The Volokh Conspiracy
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Former Fourth Circuit Judge Michael Luttig and I recently debated the Second Amendment right to bear arms, in a one-hour podcast sponsored by the National Constitution Center. Our topic was the imminent U.S. Supreme Court oral argument in New York State Rifle & Pistol Association v. Bruen, which will decide whether the right to bear arms is a meaningful individual right.
Judge Luttig is well-known to Volokh Conspiracy readers for his eminent career as a Court of Appeals Judge. To me, he is a constitutional hero because of the good advice he gave to Vice-President Pence, fortifying the Vice-President's decision not to purport to have the power to reject electoral votes delivered to Congress by the States.
In the New York case, he and I both participated in amicus briefs. He was the lead amicus in a brief on behalf of several eminent Republicans, including former U.S. Representative Constance Morella (Montgomery County, Md.), whom the Baltimore Sun admiringly called "a champion" of "gun control." (Morella holds center, delivers the goods, Balt. Sun, Sept. 25, 2000.) The Luttig amicus brief is critiqued in a recent VC post by Stephen Halbrook. My amicus brief, on behalf of professors who teach and write on Second Amendment law, is summarized in this post.
The debate, moderated by the Constitution Center's Jeffrey Rosen, was very civil and detailed, and focused mainly on original meaning. In the course of the debate, Judge Luttig said that he was about to "make news," and revealed a novel argument that he expects to be made before the Supreme Court on Wednesday.
Here is a summary of the some the key pro/con arguments from the debate, which addressed the key legal history issues in the case's many briefs. The summary does not proceed in the exact same order as the debate did. I urge readers to listen to the debate for themselves, since there is an inherent bias in a debate summary written by one of the participants. Below, I usually present Judge Luttig's position first, and then my position, although in the actual debate, sometimes I went first on a particular issue.
The debate presumed that text, history, and tradition (THT) should guide the Court's decision. Most of leading amicus briefs on each side of the case take the same approach. Briefs relying mainly on the tiers of scrutiny approach used by most lower federal courts post-Heller are relatively rare.
Luttig: In Heller, the Court correctly upheld the right to keep arms in the home. But the right to bear arms should be left to democratic decision-making via legislatures, as it always has been.
Kopel: That would be proper for the Mexican Constitution's right to arms, which states: "The inhabitants of the United Mexican States have a right to arms in their homes . . ." (Note: The Mexican government does obey this constitutional provision, as detailed in my article on Mexico's gun control laws.) The Second Amendment contains the right to keep and the right to bear. Both must be judicially enforced, although the laws for each do not have to be identical. For example, few states require a license to keep a handgun, but many require a license to carry a handgun.
Luttig: Early American laws generally forbade gun carrying. This history is so clear that it shows that courts should not interfere with legislative limits on bearing arms.
Kopel: Early laws did restrict carrying by slaves and by Indians. For free persons in the colonial polity, the only law that supports Judge Luttig's claim is the 1686 statute from East Jersey that banned concealed carry. That law didn't survive the consolidation of the colonies of East Jersey and West Jersey into New Jersey.
Luttig: Three different types of laws broadly forbade carrying: England's 1328 Statute of Northampton, similar state statutes, and surety of the peace statutes.
Kopel: There isn't a single American case where anyone peaceably bearing arms was prosecuted under these laws. With the exception of two black men in Boston and two in D.C. who were sued under surety statutes; one of the four men could afford to appeal, and when he did, the city attorney dropped the case.
Luttig: The argument about non-enforcement is a fatal concession, particularly in Paul Clement's reply brief for petitioners. Whatever the level of enforcement, the existence of the laws themselves show that such laws are constitutionally legitimate.
Kopel: The laws weren't enforced against peaceable carry because they didn't apply to peaceable carry.
Luttig: Several states had broad laws against bearing arms, either openly or concealed.
Kopel: Those laws only applied to persons who were engaged in overt misbehavior. For example, Massachusetts, 1692: "such as shall Ride, or go Armed Offensively before any of Their Majesties Justices, or other Their Officers or Ministers doing their Office, or elsewhere, by Night or by Day, in Fear or Affray of Their Majesties Liege People." New Hampshire, 1699: "affrayers, rioters, disturbers or breakers of the peace, or any other who shall go armed offensively."
Luttig: Statutory references to "fear," "terror," or "offensively," describe the effects of anyone carrying a gun in public. They are not elements of the crime.
Kopel: Statutes specify the elements of a crime; they don't engage in mid-sentence commentary on social harms of a crime. Every court agreed that these were elements of the crime and had to be included in the indictment.
Luttig: North Carolina adopted a similar law.
Kopel: That's based on Francois-Xavier Martin's 1792 statutory compilation, which in 1838 was officially declared by the State of North Carolina to be "utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State."
Something I wish that I had remembered to say in the debate, but didn't, is that Virginia provides conclusive proof that statutes like the above did not apply to peaceable carry. In 1786, Virginia enacted a near-verbatim version to the Statue of Northampton, including the phrase "in terror of the Country." The amicus brief of Michael Bloomberg's Everytown organization characterizes this as "a broad Northampton-style prohibition." (p. 20).[The Everytown cite is 1786 Va. Laws 33, ch. 21, but I couldn't find it there. In the HeinOnline Sessions Law Library, the statute appears on page 554, ch. 140, of the 1819 Revised Code of Virginia, with a listed enactment date of 1786.]
Virginians plainly did not believe that a statute against carrying arms "in terror of the Country" forbade them to carry arms peaceably. The leading law book, and the leading constitutional treatise, of the Early Republic was the annotated American edition of Blackstone written by Virginia Court of Appeals Judge and William & Mary law professor St. George Tucker. Besides annotating Blackstone's four volumes to show how American law was different from English law, Tucker wrote a fifth volume of his own analysis. There, Tucker delved at length into Matthew Hale's influential 1736 English treatise, The History of the Pleas of the Crown. In England, said Hale, an assembly of armed men created a rebuttable presumption of treason. But according to Tucker, there was no "such presumption in America where the right to bear arms is recognized and secured in the constitution itself. In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side." 5 St. George Tucker, Blackstone's Commentaries 17 (1803).
The Everytown brief provides a shorter version of the Tucker quote, and then argues: "This observation is of limited significance to the constitutional question. There is no question that some state and local governments, at some points in our history, have chosen to broadly allow public carry." Everytown br., at 13.
Thus, Everytown acknowledges that Virginia in 1803 had "chosen to broadly allow public carry." The acknowledgement undermines the assertion Everytown (and the similar assertion by Judge Luttig's brief) that Virginia's 1786 statute Northampton statute amounted to "a broad …. prohibition."
What did the 1328 Statute of Northampton actually require?
Luttig: The statute was a wide ban on carrying arms and remained so in colonial America, and thereafter in American law:
Kopel: Certainly not after 1686, when the statute was authoritatively construed by Sir John Knight's Case to apply only to carrying that was "in malo animo" (with bad intent). As for what the meaning might have been in the 1300s or 1400s, the edicts of tyrannical kings do not define the scope of American rights centuries later. Indeed, the 1689 English Bill of Rights repudiated previous abuses by monarchs, and guaranteed the English right to arms. As stated in Edward Christian's founding-era edition of Blackstone, "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (Since commoners in England were not allowed to hunt.) Every post-1686 English case on the Statute of Northampton construed the Statute not to apply to peaceable carry. The North Carolina Supreme Court in 1843's State v. Huntley authoritatively construed Northampton's common law analogue to mean that: "the carrying of a gun per se constitutes no offence."
Luttig: I'm going to make some news. In Knight's Case, the Chief Justice of the King's Bench misconstrued the statute. Properly read, the Statute comprehensively bans carrying arms. The "malo animo" rule is not based on the statute. This point may well be made at oral argument on Wednesday.
Luttig: Many American statutes required Americans to bear arms. (For a list, see page 25 of the Kopel brief). The widespread compulsion shows that bearing arms was always under government control. Such compulsion is incompatible with the existence of a right.
Kopel: That's the same argument that was rejected in Heller. Many colonial and early state statutes required to people to keep arms. These applied to militiamen (all able-bodied males within a certain age range, most often 16-50). Many of the keeping mandates also applied to householders of any age or sex, including those not eligible to serve in the militia. The broad mandates to keep arms do not prove that governments ever had the authority to forbid keeping arms.
Luttig: If the Court rules for plaintiffs, it will open up a Pandora's box. The Court will be forced to hear a multitude of follow-up cases deciding what areas are "sensitive places" (Heller's language) for where licensed carry can be prohibited.
Kopel: Courts in the 42 states where the right to bear arms is presently enforced have been doing so for years. There are fewer than two dozen reported cases thus far on "sensitive places," and courts have well been able to handle them. Anytime courts get serious about enforcing a constitutional right, there will inevitably be some grey areas that need to be addressed. For example, enforcement of the First Amendment "right of the people peaceably to assemble" led to cases about certain areas where assemblies could be prohibited or specially regulated. Deciding such cases did not impose any great burden on the judiciary.
Kopel: Don't worry about the doomsday scenarios propounded by opponents of the right to bear arms. The right is already respected in 42 states, and that data show that licensed carriers have a minuscule crime rate, approximately the same as law enforcement officers. If the rights of the people of New Jersey are restored, there's no reason to expect that the people of that state will behave worse than the people of Pennsylvania, where the right to bear arms is already enforced.
Luttig: How I got involved in this case. My surprise at finding how strong the historical evidence was regarding the issue.