The Sources Cited by the Supreme Court in Bruen

Guidance for judicial examination of legal history.

This post lists all the sources cited by the majority opinion in New York State Rifle & Pistol Association v. Bruen. The cites provide useful guidance to lower courts for analyzing Second Amendment cases.

Since the Supreme Court's June 2022 Bruen decision, government lawyers, with the assistance of gun prohibition lobbies, have been pushing courts to delay hearing Second Amendment cases. Allegedly, the governments need many months to conduct legal history research under the supposedly new legal history standard created by Bruen.

In fact, Bruen's focus on text as elucidated by legal history is nothing new in Second Amendment litigation. Attention to legal history was step one of the Two-Step Test used by most lower courts between Heller (2008) and Bruen (2022). As the Supreme Court explained, "Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history." Bruen at 2127.

While delay-seeking government lawyers have been arguing that courts need the advice of history or political science professors who have no legal training, the Bruen case demonstrates the opposite. The large majority of the Bruen sources are straightforwardly accessible to anyone who can conduct legal research in databases such as Westlaw and HeinOnline. For other sources in Bruen, such as old books, I will describe the sources' availability in modern reprint editions or online.

There are 289 sources cited in Bruen. Of these, 288 are readily available online or in modern reprints of older books. The only obscure source cited by the Bruen majority was an 1853 case from the Worcester County Court, in Massachusetts, which was originally cited in a law journal article by history professor Saul Cornell, and which is cited in the journal as being "on file with author."

The Bruen methodology of the 288 easily accessible public source cites shows the methodology that lower courts should use. The lone Bruen cite to professor Cornell's private source was simply part of a refutation of an argument made by professor Cornell and the dissent.

The Bruen Court cited 45 Supreme Court cases, 22 Circuit cases, 3 federal statutes, 10 other U.S. government documents, 61 state statutes after 1900, 43 state/colonial/territorial statutes before 1900, 10 state cases after 1900, 28 state cases before 1900, 2 local laws, 1 state government document, 10 English statutes, 4 other English government documents, 6 English cases, 5 English treatises, 16 books published after 1900, 6 books before 1900, 10 law review and other scholarly articles, 2 newspaper articles, 1 item from an online state archive, and 3 amicus briefs.

In a future post, I will explain one of the advantages of courts using readily available sources, as opposed to sources that only exist in obscure offline archives: it is easier for courts to uncover fraudulent claims by advocates if legal claims are based on public sources rather than obscure ones.

Below, pinpoint cites are to 142 S.Ct. 2111. The pinpoint cites do not record multiple citations to the same source on the same page. Citations to the record, to the briefs of the parties, and to the case below are omitted. Cite forms are copied from Bruen and are condensed by deleting parallel reporter cites and by closing spaces within abbreviations.

Part I. United States sources

U.S. Supreme Court cases

45 cases

American Legion v. American Humanist Assn., 139 S.Ct. 2067 (2019). Cited at page 2130 of Bruen.

Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519 (1983). 2136.

Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). 2137.

Cantwell v. Connecticut, 310 U.S. 296 (1940). 2138.

Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam). 2132, 2134.

Chiafalo v. Washington, 140 S.Ct. 2316 (2020). 2136.

Clark v. Jeter, 486 U.S. 456 (1988). 2129.

Crawford v. Washington, 541 U.S. 36 (2004). 2137.

Dimick v. Schiedt, 293 U.S. 474 (1935). 2136.

District of Columbia v. Heller, 554 U.S. 570 (2008). 2122, 2125-40, 2142-43, 2146-47, 2149-50, 2153-56.

Dred Scott v. Sandford, 19 How. 393 (1857). 2150-51.

Espinoza v. Montana Dept. of Revenue, 140 S.Ct. 2246 (2020). 2137.

Ex parte Grossman, 267 U.S. 87 (1925). 2139.

Funk v. United States, 290 U.S. 371 (1933). 2136, 2139.

Gamble v. United States, 139 S.Ct. 1960 (2019). 2137.

Giles v. California, 554 U.S. 353 (2008). 2130.

Houston Community College System v. Wilson, 142 S.Ct. 1253 (2022). 2136.

Hurtado v. California, 110 U.S. 516 (1884). 2136.

Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003). 2130.

Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961). 2126, 2130.

McCulloch v. Maryland, 4 Wheat. 316 (1819). 2132.

McDonald v. Chicago, 561 U.S. 742 (2010). 2122, 2125-27, 2129-30, 2133, 2135, 2151-52, 2156.

Muscarello v. United States, 524 U.S. 125 (1998). 2134.

Myers v. United States, 272 U.S. 52 (1926). 2137.

Nevada Comm'n on Ethics v. Carrigan, 564 U.S. 117 (2011). 2138.

NLRB v. Noel Canning, 573 U.S. 513 (2014). 2137.

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). 2130.

Printz v. United States, 521 U.S. 898 (1997). 2137.

Ramos v. Louisiana, 140 S.Ct. 1390 (2020). 2137.

Robertson v. Baldwin, 165 U.S. 275 (1897). 2139, 2155.

Rogers v. Tennessee, 532 U.S. 451 (2001). 2136.

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969). 2138.

Smith v. Alabama, 124 U.S. 465 (1888). 2139

Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269 (2008). 2136-37.

Timbs v. Indiana, 139 S.Ct. 682 (2019). 2137.

Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997). 2129.

United States v. Jones, 565 U.S. 400 (2012). 2132.

United States v. Miller, 307 U.S. 174 (1939). 2128.

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000). 2130.

United States v. Reid, 12 How. 361 (1852). 2139.

United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020). 2130.

United States v. Stevens, 559 U.S. 460 (2010). 2130.

Van Ness v. Pacard, 2 Pet. 137 (1829). 2139.

Virginia v. Moore, 553 U.S. 164 (2008). 2137.

Wheaton v. Peters, 8 Pet. 591 (1834). 2139.

U.S. Circuit Court of Appeals cases

22 cases

Association of N. J. Rifle & Pistol Clubs, Inc. v. Attorney General N.J., 910 F.3d 106 (CA3 2018). 2127.

Drake v. Filko, 724 F.3d 426, 440 (CA3 2013). 2124, 2138.

Drummond v. Robinson, 9 F.4th 217 (CA3 2021). 2133.

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (CA11 2012). 2127.

Gould v. Morgan, 907 F.3d 659 (CA1 2018). 2124, 2126.

Harley v. Wilkinson, 988 F.3d 766 (CA4 2021). 2127.

Heller v. District of Columbia, 670 F.3d 1244 (CADC 2011). 2129, 2137.

Kachalsky v. County of Westchester, 701 F.3d 81 (CA2 2012). 2124-27, 2135.

Kanter v. Barr, 919 F.3d 437, 441 (CA7 2019). 2126-27.

Kolbe v. Hogan, 849 F.3d 114 (CA4 2017). 2126.

Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106 (CA2 2020). 2127.

Moore v. Madigan, 702 F.3d 933 (CA7 2012). 2135.

National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 (CA5 2012). 2127.

United States v. Boyd, 999 F.3d 171, 185 (CA3 2021). 2126.

United States v. Class, 930 F.3d 460, 463 (CADC 2019). 2127.

United States v. Focia, 869 F.3d 1269, 1285 (CA11 2017). 2126.

United States v. Greeno, 679 F.3d 510, 518 (CA6 2012). 2126-27.

United States v. Masciandaro, 638 F.3d 458 (CA4 2011). 2124.

United States v. Reese, 627 F.3d 792, 800–801 (CA10 2010). 2127.

Worman v. Healey, 922 F.3d 26, 33, 36–39 (CA1 2019). 2127.

Wrenn v. District of Columbia, 864 F.3d 650 (CADC 2017). 2124, 2126, 2148.

Young v. Hawaii, 992 F.3d 765 (CA9 2021) (en banc). 2124, 2127, 2135, 2149.

United States statutes

3 statutes

42 U.S.C. § 1983. 2125.

14 Stat. 176 (1866). 2151.

15 Stat. 8 (1868). 2151.

Other U.S. government documents

10 documents

Cong. Globe, 39th Cong., 1st Sess., 658, 908-009 (1866). 2151.

Dept. of Interior, Compendium of the Eleventh Census: 1890, Part I.-Population 2 (1892). 2154–56.

H.R. Rep. No. 30, 39th Cong., 1st Sess. (1866). 2151.

H.R. Rep. No. 16, 39th Cong., 2d Sess. (1867). 2152.

H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess. (1866). 2151.

H.R. Exec. Doc. No. 68, 39th Cong., 2d Sess. (1867). 2151.

H.R. Exec. Doc. No. 57, 40th Cong., 2d Sess. (1867). 2152.

H.R. Exec. Doc. No. 329, 40th Cong., 2d Sess. (1868). 2151-52.

Exec. Doc. No. 43, 39th Cong., 1st Sess. (1866). 2151.

Exec. Doc. No. 14, 40th Cong., 1st Sess. (1867). 2152.

Part II. State sources

The State sources include colonies, territories, and the District of Columbia.

State statutes, 1900 and later

61 statutes

Ala. Code § 13A-11-75 (Cum. Supp. 2021). 2123.

Alaska Stat. § 18.65.700 (2020). 2123.

Ariz. Rev. Stat. Ann. § 13-3112 (Cum. Supp. 2021). 2123.

Ark. Code Ann. § 5-73-309 (Supp. 2021). 2123.

Cal. Penal Code Ann. § 26150 (West 2021). 2124.

Colo. Rev. Stat. § 18-12-206 (2021). 2123.

Conn. Gen. Stat. § 29-28(b) (2021). 2123.

Del. Code, Tit. 11, § 1441 (2022). 2123.

D.C. Code §§ 7-2509.11(1) (2018), 22-4506(a) (Cum. Supp. 2021). 2124.

Fla. Stat. § 790.06 (2021). 2123.

Ga. Code Ann. § 16-11-129 (Supp. 2021). 2123.

Haw. Rev. Stat. §§ 134-2 (Cum. Supp. 2018), 134-9(a) (2011). 2124.

Idaho Code Ann. § 18-3302K (Cum. Supp. 2021). 2123.

Ill. Comp. Stat., ch. 430, § 66/10 (West Cum. Supp. 2021). 2123.

Ind. Code § 35–47–2–3 (2021). 2123.

Iowa Code § 724.7 (2022). 2123.

Kan. Stat. Ann. § 75-7c03 (2021). 2123.

Ky. Rev. Stat. Ann. § 237.110 (Lexis Cum. Supp. 2021). 2123.

La. Rev. Stat. Ann. § 40:1379.3 (West Cum. Supp. 2022). 2123.

Me. Rev. Stat. Ann., Tit. 25, § 2003 (Cum. Supp. 2022). 2123.

Md. Pub. Saf. Code Ann. § 5-306(a)(6)(ii) (2018). 2124.

Mass. Gen. Laws, ch. 140, § 131(d) (2020). 2124.

Mich. Comp. Laws § 28.425b (2020). 2123.

Minn. Stat. § 624.714 (2020). 2123.

Miss. Code Ann. § 45-9-101 (2022). 2123.

Mo. Rev. Stat. § 571.101 (2016), 2123.

Mont. Code Ann. § 45-8-321 (2021). 2123.

Neb. Rev. Stat. § 69-2430 (2019). 2123.

Nev. Rev. Stat. § 202.3657 (2021). 2123.

N.H. Rev. Stat. Ann. § 159:6 (Cum. Supp. 2021). 2123.

N.J. Stat. Ann. § 2C:58-4(c) (West Cum. Supp. 2021). 2124.

N.M. Stat. Ann. § 29-19-4 (2018). 2123.

New York

1905 N.Y. Laws ch. 92. 2122.

1908 N.Y. Laws ch. 93. 2122.

1911 N.Y. Laws ch. 195. 2122.

1913 N.Y. Laws ch. 608. 2122.

N.Y. Penal Law Ann. §§ 70.00, 70.15, 80.00, 80.05, 261.01, 265.01–b, 265.03 (West 2017). 2122.

N.Y. Penal Law Ann. §400.00. 2123.

N.C. Gen. Stat. Ann. § 14-415.11 (2021). 2123.

N.D. Cent. Code Ann. § 62.1-04-03 (Supp. 2021). 2123.

Ohio Rev. Code Ann. § 2923.125 (2020). 2123.

Okla. Stat., Tit. 21, § 1290.12 (2021). 2123.

Ore. Rev. Stat. § 166.291 (2021). 2123.

18 Pa. Cons. Stat. § 6109 (Cum. Supp. 2016). 2123.

R.I. Gen. Laws § 11-47-11 (2002). 2123.

S.C. Code Ann. § 23-31-215(A) (Cum. Supp. 2021). 2123.

S.D. Codified Laws § 23-7-7 (Cum. Supp. 2021). 2123.

Tenn. Code Ann. § 39-17-1366 (Supp. 2021). 2123.

Tex. Govt. Code Ann. § 411.177 (West Cum. Supp. 2021). 2123.

Utah Code § 53-5-704.5 (2022). 2123.

Va. Code Ann. § 18.2-308.04 (2021). 2123.

Wash. Rev. Code § 9.41.070 (2021). 2123.

Va. Code Ann. § 61-7-4 (2021). 2123.

Wis. Stat. § 175.60 (2021). 2123.

Wyo. Stat. Ann. § 6-8-104 (2021). 2123.

State, territorial, or colonial statutes before 1900

43 statutes

1839 Ala. Acts no. 77. 2146.

Ark. Rev. Stat. § 13 (1838). 2146.

1875 Ark. Acts p. 156. 2155.

1881 Ark. Acts no. 96. 2155.

1889 Ariz. Terr. Sess. Laws no. 13. 2154.

D.C. Rev. Code ch. 141 (1857). 2148.

1835 Terr. of Fla. Laws p. 423. 2146.

1837 Ga. Acts §§ 1, 4. 2146–47.

1889 Idaho Terr. Gen. Laws § 1. 2154.

1820 Ind. Acts p. 39. 2146.

1881 Kan. Sess. Laws §§ 1, 23. 2155.

1813 Ky. Acts § 1. 2146.

1813 La. Acts p. 172. 2146.

Me. Rev. Stat., ch. 169 (1840). 2148.

1692 Mass. Acts and Laws no. 6. 2142-43.

1795 Mass. Acts and Laws ch. 2. 2144, 2148.

Mass. Rev. Stat., ch. 85 (1795). 2150.

Mass. Rev. Stat., ch. 134 (1836). 2148, 2150.

1850 Mass. Acts ch. 194. 2150.

Mass. Gen. Stat., ch. 164 (1860). 2150.

Mich. Rev. Stat., ch. 162 (1846). 2148.

Terr. of Minn. Rev. Stat., ch. 112 (1851). 2148.

1699 N.H. Acts and Laws ch. 1. 2143.

Grants, Concessions, and Original Constitutions of the Province of New Jersey (2d ed. 1881). 2143-44.

1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1752). 2144.

1869 N.M. Laws ch. 32. 2154.

1854 Ore. Stat. ch. 16. 2148.

1860 Pa. Laws p. 432. 2148.

1801 Tenn. Acts pp. 260-261. 2144-45.

1859 Ohio Laws § 1. 2146.

1890 Okla. Terr. Stats., Art. 47. 2154.

1870 S.C. Acts p. 403. 2152.

1821 Tenn. Acts ch. 13. 2146.

1870 Tenn. Acts ch. 13. 2147, 2153.

1871 Tenn. Pub. Acts ch. 90. 2147.

1871 Tex. Gen. Laws § 1. 2153.

Collection of All Such Acts of the General Assembly of Virginia ch. 21 (1794). 2144.

1838 Va. Acts ch. 101. 2146, 2150.

1847 Va. Acts ch. 14. 2148, 2150.

Va. Code, ch. 153 (1868). 2148, 2153.

1838 Terr. of Wis. Stat. § 16. 2148.

1875 Wyo. Terr. Sess. Laws ch. 52. 2154.

Wyo. Rev. Stat., ch. 3, § 5051 (1899). 2155.

State cases after 1900

10 cases

Dwyer v. Farrell, 193 Conn. 7 (1984). 2123.

Babernitz v. Police Dept. of City of New York, 65 App.Div.2d 320 (1978). 2123.

Gadomski v. Tavares, 113 A.3d 387 (R.I. 2015). 2123.

In re Bando, 290 App.Div.2d 691 (2002). 2123

In re Brickey, 8 Idaho 597 (1902). 2155.

In re Kaplan, 249 App.Div.2d 199 (1998). 2123.

In re Klenosky, 75 App.Div.2d 793 (1980). 2123, 2156.

In re Martinek, 294 App.Div.2d 221 (2002). 2123.

In re O'Brien, 87 N.Y.2d 436 (1996). 2123.

In re O'Connor, 154 Misc.2d 694 (Westchester Cty. 1992). 2123.

State cases before 1900

28 cases

Andrews v. State, 50 Tenn. 165 (1871). 2147, 2155.

Bliss v. Commonwealth, 12 Ky. 90 (1822). 2146-47.

Carroll v. State, 28 Ark. 99 (1872). 2155.

Chatteaux v. State, 52 Ala. 388 (1875). 2155.

English v. State, 35 Tex. 473 (1871). 2153.

Eslava v. State, 49 Ala. 355 (1873). 2155.

Fife v. State, 31 Ark. 455 (1876). 2147, 2155.

Grover v. Bullock, No. 185 (Worcester Cty., Aug. 13, 1853). 2149. The only source in Bruen not readily available. The base cite is from Eric M. Ruben & Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law In Context, 125 Yale L.J. Forum 121, 130 n.53 (2015). "(on file with author)".

Haile v. State, 38 Ark. 564 (1882). 2155.

Nunn v. State, 1 Ga. 243 (1846). 2146-47.

O'Neil v. State, 16 Ala. 65 (1849). 2146.

Porter v. State, 66 Tenn. 106 (1874). 2147.

Salina v. Blaksley, 72 Kan. 230 (1905). 2155.

Simpson v. State, 13 Tenn. 356 (1833). 2145

State v. Buzzard, 4 Ark. 18 (1842). 2146-47.

State v. Chandler, 5 La. 489 (1850). 2146.

State v. Huntly, 25 N.C. 418 (1843) (per curiam). 2145.

State v. Mitchell, 3 Blackf. 229 (Ind. 1833). 2146-47.

State v. Reid, 1 Ala. 612 (1840). 2146.

State v. Chandler, 5 La. 489 (1850). 2146.

State v. Duke, 42 Tex. 455 (1875). 2153.

State v. Jumel, 13 La. 399 (1858). 2146.

State v. Shelby, 90 Mo. 302(1886). 2155.

State v. Smith, 11 La. 633 (1856). 2146.

State v. Speller, 86 N.C. 697 (1882). 2155.

State v. Wilburn, 66 Tenn. 57 (1872). 2147, 2155.

State v. Workman, 35 W.Va. 367 (1891). 2153.

Wilson v. State, 33 Ark. 557 (1878). 2155.

Local laws

2 local laws

38 N.Y.C.R.R. § 5-03(b). 2123.

Salina, Kan., Rev. Ordinance No. 268. 2156.

Other state government documents

1 document

Del. Courts, Super. Ct., Carrying Concealed Deadly Weapon (June 9, 2022), https://courts.delaware.gov/forms/download.aspx?ID=125408. 2123.

Part III. English law sources

English statutes

10 statutes. All available in HeinOnline, Statutes of the Realm library.

13 Edw. 1, 102. 2139.

2 Edw. 3 c. 3 (1328). 2139.

Rich. 2 c. 13 (1383). 2140.

20 Rich. 2 c. 1 (1396). 2140.

6 Hen. 8 c. 13 (1514). 2140.

25 Hen. 8 c. 17 (1533). 2140.

33 Hen. 8 c. 6 (1541). 2140-41.

14 Car. 2 c. 3 (1662). 2143-44.

1 Wm. & Mary c. 2, in 3 Eng. Stat. at Large (1689). 2141-42.

1 Wm. & Mary c. 15, in 3 Eng. Stat. at Large 399 (1688). 2142.

English proclamations and other royal decrees

4 items. The Close Rolls are administrative actions of the king's court and are available from British History Online. The proclamations are similar and are available in the multivolume Tudor Royal Proclamations and Stuart Royal Proclamations.

Calendar of the Close Rolls, Edward III, 1330-1333 (Apr. 3, 1330) (H. Maxwell-Lyte ed. 1898). 2140.

Id., Edward III, 1327-1330 (Aug. 29, 1328) (1896). 2140.

Prohibiting Use of Handguns and Crossbows (Jan. 1537), in 1 Tudor Royal Proclamations (P. Hughes & J. Larkin eds. 1964). 2140.

A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols (R. Barker printer 1616), 2140. Available online at https://ota.bodleian.ox.ac.uk/repository/xmlui/bitstream/handle/20.500.12024/A22133/A22133.html?sequence=5. Also available in 1 Stuart Royal Proclamations.

English cases

6 cases. English cases were initially reported by enterprising lawyers who took notes as judges issued oral opinions from the bench, and who collected those opinions into published volumes. In the 19th century, Parliament appointed a commission to consolidate and reprint all those cases into a series known as English Reports. All these cases are available at HeinOnline, in the English Reports library.

King and Queen v. Bullock, 4 Mod. 147, 87 Eng. Rep. 315 (K.B. 1693). 2141.

King v. Litten, 1 Shower, K.B. 367, 89 Eng. Rep. 644 (K.B. 1693). 2141.

King v. Silcot, 3 Mod. 280, 87 Eng. Rep. 186 (K.B. 1690). 2141.

King v. Lewellin, 1 Shower, K.B. 48, 89 Eng. Rep. 440 (K.B. 1689). 2141.

King and Queen v. Alsop, 4 Mod. 49, 87 Eng. Rep. 256 (K.B. 1691). 2141.

Sir John Knight's Case, 3 Mod. 117, 87 Eng. Rep. 75 (K.B. 1686) & Rex v. Sir John Knight, 1 Comb. 38, 90 Eng. Rep. 330 (K.B. 1686) (same case, two reporters). 2141, 2145.

English treatises

5 books.

Barlow, The Justice of Peace (1745). 2142. Reprinted 2018 by Gale Ecco.

4 W. Blackstone, Commentaries on the Laws of England (1769). 2128, 2143, 2149. Leading modern editions include Oxford University Press 2016 and University of Chicago Press 1979.

2 R. Burn, The Justice of the Peace, and Parish Officer (11th ed. 1769). 2141. Available at archive.org. Additionally, Hansebooks 2017 edition available in paperback and on Amazon Kindle. Hardpress 2018 reprint available in hardback, paperback, and Kindle.

The Farmer's Lawyer (1774). 2141. Available in Eighteenth Century Collections Online, and in Making of the Modern World (Gale).

1 William Hawkins, Pleas of the Crown (1716). 2142. Reprinted 1972 by Ayer Co. as part of the American Law Series: The Formative Years.

1 G. Jacob, Law-Dictionary (T. Tomlins ed. 1797). 2141. Reprinted 2000 by The Lawbook Exchange, and 2018 by Gale ECCO.

Part IV. Other sources

Books after 1900

16 books

Amar, The Bill of Rights: Creation and Reconstruction (1998), 2138.

Chase, Firearms: A Global History to 1700 (2003). 2140.

The Federalist No. 37 (C. Rossiter ed. 1961) (J. Madison). 2136, 2155.

George, English Pistols and Revolvers (1938). 2143. Reprinted 2013 by Literary Licensing.

Hendrick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun Safety and Forensics (2008). 2144.

Lederer, Colonial American English (1985). 2144.

Leider, "Constitutional Liquidation, Surety Laws, and the Right To Bear Arms, in New Histories of Gun Rights and Regulation (J. Blocher, J. Charles, & D. Miller eds.) (forthcoming). 2149.

8 Writings of James Madison (G. Hunt ed. 1908). 2136.

9 Writings of James Madison (G. Hunt ed. 1910). 2137. Available online at the National Archives, https://founders.archives.gov/about/Madison and at https://oll.libertyfund.org/title/madison-the-writings-of-james-madison-9-vols.

Neumann, The History of Weapons of the American Revolution (1967). 2144.

Payne-Gallwey, The Crossbow (1903). 2140. Reprinted 2007 by Skyhorse Pub.

Peterson, Arms and Armor in Colonial America, 1526–1783 (1956). 2144.

Peterson, Daggers and Fighting Knives of the Western World (2001). 2140.

Pomeroy, The Territories and the United States 1861–1890 (1947). 2154.

Schwoerer, Gun Culture in Early Modern England (2016). 2140, 2142

Vickers, England in the Later Middle Ages (1926). 2139.

Books before 1900

6 books

Gordon, The History of New Jersey (1834). 2144. Reprint 2015 by Sagwan Press.

Haywood, The Duty and Office of Justices of Peace (1800). 2145. Ebook available from numerous public libraries. WorldCat.org will provide a list of available libraries near the user's location.

2 J. Kent, Commentaries on American Law. 2146. Available in any quality academic law library, at archive.org, at https://lonang.com/library/reference/kent-commentaries-american-law/, and in various reprint editions from Amazon, including free for Kindle.

Potter, The Office and Duties of a Justice of the Peace (1816). 2145-46. Reprinted 2016 by Palala Press, and 2013 by Books on Demand.

Webb, The Office and Authority of a Justice of Peace (1736). 2144. Reprinted 2012 by Gale, Sabin Americana; 2013 by RareBooksClub; and 2019 by HardPress Publishing.

Whitehead, East Jersey Under the Proprietary Governments (rev. 2d ed. 1875). 2144. Reprinted 2011 by British Library, Historical Print Editions.

Law review and other scholarly articles

10 articles

Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). 2137.

Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809 (2019). 2130.

Kopel & J. Greenlee, The "Sensitive Places" Doctrine, 13 Charleston L. Rev. 205, 229-36 (2018). 2133.

Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3766917. 2138.

Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1 (2001). 2136–37.

Ruben & S. Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121 (2015). 2149.

Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249 (2017). 2132.

Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741 (1993). 2132.

Trenholme, The Risings in the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650 (1901). 2139. Available online from JSTOR, or by direct purchase from Oxford Academic.

Verduyn, The Politics of Law and Order During the Early Years of Edward III, 108 Eng. Hist. Rev. 842 (1993). 2139.

Newspaper and magazine articles

2 articles

Sherman, More States Remove Permit Requirement To Carry a Concealed Gun, PolitiFact (Apr. 12, 2022), https://www.politifact.com/article/2022/apr/12/more-states-remove-permit-requirement-carry-concea/. 2123.

The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4 (quoting Circular No. 5, Freedmen's Bureau, Dec. 22, 1865). 2152. Available online from Newsbank African American Newspapers.

Archives

1 item

New Jersey State Archives, J. Klett, Using the Records of the East and West Jersey Proprietors (rev. ed. 2014), https://www.nj.gov/state/archives/pdf/proprietors.pdf. 2144.

Amicus briefs

3 briefs

Brief for Independent Institute as Amicus Curiae. 2133. (Note: the Independent Institute is a think tank in Oakland, California. It is not the Independence Institute, where Kopel works.)

Brief for Professors of History and Law as Amici Curiae. 2143.

Brief for Professor Robert Leider et al. as Amici Curiae. 2149.

Comments

[Dilan Esper]

I have zero sympathy. The gun rights side pushed a pure history test because they knew that under traditional scrutiny, saving life is always a compelling state interest and that would mean that many gun control laws would get upheld.

Having pushed for that standard, any complaints about it taking a long time for judges to figure out the history is completely of their own doing. Sorry, you get to bear the downside of your chosen legal strategy.

[MaddogEngineer]

You’re wrong about your preferred standard of traditional scrutiny, because it is hopelessly subjective. Collective punishment/restriction for an individual right simply doesn’t work. One could make such arguments (and indeed some people have) about many things in our modern society, starting with how “unsafe” automobiles are to pedestrians/cyclists. Just because bad things can happen is a reason to attempt overly broad prohibitions, like in the case of NY where a concealed carry “permit” was unobtainable by pretty much anyone.

None of that should distract from the actual history illuminated by the Heller/Bruen decisions, that historically no such overly broad bans occurred because the people closer to the era of the amendment’s passage understood the right to keep and bear arms was indeed a protected individual right, even pre-existing the Constitution, which is why we won't find historical support for such laws.

[Dilan Esper]

I’m not even advocating for a particular method of scrutiny. Indeed, I think history and tradition would have been reasonable had the Second Amendment not been severed from its stated purpose of producing an armed populace who would have extensive obligations to society and to participate in its collective defense.

But given we didn’t do that (again, the gun rights movement has plenty of anarchists and libertarians who reject the idea that they would have to use their guns to defend the evil federal government), instead the history test is pretty incoherent.

But nonetheless, that wasn’t my comment. My comment was about the fact that the gun rights movement chose this standard. Having chose it, sorry if the decisions are taking longer than you want them to. They made this bed and have to lie in it.

(And by the way, can we stop with this incoherent "preexisting rights" crap? If the government doesn't recognize it, it isn't a right. And this is especially dumb when it comes to a technology. How can you have a preexisting right to own something that hasn't even been invented yet?)

[Kazinski]

Dilan’s going Bork now.

There are obviously preexisting rights:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

[Dilan Esper]

Unenumerated rights and preexisting rights are two different things.

[Brett Bellmore]

Hardly mutually exclusive, though.

[Jason Cavanaugh]

The same way you have a right to speak freely on the internet without the government censoring you.

Oh wait - the internet wasn't invented when the Constitution was written, so I guess someone should call up the local FBI field office on you, eh?

[Dilan Esper]

You have a right to speak freely on the Internet because Congress passed and the states ratified the First Amendment. Otherwise you wouldn't.

[Mr. Bumble]

Of course the same goes for the rest of the BOR.

[Jason Cavanaugh]

Astonishingly, I also have the right to keep and bear arms because Congress passed and the States ratified the 2nd Amendment. Those 'arms' are not limited to muskets, because they deliberately used the term 'arms' so as to keep up with future technology.

You are whining incoherently, and inconsistently, because you have some kind of bias against the 2nd Amendment.

Stop embarrassing yourself.

[Carlos Inconvenience]

Looks like Dilan was sick the day they taught law in law school.

[Kazinski]

"Collective punishment/restriction for an individual right simply doesn’t work."

Well of course thats the government's hook for getting rid of all our rights: Covid "misinformation"? Then the government needs to be able to censor Twitter, Facebook, newspaper's.

People disagreeing with politicians? Then you have a government attorney and future supreme court justice arguing the government can suppress movies and books 90 days before an election.

[Rossami]

That has nothing to do with it. Yes, saving life is a compelling state interest but no, it does not automatically mean that gun control laws get upheld. You could save a lot of lives if you abrogated the 4th Amendment and let police go wherever they wanted. You could save a lot of lives if you ignored the 5th Amendment and allowed torture. You could save a lot of lives if you got rid of Article 1 and let the President declare martial law whenever and however he wanted. You could save a lot of lives if you didn’t bother with those pesky courts and juries required by Article 3 and Amendment 6.

“Saving lives” is not and never has been a free pass to ignore the Constitution.

[Dilan Esper]

I didn't say it automatically did. I said in practice most gun control laws would be, because it is pretty easy to prove that many of them can save lives.

And BTW, there is a public safety exception to the 4th Amendment (see New York v. Quarles).

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Easy?!? Then do so. None have yet; perhaps you are better than your predecessors.

[Brett Bellmore]

" I said in practice most gun control laws would be, because it is pretty easy to prove that many of them can save lives."

The question isn't whether they "can" save lives. You can imagine just about any law saving a life under the right circumstances. At the same time, the same law might cost lives under other circumstances.

And not all lives count the same; A law that keeps women from being armed might save the lives of more rapists than it would cost the lives of rape victims. Would that be a plus? Most people would say, no.

But the enactment of a constitutional right represents a legal command that the exercise of the right, itself, has substantial value, which has to be weighed, and weighed heavily against the purported gains. It just can't be ignored in your analysis.

[Dilan Esper]

Under even strict scrutiny, "someone wouldn't have been killed had this been in place" is basically a slam-dunk argument. And that's not hard to prove with respect to a lot of gun control.

The gun rights argument internally tells itself a lot of comforting lies on this, but that's the reason they went for history. Because they wanted to rule the argument "this regulation saves lives" out of order.

[Brett Bellmore]

No, not remotely a slim dunk. Say you get a case where someone's silence costs a life. One case. Does that blow a hole in the 5th amendment?

You just don't want to take this one right seriously.

[VinniUSMC]

And that’s not hard to prove with respect to a lot of gun control.

So easy, a caveman could do it. Must be why Dilan hasn't backed his assertions up even remotely.

[Mr. Bumble]

Like Nige and Sarcastro, him saying it makes it true.

[Brett Bellmore]

I took Dilan to be reasoning on the basis of the proposed regulations being minor infringements on the right in question, and carrying a major benefit.

Say the regulation in question will save N lives, and that the same time infringe the right by x%. There has to be SOME ratio of N/x where you'd permit the regulation.

Gun controllers, of course, start out by ignoring the prospect that the regulation might cost, rather than save lives, and implicitly set the threshold ratio absurdly low. So that "If it would save even one life!" looks to them like a reasonable argument, rather than a recipe for extinguishing all civil liberties.

But setting aside their motivated irrationality, the argument isn't totally unreasonable. For instance, laws prohibiting "spring guns" might fall into this category; The infringement of the RKBA involved in prohibiting setting firearms based booby traps is minor, and the risk averted significant.

The problem is that we're usually talking about extremely small values of N, and large values of X; The '94 AWB, for instance, arbitrarily banned hundreds of models of firearms, generally in the category least used for crime.

But the general principle he's appealing to is hard to dismiss, even if it's virtually always irrationally deployed on account of the people deploying it not caring about X in the first place, or, more realistically, actually giving infringement a positive spin, so that they're engaged in benefit/benefit analysis, not cost/benefit.

[mulched]

No worries. Just agree to a preliminary injunction on enforcement and then take all the time you want for research.

[Dilan Esper]

The gun control side didn't ask for this test and doesn't have the burden of proof. The gun rights side, which did ask for it, gets to wait.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You want to disable the 2nd Amendment. You have the burden of proof to do so.

[Dilan Esper]

I don't want to do anything. I want the courts to get rid of this stupid atextual test and replace it with some more honest interpretation of the 2A. Once we do that, I'm perfectly happy to strike down some forms of gun control that I don't think serve the interests of collective security and imposing rights and responsibilities on gun owners that the 2A was intended and understood as doing.

[Mr. Bumble]

How about interpreting "shall not be infringed" to start?

[MaddogEngineer]

You already have an honest interpretation...you just don't like it. Also, you're misrepresenting these recent precedents, which do allow for trade-offs, based on the history and tradition basis you so zealously dismiss. The standard is not, and should not be, whether any lives can be saved. The amendment text says nothing about that, that's your nebulous imposition trying to limit what the text actually says.

The militia is not the creation of the state, which is why it's nonsense to try and separate its existence from the individual right. The "regulate" in the text presupposes its utility to the state hence recognizing this need for good order. But the state can not eliminate the militia any more than it can eliminate the individual right. This is what the amendment protects against.

[Area Man]

"The gun control side didn’t ask for this test and doesn’t have the burden of proof."

Actually, according to Bruen, once the opponent of the regulation shows that it falls within the plain test of the Second Amendment, the government has the burden to prove that it falls within the history of our nation's gun-control laws.

[mulched]

They seem to be convinced there is some court case or statute out there to be found that's so obscure no one has thought of it yet, while simultaneously so critical to the meaning of the 2A that it allows them to ban what they want.

[Brett Bellmore]

That's what impressed me, too: This conviction that some obscure case or law nobody heard of, (That's what it MEANS to be "obscure", after all.) would overturn all the public information. "Oh, look, this one hamlet in the 1800's had a local law prohibiting dangerous weapons, that means we can totally outlaw anything we call an 'assault weapon'!"

The reason these things are obscure in the first place is that they're rare outliers, they weren't the rule.

[mulched]

Let us keep looking, just a little while longer. We'll find it for sure. Just give us a couple more days. Uh, weeks. Years?

[Kazinski]

Oh come on now, if saving life was such a compelling interest cars would have been banned a long time ago, anyone who flew regularly during the first 50 years of aviation was at more risk than any resident of a high crime area. King Crab fishing would be banned, as well as base jumping, rock climbing, etc.

Americans love risk taking, and there is no standard of a compelling state interest in saving lives trampling our constitutional rights of risk taking inherent in the pursuit of happiness.

[Dilan Esper]

Various regulations of cars that save lives are constitutional and would in fact still be in constitutional even if we recognized a right to keep and bear cars.

[Rossami]

You are ignoring the point. Cars kill and injure far more people per year than guns ever do yet cars have nowhere near the regulations that already exist for guns. If you were serious about "saving lives" being the driving interest, you should be lobbying to ban cars and swimming pools long before you get to banning guns. The fact that you're not doing so is evidence that "saving lives" is not the overriding interest you are trying to claim it is.

[Bruce Hayden]

Scrutiny is higher for guns, because it is a fundamental enumerated right. And, yet, firearms are much more heavily regulated.

[dwb68]

"Prove" does not mean what you think it means.

Its very hard to "prove" gun control saves lives (unless you are willing to rely on cherry picked data).

Gun control has no effect on the murder rate.

[Dilan Esper]

As I said, the gun rights side tells itself a bunch of comforting lies on this, but they know they are lies, because that's why they pushed for the history test.

[dwb68]

LOL lies!

No.
66% of the murder in this country happens in about four dozen counties with 1/3 of the population, all of them with strong gun control. And even in a place like Baltimore, its clustered in the poor neighborhoods. Not in the suburbs.

In Baltimore, there are 23 public schools where ZERO of the students pass math on grade level.

Fix the school to prison pipeline. More criminal penalties is not the answer.

[MaddogEngineer]

What lies? People like you keep assuming your own conclusions.

[Bruce Hayden]

Yes, and that was why Bruen settled the matter. The Court in Heller and McDonald had said to use increased scrutiny. Leftist lower courts gutted that and imposed something more akin to interest balancing rational basis scrutiny. They intentionally misread the cases in order to undermine them. The Court then put its foot down, making it clear gray the level of scrutiny was Strict Scrutiny, and the interest balancing that you seem so enamored with, as no place there.

[Bruce Hayden]

I noticed that you skipped the narrowly tailored prong. The other thing that you miss is that Strict Scrutiny requires actual proof of the benefits of the government action, not hypotheticals. And that is all you have. You can’t prove that, say, an AWB, would save a single life, on net. That is just your feelings that it would, and for fundamental enumerated rights, your feelings don’t count. How many people were able to protect themselves in their homes, because they had an AW in the house to face a home (or business) break in? After all, because they are so hard to conceal, they are far better as a defensive weapon than an offensive one. Narrowly tailored means that significant counter examples means that the government action fails strict scrutiny.

The Court very likely stepped in in Bruen precisely because activist courts were imposing the sort of almost rational basis, using interest bearing, to allow what they believed to be fairly egregious violations of the 2nd Amdt. And the part there that is frequently ignored is that they formally rejected interest balancing, when it comes to this enumerated fundamental civil right.

[John F. Carr]

There is a nearly endless supply of old local ordinances to search. Like one jurisdiction, according to a case discussed on this blog, required freed slaves to have a character reference to carry guns. Is that a historical tradition of requiring character references for gun permits? Would two such ordinances make a tradition? Three? Fifty?

[Bob from Ohio]

"Is that a historical tradition of requiring character references for gun permits?"

No, its a racist ordinance that we should ignore.

A tradition of denying a group of a right based on their race is useless in 2023.

[Rossami]

Odd… The system posted that as a separate comment instead of a reply. Moving…

[Brett Bellmore]

"In a future post, I will explain one of the advantages of courts using readily available sources, as opposed to sources that only exist in obscure offline archives: it is easier for courts to uncover fraudulent claims by advocates if legal claims are based on public sources rather than obscure ones."

Hm. Is that a dig against Cornell? He does seem to have a preference for obscure sources.

[LawTalkingGuy]

No. It's a dig at the existence of actual historical research and instead opting for amateur googling.

[Brett Bellmore]

So, Cornell has a copy of this obscure 1853 case on file. Is his copy accurate, is the context he gives for it accurate?

If it's obscure enough, and hard enough to find, he doesn't much have to worry about people proving the answer to be "no".

Anyway, you have to consider that obscure cases are likely to be obscure because they were outliers, not the rule.

[LawTalkingGuy]

The court has a librarian. They can contact the archivist.

If you want to only use publicly available resources, fine. But don't call what you're doing "history" or a "historical test" or "original public meaning." That's intellectually dishonest.

[Bob from Ohio]

Ohio has a rule that if you cite to an unpublished opinion, a copy has to be attached. Isn't that the correct procedure to follow when dealing with archival material?

[LawTalkingGuy]

Maybe they should make clear rules about it then. I mean the court has a rule that you can move to submit “non-record material”

But again, the court has a librarian! They can get stuff from archives If they’re going to claim the ability to make definitive statements about history they can do it themselves. OR they can drop the pretense and just admit they’re making stuff up.

[Kazinski]

It's legal history, not archeology, and legal history is well documented. We've already been burned, your side more than mine, by Bellesiles and "unavailable" sources.

But by all means ask Bloomberg for a grant, do the research that will stand up to scrutiny it's not like pro gun control organizations with multimillion dollar endowments, like Every Town, SPLC, and pro gun control states like NY, CA, NJ, and IL don't have the resources or universities to make their case.

Do the work or go away.

[LawTalkingGuy]

They’re claiming the ability to provide the only definitive and legitimate answer to the question what did the public at the understand the words in this document to mean. Where the meaning of that document was hotly debated from the get go. So it’s a bit more than “simple legal history.” (Plus actual legal historians actually do do archival research. Look at James Oldham or John Langbein for instance).

“ Do the work or go away.”

It’s the courts claim to legitimacy. The burden is on them.

Plus what happens when people “do the work” and the court just ignores it? Then what? To take an example: Bagley and Mortensen “did the work” and thoroughly
Called into question the concept of nondelegation at the founding. Did that ever matter? Nope! Gorsuch briefly addressed it in a footnote and was like: NUH-UH!

Same with the Court vs every historian of Reconstruction. Or the Court vs every historian on Indian Law. Etc etc etc. People “do the work” all the time and don’t go away. Then some chumps with 3 year degrees in reading case excerpts that they got in between getting blasted who have no particular subject matter expertise confidently tell the experts they’re wrong over a couple of paragraphs.

[Sarcastr0]

It’s legal history, not archeology, and legal history is well documented.

I follow some legal historians on twitter. This is not so.

In general, the determinative certainty and sole reliance on this kind of instrumental constitutional history is a big red flag.

[Stephen Lathrop]

But by all means ask Bloomberg for a grant, do the research that will stand up to scrutiny it’s not like pro gun control organizations with multimillion dollar endowments, like Every Town, SPLC, and pro gun control states like NY, CA, NJ, and IL don’t have the resources or universities to make their case.

Kazinski, I don't think you understand what the Court announced in Bruen. They said (paraphrased), "If you do that, we will ignore you. Because we have already picked the history we like, and put the rest out of bounds." They worked hard to get to that result. They do not plan to entertain historical evidence which would overturn that work.

[Stephen Lathrop]

First paragraph above should have been a quote from Kazinski.

[Charles Nichols - CRTC]

65 citations with links at Leagle.com -> https://www.leagle.com/decision/citedcases/insco20220623g25

[LawTalkingGuy]

I love this post. It explains how stupid originalism is generally and Bruen in particular.

Originalism purports to establish the definitive historical meaning of terms. But there are apparently no standards articulated for how to do that or on which sources matter and why.

So we are going to get a blog post (from a dude with a JD) that will establish those standards. (Courts apparently can't be bothered apparently).

One of them is: only use publicly available sources: (i.e. what can the clerk who also only has a JD google)

But if you aren't willing to do real historical research....how can you claim to announce the definitive and only legitimate original public meaning? You say its about protecting against fraud. But how is anyone supposed to seriously believe the claim this is the definitive meaning if you willingly cut out information?

Also unless something is actually in a private collection: archives are publicly available! Courts have librarians. Judges can contact the archivist. Historians do this all the time.

I suppose making something a closed universe problem alleviates the workload and makes the process (slightly) more transparent. But if you're going to do that you have to completely abandon the pretense to determining "original public meaning" and just say you're making crap up based on guessing.

It's a giant self-own here and Kopel doesn't even realize it.

[LawTalkingGuy]

Also LOL at the court for using secondary sources on English medieval history published in the early twentieth century and nothing else. Is it a good source? Who knows. But they cite it as the word of God without any source criticism or historiographical analysis anyway!

Completely unserious people doing completely unserious work.

[Joe_dallas]

LawTalkingGuy 2 hours ago Flag Comment Mute User “I love this post. It explains how stupid originalism is generally and Bruen in particular.

Originalism purports to establish the definitive historical meaning of terms. But there are apparently no standards articulated for how to do that or on which sources matter and why”

LTG What is a better choice – Ignore originalism and use modern interpretation techniques loved by progressives – Decide what you want the law to mean – after all, its a living breathing evolving constitution.

[LawTalkingGuy]

The better choice is to stop pretending that conservatives AREN’T just deciding what they want the law to mean and that they are somehow constrained by a “methodology” called originalism.

They’re no more constrained by this than anyone else as Kopel’s post demonstrates because they just get to decide which sources matter and which don’t without any constraints. (Also want they say sources to mean, why one counts as an analogy and doesn’t, the amount of sources that must say soemntkng for it to have relevance etc etc.)

Originalism as constraint is fundamentally dishonest. So maybe stop with the bullshit pretense to restraint and legitimacy. I mean I don’t think Vermule style conservative common-good constitutionalism is correct either, but it’s a hell of a lot more honest than “originalism” is.

[Stephen Lathrop]

What is a better choice – Ignore originalism and use modern interpretation techniques loved by progressives – Decide what you want the law to mean – after all, its a living breathing evolving constitution.

Joe_dallas, the part of "originalism," that makes it an arguably useful aide to legal insight is the historical part, not the legal part. The legal part is 100% rule-of-law handed down by the present generation.

Thus, the question becomes, "What from history might serve to constrain those present-minded lawyers and judges?" The only answer which makes any sense is, "Original meaning interpreted according to whatever context of creation applied at the time and place under consideration."

Kopel has no notion what that even means. Neither did the Bruen majority. Neither did Scalia when he wrote Heller. And all of those could care less.

They are all gun advocates, obliviously present-minded, and determined to deliver exactly the present-minded legal interpretations you say you oppose on principle. There is nothing legitimately related to history in anything written by any of them. And they seem not even to recognize that. Do you?

[Dan Schiavetta]

Go to the Catholic Church's teaching that Jesus was the only child of Mary and you will see a long list of scholarly citations. It almost blinds you to the fact that they rely on post-New Testament sources while doing handstands and triple lutzes around the actual Gospels which make several references to Jesus's brothers and sisters.

Or go to Pope Paul's encyclical on why priests must be celibate, Sacerdotalis Caelibatus, and you will see many citations to the New Testament in support of Pope Paul's position, using the example of the Apostles. He even cites to Chapter 9 of 1 Corinthians. He does not cite verse 5, where St. Paul says the apostles have the right to bring their wives on their journey, and defends their right to be married. He also conveniently doesn't mention that the Church is fine with the "Eastern Catholic" churches, which allow married priests.

Yes, the Pope, like the Supreme Court, lays down the law, which is binding on everyone under his jurisdiction. But as Thomas Aquinas put it, "Argument from authority is the weakest argument."

[Bob from Ohio]

"But as Thomas Aquinas put it, “Argument from authority is the weakest argument.”"

That's the weakest argument.

[Mr. Bumble]

...and so continues the never ending story.

[bernard11]

So the majority was able to easily find 288 sources.

So what? Does that mean there are no others worth consulting? Does it mean that they correctly interpreted the ones they found?

No. It means neither of those things.

[Mr. Bumble]

So what does it mean?

How many sources would meet you standards?

[VinniUSMC]

bernard is only interested in "anonymous sources close to ..." which conveniently agree with him. If you can't prove the source exists, it must be beyond reproach.

[LawTalkingGuy]

Greta question! But the same is true for every originalist judge! Because there are no standards and there is no constraint!

[Stephen Lathrop]

Bumble, maybe only one, if it was interpreted in its original context of creation, bang on point, historically relevant, and uncontradicted in the historical record. Problem is, not even one such source like that has ever been found.

Take a look at that list of sources noted by Kopel. See how many of them are from the early-to-middle part of the 19th century? Time never runs backwards, and causality always runs forward. Ask yourself, how can those possibly inform insight about the original meaning of something which happened circa 1791?

If you can't answer that question, you should ask yourself what purpose Kopel thought they would serve. What purpose could the Bruen Court have for citing them?

Apply the same kind of reasoning to all the other Kopel citations (which as he says are the Bruen citations) and very little is left. By the way, historically relevant, pre-1791 citations for the militia purpose of the 2A abound. What role do you see those playing in Bruen?

[Sarcastr0]

Prof. Kerr tweeted that schools should start offering courses on the use of historical sources in briefing.

Seems like a fair point. Right or wrong, it plays and law students should learn the game.

[MaddogEngineer]

You mean case law isn’t history? I find this whole line of argumentation confounding from the legal profession left. This isn’t the rocket science some of you want to make it out to be. What is the common law and stare decisis if not history and tradition? Pretty sure laws and court records remain written down somewhere. If people were getting convicted under these mythical past gun laws, there ought to be a record.

This is the point of Bruen…guns were certainly plentiful in the first 100 years of our country’s history. If some legislature or municipal authority had tried to limit people’s rights to keep and bear, there ought to be a paper trail not difficult to find. This isn’t about finding the needle in the haystack. To overcome the threshold, such restrictions should be widespread. One doesn’t need to be a historian expert in finding the obscure example.

It's not a game. It's what lawyers are already trained to do.

[Rev. Arthur L. Kirkland]

Turns out John Wayne, when as sheriff collected guns for safekeeping until visiting hayseeds slept it off or left town, was nothing but a godless, gun-grabbing commie.

At least, that’s the clinger version. Talk about revisionist history!

[LawTalkingGuy]

“What is the common law and stare decisis if not history and tradition?”

It can be part of it. But it’s not the end all be all of historical study (even legal history!). And it certainly doesn’t definitively establish the “original public meaning” of the most hotly debated document in US history.

“Pretty sure laws and court records remain written down somewhere. If people were getting convicted under these mythical past gun laws, there ought to be a record.“

To the extent that local courts wrote stuff down that is now preserved, that’s in the archives things that Kopel doesn’t want you to use.

It’s not rocket science. But it is professional history, something that’s a lot harder than lawyers and judges think it is. That’s why they’re not historians. The three year degree in spoon fed case law is a lot easier than writing a dissertation.

I mean if it’s so easy…write an original book that will survive peer review. We’ll wait.

[Sarcastr0]

You mean case law isn’t history?
This is the opposite of the point of Bruen.

There is a super precedent that no case law or common law can overcome, and it's an excerpt from a pretty old source 5 Justices really like.

[MaddogEngineer]

So you didn't understand my post. Gotcha.

Case law is just a kind of history. Why do you or anyone think it's unique? If "gun control" were actually a normal thing in our history, it shouldn't be hard to find. I'm repeating Brett's point above about "obscure". If there are only a couple of historical examples, and we had a 100+ years of almost no gun control (as people would now like it to be, NY's regime of permitting that rejects almost anyone), it is indeed not rocket science.

Now where such a methodology gets interesting is when the history might be mixed. But that's not the case here.

[Sarcastr0]

Case law is more than a kind of history. The practice of common law relies on caselaw, not historical research.

I'm not one to say Constitutional practice should be common law, but don't pretend precedent isn't special in the legal context.

Historical practice that does not agree with precedent, what wins? Precedent.

And almost no gun control is not evidence gun control laws are unconstitutional.

[Rossami]

Since that "pretty old source" that "5 Justices really like" is the US Constitution, yes, that is a "super precedent" that no case law or common law can overcome.

[Sarcastr0]

That is not the source upon which the reasoning in Bruen relies.

[Brett Bellmore]

Actually, much as you dislike a good bit of it, the Bill of Rights IS part of the Constitution. And both Heller and Bruen are primarily based on one of the Amendments in that Bill.

I mean, without the 2nd amendment, there wouldn't even have been a case!

[Sarcastr0]

I'm not saying ignore the Bill of Rights just because I don't think the text is slam dunk what you think it is.

I even think that there is an individual right to self defense in the Constitution.

I don't think Bruen's reasoning of just utterly discarding precedent in favor of history is good. It relies *only* on historical practice. And negative practice at that.

Not as bad as Dobbs, but not very sustainable way for our judiciary to act.

Feel free to disagree, but don't claim my disagreement with you means I hate the Constitution. You are not the King of the Constitution.

[Brett Bellmore]

Look, the problem here is that the precedent you want to appeal to almost entirely grew up while the courts weren't APPLYING the 2nd amendment.

The states didn't have to obey it because incorporation had been spiked by the Slaughterhouse Court.

The Federal government didn't have to obey it because, by the time the feds developed any interest in gun control, FDR had successfully neutered the Court. Miller came 2 years after "The switch in time that saved 9"; The Court was out of the invalidating federal laws business for a while. And Miller was a test case for the NFA that was very carefully constructed to make sure that nobody would be arguing against it at the Supreme court, a trial in abstensia.

For 68 years after Miller, the Supreme court refused every single solitary challenge to a gun law where one of the parties brought up the 2nd amendment. That the Court took the Heller case came as a shock to everyone on all sides.

So, when you talk about precedent between the Civil war and Heller, you're talking about precedent created by courts that were not applying the 2nd amendment. Mostly precedent deriving from Jim Crow laws! So, how can it be any guide to the meaning of the 2nd amendment?

If you want to know what it means, you have to look at precedents dating back to the period between the 2nd amendment's ratification, and a block of states desperate to disarm the Freedmen after the Civil war. And only in states that actually had 2nd amendment analogs, because the 2nd amendment wasn't then binding on the states.

[LawTalkingGuy]

Did he suggest who should teach that? I mean will it be lawyers? Historians? Both? Include both primary and secondary sources? Talk about historiography?

[Sarcastr0]

He was talking about it as a practical course in how to brief. No truth value, just litigation value.

So...lawyers.

[Dan Schiavetta]

This is all correct. You are more agreeing with me than disagreeing.

[Dan Schiavetta]

There are some places where “brother” is unmistakably used in the sense of “sibling”. One example is Mark 6:3, and the parallel passage in Matthew.

“Is not this the carpenter, the son of Mary and brother of James and Joses and Judas and Simon? And are not his sisters here with us?”

[LawTalkingGuy]

It also thinks about how the people today interpret the text so as not to render it meaningless. Originalism has some serious legitimacy problems! I mean imagine teaching middle schoolers about the equal protection clause and then explaining that “people” means men because arguably the original public understanding of the clause didn’t include women. Or that it wouldn’t be cruel to flog them if they shoplifted. If half the population is told the words they just read don’t actually protect them because the Court agrees with what Randy Barnett and Josh Blackman said in Obscure Originalist Quarterly they’re going to be major legitimacy problems for the court and the document itself.

This UM ACKSHUALLY school of interpretation against common understanding isn’t a great method for maintaining a widely accepted system.

[Sarcastr0]

I like Noah Rosenblum, Marin K Levy, and Julian Davis Mortenson. I offered them against the idea that "It’s legal history, not archeology, and legal history is well documented." It actually takes some work!

Bruen's methodology is in no way determinative, but it claims to be. That is an issue. I have no problem with a court looking at history and making a judgement call. They're called opinions after all. But the new hotness on SCOTUS and certain appellate judges is to declare you have found a rich vein of Truth.

Turning that into jurisprudential doctrine? That's just covering outcome-oriented pretext with a tarp. As is often the case, the right doing just about openly what they claim the left has been doing but hiding it.
At least with fundamental rights you have some legit steps of inquiry to go through, rather than cherry picking some sources and becoming an Arbiter of Founders Intent.

I'm not saying this isn't the law - it's down there on paper and everything. And it's not the worst opinion I've ever seen. But I don't like it, and T'm not fooled by it.

[Rossami]

That verse used of brother and sister is no more "unmistakably" in the sense of sibling than mad's examples. Such a reading (where 'son' is biological but 'brother' and 'sister' are not) would be would be clumsy in modern usage - but that's the point - this isn't modern usage. It's a translation (and often a translation of a translation of a translation) of a transcription of an oral tradition passed down for a couple hundred years before first being written.

[Brett Bellmore]

"I mean imagine teaching middle schoolers about the equal protection clause and then explaining that “people” means men because arguably the original public understanding of the clause didn’t include women."

That would be educational malpractice. People did include women, but the rights of women were treated as being exercised on their behalf by male relatives. Which, sure, was not ideal, but neither was it the same as denying that they were people.

[Sarcastr0]

People did include women, but the rights of women were treated as being exercised on their behalf by male relatives

I mean, giving away the bride is full on women-as-property. Property rights are nor human rights.

Otherwise we treat animals as people today.

[LawTalkingGuy]

I noticed you didn't say that women were protected by the equal protection clause. You said they were people and then waived away the substance of the guarantee based on convoluted reasoning. This is a huge UM ACKSHUALLY that basically furthers my point that "originalism" tends to render the text pointless to modern readers thus diminishing the legitimacy of the document and the courts that interpret it.