Second Amendment Roundup: Antonyuk's and Koons' Historical Feet of Clay

The 2d and 3d Circuits mistook a widely-criticized, private publication for a Founding-era “law.”

After a long delay (see post here), on September 10 the Third Circuit finally reached a decision in Koons v. Attorney General of New Jersey, which upheld many of New Jersey's prohibitions on firearm possession in public places.  Like a handful of other states, New Jersey reacted to New York State Rifle & Pistol Ass'n v. Bruen, which invalidated New York's limitation of handgun carry licenses to persons with a "proper cause," by a sweeping ban on places where firearms may be possessed.

Bruen held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation."  Yet as explained below, Koons would rely heavily upon a fake citation that misled it to get that historical tradition backwards.  Further, while firearms may be restricted in certain "sensitive places," Bruen continued, that does not include "all places of public congregation that are not isolated from law enforcement."  But Koons held just the opposite about many such places.

In setting about to find Founding-era analogues to that of New Jersey, Koons correctly read the 1328 Statute of Northampton as providing that "going armed offensively was prohibited in fairs, markets, in the presence of justices or ministers, or in similar places."  It added that two states enacted versions of that offense, including a 1786 Virginia statute with an explicit "terror" element.  For North Carolina, it cited A Collection of Statutes of Parliament of England in Force in the State of North Carolina 60–61 (Francois-Xavier Martin ed., 1792), which it referred to as "hereinafter N.C. Statute of Northampton."

Far from being a law, Martin's Collection was a self-published book that simply reprinted, among other British laws, the Statute of Northampton.  Citing Justice Breyer's dissent in Bruen, Koons continued, "North Carolina's 1792 statute was so traditional that it retained references to the King."  Yet this "statute's" six references to "the King," supposedly enacted sixteen years after independence was declared, should have been a dead giveaway that North Carolina enacted no such law.

For its purported Founding-era analogues, Koons is a cookie-cutter repetition of the flawed Second Circuit's decision in Antonyuk v. James (2024), which initiated a false history of Founding-era law to uphold New York's wide-ranging ban on where firearms may be possessed.  Antonyuk began with the Statute of Northampton's language that one shall "bring no force in affray of the peace, nor to go nor ride armed … in Fairs [or] Markets…." But Bruen held that the Statute "has little bearing on the Second Amendment adopted in 1791."  As held in Sir John Knight's Case (1686), the Statute applied only to "go[ing] armed to terrify the King's subjects" with evil intent, a common-law offense.

That offense was codified in Virginia's 1786 statute providing that no person shall "go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country."  Bruen read that law and similar ones as restricting the carrying of arms only in a manner to cause "terror," not to prohibit peaceably carrying in public.  Antonyuk conceded that "the Virginia statute differed from the medieval English Northampton statute in that it prohibited conduct and not simply carriage, i.e., bearing arms in 'terror' of the county [sic]…."

The Antonyuk court next turned to "a 1792 North Carolina statute replicating the 1328 British statute and prohibiting firearms in fairs or markets …."  It claimed that "the North Carolina statute, like the Northampton statute, appears to have prohibited firearm carriage in general at fairs and markets regardless of conduct."  And it cited this "law" as Martin's above Collection of Statutes.  The following traces actual North Carolina law, none of which the Second Circuit even mentioned.

In 1749, the North Carolina General Assembly passed "An Act to put in Force in this Province, the several Statutes of the Kingdom of England, or South-Britain, therein particularly mentioned."  It included several statutes of Edward III, but did not include the Statute of Northampton. This 1749 Act was published in A Collection of All the Public Acts of Assembly of the Province of North-Carolina (1752), which was confirmed by the General Assembly.  That volume also included two enactments passed in 1741.  First, the state's "Act to Appoint Constables" required that constables take an oath to 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 his Majesty's Peace."  While no act of Assembly made that a crime, it reflected the common-law offense of an affray.

Second, and by contrast, the state's "Act concerning Servants and Slaves" provided: "That no Slave shall go armed with Gun, Sword, Club, or other Weapon, or shall keep any such Weapon, or shall hunt or range with a Gun in the Woods, upon any Pretence whatsoever, (except such Slave or Slaves who shall have a Certificate, as is hereinafter provided;)…."  So, it was a crime for a slave to "go armed" per se, but it was an offense for a free person to go armed only if done so "offensively."  It goes without saying that, if a master could issue a certificate to authorize a slave to go armed peaceably, the master could also go armed peaceably.

Antonyuk would have been aware of the 1741 law on going armed offensively, because it was cited by the Supreme Court in U.S. v. Rahimi (2024).  In fact, the Supreme Court granted cert, vacated the Second Circuit's 2023 Antonyuk judgment, and remanded it for further consideration in light of Rahimi.  In its second Antonyuk decision, the one reviewed here, the Second Circuit made no material changes.

Nor did Antonyuk bother to consult any other North Carolina statutes.  In 1787, the General Assembly commissioned James Iredell to revise and compile all laws that remained in force and to leave out acts that are repealed or obsolete.  (Iredell would serve as a Justice on the U.S. Supreme Court from 1790 until 1799.)  The compilation was approved by an act passed in 1791 and was published as Laws of the State of North-Carolina. It contained the two "going armed" laws passed in 1741: the constable's oath to "arrest all Persons as, in your Sight, shall ride or go armed offensively," and the prohibition that "no Slave shall go armed" without a certificate from the master.

The Antonyuk court cites Martin's A Collection of the Statutes as the source of the alleged North Carolina "law" that replicated the Statute of Northampton in North Carolina.  Yet Martin himself was well aware of the terror element of the common-law offense of going armed.  In 1791, Martin published a manual entitled The Office and Authority of a Justice of the Peace and of Sheriffs, Coroners, &c.  It defined "affray" as "a fighting between two or more; but there must be a stroke given or offered, or weapon drawn…."  The terms "stroke offered" and "weapon drawn" are practical ways of describing the crime of going armed offensively.

Apparently in 1791, Martin began work on a book he self-published in 1792 under the title A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina.  That was only his second year as a member of the bar.  This was wholly his private work and did not bear oversight by any other person, much less approval by the North Carolina legislature.  He noted in the Preface that "many, even among the most respectable, professors of the law disagree in regard to the applicability of a number of British statutes…."  He modestly wrote: "How far my endeavors have been attended with success, remains to be decided."

Unfortunately, Martin's Collection "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State."  That was the conclusion of the Commissioners of 1833, who the General Assembly appointed and directed "to collate, digest, and revise, all the public statute laws of the State."  They consisted of then-Governor James Iredell Jr., state Supreme Court Justice William H. Battle, and Judge Frederic Nash, who later became Chief Justice of the state Supreme Court.

Perhaps the defects in Martin's Collection were attributable to his inexperience in the law, as he was only admitted to the bar in 1789, and inability to master the English language, as his native language was French.  A modern source states about Martin's publications: "Both his newspaper and his books contained many errors, some attributable to his incomplete mastery of the English language, others to carelessness and poor proofreading."

One of the English statutes that Martin printed in A Collection was Edward III's Statute of Northampton of 1328.  That would be a clue good enough even for Inspector Jacques Clouseau of the Pink Panther series that this was not a statute passed by the North Carolina legislature, given its references to "the King's servants," "the King's precepts," "the King's justices," "the King's Ministers," "the King," and "the King's pleasure."  Only a few years earlier, the Americans had fought a bitter war to gain independence from the hated King.

The Second Circuit in Antonyuk repeatedly claims the Statute of Northampton from Martin's Collection to be a North Carolina "law," but meticulously avoids quoting any of the phrases referring to "the King."  Its only actual quotation from Martin's book was its reference to the "North Carolina law prohibiting 'to go nor ride armed by night nor by day, in fairs, markets'…."

Revisions of North Carolina law appeared in 1804 and 1821.  They included the same constable's oath to arrest those who "go armed offensively" and the same prohibition on slaves going armed at all.  In 1837, the legislature mandated that "all [of] the statutes of England or Great Britain heretofore in use in this State, are hereby declared be repealed and of no force and effect from and after the first day of January next [1838] …."

Antonyuk should have done the research necessary to understand the above statutory history before making its sweeping conclusion that North Carolina banned the mere carrying of arms, at least in fairs and markets, without any offensiveness element.  But this failing is worsened by the court's failure to acknowledge North Carolina's judicial precedents on the issue.

In State v. Huntly (1843), the North Carolina Supreme Court upheld an indictment alleging that the defendant armed himself with pistols and threatened to kill others, "to the terror of the people…."  The court stated that the Statute of Northampton did not create this offense, and in any event whether it was previously in force was now moot based on the above 1837 law.  As stated in Sir John Knight's Case, the Statute was but "in affirmance of the common law." While a citizen "is at perfect liberty to carry his gun" "for any lawful purpose," "he may not carry a weapon "to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."

The Antonyuk court would have been aware of Huntly, as Bruen and Rahimi both discussed it.  And Antonyuk disregarded several other North Carolina precedents, not one of which recognized carrying guns in fairs and markets to be an offense per se.  Most recently, in State v. Lancaster (2023), the state Supreme Court held that "the elements of the common law crime of going armed to the terror of the public" includes going armed in a public place "for the purpose of terrifying" others, and "in a manner which would naturally terrify" others.

Having constructed this non-existent "North Carolina model" of "prohibit[ing] firearms in quintessentially crowded places notwithstanding behavior," Antonyuk claimed that three state laws in the late 19th century followed and confirmed that supposed Founding-era model, which sufficed to establish a historical tradition of restrictions per Bruen.  That raises the issue of whether these laws are too late and too few to be proper analogues, particularly given that they are not consistent with any Founding-era law.  We'll cover that topic in the next post.

Comments

[Rubbish!]

Thet thar is some fine shootin', feller! I do believe you shot thet Third Circuit squirrel right thru th' eye.

[Stephen Lathrop]

One thing Halbrook misunderstands is that pre-founding era colonial laws were not usually intended to rely on the modern style of interpretation which puts emphasis on the intent of the person charged. More often than not, what made an ordinary colonial person a malefactor was the effect his conduct produced on those around him, regardless of his intent. Thus, Halbrook gets backward the import of, "go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country."

Colonial American society tended to prioritize group cohesion ahead of individual rights and motivations. If you acted in a way which made people around you anxious about their safety, then no matter what you intended, you risked being judged to act, "in terror of the Country." You were expected to know better, and not do that. You were not, as an ordinary person, expected to assert a personal privilege to the contrary.

That said, anther thing Halbrook gets wrong is tone deaf incapacity to detect arbitrary distinctions among social classes in both colonial America, and throughout Great Britain. In fairness, expectation of class distinctions in law enforcement is not typically a feature of American legal texts, even from those eras. Thus, if all you think history requires is to read legal texts (welcome to Halbrook, welcome to Bruen) then you may not pick up on what a hazard it is to read laws as general which everyone affected by them understood instead as means to privilege higher-status minorities only.

The practical expectation in many times and places was that the vast majority would be governed arbitrarily, without regard for liberties like carrying guns, or even (especially in Britain) for freedom to decide to reside in one village vs another. The general rule of arms in society was, quite often, and especially in settled places, that no matter what the law said, most people would be denied access to arms most of the time. Or perhaps in some places and times, privileged to own arms, so long as they were carried abroad only under strict constraints as to time, place, and purpose.

But even with insight into those norms, the interpretive challenge remains yet more complicated. Because today's notion of broad regional uniformity in law enforcement was not a typical feature of pre-revolutionary American society. Both practicalities and customs differed from place to place. Understanding was general that a city was not a frontier, and a place with a courthouse would do law more rigorously than another place where not one person with training to do the job of a magistrate was to be found in a county.

For all those reasons the strait-jacketed interpretive demands of Bruen become incoherent and unworkable in practice. They cannot be applied in true originalist context. For that, history must be taken to require forthright interpretation of what happened in the past. Bruen's interpretive rules exclude any such attention to specifics of time, place, people, and context which set the bounds of historical relevance. Bruen says, just look at texts, and only some of the texts.

[Randal]

which initiated a false history of Founding-era law

What goes around comes around I guess. Bruen and Heller are chock full of false history. It's the sorry state of Originalism today: start with your preferred outcome, dig up some dubious historical precedents, and spin them into modern policy. Scalia started it all.