The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In yesterday's post, we discussed the Statute of Northampton and how it was read in English precedent, and enacted in American statutory analogues, to prohibit going armed offensively in a manner that terrified others. In antebellum America, those statutes were revised in substance and procedure as exemplified by what has been called the Massachusetts Model, 1836 Mass. Acts 750, ch. 134, § 16, as follows:
If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.
As the language of the statute makes clear, citizens generally were free to carry. Only those who abused that right and caused a reasonable fear of harm could, upon complaint and absent good cause, be required to post what today would be called a peace bond—and even they could continue to carry. New York's law essentially reverses the Massachusetts Model, requiring a person to show good cause before being allowed to carry, and, unlike under the Massachusetts law, a person who fails to do so is barred from carrying entirely.
Yet New York seeks to justify its current "proper cause" requirement for issuance of carry licenses by reference to "early American reasonable-cause laws" like that of Massachusetts, under which "'any person' who feared 'injury' or a 'breach of the peace' could complain to a magistrate that another person was carrying a firearm in public." NY Br. 27. Hold on there. The complainant must show "reasonable cause to fear an injury, or breach of the peace," meaning that the person going armed is doing something menacing or threatening—not just that a person was carrying a firearm in public.
New York seeks to erase the requirement of "reasonable cause to fear" with the argument that "merely carrying firearms in populous areas breached the peace." Then why not just ban the carrying of firearms in populous areas? And where did the "populous areas" element of the crime come from?
Per New York, "people could carry in public free of restriction 'only if they could demonstrate good cause,'" which it claims is "a direct precursor of the licensing criterion at issue here." The Professors of History and Law similarly say these types of laws "generally prohibited public carry but … made exceptions for individuals who had reasonable cause to fear injury to themselves or their property." (Br. at 15.) Not so. If this view of the law were correct, only those persons deemed reasonably likely to harm others or breach the peace would be allowed to carry in any circumstance, because those were the only persons asked to show good cause. Massachusetts did not enact such an absurd law.
In reality, the Massachusetts model did not prevent anyone from peaceably carrying, as shown by examining possible scenarios under the law:
(1) if no one filed a complaint, a person could carry without restriction;
(2) if a complaint was filed but the complainant failed to demonstrate reasonable cause to fear an injury or breach of the peace, then the complaint would be dismissed and the person could continue to carry firearms peaceably;
(3) if a complaint was filed and the complainant demonstrated the existence of reasonable cause to fear an injury or breach of the peace, only then would the burden be shifted to the person going armed to show a reasonable cause to fear an assault or other injury; if the person made that showing, then the complaint would be dismissed and the person could continue to carry firearms peaceably; and
(4) if a complaint was filed, the complainant demonstrated the existence of reasonable cause to fear an injury or breach of the peace, and the person going armed failed to show reasonable cause to fear an assault or other injury, only then could the person be required to make sureties for keeping the peace. And after doing so, the person could still carry.
In short, the so-called Massachusetts Model did not restrict anyone from carrying arms in a peaceable manner. Contrast that with New York law today, which allows only a select few to carry.
Amicus United States argues that "if A carried a pistol 'without reasonable cause to fear an assault or other injury, or violence to his person,' and B complained that he reasonably feared injury as a result, A could be required to post a bond to cover any harm he might do." (Br. 20.) But the United States knows better than to suggest that a magistrate would rubber stamp a mere allegation that one "reasonably" feared injury. The magistrate must make an independent finding based on facts supporting reasonable cause to fear an injury or breach of the peace, just as today a judge must independently determine that a criminal complaint establishes probable cause for an arrest warrant to issue.
For a more in-depth treatment of the Massachusetts Model and similar laws, see pages 226-40 of my book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?
New York's attempt to construct a historical tradition in the early Republic of banning the carrying of firearms without "proper cause" collapses. The only other antebellum carry restrictions applicable to citizens were prohibitions on concealed carry enacted mostly in the Southern states. These laws do not help New York because in those states with concealed carry bans, the open carrying of firearms in public was the norm and was still freely and fully allowed. In New York's words, persons could "carry their handguns openly in parts of the slaveholding South (assuming they were white males) …." (Br. 33.) Disregarding the false implication that white females could not carry openly, New York is stuck with the unmentioned reality that only African Americans in the South were prohibited from carrying firearms. And the Fourteenth Amendment was meant to eradicate that discriminatory restriction.
It turns out that the only historical precedents for New York's discretionary issuance regime are the slave codes, applicable to free persons of color, and the post-emancipation black codes, applicable to persons of color generally in the South. Officials had discretion on whether to issue licenses to carry firearms to African Americans. In New York today, officials have discretion on whether to issue licenses to carry to all persons. I covered this issue in an amicus curiae brief filed pro bono in support of petitioners in Bruen on behalf of the National African American Gun Association, Inc.