Jurisprudence

Will the Supreme Court Create Universal Concealed Carry Based on Fantasy Originalism?

Person wearing a Washington Nats glove holds a sign that says "Gun Laws Save Lives" amid a crowd of gun control activists
Supporters of gun control and firearm safety measures protest outside the Supreme Court in 2019. Saul Loeb/Getty Images

When the Supreme Court hears oral arguments this week in the most significant gun case in more than a decade, the court will be presented with two very different versions of the past. Paul Clement, arguing for the New York State Rifle & Pistol Association against a New York law that restricts the ability to carry concealed handguns in public, claims that something called “peaceable armed travel” has always existed and is protected by the Second Amendment. New York, by contrast, argues that the right to carry arms in public, particularly in populous areas, has been subject to robust regulation for most of the last seven centuries. In particular, New York claims that history offers clear evidence that the right to carry arms in public was predicated on demonstrating a specified threat. Which version of history will prevail in court?

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Much will depend on the willingness of the court’s newest originalist judges to follow the evidence to conclusions that are not popular among the base of the Republican Party. If originalists are sincere in their claims that their method is neutral, New York may prevail. If originalism is little more than a smoke screen for judges to further their ideological and policy preferences, then the law at issue will likely fall.

The idea that Shakespeare’s England was filled with gun-toting Britons seems absurd, but this is precisely what Clement and the amicus briefs supporting his argument claim. According to the gun rights account, “peaceable armed travel” was perfectly legal in England and only aggressive actions with weapons that specifically provoked a terror were unlawful. When I sketched the outlines of this argument to a group of distinguished British historians in Oxford several years ago, the reactions ranged from disbelief to consternation. The British historians simply could not fathom how American advocates—and some American judges—could have gotten English history so wrong.

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If one looks closely at the arguments Clement and his allies make in their briefs, it is easy to see how the gun rights version of the past has produced a fun house mirror version of history that borders on the surreal.

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First, Clement derides New York for relying for its own originalist case on sources such as the writings of Michael Dalton, an author he dismisses as a “lesser-known” figure, largely unknown to the nation’s Founders. Although Clement may not be familiar with Dalton’s work, the writer’s popular guide to the law, The Country Justice, was one of the most influential legal books on either side of the Atlantic in the 18th century. It occupied a prominent place in the library of judges, lawyers, and educated citizens. Thomas Jefferson and John Adams each owned a copy, and their legal writings are littered with citations to Dalton who, together with Blackstone, was one of the most frequently cited legal texts in Anglo-American law at the time.

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It is easy to see why Clement would wish to erase Dalton from the historical record, since Dalton’s discussion of the common law’s limits on armed travel in public—particularly in populous areas—blows a musket-size hole in Clement’s ahistorical arguments. But wishful thinking can’t erase the past.

Clement, for his part, cites John Adams’ defense of the British troops indicted during the Boston Massacre trial, but conveniently ignores the multiple references to Dalton’s work in the notes Adams prepared for his defense. In that portion of the brief, he does correctly note that Adams reminded the jury that English law recognized that individuals could arm themselves to put down riots. What Clement neglects to point out is that this was one of the exceptions to the general prohibition on traveling armed in public. Thus, in Clement’s bizarro, backward version of history, the exception to the rule does not prove the rule; it simply takes the place of the rule. This is not originalism. It is historical fantasy.

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In part, Clement’s errors are a direct result of his tendency to read legal texts from the past with the tools of the modern lawyer, instead of the tools of a founding-era lawyer or judge. This problem appears time and again in Clement’s brief and the other gun rights briefs. Such an approach is a type of faux historicism in which today’s ideas are projected backward in time and founding-era texts are read as if they were drafted by the NRA’s legislative action committee, not the historical Founders of our constitutional tradition.

A good example of this problem is the interpretation of the term “offensively armed.” Clement and the other pro-gun amicus briefs treat this as if it was meant to articulate a modern psychological understanding of “criminal intent.” Unfortunately for Clement, this modern view only emerged in the 19th century, long after the adoption of the Second Amendment. At the time of the Second Amendment, the term “offensively armed” referred to carrying a particular type of weapon, primarily guns and knives. “Defensive” arms, by contrast, were a different category entirely, which included shields and armor.

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It is true that, living in an agrarian society on the edge of the British Empire, Americans were not only better armed than their English brethren, but there were many more situations where armed travel did not pose a threat to the peace. Building on a brief by a group of “Professors of Second Amendment Law,” Clement notes that many of the nation’s Founders carried guns in public. Context, though, is essential to understanding gun culture in this period of American history. The fact that Patrick Henry or Thomas Jefferson, slave-owning members of Virginia’s natural aristocracy, carried guns when walking on their ample lands or carried weapons when they hunted or picked off vermin tells us little about the regulation of arms or carry practices outside of rural Virginia, where settlements were scattered across the landscape and population density was low. Moreover, Jefferson, Clement neglects to mention, locked up his firearms securely when he traveled to town.

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Clement also dismisses the entire history of gun regulation after the Civil War, including the era of Reconstruction, the period most relevant to understanding how Second Amendment protections apply to state laws. He casts aside the dozens of laws regulating arms enacted by Republicans to protect recently freed slaves and their allies as a “motley collection of state cases, territorial laws, and city ordinances.” Dismissing ordinances that were enacted in federal territories that were obliged to comply with the Second Amendment, even before the enactment of the 14th Amendment, makes little constitutional sense.

Disregarding the dozens of local ordinances enacted in this period is even more problematic because this body of laws shows that the New York statute at issue before the Supreme Court was neither a historical outlier nor an artifact of 20th century anti-immigrant zeal; it was among the most common types of arms regulation in America after the Civil War. In many parts of the nation, a majority of Americans were living under a gun regulatory framework that included permit requirements. Prosecution of violators of the postwar laws limiting armed carry in public were common. Thousands of cases were prosecuted under these laws. If District of Columbia v. Heller and McDonald v. City of Chicago, the two landmark Supreme Court cases on guns, stand for anything, it is the proposition that laws that are deeply rooted in historical tradition are presumptively lawful. Apparently, Clement believes this part of Heller and McDonald doesn’t apply to his clients.

Originalism has gained a strong presence on the Supreme Court. Originalists insist that the theory can be applied in a neutral manner. The New York gun case offers a textbook case to test that claim. If the court strikes down a law that has been on the books for more than a century and is the foundation for most modern gun regulation, even though this law is clearly rooted in our history and tradition, it will do more to undermine the legitimacy of originalism than anything its most vociferous critics have done in the past 30 years.

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