The Volokh Conspiracy
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A Surprise Amicus Brief in the Challenge to New York's Gun Carry Ban
Former Judge Luttig's arguments are off base.
New York has received support from an unlikely source in defense of its restrictive public carry laws in the form of an amicus brief filed in NYSRPA v. Bruen, the Supreme Court case that will decide whether the Second Amendment protects a right to carry firearms in public for self-defense. The brief was submitted on behalf of several signatories, but most noteworthy is its headliner—J. Michael Luttig, the former Fourth Circuit judge who reportedly was on the shortlist for nomination to a Supreme Court seat during the George W. Bush administration. The brief does not live up to the standards one would expect from Judge Luttig.
First and foremost, while claiming to take a "textualist" approach (at 7), the brief fails to confront the Second Amendment's clear statement that the right of "the people" to "bear" arms shall not be infringed. New York absolutely criminalizes the bearing of arms openly and issues licenses to carry arms concealed only to a selected few who the state deems to have "proper cause." Instead of bearing arms being the rule while carving out exceptions (such as for courthouses and legislatures), the brief argues that the right is not infringed because narrow exceptions are made for hunting and target practice (at 6). But that ignores that "self-defense … was the central component of the right itself," Heller, 554 U.S. at 599.
The brief's shortcomings are conspicuous in its engagement with history. The brief purports to apply Heller's text, history, and tradition approach, averring that "founding-era statutes" are particularly important (at 10–11). Yet the brief cites a grand total of six colonial and early state laws to support its remarkable assertion that the founding era did not understand the right to carry to extend to the public. The brief's authors ignore the extensive evidence refuting their arguments—much of it in amicus briefs previously filed in support of the plaintiffs. Nor does the brief address the dismissal by Justice Thomas of such arguments based on the Statute of Northampton and its state analogues articulated in his dissent from the denial of certiorari in Rogers v. Grewal, 140 S. Ct. 1865 (2020), arising out of New Jersey. All of the material historical issues here are covered in my book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? Pay special attention to the Forward by Renée Lettow Lerner, which traces the modern anti-Second Amendment campaign back to 1968.
Embarrassingly, the brief relies (at 12) on a 1792 North Carolina "law" purportedly providing that no person may "go nor ride armed by night or by day, in fairs, markets, nor in the presence of the King's Justices, or other ministers, nor in no parts elsewhere." It should have been obvious that something is amiss—why would a 1792 North Carolina statute refer to the King? The reason is there was no such statute—the cited law "is fake," the source being a compilation of North Carolina laws that later compilers condemned as including many statutes "which never were, and never could have been in force." See my book The Right To Bear Arms at 243 n.778.
While the other five statutes (3 colonial and 2 state) were actually enacted, they do not demonstrate that founding-era legislatures felt themselves free to ban public carry. Four of the statutes plainly are analogues of the 1328 Statute of Northampton—a statute with a lengthy history of interpretation with which the brief fails entirely to engage. (See my post on Tuesday.) And by the time of the founding, the historical sources indicate that the Statute and its analogues barred only carrying dangerous and unusual weapons or in a manner otherwise calculated to induce terror. This is apparent from the words of the statutes themselves, which as quoted in the Luttig brief (at 12–13) focus on carrying "offensively" (1699 N.H.) and inducing "fear" (1692 and 1795 Mass.) or "terror" (1786 Va.).
That leaves only an obscure 1686 East New Jersey law (the colony was then split into East and West) that prohibited the private carry of "pocket pistols" and provided that "no planter shall ride or go armed with sword, pistol or dagger." The latter part may have only applied to terror-inducing carry, as otherwise the former part would be redundant. We don't know if the law survived the English Declaration of Rights of 1689, which declared the right to have arms, but it was long since forgotten when the Second Amendment was ratified. Indeed, the public carrying of firearms was legal in the State of New Jersey until 1966. See generally The Right to Bear Arms at 123-31. Regardless, Heller refused to "stake [its] interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home." 554 U.S. at 632.
The Luttig brief fails to discuss the wealth of evidence demonstrating that Americans at the founding understood the right to bear arms to extend to public carry. For example, as an amicus brief filed by the Second Amendment Foundation demonstrates, our first six Presidents and other leading Founders were proponents and practitioners of arms bearing. Some were citizens of Virginia or Massachusetts, two states which according to the Luttig brief barred public carry altogether. That would have been a surprise to the likes of Jefferson and Adams, who under the Luttig brief's conception of history would have been serial lawbreakers.
Once history is understood as demonstrating a right to public carry, the Luttig brief becomes self-refuting. With its historical case collapsing, it is left with the sorts of policy arguments that the brief indicates should not be used to determine constitutional rights. And some of those arguments are bizarre. For example, the brief refers to the incursion of protestors into the Capitol on January 6, seeming to argue that such events would become more frequent and deadlier were a right to public carry to be recognized. But D.C. itself already is a right-to-carry jurisdiction, with the D.C. Circuit in Wrenn v. D.C., 864 F.3d 650 (2017), having struck down a may-issue law akin to the current New York law.
The brief ignores the history laid out in the amicus brief of the Independent Institute that demonstrates that there were restrictions at the time of the founding on carrying firearms into courts and legislative bodies. The brief also fails to engage with the literature reviews concluding that based on existing empirical evidence it cannot be said that respecting the right to carry leads to increased crime and violence.
More criticisms of the brief could be made, from misciting then-Judge Barrett's opinion in Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019), as concurring rather than dissenting (at 2 & 11) to its amateurish lack of background on the history of the Second Amendment. The Luttig brief is not to be taken seriously as a work of historical scholarship. If it weren't for the identity of its lead sponsor, it is doubtful anyone would give it a second look, and its arguments should play no role in the Supreme Court's decision.
