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NYSPRA v. Bruen

Surprising support for the right to bear arms

Reading the cited sources from Everytown's amicus brief

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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.

NEXT: Social science on the right to bear arms

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  1. As usual, the leftist mask slips. They have the First Amendment on their agenda next; witness the quotes that, according to their reading, have long supported a broad right to ban or heavily regulate speech: "uttering words, calculated to stir up" (errant comma removed) discontent was illegal under common law, and so forth. Also from the same source, both "spreading false news" and "being a common scold" were potentially criminal.

    (No, this is probably not literally true. But when they are this duplicitous, it's hard to be sure.)

    1. If they succeed in gutting the Second Amendment and take away our guns, they can do anything to us. If you think it's that piece of parchment in the Smithsonian in Washington D.C. that's keeping them honest, think again.

      1. You are welcome to keep a reasonable firearm at your home for self-defense, Ed Grinberg. Unless the counterproductive gun nuts push the mainstream too far, and the predictable snapback overruns that right.

        1. Are counterproductive gun nuts the problem with guns outside the home?

        2. Those "gun nuts" are simply mainstream people who understand our American history and our US Constitution. The extremists in the national news media always try to paint decent, mainstream citizens upholding our basic human rights are "counterproductive".

        3. Interesting term "snapback". Seems to describe exactly what is happening today, but as a result of the push of gun control fanatics. Ye reap what ye sow. Indeed, we are reaping what you have sown. The difference is, gun owners have the ability to actively defend the recovery of our right to keep and bear arms with more than litigation and legislation.

  2. This amicus brief is very similar to Stevens dissent in Heller. Claiming to rely on historical writings, yet misrepresenting the historical writings and pretending that zero historical writings existed for self defence

    1. We are all Originalists now.

      1. Stevens was pretending to be an originalist -

        He did it by citing a lot of historical writings showing the rights for "common defence"
        He then claimed that there was not any historical writings showing the right for self defence.

        Honesty was not his forte

        1. What's happening, is even "living constitionalists" and inveterate weasels like Stevens will use origionalist arguments and evidence as much as possible to advance their cause. Of course, their response is that that was what justices like Scalia were doing all along with origionalist arguments and evidence.

          1. But Scalia employed liberal constructionism to make the preamble meaningless. The best opinion of the bunch is Stevens’ McDonald dissent which should actually find a right to self defense with a gun in the home pursuant liberty interests and had liberals done that we wouldn’t even have to deal with “bear arms” outside the home…so the 2A would have been properly interpreted as a federalism provision.

            1. Scalia's Heller decision was not actually origionalist either, to the extent that the 2nd Amendment is supposed to give citizen the right to keep and bear arms equal to the military. I think he had to compromise with that dicta about gun control laws in place against dangerous and unusual weapons in order to get Roberts' votes.

              So where does that leave us?

              1. It got us a very responsible Supreme Court decision. And outside the home the justices should find we have a right to “bear arms” but a city like NYC can essentially outlaw guns outside the home with school zones and prohibited areas.

                Furthermore, I think Rittenhouse is innocent of murder but he is also being charged with “recklessly endangering safety” because apparently one of his shots ended up near a bystander. So a city like NYC could prosecute gun owners engaged in self defense on similar grounds and make life miserable for anyone discharging a gun even in self defense by prosecuting them for reckless endangerment if bystanders are nearby.

                1. I'm all for laws being decided by the lowest level of government. There's a term for it that escapes me at the moment. That is the only thing that will prevent America from breaking up, in my opinion, because the people of Texas have very little in common with the people of California. This is muddied, of course, by an urban/rural dynamic, but you get the idea because it's what you're advocating for.

                  However, I don't see a geographic clause in the 2nd Amendment.

                  As for Rittenhouse, did you see the FBI drone video, which they kept hidden for over year, that clearly shows that he was not the aggressor and was shot at first?

                  1. Thanks for the link. I was wondering what people were talking about because the video evidence everyone has access to clearly shows Rittenhouse engaging in self defense?? That said I am discussing the reckless endangerment charge because the other charges are unethical and the prosecutor should be disbarred…quite frankly I think the judge knows the prosecutor is violating ethics rules which apparently are meaningless because the prosecutor isn’t being stopped.

                    1. I suppose I don't have an answer to where your right of self defense ends when engaging in it might put others at risk. Nobody charged Zimmerman for reckless endangerment because one of his shots up in the air could have missed and come down in a nearby park.

                    2. Zimmerman only fired one shot.

                    3. I didn't know that. Still, a zealous prosecutor could have made a similar reckless endangerment charge. They could indict a ham sandwich and they often overcharge like a MF.

                    4. In states like NY they make a point of prosecuting every gun charge even in self defense. I personally think gun registration laws are unconstitutional but that really only helps with Castle Doctrine with an unregistered gun.

                  2. "I'm all for laws being decided by the lowest level of government. There's a term for it that escapes me at the moment."

                    Subsidiarity. It's a bedrock principle of Catholic social teaching.

                    1. Thanks! That's where I got the idea from. Credit where credit is due.

                  3. "There's a term for it that escapes me at the moment. "

                    "Subsidarity".

        2. Ah yes. That Justice didn't just disagree with you, they secretly agreed with you and were lying about it!

          Oy.

          1. Naw, just ignoring contrary evidence. A familiar human failing.

            1. Good thing you've got none of that in you, then.

  3. Is there any early case law or documentation of customs that covers the legal ramifications of using firearms as a form of psychosis medication and/or as a sexual fetish? Because that's where I think our social problem with guns is in this century. They don't need them. There is no use for them. They are not practical for the putative use cases that are claimed. But they want them. So so bad.

    1. To fall back on sexual fetishes involving guns as an excuse for disarming the public is a sign of desperation and self-deception.

      1. The denial of the fetishistic nature of gun ownership as a driving force in our gun politics to day is just that: denial.

        1. Sometimes a gun is just a gun.

        2. Hey, Orbie, why's it all sexual with you gun-control people? Do a search on: psychology projection.

    2. "They don't need them. There is no use for them. They are not practical for the putative use cases that are claimed. "

      All three of those statements are false. "They" includes law enforcement personnel, security guards, and citizens who tread dangerous streets. There are many uses for them, most important being self protection and insurance against and resistance to tyranny; as well as hunting. And, they are very practical: affordable, portable, easy to use, easy to reload.

      1. "They" refers to the next guy who, after capture or suicide or suicide by cop, is discovered to have cached hundreds of weapons and thousands of rounds of ammunition. News stories will contain phrases such as "he seemed perfectly normal" to "troubled history" and "once he started watching OAN and Newsmax we just couldn't talk to him anymore."

        About hunters: No problem here. The NRA used to have a magazine mostly devoted to gun safety and recreation. They should get back to that.

        "resistance to tyranny:" Yeah right. Pure fantasy. Your very impressive militia in their store-bought camo and the awesome stuff that goes boom will last about 90 seconds against any police special team, much less a National Guard unit. Sweet Jeebus what does it take to make people grow up? Oh wait they did grow up but they have a fetish they are indulging.

        "personal defense." In some cases OK. In most cases no. Good case example: alone in a cabin (particularly a woman) more than an hour away from law enforcement help. Bad case: That Texas woman who was just arrested for threatening a 7-year-old trick or treater with her gun.

        1. ""resistance to tyranny:" Yeah right. Pure fantasy. Your very impressive militia in their store-bought camo and the awesome stuff that goes boom will last about 90 seconds against any police special team, much less a National Guard unit. Sweet Jeebus what does it take to make people grow up? Oh wait they did grow up but they have a fetish they are indulging."

          That is incorrect, and is contradicted over and over again in history. What chance did the colonists stand agains the British Army and Navy in 1776 - the mightiest, world-dominating and colonizing army and navy in the world at that time? What did the British do when the prospect of an invasion by Germany appeared imminent? They armed the previously disarmed populace! They begged U.S. sportsmen to send rifles to be distributed to the populace. Why did we drop "Liberty guns" to the resistance in France? Russia was defeated in Afghanistan. The US was defeated in Afghanistan. Recall the perhaps apocryphal quote from Yamamoto, "to invade the United States would prove most difficult because behind every blade of grass is an American with a rifle." And, besides - who's side do you think the police and military would ultimately be on?

          1. The colonists and the British army both had access to similar weapons, but the British army had an outdated understanding of warfare and the colonists had learned guerrilla warfare from the indigenous people they were also fighting. That isn't an instructive example in an era of chemical weapons, tanks, and satellites.

            Today, which is closing in on 100 years since WWII, we don't need every American hiding behind a blade of grass with guns because we have nukes. This idea that a foreign country wouldn't invade were it not for a bunch of rednecks with guns is pure teenage fantasy better left to a weekend of Xbox-hosted digital slaughter.

            As for Afghanistan, or just as easily Vietnam, these aren't situations where the US and the locals were fighting the same war. The locals were fighting for their country and the US was fighting for... something? Were we ever really sure? Bonuses for the CEOs of military suppliers?

            None of your examples explains a real need for the large caches of weapons some people horde in this country. And the legal efforts to limit those weapons in destructiveness aren't efforts to eliminate all guns. Where's the pro-gun lobby's effort to legalize fully automatic weapons? We banned them. So surely that was going to lead to a full removal of all guns, according to right-wing logic? But that never happened. We outlawed assault rifles and then made them lawful again. Not exactly the slippery slope into full gun restrictions the right-wing media promised.

            All that is being argued on this subject is where to draw the line such that Americans can own their guns, but their neighbors get to sleep better at night knowing that they don't have to fear them getting drunk and firing off a 50 caliber machine gun because a squirrel looked at him wrong, FOX News said Obama was invading Texas, or that Tucker moron claiming masks are tyranny.

            1. "None of your examples explains a real need for the large caches of weapons some people horde in this country. "

              That's the nice thing about rights: You don't have to prove a need to exercise them!

            2. Hey, dude, there are around 150,000,000 gun-owners in the U.S. compared to a few million military and police. That's more than enough to make the country ungovernable and thwart the enforcement of tyranny and holocaust. Think snipers, IEDs, ambushes, workers taking over sabotaging factories. Would you want to risk being military or police in that situation and risk being shot by your neighbors?

              Where's the pro-gun lobby's effort to legalize fully automatic weapons? We banned them. So surely that was going to lead to a full removal of all guns, according to right-wing logic? But that never happened. We outlawed assault rifles and then made them lawful again. Not exactly the slippery slope into full gun restrictions the right-wing media promised.

              The anti-gun liberals would ban them if they could. Each law is a step closer. The only thing stopping them is the NRA and pro-freedom right-wing groups.

              All that is being argued on this subject is where to draw the line such that Americans can own their guns, but their neighbors get to sleep better at night knowing that they don't have to fear them getting drunk and firing off a 50 caliber machine gun because a squirrel looked at him wrong,

              Paranoia.

          2. What chance did the Vietnamese have? What chance have the Afghanis ever had in all the wars they won?

            The colonists won because the Brits were fighting a war where all supplies other than water had to be brought over the Atlantic regardless of the weather. Foraging parties came back in tatters or not at all often enough that they could not be relied upon. The Brits thought capturing a capitol or large city won a colony, and when they got chased out by lack of supplies, the captured cities reverted.

            The stupidest thing about the Vietnam and Afghan Wars was that the US did not remember the very lesson it had taught the Redcoats.

            1. Well, no, because you need to remember that Viet Nam was a proxy war on BOTH sides. It was a war between the US and China! BOTH sides were being supplied from abroad. Not just the South.

              The North could never have held up as long as it did, or won when we violated our security promises to the South, if not for the supplies China was giving them.

        2. "resistance to tyranny:" Yeah right. Pure fantasy. Your very impressive militia in their store-bought camo and the awesome stuff that goes boom will last about 90 seconds against any police special team, much less a National Guard unit.

          There are around 150,000,000 gun-owners in the U.S. compared to a few million police and military. That's more than enough armed people to make the country ungovernable and to thwart the enforcement of tyranny and holocaust.

          Sweet Jeebus what does it take to make people grow up? Oh wait they did grow up but they have a fetish they are indulging.

          Don't project your immaturity and sexual hangups upon us. Again, search terms: psychology projection.

    3. The left always falls back on psychiatry as an approach to taking people's rights away.

      1. What are you on about? That's not at all true.

        1. That sounds like projection.

          (just kidding, the joke was there)

          That said, the left does tend to use "scienc-y" explanations for human motivations when it suits them, which is to a large extent, more so than the right, which often a sort of "crooked timber of man" and "Gods of the Copybook Headings" kind of axiomatic statements about why we do the things we do.

          1. Nah, both sides like to invoke science as rock-solid law about human nature when it serves them.

            The Bell Curve, evolutionary psychology re: homosexuality, biotruths about women...it's not a left-specific impulse.

    4. While I have to acknowledge Rule 34, your assertion that fetishism explains (or is even relevant to) resistance to gun control is absurd. It's also condescending, dismissive and factually quite wrong.

    5. No, there is no case law because it's just baseless psychobabble.

  4. To my IANAL mind, this kind of blatant misquoting rises to the level of fraud, which in any kind of legal setting ought to be prosecuted as perjury.. The sheer quantity rules out mistakes or slips in an editor. If they tried to blame using secondary sources which had done the misquoting, it would show such incredible shoddiness to also be perjury in a legal document meant to undermine an enumerated right.

  5. Well since the right to keep and bear arms shall not be infringed, then I can use a gun as a psychosis medicine too,as long as I'm not actually certifiable.

    1. Anti-gun liberals have psychological problems, so they think everyone does.

  6. In what way is lawyers (or anybody else) quoting something out of context or slanting facts to make their point unexpected? Seems more like an old and honored tradition of the profession.

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