The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In my first post, I cited St. George Tucker's comments about the commonality of arms carrying in the early American Republic. Tucker in the same discussion questioned whether English limitations on the right to keep and bear arms translated to America, "where the right to bear arms is recognized and secured in the constitution itself," and he elsewhere emphasized that, unlike in England, the right of the people to keep and bear arms recognized in the Second Amendment "was without any qualification as to their condition or degree." Tucker's writings indicate that the Second Amendment was understood to expand upon and strengthen the protection of the right to keep and bear arms in important ways.
It therefore will not do for opponents of robust Second Amendment protections to draw a one-to-one correspondence from restrictions on the right in England to the scope of the right in America. Yet that is what New York and its amici seek to do in their reliance on the 14th Century Statute of Northampton, enacted in 1328, during the reign of Edward III. Not even in England, however, was the Statute of Northampton the broad prohibition on carry that New York says it was, and it certainly was not understood to be so in Founding-era America.
The Statute of Northampton forbade any person to come before the King's justices or ministers "with force and arms," "nor bring no force in affray of the peace, nor to go nor ride armed" in fairs, markets, before the justices and ministers, "nor in no part elsewhere …." 2 Edw. III c. 3 (1328). New York reads this archaic language as a prohibition on carrying arms in public places, even if done so peaceably, and contends that it was handed down as the kind of "reasonable regulation" that was acceptable when the Second Amendment was ratified.
But in the only significant judicial decision on the statute, Sir John Knight's Case, 87 Eng. Rep. 75 (K.B. 1686), the prosecution charged Knight for "going or riding armed in affray of peace." Knight had carried guns on the street and into a church. The Chief Justice said that the meaning of the Statute "was to punish people who go armed to terrify the King's subjects." The jury acquitted Knight because had did not go armed in a manner that terrified the subjects.
As we know from diaries not discovered until centuries later, Knight – a militant Protestant – went armed for self-defense after being attacked by Catholic partisans.
Another version of the decision, Rex v. Knight, 90 Eng. Rep. 330 (K.B. 1686), said that the statute had "almost gone in desuetudinem [disuse]," that an element of the crime was going armed "malo animo [with evil intent]," and that "now there be a general connivance to gentlemen to ride armed for their security) …."
Since nothing in the above supported a ban on peaceable carry, New York faults the petitioners for relying "exclusively on the cursory summaries in the English Reports." Yet the decision was clear and was the only statement of the law at the time. New York relies on a superficial article published in 2019 that couldn't figure out what the Knight case meant.
Based on the Knight case, William Hawkins wrote that "no wearing of arms is within the meaning of the statute [of Northampton] unless it be accompanied with such circumstances as are apt to terrify the people," from which it followed that "wearing common weapons" did not imply any intent "to commit any act of violence or disturbance of the peace." 2 Treatise of the Pleas of the Crown 21-22 (1716). New York ignores the former statement – as if no one would notice – and quotes snippets of the latter to assert that Hawkins said that "rules attached even to the public carrying of 'common weapons' …." But the "rule" was: don't carry in a way to terrify others.
Northampton analogs reappeared in America, and were on the books in the era that the Second Amendment was adopted, but they only applied to aggressive behavior with arms. In 1786, Virginia enacted an act on affrays – drafted by Thomas Jefferson – forbidding a person to "go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the country …." Going armed peaceably was lawful, going armed in a manner to terrorize others was unlawful.
New York spins this law to ban arms carry at any place "where people congregated and where carrying firearms would be deemed 'in terror of the Country.'" But if simply going armed in public was the crime, no need existed to recite the element of terror. Criminal laws define crimes, they don't describe the effects of crime. A prohibition on robbery would not forbid "taking of property from a person by force or threat of force, in terror of the country."
If going or riding armed was a crime, Jefferson would have been a notorious violator. His saddle had a pair of pistol holsters, he traveled armed, and he recommended walking with a gun for exercise. Two of his pocket pistols survive today. Guess where he carried them? (Hint: In his pocket.)
Similarly, in 1795 Massachusetts enacted a law directing justices of the peace to arrest "all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth …." New York states that "the statutory phrase 'armed offensively' unquestionably encompassed carrying firearms." But simply "going armed" would do so as well, so why add "offensively, to the fear or terror" of the citizens, unless they were elements of the crime that must be proven?
While New York's attempt to explain away the word "offensively" is bad enough, elsewhere it misleadingly omits the word altogether. It cites a legal reference work for the proposition that local officials were to "arrest all persons as in your sight shall ride or go armed." But what the source actually says is that officials were to "arrest all persons as in your sight shall ride or go armed offensively."
To understand the meaning of going armed in a manner to terrorize, consider the facts in State v. Huntley, 25 N.C. 418 (1843), which recognized it as a common law offense. Per the indictment, the defendant went armed and threatened "to beat, wound, kill and murder" various persons, causing citizens to be "terrified." By contrast, the court held that "the carrying of a gun per se constitutes no offence. For any lawful purpose – either of business or amusement – the citizen is at perfect liberty to carry his gun." New York cites Huntly but mysteriously leaves that part out.
New York strikes out in its attempt to portray the Statute of Northampton as a broad prohibition on public carry. For a more in-depth treatment of these issues, see pages 25–65 of my book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, and the Firearm Policy Coalition's amicus brief.