The Volokh Conspiracy
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The Right to Bear Arms in Historical Context
Founding realities refute New York’s arguments supporting its gun carry ban.
The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.
A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that "here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to." 3 Adams, Legal Papers 248 (1965).
Adams' oration provides several key insights into the right to bear arms at the Founding.
First, Adams' understanding of the right to bear arms is fundamentally incompatible with New York's assertions in NYSRPA v. Bruen about the meaning of the Statute of Northampton and its analogs. Massachusetts had enacted a Statute of Northampton analog in 1694, yet Adams—against the interests of his clients—acknowledged that the inhabitants of the colony had the right to carry arms for their defense.
Second, Adams provides further evidence that carrying arms was unlawful only if done in a threatening or offensive manner, and not if done defensively. As I explained in my second post in this series, New York has attempted to explain away or elide this distinction, but it cannot be escaped.
Third, Adams completely undermines the notion, pushed by New York and some of its amici, that at the founding, citizens would risk being thrown in prison if they carried arms in "populous areas." (NY Br. at 33.) The Boston Massacre occurred in 1770, and at that time Boston was one of the most populous cities in America, trailing only Philadelphia and New York. Neither history nor text supports the notion that the Second Amendment is limited to the countryside.
Fourth, Adams' statement underscores the importance of engaging in a careful contextual inquiry when evaluating the Founding-era understanding of the right to keep and bear arms and other constitutional rights. Real-world events like Adams' speech and the habits of prominent Founders discussed in my initial post provide an important backdrop against which to evaluate the Founding-era understanding of archaic and ambiguous language such as that contained in the Statute of Northampton, which was enacted over two hundred years before the birth of Shakespeare.
Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.
There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term "bear arms" may be used most often in a military sense, the correct search term is "the right to bear arms," and it can only refer to an individual liberty.
The relevant context for the Second Amendment includes not only historical events but also the conceptual understandings of the Founders. New York displays a deficient understanding here as well. For example, in attempting to make the case that public carrying was generally banned in populous areas in England, New York states that carrying in such circumstances "suggested that the King was 'not willing or able to protect his subjects.' " (NY Br. 24 n.14, quoting one of the reports of Sir John Knight's Case.) Whether or not this was true—and, as I explained in my second post, Sir John Knight's Case supports a general right to carry for self-defense—this rationale cannot possibly have been accepted in the United States. After Independence, American citizens no longer had a king, and they no longer were subjects. Sovereignty in our republican form of government lies in the People themselves, and the People are not at the mercy of a king (or any other Government official) for their protection. The notion is anathema to our Nation's deepest ideals. New York is seeking to strip its people of their rights as free citizens.
Another conceptual blind spot is evident in New York's insistence that barring typical law-abiding citizens from carrying arms promotes public safety. The Founders, however, many of whom were influenced by the Italian criminologist Cesare Beccaria, likely would have been extremely skeptical of this argument. See, e.g., Mark. W. Smith, Enlightenment Thinker Cesare Beccaria & His Influence on the Founders: Understanding the Meaning & Purpose of the Second Amendment's Right to Keep & Bear Arms, 2020 Pepp. L. Rev. 71 (2020). Adams quoted Beccaria in the first sentence of his argument for the defendants in the Boston Massacre trial. And Thomas Jefferson copied into his commonplace book Beccaria's statement that "laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes" and therefore "make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."
In conclusion, I again thank Eugene for giving me the opportunity to blog here this week, and I hope my posts have been informative. Those interested in digging deeper into these issues can consult my recently published book on the right to carry, which also has a thought-provoking Forward by Renée Lettow Lerner.
