Luttig versus Kopel on the right to bear arms

Debate from the National Constitution Center on the impending Supreme Court case

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.

Text

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.

Early laws

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.

Mandatory carry

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.

Pandora's box

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.

Final remarks

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.

Comments

[KevinP]

Someone who seeks to nullify an important section of the Second Amendment is not really a constitutional hero.

[Sebastian Cremmington]

Guns have always been heavily regulated outside the home…so going by Kavanaugh’s “text and tradition” standard that means gun will continue to be heavily regulated outside the home. Maybe next time Trump should do a little more research when he makes a lifetime appointment. 😉

[AmosArch]

by your logic slavery should have been kept too.

[Sebastian Cremmington]

Kavanaugh’s standard you dumb p o s.

[jb]

I think most people agree that Constitution had to be amended to end slavery, no?

[Michael P]

If the Second Amendment isn't worth the paper it's written on, why should the Thirteenth be?

[Kazinski]

That position makes absolutely no sense: that the people's right to keep arms shall not be infringed, but the right to bear arms can be heavily regulated.

The founding fathers had a pretty good command of English, and Black man's corpus linguistics paper is pretty convincing on one point at least, "keep and bear arms" was not a term of art and rarely used outside the 2nd amendment and contemporary state constitutions. Which leads to an inescapable conclusion: there is a right to keep arms, there is a right to bear arms, and neither right shall be infringed.

Heavy regulation = infringement.

[Sebastian Cremmington]

Take it up with Kavanaugh…it’s his standard.

[Gandydancer]

As opposed to you, who obviously has no standards of your own to argue for..

No, we're not nailed to Kavanaugh. Didn't want him on SCOTUS, anyway. The right to bear arms means what it says and NY is nullifying it which, at least after the 14A, it cannot do.

[Kazinski]

Well we will just have to see how the court rules, and how Kavenaugh votes won't we.

[Rossami]

Guns have not "always been heavily regulated outside the home". There was some limited regulation (which is discussed in the very article above) either on the basis of purpose (to terrify) or against minorities. The "heavy" regulation was novel to the 20th century.

I have no idea what you're trying to say with your rant against Kavanaugh.

[Gandydancer]

What Sebby Crummyton is saying: Evidently unwilling to admit that he's a gun grabber with no concern for what the Constitution says, Sebby Crummyton tries to distract us with a fake hiostorical claim squashed into the loader for a supposed Kavanaugh blovation. Crank the handle, out comes a distravtion.

[Soronel Haetir]

That final sentence is so incredibly disingenuous. It needs to end "so I'm going to do everything I can to obfuscate that history".

[Gandydancer]

obfuscate lie about

And not just the history. IIRC someone close to Luttig got shot, which put him around the bend. But after this performance we have every reason to look at his every opinion with doubt as to the veracity of every word he wrote.

[Brett Bellmore]

In fact, it was his father.

[Gandydancer]

"Luttig : How I got involved in this case. My surprise at finding how strong the historical evidence was regarding the issue."

Hey, I'm sorry his daddy got shot. And I'm not opposed to executing the killer. But I do wonder if a first known offence by a 17 y/o would have gotten execution in only 8 years if the son of the dead man weren't the father of a prominent nomenklatura.

[AmosArch]

Not really a debate as much as Luttig uttering a series of misinformation and Kopel debunking it.

[Brett Bellmore]

That about sums it up. But that's how these debates always go down, because, really, all the evidence IS on one side. If the legal community didn't culturally favor gun control, 2nd amendment cases would be open and shut every time.

But that community does culturally favor gun control.

[Gandydancer]

Eschew the word "community".

[jb]

One interesting thing that I noted is that Kopel insists that all the words in a statute are meaningful and you can't decide that some of them are just commentary. That's a fair argument (that I think he has the better of), but cuts against interpretations of the Second Amendment that seek to disregard the linkage to well-regulated militias.

[AmosArch]

the right is clearly outlined. Far more than other rights like abortion that leftists insist are in there. The 'well regulated militia' is provided as a justification. I have no idea where the notion comes from that we can abrogate a right just because in someone's opinion the justification no longer applies. Imagine deciding the whole constitution no longer applies because in your opinion we've already formed a more perfect union.

[Brett Bellmore]

The notion comes from their hostility to the right. Nothing more.

[The original jack burton]

The anti-2nd Amendment community has for a long time deliberately misread the Second amendment, to the point of ignoring the logic structure of the sentence.

The structure is this:

“This is a benefit derived from X; the rights to X shall not be infringed.”

To read it in any different context requires deliberate, intentional ignorance.

For example; suppose we said:

“Healthy bones being good for children, the right of children to drink milk shall not be infringed”.

The “progressive” read of that sentence, taken as they read the 2nd amendment, would be: "Only children with healthy bones are allowed to drink milk".

Excuse me, but you have to be a real arse to interpret that sentence that way.

“Quality orchestras being of value to the culture of the state, the right of the people to own and play musical instruments shall not be infringed”.

Have I've just said that only orchestra members can own or play instruments?

They are not making a mistake with their faulty interpretation- it's very chillingly deliberate deception.

“A well balanced breakfast being necessary to the start of a healthy day, the right of the people to keep and eat food shall not be infringed.”

Who has the right to keep and eat food? A well balanced breakfast or the people?

“A well-read electorate being important to a representative democracy, the right of the people to keep and read books shall not be infringed”.

The modern day gun controller would demand that only those on the voting rolls have the freedom to read and keep books. This shows their moral and ethical bankruptcy.

But let’s take one last look at that sentence construction. The importance of a horse in the 18th century to army personnel was extremely high. It was their transportation, it was their luggage carrier, and they could even eat it if necessary during a siege. Therefore, it was paramount to know that all the militia could show up with their horse in hand when called upon. So… the Founding Fathers put a clause in the Constitution that read something such as this:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and ride horses shall not be infringed”

Now, based upon the interpretations of those who have difficulty understanding English they would have us believe that only those who belong to the militia have the “right” to keep and ride a horse. No other people do. Not farmers. Not cowboys. Not horse racers. Not teamsters. Not stagecoach companies. Not little girls with their ponies. No one has the “right” to keep and ride a horse except a “militia member.”

And furthermore, those that have the “right” to keep and ride a horse must abide by the government regulations as to the particular, allowable breed of horse, the number of legs the horse must have, how old it must be, how tall it can be, the color of its hair, how long the mane can be, whether or not it is male or female, and if it is gelded. Not to mention the total number of horses one can keep and ride, or the sum total poundage of the herd. Or how fast it can be ridden and how many miles in one trip.

If this seems exceptionally silly… that is because the basic argument of those who dismiss the 2nd Amendment as only applying to the militia is exceptionally silly. They really know that deep in their heart… which is why they generally just wave their hands and don’t try to actually defend their position.

[Gandydancer]

Or, like Luttig and Sebby Crummyton, they can just lie through their teeth.

[Brett Bellmore]

Since the main substance of the linkage is that it's a right to keep and bear military arms, it isn't opponents of gun control who typically disregard it.

Advocates of gun control certainly seek to disregard that "right of the people" language, though

[Sebastian Cremmington]

But you disregard the preamble.

[Brett Bellmore]

The preamble IS what establishes that the right of the people is a right to arms suitable for militia use. That's why protecting the right of the people to keep and bear them advances a well regulated (Properly equipped and trained.) militia: You raise the militia from the citizenry, and if the citizenry already own suitable weapons, you don't need to arm them.

[Sebastian Cremmington]

Except in 1861 Jefferson Davis didn’t depend on individuals with guns to fight tyranny. And when Jefferson Davis raised a militia earlier in his career during the Mexican War he got the federal government to supply rifles and the rifles remained the property of the state.

[Gandydancer]

Nobody said that the right to keep and bear arms is the ONLY possible way to oppose tyranny and foreign enemies.

[Toranth]

He doesn't understand in the slightest what he's saying, which is why he repeats the same, obviously incorrect, arguments over and over again. Just watch him get all confused over what groups are a militia - it's hilarious.

[Sebastian Cremmington]

Sure, the KKK and Black Panthers and ISIS-K are examples of the unorganized militia and the Framers empowered groups like that to resist tyranny by undermining law and order and creating anarchy.

[LarryA]

and if the citizenry already own suitable weapons, you don't need to arm them

More importantly, they don't need as much training. As I recall, there was an amicus in the Heller case by a bunch of military flag officers making the point if recruits knew how to handle an AR-15, they could easily transition to the M-16.

[Gandydancer]

Kopel is wrong. Sometimes the drafting is trash, and that needs to be recognized. Or, in the case of the 2A, trash drafting was copied from elsewhere. But the "linkage" is anyway clearly a reason for, not a limitation on, the right, and so severe a limitation as NY attempts is way, way out of bounds from any legitimate interpretation.

[Brett Bellmore]

I don't think it's really true that the 2nd amendment's drafting is trash. What's going on is over 200 years of linguistic drift, and a whole shit-load of motivated reading.

And mainly the latter.

As recently as the early 20th century, you'd have been hard put to find legal authorities defending Luttig's stance here.

[Gandydancer]

It's trash, and always was. Like the Citizenship Clause of the 14th Amendment, which its drafter defended as not meaning by "jurisdiction" what the adjacent sentence means by "jurisdiction". He had the votes and wasn't going to renegotiate that by trying for better wording.

18th and 19th Century congresstrash equivalents were just politicians. Lose the rosy glasses.

[jb]

Hey look, someone actually responded to my point, which is about Kopel's line of argumentation rather than just rehashing the same old tropes about the text of the 2A.

I do think it's significant that basically none of the other rights in the Bill of Rights comes with a similar preamble, and think it's at least worth thinking through Kopel's line of argumentation which is that the words are actually the law not just some commentary on it. It's not necessarily clear what sort of limiting principle this creates when it comes to Congress and the 2A, but I wonder if it argues against incorporation via the 14th Amendment. If the reason why we don't want Congress restricting the right to bear arms is that we want the states to be able to have well-regulated militias, I don't think it follows that it's a generalizable right that the states, in deciding how they might want their militias to be armed. Having said that, it's contrary to the Supreme Court's holding in McDonald, but it's perhaps a way of viewing the text in a way that doesn't simply disregard half of the text one of the amendments as completely irrelevant.

[Gandydancer]

As I said, a bit obliquely, the excuse for the provision offered in the provision was copied from several State Constitutions. But I think Kopel has the history right and Luttig doesn't: No Colonial would put up with NY's law. And, as I also said, it's clearly an explanation and not a limitation. Lots of laws have preambles, but they don't eat the guts out of the laws as written. And the 14th A ALSO says what it says, not what you wish it says.

[Gandydancer]

* ...offered in the AMENDMENT...

[Kazinski]

The preamble is well explained in US v Miller, 1939:

"The Constitution as originally adopted granted to the Congress power—'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, §

8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

[tkamenick]

I get this argument from government custodians in my legal practice all the time. "The Open Records Law says its purpose is to shine light on the official acts of government officers and employees. These records aren't official acts, so they aren't records and don't have to be produced."

Courts constantly and consistently reject that argument. They rightly point out that the statute says the policy is of transparency and the ultimate goal is making sure those official acts are known, AND IN ORDER TO FURTHER THAT GOAL, the law defines everything in the government's possession that contains information as a record. In other words, in order to ensure the goal is met, the law is intentionally overinclusive of that goal to limit the government's ability to argue "well, this record isn't REALLY an official act, so the public doesn't REALLY need to see it".

The same thing is going on here. Brief statement of what the primary goal of the amendment is, and then the operative text. Is securing an absolute right to bear arms broader than would be necessary JUST to have a well-regulated militia? Yes. But that does not mean that the hortatory statement limits what the operative language actually says.

[jb]

But then shouldn't it also be true with Lutig's argument about the prohibition on arms being general and the "terrorizing" bit just rationale for the rule?

[Rossami]

No. Grammatically, the "terrorizing" bit is a necessary element of the law.

There is also considerable historical evidence that non-terrorizing carry was widely permitted. That evidence guts any interpretations of that law as equivalent to preamble rather than necessary element.

[Rev. Arthur L. Kirkland]

Gun safety is a strong contender -- with abortion, voting rights, bigotry, another pandemic, gridlock, and others -- in the 'which issue will precipitate the end (or substantial diminution) of the filibuster and enlargement of the Supreme Court' contest.

[Gandydancer]

We really don't need to hear from your broken crystal ball again, asshole.

[Miles Fortis]

You really do like to live in a fantasy land of your own febrile imagination, don't you?

[Kazinski]

I think there is too much reliance on the Sir John Knight case for the simple reason that it never should have been bought in the first place. James II in 1686 was attempting to usurp the traditional rights of Englishman, which is why he was deposed in 1689.

[Stephen Lathrop]

Kazinski, don't fall down the same historical analysis rabbit hole that Kopel and Halbrook apparently can't get out of. Those, "traditional rights of Englishmen," you mention were not general rights owned alike by British citizens. They were rights of English freemen—generally the only people in the realm who could claim whatever protections English constitutionalism afforded.

Freemen were a smallish minority, with the entitlement applied somewhat variably over time, and probably varying somewhat with regard to place. To generalize about what it meant in terms of rights to be a "freeman," you have to specify when and where—and then do the analysis by means of evidence from the record for the time and place you are talking about. Of course Kopel and Halbrook are not historians, and do no such analysis.

Which is troublesome for their arguments, because the large majority of the population, up until at least the early 19th century, were not freemen, and were ruled locally and arbitrarily. What privileges the majority got, they got according to often-arbitrary dictates of justices of the peace, and the whims of their social superiors.

In the early 19th century, for instance, those privileges tended to be limited to the notion that most were entitled to subsistence sufficient to keep them alive, and not much else. Kopel and Halbrook seem to have been confused into belief that rights applied generally to everyone by the term, "commoners"—which they mention but apparently misunderstand.

With regard to rights and privileges, "commoners," did not mean anything like, "the balance of all the people." A freeman who was not a noble could be a commoner, and yet entitled to certain rights which did not extend to everyone, such as a right to arms. A servant (a tricky term, typically meaning anyone who worked for hire, whether in personal service or not) may also have been a commoner—probably would not be a freeman—and under English constitutionalism typically got far less status and protection than a freeman.

No matter what the law said, in the early 19th century, it is doubtful that many, "servants," could have counted on any practical right to arms, and certainly not a right to arms they could carry about publicly, or use for political purposes. Attempts of that sort could get people hanged, and did. At that point in time, many of them could not even change their place of residence at will.

A note of caution. Apparently I am a bit better informed about English history than Kopel and Halbrook, but I remain poorly informed. Take what I say with a grain of salt, and apply the same rule to them.

[Michael P]

No, you are not better informed. You just have diarrhea of the keyboard, and serious confusion between "Englishmen", "freemen" and "commoners". You also have a serious case of ignoring plain text: specifically, "the people", as used several other places in the Bill of Rights.

[Brett Bellmore]

"Those, "traditional rights of Englishmen," you mention were not general rights owned alike by British citizens. They were rights of English freemen"

And you don't quite get that EVERYBODY in America was to be a freeman. The slaves were thought to be a temporary exception, as slavery was on its way out until the cotton gin made it economical.

[Gandydancer]

That has nothing to do with it. EVERYBODY who counted in America (not slaves and savages) was a free ENGLISHMAN. Only freer, bucause more out from under the monarch's thumb by reason of distance.

Whether slavery was on its way out or not was neither here nor there. Even those who wanted to end slavery were ptrtty unanimous that negroes and savages would not thereby become Englishmen.

[Mike Hansberry]

Stephen,
Is Luttig the sort of historian you prefer? One who tells us he is certain that the judge got it wrong 400 years ago? "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."

To your point, you must be aware that even the TN supreme court in Aymette interpreted the right to keep and bear arms in America as not having the qualifications that watered down the common man's right to have arms in England: "But, with us, every free white man is of suitable condition, and, therefore, every free white man may keep and bear arms."

[Stephen Lathrop]

Mike Hasnberry, no. Luttig is not a historian either.

The court should pay no more attention to Luttig as a historical expert than it should to Kopel or Halbrook. Would-be originalists who want to present historical evidence to courts ought to round up preeminent professional historians to do it.

Before allowing potentially consequential historical testimony, courts ought to apply as stringent a standard regarding the quality of the evidence as they do in the case of scientific testimony. Luttig, Kopel, and Halbrook come to court in the same posture as do purveyors of junk science. They are all making literally falsifiable claims, as actual historians could explain.

As for Aymette, I don't think a state court decision which specifically confirms a restricted class of rights holders is very persuasive evidence of a universal right protected nationally. And less so in a would-be originalist context, where a key question about the 2A is whether southern concerns about arming slaves might have accounted for the omission of an explicit self-defense purpose for the 2A. It is hardly plausible that southerners would have accepted an unrestricted proclamation of arms for self-defense which might at ratification have been interpreted by abolitionists as a right useful to slaves. It is equally implausible that Pennsylvanians or New Yorkers would want to ratify such a right if it excluded slaves. It seems highly likely that both sides would have agreed to let states continue to regulate armed self-defense as they were already doing, and thus bypass a potential roadblock to ratification.

More generally, purely as a matter of historiography, you do not get to pretend to illuminate late 18th century cases with interpretations from a half-century later. The founders were wise, but not clairvoyant. They had no better ability than we do to inform their decisions on the basis of opinions time-traveling back from an unknowable future.

[Gandydancer]

"It is equally implausible that Pennsylvanians or New Yorkers would want to ratify such a right if it excluded slaves."

Because 18th Century Pennsylvanians and New Yorkers were premature 21st Century Progs anxion to arm Negroes? Got a link for that?

[Stephen Lathrop]

Gandydancer, take a look at likely-slave purchaser Alexander Hamilton's abolitionistic advocacy. Abolitionism was already a thing in 1789, and already widely feared by slave holders—who resisted alertly and keenly every hint or tendency, however slight, that might imply jeopardy to their way of life. If you are too lazy to find out yourself, just note that the very structure of the Constitution reflects that.

[Stephen Lathrop]

Gandydancer, note also that ratification of the Bill of Rights followed by several months the news of the slave revolt in Haiti—an occurrence which considerably sharpened Southern slave-holder determination to keep slaves helpless.

[HackJackerson]

"courts ought to apply as stringent a standard regarding the quality of the evidence as they do in the case of scientific testimony."
Now do bite-mark analysis.

[Stephen Lathrop]

Hack, if you have a point you could explain it.

[Kazinski]

While of course rights in England were often rationed by class, such as the English declaration of right "subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”

But at the founding we were no longer subjects and had fought a revolution to prove it. And few men were going to assign themselves to an inferior station, since all men are created equal was a core tenant of the revolution, along with the theory of natural rights. The 2nd Amendment didn't use the phrase "the right of the people to keep and bear arms shall not be infringed" because it had never been infringed before, but because it had. Just as nobody claims the history of quartering soldiers, restrictions on the press, or an established religion narrows those rights today, citing infringements on the right to keep and bear arms just explains why it was put in the constitution.

What kind of historical rabbit hole did you fall down to forget there was a revolution that wiped out those English class structures as a matter of law?

[Gandydancer]

...and then SCOTUS came along and ruled in Wong Kim Ark that the greedy grasp of English mionarchs in claiming as subjects almost anyone born within their reach also dictated who could claim US citizenship (never mind that it somehow didn't apply to Amerinds).

[Stephen Lathrop]

Kazinski, what got wiped out as a matter of law was as subject to legal happenstance in America as it was in England. As a matter of history, legal realities are always better proved by case results, not by legal texts or political axioms and theories to explicate them.

You assume a result which needs historical analysis to prove. What the revolution wiped out is as subject to historical proof as what the revolution left in place. And what the revolution left in place is actual history, highly useful to interpreting what the Declaration of Independence, and the Constitution, and the Bill of Rights actually meant in historical context. If you are the kind of would-be originalist who insists on original public meaning, that only makes the contextual argument stronger.

I am not be any means well read in legal case results from the founding era, or from the immediate pre-founding era. I have read a bit from court decisions in the early New England colonial era, as part of a more general attempt to learn about that place and time. I can tell you that with reference only to that material, class-inflected results with regard to carrying arms was a thing in colonial America. High status individuals got more liberty with arms than ordinary people did. General restrictions on arms were routine, although by no means universal. In specific instances, customary exceptions superseded formal restrictions. It was complicated.

I suspect that when Bellesiles snuck his fraud past the historical profession, one thing which enabled him to get away with it was that there is quite a bit of actual court evidence to support his thesis, and much of that historical background was known to preeminent historians such as Edmund Morgan, who embarrassingly endorsed Bellesiles' book.

Note also that as a matter of familiar historical interpretation, colonial New England was less class-bound than, for instance, Virginia. That George Washington could ride freely in public with pistols in his baggage was by no means proof that just anyone could expect to get away with that.

I suspect that systematic comparative analysis of arms-related court cases from later-colonial New England, and later-colonial Virginia could much better illuminate these essentially historical controversies. I doubt that would much affect modern political controversies, however. I see no forthright willingness to let real history into gun politics, not even gun politics as presently practiced in court.

[tkamenick]

Lol. SL is completely ignoring that these distinctions of nobility and class that determined what rights you have was rejected by the founding fathers and a contributing cause of the revolution.

[Stephen Lathrop]

tkamenick, I don't ignore any of that. I try to give it the weight which examination of the historical record can support. There is plenty of support for what you say. There is notable evidence against some of it. History is rarely as simple as your argument seems to be.

[Mike Hansberry]

Stephen,

The US Constitution forbids granting of titles of nobility by the US or the state governments (Art 1, sec 9, clause 8 and Art 1, sec 10, clause 1 respectively). All the hand waving of approved historians will not change that.

Just concede the point and move on.

[Stephen Lathrop]

Mike, the point you make, if I understand it, is that the Constitution tells us how the law actually worked, and not only did so after ratification, but also—perhaps by magic—before then.

What puzzles me is why so many pro-gun advocates profess to care about history at all. Like you, they express disdain for academic historians. Like you, they show not the slightest knowledge of period context, let alone familiarity with original sources. Like you they are clueless about historiography—mostly don't even know the subject exists.

So what's with all the back and forth about history? You don't like it, you don't know it, and yet you are obsessed with it. What's going on?

[Brett Bellmore]

I'm reminded of Kates' concept of "gun-aversive dyslexia--a reading disability engendered by a fear and loathing of guns so profound that [those] who encounter adverse facts may be honestly unable to comprehend them."

I've encountered it many times; People who are just so hostile to the right in question that, if you present them with evidence of it, they'll see instead proof that it's fictional.

[Ridgeway]

"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."

Did Luttig really say this? If he did, it casts doubt on his abilities as a judge and lawyer. If not, it casts doubt on Kopel's honesty and good faith. Pretty binary.

[Kazinski]

Yeah, I wonder if he'd apply that logic to the Alien and Sedition Act?

How about the 4th amendment, the states ignored that one for 150 years, does that invalidate the 4th amendment too?

I'm not an expert on the subject, but my sense is there wasn't any appetite during the first half of the 19th century for federal courts to invalidate any state laws infringing individual rights.

[Gandydancer]

Nor was there any warrant for the Federal courts to do so, that not being an enumerated power of the Federal government before the War of Northern Aggression.

[Kazinski]

It also seems that any reliance on the Statute of Northampton to decide what Americans rights were at the founding is completely irrelevant. The English Bill of rights in 1689 already consigned the Statute of Northampton to the dustbin of history. How could it have any relevance to Americans 400 or 600 years later?

What other rights would we say are dependent on rights in England in 1328? The right of Prima Nocta?

[Brett Bellmore]

Initially I'd assumed that Kopel was giving a brief summary of Luttig's side, and a longer form summary of his own. Now that I'm actually listening to the podcast, I'm surprised to find that's not really so much the case. Luttig's remarks were usually short and general, Kopel's long and specific. And Luttig really was just blowing off the actual text of the laws he was citing, where it worked against him.

The above actually does give a good impression of the debate: Luttig's case is pitched to people who are either already decided in his favor and just in need of talking points, or people who are simply ignorant of the history.

Well, maybe that's not a bad description of the Court... There are at least three of the Justices who ARE already decided in his favor. And maybe enough of the balance of the Court are ignorant enough of the relevant history to fall for Luttig's argument... if that was the only side of the argument they were going to hear!

It's not, of course, so Luttig's only real hope here is that five of the Justices will decide in his favor on policy grounds, in the teeth of constitutional arguments. Sadly, not an impossible outcome.

[Brett Bellmore]

Ah, I see what's going on: The reason Luttig is blowing off the language specifying that carry that terrorized the public was prohibited, because carry terrorizes him, regardless of intent, and so he views the language as redundant.

It's an emotionally motivated argument, gun-aversive dyslexia indeed: His determination that gun control has to be acceptable is so strong that it's warping his ability to perceive evidence to the contrary.

His strong emotions in this case are understandable, I suppose.

[Kazinski]

Which is why Koppel makes the important point, there is no rational basis to be terrified by law abiding citizens bearing arms, because its already being done in 42 states.

Chicago and the rest of Illinois were dragged kicking and screaming into shall issue by the 7th circuit, but there they are now almost 10 years later with no parade of the horribles we were promised, not that its stopped the gang violence either.

[Brett Bellmore]

Hard to stop gang violence when the gangs are in tight with the local governments.

[Stephen Lathrop]

Bellmore, it is remarkable that antique language about putting the public in fear is so transparent to you. It comes from a time and place you have never known, not even from reading its actual documents. Where do you get such insight? Where do you get such confidence?

[Michael P]

He is not interpreting antique language, he is explaining why Luttig interprets that language to inject superfluity and to declare that a court hearing a case was wrong in understanding the law.

[Brett Bellmore]

Good podcast, but I still prefer the written word. Listening is so slow and uncertain, especially with my hearing gradually declining.

[Gandydancer]

I listen even to many written articles through text to speech (Panopreter), as I often take them in while working on something else.

[Brett Bellmore]

Text to speech works very well, because the translation in that direction, aside from emotional nuance, is straightforward. Even high end speech to text translation is very glitchy.

[Shabbetai Ẓevi]

It is only a jewish cause to defeat 2A, same for 1A. Goyim with powers of speech and guns threatens an elite ruling class, being an impediment to the new world order.

Banter is bullshit. Try and take away guns and speech from 'murikans begs its own destruction. Which in the end may just be natural law, eliminate the elites.

[Dan Schiavetta]

The Framers had different meanings, than the ones we now use, when they used the words "right", "arms" and "people". And of course "militia" and "security of a free state". They were not talking about what today's gun rights advocates are talking about.

[Toranth]

Also "press", "establishment of religion", "cruel and unusual", and "20 dollars".

Therefore, we can substitute whatever meaning we want for these terms?

[Dan Schiavetta]

The system of law enforcement the 2A dealt with does not exist any more, and hasn't for a very long time.

[Toranth]

Great!
So, change the Constitution to get rid of the amendment you don't feel is needed any more. Perhaps you can define something about the "system of law enforcement" this time, so this thought can be relevant.

[Dan Schiavetta]

The 3A isn’t needed any more either.

[Brett Bellmore]

Again, the opinion of some random internet commenter, or of a judge, for that matter, does not repeal clauses of the Constitution. Use of Article V, and nothing less, repeals clauses of the Constitution.

[Stephen Lathrop]

Brett, considerably less served to read the Militia Clause out of the 2A. I'm okay with those methods, by the way. Count on seeing the same methods coming back your way someday.

[Brett Bellmore]

Well, yes, Scalia did read the militia clause out of the 2nd amendment. He didn't do it to extend the right to people who weren't militia members, or to outside the context of militia service.

He did it to deny that it was a right to military weapons, as the Miller Court had held.

Understand, I'd never defend the Heller decision as good originalism. Neither Stevens nor Scalia meant to uphold the 2nd amendment honestly. They simply disagreed about whether to utterly quash it, or simply neuter it somewhat.

[Alpheus W Drinkwater]

There is no such thing as good originalism.

[Toranth]

The 3rd isn't needed, yet it still applies as written. There just haven't been any cases in a long time because of that.
Yet to start quartering again, we would need to get rid of the amendment, rather than declaring that the modern system of logistics for the standing army makes it obsolete.

[The Turtle Dove]

Far from an expert, but the 1688 English "right" was constrained by bearing the arms appropriate to one's station in life, and parliament's right to legislate against keeping arms (or printing presses, or Catholic priests). To find the contours of a right in a system with an unwritten constitution and a (very much newly) sovereign Parliament, you shouldn't be looking at the statutes, or even, to a degree, the caselaw. You have to look at what wasn't done. Caselaw can speak to this, but you'd have to distinguish the types of decisions -- affray and mayhem among the aristos (of which there was a good bit) would likely have ended up in Star Chamber prior to its abolition, and that's not precedential, but a sort of "tabloid jurisdiction" over the rich and famous. A wild guess, some of that might have ended up in Privy Council afterwards, but the point is that you wouldn't expect someone who "illegally" carried something to be necessarily arrested and prosecuted for a felony as defined in the code of the laws; that's simply not how law enforcement worked back then.

tl;dr: to claim an enumerated right at the Founding according to the historical practices of English law, you'd need a "smoking gun" or two in the precedent explicitly rejecting a certain course of action, and I'd have thought that such a thing would have turned up by now.

Mr.D.

[The Turtle Dove]

I mean, knee-jerk reaction: if I had to write a conclusion now, it would be that "well regulated militia ... shall not be abridged" is a reaction to the English caselaw (that I vaguely remember) holding that Englishmen didn't have a universal right to bear muskets, since that would create a militia, and the statement in the Bill of Rights (or ratifying statute) was insufficiently clear for that. And in the 17th c., the balance of power in the counties was still skewed to the JP's and the traditional aristocracy. But I've got nary a scintilla of proof for that.

Mr.D.