The Supreme Court is preparing to decide whether the 2nd Amendment gives Americans the right to carry a loaded gun when they leave their homes – and some justices look to England in 1328 for an answer.
What is at issue is the meaning of the “right to own and bear arms” which was added to the Constitution in 1791 and expanded by the High Court in 2008.
In a dispute to be debated on Wednesday, a newly strengthened Conservative majority in the Supreme Court will have the opportunity to go even further in expanding the rights of gun owners.
The late Judge Antonin Scalia sent the court to research history when he wrote the first opinion confirming an individual’s right to be armed.
Until then, the 2nd Amendment had been interpreted by the court as applying to the right of states to establish a “well-regulated militia”, rather than to the right of an individual to own firearms.
But Scalia, who died in 2016, successfully defended the interpretation of the Constitution on the basis of what he saw as the original understanding of its terms. He said the 2nd Amendment “codifies a pre-existing law” that was brought from England to the American colonies.
“At the time of the founding” of this country, he wrote in District of Columbia vs. Heller, “the right to have weapons had become fundamental for English subjects”.
This 5-4 decision overturned an unusually strict gun control order in Washington DC and ruled that law-abiding residents have the right to keep handguns in their homes for self-defense.
The court is now faced with a much bigger decision in a New York case due to be heard this week: Do Americans have the right to be armed when traveling by car, walking on the streets, or participating in a protest rally?
It’s a test of gun rights as well as originality.
A group of prominent historians recently told the court that even using Scalia’s reasoning of relying on Old England gun rights, the court should conclude that there is no right to bear arms in public.
They said England did not “have the right to carry firearms or other dangerous weapons in public on the basis of a generic interest in self-defense. For centuries, English and American laws have restricted the right of individuals to bear arms in public – particularly in populated places and especially in the absence of a particular need for self-defense – in order to maintain public order. and public peace.
From the late 1200s, kings had issued proclamations prohibiting being armed while 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 or small … except the servants of the king in his presence” should “go or ride armed by night or day, in fairs, markets. … nowhere else “or” give up their armor … and their bodies in prison at the will of the king “.
This statute, which remained in the books until the middle of the 20th century and was adopted by several colonies in the late 1700s, appeared at the center of the debate on the “pre-existing law” which became the 2nd Amendment.
Gun rights advocates reject medieval law and say it was only meant to restrict “dangerous and unusual weapons” that “terrify” the public. But others, including most historians, say it reflects a 700-year-old tradition of restricting dangerous weapons in public places.
Fordham University historian Saul Cornell is one of the main skeptics of an extended right to arms from England to that country.
“They are inventing a historic tradition, not discovering it,” he said of gun rights advocates. “There are very few English historians who believe that there is or ever has been a general fundamental right to travel armed anywhere. “
Brown University historian Tim Harris grew up in South London and graduated from Cambridge. He, too, finds it “bizarre” that Americans view England as a source of gun rights.
He noted that the Game Acts of 1671 and 1693 limited firearms to the landed elite who owned a significant amount of property and were subject to poaching.
“In my opinion, English legal precedents have been misunderstood and misapplied in an attempt to support a broader interpretation of the 2nd Amendment,” he said.
New York, like California and five other states, severely restricts who can get a permit to carry a concealed weapon with them. Generally, gun owners are required to show that they have a “good cause” or a “special need” to be armed.
These laws had been maintained for the past decade, despite the Heller ruling and the dissenting opinions of Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.
However, earlier this year, following the arrival of Judge Amy Coney Barrett, the court agreed to hear a constitutional challenge to New York law. It came when two men from the Albany area filed a lawsuit after a county judge rejected their application for a general license to carry a handgun because they faced “no special danger. or single “. They were issued licenses to carry firearms for hunting and target shooting.
Washington attorney Paul D. Clement, former solicitor general of the United States and clerk of Scalia, represents them and the New York State Rifle & Pistol Assn. He urges the court to rule that the right to “wear weapons “protects the right to carry a firearm in public.
“The text and the well-documented history of the right to bear arms in England and America” as well as the Heller decision “make it clear that the 2nd Amendment not only protects the individual right to keep arms for protection within home, but also the individual right to bear arms for protection outside the home, ”he wrote in New York State Rifle & Pistol Assn. against Bruen.
He cited Northampton’s statute, but said it aimed to limit only “unusual weapons”, not “ordinary weapons for self-defense”.
Like Scalia, he relies heavily on the English Bill of Rights of 1689. After James II, a Catholic, had been tabled for, among other offenses, disarming Protestants in Ireland, Parliament passed a bill of new rights.
One of them said that “the subjects, who are Protestants, can have weapons for their defense adapted to their conditions, and as the law allows”. Clement maintains that the 2nd Amendment had its “roots” here when the British established the right to have “arms for their own preservation and defense.”
New York lawyers paint a different story. “From the Middle Ages, laws on both sides of the Atlantic largely restricted the public carrying of firearms and other deadly weapons, especially in populated places,” they told the court.
The court’s most comprehensive opinion on the history of gun rights and the 2nd Amendment was written by Judge Jay Bybee, a person appointed by President George W. Bush. In March, he spoke for a 7-4 majority at the 9th Circuit Court of Appeal and rejected the idea of a right to be armed in public.
“Our review of over 700 years of English and American legal history reveals a strong theme: the government has the power to regulate guns in the public arena,” he wrote in Young vs. Hawaii.
“Indeed, we cannot find any general right to bear arms in the public square to defend ourselves,” he wrote. “The contours of the government’s power to regulate guns in the public square are at least as follows: the government can regulate, and even ban, in public places – including government buildings, churches, schools and markets – the open carrying of small arms capable of being concealed, whether carried concealed or openly.
The whole story in this case is not from medieval times. A brief by retired judge J. Michael Luttig and several leading Washington lawyers urged the court to focus on the Jan. 6 insurgency by supporters of President Trump and imagine thousands of armed protesters descending on the Capitol.
Two days before Trump’s planned “stop the theft” rally, the Washington police chief warned that carrying weapons was illegal in the District of Columbia and “would not be tolerated.”
This warning “unquestionably prevented even more bloodshed and no doubt saved many lives during the insurgency” and “might well have prevented a massacre,” they wrote.
If the court ruled in favor of a broad right to be armed, “imagine the difficulties law enforcement would face if future protesters – whether motivated by conspiracy theories, police shootings or anything else – arrived in the streets legally armed with loaded weapons. …. Adopting a port fee, ”they say,“ would be like throwing gasoline on the fire of our nation’s future political conflicts.