The Washington PostDemocracy Dies in Darkness

‘Originalism’ only gives the conservative justices one option on a key gun case

Regulations limiting armed travel in public, particularly in populous areas, stretch back over seven centuries.

The Supreme Court building in Washington. (J. Scott Applewhite/AP)
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correction

An earlier version of this piece incorrectly said that "dozens of states adopted arms bearing provisions that more self-consciously affirmed an individual right and accordingly excised any mention of these ancient fears" during Reconstruction. In fact, more than a dozen states adopted such laws.

In NYSRPA v. Bruen, the most important gun case to reach the Supreme Court in the past decade, the justices will decide the future of gun regulation in America. History plays a prominent role in the dozens of briefs filed in the case. And it will present the court’s most conservative justices with a choice: follow their preferred method of judicial interpretation, originalism — which relies upon history, text and tradition — or reach the outcome preferred by political conservatives who, in this case, wish to ignore the long history of regulation and instead rule in favor of nearly unrestricted gun rights.

Virtually all the legal historians who have weighed in on the relevant history, with the notable exception of a small handful closely linked to the National Rifle Association, support New York’s version of the history: Regulations limiting armed travel in public, particularly in populous areas, stretch back over seven centuries. This history stands in stark contrast to the alternative version of the past concocted by gun rights’ advocates over the past half century, which has more in common with fantasy than history. In this other reality, early modern England was a gun-toting paradise, antebellum Southern judges who were enslavers spoke for all Americans, North and South, and the efforts of Republicans during Reconstruction to stem the tide of violence in the South by enacting neutral gun laws never happened.

Yet, the historical record is overwhelmingly clear: The gun rights advocates’ version of the past is simply false. If the justices professing to believe in originalism are sincere about their method, this case offers the rare opportunity to prove that originalism is not always a prescription for results-oriented judging that follows a conservative political agenda

The statute at the center of NYSRPA v. Bruen — which was enacted in 1911 and revised in 1913 — built on a tradition of limiting armed travel in public that is more than 700 years old. This history, among the oldest continuous traditions in Anglo-American law, dates to the Statute of Northampton enacted in 1328. In fact, in early modern England, ordinary Britons were prohibited from traveling armed in public, because doing so was thought to threaten the peace. A popular legal dictionary, a text owned by Thomas Jefferson and John Adams, explained: “By the common law it is an Offense for Persons to go or ride armed with dangerous and unusual Weapons.” While “Gentlemen” could “wear common Armour according to their Quality,” there was no unfettered right of peaceable carry of arms in public.

The American Revolution set in motion a slow process of change that had profound consequences for firearms law. Although the preservation of the peace was no longer rooted in royal authority, the public (we the people) now endowed justices of the peace, sheriffs and constables with the legal authority to function as conservators of the peace. Before the era of professional police forces, these peace officers retained the authority to detain, disarm, arrest and fine those who traveled armed in populated areas.

Although in parts of the slaveholding South, the most violent region in the new nation, some states developed a more expansive conception of the right to travel armed, in other parts of the nation, such as Massachusetts, a more limited model emerged. Courts in Massachusetts, contrary to the repeated claims of many modern gun rights advocates, expressly recognized that “the statues of Edward III, respecting the jurisdiction and powers of the justice of the peace” — including the laws prohibiting public carrying of weapons — “have been adopted and practiced upon here.”

And public was the key word. One of the gun rights briefs filed in NYSRPA v. Bruen notes that Thomas Jefferson advised that his nephew walk his ample lands, gun at the ready, as the best form of exercise. But this advice merely reveals that Jefferson was a large landowner with thousands of acres. When the future president traveled into town, he locked up his guns securely.

Yet, while this earlier history is somewhat illuminating to the issues being adjudicated in 2021, the real roots of New York’s permit law lie during the strife-filled period of Reconstruction. Gun violence, including the terrorist violence of the Ku Klux Klan, led the authors of the Fourteenth Amendment and their fellow Republicans to enact scores of racially neutral gun laws aimed at protecting the rights of formerly enslaved people, promoting public safety and demilitarizing the public sphere of civic life.

These laws reflected a profound shift in the arms bearing provisions of state constitutions. Founding-era fears about the federal government’s powerful professional army and its threat to state militias had largely abated by the time of the Civil War. As a result, during Reconstruction, more than a dozen states adopted arms bearing provisions that more self-consciously affirmed an individual right and accordingly excised any mention of these ancient fears — a point that the Supreme Court recognized in its landmark 2010 decision, McDonald v. City of Chicago.

But, crucially, the newly adopted state constitutions also included language expressly affirming the right of legislatures to regulate arms in public.

These new provisions reflected the main fear of this era, one that intensified after the Civil War: interpersonal gun violence, and the collective terrorist violence perpetuated by groups such as the Ku Klux Klan against Black Southerners and their allies. In this climate, drafters forged a new constitutional framework that united arms bearing and arms regulation into a single principle.

States and localities zealously took up the challenge of framing policies that both protected the right to bear arms and the public’s right to enjoy the peace. They enacted dozens of new laws regulating nearly every aspect of the right to keep and bear arms. Thus, a Texas statute in 1870 prohibited public carry everywhere from churches to schools to public exhibitions to social gatherings to taverns to political conventions. Texas not only enacted robust gun regulation during Reconstruction, but the state enforced these laws aggressively, prosecuting thousands of cases. Moreover, these gun statutes were written and enforced in a racially neutral fashion during Reconstruction. Only after the rise of Jim Crow, when Black people were disenfranchised, did these types of laws become a tool to selectively disarm Black people and further the goal of White supremacy.

Public carry was one area in which states and localities were particularly active in the post-Civil War era. Some places passed general bans on public carry, some targeted concealed carry and others adopted discretionary permit systems that limited the right of armed travel to situations in which citizens had a good cause to fear attack. By the end of Reconstruction, half of California’s population, for example, was living under a regulatory regime that limited armed travel to those who had a good reason and obtained a permit. And California wasn’t unique.

In other words, a substantial portion of the nation lived under laws much like the regulation at issue in NYSRPA v. Bruen.

The pro-gun briefs filed in this case have conveniently ignored or misrepresented this seven-century history. The evidence from the Reconstruction era is overwhelming and especially damming for gun rights advocates. By the end of Reconstruction, permit systems had emerged as the dominant framework for implementing the right to bear arms.

The most popular legal reference work in America, “The Encyclopedia of English and American Law,” published shortly after the end of Reconstruction, reviewed the evidence on public carry and confidently concluded: “The statutes of some of the States have made it an offence to carry weapons concealed about the body, while others prohibit the simple carrying of weapons, whether they are concealed or not. Such statutes have been held not to conflict with the constitutional right of the people of the United States to keep and bear arms.”

The Supreme Court may still decide to extend the scope of gun rights in America. But doing so would be wholly inconsistent with the repeated claims of many of the current justices who profess to be principled originalists willing to follow the evidence where it takes them.

The available historical evidence and the bulk of existing scholarship makes clear that if history, text and tradition matter, then New York should win NYSRPA v. Bruen. Only if originalism is, as its harshest critics charge, little more than a smokescreen for political ideology, will New York’s law be consigned to the dust heap of history, where similar restrictions from the past have long been buried.

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