Guns

New York's Futile Search for Historical Precedents for its Handgun Carry Restrictions

The Massachusetts Model was not a carry ban and required aggressive behavior before it applied.

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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.

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  1. “terrorize” and “offensive” don’t mean much in today’s world where progressives are incapacitated by words on Twitter.

    1. Exhibit A, look at this Karen https://www.cnn.com/2021/10/11/us/wisconsin-parent-lawsuit-covid-school/index.html

      “Speaking to CNN on Tuesday morning, Kildahl said that her son tested positive for Covid-19 after he was in close contact with an infected student who did not wear a mask. Her son was asymptomatic and is now doing well, but she said she was worried about long-term effects. Neither she nor her husband tested positive for the virus.

      “I am just hoping that they will start masking and take some responsibility to keep our kids safe at school,” Kildahl said. “On my school’s website, on all of their board documentation, they say that they want to provide a safe place to learn. And I think that to do that, especially with the Delta variant out there, they need to start masking kids.””

      Oh noes! An asymptomatic infection!

      1. >Her son was asymptomatic and is now doing well, but she said she was worried about long-term effects. Neither she nor her husband tested positive for the virus.<

        Just what should be expected based on the science!

        A – Asymptomatic children with extremely low risk of serious illness and B) who dont infect adults.

        Of course the "fear of covid " science says something different.

        1. Exactly. Now that adults can be vaccinated if they want to be, there’s zero reason to still be imposing these cruel mask mandates on children.

      2. The next blog post is “No Heckler’s Veto: Fear of Violent Reaction to Speakers’ Views Can’t Justify … denial of access to government property, even in a “nonpublic forum” or “limited public forum”

        lol.

  2. There’s no good faith here. The Second Amendment is exceedingly clear, and it protects the right not only to “keep” arms, but to “bear” them. Period.

    1. 2A is also exceeding short. “Keep” seems to authorize private possession of some type of weapons under some circumstances. “Bear” seems to authorize some private use of some type of weapons under some circumstances. The devil is in the details.

      1. Yeah, well, if the left had its way, “some circumstances” would be “almost no circumstances.”

  3. “I’m offended!” is being used as a workaround for the First Amendment, in limited contexts like business and schoolastics, and chafes at the bit to escape into the wilds.

    Why not a similar heckler’s veto on gun carrying in the Second Amendment?

    Also, I was unaware so much illegal gun shooting in New York is due to people walking around obviously carrying a handgun.

    1. I mean, normally people intending to commit a crime hide the weapon until they need it, precisely to avoid calling attention to themselves and scaring people, until they deliberately choose to activate the scaring effect.

  4. There are a large number of us who advocate for both the right to bear arms, and for common sense gun safety regulations, such as automatic locking triggers and devices which allow only the owner of a firearm to shoot it. The regulations, which do nothing to limit legal access to guns are vigorously fought by the gun lobby.

    Consider this story.

    “A Florida man was arrested Tuesday nearly two months after a toddler found an unsecured, loaded handgun inside a “Paw Patrol” backpack and accidentally shot and killed his mother while she was on a Zoom call with her co-workers.”

    I have no idea if Mr. Halbrook’s advocacy for gun rights includes fighting against safety measures, but if so, he and his fellow cohorts deserve some of the blame for the preventable tragedy described above.

    1. “automatic locking triggers and devices which allow only the owner of a firearm to shoot it.”

      There is no such thing.

      1. That is the entire point, much like California’s requirement that no new pistol designs can be sold in the state unless they do something that is physically (at least approximately) impossible.

    2. common sense gun safety regulations

      There is no more reliable predictor of ignorance-based stupidity to follow. Let’s see…

      such as automatic locking triggers and devices which allow only the owner of a firearm to shoot it

      And…there it is.

    3. Ok can we ban single women from dating if they have a kid? I mean look at the stats and how single mom’s kids are killed by their boyfriends..turns out more than by gun accidents…

      It would save more lives.

  5. Wow, it’s a good thing I kept the receipt for that item on my handgun so I can get a refund from the dealer. I will just tell him that a couple of folks on the internet told me they do not exist, and everyone knows only the most knowledgeable people post on the internet.

    Seriously, people you need to know what you are talking about before you post. You see, in the last 10 years or so they have developed fingerprint readers (your phone probably has one but maybe you just don’t know how to use it or what it does) and that’s ok, we are happy to help educate you.

    And notice, you in no way replied to the point I was making, I guess because there is no reply possible other than to agree with it.

    1. I think it’s a social media thing. Where once debate and discussion was the hot ticket, now it’s pure, uncut partisan self-validation. Question begging, ipse dixit, appeal to incredulity, it’s all in there.

    2. To be specific, they exist as impractical extravagances. Wear a glove or have dirty fingers the next time you shoot, and you’ll see what I mean.

      1. Look how frequently the fingerprint reader fails on an iPhone, not only if your hands are dirty but if you’re sweating slightly. Now imagine trying to unlock your gun when you need it most (and when you will almost definitely be sweating).

        Screw that.

    3. What “item” do you refer to? The cheap orange lock that comes with most handguns?

      1. He apparently has the iGlock which comes with fingerprint recognition, unless your finger is not perfectly clean and dry.

        1. That must go well with his barrel shroud. You know, that shoulder thing that goes up.

  6. Born and grew up in central NY. You have to understand all this anti Bill of Rights boshevik crap comes from NYC and honestly driven by a few groups who have an issue with ethnics (Irish, Italian, Polish and so on) and are born with some bizarre love of socialism, central planning, and inflicting as much damage to natural rights to satisfy their bitter, jealous, inferiority complex minds. these folks make the best bullies. It goes back a long way..old country grudges so to speak.

    1. These days, the few groups are mostly non-whites.

  7. “without reasonable cause to fear an assault or other injury, or violence to his person, or to his family *or property*”

    The Massachusetts legislature let people carry weapons to protect mere *property*? What a bunch of right-wing radical extremists!

  8. “. . . ‘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. ”

    There is another implication not mentioned: i.e., the likelihood that whites, male or female, carried concealed with no fear that they would be arrested, charged or convicted.

    Given the context of the way the criminal justice system actually operated in the South at the time, it’s highly likely that some whites carried concealed with impunity. Depending upon the local fashion in any particular precinct, a white male might prefer to carry openly, or concealed if he wanted to portray the status of a gentleman. What would he have to fear? “Printing”? Showing a bit of butt? His gun falling out of his pocket? Being found to be carrying upon drawing in self-defense? But no one would complain if he were regarded as a gentleman. If influential enough, the police and prosecutor wouldn’t pursue the charge. He wouldn’t be convicted if he knew the judge, or if he had at least one sympathetic juror. These laws were for blacks; particularly black men.

    Likely few white women would carry. Yet, again depending upon circumstances and fashion in the precinct, a few white women would carry concealed. If she had to go out of her home after dark and where it was unfashionable to carry a long-gun in the streets, she would choose between carrying a handgun in a very un-lady-like holster or carrying concealed. If carried concealed she might “print” . . . draw in self-defense. Even so, her fear of assault would doubtlessly exceed her fear of the criminal justice system.

    Gun controllers never admit of the distinction between the law on the books vs. the enforcement in practice. It has always been the case – and this won’t change – that some classes of people are free to violate the law with impunity while others are subjected to its heavy hand.

    It’s simply the case that today the classes reverse their roles. The law abiding are punished severely for carrying without an impossible-to-obtain CWP. The habitual criminal has little to fear the full weight of the law.

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