The Lawletter Vol 46 No 7
Historical background has always played an important role in the development of case law under the U.S. Constitution. With the emergence of original-intent theory, history, especially the legal history of England, has become even more influential. This point is exemplified by the continuing questions that arise over the interpretation of the Second Amendment to the U.S. Constitution, "Keeping and Bearing Arms—A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. "
The case law that has developed under the Second Amendment has largely focused on issues arising in the context of a state's right to raise and maintain a militia, with no U.S. Supreme Court decision dealing with the extent of an individual's right to bear arms. This changed in 2008, however, when Justice Antonin Scalia delivered the majority opinion in the 5-4 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court affirmed the right of an individual to keep arms in the home for self-defense. Justice Scalia argued that the original understanding of the Second Amendment was that it "codifies a preexisting right" that was brought from England to the American colonies. Justice Scalia looked to historical precedent. For example:
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.
Id. at 592-93.
The Supreme Court has now held oral argument in preparing to decide a case docketed as New York State Rifle & Pistol Association v. Bruen, No. 20-843. The case arose when two men from the Albany area brought suit after a county judge turned down their request for a general license to carry a handgun because they did not face "any special or unique danger." They were given licenses to carry firearms for hunting and target shooting. The basis for the denial was the Sullivan Act, enacted in New York in 1911, requiring that the applicant for a concealed carry permit "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession," thus imposing strict limits on carrying guns outside the home. The District Court for the Northern District of New York dismissed the case, and the Second Circuit Court of Appeals affirmed.
According to commentary by Adam Liptak of the New York Times (Nov. 3, updated Nov. 5, 2021), a majority of the justices seem prepared to rule that the law imposed an intolerable burden on the rights guaranteed by the Second Amendment. He noted, however, that several justices seemed open to allowing the state to exclude guns from crowded public settings.
There was a good deal of discussion of history at the proceeding, with special attention given to the Statute of Northampton of 1328, which forbade the carrying of guns to fairs and markets. The statute has apparently become an important element of the thinking of those justices who believe that the founding fathers did not intend the Second Amendment to prohibit limits on the public carrying of firearms.