Supreme Court looks to medieval England in gun rights case


The Supreme Court is preparing to decide whether the 2nd Amendment gives Americans a right to carry a loaded gun when they leave home — and some justices are looking back to the England of 1328 for an answer.

At issue is the meaning of the “right to keep and bear arms” that was added to the Constitution in 1791 and expanded by the high court in 2008. In a dispute that will be argued Wednesday, the newly strengthened conservative Supreme Court majority may have the opportunity to expand gun owners’ rights.

The court was sent by Justice Antonin Scalia to search the history for the opinion that first upheld an individual’s right of being armed. Until then, the court had interpreted the 2nd Amendment as allowing the states to create a “well-regulated military militia” rather than a person’s right to own guns.

But Scalia, who died in 2016, successfully argued for interpreting the Constitution based on what he viewed as the original understanding of its terms. Scalia stated that the 2nd Amendment “codifies an existing right” that was brought over from England to the American colonies.

“By the time of the founding” of this country, he wrote in District of Columbia vs. Heller, “the right to have arms had become fundamental for English subjects.”

That 5-4 decision struck down an unusually strict gun-control ordinance in Washington D.C., and held that law-abiding residents had a right to keep a handgun at home for self defense.

Now, the court will hear a more important case in New York. It will decide whether Americans have the right to carry guns when they drive, march down the street, or participate in protest marches. It is both a test of gun rights and originalism.

One group of prominent historians recently told the court that even by using Scalia’s rationale of relying on the understood gun rights of old England, the court should conclude there is no right to carry weapons in public. They stated that England does not have the right to possess firearms or other dangerous weapons in the public, based on a general interest in self-defense. For centuries, both English and American law have restricted individuals’ right to publicly carry arms — especially in populated places and especially in the absence of a special need for self defense — in order to preserve the public order and public peace.”

Beginning in the late 1200s, kings had issued proclamations prohibiting being armed when traveling in public or entering the city of London, the group noted.

And in 1328, the parliament adopted the statute of Northampton which said “no man great nor small … except the King’s servants in his presence” shall “go nor ride armed by night nor by day, in fairs, markets … nor in no part elsewhere” or “forfeit their armour … and their bodies to prison at the King’s pleasure.”

This statute, which stayed on the books until the mid-20th Century and was adopted by several colonies in the late 1700s, has emerged at the center of the debate over the “preexisting right” that became the 2nd Amendment.

Gun-rights advocates dismiss the medieval law and say it was intended only to restrict “dangerous and unusual weapons” that would “terrify” the public. But others, including most historians, say it reflects a 700-year old tradition of restricting dangerous weapons in public places.

Saul Cornell is a Fordham University historian and one of the most vocal opponents to a broad right-to-arms transfer from England to this nation.

” They are creating a historical tradition, and not discovering it,” he said about gun-rights supporters. “There are very few English historians who believe there is or ever was a broad fundamental right to travel armed wherever you want.”

Brown University historian Tim Harris grew up in south London and earned his degrees at Cambridge. It is “bizarre” for Americans to look to England for gun rights.

He noted the Game Acts of 1671 and 1693 restricted firearms to the landed elite who owned a substantial amount of property and were subject to poaching. He stated that he believes the English legal precedents were misunderstood, and misapplied to support a wider interpretation of the 2nd Amendment.

New York is like five other states in that it restricts the number of people who can carry concealed guns with them. Gun owners must usually prove that they have “proper cause” and “special need” for their firearms. These laws have been upheld over the past decade, despite the Heller ruling and dissents by Justices Clarence Thomas and Samuel A. Alito Jr., and Neil M. Gorsuch.

However, earlier this year, after Justice Amy Coney Barrett arrived, the court agreed to hear a constitutional challenge to New York’s law. Two men from Albany filed suit after a judge denied them a general license to carry handguns. They claimed that they didn’t face any “any special or unusual danger.” The court granted them licenses to hunt and shoot target guns.

Washington attorney Paul D. Clement, a former U.S. solicitor general and Scalia clerk, represents them and the New York State Rifle & Pistol Assn.. He wants the court to decide that the right “to bear arms” also protects the right of a person to carry a firearm in public.

“The text, well-documented history and Heller decision “make it clear that the 2nd Amendment does not just protect the individual’s right to keep weapons for protection within the home but also the individual’s right to carry arms outside of the home ,” he stated in New York State Rifle & Pistol Assn. Bruen .

He cited the statute of Northampton, but says it was meant to limit only “unusual weapons,” not “ordinary arms for self-defense.”

Like Scalia, he relies heavily on the English Bill of Rights of 1689. After James II, a Catholic had been deposed, Parliament adopted a declaration granting new rights.

One said “the subjects, which are Protestants, may have arms for their defence suitable to their conditions, and as allowed by law.” Clement argues the 2nd Amendment had its “roots” here when the English established the right to have “arms for self-preservation and defense.”

Lawyers for New York portray a different history. they stated that laws on both sides have restricted public possession of firearms and other deadly weapon, especially in densely populated areas, since the Middle Ages. Judge Jay Bybee was a President George W. Bush appointee and wrote the most comprehensive court opinion about the history of gun rights. He spoke in March for a 7-4 majority of 9th Circuit Court of Appeals, rejecting the idea of a public right to bear arms.

“Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square,” he wrote in Young vs. Hawaii.

“Indeed, we can find no general right to carry arms into the public square for self defense,” he wrote. “The contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places–including government buildings, churches, schools, and markets — the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.”

Not all the history in this case is of medieval vintage. Retired Judge J. Michael Luttig, along with several Washington lawyers, urged the court not to concentrate on the Jan. 6 insurrection of Trump supporters and to envision thousands of armed protesters descending upon the Capitol.

Two weeks before Trump’s planned “stop-the-stolen” rally, the Washington police chief warned that carrying guns in the District of Columbia was illegal and would not be tolerated.

That warning “indisputably stopped more bloodshed and doubtless saved many people during the insurrection and may well have prevented another massacre,” they wrote.

If a court ruled in favor of a broad right, it would “imagine the difficulties that law enforcement would face” if future protesters, whether they were motivated by conspiracy theories or police shootings, arrived legally armed with loaded guns …. Adopting a right to carry,” they say, “would be to throw gasoline on the fires of our nation’s future political conflicts.”

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