internet.

And why the 2nd Amendment protects modern rifles. And why the 4th Amendment forces the government to get warrants before they tap your phone.

What only changes with a Constitutional Amendment is principles. Like "freedom of speech", like the right to "keep and bear arms".

[tkamenick]

So you don't care if people are WRONG about what they think? Whatever they say goes? If people want the Constitution to mean something else, they can change it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Your "cruel and unusual" is a bad comparison; the meaning of both words, but especially "unusual", does indeed vary by context. But "keep and bear arms" has a very simple meaning, and arms does not vary by context, as much as hoplophobes might like to restrict it to black powder muzzle loaders. The only honest gun control freaks also admit to wanting to censor newspapers printed on power presses, and radio, TV, and the internet, because those bear much less similarity to manual printing presses than do modern guns and muzzle loaders.

[Krychek_2]

But "arms" is open to interpretation.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Not nearly as much as you delude yourself, and not even nearly as much as the difference between manual printing presses and the internet or even powered printing presses. Repeating arms had been invented by 1787; but no one then anticipated printing presses which could print millions of copies in just a few hours.

[Krychek_2]

I think it's a fair statement that the framers didn't anticipate a great many things that have happened since 1789, which yet further calls into question the wisdom of allowing their views to be determinative.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Incompetent at changing the subject too, instead of admitting your views are hypocritical and inconsistent.

[Krychek_2]

Discussing yourself again I see.

[Kazinski]

It's open to your interpretation, but the Supreme Court in 1939 in Miller that the arms that are protected are arms in common use that are suitable to the militia. Heller expanded that definition to Arms in common use that are suitable for self defense.

So trying to narrow the definition of arms to narrow the right defined by the constitution won't work.

[Brett Bellmore]

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. "

"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

In other words, if it had been demonstrated to the Court that a sawn off shotgun WAS a military arm, the government would have lost.

In Scalia's version of this demonstrating that a sawn off shotgun was a military arm would have enabled the government to prevail; That's how much Scalia distorted the Miller Court's holding.

The key thing to remember is that US v Miller came right at the beginning of federal gun control, before those laws had caused military and civilian arms to diverge. "the kind in common use" and "the ordinary military equipment" were one and the same.

There was no part of the ordinary military equipment that a civilian could not lawfully own, and it was only recently that some arms had been subject to abusive taxation.

Today we find ourselves in a situation generated by many decades of the Court refusing 2nd amendment cases, with a firearms market systematically distorted by the sort of regulations the Miller Court indicated would be unconstitutional.

[Dilan Esper]

The text says "bear" arms. That implies some sort of carry right. I don't really agree with the gun rights side as to how broad it has to be, but there's definitely some constitutional right to carry.

[Greg J]

" The question is what do we understand the meaning of the words to be"

Well, that depends. Are you doing the Red Queen "a word means whatever I want it to mean" definition here? Because in that case, what you're saying is that you have absolutely no respect for the US Constitution, and are a domestic enemy thereof.

If you're sayign something more reasonable than that, the "the right to keep and bear arms shall not be infringed" means that the right to "keep" (buy and sell guns and ammunition, and keep them in your home) and the right to "bear" (carry loaded guns with you when you leave your home, and go about your life) shall not be infringed.

Which means you can't make a law infringing those rights.

AS a side note, I'm curious. Don't you idiot lefties ever get tired of saying things that are objectively and provably wrong? There's multiple States that have "Constitutional Carry", which means that every non-felony adult US Citizen (subject to a small number of people w/ restrictions) is free to carry a concealed or unconcealed weapon with him / her while going about his / her daily life, without getting any sort of government permit.

None of them have "Wild West" shooting / crime sprees / murders.

That's reserved for places like Washington DC and Chicago, which fight to prevent law abiding citizens being armed.

Or is it just a requirement of being on the left that you ignore reality?

[Krychek_2]

Greg, God just emailed me. He's now read your post three times in an unsuccessful attempt to figure out what on earth you are talking about.

[Brett Bellmore]

Azaroth has an email account?

[Greg J]

What part of "shall not be infringed" do you not understand?

[dwb68]

idk. DC in Heller rolled the dice and lost. After that a lot of anti gunners said they should not have rolled the dice.

Losing big league will have the effect of doing a lot of damage to the prohibitionists. The rational approach if you know you will lose is try to compromise a bit. The Roberts court is incremental.

But hey, why complain when your opponent makes a giant arrogant mistake. Arrogance is a big mistake lawyers make all the time.

[Absaroka]

I will boldly make two predictions:

1)Over the next few months we will hear a parade of horribles about how a right to carry will mean blood in the streets, etc, etc.

2)If the court does decide that states must allow carry, say more or less on the lines that Texas does, the practical effect will be completely anodyne ... just like it is in Texas, with none of the parade of horribles coming true.

I can understand people worrying about carry in 1990 - after all, maybe Vermont and Washington were anomalies. But that was 40 some states ago. At this point it's like worrying that the MMR vaccine will give your kids autism.

[dwb68]

Texas is constitutional carry.

no blood.

[Absaroka]

"Texas is constitutional carry"

Good point! I was trying to think of a fairly restrictive permitting scheme, i.e. live fire testing and so on, and forgot about that.

[Kazinski]

Back around 93-94 when Texas was still May Issue, my wife and I moved from Texas to Washington. Then when Texas was debating Shall Issue my wife remarked ‘that’s crazy to allow just anyone to carry a gun’, I had to break it to her it was already the law in Washington and had been for decades.

[Dan Schiavetta]

We're in the bizarro universe created by Heller and McDonald where the cosmos is explained by Little Green Men and New York is trying to fit its argument within that cosmos.

Why are you so insistent on the primacy of the Third Amendment? Who ever quarters troops in houses any more? The structure of government and the armed forces has changed so much -- and in fact it changed within a couple of generations after the Amendment was adopted -- that it's silly to treat it as anything but a historical curiosity, and for affairs of today, a dead letter.

[Kazinski]

The 3rd amendment may indeed be a historical curiosity, but only because it never gets violated.

If Biden or a state government started quartering troops on citizens there is absolutely no doubt the courts would put a stop to it immediately.

If you want the 2nd amendment to reach similar status to the 3rd amendment, then quit infringing on people’s right to keep and bear arms and you will hear no more about it.

[Brett Bellmore]

"If Biden or a state government started quartering troops on citizens" the argument would be made that there was no precedent supporting it being unconstitutional, it would get traction with many judges, and it would likely be a 6-3 or 5-4 decision, assuming they didn't moot the case before it could reach the Supreme court, and then resume the quartering once the Court dropped the case.

[Brett Bellmore]

"We’re in the bizarro universe created by Heller and McDonald where the cosmos is explained by Little Green Men and New York is trying to fit its argument within that cosmos."

He says after concealed carry reform swept the nation, and constitutional carry is spreading swiftly after. You're having trouble admitting that locations like NY are the outliers in a pro-gun country.

[Stephen Lathrop]

At the outset, however, I will begin by emphasizing the overwhelming evidence that during the Founding generation the carrying of firearms in public was a common and unremarkable practice.

As a matter of history—which seems to be Halbrook's would-be mode of argument—that counts for nothing at all with regard to whether the 2A means this, that, or the other thing. The historical question still in controversy is what arms rights the founders intended to protect with the Federal Constitution as amended. Arms carrying practices of society at large tell us nothing about the answer to that question. Anyone will be hard pressed to show from the historical record that all the arms carrying going on in the colonies and pre-Constitutional states was not done under protection of state constitutions, and stayed that way through and after the ratification of the Bill of Rights. What Halbrook needs and has not demonstrated is proof from the historical record that the founders were not content to leave the governance of arms for non-militia uses entirely to the states.

[Kazinski]

When they use the phrase “shall not be infringed” that makes it pretty clear that the founders were not open to the states restricting the RKBA.

[Stephen Lathrop]

Kazinksi, sure, if you read the militia clause right out of the amendment.

Other than that, it is absurd to suppose slave holders would tolerate a federal constitution with a, "shall not be infringed clause," that was not one which states were free to circumvent.

If you suppose otherwise, prove it from the historical record. To discount to zero the language which is actually there is not a method of history. To do it in the absence of language to the contrary is foolishness.

[Brett Bellmore]

"Kazinksi, sure, if you read the militia clause right out of the amendment."

The militia clause gives you no support here. On the contrary: You have a clause indicating that the people are being guaranteed this right to preserve the militia system, there's no sensible reading of that which supports the states taking any action that would have the contrary effect.

It would be like the 1st amendment saying something on the order of, "A well educated populace being necessary to the security of a healthy democracy, the right of the people to publish and read books shall not be infringed" and claiming this authorized states to ban books.

[Sarcastr0]

Oops, forgot the 14A wasn't a thing in the Founding!

Listen - no right has ever operated as a complete ban on regulation. Not in the history of our republic. It's cute rhetoric, but historically ignorant.

I think that regardless of what's been the case throughout our history, nowadays there is a fundamental right to personal self defense ingrained in the American People, so the specifics of analyzing the history and intent of the 2A don't much matter to me.

But even if I agree with the general proposition, the rhetoric used is very silly.

[David Nieporent]

Arms carrying practices of society at large tell us nothing about the answer to that question.

It's hard to believe anyone could be that incompetent at doing law that he would think that. It's of course not dispositive, but to think that commonplace societal behavior at the time of a law's enactment gives one no insight into what the law means is bizarre.

[floridalegal]

"They don't CARE about history". The whole point of a progressive, living constitution, social justice warriors is that facts, history, and text DO NOT have a role in the discussion. Feelings, emotions, and what they believe is equitable take precedence over facts. What do the pure in heart progressive social justice warriors feel is a fair result and then have someone find a plausible legal basis for the desired outcome. HISTORY of the Constitution plays no role. They don't care what ignorant dead people thought, said, did, or wrote 200+ years ago. Woodrow Wilson initiated living constitutional theory and the progressives have been seeking to force their will in contrast to text and history for over 100 years.

[floridalegal]

When history is mentioned to progressive living constitutionalists, the response is " Here's a quarter call someone who cares" (Travis Tritt, 1991, Warner Brothers)

[Charles Nichols - CRTC]

"New York State Rifle & Pistol Association v. Bruen. Bruen presents the issue of whether states may limit the right to carry firearms in public for self-defense to those individuals who can convince licensing officials that they have some special need to do so."

When you begin your article with a lie then the only ones who will think your article is worth reading are your fellow concealed carry cultists.

The cert petition was granted and limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

The plaintiffs did not seek to openly carry a handgun anywhere. The plaintiffs did not seek to openly carry any firearm anywhere.
New York state law does not prohibit the carrying of most rifles and shotguns. New York City does but, once again, the plaintiffs did not challenge New York City's ban on all Open Carry.

SCOTUS Rules 24 and 14 limits the scope of the question presented for the Court to decide. Given that most of the "conservative" justices have recently criticized their fellow justices for not adhering to those rules, I suspect that one of the "liberal" Justices will remind them that the case is limited to the question presented and not Halbrook's fake question.