The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As the Supreme Court considers New York State Rifle & Pistol Association v. Bruen, many commentators are wondering if the Court will rule on the basis of text, history, and tradition. A deeply researched amicus brief from Everytown for Gun Safety cites a wealth of history. Yet some of those cites when read in context, such as the full sentence, undercut the brief's thesis that peaceable carry of arms was generally prohibited in England and America.
This post is co-authored by George A. Mocsary. Professor of Law at the University of Wyoming College of Law and Adjunct Scholar at the Firearms Policy Coalition. We are two of the five co-authors of the just-published third edition of Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen).
We will present statements from the Everytown Brief, indented. Then we provide additional context.
Early American Laws
Everytown: And, as was true in England, prosecution did not require the defendant to have "threaten[ed] any person" or "committed any particular act of violence." Ewing, A Treatise on the Office & Duty of a Justice of the Peace 546 (1805).
Here is the full text:
So a justice may, in his own discretion, require sureties for the peace from one who shall go or ride armed offensively to the terror of the people, though he may not have threatened any person in particular or committed any particular act of violence.
It is possible for a person to go about in a terrifying way or with evil intent, and to do so without threatening any person in particular or actually assaulting someone.
Everytown: There was thus no requirement that the "peace must actually be broken, to lay the foundation for a criminal proceeding." Bishop, Commentaries on the Criminal Law 550 (1865).
The full Bishop quote is:
But we should mistake to suppose, that the peace must actually be broken, to lay the foundation for a criminal proceeding. If what is done is unjustifiable and unlawful, tending also with sufficient directness to break the peace, no more is required. Thus, sending a challenge, verbal or written, to fight a duel; going about armed, with unusual and dangerous weapons, to the terror of the people; … uttering words, calculated to stir, up resentments and quarrels; … and the like; are cognizable criminally by the common law.
Bishop's rule describes a crime of people acting offensively. It does not describe a crime involving quiet, peaceable carry of ordinary weapons.
Everytown: These early American laws, like their English predecessor, broadly prohibited carrying a firearm in public, commanding constables to "arrest all such persons as in your sight shall ride or go armed." Haywood, A Manual of the Laws of North-Carolina pt. 2 at 40 (1814)
This creates the impression that merely carrying arms was cause for arrest. Haywood wrote: "you shall arrest all such persons as in your sight shall ride or go armed offensively, or shall commit or make any riot, affray or other breach of the peace." Only unpeaceable carry was a reason to arrest.
Early American custom
During the nineteenth century, the South was the gun control center of the United States. Almost all Southern cases upheld laws against concealed carry as long as open carry was lawful. Everytown argues:
14. Nor do the southern cases support a broad general right to carry, because even within the South, open carry was rare. See State v. Smith, 11 La. Ann. 633, 634 (1856) (referring to "the extremely unusual case of the carrying of such weapon in full open view").
The quote gives the impression that the court thought open carry was "extremely unusual." In fact, the court was describing an extremely unusual wardrobe malfunction:
We must understand the district judge as speaking of weapons as ordinarily worn, and where the partial exposure is the result of accident or want of capacity in the pocket to contain, or clothes fully to cover the weapon, and not to the extremely unusual case of the carrying of such weapon in full open view, and partially covered by the pocket or clothes.
Surety of the peace statutes
Surety of the peace statutes required gun carriers to post bond. The petitioners and their amici say these statutes only applied when a person was threatening to break the peace. Everytown counters:
Nineteenth-century accounts describe prosecutions under these laws when the person was carrying a concealed weapon—a form of carry that, by itself, does not indicate any menacing conduct (and is the only form of carry at issue here). See City Intelligence, Boston Courier (Mass.), Mar. 7, 1853, at 4 (reporting arrest for "carrying a concealed weapon," a "loaded pistol"); City Items, Richmond Whig (Va.), Sept. 25, 1860, at 3 (person was "arraigned" and "required [to] give security" for "carrying a concealed weapon"); Recorders Court, Oregonian (Portland, Or.), Aug. 6, 1867, at 4 (reporting conviction and imprisonment for "carrying a concealed weapon"); Arrested for Carrying Concealed Weapons, Mineral Point Tribune (Wis.), Aug. 11, 1870 (arrest and prosecution for carrying concealed weapon).
Here are Everytown's cited incidents, ones by one:
Everytown: City Intelligence, Boston Courier (Mass.), Mar. 7, 1853, at 4 (reporting arrest for "carrying a concealed weapon," a "loaded pistol")
These events were covered in Boston Courier on March 3 and 7, and in the Boston Atlas on March 9. The cited March 7 article contains neither quote. The March 3 article describes twenty persons taken into custody for a riot, "and firearms were found upon one or two of the prisoners." The article named as a participant "George H. Ransom of South Boston. Ransom had a loaded pistol in his pocket." The March 7 article reports the safe return of the "missing girl" whose temporary disappearance had been a pretext for an anti-Catholic riot (as described in the March 3 article). The March 9 article says that "George H. Rawson was discharged on paying costs and giving bail in $100 to keep the peace for 6 months."
Here, the surety of the peace statute was enforced against a rioter.
Everytown: City Items, Richmond Whig (Va.), Sept. 25, 1860, at 3 (person was "arraigned" and "required [to] give security" for "carrying a concealed weapon")
Here, "Edward Doetsch … was arraigned to answer the charge of threatening Augustus Kuck, and carrying a dirk [similar to a dagger], concealed about his person, for the special benefit of said Kuck." Doetsch thought Kuck had slandered him. "As one party violated the law by carrying a concealed weapon, and the other exhibited a spirit of vindictiveness, the Mayor required both to give security for their good behavior in the future."
This is another case of carrying in a manner that threatened to breach the peace. With escalating tensions, both parties had to give security.
Everytown: Recorders Court, Oregonian (Portland, Or.), Aug. 6, 1867, at 4 (reporting conviction and imprisonment for "carrying a concealed weapon")
The newspaper article is: "City v. Wm. Briskel: carrying a concealed weapon; fined $14 and to have two days in jail." This was not a surety case. A surety case made a defendant post bond of good behavior; it did not involve fines or jail time. Also, a case based on Oregon's surety statute would have been captioned "State v. ___."
Here, the defendant apparently went to jail because he violated the City of Portland's Ordinance No. 283. The ordinance forbade concealed carry in town and allowed open carry.
Everytown: Arrested for Carrying Concealed Weapons, Mineral Point Tribune (Wis.), Aug. 11, 1870 (arrest and prosecution for carrying concealed weapon)
Here is the full newspaper article
C.H. Russell has been arrested on complaint of Jas. A. Owen for carrying concealed weapons, contrary to law. The case was first brought before the Justice Read of this city, and then on some legal technicality transferred to a Justice's office at Dodgeville. The result of the trial is not yet known. Lawyers are in clover.
It takes a leap of faith to cite the above as taking place "under" a surety statute. With details thin, this also could have been a prosecution of a local law against concealed carry.
The Statute of Northampton
Everytown argues that the 1328 Statute of Northampton was a broad prohibition of carrying of arms, and that it was carried over to colonial America and the Early Republic, becoming the foundation of later laws that also tightly restricted arms carrying.
Petitioners say that the Statute was authoritatively interpreted to apply only to carrying with bad intent. They cite the case reports from Sir John Knight's Case (1686), a sensational political trial of a personal enemy of the king. Petitioners also point out that the presiding judge, the Chief Justice of King's Bench, said that the Statute of Northampton was "almost gone in desuetudinem." In modern English, a statute in "desuetude" has become unenforceable due to long nonenforcement.
The Everytown brief responds:
And contrary to the petitioners' assertion (at 5) that the statute had "almost gone in desuetudinem"… the prohibition continued to be enforced long after his acquittal, see Rex v. Edward Mullins, Middlesex Sessions, (K.B. 1751) (reporting 1751 conviction)…
The Mullins case does show the Statute that was "almost" in desuetude as of 1686 was still hanging on in 1751. Mullins also shows how the Statute was enforced: against someone carrying a weapon with bad intent—assault with a cutlass. Mullins was convicted of "making an Assault upon one John Jew," and also convicted for "going Armed with a Cutlass Contrary to the Statute." Each crime carried its own punishment. (He was convicted in the Middlesex County's court of Oyez and Terminer, and court of General Quarter Sessions. Each had jurisdiction over different crimes.)
For proof that the Statute of Northampton never fully went into desuetude, Everytown could also have cited a twentieth century case. King v. Smith, 2 Irish Rep. 190 (King's Bench 1914). By far the most thorough judicial analysis of the Statute, the opinion was written by Chief Baron Christopher Palles, widely considered the greatest Irish judge of his time, and perhaps of all time.
Surveying all prior sources, C.B. Palles observed, "there is but little judicial authority, although there is much in relation to it in text-books." The indictment was defective, said the court, because it "omits two essential elements of the offence—(1) That the going armed was without lawful occasion; and (2) that the act was in terrorem populi." (to the terror of the people).
The judge continued: "I find that this construction has, from the earliest times, been put upon the statute by text-writers; and, indeed, there is judicial authority in support of it."
If C.B. Palles was correct about the Statute of Northampton, then Everytown is wrong. According to Everytown:
the phrase "in terrorem populi Regis" described the effect of carrying a firearm in public. It did not signal an additional, atextual requirement of an "intent to terrorize."
Chief Baron Palles did rule that "in terrorem populi" was an "element." Not a mere effect.
In the twenty-first century, the Statute of Northampton is getting more attention than ever before. Repealed by Parliament in 1967, the Statute is much discussed today, almost exclusively by advocates on either side of the American gun control issue. Several American judges have noted that the United Kingdom's legal history on the matter is not easy for modern judges to resolve. It could be helpful to consider the opinion of a preeminent judge whose learned opinion was written with no regard for American questions.