Cleveland State Law Review Cleveland State Law Review
Volume 71Issue 3 Article
5-15-2023
The Fugazi Second Amendment: Bruen's Text, History, and The Fugazi Second Amendment: Bruen's Text, History, and
Tradition Problem and How to Fix It Tradition Problem and How to Fix It
Patrick J. Charles
Follow this and additional works at: engagedscholarship.csuohio.edu/clevstlrev
Part of the Legal History Commons, Second Amendment Commons, and the Supreme Court of the
United States Commons
How does access to this work benefit you? Let us know! How does access to this work benefit you? Let us know!
Recommended Citation Recommended Citation
Patrick J. Charles, The Fugazi Second Amendment: Bruen's Text, History, and Tradition Problem and How
to Fix It, 71 Clev. St. L. Rev. 623 (2023)
available at engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been
accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For
more information, please contact [email protected].
623
THE FUGAZI SECOND AMENDMENT: BRUEN’S
TEXT, HISTORY, AND TRADITION PROBLEM AND
HOW TO FIX IT
PATRICK J. CHARLES
*
A
BSTRACT
This Article critiques the Supreme Court’s use of text, history, and tradition in New
York Rifle & Pistol Association, Inc. v. Bruen. In doing so, not only is the Supreme
Court’s approach to history-in-law in Bruen called into question, but also the Article
provides the courts with an historically objective and even-keeled ‘way-ahead’ for
future Second Amendment cases and controversies.
624 CLEVELAND STATE LAW REVIEW [71:623
C
ONTENTS
I.
INTRODUCTION .............................................................................................. 624
II. BRUEN AND THE SECOND AMENDMENT AS HISTORICAL FUGAZI ................... 628
A. Statute of Northampton Fugazi .............................................................. 630
B. Massachusetts Model Fugazi ................................................................. 641
C. Armed Carriage Licensing Laws Fugazi ............................................... 659
III. BRUEN’S TEXT, HISTORY, AND TRADITION PROBLEM ................................... 667
A. Bruen’s Text Problem ............................................................................ 667
B. Bruen’s History and Tradition Problem ................................................ 675
IV. RESOLVING BRUEN’S TEXT, HISTORY, AND TRADITION PROBLEM ................ 691
V. CONCLUSION .................................................................................................. 717
I. INTRODUCTION
In New York State Rifle & Pistol Association v. Bruen, by a vote of 6-3,
1
the
Supreme Court held that the “Second and Fourteenth Amendments protect an
individual’s right to carry a handgun for self-defense outside the home,” and any state
or local laws that condition the “issuance of a license to carry on a citizen’s showing
of . . . special need” are thereby unconstitutional.
2
The decision is remarkable in
several respects. For one, Bruen upended a regulatory regime that has existed since
the mid-to-late nineteenth century—a regime that was instituted and sustained by
lawmakers to preserve the Second Amendment, not violate it.
3
What is also
remarkable about Bruen is the manner historical evidence was marshalled, selected,
and analyzed.
4
Rather than examine all the historical evidence objectively and at face
value, Bruen made it quite clear that “not all history is created equal,”
5
and therefore
conveniently cherry-picked whatever historical evidence supported broad carry rights
and rejected or explained away any evidence that did not.
6
1
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
2
Id. at 2122.
3
See PATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL
MILITIAS TO CONCEALED CARRY 158– 63, 191– 92 (2018); Patrick J. Charles, The Faces of the
Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64
C
LEV. ST. L. REV. 373, 418– 29 (2016).
4
Bruen, 142 S. Ct. at 2127–28 (discussing the varying sources used to analyze history of the
right to bear arms).
5
Id. at 2136.
6
Id.; see also Jake Charles, Bruen, Analogies, and the Quest for Goldilocks History, DUKE
SECOND THOUGHTS BLOG (June 28, 2022), firearmslaw.duke.edu/2022/06/bruen-
analogies-and- the -quest-for- goldilocks-history/; Saul Cornell, Cherry-Pick ed History and
2https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 625
This criticism of Bruen should not be construed to mean that the Supreme Court
was jurisprudentially wrong to strike down New York’s “may issue” concealed carry
regime. Far from it. As this author pointed out following oral argument, the Court
could legitimately come out in favor of either party.
7
It all boiled down to how the
Court framed the case—whether it be narrowly as a concealed carry case or broadly
as a public carry case
8
—and which historical periods or pieces of historical evidence
the Court perceived as being outcome determinative.
9
And given that the Court
ultimately decided to frame the issue in Bruen broadly, the outcome is not all that
surprising.
10
The reality is New York’s “may issue” concealed carry regime was a
tough pill to constitutionally swallow.
11
As the Bruen majority noted, outside the
Second Amendment context, it is virtually unheard of today for government officials
to have such wide discretion in doling out who may and may not exercise a
constitutional right.
12
Where Bruen severely falters, however, is in its use and application of history. It
is difficult to say what history-based jurisprudential methodology Bruen employs. On
Ideology-Driven Outcomes: Bruen’s Originalist Distortions, SCOTUSBLOG (June 27, 2022),
www.scotusblog.com/2022/06/cherry-picked-history-and- ideology-driven-outcomes-
bruens-originalist-distortions/.
7
See Francis Wilkinson, American’s Long History of Gun Regulation, BLOOMBERG (Nov. 3,
2021), www.bloomberg.com/opinion/articles/2021-11- 03/supreme-court-gun- case-
america-has -long -history-of-regulation.
8
It is worth noting that the Court only granted certiorari on the narrow issue of concealed
carry, not all public carry. See Questions Presented at 1, N.Y. State Rifle & Pistol Ass’n v.
Beach, 818 F.App’x 99 (2020) (No. 20-843) (“Whether the State’s denial of Petitioners’
applications for concealed-carry licenses for self-defense violated the Second Amendment.”).
9
See generally Patrick J. Charles, The Faces of the Second Amendment Outside the Home,
Take Three: Critiquing the Circuit Courts Use of History-in-Law, 67 C
LEV. ST. L. REV. 197,
203– 60 (2019).
10
See Questions Presented at 1, N.Y. State Rifle & Pistol Ass’n v. Beach, 818 F.App’x 99
(2020) (No. 20-843) (“Whether the State’s denial of Petitioners’ applications for concealed-
carry licenses for self-defense violated the Second Amendment.”).
11
See, e.g., Ly dia Wheeler & Kimberly Robinson, Kavanaugh Gun Case Opinion Could
Help Uphold Future Regulations, B
LOOMBERG L. (June 24, 2022),
news.bloomberglaw.com/us-law -week/kavanaugh-gun- case-opinion-could-help -
uphold-future-regulations (explaining that the Bruen decision is a high profile constitutional
ruling that will set the field of battle for future cases); Adam Liptak, Supreme Court Strikes
Down New York Law Limiting Guns in Public, N.Y.
TIMES (June 23, 2022),
www.nytimes.com/2022/06/23/us/supreme-court-ny- open-carry-gun- law.html.
12
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (“We know of no
other constitutional right that an individual may exercise only after demonstrating to
government officers some special need. That is not how the First Amendment works when it
comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment
works when it comes to a defendant’s right to confront the witnesses against him. And it is not
how the Second Amendment works when it comes to public carry for self-defense.”).
3Published by EngagedScholarship@CSU, 2023
626 CLEVELAND STATE LAW REVIEW [71:623
its face, Bruen appears to be grounded in public meaning originalism.
13
Yet at several
points the Bruen majority picks and chooses historical evidence on little more than a
whim.
14
Yet no matter how Bruen is methodologically classified—whether it be
originalist or some other history-based form of constitutional interpretation—the fact
of the matter is that the 6-3 majority’s historical approach is neither objective nor
holistic.
15
To be blunt, Bruen fails to adhere to even basic academic standards.
16
The
length in which the Court margin walks history and then claim that virtually all the
relevant evidence points in one direction is particularly worrisome.
17
In this author’s
opinion, it proves once and for all that history is not so much a constitutional guardrail
as it is a jurisprudential pawn in the larger ideological debate over the Constitution’s
meaning.
18
Equally concerning are the interpretative historical rules laid down in
Bruen, for they appear to stack the constitutional deck against firearms regulations
moving forward.
19
Even worse, these interpretative rules blatantly set aside even the
appearance of historical accuracy, objectivity, and transparency, and therefore, if
adopted by the lower courts wholesale, will assuredly undermine the legitimacy of
Second Amendment jurisprudence moving forward.
20
The way this author sees it,
13
Id. at 2128, 2136, 2137–38 (noting the importance of the Second Amendment’s “public
understanding”). But see Randy E. Barnett & Lawrence B. Solum, Originalism after Dobbs,
Bruen, and Kennedy: The Role of History and Tradition, N
W. L. REV. (forthcoming 2023)
(manuscript at 23), papers.ssrn.com/sol3/papers.cfm?abstract_id=4338811 (noting that
while the “core holding of Bruen rests on an originalist foundation . . . the historical analogue
test is an implementing rule that is not justified by originalist reasoning.”).
14
Bruen, 142 S. Ct. at 2127–28; Cornell, supra note 6.
15
See Eric Rubin, Law of the Gun: Unrepresentative Cases and Distorted Doctrine, 107
IOWA L. REV. 173, 179 (2021) (showing how prior to Bruen, the Supreme Court analogized gun-
related issues by inserting “arbitrary discretion, not objective certitude, into judicial analysis”);
Bruen, 142 S. Ct. at 2122–28.
16
See Lisa Vicens & Samuel Levander, The Bruen Majority Ignores Decision’s Empirical
Effects, SCOTUS
BLOG (July 8, 2022), www.scotusblog.com/2022/07/the-bruen-
majority-ignores-decisions-empirical-effects/.
17
See Bruen, 142 S. Ct. at 2127–28.
18
See Charles, Bruen, Analogies, and the Quest for Goldilocks History, supra note 6.
19
See Jake Charles, The Supreme Court’s Big Second Amendment Decision is Wreaking
Havoc on Gun Safety Laws,
SLATE (Oct. 7, 2022), slate.com/news-and-
politics/2022/10/federal-judge-strikes-down-most -of-new -yorks-concealed-carry-limits-citing-
the -supreme-court.html (discussing how some lower courts are striking down common sense
firearms regulations in the wake of Bruen); Joseph Blocher & Darrell A.H. Miller, A Supreme
Court Head-Scratcher: Is a Colonial Musket ‘Analogous’ to an AR-15?,
N.Y. TIMES (July 1,
2022), www.nytimes.com/2022/07/01/opinion/guns-supreme-court.html (“[T]he court’s
own application of its historical test threatens to create a one-way ratchet in favor of ever more
expansive gun rights.”).
20
See Charles, The Supreme Court’s Big Second Amendment Decision is Wreaking Havoc
on Gun Safety Laws, supra note 19.
4https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 627
Bruen has created a new, fugazi Second Amendment.
21
And by fugazi, what is meant
is that the Second Amendment, at least as articulated by Bruen, is historically ruined
and fake.
More than a decade ago, in an article for the Fordham Urban Law Journal on the
Supreme Court’s opinion in McDonald v. City of Chicago, this author explained how
the Second Amendment was facing a historiographical crisis of sorts.
22
The article
detailed how the broad, gun-rights centric interpretation of the Second Amendment
first came to historical prominence, subsequently latched itself onto our public,
political, and legal discourse, and then continued to thrive in law reviews despite many
highly respected historians having shown it to be an academic embarrassment.
23
In
doing so, the article posited the following questions to the Supreme Court and wider
federal judiciary: “Which end of the historical spectrum is to guide future [Second
Amendment] opinions [following McDonald]? Does the evidence have to gain the
support of the historical community? Does it have to be clear and convincing, or does
it merely have to be circumstantial and plausible through hypothetical word
association?”
24
Ultimately, the article contended that if the federal courts were serious
about the legitimacy of Second Amendment jurisprudence moving forward, as well as
the legitimacy of other history-based jurisprudence, it was crucial that historical
consciousness be maintained.
25
And by historical consciousness, what was meant was
that federal courts needed to first understand the Second Amendment’s “historical
origins and sins before importing the past for use in the present.”
26
In other words,
“the past must be understood by its own terms and on the face of the record, not what
can be inferred or created.”
27
And to be clear, the article noted that “historical
consciousness” is not the same as using one’s “historical imagination.”
28
The
former—historical consciousness—is presumed jurisprudentially legitimate because
it is based on “total historical context, a substantiated evidentiary foundation, and
being true as to what the historical record provides.”
29
Conversely, the latter—
historical imagination—is primarily “theoretical,” and therefore “can be dangerous in
21
See Nelson Lund, Bruen’s Preliminary Preservation of the Second Amendment, 23
F
EDERALIST SOC’Y REV. 280, 283 (2022).
22
See generally Patrick J. Charles, The Second Amendment in Historiographical Crisis: Why
the Supreme Court Must Reevaluate the Embarrassing “Standard Model” Moving Forward, 39
F
ORDHAM URB. L.J. 1727, 1729–30 (2012).
23
Id. at 1733.
24
Id. at 1730.
25
See id. at 1749.
26
Id. at 1855.
27
Id.
28
Id.
29
Id.
5Published by EngagedScholarship@CSU, 2023
628 CLEVELAND STATE LAW REVIEW [71:623
terms of building a historically objective foundation” from which to jurisprudentially
reason.
30
This Article will expound on how the Supreme Court’s opinion in Bruen ignored
this author’s plea for a historically conscious Second Amendment, and in doing so has
created a fugazi historiographical crisis of its own making. To highlight Bruen’s
historical flaws, this Article will first examine and unpack several of the majority’s
history-based arguments and justifications. This Article will then expound on why the
majority’s text, history, and tradition guidance create several problems for the lower
courts moving forward, including the soon to be highly contested “sensitive places”
doctrine. This Article is broken into three parts. Part II critically examines how and
why the Supreme Court’s opinion in Bruen is historical fugazi.
31
Part III then critically
examines Bruen’s hypocritical approach to text, history, and tradition, and how said
approach ultimately facilitates analytical double standards.
32
Lastly, Part IV offers the
lower courts (and hopefully the Supreme Court) some guidance on objectively
resolving the many unanswered text, history, and tradition questions left in the wake
of Bruen, and then applies that guidance to the “sensitive places” doctrine.
33
II.
BRUEN AND THE SECOND AMENDMENT AS HISTORICAL FUGAZI
The intersection between history and the law is long and complicated. The ways
in which lawyers, legal scholars, and jurists have used the former to interpret the latter
are voluminous.
34
Of course, not all uses of history are equal.
35
There are countless
instances of lawyers, legal scholars, and jurists using and abusing historical evidence
30
Id.
31
See infra Part II.
32
See infra Part III.
33
See infra Part IV.
34
See Robert W. Gordon, The Arrival of Critical Historicism, 49 STAN. L. REV. 1023, 1023
(1997); Martin H. Redish, Interpretivism and the Judicial Role in a Constitutional Democracy,
19 H
ARV. J.L. & PUB. POL’Y 525, 531 (1996); Mark V. Tushnet, Following the Rules Laid
Down: A Critique of Interpretivism and Neutral Principles, 96 H
ARV. L. REV. 781, 793 (1983);
Raoul Berger, Mark Tushnet’s Critique of Interpretivism, 51 G
EO. WASH. L. REV. 532, 533
(1983); Robert W. Gordon, Historicism in Legal Scholarship, 90 Y
ALE L.J. 1017, 1024 (1981);
Joh n H. Ely, Constitutional Interpretivism: Its Allure and Impossibility, 53 I
ND. L.J. 399, 432
(1977); Roger S. Ruffin, The Constitution and the Dilemma of Historicism, 6 S
AN DIEGO L.
REV. 171, 171–82 (1969); John P. Reid, Legal History, 1966 ANN. SURV. AM. L. 669, 669–86
(1966); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 S
UP. CT. REV. 119,
121– 22 (1965); Paul Murphy, Time to Reclaim: The Current Challenge of American
Constitutional History, 69 A
M. HIST. REV. 64, 64–76 (1963).
35
For some of the earliest criticisms, see Julius Goebel, Jr., Constitutional History and
Constitutional Law, 38 C
OLUM. L. REV. 555, 556 (1938); Charles A. Beard, The Act of
Constitutional Interpretation, 1 N
AT’L L. GUILD Q. 9, 10– 12, 16 (1937). For a larger discussion
on the problems associated with history-in-law, P
ATRICK J. CHARLES, HISTORICISM,
ORIGINALISM, AND THE CONSTITUTION: THE USE AND ABUSE OF THE PAST IN AMERICAN
JURISPRUDENCE 5–28 (2014).
6https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 629
to achieve desired outcomes.
36
There are also plenty of instances where lawyers, legal
scholars, and jurists, albeit in good faith, have misinterpreted or misapplied history.
37
The point to be made is that the simple act of invoking history to interpret the law does
not in itself make an interpretation of the law legitimate.
38
Rather, as historians and
legal scholars have consistently noted over the years, the legitimacy of utilizing history
for law largely depends on how evidence is marshalled and invoked, whether the
invocation is accurate, objective, and transparent, and there is indeed a relationship
between the historical evidence being invoked and the law or legal question at hand.
39
And assuming that the historical evidence is being marshalled and invoked honorably,
it is well-settled that the more historical facts and truths that are harnessed, the more
accurate and legitimate any follow-on historical or legal analysis will be.
40
Herein lies the problem with Bruen. History was not invoked honestly or
honorably, and therefore the jurisprudence that will flow from it will be arguably
illegitimate, particularly in the context of history-in-law—that is, the study of how the
law has evolved in a particular area; what events and factors caused the law to evolve;
and how, if at all, this history is important when adjudicating legal questions.
41
This
criticism of Bruen is not to suggest that this author does not support recognizing any
Second Amendment rights outside the home.
42
This author does and has stated as
much several times.
43
What this author takes serious issue with is the lengths in which
36
See, e.g., Jeffrey S. Sutton, The Role of History in Judging Disputes About the Meaning of
the Constitution, 41
TEX. TECH L. REV. 1173, 1180–82 (2009); Buckner F. Melton, Jr., Clio at
the Bar: A Guide to Historical Method for Legalists and Jurists, 83 M
INN. L. REV. 377, 384,
426
(1998); CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 192, 196
(1969).
37
See Kelly, supra note 34; see also Amanda L. Taylor et al., A Dialogue with Federal
Judges on the Role of History in Interpretation, 80
GEO. WASH. L. REV. 1889, 1890 (2012).
38
See, e.g., Patrick J. Charles, History-in-Law, Mythmaking, and Constitutional Legitimacy,
63 C
LEV. ST. L. REV. 23, 27– 28 (2014); Helen Irving, Constitutional Interpretation, the High
Court, and the Discipline of History, 41
FED. L. REV. 95, 101, 122 (2013).
39
See, e.g., William M. Wiecek, Clio as Hostage: The United States Supreme Court and the
Uses of History, 24 C
AL. W. L. REV. 227, 266–67 (1987); William E. Nelson, History and
Neutrality in Constitutional Adjudication, 72 V
A. L. REV. 1237, 1243–47 (1986); PAUL W.
KAHN, LEGITIMACY AND HISTORY: SELF-GOVERNMENT IN AMERICAN CONSTITUTIONAL THEORY
140 (1992).
40
Charles, History-in-Law, supra note 38, at 37–38; see also Julius Goebel, Jr., Ex Parte
Clio, 54 C
OLUM. L. REV. 450, 451 (1954) (“The writing of history requires maximum effort in
the discovery of evidence and the utmost candor in presentation, for in no other way can the
interests of truth be served. Only when these obligations are first discharged should the art of
the interpreter be exercised.”).
41
See Charles, History-in-Law, supra note 38, at 42.
42
Charles, The Faces of the Second Amendment Outside the Home, Take Two, supra note 3,
at 480.
43
See, e.g., Patrick J. Charles, The Second Amendment and the Basic Right to Transport
Firearms for Lawful Purposes, 13 C
HARLESTON L. REV. 125, 143–71 (2019) (outlining how the
law has generally allowed for transporting of weapons); Charles, The Faces of the Second
7Published by EngagedScholarship@CSU, 2023
630 CLEVELAND STATE LAW REVIEW [71:623
the Bruen majority went to embrace academically poor and unsubstantiated history,
and then package and present it to the American people as viable.
44
It is clearly not.
45
And it is not as if the Bruen majority was unaware that it was putting forward what
one would congenially refer to as ‘questionable’ history. There are reams of
scholarship that show how for more than five decades, a small contingent of writers
have willfully and repeatedly distorted historical evidence in the Second Amendment
context and, in the process, put forth countless baseless historical claims—claims no
less that Bruen accepted as historically viable.
46
By this author’s count, there are more
than a dozen examples in Bruen.
47
However, for the sake of brevity, this Article will
only highlight the three that this author believes are the most egregious—the
majority’s analysis of 1328 Statute of Northampton, Massachusetts Model type armed
carriage laws, and the alleged non-existence of discretionary licensing regimes come
Reconstruction.
48
A. Statute of Northampton Fugazi
According to the Bruen majority, “by the time Englishmen began to arrive in
America in the early 1600s, the public carry of handguns was no longer widely
proscribed.”
49
Allegedly, come that time, the 1328 Statute of Northampton prohibition
on going armed in public places, as well as several later in time royal proclamations
Amendment Outside the Home, Take Three, supra note 9, at 223–24 (noting it was generally
accepted in the nineteenth and early twentieth centuries that armed carriage laws “[c]ould not
completely extinguish individuals from exercising their right to self-defense in extreme cases”);
Patrick J. Charles, The Faces of the Second Amendment Outside the Home: History versus
Ahistorical Standards of Review, 60 C
LEV. ST. L. REV. 1, 43, 35–36 (2012) (noting that the
prosecutorial scope of the Statute of Northampton should not be construed “[a]s prohibiting the
transport of arms . . . for lawful purposes,” nor the transporting of firearms to the shooting range,
to one’s home or business, for government sanctioned militia service, and for purchase or sale);
id. at 19 (noting that English prohibitions on “[g]oing armed did not extend to the realm’s
unpopulated and unprotected enclaves”).
44
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2122–28 (2022).
45
See supra note 6.
46
See, e.g., Patrick J. Charles, The Invention of the Right to ‘Peaceable Carry’ in Modern
Second Amendment Scholarship, 2021 U. I
LL. L. REV. ONLINE 195, 209– 10 (2021); Saul
Cornell, History, Text, Tradition, and the Future of Second Amendment Jurisprudence: Limits
on Armed Travel Under Anglo-American Law, 1688–1868, 83 L.
& CONTEMP. PROBS. 73, 74
(2020); A
RIGH T TO BEAR ARMS?: THE CONTESTED ROLE OF HISTORY IN CONTEMPORARY
DEBATES ON THE SECOND AMENDMENT 3–12 (Jennifer Tucker et al. eds., 2019); Charles, The
Second Amendment in Historiographical Crisis, supra note 22, at 1748–49; Reva B. Siegel,
Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 H
ARV. L. REV. 191,
193– 96 (2008).
47
See Bruen, 142 S. Ct. at 2127–28.
48
Id. at 2139–54.
49
Id. at 2140.
8https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 631
reinforcing this rule of law, were effectively null and void.
50
In its place, a quasi-right
to peaceably carry firearms was born.
51
What substantiated evidence did the Bruen
majority provide to support its historical conclusion? Not much.
52
Just one obscure
1686 English case—Rex v. Knight—a case that was never interpreted as changing the
law on armed carriage until the mid-1970s with the advent of the gun-rights centric
Second Amendment.
53
In 1328, English Parliament enacted the Statute of Northampton.
54
The Statute
contained several legal reforms, including establishing the office of the Justice of the
Peace, unifying the kingdom under one body of law, the purging of corruption within
local government, and restoring peace and order.
55
And the principal means through
which English peace and order were maintained was the Statute’s general prohibition
on armed carriage (with some exceptions) in the public concourse.
56
Not only does
the Statute’s text confirm this,
57
but so too does several centuries of royal
proclamations.
58
It is also worth noting that the Statute’s prohibition on going armed in the public
concourse was not legislatively fashioned out of thin air. It was borrowed from several
preceding royal proclamations that sought to limit armed violence.
59
In 1320, for
instance, a royal proclamation was issued in the town of Oxford following several
armed assaults on the university’s clerks, scholars, and masters.
60
The chancellor
requested that the “King’s peace” be enforced and the “bearing of arms . . . be
completely forbidden, by the laity as well as clerks, and that the chancellor, in default
50
Id. at 2141–42.
51
Id. at 2141.
52
Id. at 2127–28.
53
Id. at 2124.
54
Saul Cornell, The Right to Keep and Carry Arms in Anglo-American Law: Preserving
Liberty and Keeping the Peace, 80 L.
& CONTEMP. PROBS. 11, 18 (2017).
55
See Anthony Verduyn, The Politics of Law and Order During the Early Years of Edward
III, 108 E
NG. HIST. REV. 842, 849 (1993); Bertha H. Putnam, The Transformation of the Keepers
of the Peace into the Justices of the Peace 1327–1380, 12 T
RANSACTIONS ROYAL HIST. SOC’Y
19, 21–26 (1929).
56
Cornell, The Right to Keep and Carry Arms in Anglo-American Law: Preserving Liberty
and Keeping the Peace, supra note 54, at 18–19, 21.
57
The Statute of Northampton, 2 Edw. 3, c. 3 (1328) (Eng.) (stipulating that no one shall
bring “force in affray of peace, nor to go nor ride armed by day or night, in fairs, markets, nor
in the presence of the King’s Justices, or other ministers, nor in no part elsewhere”) (emphasis
added).
58
Charles, The Faces of the Second Amendment Outside the Home: History versus
Ahistorical Standards of Review, supra note 43, at 13–23 and accompanying notes.
59
Id. at 27.
60
Charles, The Second Amendment in Historiographical Crisis, supra note 22.
9Published by EngagedScholarship@CSU, 2023
632 CLEVELAND STATE LAW REVIEW [71:623
of the mayor, may punish them on all occasions which are necessary.”
61
The King’s
Council replied and instructed the Mayor to “forbid any layman except town officials
to wear arms in the town.”
62
Six years later, on April 28, 1326, another royal
proclamation was issued by Edward II “prohibiting any one going armed without his
licence, except the keepers of his peace, sheriffs and other ministers, willing that any
one doing the contrary should be taken by the sheriff or bailiffs or the keeps of his
peace and delivered to the nearest gaols . . . .”
63
Over the next three centuries, historians know that the tenets of Statute of
Northampton survived both through royal proclamation and legal commentary.
64
As
it pertains to the former, it was Elizabeth I who was responsible for extending the
Statute’s prohibition to modern weaponry, including firearms, pistols, and concealable
61
Id. at 1806.
62
Id. (emphasis added); see also COLLECTANEA: THIRD SERIES 119 (Oxford, Clarendon Press
1896).
63
CALENDAR OF CLOSE ROLLS, EDWARD II, A.D. 1323-1327, 560 (April 28, 1326,
Kenilworth) (H.C. Maxwell-Lyte ed., 1898). Edward II issued a similar proclamation a month
earlier. See id. at 549 (March 6, 1326, Leicester) (ordering the sheriff of York to arrest “any
man hereafter [that] go armed on foot or horseback, within liberties or without . . .”); see also 1
C
ALENDAR OF THE PLEA AND MEMORANDA ROLLS OF THE CITY OF LONDON, 1323-1364, at 15
(November 1326) (A.H. Thomas ed., 1926) (“[N]o man go armed by night or day, save officers
and other good men of the City assigned by the Mayor and Aldermen in their wards to keep
watch and preserve the peace, under penalty of forfeiture of arms and imprisonment . . . .”); id.
(“The bearing of arms is forbidden, except to the officers of the City assigned by the Mayor and
Alderman to keep watch in the Wards, and to the Hainaulters (Henuers) of the Queen, who are
accustomed to go armed in the manner of their country.”).
64
Consider for example the English translations of Anthony Fitzherbert’s influential
sixteenth-century legal treatises. Therein, the Statute of Northampton was always restated as
being enforceable in broad terms. See A
NTHONY FITZHERBERT, THE NEWE BOKE OF JUSTICES OF
PEAS, MADE BY ANTHONY FITZHERBARD JUDGE, LATELY TRANSLATED OUT OF FRENCHE INTO
ENGLYSHE 47 (1538) (“The Shyreffe may arrest men rydyng or goyng armyd, and comitte them
to pryson, there to remayne at the kynges pleasure.”); see also A
NTHONY FITZHERBERT, THE
NEWE BOKE OF JUSTYCES OF PEAS, BY A.F.K. LATELY TRANSLATED OUT OF FRENCHE INTO
ENGLYSHE 64 (1541) (“None shal go nor ryd armid by day nor by nyght, and payne to lea[ve]
their armour to the king”); id. at 346 (“Constables in the towne where they beare office, may
arrest me[n] that go or ryde armed in rayres, or markettes by daye or by nyght, and take their
armour as forfayt to the kyng, and empryson them at the kynges pleasure.”); A
NTHONY
FITZHERBERT, IN THIS BOKE IS CONTEYNED THE OFFYCES OF SHYREFFES, BAILLYFFES, OF
LIBERTYES, ESCHETOURS, COSTABLES AND CORONERS 2 (1543) (“The shyreffe may arreste men
rydynge or goyng armyd, and comyte them to pryson, there to remayne at the kynges
pleasure.”); id. at 101 (“Constables in the townes where they beare office may arreste me[n]
that go or ryde armed in fayres, or markettes by daye or by nyght, and take theyr armour as
forfayte to the kyng and imprison them at the kiges pleasure.”); A
NTHONY FITZHERBERT, IN THIS
BOKE IS CONTEYNED THE OFFYCE OF SHYREFFES, BAILLIFFES OF LIBERTIES, ESCHETOURS,
COSTABLES AND CORONERS 2 (1545) (“The Shyreffe may arreste men rydynge or goying
armyed, and comyte them to pryson, there to remayne at the kynges pleasure.”); id. at 100
(“Constables in the townes where they beare office, may arreste me[n] that go or ryde armed in
fayres, or markettes by daye or by nyght, and take theyre armour as forfayte to the kyng and
imprison them at the kings pleasure.”).
10https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 633
weapons.
65
Elizabeth I’s successor, James I reinforced this rule of law,
66
but it was
Elizabeth I’s amendment that legal commentators took notice of from the late
sixteenth-century through the eighteenth-century. For instance, William Lambarde,
arguably the most prominent lawyer of the Elizabethan period, described the Statute
of Northampton in the following terms:
65
See CALENDAR OF STATE PAPERS DOMESTIC: ELIZABETH, 1601-3, WITH ADDENDA 1547–
65,
at 214 (June 1602) (Mary Anne Everett Green ed., 1870); BY THE QUENNE ELIZABETH I: A
PROCLAMATION AGAINST THE CARRIAGE OF DAGS, AND FOR REFORMATION OF SOME OTHER
GREAT DISORDERS 1 (Christopher Barker, London 1594); BY THE QUENNE ELIZABETH I: A
PROCLAMATION AGAINST THE COMMON USE OF DAGGES, HANDGUNNES, HARQUEBUZES,
CALLIUERS, AND COTES OF DEFENCE 1 (Christopher Barker, London 1579); see also
I
NSTRUCTIONS TO THE CONSTABLES OF RYE UPON THE LATE PROCLAMATION AGAINST THE
COMMON USE OF “DAGGES, HANDGUNNES, HARQUEBUTS, CALIVERS AND COATS OF DEFENCE”
(The National Archives, East Sussex Record Office 1578-1579) (on file with author) (“Ye are
to have a dilligent care to suche as ye shall see to carry any dagges, pistolles, harquebusies,
calivers and suche leike in the stretes or other places within the liberties (excepte at the days of
common musters and to the places of exercise for the shot) and if ye fynde eny to carry eny such
peces to staie them and to cease the said peces, and them to present to Mr. Maior or one of the
jurates of your ward.”);
BY THE QUENE [ELIZABETH I], FOR AS MUCH AS CONTRARY TO GOOD
ORDER AND EXPRESSED LAWES MADE BY PARLIAMENTE IN THE XXXIII YERE OF THE RAIGNE OF
THE
QUENES MAJESTIES MOST NOBLE FATHER OF WORTHY MEMORY KYNG HENRY THE EIGHT 1
(1559) (“Many men do dayly . . . ryde with Handgonnes & Dagges, under the length of three
quarters of a yarde, whereupon have folowed occasions for sundrye lewde and evyll persons,
with such unlawfull Gonnes and Dagges now in time of peace to execute greate and notable
Robberies, and horrible murders . . . Her Majestie consyderying, with the advyse of her
Counsayle, howe beneficiall a lawe the same is, and specially at this tyme moste nedefull of
dewe execution, and howe negligently it is of late observed: Strayghtly therefore chargeth and
commandeth, not onely all maner her loving subjects fro[m] henceforth to have good and
specyall regarde to the due execution of the same Statute, and of every part thereof . . . .”).
66
BY THE [KING JAMES I]: A PROCLAMATION AGAINST THE USE OF POCKET DAGS 1 (Robert
Barker, London 1612) (“Whereas the bearing of Weapons covertly, and specially of short
Dagges, and Pistols . . . hath ever beene, and yet is by the Lawes and polic[y] of this Realme
straitly forbidden as car[r]ying with it ine[v]itable danger in the hands of desperate persons . . .
And some persons being questioned for bearing of such about them, ha[v]e made their excuse,
That being decayed in their estates, and indebted; and therefore fearing continually to be
Arrested, they weare the same for their defence against such Arrests. A case so farre from just
excuse, as it is of itselfe a grie[v]ous offence for any man to arme himselfe against Justice, and
therefore deser[v]es . . . sharpe and se[v]ere punishment. But besides this e[v]ill consequence .
. . we have just cause to pro[v]ide also against those de[v]ilish spirits, that maligning the quiet
and happiness of this Estate, may [u]se the same to more execrable endes. And therefore by this
[Due] Proclamation, We doe straitly charge and commaund all Our subjects and other persons
whatsoever, that they neither make, nor bring into this Realme, any Dagges, Pistols, or other
like short Gunnes.”); B
Y THE KING [JAMES I], A PROCLAMATION AGAINST STEELETS, POCKET
DAGGERS, POCKET DAGGES AND PISTOLS 1 (Robert Barker, London 1616) (“Wherefore it being
alwayes the more principall in Our intention to pre[v]ent, then to punish, being gi[v]en to
[u]nderstand the [u]se of Steelets, pocket Daggers, and Pocket Dags and Pistols, which are
weapons vtterly [u]nser[v]iceable for defence, Militarie practice, or other lawfull [u]se, but
odious, and noted Instruments of murther, and mischiefe; We doe straightly will and command
all persons whatsoe[v]er, that they doe not hencefoorth presume to weare or carie about them
any such Steelet or pocket Dagger, pocket Dagge or Pistoll . . . .”).
11Published by EngagedScholarship@CSU, 2023
634 CLEVELAND STATE LAW REVIEW [71:623
[I]f any person whatsoever (except the Queenes servants and ministers in her
presence, or in executing her precepts, or other offices, or such as shall assist
them and except it be upon Hue and Crie made to keep the peace, and that in
places where acts against the Peace do happen) shall be so bold, as to go, or
ride armed, by night, or by day, in Faires, Markets, or any other places: then
any Constable, or any other of the saide Officers, may take such Armour from
him, for the Queenes use, & may also commit him to the Gaole. And
therefore, it shall be good in this behalf, for the Officers to stay and arrest all
such persons as they shall find to carry Dags or Pistols, or to be appareled
with privie coates, or doublets: as by the proclamation [of Queen Elizabeth
I] . . . .
67
Lambarde’s understanding of the Statute of Northampton proved influential.
68
He
was cited, reprinted or paraphrased by a number of prominent commentators to include
Abraham Fraunce, Michael Dalton, Edward Coke, William Hawkins and others.
69
In
the case of Michael Dalton’s The Countrey Justice, it was the first restatement to use
the word “offensively.”
70
The word aptly spoke to how the Statute of Northampton
encompassed both bringing force in affray and carrying dangerous weapons in the
public concourse, to include pistols and firearms.
71
As Dalton put it:
[The peace may be enforced to] All such as shall go or ryde armed
(offensively) in Fayres, Markets, or elsewhere; or shall weare or carry any
67
WILLIAM LAMBARDE, THE DUTIES OF CONSTABLES, BORSHOLDERS, TYTHINGMEN, AND
SUCH OTHER LOWE AND
LAY MINISTERS OF THE PEACE 13– 14 (1602). For Lambarde’s earlier
restatement, see W
ILLIAM LAMBARDE, EIRENARCHA: OR THE OFFICE OF THE JUSTICES OF THE
PEACE, IN TWO BOOKES 134 (1582). For more on William Lambarde, see generally Wilfrid
Prest, William Lambarde, Elizabethan Law Reform, and Early Stuart Politics, 34 J.
BRITISH
STUD. 464, 464 (1995).
68
Patrick J. Charles, The Statute of Northampton by the Late Eighteenth Century: Clarifying
the Intellectual Legacy, 41 F
ORDHAM URB. L.J. CITY SQUARE 10, 13– 19 (2013).
69
Id.
70
MICHAEL DALTON, THE COUNTREY JUSTICE, CONTAINING THE PRACTICES OF THE JUSTICES
OF THE
PEACE OUT OF THEIR SESSIONS 142 (1618). For the influence of Dalton’s writings, see
T
HOMAS GARDEN BARNES, SHAPING THE COMMON LAW 136– 51 (2008).
71
See, e.g., 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 155 (1769)
(lumping “fire arms” with “offensive weapons”). In the 1619 edition of Dalton’s treatise the
word “Gunns” was added to the list of dangerous weapons as to read “Gunns, Daggs, or Pistols.”
M
ICHAEL DALTON, THE COUNTREY JUSTICE, CONTAINING THE PRACTICES OF THE JUSTICES OF THE
PEACE OUT OF THEIR SESSIONS 31 (1619). Dalton’s treatise Officium Vicecomitum does not
mention firearms in its Statute of Northampton restatement. See M
ICHAEL DALTON, OFFICIUM
VICECOMITUM: THE OFFICE AND AUTHORITIE OF SHERIFS 14 (1623) (“Also everie sherife . . . may
and ought to arrest all such persons as goe or ride armed offensively, either in the presence of
the sherife, or in Faires or Markets or elsewhere in affray of the Kings people, and may commit
them to prison, to remaine at the king’s pleasure . . . and also the Sherife may seize and take
away their armour to the Kinds use, and prize the same by the oaths of some present . . . And
yet they themselves (fcz. The Sherife and his officers) may lawfully beare armour and weapons
. . . .”). However, Dalton did cite to his treatise The Countrey Justice where firearms are listed
as prohibited. Id.
12https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 635
Dagges or Pistolls charged: it seemeth any Constable seeing this, may arrest
them and may carrie them before the Justice of the Peace. And the Justice
may binde them to the peace, yeah though those persons were so armed or
weaponed for their defence; for they might have had the peace against the
other persons: and besides, it striketh a feare and terror into the Kings
subjects.
72
What Dalton and Lambarde’s restatements inform is that by the early-to-mid-
seventeenth century, England’s preeminent legal minds understood that the act of
carrying dangerous weapons was sufficient to amount an affray, “strike a feare”
73
or
“striketh a feare.”
74
As Ferdinando Pulton, the prominent Elizabethan legal editor put
it, the Statute of Northampton intended “that he which in a peaceable time doth ride
or goe armed, without sufficient warrant or authoritie so to doe, doth meane to breake
the peace, and to doe some outrage” because the law will “always [be] ready to defend
every member of the common weal[th], from taking or receiving of force or violence
from others . . . .”
75
In other words, the Statute of Northampton served “not onely to
preserve peace, & to eschew quarrels, but also to take away the instruments of fighting
and batterie, and to cut off all meanes that may tend in affray or feare of the people.”
76
According to several English legal treatises, this understanding of the Statute of
Northampton as a prohibition on going armed in the public concourse continued into
the early eighteenth century.
77
Bruen, however, failed to acknowledge most of this
history.
78
The Bruen majority accomplished this by casting aside inconvenient,
contrarian historical evidence as irrelevant or a historical bridge too far, and then
pronouncing that a right to peaceable carry firearms was generally understood by
Englishmen far and wide.
79
How could the Bruen majority, or any observer for that matter, be so sure of this
historical pronouncement when there are several legal commentaries that inform
otherwise? According to Bruen, the answer principally lies with the 1686 case Rex v.
Knight, wherein Sir John Knight was prosecuted for both walking about the streets of
Bristol and entering a church carrying a firearm.
80
Knight was ultimately acquitted by
72
DALTON, supra note 70 (emphasis added).
73
LAMBARDE, supra note 67, at 134.
74
DALTON, supra note 70.
75
FERDINANDO PULTON, DE PACE REGIS ET REGNI VIZ 4 (1609).
76
Id. at 5.
77
WILLIAM FORBES, THE DUTY AND POWERS OF JUSTICES OF PEACE, IN THIS PART OF GREAT-
B
RITAIN CALLED SCOTLAND 26 (1707); JAMES BOND, A COMPLEAT GUIDE FOR JUSTICES OF
PEACE 42, 181 (3d ed., London 1707); JOSEPH KEBLE, AN ASSISTANCE TO THE JUSTICES OF THE
PEACE FOR THE EASIER PERFORMANCE OF THEIR DUTY 147, 410, 646 (2d ed., 1689).
78
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2140 (2021).
79
Id.
80
Id. at 2141–42; Sir John Knight’s Case, 87 Eng. Rep. 75 (1686); Rex v. Knight, 90 Eng.
Rep. 330 (1686).
13Published by EngagedScholarship@CSU, 2023
636 CLEVELAND STATE LAW REVIEW [71:623
a jury.
81
As to why Knight was acquitted remains a mystery.
82
Knight was, however,
placed on a bond in accordance with the surety of the peace process.
83
Yet despite
historians being unable to piece together why exactly Knight was acquitted, the Bruen
majority saw no issue with historically concluding that Rex v. Knight forever changed
the prosecutorial scope of the Statute of Northampton by requiring a person to carry
arms with “evil-intent.”
84
And the Bruen majority arrived at this conclusion not
because there was any post-1686 historical evidence of the founders—or anyone for
that matter up through the mid-nineteenth century—interpreting Rex v. Knight in this
fashion or declaring the existence of a right to peaceably carry firearms.
85
No, the
Bruen majority arrived at its “evil-intent” interpretation because it was deemed
historically “plausible”—that is in line with how they wanted to interpret the Second
Amendment.
86
In the Bruen majority’s own words: “To the extent that there are
multiple plausible interpretations of Sir John Knight’s Case, we will favor the one that
is more consistent with the Second Amendment’s command.”
87
Pause and consider the Court’s pronouncement for a moment. What the Bruen
majority is essentially saying is that whenever a federal court is faced with a question
concerning the historical scope of a constitutional right, and the respective parties to
the case advance competing interpretations of a past event that may or may not shed
light on said right, the interpretation that the court thinks best compliments the
81
For a full history, see Tim Harris, The Right to Bear Arms in English and Irish Historical
Context, A
RIGHT TO BEAR ARMS? 23– 27 (2019).
82
Bruen, 142 S. Ct. at 2183 (Breyer, J., dissenting).
83
NARCISSUS LUTTRELL, A BRIEF HISTORICAL RELATION OF STATE OF AFFAIRS FROM
SEPTEMBER 1678 TO APRIL 1714 389 (1857); 3 THE ENTRING BOOK OF ROGER MORRICE 1677-
1691:
REIGN OF JAMES II 311 (Mark Goldie et al. eds., 2007). For some useful history on
development of the surety of peace process, see Susanne Jenks, Writs De Minis and Supplicavit:
The History of Surety of the Peace, in L
AWS, LAWYERS AND TEXTS: STUDIES IN MEDIEVAL LEGAL
HISTORY IN HONOR OF PAUL BRAND 253– 77 (2012); David Feldman, The King’s Peace, the
Royal Prerogative and Public Order: The Roots and Early Development of Binging Over
Powers, 47
CAMBRIDGE. L.J. 101 (1988).
84
Bruen, 142 S. Ct. at 2141, n.11 (2021). Two years earlier, Justice Clarence Thomas, the
Bruen majority opinion’s author, had already hinted his support for this “evil-intent”
interpretation of Rex v. Knight. See Rogers v. Grewal, 140 S. Ct. 1865, 1870–71 (2020)
(Thomas, J., dissenting).
85
From the time Rex v. Knight was decided in 1686 until the mid-nineteenth century, there
exists no substantiated evidence of anyone interpreting the case as a watershed moment in arms
bearing history, including within the American Colonies and subsequent United States. The
earliest that Knight’s Case appears in American legal literature is 1843. See State v. Huntly, 25
N.C. 418, 421 (1843) (citing Knight’s Case only for the non-controversial proposition that “the
Statute of Northampton was made in affirmance of the common law”); see also J
OEL PRENTISS
BISHOP, COMMENTARIES ON THE LAWS OF STATUTORY CRIMES § 784 (1873) (citing Knight’s
Case in 1873 only for the non-controversial proposition
that the “offence created by this statute
is said in England to have been such also by the earlier common law”).
86
Bruen, 142 S. Ct. at 2141 n.11.
87
Id. (emphasis added).
14https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 637
professed original meaning or understanding of the right is declared the historical
winner.
88
This is neither an objective nor honest approach to history-in-law. It is utter
fugazi. And what makes it particularly cringeworthy—as a matter of both historical
and constitutional interpretation—is that the Bruen majority did not express the
slightest reservation in laying down this rule.
89
Not even the historical fact that the
Second Amendment was debated, adopted, and ratified more than a century after Rex
v. Knight dissuaded them. This is the textbook definition of what is known as
“Whiggish’ history”—that is advancing a historical interpretation of events primarily
for the sake of supporting one’s modern ideological predisposition.
90
As the twentieth-
century English historian Herbert Butterfield put it, “the most fallacious thing in the
world is to organize our historical knowledge upon an assumption without realizing
what we are doing, and then to make inferences from that organization and claim that
these are the voice of history.”
91
And what makes Bruen’s interpretation of Rex v. Knight especially Whiggish is
the fact that historians have repeatedly shown it to be completely and utterly
fabricated.
92
It cannot be emphasized enough that from the time Rex v. Knight was
decided in 1686 to the mid-nineteenth century there is not one instance to be found—
not one case, legal summary, legal commentary, newspaper or journal article, nor
correspondence—where the case was discussed or cited as changing the law of armed
carriage, and certainly not for establishing a common law or constitutional right to
peaceable armed carriage in the public concourse.
93
Even worse is the fact that the
interpretation of Rex v. Knight advanced in Bruen was completely engineered by gun
rights advocates in the mid-1970s
94
based on nothing more than the parsing and
88
See id.
89
Id. at 2156.
90
See generally HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY (1950).
91
Id. at 23–24.
92
See Harris, supra note 81, at 22–27.
93
Rex v. Knight is indeed cited in William Hawkins’ 1716 A Treatise of the Pleas of the
Crown. 1 W
ILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 136, ch. 63, § 9 (1716).
However, Hawkins’ text accompanying this citation does not remotely endorse a right to carry
dangerous weapons in public place. Id. Moreover, although some of the founding fathers
maintained copies of the English Reports and Hawkins’ treatise, the fact remains that there is
no evidence of anyone interpreting either Rex v. Knight or Hawkins’ treatise as embodying a
right to peaceable carry.
94
National Rifle Association (NRA) lawyer David I. Caplan was the first to advance this
interpretation. See David I. Caplan, Restoring the Balance: The Second Amendment Revisited,
5
FORDHAM URB. L.J. 31, 32 (1976); DAVID I. CAPLAN, THE SECOND AMENDMENT: A BASIC
UNDERPINNING IN THE CONSTITUTIONAL SYSTEM OF CHECKS AND BALANCES 2 (1975) (on file
with author). Other gun rights advocates were quick to parrot this interpretation. See, e.g., David
T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment,
9
HARV. J. L. & PUB. POL’Y 559, 565 (1986); Stephen P. Halbrook, The Right to Bear Arms in
the First State Bills of Rights: Pennsylvania, North Carolina, Vermont, and Massachusetts, 10
VT. L. REV. 255, 311 (1985); Richard E. Gardiner, To Preserve Liberty—A Look at the Right to
Keep and Bear Arms, 10
N. KY. L. REV. 63, 71– 72 (1982); Robert Dowlut & Janet A. Knoop,
15Published by EngagedScholarship@CSU, 2023
638 CLEVELAND STATE LAW REVIEW [71:623
explaining away of text from the incomplete English Reports.
95
And what makes this
so historically problematic is that until the mid-eighteenth century the English Reports
were only partial legal summaries,
96
and therefore unreliable when reconstructing
cases.
97
In other words, prior to the mid-eighteenth century, the English Reports were
never intended to be comprehensive case studies and were never used as such.
98
Rather, they served merely to instruct legal practitioners and students on the intricacies
of pleading.
99
To be clear, Bruen’s poor choice of history in Rex v. Knight proved every
originalism critic that they were right. For decades, ever since originalism began
blossoming in conservative legal circles, countless critics—jurists, legal scholars, and
historians alike—have warned that originalism would ultimately result in subjective,
ahistorical, and ideologically driven legal outcomes.
100
Bruen’s interpretation of Rex
v. Knight is now forever Exhibit A. It demonstrates that for originalists like Associate
Justice Clarence Thomas, and assuredly many others of the bench and bar, originalism
is not so much about getting history right or preserving the past.
101
It never was.
102
It
is about selectively invoking the authoritative power of history in a manner that
justifies one’s own ideological predilections.
103
The irony of a 6-3 conservative
State Constitutions and the Right to Keep and Bear Arms, 7 OKLA. CITY U. L. REV. 177, 202
(1982); Stephen P. Halbrook, The J urisprudence of the Second and Fourteenth Amendments, 4
GEO. MASON L. REV. 1, 7 (1981).
95
See Charles, The Invention of the Right to ‘Peaceable Carry’ in Modern Second
Amendment Scholarship, supra note 46, at 202–06.
96
Id. at 206.
97
See NEIL DUXBURY, THE NATURE AND AUTHORITY OF PRECEDENT 53– 54 (2008).
98
Id. at 51.
99
Id. at 52–56 (2008). For more on law reporting in England up through the seventeenth
century, see L.W.
ABBOTT, LAW REPORTING IN ENGLAND 1485-1585 1 (1973); LAW REPORTING
IN
BRITAIN: PROCEEDINGS OF THE ELEVENTH BRITISH LEGAL HISTORY CONFERENCE (Chantal
Stebbings ed., 1995).
100
See, e.g., Bret Boyce, The Magic Mirror of “Original Meaning”: Recent Approaches to
the Fourteenth Amendment, 66 M
E. L. REV. 29, 36 (2013); Eric Berger, Originalism’s Pretenses,
16 U.
PA. J. CONST. L. 329, 335– 36 (2013); Jamal Greene, Four teenth Amendment Originalism,
71 M
D. L. REV. 978, 980 (2012); Jack Rakove, Joe the Ploughman Reads the Constitution, or,
The Poverty of Public Meaning Originalism, 48 S
AN DIEGO L. REV. 575, 582 (2011); Saul
Cornell, The People’s Constitution vs. the Lawyer’s Constitution: Popular Constitutionalism
and the Original Debate over Originalism, 23 Y
ALE J. L. & HUMAN. 295, 335 (2011).
101
See generally Berger, Originalism’s Pretenses, supra note 100.
102
Kelly, supra note 34, at 131–32 (noting back in 1963 how courts will begin to argue for
a “return to historically discovered ‘original meaning’” as “an almost perfect excuse for
breaking precedent,” but that the professed “discovery,” upon examination, will ultimately
“prove to be illusory or to involve distinct elements of law-office history in its creation”).
103
See generally Patrick J. Charles, The ‘Originalism is Not History’ Disclaimer: A
Historian’s Rebuttal, 63 C
LEV. ST. L. REV. ET CETERA 1 (2015).
16https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 639
majority, which leans heavily in support of religious freedom,
104
positively citing a
1686 case where the defendant, Sir John Knight, was exercising and advocating for
the religious intolerance of Catholics
105
only confirms that history is nothing more
than a pawn, a jurisprudential football if you will, in the debate over the Constitution’s
meaning.
106
And the Bruen majority did not even have to historically weigh in on Rex v.
Knight.
107
They could have easily gone the way of the Ninth Circuit Court of Appeals
and punted on the subject,
108
all without calling into question the legitimacy of their
follow-on analysis.
109
In other words, the Bruen majority could have laid out the
parties’ competing historical interpretations of Rex v. Knight, deemed both somewhat
plausible, and then refused to weigh in.
110
But no, the Bruen majority thought it was
jurisprudentially wise to choose one historical interpretation over the other, and then
build on that choice by bending even more history, to include the events surrounding
the 1689 English Declaration of Rights,
111
Williams Hawkins’s 1716 treatise Pleas of
the Crown,
112
and then selectively citing one, rather obscure legal treatise to support
the unsubstantiated “evil-intent” interpretation of the Statute of Northampton.
113
104
See Carson v. Makin, 142 S. Ct. 1987 (2022); Kennedy v. Bremerton School District, 142
S. Ct. 2407 (2022).
105
See Harris, supra note 81, at 22–27.
106
The same could be said of the Supreme Court’s recent opinion overturning Roe v. Wade,
wherein the 5-4 conservative majority positively cite Matthew Hale’s and Henry Bracton’s
treatises, yet in Bruen, the same five justices outright dismissed any pre-1686 evidence of the
1328 Statute of Northampton as non-persuasive. Compare Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228, 2249–50 (2022), with N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142
S. Ct. 2111, 2139–41 (2021).
107
See, e.g., Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021) (en banc).
108
Id. at 791.
109
Patrick J. Charles, Judging the Ninth Circuit’s Use of History in Young v. Hawaii, DUKE
SECOND THOUGHTS BLOG (Apr. 16, 2021), firearmslaw.duke.edu/2021/04/judging-the -
ninth-circuits-use- of-history-in-young-v-hawaii/.
110
See, e.g., Young, 992 F.3d at 790–91.
111
Compare Bruen, 142 S. Ct. at 2141–42 (selectively quoting the work of historian Lois G.
Schwoerer), with L
OIS SCHWOERER, GUN CULTURE IN EARLY MODERN ENGLAND 156– 70 (2016);
Lois G.
Schwoerer, English and American Gun Rights, A RIGHT TO BEAR ARMS? 139– 44 (2019).
See also Harris, supra note 81, at 27–33; C
HARLES, ARMED IN AMERICA, supra note 3, at 44–62.
112
Compare Bruen, 142 S. Ct. at 2142 (selectively quoting Hawkins’s treatise to conclude
that the Statute of Northampton maintained a terrifying or evil -intent requirement), with
C
HARLES, ARMED IN AMERICA, supra note 3, at 115–16 (examining Hawkins’s analysis of the
Statute of Northampton wholistically). See also Brief of Patrick J. Charles as Amicus Curiae in
Support of Neither Party, N.Y. State Rifle & Pistol Ass’n, Inc., Inc. v. Bruen, 142 S. Ct. 2111
(2022) (No. 20-843), at 27–29.
113
See Bruen, 142 S. Ct. at 2142 (citing Theodore Barlow, THE JUSTICE OF PEACE 12 (1745)).
This “evil -intent” interpretation is upended by several late seventeenth to mid eighteenth-
17Published by EngagedScholarship@CSU, 2023
640 CLEVELAND STATE LAW REVIEW [71:623
Except for fabricating a historical event, meaning, or interpretation out of thin air,
or falsely claiming a historical event, meaning, or interpretation never took place or
existed, deliberately building one historical inference or unsupported interpretation
upon another is the worst, most illegitimate form of Whiggish,
114
“law office
history”
115
there is. As this author wrote nearly a decade ago:
To commit a minor violation of ‘law office history’ is acceptable [given that
we are all human and make mistakes], but to [deliberately] create a domino
chain of conflicting [or unsubstantiated] history can have far reaching
[jurisprudential and societal] consequences . . . To state it another way, when
[an] interpreter chooses one conflicting [or unsubstantiated] account over
another the [interpretive] enterprise should not continue. To do otherwise is
to [actively] participate in illegitimate mythmaking.
116
Defenders of Bruen will argue that the Court’s parade of errors regarding the
Statute of Northampton’s history and enforcement is irrelevant given that the founding
generation’s understanding of the right to arms was much different than their English
forbears. Indeed, there is no disputing that the founders’ view and understanding of
the right to arms was different from their English forbears. Such is the natural path of
the law. Just consider how much different contemporary Americans view and
understand the constitutional rights of marriage, equality, and privacy compared to
their late twentieth-century counterparts. Truth be told, the law, particularly society’s
understanding of the law, almost always changes over time. The history surrounding
the abolition of slavery, the push for equal rights and privileges for Freedman, and the
subsequent push for women’s equality and rights are all historical cases in point.
This is why an honest and objective approach to history-in-law—that is the study
of how the law has evolved in a particular area, what events and factors caused the
law to evolve, and how, if at all, this history is important when adjudicating legal
questions—is so important. It is equally, if not more important than performing a
historical examination of any rule, statute, or constitutional provision at the time of its
inception.
117
Certainly, examining any law at the time of its inception is relevant.
118
It assists lawmakers, government officials, lawyers, jurists, and the people in
century legal treatises. See Charles, The Statute of Northampton by the Late Eighteenth Century,
supra note 68, at 18–20. One such treatise was the 1746 edition of Michael Dalton’s widely
read The Country Justice, which was owned by none other than John Adams. See M
ICHAEL
DALTON, THE COUNTREY JUSTICE 30, 265, 268 (1746),
archive.org/details/countryjusticeco00dalt.
114
See BUTTERFIELD, supra note 90, at 6–7, 23 –24, 100–02.
115
Kelly, supra note 34, at 122, 125, 156.
116
Patrick J. Charles, History in Law, Mythmaking, and Constitutional Legitimacy, 63 CLEV.
ST. L. REV. ET CETERA 48 (2015). See also CHARLES, HISTORICISM, ORIGINALISM, AND THE
CONSTITUTION, supra note 35, at 116 –17.
117
See, e.g., Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 472 (1897).
118
Legal History, COLUM. L. SCH., www.law.columbia.edu/areas-of-study/legal-
history (last visited Jan. 30, 2023).
18https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 641
determining a law’s purpose, meaning, and parameters.
119
However, without a true
and proper historical understanding of a law’s path, how can anyone accurately unpack
and understand any law at the time of its legislative inception? The answer is it is
almost impossible, yet this is what most textually based originalism, as well as ad hoc
‘text, history, and tradition’ tests—including those advanced in Bruen—seek to do.
They generate fugazi history.
Bruen’s analysis of the Statute of Northampton is just one example.
120
The
majority’s interpretation of the Massachusetts Model, as it turns out, is remarkably
worse.
B. Massachusetts Model Fugazi
From the early to mid-nineteenth century, several state and local jurisdictions
enacted laws that were essentially an updated version of the Statute of
Northampton.
121
Known by historians as Massachusetts Model type armed carriage
laws, and by some lawyers as “surety laws,” each stipulated something to the effect:
If any person shall go armed with a dirk, dagger, sword, pistol, or other
offensive and dangerous weapon, without reasonable cause to fear an assault
or other injury, or violence to his person, or to his family or property, he may
on complaint of any person having reasonable cause to fear an injury, or
breach of the peace, be required to find sureties for keeping the peace.
122
119
Id.
120
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2139–40 (2021).
121
Compare 2 Edw. 3, c. 3 (1328) (Eng.), with 1835 Mass. Acts 750.
122
1835 Mass. Acts 750 (emphasis added); see also THE REVISED STATUTES OF THE STATE
OF
WISCONSIN, PASSED AT THE ANNUAL SESSION OF THE LEGISLATURE COMMENCING JANUARY
13, 1858, AND APPROVED MAY 17, 1858 985 (1858) (“If any person shall go armed with a dirk,
dagger, sword, pistol or pistols, or other offensive and dangerous weapon, without reasonable
cause to fear an assault or other injury or violence to his person.”); E
DWARD C. PALMER, THE
GENERAL STATUTES OF MINNESOTA 629 (1867) (“Whoever goes armed with a dirk, dagger,
sword, pistol or pistols, or other offensive and dangerous weapon, without reasonable cause to
fear an assault or other injury or violence to his person.”); J
OHN PURDON, A DIGEST OF THE LAWS
OF
PENNSYLVANIA, FROM THE YEAR ONE THOUSAND SEVEN HUNDRED TO THE TWENTY-FIRST
DAY OF MAY, ONE THOUSAND EIGHT HUNDRED AND SIXTY-ONE 250 (Frederick C. Brightly Esq.
ed., 9th ed.1862) (“If any person, not being an officer on duty in the military or naval service of
the state or of the United States shall go armed with a dirk, dagger, sword or pistol, or other
offensive or dangerous weapon, without reasonable cause to fear an assault or other injury or
violence.”); T
HE REVISED STATUTES OF THE STATE OF MAINE PASSED OCTOBER 22, 1840 709
(1841) (“Any person, going armed with any dirk, dagger, sword, pistol, or other offensive and
dangerous weapon, without a reasonable cause to fear an assault on himself.”); T
HE REVISED
CODE OF THE DISTRICT OF COLUMBIA 570 (1857) (“If any person shall go armed with a dirk,
dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to
fear an assault or other injury or violence to his person.”); R
EVISED STATUTES OF THE STATE OF
DELAWARE, TO THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND FIFTY-TWO 333
(1852) ("Any justice of the peace may also cause to be arrested . . . all who go armed offensively
to the terror of the people, or are otherwise disorderly and dangerous.”); T
HE STATUTES OF
19Published by EngagedScholarship@CSU, 2023
642 CLEVELAND STATE LAW REVIEW [71:623
The laws were intended to restrict the habitual carrying of dangerous weapons in
public places except in very narrow, imminent justifiable self-defense
circumstances.
123
Yet, the Bruen majority interpreted them as essentially right to carry
laws.
124
According to the majority, only if “another could make out a specific showing
of ‘reasonable cause to fear an injury, or breach of the peace’” could an individual be
restricted in their right to armed carriage.
125
What historical evidence did the Bruen
majority provide to support this conclusion? Nothing of historical substance. Rather,
as will be outlined below, the Bruen majority principally resorted to “law office
history,” i.e., the lawyering of historical evidence outside of its intended historical
context.
126
Anyone who practices or studies the law knows that it is fluid and constantly
changing. As a society progresses and changes so does the law. This is how the law
has functioned since its inception and will continue to function for as long as
governments exist. This is particularly true for the history of the law pertaining to
armed carriage. For nearly five centuries, on both sides of the Atlantic, the 1328
Statute of Northampton, the common law, and localized adaptations of both were the
law of the land.
127
However, beginning in the early nineteenth century, this adaptable
and discretionary form of preventing people from going armed in the public concourse
began to develop into more tangible, concrete forms. And two types of armed carriage
laws dominated the statute and ordinance books up until the mid-to-late nineteenth
century—concealed carry prohibitions and the Massachusetts Model.
128
As it pertains to the former—concealed carry prohibitions—this type of armed
carriage law was primarily adopted in the Antebellum South.
129
Concealed carry
prohibitions sought to curb the precipitous rise in armed crime, assaults, and murders
by eliminating the dangerous practice of individuals carrying concealed weapons.
130
The carrying of dangerous weapons openly, however, was generally permitted.
131
Antebellum South lawmakers’ reasoning for prohibiting the carriage of concealed
OREGON ENACTED AND CONTINUED IN FORCE BY THE LEGISLATIVE ASSEMBLY AS THE SESSION
COMMENCING 5TH DECEMBER, 1853 220 (1854); 1870 W. Va. Laws 702, 703, ch. 153, § 8.
123
David B. Kopel & George A. Mocsary, Errors of Omission: Words Missing from the
Ninth Circuit’s Young v. Hawaii, 2021 U.
ILL. L. REV. 172, 183 (2021).
124
See Bruen, 142 S. Ct. at 2120.
125
Id. at 2148 (quoting Mass. Rev. Stat., ch. 134, § 16 (1836)).
126
Id. at 2177.
127
See Charles, The Faces of the Second Amendment Outside the Home, Take Two, supra
note 3, at 384–92; Cornell, History, Text, Tradition, and the Future of Second Amendment
Jurisprudence, supra note 46, at 82– 83.
128
Saul Cornell, The Right to Carry Firearms Outside of the Home: Separating Historical
Myths from Historical Realities, 39 F
ORDHAM URB. L. J. 1695, 1719–20 (2012).
129
Id. at 1716–17.
130
Id. at 1716.
131
Id. at 1717.
20https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 643
weapons in public, yet permitting their open carriage was essentially two-fold. The
first was that the open carriage of arms in public aided in subjugating people of color,
both free and slave.
132
The second was one of perceived morality.
133
It was reasoned
that only the criminal and unvirtuous elements within society carried concealed
weapons.
134
In contrast, those that carried arms openly were viewed as being
respectable and transparent.
135
This is not to say that the open carriage of arms was
unanimously deemed an acceptable societal norm.
136
In some areas, the practice was
common, but not applauded. Still, there was a perception among many that those that
carried arms openly would at least place others on notice of the potential danger that
132
See RANDOLPH ROTH, AMERICAN HOMICIDE 218 (2009); RICHARD HILDRETH, DESPOTISM
IN
AMERICA: AN INQUIRY INTO THE NATURE, RESULTS, AND LEGAL BASIS OF THE SLAVE-
H
OLDING SYSTEM IN THE UNITED STATES 90 (1854); see also Eric M. Ruben & Saul Cornell,
Firearm Regulation and Public Carry: Placing Southern Antebellum Case Law in Context, 125
YALE L.J. F. 121, 124– 28 (2015).
133
See ROTH, supra note 132, at 218. See, e.g., Prevention of Crime, CHARLESTON MERCURY
(S.C.), Oct. 8, 1857, at 2 (“The only conceivable object, of course, in thus carrying these
dangerous instruments of death, is to kill; the violent, that they may perpetrate their misdeeds
with impunity; the peaceful, under the plea that the habit, though originally reprehensible, has
become a dire necessity under the reign of license and disorder.”).
134
General orders issued by the Union Army in the Reconstruction Era South weigh this out.
See The Carrying of Firearms Forbidden, N
EW ORLEANS CRESCENT (L.A.), Apr. 15, 1868, at 1
(April 14, 1868 special order calling attention to an earlier military order “forbidding the
carrying of firearms” in the New Orleans military district); Headquarters, Third Sub District . .
. General Order No. 1, A
NDERSON INTELLIGENCER (S.C.), Mar. 8, 1866, at 2 (March 1, 1865
general order stipulating that “ALL citizens, white and colored, in this Sub District, comprising
the Separate Districts of Anderson, Abbeville, Greenville and Pickens, are hereby forbidden to
carry concealed Firearms or deadly weapons of any kind upon their persons; and all disorderly
persons, vagrants or disturbers of the peace, are forbidden to carry such weapons, either openly
or concealed.”); HD- QRS SND SUB-DISTRICT . . . General Order No. 6, Y
ORKVILLE ENQUIRER
(S.C.), Mar. 8, 1866, at 3 (February 19, 1866 general order stipulating that “ALL citizens, white
and colored, in this Sub-District, comprising the separate Districts of Chester, Union,
Spartanburg, Lancaster, York and Laurens, are hereby forbidden to carry concealed fire-arms,
or deadly weapons of any kind, upon their persons; and all disorderly persons, vagrants or
disturbers of the peace are forbidden to carry such weapons either openly or concealed.”); see
also Joseph Blocher & Darrell A.H. Miller, The Positive Second Amendment as Positive Law,
13 C
HARLESTON L. REV. 103, 105 (2018) (discussing a similar general order issued by General
Daniel Sickles in South Carolina).
135
See, e.g., Concealed Weapons, ALTA CALIFORNIA (S.F.), June 1, 1854, at 2 (“[L]et them
[carry weapons] openly, so that those with whom they come in contact may know with whom
and what they are dealing.”); Carrying Concealed Weapons, D
AILY EVENING BULL. (S.F.), Jan.
26, 1866, at 3 (“If a man carries arms openly he is seldom dangerous. Those whom he may
intend to attack are soon notified and prepared. If he intends to prevent a crime, it may be
prevented.”).
136
See, e.g., Concealed Weapons, DAILY CLEVELAND HERALD (Ohio), Apr. 19, 1859, at 3
(“There is little or no necessity for going armed. Not one person in a hundred does it. The class
that goes habitually armed are themselves men of violence or associates with those who are.
The state of society that demands peaceable citizens to go armed for self-protection, is indeed
deplorable.”).
21Published by EngagedScholarship@CSU, 2023
644 CLEVELAND STATE LAW REVIEW [71:623
awaited them. As historian Robert Ireland has put it, in the South the “truly brave man
either wore his weapons openly or [wore] none at all and certainly did not resort to
sneak attacks that more resembled assassinations than fair and honorable
confrontations.”
137
Some, particularly in the Western frontier, viewed the open carriage of arms as
being protected by the Second Amendment.
138
For these individuals, while the
carriage of concealed weapons fell outside the Second Amendment’s scope, open
carriage was within it. As a San Francisco, California correspondent with the Alta
California rationalized: “If the people consider it necessary for their safety and
protection to carry pistols or bowie knives, or muskets, or even six pound brass field
pieces, let them carry them [openly], for the Constitution of the United States
guarantees to the people the right to keep and bear arms.”
139
What helped facilitate the rise of the Southern “open carry” view were two notable
changes in American law: (1) a shift in constitutional language and (2) the first
American courts to address the constitutionality of armed carriage regulations.
Starting with the shift in constitutional language, in the Antebellum Era, Second
Amendment analogues in new state constitutions began to reflect a more
individualized perception of the right.
140
Consider that at the time of the
Constitution’s ratification only four of the thirteen state constitutions retained Second
Amendment analogues, each of which reflected more of a communal view of the right
to “bear arms,”
141
and five state constitutions included analogues highlighting the
significance of a constitutional “well-regulated militia.”
142
Early on this trend
137
Robert M. Ireland, The Problem of Concealed Weapons in Nineteenth-Century Kentucky,
91 R
EG. KY. HIST. SOC’Y 370, 384 (1993).
138
See, e.g., Carrying Concealed Weapons, supra note 135, at 3 (showing political debate
in California where Democrats objected to a concealed carry law on Second Amendment
grounds); On Wearing Concealed Arms, D
AILY NAT’L INTELLIGENCER (D.C.), Sept. 9, 1820, at
2 (a grand jury supporting the “right of carrying arms,” yet questioning the practice of carrying
concealed weapons).
139
Concealed Weapons, supra note 135.
140
See, e.g., Prevention of Crime, supra note 133 (“The moral causes of this cheap contempt
of which human life is held among us, lie upon the surface, and are seen in the extravagant
notions of personal rights and independence . . . And out of this extravagant theory of personal
independence, thus perverted by early contact with vice and violence, has grown an equally
extravagant notion respecting the right of self-defence . . . .”).
141
PA. CONST. OF 1776, DECLARATION OF RIGHTS, art. XIII (“That the people have a right to
bear arms for the defence of themselves and the State . . . . ”); V
T. CONST. OF 1786, DECLARATION
OF
RIGHTS, art. XVIII (“That the people have a right to bear arms, for defence of themselves and
the State . . . . ”); M
ASS. CONST. OF 1780, DECLARATION OF RIGHTS, art. XVII (“The people have
a right to keep and bear arms for the common defence”); N.C.
CONST. of 1776, DECLARATION
OF
RIGHTS, art. XVII (“That the people have a right to bear arms, for the defence of the State . .
. .”).
142
MD. CONST. OF 1776, DECLARATION OF RIGHTS, art. XXV (“That a well-regulated militia
is the proper and natural defence of a free government.”); N.H. C
ONST. OF 1784, DECLARATION
OF
RIGHTS, art. XXIV (“A well regulated militia is the proper, natural, and sure defence of a
state.”); D
EL. CONST. OF 1776, DECLARATION OF RIGHTS, art. XVIII (“That a well regulated
22https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 645
continued as new states joined the Union and adopted their first constitutions and old
states modified existing ones.
143
The states of Kentucky, Tennessee, and Ohio all
included more communal language in their respective Second Amendment
analogues.
144
It was not until 1817 that the more individualized provisions were
adopted. The first was Mississippi, followed by Connecticut and Alabama.
145
This is
not to say that every follow-on state Second Amendment analogue adopted the more
individualized language.
146
However, by the mid-nineteenth century the shift was
clearly noticeable.
147
Militia is the proper, natural and safe Defense of a free government.”); VA. CONT. OF 1776,
DECLARATION OF RIGHTS art. XIII (“That a well-regulated militia, composed of the body of the
people trained to arms, is the proper, natural, and safe defence of a free State.”); N.Y. C
ONST.
OF 1777 (“And whereas it is of the utmost importance to the safety of every State that it should
always be in a condition of defence; and it is the duty of every man who enjoys the protection
of society to be prepared and willing to defend it; this convention therefore, in the name and by
the authority of the good people of this State, doth ordain, determine, and declare that the militia
of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined,
and in readiness for service.”).
143
See, e.g., OHIO CONST. OF 1802 art. VIII, § 20 (“That the people have a right to bear arms
for the defense of themselves and the state: and as standing armies in time of peace, are
dangerous to liberty, they shall not be kept up; and that the military shall be kept under strict
subordination to the civil power.”); K
Y. CONST. OF 1799 art. X, § 23 (“That the rights of the
citizens to bear arms in defence of themselves and the State shall not be questioned.”); T
ENN.
CONST. OF 1796 art. XI, § 26 (“That the freemen of this State have a right to keep and bear arms
for their common defence.”).
144
See OHIO CONST. OF 1802 art. VIII, § 20; see KY. CONST. of 1799 art. X, § 23; see TENN.
CONST. OF 1796 art. XI, § 26.
145
See, e.g., MISS. CONST. of 1817 art. I, § 23 (“The right of every citizen to keep and bear
arms in defense of his home, person, or property, or in the aid of the civil power when thereto
legally summoned, shall not be called into question, but the legislature may regulate or forbid
the carrying of concealed weapons.”); C
ONN. CONST. of 1818 art. I, § 17 (“Every citizen has a
right to bear arms in defence of himself and the State.”); A
LA. CONST. OF 1819 art. I, § 23
(“Every citizen has a right to bear arms in defence of himself and the State.”).
146
See LA. CONST. OF 1812 art. III, § 22 (“The free white men of this State, shall be armed
and disciplined for its defence; but those who belong to religious societies, whose tenets forbid
them to carry arms, shall not be compelled so to do, but shall pay an equivalent for personal
service.”); I
ND. CONST. OF 1816 art. I, § 20 (“That the people have a right to bear arms for the
defence of themselves, and the state; and that military shall be kept in strict subordination to the
civil power.”).
147
By 1868, seven of the thirty-six state constitutions retained such analogues. See, e.g.,
A
LA. CONST. OF 1867 art. I, § 28 (“That every citizen has a right to bear arms in defence of
himself and the state.”); C
ONN. CONST. OF 1818 art. I, § 17 (“Every citizen has a right to bear
arms in defence of himself and the state.”); K
AN. CONST. OF 1859, BILL OF RIGHTS, § 4 (“The
people have the right to bear arms for their defence and security; but standing armies in times
of peace are dangerous to liberty, and shall not be tolerated, and the military shall be in strict
subordination to the civil power.”); M
ICH. CONST. OF 1850 art. XVIII, § 7 (“Every person has a
right to bear arms for the defence of himself and the state.”); M
ISS. CONST. OF 1868 art. I, § 15
(“All persons shall have a right to keep and bear arms for their defence.”); O
HIO CONST. OF 1851
art. I, § 4 (“The people have the right to bear arms for their defense and security; but standing
23Published by EngagedScholarship@CSU, 2023
646 CLEVELAND STATE LAW REVIEW [71:623
Coinciding with the shift in constitutional language were the first legal challenges
questioning the authority of lawmakers to regulate armed carriage. The first was Bliss
v. Commonwealth, a constitutional challenge to Kentucky’s concealed carry law,
148
where it was argued the law was unconstitutional on the grounds it violated Article X,
Section 2 of the 1799 Kentucky Constitution.
149
Ultimately, the Kentucky Supreme
Court ruled the concealed carry law was unconstitutional, but with rather unorthodox
legal reasoning.
150
Throughout the Early Republic the judiciary examined the
constitutionality of laws under a presumption of constitutionality.
151
It was only in
those instances where the law conflicted with the core of the constitutional right that
it was struck down.
152
The Kentucky Supreme Court in Bliss, however, applied a
presumption of unconstitutionality.
153
From the Court’s perspective, whenever the
legislature passes a law that “imposes any restraint on the right, immaterial what
appellation may be given to the act, whether it be an act regulating the manner of
bearing arms or any other, the consequence, in reference to the constitution, is
precisely the same, and its collision with that instrument equally obvious.”
154
In other
words, although Kentucky’s concealed carry law did not actually prohibit armed
carriage altogether, the fact that it regulated any aspect of carrying arms required that
it be struck down.
155
armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall
be in strict subordination to the civil power.”); T
EX. CONST. OF 1868 art. I, § 13 (“Every person
shall have the right to keep and bear arms, in the lawful defence of himself or the government,
under such regulation as the Legislature may prescribe.”). For a full breakdown of every state’s
“bear arms” provision in 1868, see Patrick J. Charles, The Second Amendment Standard of
Review After McDonald, “Historical Guideposts” and the Missing Arguments in McDonald v.
City of Chicago, 2
AKRON J. CONST. L. & POL’Y 7, 51– 52 (2011).
148
Bliss v. Commonwealth, 2 Litt. 90 (1822).
149
KY. CONST. OF 1799 art. X, § 23.
150
Bliss, 2 Litt. at 90.
151
Patrick J. Charles, Restoring “Life, Liberty, and the Pursuit of Happiness” in Our
Constitutional Jurisprudence: An Exercise in Legal History, 20
WM. & MARY BILL RTS. J. 457,
502– 17 (2011).
152
Id. For a late eighteenth-century example showing the presumption of constitutionality
being applied to the right to arms, see Patrick J. Charles, Scribble Scrabble, the Second
Amendment, and Historical Guideposts: A Short Reply to Lawrence Rosenthal and Joyce Lee
Malcolm, 105 N
W. L. REV. 1821, 1822–29 (2011).
153
Bliss, 2 Litt. at 92.
154
Id.
155
Id. at 91–92 (“But to be in conflict with the constitution, it is not essential that the act
should contain a prohibition against bearing arms in every possible form—it is the right to bear
arms in defence of the citizens and the state, that is secured by the constitution, and whatever
restrains the full and complete exercise of that right, though not an entire destruction of it, is
forbidden by the explicit language of the constitution.”) (emphasis added). The court’s rationale
coincided with a treatise on the Kentucky common law published in the same year. See C
HARLES
HUMPRHEYS, A COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY 482 (1822).
24https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 647
Subsequent Antebellum courts that examined the authority of legislatures to
regulate armed carriage felt compelled to square their analysis with that of Bliss, and
in every instance the court undertook a different approach. From this arose the
Southern open carry-concealed carry distinction in armed carriage jurisprudence.
156
For instance in the Alabama case of State v. Reid, while the plaintiff relied on Bliss,
the Attorney General countered that the State’s concealed carry law was constitutional
on the grounds “[e]very man was still left free to carry arms openly . . . .”
157
In its
decision, the Alabama Supreme Court rejected Bliss and agreed with the Attorney
General, stating:
Under the [“bear arms”] provision of [the Alabama] constitution, we incline
to the opinion that the Legislature cannot inhibit the citizen from bearing
arms openly, because it authorizes him to bear them for the purposes of
defending himself and the State, and it is only when carried openly, that they
can be efficiently used for defence.
158
What undoubtedly aided the Alabama Supreme Court in coming to its decision
was the individualistic nature of Article I, Section 23 of the 1819 Alabama
Constitution, which guaranteed: “Every citizen has a right to bear arms in defence of
himself and the State.”
159
At the same time history-in-law played a persuasive role.
Relying on the text and structure of Article VII of the 1689 Declaration of Rights, the
Alabama Supreme Court reasoned that since Parliament was permitted to “determine
what arms shall be borne and how,” it was within the purview of the Alabama
legislature to regulate the manner arms are worn and borne—that is so long as it did
not amount to a complete destruction of the right.
160
In line with Reid, both the Georgia Supreme Court, in Nunn v. State, and Louisiana
Supreme Court, in State v. Chandler, determined that their respective State legislatures
may regulate the concealed carriage of dangerous weapons, but that open carry was
protected.
161
Meanwhile, both the Tennessee Supreme Court, in Aymette v. State, and
the Arkansas Supreme Court, in State v. Buzzard, outright rejected any notion of such
a right, whether it was concealed or open, unless it was in support of the common
defense.
162
From both courts’ perspective, to recognize a right to armed carriage in
the public concourse was an affront to the right’s intended purpose and ran counter to
the principle of law and order.
163
156
State v. Reid, 1 Ala. 612, 614 (1840).
157
Id.
158
Id. at 619.
159
ALA. CONST. of 1819 art. I, § 23 (emphasis added).
160
Reid, 1 Ala. at 616.
161
Nunn v. State, 1 Ga. 243, 251 (1846); State v. Chandler, La.Ann. 489, 490 (1850).
162
Aymette v. State, 21 Tenn. 154, 158 (1840); State v. Buzzard, 4 Ark. 18, 27 (1842).
163
Aymette, 21 Tenn. at 159; Buzzard, 4 Ark. at 24.
25Published by EngagedScholarship@CSU, 2023
648 CLEVELAND STATE LAW REVIEW [71:623
In contrast to the Southern, concealed carry prohibition approach to the law of
armed carriage was that of the Northern Massachusetts Model. Again, Massachusetts
Model type laws were essentially an updated version of the Statute of Northampton.
164
Each stipulated that if an individual could sufficiently demonstrate an “imminent” or
“reasonable” fear of assault or injury to their person, family, or property, they would
be permitted to carry dangerous weapons in public places, either openly or
concealed.
165
In such cases, the legal burden fell on the individual carrying the weapon
to demonstrate that their carriage was necessary due to an imminent threat.
166
If no
imminent threat was shown, either a government official or the court could require
surety of the peace or surety of good behavior, which involved posting a bond (which
could be substituted with real property, goods and/or chattel) for such a period of time
as directed.
167
Those that could post the bond were left free to their own recognizance
and the bond would be returned only if the person did not breach the peace again for
the time specified.
168
However, those who were unable to post the required bond could
be placed in the gaol, fined, or both.
169
And given that the bond could be as high as
$200 (roughly the monetary equivalent of $5,400 today), many, if not most persons
164
Compare 2 Edw. 3, c. 3 (1328) (Eng.), with 1835 Mass. Acts 750.
165
See A PRACTICAL TREATISE, OR AN ABRIDGEMENT OF THE LAW APPERTAINING TO THE
OFFICE OF JUSTICE OF THE PEACE 184 (1841); PETER OXENBRIDGE THACHER, TWO CHARGES TO
THE
GRAND JURY OF THE COUNTY OF SUFFOLK FOR THE COMMONWEALTH OF MASSACHUSETTS,
AT THE
OPENING OF TERMS OF THE MUNICIPAL COURT OF THE CITY OF BOSTON, ON MONDAY,
DECEMBER 5TH, A.D. 1836 AND ON MONDAY, MARCH 13TH, A.D. 1837 27– 28 (1837).
166
Historically, the reason for this was the English common law required a person to first
seek surety of the peace, rather than go armed in public, if they maintained reasonable fear of
assault or injury from another. See K
EBLE, supra note 77, at 646; see also id. at 410 (stating
Justices “will not grant any Writ for Surety of the Peace, without making an Oath that he is in
fear of bodily harm. Nor the Justices of the Peace ought not to Grant any Warrant to cause a
man to find Surety of the Peace, at the request of any Person, unless the Party who requireth it,
will make an Oath, that he requireth it for safety of his Body, and not for malice.”).
167
See, e.g., JOHN C. B. DAVIS, THE MASSACHUSETTS JUSTICE: A TREATISE UPON THE
POWERS AND DUTIES OF JUSTICES OF THE PEACE 199– 203 (1847); GENERAL LAWS, AND
MEMORIAL RESOLUTIONS OF THE TERRITORY OF DAKOTA, PASSED AT THE SECOND SESSION OF
THE
LEGISLATIVE ASSEMBLY, COMMENCED AT THE TOWN OF YANKTON DECEMBER 1, 1862 AND
CONCLUDED JANUARY 8, 1863 95– 96 (1863); JOSHUA WATERMAN, THE WISCONSIN AND IOWA
JUSTICE, BEING A TREATISE ON THE CIVIL AND CRIMINAL JURISDICTION OF JUSTICES OF THE
PEACE, WRITTEN EXPRESSLY FOR THE STATES OF WISCONSIN AND IOWA, CONTAINING
DIRECTIONS AND PRACTICAL FORMS FOR EVERY CASE WHICH CAN ARISE BEFORE A JUSTICE 619–
21 (1853). For the intricacies of the common law surety of the peace, see B
LACKSTONE, supra
note 71, at 150. M
ICHAEL DALTON, THE COUNTREY JUSTICE: CONTAINING THE PRACTICE OF THE
JUSTICES OF THE PEACE OUT OF THEIR SESSIONS 183 (1661); HAWKINS, supra note 93, at 126–
33.
168
See WATERMAN, supra note 167, at 621.
169
See id. at 616.
26https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 649
living in the nineteenth-century would have been forced to suffer the latter
punishment.
170
Although a plain reading of Massachusetts Model type armed carriage laws shows
their intent and purpose is rather straightforward—to prevent the habitual carrying of
arms, as well as ensure the peace, safety, health, and welfare of the public
171
—the
Bruen majority interpreted them as essentially right to carry laws.
172
In support of this
interpretation, the Bruen majority cites William Rawle’s A View of the Constitution of
the United States.
173
Therein, Rawle noted that the Second Amendment right to keep
and bear arms “ought not . . . in any government . . . be abused to the disturbance of
the public peace.”
174
Rawle then proceeded to give two examples that he deemed
would constitute a disturbance.
175
The first was the assembling “of persons with arms,
for an unlawful purpose . . . .”
176
The second was “the carrying of arms abroad by a
single individual, attended with circumstances giving just reason to fear that the
purposes to make an unlawful use of them . . . .”
177
Both of these examples, according
to Rawle, were sufficient for government officials to require “surety of the peace.”
178
170
See id. at 621.
171
See, e.g., 1870 W. VA. LAWS ch. 153, § 8; accord THE REVISED STATUTES OF WEST
VIRGINIA IN FORCE DECEMBER, 1878, ALPHABETICALLY ARRANGED 720 (1879) (“If a justice
shall, from his own observation, or upon information of others, have good reason to believe that
any person in his county is habitually carrying about his person concealed weapons, such as
dirks, bowie-knives, pistols, or other dangerous weapons, it shall be the duty of such justice to
cause such person to be arrested and brought before him, and if such person upon trial shall be
guilty, he shall be fined not exceeding ten dollars.”). See also B
ENJAMIN OLIVER, THE RIGHTS
OF AN
AMERICAN CITIZEN 177– 78 (1832) (“The provision of the constitution, declaring the right
of the people to keep and bear arms, & . . . [was not intended to] prevent congress or the
legislatures of the different states from enacting laws to prevent the citizens from always going
armed . . . There are without doubt circumstances, which may justify a man for going armed;
as, if he has valuable property in his custody; or, if he is travelling in a dangerous part of the
country; or, if his life has been threatened. But under other circumstances it ought not to be
tolerated or countenanced; because the presence of such weapons has frequently turned a quarrel
into a bloody affray, which otherwise would have terminated in angry words, or at most an
inconsiderable breach of the peace.”).
172
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2148 (2021) (quoting
Mass. Rev. Stat., ch. 134, § 16 (1836)).
173
Id.
174
WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 126 (2d ed.,
1829).
175
Id.
176
Id.
177
Id.
178
Id.
27Published by EngagedScholarship@CSU, 2023
650 CLEVELAND STATE LAW REVIEW [71:623
For whatever reason, whether it be historical arrogance or ignorance, the Bruen
majority interpreted Rawle’s two examples as being exhaustive.
179
But they are not.
A plain reading of Rawle’s treatise contradicts such an interpretation.
180
Moreover, if
the Bruen majority would have done even basic historical research on the origins and
development of the surety of the peace process, they would have learned that Justices
of the Peace and other government officials generally maintained the authority to not
only stop an individual from committing an affray—which could include the carrying
of dangerous weapons in the public concourse—but also bind them under the surety
process.
181
This fact alone historically upends Bruen’s claim that Massachusetts
Model type laws “did not prohibit public carry in locations frequented by the general
community.”
182
What the Bruen majority failed to historically grasp is the reason that the surety of
the peace process was ever accepted by the founders and subsequent generations of
Americans in the first place.
183
It is a point of historical emphasis that throughout the
late eighteenth century and much of the nineteenth century, with the noted exception
of slave patrols, there were no localized police or law enforcement agencies—at least
not comparable with that of today.
184
The offices of the Justice of the Peace, constable,
and sheriff—all of which was borrowed from England—were alive and well.
185
Therefore, it was through this handful of government officials that local laws were
enforced, and the safety and security of the people were maintained.
186
And an
important component of the Justice of the Peace, constable, and sheriff offices was the
surety of the peace process.
187
In the words of William Blackstone, the surety of the
peace process provided these government officials the authority of “preventive
justice”—that is the “means of preventing the commission of crimes and
misdemeanors,” to include “preventing future crimes,” often with nothing more than
a “probable suspicion, that some crime is intended or likely to happen . . . .”
188
Furthermore, executing “preventive justice” was heavily dependent upon community
179
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2148 (2021).
180
See generally RAWLE, supra note 174.
181
See, e.g., WILLIAM WALLER HENING, THE NEW VIRGINIA JUSTICE 49– 55 (1795); RICHARD
BURN, 3 THE JUSTICE OF THE PEACE AND PARISH OFFICER 5 (1772); RICHARD BURN, 1 THE
JUSTICE OF THE PEACE AND PARISH OFFICER 18 (1772); BOND, supra note 77, at 14, 42– 43,180–
83
(1707).
182
Bruen, 142 S. Ct. at 2147.
183
See generally id.
184
CAROL A. ARCHBOLD, POLICING: A TEXT/READER 16– 17, 30 (2013).
185
Id. at 3, 21, 25–26.
186
Id. at 26.
187
BLACKSTONE, supra note 71, at 248–49.
188
Id. at 148.
28https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 651
involvement.
189
As James Wilson noted in his lectures on the law, in order for the
surety of the peace process to work as intended, the “active and authoritative
interposition of every citizen, much more every publick officer of the peace” was
needed “for preventing the commission of threatened, and the completion of inchoate
crimes”:
190
In every citizen, much more in every publick officer of peace and justice, the
whole authority of the law is vested—to every citizen, much more to every
publick officer of peace and justice, the whole protection of the law is
extended, for the all-important purpose of preventing crimes. From every
citizen, much more from every publick officer of peace and justice, the law
demands the performance of that duty, in performing which they are clothed
with legal authority, and shielded by legal protection.
191
Simply put, what Wilson was saying is that the key to maintaining the safety and
security of the people circa the late eighteenth century was the combination of local
custom and community honor, integrity, and the preventive enforcement of crimes, to
include affrays such as the carrying of dangerous weapons in public places.
192
This is
not to say, of course, that the surety of the peace process was without its faults. Prior
to the Justice of the Peace, constable, and sheriff offices ever making their way across
the Atlantic to the American Colonies and subsequent United States, the surety of the
peace process was subject to abuse.
193
Again, the entire process was built on
individual and communal integrity and honor.
194
But as anyone knows, integrity and
honor are not virtues that everyone in a community subscribes and adheres to.
195
Therefore, naturally, there were times where the surety of the peace process was used
for “vexation, especially since an arrest [of the accused] was often made until sureties
were found.”
196
There were also times where the process was abused to threaten or
compel others to follow another’s wishes.
197
Conversely, the process could be abused
by an accused by simply providing the authorities the “wrong personal data or
189
See Jenks, supra note 83, at 261, 270.
190
2 JAMES WILSON, COLLECTED WORKS OF JAMES WILSON 1171–72 (Kermit L. Hall & Mark
David Hall eds., 2007).
191
Id. at 1172.
192
Id. at 1 138, 1170–71; see also BLACKSTONE, supra note 71, at 148–49, 252.
193
ARCHBOLD, supra note 184, at 3.
194
Id.
195
See, e.g., Jenks, supra note 83, at 274.
196
Id.
197
Id. at 276.
29Published by EngagedScholarship@CSU, 2023
652 CLEVELAND STATE LAW REVIEW [71:623
fictitious sureties.”
198
This was particularly common when sureties were required
from an outsider or traveler.
199
Yet despite these faults, the surety of the peace process remained a staple in the
American legal system until just after the Civil War. At that point in time, the process
quickly waned due to changes in demographics.
200
What became increasingly clear to
lawmakers is that the surety of the peace process, as well as many of the highly
flexible, common-law aspects of eighteenth-century law enforcement were no longer
working as intended. The reason for this was essentially two-fold. First and foremost,
from 1830 to 1870, the population of the United States had tripled to 38,558,371.
201
Second, advances in technology—particularly the advent of trains—made mobility
across the country much easier, and therefore populations less localized and
communal, and more transient.
202
These demographic changes prompted a transformation in the chief pillars of
America law. For nearly two centuries, the chief pillars were largely built upon the
common law.
203
But from the mid-nineteenth century until the turn of the twentieth
century, the law rapidly became more reliant upon tangible, state-centric statutory
principles.
204
The impact of this legal transformation was particularly acute within
those jurisdictions that subscribed to Massachusetts Model type armed carriage
laws.
205
Gradually, these laws were phased out in favor of two legal alternatives; both
of which were intended to be a more tangible means of preventing the habitual or
promiscuous preparatory carrying of dangerous weapons in public places. The first
legal alternative was discretionary armed carriage licensing laws.
206
These laws, as
their title suggests, required individuals to first obtain a license before carrying
198
Id.
199
Feldman, supra note 83, at 112.
200
Id. at 111–12 (noting that in thirteenth century England the surety of the peace process
worked well “within a reasonably small area, but the system was bound to face problems if there
were people in an area who did not belong to the hundred or the town”).
201
CHARLES, ARMED IN AMERICA, supra note 3, at 141.
202
See RAY ALLEN BILLINGTON, WESTWARD EXPANSION: A HISTORY OF THE AMERICAN
FRONTIER 633– 50 (1949).
203
See, e.g., Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4,
11– 15, 20 (1936); William Draper Lewis, The Study of the Common Law, 46 AMER. L. REG. 465,
469– 70 (1898).
204
Stone, supra note 203; Lewis, supra note 203. One does not have to be a seasoned
historian to observe this important development in American law. A casual perusal of any law
library’s state or local law section will show how the number of state statute and local
ordinances grew exponentially starting in the late nineteenth-century.
205
See, e.g., Charles, The Faces of the Second Amendment Outside the Home, Take Two,
supra note 3, at 419–22 n.245.
206
See id.
30https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 653
dangerous weapons in public.
207
In most cases, the granting and revoking of these
licenses was at the sole discretion of a local government official, and the person
applying for the license had to demonstrate a good cause or justifiable need to do so,
208
as well as provide proof that they were a “peaceable citizen”
209
or “law abiding” and
of good moral character.
210
The second legal alternative was to maintain the basic
statutory language of the Massachusetts Model, yet eliminate the discretionary, surety
of the peace process altogether, and replace it with a fine, forfeiture of weapon, or
both.
211
207
Id.
208
Id.
209
For some examples, see Ordinance No. 84: Prohibiting the Carrying of Concealed
Deadly Weapons (Apr. 24, 1876), reprinted in C
HARTER AND ORDINANCES OF THE CITY OF
SACRAMENTO (1896); see also An Ordinance: Prohibiting the Carrying of Concealed Deadly
Weapons (Feb. 3, 1891), reprinted in M
ARYSVILLE DAILY APPEAL (Cal.), Mar. 8, 1891;
Ordinance No. 1141: An Ordinance to Prohibit the Carrying of Concealed Weapons (May 15,
1890), reprinted in C
ITY CHARTER OF THE CITY OF OAKLAND 332– 33 (1898); Ordinance No. 55:
Prohibiting the Carrying of Concealed Weapons (Nov. 6, 1878), reprinted in C
HARTER AND
REVISED ORDINANCES OF THE CITY OF EUREKA 251 (1905); Prohibiting the Carrying of
Concealed Deadly Weapons (Sept. 17, 1880), reprinted in G
ENERAL ORDERS OF THE BOARD OF
SUPERVISORS PROVIDING REGULATIONS FOR THE GOVERNMENT OF THE CITY AND COUNTY OF SAN
FRANCISCO 8 (1884 ); Ordinance No. 85: To Prevent the Carrying of Concealed Deadly
Weapons (Jan. 6, 1881), reprinted in D
AILY INDEPENDENT (Santa Barbara, Cal.), Mar. 10, 1888,
at 3.
210
For some examples, see Town of Montclair: An Ordinance to Regulate the Carrying of
Concealed Weapons and to Prohibit the Carrying of the Same Except as Herein Provided (May
3, 1897), reprinted in M
ONTCLAIR TIMES (N.J.), May 15, 1897, at 8; Ordinance No. 79: An
Ordinance Relating to Crimes and Punishments (Dec. 27, 1893), reprinted in S
CANDIA JOURNAL
(Kan .), Jan. 5, 1894, at 8; Article XXVII: Carrying of Pistols, reprinted in ORDINANCES OF THE
MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, IN FORCE, Jan. 1, 1881, at
214– 16 (1881); Pistols—Carrying Of: Ordinance to Regulate the Carrying of Pistols (Oct. 25,
1880), reprinted in B
ROOKLYN DAILY EAGLE (N.Y.), Oct. 26, 1880, at 1; City of Elmira—
Official Notice (July 22, 1892), reprinted in E
LMIRA GAZETTE (N.Y.), July 28, 1892, at 7.
211
See, e.g., W. VA. CODE § 7 (1887) (“If a person carry about his person any revolver or
other pistol, dirk, bowie knife, razor, slung shot, billy, metallic or other false knuckles, or any
other dangerous or deadly weapon of like kind or character, he shall be guilty of a misdemeanor,
and fined not less than twenty-five nor more than two hundred dollars, and may, at the discretion
of the court, be confined in jail not less than one nor more than twelve months; and if any person
shall sell or furnish any such weapon as is hereinbefore mentioned to a person whom he knows,
or has reason, from his appearance or otherwise, to believe to be under the age of twenty-one
years, he shall be punished as hereinbefore provided; but nothing herein contained shall be so
construed as to prevent any person from keeping or carrying about his dwelling house or
premises, any such revolver or other pistol, or from carrying the same from the place of purchase
to his dwelling house, or from his dwelling house to any place where repairing is done, to have
it repaired and back again. And if upon the trial of an indictment for carrying any such pistol,
dirk, razor or bowie knife, the defendant shall prove to the satisfaction of the jury that he is a
quiet and peaceable citizen, of good character and standing in the community in which he lives,
and at the time he was found with such pistol, dirk, razor or bowie knife, as charged in the
indictment he had good cause to believe and did believe that he was in danger of death or great
bodily harm at the hands of another person, and that he was in good faith, carrying such weapon
31Published by EngagedScholarship@CSU, 2023
654 CLEVELAND STATE LAW REVIEW [71:623
The Bruen majority did not even attempt to wade through this history of the
Massachusetts Model and the reasons for its subsequent legal decline. Instead, they
principally relied on the 2017 District of Columbia Circuit Court of Appeals decision
Wrenn v. District of Columbia,
212
wherein it was determined that Massachusetts
Model type laws did nothing to “deny a responsible person carrying rights” unless the
person posed a public threat.
213
And even in instances where the person posed a public
threat, at least according to Wrenn court, the person “could go on carrying without
criminal penalty” so long as they posted a monetary bond.
214
In other words, the
Wrenn court interpreted Massachusetts Model type laws as only shrinking the carrying
rights of the “(allegedly) reckless.”
215
for self-defense and for no other purpose, the jury shall find him not guilty. But nothing in this
section contained shall be so construed as to prevent any officer charged with the execution of
the laws of the State, from carrying a revolver or other pistol, dirk or bowie knife.”); Ordinance
Relating to the Promotion of the Public Peace (Feb. 7, 1888), reprinted in T
HE CHARTER AND
ORDINANCES OF THE CITY OF NEW ULM, MINNESOTA 110– 11 (1888) (“It shall be unlawful for
any person, within the limits of this city to carry or wear under his clothes or concealed about
his person, any pistol, dirk, sling-shot, or knuckle of brass or other metal, or any other dangerous
or deadly weapon. Any such weapon duly adjudged by any justice court of said city to have
been worn or carried by any person in violation of this section, shall be adjudged and declared
forfeited or confiscated to the city of New Ulm; and every such person so offending, on
conviction, may in addition to the penalty hereinafter described, be required to furnish sureties
for keeping the peace for a term not exceeding six months . . . The prohibition in the preceding
section shall not apply to police, peace, and other officers of courts, whose duty may be to secure
warrants or make arrests, nor to persons whose business or occupation may require the carrying
of weapons for protection. Nothing in the ordinances of this city shall be construed to prohibit
within the city limits any firing of a gun, pistol or other firearm when done in the lawful defense
of person, property or family, or in the necessary enforcement of the laws.”); An Ordinance
Relating to Breaches of the Peace, Disorderly Conduct and the Carrying of Concealed Weapons
(May 24, 1870), reprinted in C
ITY CHARTER OF THE CITY OF HASTINGS: TOGETHER WITH
ORDINANCES OF SAID CITY 75 (1884) (“Any person who shall go armed within the incorporated
limits of said city of Hastings with a dirk, dagger, sword, pistol or pistols, or shall carry a slung-
shot or metal knuckles or other offensive or dangerous weapon, without reasonable cause to
fear an assault or other injury to his person or to his family or property, shall, upon conviction
before said justice, be punished by a fine not exceeding one hundred dollars, or by imprisonment
not exceeding three months, or both, in the discretion of the justice.”); Ordinances: Chapter I:
Of the Preservation of Good Order and Suppression of Vice (Dec. 7, 1888), reprinted in
B
OTTINEAU PIONEER (N.D.), Dec. 13, 1888, at 4 (“Any person found armed within the corporate
limits of the village of Bottineau with a dirk, dagger, sword, pistol or pistols, or other offensive
or dangerous weapons, without reasonable cause to fear an assault or other injury of violence to
his person or to his family or property, shall, upon conviction before said justice, be punished
by a fine not exceeding ten dollars, or by imprisonment in the village jail not exceeding term of
thirty days.”); see also State v. Workman, 14 S.E. 9 (W. Va. 1891).
212
N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2149 (2022).
213
Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017).
214
Id.
215
Id.
32https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 655
What substantiated evidence or highly influential historical authority did the
Wrenn court provide in support to its interpretation? Nothing.
216
Yes, the answer is
nothing, not one source or authority.
217
It is fugazi, yet Bruen cites it as somehow
historically authoritative.
218
It is one thing for a court to choose one competing or
conflicting historical narrative over another. It is quite another to make up a history
altogether. This is essentially what the Bruen majority did.
219
Where the Bruen majority is indeed correct is in its historical analysis of
Massachusetts Model type laws is noting that only a few examples of enforcement
have survived for posterity.
220
And this is not only a United States history problem. It
is also a Canadian history problem given that the Model was widely adopted there as
well, yet no one (to include this author) has been able to locate any Canadian
enforcement records.
221
However, the historical fact that Massachusetts Model type
law enforcement records are few and far between is not in itself a justification for
making up history, nor does it justify the majority’s picking and choosing historical
evidence of enforcement. Yet this is exactly what Bruen did when it claimed that the
only evidence of Massachusetts Model type laws being enforced was against “black
defendants who may have been targeted for selective or pretextual enforcement.”
222
This claim is patently false. For if the Bruen majority would have judiciously
canvassed the historical record, they would have learned that there are just as many
examples of Massachusetts Model type laws being enforced against white defendants
as against black defendants.
223
Granted, given that only few historical examples of the
216
Id.
217
Id.
218
N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2124, 2126, 2148 (2022).
219
Id.
220
See CHARLES, ARMED IN AMERICA, supra note 3, at 143; see also Saul Cornell, The Myth
of Non-Enforcement of Gun Laws in Nineteenth Century America: Evidence vs Ideology in
Second Amendment Scholarship, D
UKE SECOND THOUGHTS BLOG (June 1, 2022),
firearmslaw.duke.edu/2022/06/the-myth-of-non- enforcement-of-gun- laws -in-
nineteenth-century-america-evidence-vs-ideology-in-second-amendment-scholarship/.
221
See, e.g., GEORGE WHEELOCK BURBIDGE, A DIGEST OF THE CRIMINAL LAW OF CANADA 77
(1890) (“Every one who has upon his person a pistol or air gun without reasonable cause to fear
an assault or other injury to her person or his family or property, may, upon complaint made
before any justice of the peace, be required to find sureties for keeping the peace for a term not
exceeding six months; and in default finding such sureties, may be imprisoned for any term not
exceeding thirty days.”); A
CTS OF THE PARLIAMENT OF THE DOMINION OF CANADA RELATING TO
CRIMINAL LAW, TO PROCEDURE IN CRIMINAL CASES AND TO EVIDENCE 20 (1891).
222
Bruen, 142 S. Ct. at 2149 (emphasis added); see also Brief for Robert Leider et al. as
Amici Curiae Supporting Petitioners, N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142
S. Ct. 2111 (2022) (No. 18-280), at 31–32; Robert Leider, Constitutional Liquidation, Surety
Laws, and the Right to Bear Arms, N
EW HISTORIES OF GUN RIGHTS AND REGULATION (Joseph
Blocher & Darrell A.H. Miller eds., forthcoming 2023) (manuscript at 15–17).
223
Dear Pistol Practice, MILWAUKEE DAILY SENTINEL (WIS.), Oct. 23, 1878, at 8; The
Wagoning System, N
ASHVILLE UNION AND AMERICA (WI), Mar. 3, 1872, at 1.
33Published by EngagedScholarship@CSU, 2023
656 CLEVELAND STATE LAW REVIEW [71:623
Massachusetts Model being enforced have survived the test of time, the tally is a
miniscule two cases against white defendants
224
and two against black defendants.
225
Nevertheless, simple math shows that the Bruen’s racial pronouncement is wrong, and
at best premature.
Once more, it is important to pause and consider what the Bruen majority just did.
With but two historical examples, the majority concluded that Massachusetts Model
type laws maintain a racist past.
226
Yet, throughout the same opinion, the majority
dismissed several examples of restrictive armed carriage laws—particularly territorial
armed carriage restrictions—as historical outliers that in no way should inform the
scope of the Second Amendment outside the home.
227
Methodologically speaking,
how can two historical examples inform so much, yet many more historical examples
inform so little? This is not an objective or holistic approach to history-in-law. It is
hokey pokey history and is another prime example of how a court’s reliance on text,
history, and tradition can ultimately lead to subjective outcomes. All that is required
is that the respective court jurisprudentially wills it into historical being.
What is equally flabbergasting is that much like in the earlier example of Rex v.
Knight, the Bruen majority could have simply sidestepped the subject by stating
something to the effect: “A plain reading of Massachusetts Model type laws show that
they are not analogous to modern ‘may issue’ armed carriage licensing laws like New
York’s. The former makes no mention of a physical discretionary license, while the
latter does.”
228
Alternatively, the Bruen majority could have stated something to the
effect: “Even if we take New York’s historical analysis of Massachusetts Model type
laws at face value, the fact remains that these laws did not outright prohibit the
carrying of dangerous weapons for self-defense in all cases. Unlike New York’s law,
Massachusetts Model type laws provided a statutory outlet for justifiable self-
defense.”
229
But the Bruen majority, for whatever reason, felt compelled to pick and
choose historical winners and losers, based on nothing more than minuscule evidence
and the lawyering of history. Ultimately, the Bruen majority’s practice of history-in-
law highlights just how poor members of the bench and bar can be at researching,
digesting, and analyzing basic historical evidence. It also highlights just how
uninformed many within the legal academy are about the preservation and existence
of historical records.
As someone that heads a research division and team of archivists at a government
archive, it cannot be overstated that whatever historical records are contained within
a respective archive—no matter the archive’s focus or specialty—are only a small
224
MILWAUKEE DAILY SENTINEL, supra note 223; NASHVILLE UNION AND AMERICA, supra
note 223.
225
Bruen, 142 S. Ct. at 2149; see also Brief of Robert Leider et al. as Amici Curiae
Supporting Petitioners, supra note 222, at 31–32; Leider, Constitutional Liquidation, Surety
Laws, and the Right to Bear Arms, supra note 222.
226
Bruen, 142 S. Ct. at 2149.
227
Id. at 2153–56.
228
See Bruen, 142 S. Ct. at 2159; see also sources cited supra note 211.
229
See id.
34https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 657
fragment of our collective past.
230
Every professional archivist knows this, yet Bruen
reads as if everything that happened in the past has been recorded or annotated
somewhere for historical posterity.
231
Therefore, according to Bruen’s line of
thinking, if Massachusetts Model type laws or any other historical armed carriage laws
were indeed enforced, we would have a solid, concrete record of that enforcement.
232
But this line of thinking is built on an ignorance of historical record keeping. The
reality is that most instances of legal enforcement, from the establishment of the
American Colonies in the mid-to-late seventeenth century through the early twentieth
century United States, were done at the local level, and, as a result, the records of
enforcement have either been lost to time or are woefully incomplete.
233
Moreover,
those records of enforcement that have miraculously survived often require no-kidding
actual, time consuming, in-person archival research,
234
not ad hoc, keyword digital
searches. In other words, what professional historians and archivists know—and
apparently many within the legal academy do not—is one simply cannot type words
or phrases into online search engines and expect to learn everything about the history
of X or Y, and certainly not about the enforcement of laws. It is complete and utter
historical ignorance to believe otherwise.
Just consider that both the federal and state case reports from the late eighteenth
century through the late nineteenth century are only a small fraction of all judicial
opinions within the United States, particularly when one takes in account the
voluminous opinions that have taken place in small, local court rooms. And
sometimes, even the opinions of some of our highest courts require a professional
historian to locate and resurrect them. A great example of this is the 1878 Missouri
Supreme Court Case State v. Reando, which was cited or summarized in select case
230
As it pertains to the archive at the Air Force Historical Research Agency (“AFHRA”),
the research division receives upwards of thirty historical research requests a day. Based on this
author’s year of experience heading said division, only one-third of all research requests can be
answered in full. Another one-third can only be provided with half or incomplete answers. And
the last one-third cannot be answered at all—except with an educated explanation as to why no
such answer exists.
231
Bruen, 142 S. Ct. at 2177.
232
See id. at 2149.
233
See Patrick J. Charles, A Historian’s Assessment of the Anti-Immigrant Narrative in
NYSPRA v. Bruen, D
UKE SECOND THOUGHTS BLOG (Aug. 4, 2021),
firearmslaw.duke.edu/2021/08/a-historians-assessment-of-the -anti -immigrant-
narrative-in-nysrpa-v-bruen/ (showing the historical fallacy of gun rights scholars’ claims of
early Sullivan Law enforcement via the New York Times).
234
See, e.g., Brennan Gardner Rivas, Enforcement of Public Carry Restrictions: Texas as a
Case Study, 55
U.C. DAVIS L. REV. 2603, 2603, 2617 (2022).
35Published by EngagedScholarship@CSU, 2023
658 CLEVELAND STATE LAW REVIEW [71:623
reports, yet the actual opinion appeared lost to time
235
—that is until this author located
what appears to be the only surviving copy.
236
What makes Reando relevant for Bruen is it accurately reflects how most mid-to-
late nineteenth century state courts viewed the police power to operate in conjunction
with the right to arms—a subject that the Bruen majority historically sidestepped.
237
Reando involved the constitutionality of Missouri state law prohibiting the concealed
carrying of dangerous weapons into several “sensitive places, to include “any church
or place where people have assembled for religious worship, or into any schoolroom
or into any place where people may be assembled for educational, literary or social
purposes, or to any election precinct, on any election day, or into any court room,
during the sitting of court, or into any other public assemblage of persons met for other
than militia drill . . . .”
238
The law was subsequently challenged on the grounds it
violated Article I, Section 8 of the Missouri Constitution of 1865, which provided the
“right of the citizens to bear arms in defence of themselves and the lawful authority of
the State.”
239
Judge Elijah H. Norton, who had been a delegate to the Missouri Constitutional
Convention of 1861 and was considered the father of the Missouri Constitution of
1875, upheld the law as a constitutional exercise of government police power.
240
While
Norton recognized the court was merely presented with a constitutional challenge to
a concealed carry law, he noted that the practice of carrying dangerous weapons
habitually, whether open or concealed, was so repugnant to the “moral sense of every
well-regulated community” that society would be “shocked by any one who would so
far disregard it, as to invade such places with fire arms and deadly weapons . . . .”
241
Norton then concluded his opinion by noting that all rights, including the right to arms,
are subject to some form of reasonable regulation in the interest of the public good.
242
235
The case cannot be found in the Missouri Supreme Court Historical Database but was
briefly reported in a contemporaneous issue of The Central Law Journal. See Abstract of
Decisions of the Supreme Court of Missouri: October Term, 1877, 6 C
ENTRAL L. J. 16, 16 (1878)
("The act of the legislature prohibiting the conveying of fire-arms into courts, churches, etc. . .
. is constitutional. It is a police regulation not in conflict with the provisions of the organic law
. . . State v. Reando.").
236
The Supreme Court: On Carrying Concealed Weapons, STATE JOURNAL (Jefferson City,
MO), Apr. 12, 1878, at 2.
237
See CHARLES, ARMED IN AMERICA, supra note 3, at 151–56.
238
The law was originally enacted in 1874. ACTS OF THE . . . GENERAL ASSEMBLY OF THE
STATE OF MISSOURI 43 (1874). It was amended in 1875, LAWS OF MISSOURI: GENERAL AND
LOCAL LAWS PASSED AT THE REGULAR SESSION OF THE TWENTY-EIGHTH GENERAL ASSEMBLY
50– 51 (1875), and again in 1883, LAWS OF MISSOURI PASSED AT THE SESSION OF THE THIRTY-
S
ECOND GENERAL ASSEMBLY 76 (1883).
239
MO. CONST. OF 1865 art. I, § 8.
240
STATE JOURNAL, supra note 236, at 2; Judge Elijah Hise Norton, MISSOURI COURTS,
www.courts.mo.gov/page.jsp?id=180039 (last visited Jan. 21, 2023).
241
STATE JOURNAL, supra note 236, at 2.
242
Id.
36https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 659
This was particularly the case whenever freedom of action could negatively impact
the community at large:
The statute in question is nothing more than a police regulation, made in the
interest of peace and good order, perfectly within the power of the legislature
to make. Such, or similar statutes, have been upheld in all the States, so far
as we have been able to ascertain . . . .
The right to keep and bear arms necessarily implies the right to use them, and
yet acts passed by the legislature regulating their use, or rather making it an
offense to use them in certain ways and places, have never been questioned .
. . .
The constitution protects a person in his right of property, and instances are
numerous where the legislature has assumed to regulate and control it. A
person has a right to own a mischievous or dangerous animal; yet under our
statute, if the owner thereof, knowing its propensities, unlawfully suffer it to
go at large or shall keep it without ordinary care, and such animal while so at
large and not confined, kill any human being, such owner is liable to be
punished as for manslaughter in the third degree. It is provid[ed] in the
constitution of the United States that the freedom of speech and of the press
shall not be abridged by any law of Congress, and yet this provision has never
been so construed as to deny to Congress the power to make it offence for
libelous matter to be published, rendering the offender liable to prosecution
and punishment for the libel so published . . . .
243
C. Armed Carriage Licensing Laws Fugazi
Thus far, through a historical examination of the Statute of Northampton and
Massachusetts Model type armed carriage laws, this Article has expounded on how
the Bruen majority cherry-picked, explained away, and even fabricated historical
evidence.
244
Although, at least in this author’s humble opinion, these examples are
appalling from both an accuracy and objectivity standpoint, they are arguably not the
greatest history-in-law sin committed in Bruen. That distinction goes to the assertion
that armed carriage licensing laws never existed until the early twentieth century.
245
According to Bruen, from the Reconstruction Era to the close of the nineteenth
century, there is no historical record of “American governments” requiring
“responsible citizens to ‘demonstrate a special need for self-protection distinguishable
from that of the general community’ in order to carry arms in public.”
246
This is one
of the greatest historical fibs that the Supreme Court has ever told.
The historical reality is that beginning in the mid-to-late nineteenth century, cities
and localities across the country started enacting what are commonly known today as
243
Id.
244
See infra Part III.B.
245
See N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2121 (2022) (quoting
Klenosky v. New York City Police Dept., 75 App. Div.2d 793, 793 (1980)).
246
Id.
37Published by EngagedScholarship@CSU, 2023
660 CLEVELAND STATE LAW REVIEW [71:623
“may issue” concealed carry licensing laws.
247
Although it is impossible to state with
historical precision when and where the first armed carriage licensing law was
enacted, based on the historical evidence available, it appears that California was at
the forefront.
248
It began in 1870, after the California Assembly repealed its concealed
weapons armed carriage law.
249
To fill the legal void created by this repeal,
California’s most populous cities and localities started enacting similarly worded
concealed carry ordinances with one notable difference—the ordinances granted local
government officials’ the discretion to issue and revoke armed carriage licenses given
“to any peaceable person, whose profession may require him to be out at late hours of
the night . . . .”
250
The cities of San Francisco, Santa Barbara, and Fresno are just a
few examples in this regard.
251
There are indeed others,
252
such as Oakland wherein
“to ensure safety” the mayor required license applicants to receive the “indorsement .
. . [of] two or more police officers,” as well as undergo “an exhaustive investigation
as to the reasons” the applicant “wish[ed] to go about the city armed.”
253
And in 1891,
247
See Brief of Patrick J. Charles as Amicus Curiae in Support of Neither Party, supra note
112 at 8–13, appendix 2–45.
248
Id. at appendix 2– 12.
249
1863 Cal. Stat. 748; 1869–70 Cal. Stat. 67.
250
Ordinance No. 84: Prohibiting the Carrying of Concealed Deadly Weapons, supra note
209.
251
Ordinance No. 85: To Prevent the Carrying of Concealed Deadly Weapons, supra note
209, at 3; see also Prohibiting the Carrying of Concealed Deadly Weapons, supra note 209;
Ordinance No. 6 (Nov. 5, 1885), reprinted in FRESNO WEEKLY REPUBLICAN (Cal. ), Nov. 7, 1885,
at 3.
252
See, e.g., Ordinance No. 57: Defining Certain Misdemeanors and Providing Penalties
for Violation (Jul y 2, 1897), reprinted in
ORDINANCES OF THE TOWN OF FERNDALE 27– 28 (1905)
(“It shall be unlawful for any person, not being a public officer, or not having received a permit
from the Town Marshal, approved by the President of the Board of Trustees to wear or carry,
concealed, any pistol, dirk, brass or iron knuckles, slungshot, or other deadly or dangerous
weapon.”); Ordinance No. 34: An Ordinance to Prohibit the Carrying of Concealed Weapons
(Aug. 7, 1893), reprinted in F
OLSOM TELEGRAPH (Cal .), Sep t. 9, 1893, at 2 (“It shall be unlawful
for any person not being a peace officer within the limits of Sacramento county, to wear or
carry, any dirk, dirk knife, Bowie knife, sword, sword-cane, pistol, slung-shot, metallic
knuckles, gun or any other deadly or dangerous weapon concealed, unless such person who
shall carry any such weapon, shall first have made an application in writing upon oath, to any
Justice of the Peace in this county, stating the reasons why he or she desires to carry such
weapon, (naming it) and if upon such statement the said Justice deems advisable, he may grant
any such person a permit to carry any deadly weapon, naming the same, concealed; and such
Justice granting such permit, shall keep a record of the same in his office, which record shall be
open to inspection at all times.”). These laws continued to spread across California in the early
twentieth century. See L
AWS OF CALIFORNIA AND ORDINANCES OF THE COUNTY AND CITIES OF
LOS ANGELES COUNTY RELATING TO MINORS 45, 121–22, 129–31, 197, 213–14, 238–39, 267
(1914); C
HARTER AND ORDINANCES OF THE CITY OF PASADENA, CALIFORNIA 159 (1905).
253
Carry Arms: Those Who Have Permits to Carry Concealed Weapons, OAKLAND TRIBUNE
(Cal .), July 20, 1889, at 1. According to this same newspaper article, sixty-nine Oakland
residents maintained such licenses. Id. At that time, the population of Oakland was somewhere
38https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 661
the California Supreme Court upheld one such local armed carriage licensing law
against a state constitutional challenge, albeit not on Second Amendment grounds.
254
In addition to California, the state of Kansas served as another proving ground for
armed carriage licensing laws. In 1862, the state’s most populous city of Leavenworth
appears to have enacted the first such law, which declared that “[a]ll persons . . .
excepting officers and soldiers on duty, are forbidden to carry any weapon without the
consent in writing of the Provost Marshall.”
255
In the decade that followed, in
accordance with a state law that afforded Kansas cities and localities wide latitude to
“prohibit and punish the carrying of firearms or other deadly weapons, concealed or
between 34,555 and 48,682 inhabitants. See Oakland Census Data for 1860–1940, BAY AREA
CENSUS, www.bayareacensus.ca.gov/cities/Oakland40.htm (last visited Jan. 21, 2023).
254
In re Cheney, 90 Cal. 617 (1891).
255
Provost Order—No. 1 (Mar. 19, 1862), reprinted in LEAVENWORTH TIMES (Kan .), Apr.
20, 1862, at 1. The same order also made it unlawful “for any person or persons . . . to either
buy or sell any arms of any kind or description, or ammunition, except from the U.S. Arsenal at
Fort Leavenworth, without first obtaining the written consent of the Provost Marshal.” Id. By
1865, the law was amended to only prohibit the concealed carrying of dangerous weapons. See
Council Proceedings, L
EAVENWORTH TIMES (Kan .), Nov. 24, 1865, at 4 (noting that the
“ordinance prohibiting the carrying of pistols, revolvers, bowie knives, dirk knives, or slung
shots” would take “effect from and after the 25th of November”). In 1877, there was an attempt
to amend the law so that the “Police Judge and City Marshal” would be empowered to “grant a
license, at a small price, to such citizens as they may deem proper, for a permission to carry
weapons.” Council Proceedings, L
EAVENWORTH TIMES (Kan .), May 4, 1877, at 3, 4. The
amendment failed by a city council vote of 3 to 4. Id. It was not until 1881 that a new law was
passed prohibiting the concealed carrying of weapons by any person, as well as the open
carriage of “any pistol, revolver, dirk, bowie knife, or slung shut” except for “police officers
and soldiers whyile one duty[.]” No. 1020: An Ordinance Relating to Misdemeanors (Jul y 20,
1881), reprinted in L
EAVENWORTH PRESS (KAN.), Jul y 25, 1881, at 3.
39Published by EngagedScholarship@CSU, 2023
662 CLEVELAND STATE LAW REVIEW [71:623
otherwise,”
256
many cities and localities followed suit.
257
Indeed, cities and localities
such as Wichita, Burlington, Abilene, and many others, enacted broad prohibitions on
256
THE LAWS OF THE STATE OF KANSAS 134 (1871). Kansas was not the only state to
expressly provide designated localities the authority to regulate armed carriage. For some other
examples, see C
HARTER AND REVISED ORDINANCES OF FORT WORTH, TEXAS 84 (1900)
(recognizing the city council’s authority “to prohibit or regulate the carrying of fire arms and
deadly weapons upon or about the person within the said city”); C
HARTER OF THE CITY OF
DALLAS 42 (1899) (recognizing the city council’s authority to “regulate, control, and prohibit
the carrying of firearms and other weapons within the city limits”); R
EVISED STATUTES OF THE
STATE OF UTAH IN FORCE (Jan. 1, 1898), at 120, 130, ch. 4, § 51 (1898) (authorizing designated
city councils the power to “regulate and prohibit the carrying of concealed weapons”); C
HARTER
FOR THE
CITY AND COUNTY OF SAN FRANCISCO 14 (1895) (recognizing the city’s authority to
pass ordinances “in relation to carrying concealed weapons”); C
HARTER FOR METROPOLITAN
CITIES 13 (1893) (affording all Nebraska city councils the power to “punish and prevent the
carrying of concealed weapons”); M
INNEAPOLIS CITY CHARTER AND ORDINANCES 58 (1892)
(recognizing the city council’s authority to “license, prohibit, regulate and control the carrying
of concealed weapons and provide for confiscation of the same”); S
TATUTES OF OKLAHOMA
(1890), at 161, ch. 15, art. 2, § 34 (1891) (authorizing designated city councils the power to
“prohibit and punish the carrying of firearms, or other deadly weapons, concealed or
otherwise”); C
HARTER AND GENERAL ORDINANCES OF THE CITY OF ALBANY 58 (1887) (Oregon
recognizing the Albany city council’s authority to “regulate and prohibit the carrying of deadly
or dangerous weapons in a concealed manner, and to provide for the punishment by fine or
imprisonment, or both, of any person carrying any deadly or dangerous weapon in a concealed
manner, and to define what shall be deemed a deadly or dangerous weapon and what shall
constitute a carrying of such weapon in a concealed manner” and to “regulate and prohibit the
use of guns, pistols, and firearms, fire-crackers, bombs and detonating works of all
descriptions”); An Act to Incorporate the City of Tacoma and Define the Powers Thereof (Feb.
4, 1886), in L
AWS OF THE WASHINGTON TERRITORY ENACTED BY THE LEGISLATIVE ASSEMBLY
182, 200 (1886) (recognizing the city council’s authority to “regulate and prohibit the carrying
of deadly weapons in a concealed manner” and “to regulate and prohibit the use of guns, pistols
and firearms, fire-crackers, bombs and detonating works of all descriptions”); An Act to Amend
an Act Entitled “An Act to Amend an Act to Incorporate the City of Spokane Falls” (Jan. 29,
1886), in L
AWS OF THE WASHINGTON TERRITORY 300, 305 (1877) (recognizing the city council’s
authority to “regulate and prohibit the carrying of deadly weapons in a concealed manner” and
“to regulate and prohibit the use of guns, pistols and firearms, fire-crackers, toy-pistols, bombs
and detonating works of all descriptions”); An Act Providing a Charter for the City of Norfolk
and Repealing the Existing Charter, Approved April 21, 1882 (Jan. 21, 1884), in T
HE
ORDINANCES OF THE CITY OF NORFOLK AND ACTS OF ASSEMBLY RELATING TO THE CITY
GOVERNMENT 3, 10 (1885) (recognizing the city council’s authority to enact ordinances to
“prohibit the carrying of concealed weapons”); An Act to Incorporate the City of Ashland in the
County of Jackson, State of Oregon (Oct. 9, 1882), in T
HE LAWS OF OREGON 324, 333 (1885)
(recognizing the city council’s authority to “prohibit and punish the carrying of dangerous
weapons in a concealed manner” and to “regulate and prohibit the use of guns, pistols, and
firearms, fire crackers, bombs, and detonating works of all descriptions”); An Act to Incorporate
the City of Buffalo (Mar. 3, 1884), in S
ESSION LAWS OF THE WYOMING TERRITORY PASSED BY
THE
EIGHTH LEGISLATIVE ASSEMBLY 16, 22 (1884) (recognizing the city council’s authority to
“punish and prevent the discharge of firearms . . . in the streets, lots, grounds, alleys, or about
or in the vicinity of any building, and to regulate, prevent and punish the carrying of concealed
weapons”); C
HARTER OF THE CITY OF PORTLAND, AS AMENDED, TOGETHER WITH THE GENERAL
ORDINANCES 14 (1881) (recognizing the city council’s authority to “regulate and prohibit the
carrying of deadly weapons in a concealed manner” and to “regulate and prohibit the use of
guns, pistols, and firearms, fire-crackers, bombs and detonating works of all descriptions”); An
Act to Amend, Revise and Consolidate the Charter of the City of Lancaster (Mar. 17, 1882), in
40https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 663
the public carrying of concealed and dangerous weapons.
258
However, many other
cities and localities enacted some form of licensing or permitting ordinance.
259
And
much like in California, these laws gave local government officials wide discretion in
deciding who could be licensed to carry concealed and dangerous weapons in public,
as well as plenary power to revoke said licenses.
260
Across the country, there are plenty of other examples where cities and localities
enacted armed carriage licensing laws. In Chicago, Illinois for instance, if the
applicant could provide the mayor or chief of police with evidence that their “business
or occupation” required “the carrying of weapons for their protection,” they could be
granted an armed carriage license for “a term [no] longer than one year . . . .”
261
Similarly in Astoria, Oregon, an applicant first needed to receive a “recommendation,
in writing, [from] the chief of police” to carry a concealed weapon before paying a
five dollar fee for an annual license or a one dollar fee for a monthly license.
262
In
Nashville, Illinois, it was not only at the sole discretion of the mayor to “issue written
permits to such persons as in his judgment he may think necessary for the safety and
protection to carry such arms,” but also at the mayor’s sole discretion that said permits
could be revoked.
263
The annual fee for a Nashville, Illinois concealed carry permit
THE LAWS OF WISCONSIN PASSED AT THE ANNUAL SESSION OF THE LEGISLATURE OF 1882, at 292,
309 (1882) (recognizing the city council’s authority to “regulate or prohibit the carrying or
wearing by any person under his clothing or concealed on his person, of any pistol, sling-shot
or knuckles, bowie knife, dirk knife, or dirk or dagger or any other dangerous or deadly weapon,
and to provide for the confiscation and sale of any such weapons”); An Act to Amend an Act
Entitled “An Act to Incorporate the City of Wall, Walla Approved November 13th 1873” (Nov.
6, 1877), in L
AWS OF THE WASHINGTON TERRITORY ENACTED BY THE LEGISLATIVE ASSEMBLY
357, 359 (1877) (recognizing the city council’s authority to prevent “affrays and carrying
concealed weapons”); An Act for the Government of Cities of the Third Class (May 19, 1877),
in L
AWS OF MISSOURI, PASSED AT THE REGULAR SESSION OF THE TWENTY-NINTH GENERAL
ASSEMBLY 156, 166, § 23 (1877) (authorizing designated city councils the power to “prohibit
and punish the carrying of firearms and other deadly weapons, concealed or otherwise”).
257
Brief of Patrick J. Charles as Amicus Curiae in Support of Neither Party, supra note 112,
at appendix 12–18.
258
Id. at appendix 68–69, 76–77, 80, 82–85.
259
Id. at appendix 12-18.
260
Id.
261
Official Publication: Ordinance [Revising 1873 Concealed Carry Law] (Jan. 19, 1880),
reprinted in C
HICAGO DAILY TELEGRAPH (Ill.) , Jan. 28, 1880, at 4.
262
Ordinance No. 317: Concerning Offenses and Disorderly Conduct (Feb. 18, 1879),
reprinted in D
AILY ASTORIAN (Astoria, Or.), Feb. 22, 1879, at 3; see also Ordinance No. 79
(June 14, 1899), reprinted in A
DAMS COUNTY NEWS (Ritzville, Wash.), June 14, 1899, at 2
(prohibiting the carry of concealed weapons except for law enforcement and those who have a
“written permit from the Town Marshal”).
263
Ordinance No. 29: Concerning the Carrying of Concealed Weapons (Mar. 24, 1880),
reprinted in N
ASHVILLE JOURNAL (Ill.) , Mar. 26, 1880, at 4.
41Published by EngagedScholarship@CSU, 2023
664 CLEVELAND STATE LAW REVIEW [71:623
was fifty cents.
264
Meanwhile, in St. Paul, Minnesota, it appears that only those
persons “whose business or occupation may seem to require the carrying of weapons
for protection” could apply for a license, which was at the sole discretion of the
mayor.
265
The license was required to maintain the “name, age, occupation and
residence of the person to whom it [was] granted . . . .”
266
Historically speaking, it is impossible to determine just how many cities and
localities maintained armed carriage licensing laws by the close of the nineteenth
century. Much like most local government records, many city and local ordinances
have been lost to time.
267
Indeed, often cities and localities published their ordinances
in local newspapers, and, in fact, it is from local newspapers that this author was able
to locate many licensing laws.
268
Again, however, as any professional historian or
archivist will attest, the records of local ordinances that have survived—as is true of
most local government records—are only a tiny fragment of the whole.
Despite historians being unable to fully reconstruct the exact number armed
carriage licensing laws circa the mid-to-late nineteenth century, what is known is that
the New York law at issue in Bruen was a direct antecedent of these laws. Historians
know this because prior to the state of New York enacting the Sullivan Law in 1911,
at least 8 major New York cities and localities had already adopted discretionary
armed carriage licensing laws.
269
These cities and localities included the capital city
of Albany,
270
Buffalo,
271
Brooklyn (passed standalone law in but incorporated by
264
Id.
265
Ordinance No. 265: An Ordinance to Suppress the Carrying of Concealed Weapons
Within the Limits of the City of St. Paul, and to Punish the Offenders for the Violation of the
Ordinance (Jan. 12, 1882), reprinted in D
AILY GLOBE (St. Paul, Minn.), Jan. 20, 1882, at 3.
266
Id. The town of Lake and city of Evanston, Illinois maintained a similar licensing
requirement. See T
HE REVISED ORDINANCES OF THE CITY OF EVANSTON 131– 32 (1893); THE
REVISED ORDINANCES OF THE TOWN OF LAKE 165– 66 (Frank D. Thomas ed., 1887).
267
See generally Library of Congress, Municipal Codes: A Beginner’s Guide,
guides.loc.gov/municipal-codes/older-municipal-codes (last visited Jan. 21, 2023).
268
See, e.g., Ordinance No. 79, supra note 262, at 2 (prohibiting the carry of concealed
weapons except for law enforcement and those who have a “written permit from the Town
Marshal”); Official Publication: Ordinance [Revising 1873 Concealed Carry Law], supra note
261, at 4; Carry Arms: Those Who Have Permits to Carry Concealed Weapons, supra note 253,
at 1.
269
See Charles, A Historian’s Assessment of the Anti-Immigrant Narrative in NYSPRA v.
Bruen, supra note 233.
270
Chapter 72: An Ordinance Regulating the Carrying of Loaded Firearms in the City of
Albany (Mar. 6, 1905),
reprinted in MUNICIPAL CODE OF THE CITY OF ALBANY, N.Y. 849– 50
(1910).
271
Title VII, Chap. II. Of the Department of Police, An Act to Revise the Charter of the City
of Buffalo (Mar. 27, 1891),
reprinted in LAWS OF THE STATE OF NEW YORK PASSED AT THE ONE
HUNDRED AND FOURTEENTH SESSION OF THE LEGISLATURE 127, 176–77 (1891).
42https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 665
New York City in 1898),
272
Elmira,
273
Lockport,
274
New York City,
275
Syracuse,
276
and Troy.
277
Not to mention, in 1892, New York’s neighbor New Jersey enacted a law
expressly recognizing the armed carriage licenses of its cities, towns, and localities as
an lawful exception to its statewide concealed carry prohibition.
278
Clearly, discretionary armed carriage licensing laws were prevalent throughout the
mid-to-late nineteenth century. Considering this fact, one would presume that the
Supreme Court would acknowledge their existence and subsequently weigh their
significance to New York’s “may issue” concealed carry regime. Yet the exact
opposite happened in Bruen.
279
Therein, the majority proclaimed that armed carriage
272
Pistols—Carrying Of: Ordinance to Regulate the Carrying of Pistols, Oct. 25, 1880,
reprinted in BROOKLYN DAILY EAGLE (N.Y.), Oct. 26, 1880, at 1.
273
City of Elmira—Official Notice (Jul y 22, 1892), reprinted in STAR-GAZETTE (Elmira,
N.Y.), Jul y 28, 1892, at 7.
274
Penal Ordinance No. 35: Concealed Weapon (Dec. 7, 1909), reprinted in REVISED
CHARTER AND ORDINANCES OF THE CITY OF LOCKPORT 336– 37 (1913).
275
Article XXVII: Carrying of Pistols (undated), reprinted in ORDINANCES OF THE MAYOR,
ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, in FORCE (Jan. 1, 1881), 214– 16
(Elliott F. Shepard & Ebenezer B. Shafer eds., 1881).
276
CHARTER AND ORDINANCES OF THE CITY OF SYRACUSE, NEW YORK 242– 43 (1894).
277
An Ordinance Regulating the Carrying of Loaded Firearms and Other Dangerous
Weapons in the City of Troy (May 4, 1905),
reprinted in MUNICIPAL ORDINANCES OF THE CITY
OF
TROY 425– 26 (1905).
278
Chapter CCXVII (Mar. 29, 1892), reprinted in ACTS OF THE ONE HUNDRED AND
SIXTEENTH LEGISLATURE OF THE STATE OF NEW JERSEY AND FORTY-EIGHTH UNDER THE NEW
CONSTITUTION 353 (1892) (“That if any person shall be apprehended in any city of this state,
having concealed upon his or her person any offensive weapon, then he or she shall be deemed
and adjudged to be a disorderly person; provided, that this act shall not apply to sheriffs, under
sheriffs, deputy sheriffs, constables, policemen or other peace officers, nor to any person having
a written permit from the police authorities of such city to carry such weapon.”). For once such
New Jersey law, see An Ordinance to Regulate the Carrying of Concealed or Other Weapons
and to Prohibit the Carrying or Use of the Same Except Herein Provided (Apr. 22, 1901),
reprinted in
MONTCLAIR TIMES (N.J.), May 4, 1901, at 4 (requiring concealed carry license
applicants to “apply to the Chief of Police” to determine if the “applicant is a law-abiding citizen
and resident of the Town and that there is good reason why such applicant should be allowed to
carry such weapon . . . ”). Again, it is worth noting that circa the mid-to-late nineteenth century
many states recognized or authorized their respective localities to regulate armed carriage. See
Ordinance No. 84: Prohibiting the Carrying of Concealed Deadly Weapons, supra note 209;
Brief of Patrick J. Charles as Amicus Curiae in Support of Neither Party, supra note 112, at
appendix 68–69, 76–77, 80, 82–85; Ordinance No. 79, supra note 262 at 2 (prohibiting the carry
of concealed weapons except for law enforcement and those who have a “written permit from
the Town Marshal”); Official Publication: Ordinance [Revising 1873 Concealed Carry Law],
supra note 261, at 4; Carry Arms: Those Who Have Permits to Carry Concealed Weapons,
supra note 253, at 1; Charles, A Historian’s Assessment of the Anti-Immigrant Narrative in
NYSPRA v. Bruen, supra note 233.
279
N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2121 (2022).
43Published by EngagedScholarship@CSU, 2023
666 CLEVELAND STATE LAW REVIEW [71:623
licensing laws never existed by the close of the nineteenth century.
280
And what is
most remarkable about the Court’s historical denial is that all the evidence was laid
bare before them, including digital scans of the original laws.
281
The point to be made
is that the Bruen majority did not have to dedicate even a minute of historical research
time to locating these laws. So, why did the Bruen majority exclude them from their
history-in-law analysis? Was it done intentionally or by error? The simple answer is
we do not know—that is until someone in the Bruen majority is asked and answers the
question.
Bruen’s dismissal of a past that indeed existed begets the following questions: “If
the Supreme Court declares that a historical event, law, or tradition never existed,
when in fact it did, what does that mean for said historical event, law, or tradition
jurisprudentially moving forward? Do all future courts and jurists need to embrace the
Court’s historical pronouncement, even though it is blatantly false and litigants in
future cases and controversies insist otherwise?”
282
These are questions that run
parallel to the old philosophical question: “If a tree falls in the forest and no one is
around to hear it, does it make a sound?”
What is certain is that the Supreme Court could always reverse its historical
pronouncement on the non-existence of armed carriage licensing laws, as well as any
other fugazi Second Amendment history, in a future case or controversy.
283
What is
also certain is that Bruen’s ill-conceived history of armed carriage licensing laws
creates quite a conundrum for lower courts adjudicating Second Amendment cases
and controversies moving forward. On the one hand, there is an argument to be made
that lower courts can still utilize the history of mid-to-late nineteenth armed carriage
licensing laws to weigh future challenges to “shall issue” concealed carry regimes, as
well as determine the extent in which the historical police power should play in
defining the scope of the Second Amendment. On the other hand, there is an argument
to be made that whatever the Supreme Court declares to be history severely binds the
lower courts to accept it as true. There is no unequivocal right answer here. Both
avenues of approach have been utilized by the courts in the past, and as will be outlined
280
Id. at 2121 (quoting Klenosky v. New York City Police Dept., 75 App. Div.2d 793, 793
(1980)).
281
Brief of Patrick J. Charles as Amicus Curiae in Support of Neither Party, supra note 112,
at appendix 1–104.
282
See, e.g., Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), vacated for rehearing en banc,
915 F.3d 681 (9th Cir. 2019) (adopting a pick and choose approach to history based on a
selective reading of Heller); Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014)
(same).
283
The Supreme Court is not bound to follow past precedent if the historical record proves
otherwise. See U.S. Term Limits, Inc. v. Thorton, 514 U.S. 779, 788 (1995); Church of Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 575 (1993); City of Akron v. Akron Ctr. for
Reprod. Health, 462 U.S. 416, 458–59 (1983); Smith v. Allwright, 321 U.S. 649, 665–66
(1944); see also Cohens v. Virginia, 19 U.S. 264, 399–400 (1821) (discussing the importance
of weighing each constitutional question before the Court with care).
44https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 667
in the next Part, this is just one of several history-in-law conundrums created by the
Bruen decision.
284
III.
BRUEN’S TEXT, HISTORY, AND TRADITION PROBLEM
As outlined in Part II, Bruen’s approach to history-in-law is built upon complete
and utter fugazi. This is not to say, however, that as a matter of constitutional law the
Court’s decision to strike down New York’s “may issue” concealed carry regime was
jurisprudentially wrong per se.
285
Rather, the point is that Bruen’s cherry-picking,
explaining away, and fabricating of historical evidence to achieve this result is deeply
troubling. Indeed, as this author has noted before, “despite the best efforts of . . . the
most experienced jurists, when it comes to dabbling in history-in-law, more often than
not, the courts will commit any number of historical errors and missteps.”
286
This is
to be expected. But it is also why it behooves the courts to “do their utmost to get
historical facts right, or, at the very least, work to minimize the number of historical
errors and missteps.”
287
Doing so, “not only ensures that the courts are fashioning
opinions with as many verifiable historical facts as possible, but in doing so makes it
far less likely that the legitimacy of the opinion will come into question.”
288
The overarching problem with the Supreme Court’s approach to text, history, and
tradition in Bruen is it appears that little to no effort was made to minimize the
historical errors and missteps. In fact, it is fair to argue that Bruen embraces its errors
and missteps under the guise of historical plausibility. But this is rather a poor
construct from which to jurisprudentially reason. Even worse is the fact that Bruen
applies this poor construct to all three levels of its text, history, and tradition analysis.
And by doing this, there is a precedential argument to be made that the lowers courts
will have to follow Bruen’s lead, which will only end up making the already fugazi
Second Amendment even more fugazi.
A. Bruen’s Text Problem
The Second Amendment reads: “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.”
289
In District of Columba v. Heller, the Supreme Court deciphered the
Second Amendment’s “original” meaning by starting with the operative language—
that is the “right of the people to keep and bear arms”—parsing and interpreting each
word, reassembling the whole, and then hypothesizing its historical relationship to the
284
For a broader discussion on how historical pronouncements by the Supreme Court may
affect future cases and controversies, see Charles, The Second Amendment in Historiographical
Crisis, supra note 22, at 1846–64.
285
N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2125–26 (2022).
286
Charles, The Second Amendment and the Basic Right to Transport Firearms for Lawful
Purposes, supra note 43, at 135.
287
Id. at 136.
288
Id.
289
U.S. CONST. amend. II.
45Published by EngagedScholarship@CSU, 2023
668 CLEVELAND STATE LAW REVIEW [71:623
amendment’s “well regulated Militia” prefatory language.
290
Although some in the
legal academy cheered Heller’s textualist approach as a high point for originalism,
291
the historical reality was that the interpretive outcome was very far removed from that
of the founding generation, particularly when analyzed in the context of eighteenth-
century constitutionalism.
292
As most Supreme Court watchers expected, Bruen continued down Heller’s
textualist path.
293
At issue in the case was the meaning of the phrase “bear arms” in
the context of carrying “arms” beyond one’s doorstep.
294
Did the founding generation,
as well as subsequent generations of Americans, interpret the phrase broadly as the
petitioners argued, or was the phrase interpreted a bit more narrowly as the
respondents argued? Ultimately, the Bruen majority sided with the petitioners under
the rationale that when the “Second Amendment’s plain text covers an individual’s
conduct”—which in this case was the “bearing” or carrying of “arms”—the
“Constitution presumptively protects that conduct.”
295
And in such cases, according
to the majority, the burden rests on the government to “justify” any restrictions on the
right by showing that they are “consistent with this Nation’s historical tradition of
firearm regulation.”
296
Yet oddly, despite Bruen declaring that a presumption of liberty applies to the
carrying of a handgun outside the home, the actual holding appears to run counter to
said presumption. Recall how the majority dismissed the historical existence of armed
carriage licensing laws circa the mid-to-late nineteenth century.
297
Still, somehow,
even with a presumption of liberty blowing favorably behind the petitioners’ back, the
290
District of Columbia v. Heller, 554 U.S. 570, 576–92 (2008).
291
See, e.g., Randy E. Barnett, News Flash: The Constitution Means What It Says, WSJ
(Jun e 27, 2008), www.wsj.com/articles/SB121452412614009067.
292
See, e.g., Kari Sullivan, The ‘Strange’ Syntax of the Second Amendment, DUKE SECOND
THOUGHTS BLOG (June 28, 2022), firearmslaw.duke.edu/2021/07/the-strange-syntax-of-
the -second-amendment/; C
HARLES, ARMED IN AMERICA, supra note 3, at 70–121; Alison L.
LaCroix, Historical Semantics and the Meaning of the Second Amendment, T
HE PANORAMA
(Aug. 3, 2018), thepanorama.shear.org/2018/08/03/historical-semantics-and- the -
meaning-of-the -second-amendment/; Patrick J. Charles, The Constitutional Significance of a
“Well -Regulated Militia” Asserted and Proven With Commentary on the Future of Second
Amendment Jurisprudence, 3
NE. L. J. 1, 4–9 (2011); David Thomas Konig, Why the Second
Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written
Constitutions in Revolutionary America, 56
UCLA L. REV. 1295, 1296–98 (2009); Saul Cornell,
Heller, New Originalism, and Law Office History: "Meet the New Boss, Same as the Old Boss,"
56
UCLA L. REV. 1095, 1096–98 (2009); Paul Finkelman, It Really Was About a Well Regulated
Militia, 59
SYRACUSE L. REV. 267, 267– 82 (2008).
293
N.Y. State Rifle & Pistol Ass’n., Inc. v. Bruen, 142 S. Ct. 2111, 2161–62, 2134–35, 2157–
58.
294
Id. at 2134–35.
295
Id. at 2126.
296
Id.
297
Id. at 2153–54.
46https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 669
Bruen majority concluded that modern, “shall issue” concealed carry licensing
regimes are presumed constitutional.
298
It is difficult to square the two without veering
into the realm of living constitutionalism or traditional tiers of scrutiny, the latter of
which Bruen cast off as being inconsistent with Heller.
299
It effectively highlights
how Bruen’s professed adherence to the “normal and ordinary” meaning of the Second
Amendment is more nominal than real.
300
It is jurisprudential fugazi at its core, and it
will be interesting to see what other “plain text” Second Amendment rights the courts
will come to recognize in the future.
What is for certain is that much like after Heller and McDonald, there will be an
avalanche of law review articles by gun rights advocates
301
arguing for a loose
interpretation of the “plain text.”
302
For instance, the phrase “bear arms” will be
fashioned to imply a bundle of ancillary Second Amendment rights, such as “bear
arms” implies the right to use said arms, and therefore all traditional uses of arms—to
include the sporting, hunting, and shooting— therefore must be placed under the same
presumption of liberty umbrella. And building off that implication, gun rights
advocates will assuredly argue that the sporting, hunting, and shooting with arms is
often communal, and therefore any large assembling of people with arms must be
afforded the same presumption of liberty. Similarly, as it pertains the “keeping” of
arms, gun rights advocates will advance a different bundle of ancillary Second
Amendment rights, such as to “keep” arms implies a right to acquire said arms, and
298
Id. at 2123–24; id. at 2157–58 n.1 (Alito, J., concurring); id. at 2161–62 (Kavanaugh, J.,
concurring).
299
Id. at 2128–30.
300
Similar criticisms were levied against Heller. See Nelson Lund, The Second Amendment,
Heller, and Originalist Jurisprudence, 56 UCLA
L. REV. 1343, 1344–45 (2009).
301
See, e.g., David B. Kopel, Does the Second Amendment Protect Firearms Commerce?,
127
HARV. L. REV. F. 230, 233– 37 (2014); Glenn Harlan Reynolds, Second Amendment
Penumbras: Some Preliminary Observations, 127
S. CAL. L. REV. 247, 248– 50 (2012); see
David T. Hardy, Ducking the Bullet: District of Columbia v. Heller and the Stevens Dissent,
2010
CARDOZO L. REV. DE NOVO. 61, 61– 62 (2010); STEPHEN P. HALBROOK, THE FOUNDERS’
SECOND AMENDMENT: ORIGINS OF THE RIGHT TO BEAR ARMS 1–6 (2008). Loosely interpreting
the Second Amendment’s text has long been a strategy of gun rights advocates. See, e.g., Eugene
Volokh, The Commonplace Second Amendment, 73 N.Y.U.
L. REV. 793, 801– 12 (1998)
(defining the Second Amendment’s operative clause with hypothetical wordplay and parsing
text); see Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62
TENN. L. REV.
461, 474 (1995) (“A well regulated militia was thus one that was well-trained and equipped; not
one that was ‘well-regulated’ in the modern sense of being subjected to numerous government
prohibitions and restrictions.”); Merritt A. Edson, The Right to Bear Arms, A
M. RIFLEMAN, July
1955, at 14 (“There has been so much conflicting ‘expert’ opinion, so many interpretations of
constitutional law, that it is hardly surprising that widespread confusion exists in the minds of
sincerely interested persons . . . . Many have attempted varied interpretations of [the Second
Amendment’s language]. We prefer to believe that the simple, straightforward language means
exactly what it says.”).
302
Bruen, 14 2 S. Ct. at 2126.
47Published by EngagedScholarship@CSU, 2023
670 CLEVELAND STATE LAW REVIEW [71:623
therefore all laws pertaining to the sale, purchase, and commerce of arms and
ammunition must therefore be afforded a presumption of liberty.
303
Simply put, the loose interpretational possibilities of the Second Amendment’s
“plain text” are potentially endless and gun rights advocates will assuredly do
everything possible to ensure these loose interpretations become a jurisprudential
reality. And it is not just the Second Amendment’s text that gun rights advocates will
interpret loosely. If past is prologue, textual looseness will be applied to all historical
texts to either expand gun rights or constrict federal, state, and local governments’
ability to enact gun control. A great example of this leading up to Bruen is the “terror
of the people” language that appeared regularly within legal commentary on the
Statute of Northampton from the early eighteenth century through the early nineteenth
century.
304
Starting in the mid-to-late 1970s, as part of a larger organized effort to
historically remake the Second Amendment,
305
several gun rights writers, seized on
this language to argue that a prosecution under the Statute of Northampton required
an individual to publicly carry the arms with “evil-intent.”
306
National Rifle
Association (“NRA”) lawyer David I. Caplan was notably the first to make the
historical claim.
307
It was then repeated by several other gun rights writers,
308
and the
circular citation gymnastics that is currently the bedrock of so many Second
Amendment myths and falsehoods quickly took hold.
309
What substantiated historical
evidence did these gun rights writers provide in the way of proving this “evil-intent”
303
This line of argument is totally consistent with the 1871 Tennessee Supreme Court
opinion Andrews v. State, 50 Tenn. 165, 178 (1871) (“The right to keep arms, necessarily
involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase
and provide ammunition suitable for such arms, and to keep them in repair. And clearly for this
purpose, a man would have the right to carry them to and from his home, and no one could
claim that the Legislature had the right to punish him for it . . . .”).
304
See, e.g., HENING, supra note 181, at 49; GEORGE WEBB, THE OFFICE AND AUTHORITY OF
A
JUSTICE OF PEACE 92 (1736).
305
CHARLES, ARMED IN AMERICA, supra note 3, at 279–95; see also L. Craig Wilson, Guns
and Today’s Students: The Education of Today’s Students is of Prime Importance if We Really
Want to Keep Our “Right to Bear Arms”, G
UNS MAGAZINE, Dec. 1970, at 26–27, 58 (article
sounding the gun rights alarm on educating young people on the importance of the Second
Amendment and opposing gun control).
306
See, e.g., Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second
Amendment, supra note 94, at 565;
Halbrook, The Right to Bear Arms in the First State Bills of
Rights, supra note 94, at 311; Gardiner,
supra note 94, at 71– 72; Dowlut & Knoop, supra note
94, at 202.
307
Caplan, Restoring the Balance, supra note 94, at 31–34.
308
See, e.g., Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second
Amendment, supra note 94, at 565;
Halbrook, The Right to Bear Arms in the First State Bills of
Rights, supra note 94, at 311; Gardiner,
supra note 94, at 71– 72; Dowlut & Knoop, supra note
94, at 202.
309
The alleged anti-immigrant origins of the 1911 Sullivan Law long advanced by gun rights
advocates is just one example. See Charles, A Historian’s Assessment of the Anti-Immigrant
Narrative in NYSPRA v. Bruen, supra note 233.
48https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 671
interpretation? Nothing really—just the phrase “terror of the people” as it appeared in
legal commentaries
310
and colonial statutes.
311
There was no affirmative case law that
gun rights writers could point to showing that “evil-intent” was indeed a prosecutorial
requirement under the Statute of Northampton.
312
Moreover, gun rights writers could
not provide even one historical example of this “evil-intent” requirement appearing in
newspapers, journals, periodicals, books, or correspondence.
The absence of any case law or other historically on-point evidence is not all that
surprising. As outlined in Part II.B on the lack of Massachusetts Model type armed
carriage law enforcement records, up through the turn of the twentieth century, most
law enforcement records, to include judicial decisions and Justice of the Peace, sheriff,
and constable records, have been lost to time. And those law enforcement records that
have miraculously survived are merely a tiny fraction of the whole. What this
ultimately leaves historians with is an abundance of legal commentaries to examine
and weigh the “evil-intent” requirement thesis. And it is here that the thesis quickly
falls apart at the historical seams. The reason is essentially three-fold. First, if one
examines the historical use of the language “terror of the people,” “fear of the people,”
or something similar in either legal commentaries or Justice of the Peace manuals, it
is clear that all are boilerplate legal language referring to an affray, or what was
otherwise known as a public (not private) offense that would be a breach of the public
peace.
313
And often an affray took place “where there is no actual violence; as where
a man arms himself with dangerous and unusual weapons, in such a manner as will
naturally cause a terror to the people . . . .”
314
310
See Mark Anthony Frassetto, To the Terror of the People: Public Disorder Crimes and
the Original Public Understanding of the Second Amendment, 43 S.
ILL. U. L.J. 61, 69, 71–72
(2018).
311
See, e.g., Act of Jan. 29, 1795, ch. 25, 1795 Mass. Laws, reprinted in 2 THE PERPETUAL
LAWS, OF THE COMMONWEALTH OF MASSACHUSETTS, FROM THE ESTABLISHMENT OF ITS
CONSTITUTION TO THE SECOND SESSION OF THE GENERAL COURT, IN 1798, at 259 (1799); Act of
Nov. 27, 1786, ch. 21, 1786 Va. Laws, in A
COLLECTION OF ALL SUCH ACTS OF THE GENERAL
ASSEMBLY OF VIRGINIA, OF PUBLIC AND PERMANENT NATURE, AS ARE NOW IN FORCE 33 (1794).
312
Rex v. Knight is the only case that gun rights advocates have pointed to. However, as
outlined in Part II.A., a full historical examination of the case rebuts the evil-intent
interpretation. Moreover, there is not one instance to be found—not one case, legal summary,
legal commentary, newspaper, or journal article, nor correspondence—where the case was
discussed or cited as implementing an evil-intent requirement. See, e.g., Saul Cornell, The Long
Arc of Arms Regulation in Public: From Surety to Permitting, 55 U.C.
DAVIS 2545, 2555 (2022).
313
See, e.g., BLACKSTONE, supra note 71, at 145; HAWKINS, supra note 93, at 134. See also
Frassetto, supra note 310, at 69, 71–72.
314
HENING, supra note 181, at 17 (emphasis added). See also A NEW CONDUCTOR GENERALIS
27 (1803) (“Bu t although no bare words, in the judgment of law, carry in them so much terror
as to amount to an affray, yet it seems certain, that in some cases there may be an affray, where
there is no actual violence: as where a man arms himself with dangerous and unusual weapons,
in such a matter as will naturally cause a terror to the people.”); 3 J
AMES WILSON, THE WORKS
OF THE
HONOURABLE JAMES WILSON, L.L.D. 79 (Bird Wilson ed., 1804) (“In some cases, there
may be an affray, where there is no actual violence; as where a man arms himself with dangerous
and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.”).
49Published by EngagedScholarship@CSU, 2023
672 CLEVELAND STATE LAW REVIEW [71:623
The second reason the “evil-intent” requirement thesis falls apart is it is often
packaged and sold by gun rights advocates as an assault with a deadly weapon
requirement.
315
Yet such an interpretation is clearly at odds with how legal
commentators, to include William Lambarde, William Hawkins, Michael Dalton, and
William Blackstone, described the prosecutorial scope of the Statute of
Northampton.
316
Each made a clear legal distinction between the crime of assault with
a deadly weapon and the armed carriage provisions contained within the Statute of
Northampton.
317
This brings us to the third and last reason the “evil-intent” requirement thesis falls
apart. When read in conjunction with the Statute of Northampton’s entire legal
commentary, the “evil-intent” requirement is legal nonsense. William Hawkins’ 1716
treatise Pleas of the Crown is a great example of this.
318
For instance, Hawkins wrote
that under the Statute of Northampton a person “cannot excuse the wearing such
315
See, e.g., David T. Hardy, District of Columbia v. Heller and McDonald v. City of
Chicago: The Present as Interface of the Past and Future, 3
NE. L. J. 199, 205 (2011); Eugene
Volokh, The First and Second Amendments, 109
COLUM. L. REV. SIDEBAR 97, 101– 02 (2009).
316
Compare 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 120
(1768) (describing an assault as “an attempt or offer to beat another, without touching him: as
if one lifts up his cane, or his fist, in a threatening manner at another”), with B
LACKSTONE, supra
note 71, at 148–49 (“riding or going armed, with dangerous or unusual weapons, is a crime
against the public peace, by terrifying the good people of the land; and is particularly prohibited
by the Statute of Northampton . . . in like manner as, by the laws of Solon, every Athenian was
finable who walked about the city in armour”); compare D
ALTON, supra note 70, at 141 (sureties
for the peace may be enforced “[i]f any Constable shall perceive any other persons (in his
presence) to be about to breake the peace, either by drawing weapons, or by striking, or
assaulting one another . . . hee may take assistance, and carrie them all before the Justice to
finde sureties for the peace”), with
DALTON, supra note 70, at 141 (sureties of the peace may be
enforced by a constable “of such as in his presence shall goe or ride Armed offensively, . . . for
these are accompted to be in affray and feare of the people, and a meanes of the breach of the
peace”); compare H
AWKINS, supra note 93, at 133–34, ch. 63, § 1 (including in the definition
of assault “an Attempt, or Offer, with Force and Violence to do a corporal Hurt to another; as
by striking at him with, or without, a Weapon, or presenting a Gun at him, at such a Distance to
which the Gun will carry, or pointing a Pitch-fork at him, standing within the Reach of it, or by
holding up one's Fist at him, or by any other such Act done in an angry threatening Manner”),
with H
AWKINS, supra note 93, at 135, ch. 63, § 4 (citing the Statute of Northampton in writing,
“in some Cases there may be an Affray where there is no actual Violence; as where a Man arms
himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror
to the People”); 1 W
ILLIAM LAMBARDE, EIRENARCHA: OR THE OFFICE OF THE JUSTICES OF THE
PEACE, IN TWO BOOKES 134– 35 (1581) (“Yet it may be done, without word, or blow given: as
if a man shall shew himself furnished with armor or weapon, which is not usually worne and
borne, it will strike a feare onto others that be not armed as he[] is: and therefore both the Statute
of Northampton . . . & the writ therupon grounded, do speake of it by the words, effray del pais,
and in terrorem populi. But an Assault, as it is fetched from another fountain . . . so can it not
be performed, without the offer of some hurtfull blow” and “Assault doth not alwa[ys]
necessarily imply a hitting.”) (emphasis added); see also J. W. Cecil Turner, Assault at Common
Law, 7 C
AMBRIDGE L. J. 56– 57, 67 (1939).
317
See sources cited supra note 313.
318
HAWKINS, supra note 93, at 136, ch. 63, § 8.
50https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 673
Armour in Publick, by alledging that such a one threatened [them], and that [they]
wear[] it for the Safety of [their] Person from . . . Assault . . . .”
319
If one inserts an
“evil-intent” requirement into this sentence, it reads as utter gibberish. Why and in
what circumstances would someone wear arms or armor for self-defense with “evil-
intent,” and exactly how would one go about proving it? The same headscratcher
presents itself for Hawkins’ follow-on statement that a person shall not be inviolate of
the Statute of Northampton if they assemble their “Neighbours and Friends in [their]
own House, against those who threaten to do [them] any Violence . . . .”
320
How and
in what circumstances would the “evil-intent” requirement fit here? The answer is it
does not. Lastly, consider Hawkins’ exception for persons called upon through the hue
and cry to assist with suppressing rioters and disturbers of the peace.
321
Are we to
believe that Hawkins was describing a legal exception for anyone caught carrying with
“evil-intent” while they were called upon to preserve the peace? The answer is no.
Such an interpretation is preposterous. But if one goes back and reads Hawkins’ legal
commentary with the understanding that the Statute of Northampton generally
prohibited armed carriage in public places, all three exceptions make perfect sense.
The point to be made is that by accepting the “evil-intent” requirement
interpretation of the Statute of Northampton at face value, virtually all the listed
exceptions to the Statute become legally superfluous.
322
And it is highly doubtful that
Hawkins and other legal commentators would have taken the time to list so many
exceptions to the rule with no actionable purpose at all. Essentially, what the gun rights
writers responsible for pushing the “evil-intent” requirement failed to historically
grasp is that the Statute of Northampton’s restriction on going armed in the public
concourse was highly adaptable, discretionary, and subject to local interpretation.
323
This was true of most crimes and misdemeanors in the Anglo-American common law
system.
324
But in the case of the Statute of Northampton, as several seventeenth and
eighteenth century legal commentaries attest, the prohibition on going armed in the
public concourse was meant to be general with exceptions.
325
319
Id.
320
Id.
321
Id. at 136, ch. 63, § 10.
322
See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2183–84 (2022) (Breyer,
J., dissenting) (discussing the historical problems with the evil intent interpretation of the Statute
of Northampton).
323
Saul Cornell, History, Text, Tradition, and the Future of Second Amendment
Jurisprudence, supra note 46, at 82–83; see also B
ISHOP, supra note 85, at § 784 (“But the
statute [of Northampton] bears date long anterior to the settlement of this country, it is of a sort
adapted to the wants of every civilized community . . . .”) (emphasis added).
324
For some useful discussions, see Stone, supra note 203, at 4–5; Lewis, supra note 203, at
465– 66,
472, 482– 83.
325
See generally Charles, The Statute of Northampton by the Late Eighteenth Century, supra
note 68.
51Published by EngagedScholarship@CSU, 2023
674 CLEVELAND STATE LAW REVIEW [71:623
But despite the “evil-intent” requirement thesis’s lack of historical viability, or
even legal sensibility for that matter, Bruen accepted it as true.
326
Granted, the
existence of “terror of the people” language in Statute of Northampton restatements
raises serious historical questions as to the overall prosecutorial scope of the Statute,
as well as how, if at all, the Statute was enforced within the American Colonies up
through the early nineteenth century.
327
However, the Bruen majority interpreted this
language in a way that cannot withstand even basic historical scrutiny.
328
Exactly how
and why the Bruen majority came to accept the unsubstantiated “evil-intent”
requirement as true is unclear. If footnote eleven is any indication, it appears the
answer is that the “evil-intent” interpretation was seen as historically “plausible.”
329
And, according to Bruen, whenever the Court is presented with “multiple plausible
interpretations” of historical text, the winning interpretation is not the one that can be
factually verified or logically deduced based on the totality of the evidence.
330
No, the
winning interpretation is whichever the Court deems “more consistent” with the
constitutional text’s “command.”
331
The central problem with this approach to interpreting text is it contradicts the
reasons why history is ever relied upon in constitutional law—these reasons being
judicial objectivity, accuracy, restraint, and predictability.
332
To be clear, history is
principally relied upon in constitutional law because it provides guardrails that help
cabin judicial activism.
333
Yet, if one follows Bruen’s line of historical thinking, these
guardrails, at least in the Second Amendment context, are illusory. It has long been
said that “history is in the eye of the beholder,” which means that different people can
perceive the same historical event differently depending upon multiple factors.
Clearly, as Bruen shows, the same can be said of historical texts. The original or
popular understanding of any historical text can be fashioned or flexed to mean
whatever the respective modern interpreter wants it to.
334
It is what English historian
326
Bruen, 142 S. Ct. at 2141.
327
See Frassetto, supra note 310, at 69, 71–72.
328
Bruen, 142 S. Ct. at 2141.
329
Id. at 2141 n.11.
330
Id.
331
Id.
332
CHARLES, HISTORICISM, ORIGINALISM, AND THE CONSTITUTION, supra note 35, at 5–28,
87– 98.
333
See, e.g., David F. Forte, A Note on the Originalist Perspective, in THE HERITAGE GUIDE
TO THE
CONSTITUTION 21– 26 (2d ed. 2014); Keith E. Whittington, Originalism: A Critical
Introduction, 82
FORDHAM L. REV. 375, 375– 77 (2013); JOHN O. MCGINNIS & MICHAEL B.
RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION 1–3 (2013); ANTONIN SCALIA &
BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 399– 402 (2012). But see
David A. Strauss, Originalism, Conservatism, and Judicial Restraint, 34
HARV. J. L. & PUB.
POL’Y 137, 137– 42 (2011) (arguing that originalism does not really advance the cause of judicial
restraint).
334
BUTTERFIELD, supra note 90, at 30.
52https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 675
Herbert Butterfield aptly referred to as a “pathetic fallacy” because the modern
interpreter is at leisure to form historical conclusions apart from the original writer’s
intended or actual purpose.
335
B. Bruen’s History and Tradition Problem
In Part III.A the accuracy and objectivity problems surrounding the Bruen
majority’s approach to historical text were laid out to bare.
336
As will be outlined
below, the majority’s approach to history and tradition are equally problematic. At
first glance, Bruen’s stipulation that the government must “demonstrate that the
regulation is consistent with this Nation’s historical tradition of firearm regulation”
appears rather straightforward and even keeled.
337
In fact, writing more than a decade
ago, this author proffered the same baseline test for Second Amendment cases and
controversies.
338
Moreover, as the Bruen majority correctly notes, history and
tradition have informed how the courts should “protect other constitutional rights.”
339
So, why not rely upon the history and tradition in defining the scope of the Second
Amendment as well? Few historians, legal scholars, and jurists, if any, will answer a
hard “no” to this question. History is the law, and the law is history.
340
The two
disciplines are inseparable.
However, the problem is not with Bruen’s resort to history. Rather, it is how it is
employed. There are plenty of examples within Bruen to point to. Consider the
presumption of liberty given to which “arms” are constitutionally protected under the
Second Amendment. According to the Bruen majority, the term “arms” must be read
335
Id.
336
See infra Part III.A.
337
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).
338
Charles, The Second Amendment in Historiographical Crisis, supra note 22, at 1859–60
(noting that post-McDonald the Second Amendment history and tradition test should be that
“federal and state legislatures retain the authority to regulate arms, in both public and private,
if there is evidence that there has been a ‘long tradition’ of regulation in the prospective area . .
. On the one hand, the Court could place the burden on the challenging party to provide historical
evidence that the above mentioned areas of regulation were perceived as violating the right to
keep and bear arms. On the other hand, the Court could place the burden on the government to
show a ‘long tradition’ of regulation. Wherever the burden is placed, the Court’s test should be
flexible enough as to allow legislatures to update or tailor the ‘long tradition’ of regulation by
taking into account the capabilities of modern weapons and firearms.”).
339
Bruen, 142 S. Ct. at 2130. See also Brown v. Ent. Merch. Ass’n, 131 S. Ct. 2729, 2734
(201 1) (noting that in the First Amendment arena legislatures cannot regulate “new categories
of unprotected speech” without “persuasive [historical] evidence” that the “content is part of a
long . . . tradition of proscription”); United States v. Stevens, 559 U.S. 460, 472 (2010) (“Our
decisions . . . cannot be taken as establishing a freewheeling authority to declare new categories
of speech outside the scope of the First Amendment. Maybe there are some categories of speech
that have been historically unprotected, but have not yet been specifically identified or discussed
as such in our case law.”).
340
Matthew J. Festa, Applying a Usable Past: The Uses of History in Law, 38 SETON HALL
L. REV. 479, 483– 85 (2008); MILLER, THE SUPREME COURT AND THE USES OF HISTORY, supra
note 36, at 20–21.
53Published by EngagedScholarship@CSU, 2023
676 CLEVELAND STATE LAW REVIEW [71:623
to extend “to all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding.”
341
In other words, what the majority is stating
is that all modern firearms that “facilitate armed self-defense” are presumed to be
constitutionally protected.
342
Conversely, when it comes to regulating these same
“arms,” the burden rests squarely on the government to prove that their respective
regulation is not only consistent with history and tradition, but also “analogous” to a
particular type of historical regulation.
343
This creates quite the analytical double
standard given that what “arms” are protected under the Second Amendment is guided
by living constitutionalism, yet the manner in which governments may regulate those
same “arms” is restrained by history and tradition. And if one takes Bruen at its word,
there does not appear to be much historical leeway for governments when it comes to
regulation. Indeed, at one point in the Bruen opinion it states that “analogical
reasoning under the Second Amendment is neither a regulating straightjacket nor a
regulatory blank check,” and that in practice the government need only “identify a
well-established and representative analogue, not a historical twin.”
344
At the same,
time, however, Bruen stipulates that should the government attempt to adopt a new
regulatory means of addressing the age-old problem of firearms-related violence, it
could very well serve as “evidence” that the new regulatory means is
“unconstitutional.”
345
Another analytical double standard presents itself in Bruen’s discussion on the
“sensitive places” doctrine—a doctrine that makes it constitutionally permissible for
governments to outright prohibit the carrying, transport, or use of “arms” at specific,
sensitive locations.
346
“Although the historical record yields relatively few [examples]
where weapons were altogether prohibited—e.g., legislative assemblies, polling
places, and courthouses—we are also aware of no disputes regarding the lawfulness
of such prohibitions,” notes Bruen majority, adding, “[w]e therefore can assume it
settled that these locations were ‘sensitive places’ where arms carrying could be
prohibited consistent with the Second Amendment.”
347
Here, the Bruen majority notes
that a lack of historical evidence is sufficient for presuming the constitutionality of
laws prohibiting dangerous weapons at specific, sensitive locations.
348
Yet later in the
opinion, the majority notes that the lack of Massachusetts Model or “surety law”
enforcement records justifies the Court in dismissing it as “too slender a read on which
to hang a historical tradition of restricting the right to public carry.”
349
It is difficult
341
Bruen, 142 S. Ct. at 2132.
342
Id. (emphasis added).
343
Id. at 2130–31.
344
Id. at 2133.
345
Id. at 2131.
346
Id. at 2133.
347
Id.
348
Id.
349
Id. at 2149.
54https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 677
to see how the Bruen majority can justify relying on a lack of evidence to support one
conclusion, and then make the very same observation to support the opposite
conclusion.
350
This is neither a holistic nor honest approach to history-in-law. It is
fugazi “law office history.” And it is not the only place in the Bruen opinion which it
applies.
Bruen’s embrace of the common law prohibition on carrying dangerous and
unusual weapons is another case in point.
351
Recall the majority’s rationale for
rejecting Massachusetts Model type armed carriage laws as evidence of a historical
tradition restricting the carrying of firearms in public places—i.e., a lack of court and
enforcement records.
352
Yet if one applies the same ‘lack of historical evidence’
rationale to the common law prohibition on carrying of dangerous and unusual
weapons in public, this historical tradition too must be cast aside as evidence deficient.
The reason being there is no substantive case law or illustrative examples that
historically inform what constituted a weapon being too “dangerous” or “unusual” to
carry.
353
Indeed, from the mid-seventeenth century through the early nineteenth
century, the common law prohibition on carrying dangerous and unusual weapons is
frequently restated in legal commentaries.
354
However, in contrast to Massachusetts
Model type armed carriage laws, which at least provides historians with a handful of
enforcement examples,
355
as well as a historically informative body of law on when a
threat was indeed imminent to justify going publicly armed,
356
the common law
350
Id. at 2133, 2149.
351
Id. at 2143; id. at 2162 (Kavanaugh, J., concurring).
352
Id. at 2149.
353
As best as this author can tell, the term “unusual weapons” first appears in Matthew
Hale’s Pleas of the Crown, but not in the context of armed carriage in the public concourse.
Rather, it appears in the context of “forcible entry.” See M
ATTHEW HALE, PLEAS OF THE CROWN
138 (1678).
354
See, e.g., BLACKSTONE, supra note 71, at 148–49; WILSON, COLLECTED WORKS OF JAMES
WILSON, supra note 190, at 1138, 1170–71.
355
Leider, Constitutional Liquidation, Surety Laws, and the Right to Bear Arms, supra note
222, at 15–17. See Concealed Weapons, T
HE CRIM. L. MAG. & REP., Oct. 1886, at 413– 14.
356
See Concealed Weapons, supra note 355, at 413–14. This body of law was not limited to
Massachusetts Model type armed carriage laws. See Tipler v. State, 57 M. 365 (1880), reprinted
in 57
REPORTS OF CASES IN THE SUPREME COURT FOR THE STATE OF MISSISSIPPI 685– 87 (1880).
During the mid-to-late nineteenth century, several localities enacted concealed carry
prohibitions with ‘reasonableness’ exceptions. For some examples, see McCracken, Kan.,
Ordinance 8
(Aug. 27, 1898), reprinted in MCCRACKEN ENTERPRISE (Kan.), Sept. 9, 1898, at 4
(excepting from the town’s concealable weapon prohibition, regardless of whether the carriage
was concealed or open, those “engaged in any legitimate business”); Beatrice, Neb., An
Ordinance, Making it Unlawful to Carry Any Concealed Weapons . . . in the City of Beatrice,
and Providing Penalties for its Violation (Mar. 23, 1897), reprinted in B
EATRICE DAILY TIMES
(Neb.), Apr. 7, 1897, at 2 (excepting from the town’s concealed carry prohibition those that
carried “in the pursuit of any lawful business, calling or employment, and the circumstances in
which he was placed at the time aforesaid were such as to justify a prudent man in carrying the
weapon or weapons aforesaid for the defense of his person, property or family”); Wallace, Kan.,
Ordinance 5 (Nov. 26, 1887), reprinted in W
ALLACE COUNTY REGISTER (Kan.), Dec. 3, 1887,
55Published by EngagedScholarship@CSU, 2023
678 CLEVELAND STATE LAW REVIEW [71:623
prohibition on carrying dangerous and unusual weapons produces none. Not one.
Therefore, if one faithfully applies Bruen’s reasoning on the Massachusetts Model’s
lack of enforcement evidence, it is difficult to see how the common law prohibition
on carrying dangerous and unusual weapons can survive future court scrutiny. For,
without any history informing us how to adjudicate a weapon’s dangerousness or
unusualness, the courts will ultimately have to make up a legal standard based on some
form of interest balancing. Yet this is something that Bruen outright rejects.
Conversely, if we take a step backwards and faithfully apply Bruen’s own
reasoning on the lack of historical evidence challenging the constitutionality of mid-
to-late nineteenth century “sensitive places” laws—i.e., that the lack of historical
evidence constitutionally challenging “sensitive places” laws presumes their
constitutionality—it is fair to argue that the entire holding in Bruen is wrong given the
contemporaneous existence of discretionary armed carriage licensing laws.
357
For not
only were discretionary armed carriage licensing laws widespread during the mid-to-
late nineteenth century, but these laws were also never sufficiently challenged on
constitutional grounds.
358
And, analytically speaking, the fact that the public
understanding of these discretionary armed carriage licensing laws was that they
respected and preserved the Second Amendment (not violated it) would appear to only
bolster this conclusion.
359
The simple point is that Bruen’s approach to history-in-law is downright
hypocritical. While it is easy for the Bruen majority, or anyone for that matter, to
proclaim that jurists and legal scholars are well-suited to conduct historical inquiries
at 3 (excepting from the town’s armed carriage prohibition, both concealed and open carriage,
those “engaged in the pursuit of any lawful business calling or employment and the
circumstances in which such person is placed at the time aforesaid are such as to justify a
prudent man in carrying such weapon for the defense of his person, property or family nor cases
where any person shall carry such weapons openly in his hands for the purpose of sale, barter
or of repairing the same or for use in any lawful occupation requiring use of the same.”); Grand
Island, Neb., Ordinance 88 (Dec. 22, 1885), reprinted in G
RAND ISLAND DAILY INDEPENDENT
(Neb.), Dec. 28, 1885, at 2 (excepting from the town’s concealed carry prohibition those that
carried “in the pursuit of any lawful business, calling or employment that necessitated carrying
the weapons aforesaid for the defense of his or her person, family, or property”); N
ASHVILLE,
TENN., ORDINANCES ch. 108 (1873), reprinted in ORDINANCES OF THE CITY OF NASHVILLE 340–
41 (1881) (excepting from the city’s concealable weapon prohibition, regardless of whether the
carriage was concealed or open, those “entitled by law to carry such weapons” and when the
“act of handling or moving such deadly weapons in any ordinary business way.”); O
MAHA,
NEB., REV. ORDINANCES ch. 28, reprinted in REVISED ORDINANCES OF THE CITY OF OMAHA 85,
86– 87 (1872) (excepting from the city’s concealed carry prohibition “well known and worthy
citizens or persons of good repute who may carry arms for their own protection in going to or
from their place or places of business, if such business be lawful.”).
357
See infra pp. 659– 65 and accompanying notes.
358
See Ex parte Cheney, 90 Cal. 617, 618–22 (1891) (upholding a constitutional challenge
to an armed carriage licensing law, albeit it none on Second Amendment grounds); Concealed
Weapons: Judge Brannon's Decision on This Subject, W
HEELING REGISTER (W. Va.), Oct. 15,
1883, at 1 (upholding a constitutional challenge to Wheeling, West Virginia’s armed carriage
licensing law).
359
See infra note 3; see also Charles, The Invention of the Right to ‘Peaceable Carry’ in
Modern Second Amendment Scholarship, supra note 46, at 196–98.
56https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 679
by relying on “‘evidentiary principles and default rules’ to resolve uncertainties,”
360
it is quite another thing to apply said principles and rules faithfully, transparently, and
holistically. If Bruen has taught the legal and historical communities anything, it is
that the honest and objective practice of history-in-law is difficult for even our most
learned jurists and legal scholars.
361
It is hubris to believe—as the Bruen majority
apparently does—that the courts are better off picking and choosing from a “historical
record compiled by the parties”
362
than relying on actual, no-kidding, historically and
factually conscious research and analysis.
363
The former generally facilitates
mythmaking, the latter much less so. This is especially true in the Second Amendment
context given how, for decades, gun rights advocates have proactively hyperbolized
and fabricated history in law review articles through their tried and true practice of
circular citation gymnastics.
364
Additionally, to draw the courts’ attention to this
hyperbolized and fabricated history, gun rights advocates regularly stack case legal
dockets in their favor through the submission of ideologically slanted amicus briefs—
many of which are paid from the very same coffers as the party or parties challenging
the law.
365
Simply put, our adversarial legal system, at least as currently constituted, is not all
that conducive to providing the courts with honest and objective history from which
to jurisprudentially reason. This is largely because the courts are receiving their history
not from experienced historians or respected historical works, but from lawyers and
“motivated groups that are pressing for a particular outcome.”
366
As Allison Orr
Larsen aptly notes, “the history [these lawyers and motivated groups] present . . . is
360
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 n.6 (2022).
361
To borrow from Oliver Wendell Holmes: “In order to know what [the law] is, we must
know what it has been, and what it tends to become. We must alternately consult history and
existing theories of legislation. But the most difficult labor will be to understand the
combination of the two into new products at every stage.” O
LIVER WENDELL HOLMES, THE
COMMON LAW 1 (1881) (emphasis added).
362
Brue n, 142 S. Ct. at 2130 n.6 (quoting William Baude and Stephen E. Sachs, Originalism
and the Law of the Past,
37 L. & HIST. REV. 809, 810– 11 (2019)).
363
Id. at 2177–78 (Breyer, J., dissenting); see also Kelly, supra note 34, at 155–56 (“Counsel
preparing briefs do not attempt to present a court with balanced and impartial statements of
truth. On the contrary, counsel are expected to put the best face possible on all relevant matters
. . . The object of this process is not objective truth, historical or otherwise, but advocacy—i.e.,
the assertion of a client’s interests.”).
364
See CHARLES, ARMED IN AMERICA, supra note 3, at 279–95; Charles, The Second
Amendment in Historiographical Crisis, supra note 22, at 1735–827.
365
Will Van Sant, The NRA’s Shadowy Supreme Court Lobbying Campaign, POLITICO (Aug.
5, 2022), www.politico.com/interactives/2022/nra-supreme-court-gun- lobbying/.
366
Allison Orr Larsen, Opinion: The Supreme Court Decisions on Guns and Abortion Relied
Heavily on History. But Whose History?, P
OLITICO (Jul y 26, 2022),
www.politico.com/news/magazine/2022/07/26/scotus-history-is-from -motivated-
advocacy-groups-00047249.
57Published by EngagedScholarship@CSU, 2023
680 CLEVELAND STATE LAW REVIEW [71:623
mounted to make a point and served through an advocacy sieve.”
367
And today,
considering Bruen’s constitutional endorsement of “plausible” history,
368
the Second
Amendment arena is more primed than ever for gun rights litigants to advance
outlandish, hyperbolic, and unsubstantiated historical claims. The American
Revolution was started due to British attempts at gun control,
369
one of the grievances
in the Declaration of Independence was written with gun control in mind,
370
the
founders believed in the formation and sustainment of militias independent from
government,
371
and there were no gun controls laws on the books in the American
Colonies and later United States until the turn of the nineteenth century
372
are just
some of the outlandish, unsubstantiated historical claims advanced in gun rights
circles over the past thirty years. But perhaps the worst, most egregious example
373
of
them all is the ‘all gun control is racist’ claim.
374
For more than three decades this
367
Id.
368
Bruen, 142 S. Ct. at 2141 n.11.
369
See, e.g., HALBROOK, THE FOUNDERS’ SECOND AMENDMENT, supra note 301, at 75– 108,
328– 30; Guns and Independence, AM. RIFLEMAN, July 1976, at 20. For a rebuttal, see Charles,
The Second Amendment in Historiographical Crisis, supra note 22, at 1777–80.
370
See, e.g., David B. Kopel, How the British Gun Control Program Precipitated the
American Revolution, 6 C
HARLESTON L. REV. 283, 284– 86 (2012). For a rebuttal, see Charles,
The Second Amendment in Historiographical Crisis, supra note 22, at 1784–91.
371
See, e.g., STEPHEN P. HALBROOK, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILL OF
RIGHTS AND CONSTITUTIONAL GUARANTEES 51– 52, 61– 62 (1989). For a rebuttal, see Patrick J.
Charles, The 1792 National Militia Act, the Second Amendment, and Individual Militia Rights:
A Legal and Historical Perspective, 9 G
EO. J. L. & PUB. POL’Y 323, 374– 79 (2011).
372
See, e.g., Nelson Lund, Second Amendment Standards of Review in a Heller World, 39
F
ORDHAM L. J. 1617, 1619–21 (2012); Nelson Lund, No Conservative Consensus Yet: Douglas
Ginsburg, Brett Kavanaugh, and Diane Sykes on the Second Amendment, 13 E
NGAGE 30, 30
(2012); Lund, The Second Amendment, Heller, and Originalist Jurisprudence, supra note 300,
at 1368.
See also Brief for Historians, Legal Scholars, and CRPA Foundation as Amici Curiae
Supporting Appellees and in Support of Affirmance, Wrenn v. District of Columbia, 808 F.3d
81 (D.C. Cir. 2015) (No. 15-7057), at 15–33; Brief for Academics for the Second Amendment
as Amicus Curiae Supporting Petitioners, Kachalsky v. County of Westchester, 701 F.3d 81 (2d
Cir. 2012) (No. 12-845), at 16–18. For a rebuttal, see Charles, The Second Amendment in
Historiographical Crisis, supra note 22, at 1830–31.
373
See, e.g., Darrell A.H. Miller, Conservatives Sound Like Anti-Racists—When the Cause
is Gun Rights, W
ASH. POST (Oct. 27, 2021),
www.washingtonpost.com/outlook/2021/10/27/gun-rights-anti -racism-bruen-
conservative-hypocrisy/.
374
See generally Patrick J. Charles, Racist History and the Second Amendment: A Critical
Commentary, 43 C
ARDOZO L. REV. 1343, 1344–45, 1359–61 (2022); Patrick J. Charles, Some
Thoughts on Addressing Racist History in the Second Amendment Context, D
UKE SECOND
THOUGHTS BLOG (Jan. 14, 2022), firearmslaw.duke.edu/2022/01/some-thoughts-on-
addressing-racist-history-in-the -second-amendment-context/.
58https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 681
historical claim has permeated gun rights literature
375
and was front and center in
Bruen amicus briefs supporting petitioners.
376
And although Bruen did not outright
endorse the ‘all gun control is racist’ historical claim, it did invoke at least one aspect
of the narrative—an invocation based on the most circumstantial of historical evidence
no less
377
—in its analysis of Massachusetts Model type armed carriage laws.
378
This
invocation will only further embolden gun rights writers and litigants to present even
more circumstantial, i.e., “plausible” evidence of racism or racist effects to show that
any respective firearms regulation is unconstitutional.
And while the Bruen opinion, through its analytical double-standards and
hypocritical approach to history-in-law, appears to stack the constitutional deck in
favor of gun rights and against gun control, there is a jurisprudential and history-in-
law argument to be made that government defendants will also be able to play loose
with history.
379
This argument can be found in Associate Justice Brett Kavanaugh’s
concurring opinion, joined by Chief Justice John Roberts
380
Therein, Justice
Kavanaugh writes that if Bruen’s approach to text, history, and tradition is applied
properly by the lower courts, a “variety” of firearms regulations will ultimately
375
See STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE
PEOPLE OR A PRIVILEGE OF THE RULING CLASS? 264– 75 (2021); Brief for National African
American Gun Association, Inc. as Amicus Curiae Supporting Petitioners, N.Y. State Rifle &
Pistol Association, N.Y. State Rifle & Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019)
(No. 18-280), at 22–30 (authored by Stephen P. Halbrook); David B. Kopel, The Racist Roots
of Gun Control, E
NCOUNTER BOOKS (Feb. 23, 2018),
www.encounterbooks.com/features/racist-roots -gun- control/; David B. Kopel & Joseph
Greenlee, The Racist Origin of Gun Control Laws, T
HE HILL (Aug. 22, 2017),
thehill.com/blogs/pundits-blog/civil-rights/347324-the -racist-origin-of-gun- control-
laws; D
AVID B. KOPEL, THE TRUTH ABOUT GUN CONTROL 11– 15 (2013); Robert J. Cottrol &
Raymond T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms
Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?,
70
CHICAGO-KENT L. REV. 1307, 1307–11 (1995); Clayton E. Cramer, The Racist Roots of Gun
Control, 4
KAN. J. L. & PUB. POL’Y 17, 17 (1994); see a lso Timothy Zick, Framing the Second
Amendment: Gun Rights, Civil Rights and Civil Liberties, 106
IOWA L. REV. 229, 242– 45 (2020).
376
See, e.g., Joseph Blocher & Reva B. Siegel, Race and Guns, Courts and Democracy, 135
H
ARV. L. REV. F. 449, 451, 452, 455 (2022).
377
See Brief for Robert Leider et al. as Amici Curiae Supporting Petitioners, N.Y. State Rifle
& Pistol Ass’n v. City of New York, 139 S. Ct. 939 (2019) (No. 18-280), at 31–32; Leider,
Constitutional Liquidation, supra note 222, at 15–17.
378
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2149 (2022).
379
See, e.g., United States v. Charles, 2022 U.S. Dist. LEXIS 180375, at 17–18, *23 (W.
D. Tex. 2022) (noting that Bruen does not create an “inflexible” test for the courts in analogizing
histo ry and tradition); see also United States v. Seiwart, 2022 U.S. Dist. LEXIS 175417, at *4–
5 (N. D. Ill. 2022); United States v. Coombes, 2022 U.S. Dist. LEXIS 170323, at 12–*26 (N.
D. Okla. 2022); United States v. Kays, 2022 U.S. Dist. LEXIS 154929, at 5–11 (W.D. Okla.
2022).
380
Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring).
59Published by EngagedScholarship@CSU, 2023
682 CLEVELAND STATE LAW REVIEW [71:623
withstand constitutional scrutiny.
381
And in offering this assurance, Justice
Kavanaugh reaffirmed Heller’s and McDonald’s list of longstanding, presumptively
constitutional firearms regulations.
382
Interestingly among this list are three categories
of firearms regulations—“prohibitions on the possession of firearms by felons and the
mentally ill . . . [and] laws imposing conditions and qualifications on the commercial
sale of arms”
383
—that did not begin to take hold in the United States until the early-
to-mid twentieth century.
384
This embrace of early-to-mid twentieth century regulations as presumptively
lawful by Justice Kavanaugh is noteworthy because the Bruen majority opinion was
forthright in dismissing all twentieth century history as unpersuasive in determining
the meaning of the Second Amendment.
385
This history-in-law choice contained
within the majority opinion could—if isolated from Bruen concurring opinions—
constitutionally upend all firearm regulatory categories post-1900.
386
Take for
example any firearms regulations based on alienage.
387
Firearms regulations based on
alienage did not become prevalent (and certainly were not widespread) in the statute
and ordinance books until the early to mid-twentieth century.
388
Considering this fact
alongside the fact that the Second Amendment’s text plainly states that the right to
“keep and bear arms” belongs to “the people,”
389
not just citizens, unless government
defendants are allowed to play loose with history—that is rely on the history of federal,
state, and local immigration and alienage powers
390
—then all firearms regulations
based on alienage must be nullified and ruled unconstitutional.
381
Id. at 2162.
382
Id.
383
Id.
384
Indeed, the legislative genesis for these categories of firearms laws began in the late
nineteenth century. C
HARLES, ARMED IN AMERICA, supra note 3, at 156–57. However, it would
not be until the early twentieth century, with the political backing of gun rights supporters, that
the categories became widespread. Id. at 194–230.
385
Bruen, 142 S. Ct. at 2154 n.28.
386
See, e.g., United States v. Price, 2:22-cr-00097, 2022 U.S. Dist. LEXIS 186571 (S.D. W.
Va. 2022) (striking down 18 U.S.C. § 922(k), which prohibits the transport of any firearm with
the “serial number removed, obliterated, or altered,” as unconstitutional because serial numbers
were not required on firearms until the twentieth century).
387
See, e.g., 18 U.S.C. § 922(g)(5) (West 2022).
388
The first prevalent firearms restrictions based on alienage were part of the Capper Bill
and later the Uniform Firearms Act. For a history, see C
HARLES, ARMED IN AMERICA, supra note
3, at 194–204.
389
See Pratheepan Gulasekaram, “The People,” Citizenship, and Firearms, DUKE SECOND
THOUGHTS BLOG (Jan. 13, 2022), firearmslaw.duke.edu/2022/01/the-people-citizenship-
and- firearms/; Pratheepan Gulasekaram, “The People” of the Second Amendment: Citizenship
and the Right to Bear Arms, 85 N.Y.U.
L. REV. 1521, 1522–23 (2010).
390
See United States v. Jimenez-Shilon, 34 F.4th 1042, 1049 (11th Cir. 2022).
60https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 683
The same can be said of the regulatory category of “imposing conditions and
qualifications on the commercial sale of arms.”
391
Unless the courts allow government
defendants to pursue one of two approaches to analyzing history and tradition, then all
firearms regulations pertaining to commercial sales of arms must be nullified and ruled
unconstitutional. The first approach involves historically relying on founding era laws
that prohibited the sale of arms to indigenous tribes and people of color.
392
But given
moral and racist optics of invoking these founding era laws; the historical analogy is
a poor vehicle for setting constitutional precedent.
393
This only leaves us with the second approach of allowing governments and gun
control proponents leeway in making highly flexible historical analogies between the
firearms regulations of our past and present—firearms regulations no less that were
not yet uniform or widespread. Uniformity in firearms regulation did not take hold as
a legal concept in the United States until the early to mid-twentieth century with the
advent of model state firearms legislation.
394
Until that point in time, firearms
regulations varied widely from state to state, and sometimes even from locality to
locality.
395
Local variation in the law was not solely a firearms or weapons regulatory
concern.
396
It applied to many regulatory areas
397
and is one of the principal reasons
why the American Bar Association (“ABA”) was formed in 1878.
398
For many years,
391
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2162 (2022) (Kavanaugh, J.,
concurring).
392
See, e.g., Chap. XXIV: An Act, Concerning Slaves and Servants, reprinted in A
COLLECTION OF ALL THE PUBLIC ACTS OF ASSEMBLY, OF THE PROVINCE OF NORTH CAROLINA
161, 170 (1751) (“That no Slave shall go armed with Gun, Sword, Club, or other Weapon, or
shall keep any such Weapon, or shall hunt or range with a Gun in the Woods, upon any Pretence
whatsoever, (except such Slave or Slaves who shall have a Certificate, as is herein after
provided) . . . .”); Act of Dec. 1, 1642, reprinted in P
UBLIC RECORDS OF THE COLONY OF
CONNECTICUT 79 (1850) (forbidding the sale or giving of guns, gunpowder, shot, lead and
military weapons to Indians, and requiring that persons “inhabiting out of this jurisdiction” have
a license for such sale).
393
But see Kanter v. Barr, 919 F. 3d 437, 458 (7th Cir. 2019) (Barrett, J., dissenting) (citing
laws prohibiting the sale of arms to slaves and indigenous tribes as historical support for modern
laws disarming dangerous persons).
394
CHARLES, ARMED IN AMERICA, supra note 3, at 194–204.
395
Id. at 158.
396
The political rise of Jeffersonian Republicans in the early nineteenth century led to a shift
away from a national, Anglo-American common law and towards individual state legal systems.
This in turn led to a wide variance of laws on many legal subjects for much of the nineteenth
century. For a helpful history, see C
HARLES M. COOK, THE AMERICAN CODIFICATION
MOVEMENT, A STUDY IN ANTEBELLUM LEGAL REFORM (1981).
397
Id.
398
AMERICAN BAR ASSOCIATION, ANNUAL REPORT, INCLUDING PROCEEDINGS OF THE
ANNUAL MEETING 30 (1878) (“[The ABA’s] object shall be to advance the science of
jurisprudence, promote the administration of justice and uniformity of legislation throughout
61Published by EngagedScholarship@CSU, 2023
684 CLEVELAND STATE LAW REVIEW [71:623
the ABA led the movement for the adoption of uniform state laws.
399
Initially, the
movement was focused on what one legal commentor referred to as “conservative
uniformity”
400
—that is uniform state laws aimed at issues such as divorce, marriage,
estates, and commerce.
401
Over time, however, the movement set its sight on pressing
national issues.
402
And given the precipitous rise of firearms related crime, assaults,
injuries, and deaths in the early twentieth century, the uniformity of firearms law was
eventually brought front and center.
403
Understanding the history of the late nineteenth and early twentieth century
movement for legal uniformity is rather important. It highlights just how preposterous
it is for gun rights litigants in the wake of Bruen to argue that any historical firearms
regulation must be widespread, uniform, or meet some ad hoc census population test
to pass constitutional muster.
404
The historical reality is that but for a handful of
the Union, uphold the honor of the profession of the law, and encourage cordial intercourse
among the members of the American Bar.”) (emphasis added).
399
For some helpful backgrounders, see NATHAN WILLIAM MACCHESNEY, UNIFORM STATE
LAWS, A MEANS TO EFFICIENCY CONSISTENT WITH DEMOCRACY (1916); James F. Colby,
Necessity for Uniform State Laws, 13 F
ORUM 541 (1892).
400
Alton B. Parker, Uniform State Laws, 19 YALE L.J. 401, 407 (1910).
401
See, e.g., Lewis N. Dembitz, Uniformity of State Laws, 106 N. AM. REV. 84, 88–89
(1899); F.J. Stimson, National Unification of Law, 7 H
ARV. L. REV. 92, 93 (1893); Lyman D.
Brewster, The Promotion of Uniform Legislation, 6 Y
ALE L.J. 132, 133 (1887).
402
For some helpful background, see Nathan William MacChesney, Progress on Uniform
State Laws, 11 A
M. BAR ASSOC. J. 807 (1925); see generally Nathan William MacChesney,
Progress in Passage and Formulation of Uniform State Laws, 9 V
A. L. REG. 579 (1923).
403
See, e.g., Edward Marshall, Guarding New York Against Death by Violence, N.Y. TIMES,
Mar. 1, 1914, at 10 (urging for the enactment of uniform state firearms laws in line with New
York’s Sullivan Law).
404
See, e.g., Frey v. Nigrelli, 2023 U.S. Dist. LEXIS 42067 (S.D. NY 2023); Antonyuk v.
Hochul, 2022 U.S. Dist. LEXIS 201944 (N.D. NY 2022); see also Andrew Willinger, SCOTUS
Gun Watch—Week of 1/9/23, D
UKE SECOND THOUGHTS BLOG (Jan. 9, 2023),
firearmslaw.duke.edu/2023/01/scotus-gun- watch-week-of-1-9-23/. The census
population test being proposed by several gun rights litigants is particularly specious,
historically speaking, given that weapons restrictions up through the close of the nineteenth
century were generally inapplicable outside of city and town centers. See Joseph Blocher,
Firearms Localism, 123 Y
ALE L.J. 82, 112–16 (2013) (discussing the historical urban-rural
divide as it pertains to weapons regulations). In 1790 for instance, roughly ninety-five percent
of the U.S. population lived outside of city and town centers, meaning that only five percent of
the population would have been subject to weapons restrictions. See Leon E. Truesdell, The
Development of the Urban-Rural Classification in the United States: 1874 to 1949, C
URRENT
POPULATION REPORTS 14 (Bureau of the Census, 1949). And by 1880, despite the precipitous
rise of city and town centers, as well as the U.S. population growing more than twelve-fold,
roughly seventy-two percent of the population continued to live outside of city and town centers,
and therefore would not have been subject to most weapons restrictions. Id. It would not be until
1920 that the urban-rural U.S. population divide was equal. See History: Urban and Rural
Areas, U
NITED STATES CENSUS BUREAU,
www.census.gov/history/www/programs/geography/urban_and_rural_areas.html.
62https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 685
firearms and weapons regulations, such as unlawful discharge and concealed carry
laws, meeting this constitutional threshold will be almost impossible for government
defendants. This includes the aforementioned regulatory category of “imposing
conditions and qualifications on the commercial sale of arms . . . .”
405
Indeed, several
mid-to-late nineteenth century charters provided local governments wide discretion in
regulating and controlling the sale or use of firearms within their respective
jurisdictions.
406
Moreover, it is important to note that by the close of the nineteenth
century, there is no substantive evidence that historically suggests governmental
police power to regulate the commercial sale of firearms and other deadly weapons
405
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2162 (2022).
406
See, e.g., 7 THE LAWS OF TEXAS 1822-1897, at 233 (1898) (providing Bryan, Texas the
authority to regulate in “relation to the use of guns, pistols, fire arms, [and] fire crackers of all
kinds, within the city”); C
HARTER OF THE CITY OF PATTERSON 59 (1894) (providing Patterson,
New Jersey the authority to “regulate and prohibit the use of guns, pistols, firearms and
fireworks of all descriptions within the city”); C
HARTER AND ORDINANCES OF THE CITY OF
SYRACUSE, NEW YORK 54 (1894) (providing Syracuse, New York the authority to regulate in
“relation to the use of guns, pistols, fire-arms, fire-crackers, fire-works and detonating works of
all descriptions within the city”); T
HE LAWS OF OREGON AND THE RESOLUTIONS AND MEMORIALS
OF THE
FIFTEENTH REGULAR SESSION OF THE LEGISLATIVE ASSEMBLY THEREOF 207, 246 (1889)
(providing the Oregon cities of Albina and Albany the authority to “regulate and prohibit the
use of guns, pistols and firearms, fire-crackers, bombs and detonating works of all
descriptions”); T
HE DONGAN CHARTER, PRESENT CHARTER, CITY LAWS AND ORDI NANCES AND
LAWS OF THE STATE OF NEW YORK APPLICABLE TO THE CITY OF ALBANY 41 (1885) (providing
Albany, New York the authority to regulate in “relation to the use of guns, pistols, fire-arms,
fire -crackers, fire-works and detonating works of all descriptions within the city”); A
REVISED
CODE OF ORDINANCES OF THE CITY OF TUSCALOOSA 28 (1885) (1873 amendment granting
Tuscaloosa, Alabama the authority to “license and regulate . . . dealers in pistols, bowie-knives
and shotguns or fire arms, and knives of like kind or description . . . ”);
CHARTER AND CODE
LAWS FOR THE CITY OF UNIONTOWN, ALABAMA 12– 13 (1885) (charter granting Uniontown,
Alabama the authority to “pass laws . . . [t]o establish, regulate and control . . . dealers in pistols,
bowie knives, dirk Knives or brass knuckles”); C
HARTER OF THE CITY OF PORTLAND 17 (1885)
(providing Portland, Oregon the authority to “regulate and prohibit the use of guns, pistols and
firearms, fire-crackers, bombs and detonating works of all descriptions”); L
AWS OF THE
TERRITORY OF WASHINGTON 112, 140, 302, 342 (1883) (providing the Washington cities of
Olympia, Whatcom, Snohomish, and Cheney the authority to “regulate and prohibit the use of
guns, pistols and fire-arms, fire-crackers, bombs and detonating works of all descriptions”); T
HE
CHARTER, GENERAL ORDINANCES, BY-LAWS OF THE CITY OF TERRE HAUTE 51 (1882) (providing
Terre Haute, Indiana the authority to “prevent or regulate the use of fire arms, fire works, or
other things or practice tending to endanger persons or property”); Charter for the City and
County of San Francisco, S
AN FRANCISCO EXAMINER (CA), Jul y 3, 1880, at 5 (providing San
Franciso, California with the authority to regulate in “relation to the use of guns, pistols,
firearms, firecrackers, fireworks and detonating works of all descriptions”); S
PECIAL LAWS OF
THE
STATE OF TEXAS 194 (1873) (providing Sherman, Texas the authority to regulate in “relation
to the use of guns, pistols, [and] firearms of all kinds within the city”); A
N ACT TO REORGANIZE
THE
LOCAL GOVERNMENT OF NEW YORK, PASSED APRIL 5, 1870, at 16 (1871) (providing New
York City the authority to regulate in “relation to the use of guns, pistols, firearms, firecrackers,
and detonating works of all descriptions within the city”). See also supra note 256 (providing
other examples of firearms localism in the armed carriage context).
63Published by EngagedScholarship@CSU, 2023
686 CLEVELAND STATE LAW REVIEW [71:623
was inviolate of the right to arms.
407
However, the historical fact remains that
imposing conditions and qualification on the commercial sale of arms did not become
widespread or uniform until the early-to-mid twentieth century.
408
The point to be made is that the only way this regulatory category will pass
constitutional muster post-Bruen is if government defendants are afforded historical
leeway in articulating the public understanding of firearms regulations circa the mid-
to-late nineteenth century. For it was during this period that one will find the first
ordinances and laws regulating the commercial purchase and sale of firearms.
409
And
it is important to note that given advances in firearms technology, to include notable
advances in firearms lethality, firing rate, and firing range, it was during this period
that one will find average Americans from across the country seriously debating and
discussing the growing problem of firearms related violence.
410
And what most
Americans at that time agreed upon was that more guns in the public sphere often led
to more needless death.
411
This was in large part why discretionary armed carriage
licensing laws proliferated as much as they did by the close of the nineteenth
century.
412
Such laws ensured that only those that had a definite need to carry
dangerous weapons in public could do so.
413
As a result, the habitual and unnecessary
carrying of arms—which was seen as the cause of many firearms related deaths and
injuries—would be effectively curtailed.
414
407
If anything, the historical evidence available suggests the opposite—that is state and local
governments could impose restrictions on the commercial sale of firearms and other deadly
weapons. See, e.g., The Handy Pistol, S
AN FRANCISCO CHRONICLE (CAL.), Oct. 3, 1893, at 6
(“There is but one way to stop the indiscriminate carrying and use of pistols, and that is to go
further back and impose rigid regulations on those who can sell them. If the cities of California
would pass and enforce ordinances prohibiting dealers in firearms from selling pistols to
anybody without a permit from the municipal authorities, and compelling them to mark every
weapon with an indelible serial number, and to keep and accurate record of sale of such
weapons, then it might be possible to enforce the ordinances [regulating armed carriage] . . . . It
is not only the right, but the duty of cities to adopt such a plan. If we could be sure that the ‘gun-
fig hters’ would shoot only each other, there would be no need of restricting the sale of firearms,
but, as in the Oakland case, it is often the innocent bystander who is made to suffer. The
Constitution of the United States confers upon the people the right to bear arms, but it does not
say that a city shall not inhibit their sale to every irresponsible or vicious hoodlum who has
aspirations to become a ‘bad man’.”).
408
CHARLES, ARMED IN AMERICA, supra note 3, at 194–98 (discussing the spread of mode
state firearms bills).
409
Id. at 156–57.
410
Id. at 150–56.
411
Id. at 151.
412
Id. at 157–61.
413
Brief of Amicus Curiae Patrick J. Charles in Support of Neither Party, supra note 112, at
8–13, appendix 2–45.
414
Id. at 11.
64https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 687
In addition to believing that more guns in the public sphere generally led to more
death, most Americans living at that time—to include legal commentators and
jurists—believed that state and local governments maintained broad authority to enact
firearms regulations in the interest of the health, safety, and welfare of its citizens.
415
This is not to say, of course, that every American living in the mid-to-late nineteenth
century endorsed this view.
416
A small insular minority of Americans believed in the
concept of Second Amendment absolutism—that is the right to “keep and bear arms”
was absolute, and therefore any infringement on the right was unconstitutional.
417
But
again, this was the view of an insular minority—a view that would not gain sufficient
traction in the public discourse until the rise of the “no compromise” gun rights
movement in the early 1970s.
418
Herein lies the central problem for the courts in applying any ‘history and tradition’
analysis. How are jurists to know which historical viewpoints fall under the majority
or minority headings without relying on verifiable history? As any experienced
historian knows, if a dedicated researcher looks hard enough, they will find examples
of individuals, institutions, or government bodies espousing whatever viewpoint or
ideological predilection they hold dear. Thus, as Second Amendment cases and
controversies move forward, jurists will assuredly have to sift through handpicked
historical quotes by lawyers and motivated groups advancing selectively framed
viewpoints and then decide which the majority and minority view is. And given
Bruen’s endorsement of “plausible” history, are jurists forced to choose the respective
viewpoint that is consistent with the Second Amendment’s plain text, or can jurists
require that it be verifiably proven as a majority viewpoint?
Personally, this Article would hope it is the latter given that the principal reason
jurists rely on history is to ensure an accurate and objective outcome. However,
considering Bruen’s pick and choose approach to history-in-law, one cannot be too
sure. Consider Bruen’s historical treatment of the open carry-concealed carry
distinction. According to the Bru en majority, by the mid-nineteenth century the
national “consensus” view was that if a state or local government categorically banned
415
CHARLES, ARMED IN AMERICA, supra note 3, at 156–57; see also Charles, Scribble
Scrabble, supra note 152, at 1822–29 (providing founding era support for firearms regulations
that served the interest of the public good).
416
CHARLES, ARMED IN AMERICA, supra note 3, at 167–72.
417
Id.; see also W.C. Webb, The Right to Carry Arms: Judge Webb, of Topeka, Gives and
Opinion, L
EAVENWORTH TIMES (KAN.), Nov. 27, 1896, at 5 (calling into question the regulatory
authority of Kansas municipalities to pass armed carriage restrictions on the grounds such laws
are (a) inviolate of the Kansas Constitution’s right to arms and (b) inconsistent with a 1868
Kansas statute, yet conveniently omitting a 1871 Kansas statute that expressly provides Kanas
municipalities to pass such restrictions); Carrying Concealed Weapons, 4 C
OLO. L. REP. 277,
281 (1883) (“[I] do [not] defend the practice of promiscuously carrying any sort of weapon; but
the right to carry [weapons] is absolute and entirely independent of the question as to when it
should be carried.”); Why a Veteran Georgian Believes in Carrying Concealed Weapons,
L
EAVENWORTH WEEKLY PRESS (Kan .), May 15, 1879, at 4 (military veteran asserting that the
“right of self-defense” affords persons the right “use anything” to facilitate it, including a “right
to carry a pistol” any way he wants).
418
See generally PATRICK J. CHARLES, VOTE GUN: HOW GUN RIGHTS BECAME POLITICIZED
IN THE
UNITED STATES (2023).
65Published by EngagedScholarship@CSU, 2023
688 CLEVELAND STATE LAW REVIEW [71:623
the concealed carriage of dangerous weapons in public, it could not simultaneously
ban their open carriage, or vice-versa.
419
This historical conclusion is utterly false.
Indeed, the Bruen majority is correct in noting that a handful of Southern Antebellum
state courts held that their respective legislatures could not ban both the open and
concealed carrying of dangerous weapons.
420
This is without question. However, the
Bruen majority is wrong in presuming that this was the national “consensus” view.
421
Far from it. The historical reality is that early to mid-nineteenth century Americans
held a wide variety of views on going armed in public.
422
But what is most concerning
about Bruen’s choice of historical viewpoint in this instance is that the majority never
wrestles with the reasons why the open carry-concealed carry distinction was so
prevalent in the South to begin with—these reasons being Southern notions of
vengeance and honor through dueling, as well as subjugating people of color and
maintaining the institution of slavery.
423
It was the subjugating of people of color and maintaining the institution of slavery
that would go on to influence John Brown in drafting the weapons articles within his
1859 Provisional Constitution and Ordinances for the People of the United States.
424
Brown had drafted his constitution in 1858 while staying at Frederick Douglass’s
home.
425
Therein, Brown defended his violent beliefs and actions on two grounds.
426
The first was that the institution of slavery was the “most barbarous, unprovoked, and
unjustifiable War of one portion of its citizens against another portion.”
427
The second
was that America’s sustainment of the institution was “in utter disregard and violation
of those eternal and self-evident truths set forth” in the Declaration of
Independence.
428
As it pertained to carrying weapons, Brown’s constitution contained
three articles—each of which was meant to protect “[a]ll persons of mature age,
whether Prescribed, oppressed or enslaved Citizens, or of the Proscribed and
419
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2146–47, 2150 (2022).
420
Id.
421
Id. at 2146–47.
422
See CHARLES, ARMED IN AMERICA, supra note 3, at 141–73, accord Charles, The Second
Amendment and the Basic Right to Transport Firearms for Lawful Purposes, supra note 43, at
148– 55.
423
See Ruben & Cornell, supra note 132, at 124–28.
424
JOHN BROWN, PROVISIONAL CONST. AND ORDINANCES FOR THE PEOPLE OF THE U.S. 1, 14,
catalog.archives.gov/id/3819337.
425
ROBERT E. MCGLONE, JOHN BROWN’S WAR AGAINST SLAVERY 213– 16 (2009); DAVID S.
REYNOLDS, JOHN BROWN ABOLITIONIST: THE MAN WHO KILLED SLAVERY, SPARKED THE CIVIL
WAR, AND SEEDED CIVIL RIGHTS 249– 56 (2005).
426
BROWN, supra note 424, at 1.
427
Id.
428
Id.
66https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 689
oppressed races of the United States” from harm.
429
Article 44 prohibited the carrying
of concealed weapons except for specified government officers and officials.
430
Article 45 sought to compliment Article 44 wherein a person “not connected” with
Brown’s movement was found carrying arms, “concealed or otherwise.”
431
No matter
whether the person was unlawfully carrying weapons in violation of Article 44 or
Article 45, anyone, not just specified government officers and officials, could seize,
arrest, and carry the person to be “investigated” by “some vigilant officer . . . .”
432
And what allowed anyone associated with Brown’s movement to disarm an armed
outsider was the third and last carrying weapons article within Brown’s proposed
constitution, Article 43.
433
That article “encouraged” “all persons . . . whether male
of female” “connected” with Brown’s movement and “known to be of good character,
and of sound mind and suitable age” to “carry arms openly . . . .”
434
Why would Brown encourage his followers to open carry, yet at the same time
prohibit the concealed carry of weapons, as well as both the open and concealed
carrying of weapons by outsiders? The answer lies with understanding Brown’s views
on justifiable violence, which were extremist to say the least.
435
According to Brown,
when it came to eradicating slavery and guaranteeing racial equality, violence was not
429
Id. at art. I (“All persons of mature age, whether Proscribed, oppressed and enslaved
Citizens, or of the Proscribed and oppressed races of the United States, who shall agree to
sustain and enforce the Provisional Constitution and Ordinances of this organization, together
with all minor children of such persons, shall be held to be fully entitled to protection under the
same.”).
430
Id. at art. XLIV (“No person within the limits of the conquered territory, except regularly
appointed policemen, express officers of the army, mail carriers, or other fully accredited
messengers of the Congress, President, Vice President, members of the supreme court, or
commissioned officer of the army—and those only under peculiar circumstances—shall be
allowed, at any time, to carry concealed weapons; and any person not specially authorized so to
do, who shall be found so doing, shall be deemed a suspicious person, and may at once be
arrested by any officer, soldier, or citizen, without the formality of a Complaint or Warrant, and
may, at once be subjected to thorough search, and shall have his or her case throughout
investigated; and be dealt with as circumstances, on proof, shall require.”).
431
Id. at art. XLV (“Persons within the limits of the territory holden by this organization, not
connected with this organization, having arms at all, concealed or otherwise, shall be seized at
once; or be taken in charge of some vigilant officer; and their case thoroughly investigated: and
it shall be the duty of all citizens and soldiers, as well as officers, to arrest such parties as are
named in this and the preceding Section or Article, without the formality of Complaint or
Warrant; and they shall be placed in charge of some proper officer for examination, or for safe
keeping.”).
432
Id.
433
Id. at art. XLIII.
434
Id. (“All persons known to be of good character, and of sound mind, and suitable age,
who are connected with this organization, whether male or female, shall be encouraged to carry
arms openly.”).
435
See, e.g., R. BLAKESLEE GILPIN, JOHN BROWN STILL LIVES!: AMERICA’S LONG RECKONING
WITH
VIOLENCE, EQUALITY, AND CHANGE 18, 26–27 (2014).
67Published by EngagedScholarship@CSU, 2023
690 CLEVELAND STATE LAW REVIEW [71:623
only justified but actively encouraged.
436
Simply put, to Brown, the ends justified the
means, no matter how violent and no matter who was caught in the bloody crossfire.
And Brown, a student of slavery, understood that slaveholders and slave patrols
regularly utilized the open carriage of arms to strike fear into slaves and deter potential
revolts.
437
Article 43 countered this.
438
For by encouraging his followers to open
carry, Brown was letting slave holders and slave patrols know that they too should be
fearful.
Here, history informs how the open carriage of weapons in the early to mid-
nineteenth century was largely synonymous with subjugation, fear, oppression, and
violence. Certainly, there is a historical argument to be made that the open-concealed
carry distinction in Southern Antebellum law was developed in part to distinguish
between the lawful and unlawful use of arms.
439
Lawful people, it was reasoned,
carried arms openly.
440
Unlawful, dastardly people did not.
441
But to be historically
honest, it cannot be denied that the open-concealed carry distinction was also about
suppressing people of color through threats of violence.
And given this fact, one would think the Supreme Court in Bruen would give
considerable pause before endorsing it as the “consensus” view.
442
This, of course,
did not happen and it underscores two interrelated points about invoking, utilizing,
and applying history-in-law in the real world. The first point is that the idea or concept
of a text, history, and tradition approach to constitutional interpretation may sound
good in principle.
443
It is another thing, however, to implement it in a way that is
transparent, objective, and doctrinally holistic. As is often said, “the devil is in the
details,” which brings us to the second important point about invoking, utilizing, and
applying history-in-law in the real world.
444
Accurate, objective, and transparent
historical analysis is not as easy as it seems or is often made out to be by members of
436
Id.; REYNOLDS, JOHN BROWN ABOLITIONIST, supra note 425, at 122 –23, 151–52, 164–66.
437
For an informative history of slave patrols, see SALLY E. HADDEN, SLAVE PATROLS: LAW
AND
VIOLENCE IN VIRGINIA AND THE CAROLINAS 168– 72 (2001).
438
BROWN, supra note 424, at art. XLIII.
439
GILPIN, supra note 435, at 4.
440
See, e.g., An Ordinance Concerning Offenses Affecting Public Peace and Quiet, Dec. 21,
1874, reprinted in H
ISTORY OF RAY COUNTY, MO. 427, 428 (1881) (“No person shall wear or
carry about his or her person, any pistol, dirk, bowie knife, revolver, slingshot, brass, lead or
iron knuckles, or any other deadly weapon except in such a manner that such weapon can
plainly and distinctly be seen by any person; any violation of the provisions of this section, shall
be punished by a fine of not less than one, nor more than ninety dollars and costs.”) (emphasis
added).
441
Id.
442
Id.; N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
443
Bruen, 142 S. Ct. at 2127–28.
444
See, e.g., SCALIA & GARNER, READING LAW, supra note 333, at 399–402.
68https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 691
the bench and bar.
445
As Bruen shows us, jurists, including our most learned jurists,
can be easily led astray through the “law office history” pleadings of lawyers and
motivated groups.
446
Much of the problem stems from an unfamiliarity with historiography across the
legal profession. Historiography is essential for historians in delineating between
verifiable academic history and amateur junk history. It informs where respective
historical theories, theses, and claims come from, how and why they were formulated,
and if they are still viable or if they have been rebutted. It is like shepardizing case
law, but for the study of history there is no research database or tool that anyone can
refer to. Rather, when it comes to historiography, one must conduct the old-fashioned
practice of reading copious amounts of literature, understanding the historical
methodology behind each writing, and subsequently checking, comparing, and
contrasting the historical sources within them. This academic exercise is not for the
fly-by-night historian. The process is long and time consuming. Grappling with the
historiography of a particular subject or event can take an experienced historian years
or even a decade to sort through. Historiography involves much more than picking and
choosing historical winners under some ad hoc, “plain text” plausibility standard.
Rather, understanding the reefs and shoals of historiography is hard work, but
necessary if one wants to be serious about getting history right, or at the very least
minimizing historical mistakes and errors.
447
IV.
RESOLVING BRUEN’S TEXT, HISTORY, AND TRADITION PROBLEM
Much like after District of Columbia v. Heller and McDonald v. City of Chicago,
the Supreme Court’s opinion in Bruen has left lower courts with far more questions
than answers.
448
While Bruen is clear in pronouncing that text, history, and tradition
is the foundation from which lower courts are to gauge the constitutionality of firearms
and weapons regulations moving forward, what is less clear is how it is supposed to
be implemented.
449
If one focuses squarely on the majority opinion, there is an
445
Id.
446
Bruen, 142 S. Ct. at 2177 (Breyer, J., dissenting).
447
For more on historiography and the discipline of history, see JEREMY BLACK, CLIO’S
BATTLES: HISTORIOGRAPHY IN PRACTICE (Indiana University Press, 2015); GORDON S. WOOD,
THE PURPOSE OF THE PAST: REFLECTIONS ON THE USES OF HISTORY (The Penguin Press, 2008);
P
HILLIPP SCHOFIELD & PETER LAMBERT, MAKING HISTORY: AN INTRODUCTION TO THE HISTORY
AND
PRACTICES OF A DISCIPLINE (2004); PETER NOVICK, THAT NOBLE DREAM: THE
‘OBJECTIVITY QUESTION’ AND THE AMERICAN HISTORICAL PROFESSION (Cambridge University
Press, 1988); B
ARBARA W. TUCHMAN, PRACTICING HISTORY: SELECTED ESSAYS (Alfred A.
Knopf, Inc., 1981); H
ERBERT BUTTERFIELD, MAN ON HIS PAST (The Syndics of the Cambridge
University Press, 1955).
448
Compare Bruen, 142 S. Ct. at 2135 (noting that the majority opinion favors gun rights
over regulations due to historical implications) with id. at 2133, 2150 (highlighting how
regulation is also rooted in historical tradition).
449
See Brannon P. Denning & Glenn H. Reynolds, Retconning Heller: Five Takes on New
York Rifle & Pistol Association, Inc. v. Bruen, 65 W
M. & MARY L. REV. at manuscript 16–19
(forthcoming 2023), papers.ssrn.com/sol3/papers.cfm?abstract_id=4372216 (likening
69Published by EngagedScholarship@CSU, 2023
692 CLEVELAND STATE LAW REVIEW [71:623
argument to be made that the rules laid down in Bruen presume liberty, and therefore
favor gun rights over firearms regulation absent a definitive showing by the
government that the regulation at issue is shown to be “consistent with this Nation’s
historical tradition of firearm regulation.”
450
Yet at the same time Bruen stipulates
that the “reasonable regulation” of firearms is also part of our historical tradition and
that the Second Amendment is not a regulatory “straightjacket.”
451
How are the lower
courts supposed to reconcile these two competing statements? In trying to find an
answer to this question, it does not help that at several times the majority opinion
analytically contradicts itself. Therefore, how are the lower courts to make sense of
Bruen and faithfully apply it?
The way this Article sees it, there are basically two avenues for the lower courts to
approach text, history, and tradition. The first is to follow the Bruen majority’s lead in
practicing hokey pokey, pick and choose, fugazi history through ad hoc, non-holistic,
historical methodologies and practices advanced by non-history experts. The second
is to resort to a more principled, structured, and historically objective approach as
advanced by history experts.
452
As it pertains to the first avenue of practicing hokey
pokey, pick and choose, fugazi history, so long as the lower courts provide a sufficient
rationale as to why one litigant’s presentation of the historical record is more
convincing than the other, it will technically be in line with Bruen.
453
In employing
this approach, the lower courts do not need to be methodologically consistent with
their analysis of historical texts and evidence, nor holistic with their historical
analogies. Rather, so long as the respective lower court’s choice of history is indeed
plausible, the history chosen is arguably sufficient to pass constitutional muster.
This first avenue of approach has already been adopted and applied by some lower
courts.
454
This is not surprising. It also happened in the wake of Heller and
McDonald.
455
However, this Article hopes that most lower courts will take a different,
second avenue of approach—that is adopt and employ a more objective, historically
Bruen’s text, history, and tradition methodology to South Park’s Season 2, Episode 17
“underpants gnomes” television episode).
450
Bruen, 142 S. Ct. at 2135.
451
Id. at 2133, 2150.
452
See, e.g., Charles, The Second Amendment in Historiographical Crisis, supra note 22, at
1854–64 ( proffering a holistic and objective historical standard to analyzing Second
Amendment claims).
453
See, e.g., Randy E. Barnett & Nelson Lund, Implementing Bruen, L. & LIBERTY BLOG
(Feb. 6, 2023), lawliberty.org/implementing-bruen/ (asserting that the lower courts will
manipulate history to uphold modern gun control laws, and that Heller’s list of presumptive gun
controls contradicts any text, history, and tradition analysis).
454
See, e.g., United States v. Jackson, 2022 WL 3582504, at *2–3 (W.D. Okla. Aug. 19,
2022); Firearms Pol’y Coal., Inc. v. McCraw, 2022 WL 3656996, at *3, 9 (N.D. Tex. Aug. 25,
2022).
455
See generally Charles, The Faces of the Second Amendment Outside the Home, Take
Three, supra note 9 (examining the different circuit courts history-in-law approaches to the
Second Amendment outside the home).
70https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 693
accurate, and holistic approach to text, history, and tradition. An approach that aids in
facilitating predictability and reliability in the law, or what is otherwise known as stare
decisis;
456
an approach that seeks to mesh the Bruen majority opinion
457
with that of
Associate Justice Brett Kavanaugh’s concurring opinion
458
and ensures that a
“variety” of firearms regulations,
459
including those that were not widespread until
the twentieth century,
460
survive constitutional scrutiny.
What does a principled approach to text, history, and tradition look like? While
there are indeed several ways of formulating such an approach, in this author’s humble
opinion it requires adhering to four basic history-in-law rules: (1) historical context
over historical inference (always); (2) the past and present are not the same, nor can
they ever be, and it is utter hubris to suggest otherwise; (3) history serves the law and
jurists better as a flexible guidepost than an firm outcome determinative tool; and (4)
history, to include the history of the development of particular bodies of law, is largely
premised on common sense, and it is that common sense that should principally guide
the courts.
461
As it pertains to the first rule on historical context over historical inference, the
rule simply dictates that historical context indeed matters, and matters definitively
more than any history-based legal claims built upon conjecture or inference. In other
words, history-based legal claims that are principally derived from the lawyering or
select parsing of historical sources rather than substantive no-kidding, historical
evidence are not the type of history-based legal claims that jurists should be building
their evidentiary base from which they legally reason, nor from which they historically
analogize from. For jurists, or anyone for that matter, to build an analogy on nothing
more than the lawyering of history or a historical inference is essentially the same
thing as fabricating history. To borrow once more from English historian Herbert
Butterfield, the greatest “sin” in historical composition is not “bias” but when an
individual seeks “to abstract events from their context and set them up in implied
comparison with the present day, and then pretend that by this ‘the facts’ are being
allowed to ‘speak for themselves.’”
462
The second rule that should be followed by jurists to ensure that any approach text,
history, and tradition is even keeled and principled is that the past and the present are
456
For some discussions, see Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the
Future of Constitutional Law, 82 T
UL. L. REV. 1533 (2008); Michael J. Gerhardt, The Role of
Precedent in Constitutional Decisionmaking and Theory, 60 G
EO. WASH. L. REV. 68 (1991);
Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 W
ASH. & LEE L. REV. 281 (1990);
Robert A. Sprecher, The Development of the Doctrine of Stare Decisis and the Extent to Which
It Should Be Applied, 31 A.B.A.
J. 501 (1945).
457
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2139–54 (2022).
458
Id. at 2161–62 (Kavanaugh, J. concurring).
459
Id. at 2162.
460
Id. at 2189 (Breyer, J. dissenting).
461
See generally Charles, The Faces of the Second Amendment Outside the Home, Take
Three, supra note 9 (discussing broadly history-in-law and its implications).
462
BUTTERFIELD, supra note 90, at 57.
71Published by EngagedScholarship@CSU, 2023
694 CLEVELAND STATE LAW REVIEW [71:623
not the same, nor will they ever be. This rule is important because often when members
of the bench and bar look to history for interpretative guidance it is forgotten that what
may have worked in the past may no longer work today. The demise of Massachusetts
Model type armed carriage laws is one case on point. By the late nineteenth century,
due to demographic changes and advances in firearms technology, this highly flexible
method of preventing the habitual carriage of dangerous weapons in public places was
no longer working as intended.
463
As a result, state and local governments began
enacting more tangible modes of armed carriage enforcement, such as replacing the
Model’s surety of the peace process with concrete fines and sentences or enacting
discretionary armed carriage licensing laws.
464
The gradual demise of the Southern
open-concealed carry distinction in armed carriage law is another case in point.
465
The
Thirteenth Amendment’s abolishment of slavery which nullified the need for publicly
armed slave patrols, coupled with a precipitous rise in firearms related crimes, injuries,
and deaths, steered several mid-to-late nineteenth century Southern courts to embrace
northern attitudes on the needs to preventing all types of armed carriage in public
spaces, whether such carriage was open or concealed.
466
In other words, as firearms
technology advanced and society changed so did the law. The law had to. It is the
law’s natural path.
The point to be made is that when members of the bench and bar advocate for a
so-called originalist return to a past legal rule or system it is important to first consider
how and why our society moved away from that rule or system, and then ask
themselves the following questions: How will returning to that past legal rule or
system work today? What, if anything, will it legally upend? What are the benefits and
burdens of making this originalist return? Is there a way to embrace or implement this
rule in a way that minimally impacts the legal status quo?
Asking and answering these questions are important for they tie into the third rule
on implementing a principled approach to text, history, and tradition—this rule being
history best serves as a jurisprudential guide rather than as an outcome determinative
tool. The fact of the matter is that we can only ask so much of the past in answering
the questions of the present. To state this differently, our understanding of the past is
forever incomplete. As noted earlier in Part II.B and Part III.A, in all but a few cases,
the historical records that have survived posterity are only a small fraction of the
whole.
467
The simple point to be made is this; there is only so much that we, living in
the present can discern from the past, and therefore it is prudent that one exercises
intellectual humility when importing the past for the legal present.
463
See infra pp. 652– 53 and accompanying notes.
464
See, e.g., THE REVISED ORDINANCES OF PROVO CITY, UTAH 96 (1893) (“Every person who
shall wear, or carry upon his person any pistol, or other fire arm, slungshot, false-knuckles,
bowieknife, dagger or any other dangerous or deadly weapon within the city limits of this city
is guilty of an offence, and upon conviction thereof shall be liable to a fine in any sum not
exceeding twenty-five dollars, or to be imprisoned in the city jail not exceeding twenty-five
days, or to both fine and imprisonment.”).
465
CHARLES, ARMED IN AMERICA, supra note 3, at 154–55.
466
Id. at 161–62.
467
See supra Part II.B and Part III.A.
72https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 695
A critical examination of virtually any historical writing or document weighs this
out. Consider the early 1789 correspondence between Massachusetts Chief Justice
William Cushing and John Adams on the “liberty of the press.”
468
Cushing penned
several questions to Adams regarding Article XVI of the Massachusetts Declaration
of Rights, which reads, “the liberty of the press is essential to the security of freedom
in a state: it ought not, therefore, to be restrained in this Commonwealth.”
469
In
particular, Chief Justice Cushing wondered whether a libel directed against
officeholders could be punishable under the clause if “such charges are supportable
by the truth of fact.”
470
He further elaborated, writing:
But the words of our article understood according to plain English, make
no such distinction, and must exclude subsequent restraints, as much as
previous restraints . . . .
The question upon the article is this—What is the liberty of the press,
which is essential to the security of freedom? The propagating literature and
knowledge by printing or otherwise tends to illuminate men’s minds and to
establish them in principles of freedom. But it cannot be denied also, that a
free scanning of the conduct of the administration and shewing the tendency
of it, and where truth will warrant, making it manifest that it is subversive of
all law, liberty, and the Constitution; it can’t be denied. I think that the liberty
tends to the security of freedom in a State; even more directly and essentially
than the liberty of printing upon literary and speculative subjects in general.
Without this liberty of the press could we have supported our liberties against
British administration? or could our revolution have taken place? Pretty
certainly it could not, at the time it did. Under a sense of impression of this
sort, I conceive, this article was adopted. This liberty of publishing truth can
never effectually injure a good government, or honest administrators; but it
may save a state from the necessity of a revolution, as well as bring one about,
when it is necessary . . . .
But this liberty of the press having truth for its basis who can stand before
it? Besides it may facilitate a legal prosecution, which might not, otherwise,
have been dared to be attempted. When the press is made the vehicle of
falsehood and scandal, let the authors be punished with becoming rigour.
But why need any honest man be afraid of truth? The guilty only fear it;
and I am inclined to think with Gordon (Vol. 3 No. 20 of Cato’s Letters) that
truth scarcely adhered to, can never upon the whole prejudice, right religion,
equal government or a government founded upon proper balances and
checks, or the happiness of society in any respect, but must be favorable to
them all.
468
Original Draft of Letter from William Cushing, Chief Justice, to John Adams (Feb. 18,
1789), in M
ASS. L.Q., Oct. 1942, at 12, 12 [hereinafter Letter from Chief Justice Cushing].
469
MASS. CONST. art XVI (annulled 1948).
470
Original Draft of Letter from William Cushing, supra note 468, at 12.
73Published by EngagedScholarship@CSU, 2023
696 CLEVELAND STATE LAW REVIEW [71:623
Suppressing this liberty by penal laws will it not more endanger freedom
than do good to government? The weight of government is sufficient to
prevent any very dangerous consequences occasioned by provocations
resulting from charges founded in truth; whether such charges are made in a
legal course or otherwise. In either case, the provocation (which Judge
Blackstone says is the sole foundation of the law against libels) being much
the same.
But not to trouble you with a multiplying of words; If I am wrong I should
be glad to be set right, &c., &c.
471
Chief Justice Cushing’s letter highlights three important aspects on the liberty of
the press in the late eighteenth-century. First, Cushing’s analysis incorporates treatises
such as William Blackstone’s Commentaries, and Cato’s Letters.
472
Certainly, the
practice of incorporating available legal treatises into constitutional analysis was quite
common among the founding generation.
473
A close reading of Cushing’s letter,
however, reveals other intellectual influences that coincidently matriculated through a
free press.
474
Second, Cushing’s remembrance of the American Revolution highlights
the significant event that shaped the liberty of the press.
475
Just as actual events would
affect the adoption, text, and structure of the Declaration of Independence,
476
so too
did they affect the founding generation’s view on constitutional doctrine.
477
Third,
and perhaps most importantly, Cushing embraced the liberty of the press as an entity
that facilitates the voice of the people, which “directly and essentially” contributes to
the “security of freedom in a State.”
478
Cushing made sure to distinguish between
reporting on the “conduct of the administration and shewing the tendency of it” and
the “liberty of printing upon literary and speculative subjects in general.”
479
Even
John Adams’s reply to Cushing conveys a larger constitutional purpose for the press:
471
Id. at 14–15 (emphasis added).
472
Id.
473
See generally Donald S. Lutz, The Relative Influence of European Writers on Late
Eighteenth-Century American Political Thought, 78 A
M. POL. SCI. REV. 189 (1984) (discussing
how European writers had an influence on American political thought between 1760 and 1805).
474
See generally Original Draft of Letter from William Cushing, supra note 468.
475
Interpreting the Constitution through the events of the American Revolution is rare among
legal scholars but is crucial to understanding the evolution of eighteenth-century political and
constitutional thought. See generally J
ACK P. GREENE, THE CONSTITUTIONAL ORIGINS OF THE
AMERICAN REVOLUTION (2011).
476
See generally PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF
INDEPENDENCE 105– 23 (Alfred A. Knopf, Inc., 1997).
477
See Charles, Restoring “Life, Liberty, and the Pursuit of Happiness” in Our
Constitutional Jurisprudence, supra note 151, at 477–512.
478
Original Draft of Letter from William Cushing, supra note 468, at 14 (emphasis added).
479
Id.
74https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 697
Our Chief Magistrates and senators &c are annually eligible by the People.
480
How are their Characters and Conduct to be known to their Constituents but
by the Press? If the Press is Stopped and the People kept in Ignorance, We
had much better have the first Magistrates and senators hereditary.
481
Ultimately, what this historical exchange informs is that Cushing and Adams saw
the liberty of the press as crucial to the success of the American Republic. Both men
viewed it not merely as an extension of free speech or a right to publish through the
invention of printing.
482
A free press meant much more.
483
What this historical
exchange does not inform is whether other persons living at that time shared Cushing’s
and Adam’s views. It also does not inform the full parameters of the “liberty of the
press,” particularly how it would apply in certain examples or cases. Answering these
questions requires a further historical deep dive, and upon doing so it is clear that the
founders viewed the liberty of the press as much more than an extension of free speech
through print mediums.
484
The founders did not refer to the “liberty of the press” as a
palladium or bulwark of liberty
485
and frequently toast to said liberty at constitutional
celebrations without reason.
486
It was intentional.
487
A free press as an institution was
deemed crucial for the future success of the American Republic.
488
But noting this
historical fact does very little to educate us on how the “liberty of the press” was meant
to constitutionally operate—that is a free press’s right and left constitutional
parameters.
489
The available historical evidence cannot answer this question, and it is
just one of many examples as to why history should mainly serve as a jurisprudential
guide rather than an outcome determinative tool.
This brings us to the fourth and last rule that jurists should follow to ensure that
any approach to text, history, and tradition is even keeled and principled; history, to
include the history of the development of particular bodies of law, is largely premised
480
Original Draft of Letter from John Adams, to William Cushing, Chief Justice (March 7,
1789).
481
Id. at 16.
482
See Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a
Technology? From the Framing to Today, 160
U. PA. L. REV. 459, 511 (2011) (making this line
of historical argument based on nothing more than a handful of legal commentaries).
483
See generally Patrick J. Charles & Kevin F. O’Neill, Saving the Press Clause from Ruin:
The Customary Origins of a “Free Press” as Interface to the Present and Future, 2012 U
TAH
L. REV. 1691 (2012); see also Sonja R. West, The “Press,” Then & Now, 77 OHIO ST. L.J. 49,
70 (2016).
484
Charles & O’Neill, supra note 483, at 1717–19.
485
Id.
486
Id. at 1726.
487
Id.
488
Id.
489
See id. at 1723.
75Published by EngagedScholarship@CSU, 2023
698 CLEVELAND STATE LAW REVIEW [71:623
on common sense, and it is common sense that should principally guide us in
formulating legal analysis.
490
This Article is not alone in articulating this history-in-
law rule. For instance, in Kanter v. Barr, then Seventh Circuit Court of Appeals Judge
Amy Coney Barrett noted that “[h]istory is consistent with common sense,” and
therefore in the Second Amendment context demonstrates that “legislatures have the
power to prohibit dangerous people from possessing guns.”
491
Similarly, in another
Seventh Circuit Court of Appeals opinion, Friedman v. City of Highland Park, Judge
Frank Easterbrook applied historical common sense in determining that lawmakers
inherently have the power to prohibit the ownership and purchase of certain modern
military grade rifles.
492
As Judge Easterbrook noted, modern military grade rifles are
historically far removed from their 1791 muzzle loading counterparts, and sufficiently
more deadly than any nineteenth-century era firearm.
493
For these reasons, Judge
Easterbrook found it a historical bridge too far to grant modern military grade rifles a
constitutionally protected status simply because they are being mass manufactured,
and said rifles could be used in a self-defense capacity.
494
The way Judge Easterbrook
saw it, to rule the other way—that is accept the premise that any firearm, no matter
how deadly and dangerous, is constitutionally protected simply because of its present
commercial manufacturing and potential to facilitate self-defense—would mean that
every firearm is constitutionally protected.
495
And such a legal conclusion would
effectively gut lawmakers’ ability to commercially restrict the production, sale, and
transfer of any dangerous weapons in the present and future.
496
Simply put, common
sense dictates that there must be a no-kidding, legal line somewhere that allows
lawmakers to restrict or even ban certain dangerous weapons.
497
And what makes Judge Easterbrook’s legal analysis even more common sense is
the fact that it is consistent with the most basic and sweeping historical tradition
pertaining to the regulation of arms. This historical tradition being that since the
Norman Conquest,
498
lawmakers and government bodies have regulated the access,
ownership, and use of arms in a variety of settings through what is commonly known
490
See, e.g., Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).
491
Id. (emphasis added).
492
See Friedman v. City of Highland Park, 784 F.3d 406, 412 (7th Cir. 2015).
493
See id. at 410.
494
Id. at 411.
495
Id.
496
See id. at 412.
497
As one anonymous writer put it in 1789, although the 1780 Massachusetts Constitution
enshrined the “freedom of the press” and the “right to keep and bear arms,” there must be laws
that restrict both rights to “prevent the wonton injury and destruction of individuals” and ensure
there is a legal “line some where, or the peace of society would be destroyed by the very
instrument designed to promote it.” Liberty, I
NDEP. CHRON. & UNIVERSAL ADVERTISER (Bos.,
Mass.), Aug. 20, 1789, at 1.
498
Charles, Scribble Scrabble, supra note 152, at 1822.
76https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 699
as the police power, whether it be in the individual or communal militia capacity.
499
This police power to regulate arms in the interest of society’s health, safety, and
welfare (what the founders often referred to as the common or public good) has
coexisted with the right to arms from the beginning,
500
was repeated by members of
the bench and bar up through the turn of the twentieth century,
501
and was even
acknowledged by gun rights advocates for more than half a century.
502
To be clear,
499
See id. at 1822–35; Charles, The 1792 National Militia Act, the Second Amendment, and
Individual Militia Rights, supra note 371, at 331–33; see also Presser v. Illinois, 116 U.S. 252,
580– 81 (1886).
500
See Saul Cornell, Early American Gun Regulation and the Second Amendment: A Closer
Look at the Evidence, 25
L. & HIST. REV. 197, 197– 204 (2007); Robert Churchill, Gun
Regulation, the Police Power, and the Right to Keep and Bear Arms in Early America: The
Legal Context of the Second Amendment,
25 L. & HIST. REV. 139, 161– 65 (2007); Charles,
Restoring “Life, Liberty, and the Pursuit of Happiness” in Our Constitutional Jurisprudence,
supra note 151, at 497–507, 517–22.
501
See CHARLES, ARMED IN AMERICA, supra note 3, at 143–53 and accompanying notes.
502
See, e.g., Harold W. Glassen, Right to Bear Arms Is Older than the Second Amendment,
A
M. RIFLEMAN, Apr. 1973, at 23 (“It is necessary . . . [that] the millions [of gun owners] who
think as we do to recognize at once that all the State courts of last resort, insofar as I know
without exception, have recognized that the constitutional right of the people, of the individual,
to keep and bear arms is subject to the police power of the States. ‘Police power’ simply means
that the State has the right of reasonable regulation for the general health, welfare and safety of
its citizens.”); Raymond F. Hamel, Con -Con Protects Gun Owners, C
HI. TRIB., Dec. 8, 1970, at
20 (statement of Illinois Rifle Association president Raymond F. Hamel: “The [police] power
has existed without regard to any constitutional provision from the earliest days of our republic
and its inclusion here serves only to assure concerned voters that present [firearms control]
statutes will not be invalidated.”); Harold W. Glassen, Remarks Before the Duke Law Forum,
Duke University, February 18, 1969, Harold W. Glassen Papers, box 1 (Ann Arbor, Mich.:
University of Michigan Bentley Historical Library), at 8 (“Under the police power states have
a right to control firearms.”); P
ROPOSED AMENDMENTS TO FIREARMS ACTS 171 (1965) (“The
general police power resides in the individual states. In the exercise of this power and in the due
administration of criminal justice, the states have adopted various controls over the possession,
purchase, sale, carrying, and use of firearms . . . . A virtually infinite variety of regulation, not
repugnant to the state constitution, is possible and is adopted under the police power.
Limitations on the exercise of this power are not easily definable. Of all the powers of state
government, the police power is the least limitable.”); F
EDERAL FIREARMS LEGISLATION 415
(1968) (“The Second Amendment . . . guarantees against infringement the right of the people to
keep and bear arms. However, there can be no doubt that the states, under their broad ‘police
power’, can enact legislation controlling the possession and use of firearms by private citizens.
Such controls are not necessarily unconstitutional, and many existing firearms laws have been
repeatedly upheld by the courts.”); Judge Bartlett Rummel, To Have and Bear Arms, A
M.
RIFLEMAN, June 1964, at 41 (“Despite all constitutional provisions, under the police power of
the States the courts generally have upheld what they have considered the reasonable regulation
of concealed weapons, the possession of weapons not ordinarily used for defense or warfare,
the firing of guns in populous areas, and many other like regulations. Although the Federal
government has no police power and can impose controls over firearms only through its right
to tax, and its jurisdiction over the mails, all the States do have what is known as police power.
Police power is the right to regulate the conduct of persons in furtherance of the health, the
safety, and the general welfare of the citizens.”); Basic Facts of Firearms Control, A
M.
RIFLEMAN, Feb. 1964, at 14 (“Thirty-five states have constitutional provisions guaranteeing the
77Published by EngagedScholarship@CSU, 2023
700 CLEVELAND STATE LAW REVIEW [71:623
the police power is the historical tradition and legal doctrine that binds all weapons
regulations from thirteenth century England to the present. For whatever reason, Bruen
does not mention it, not even in passing, but it is indeed a part of our collective past
and something that the courts will assuredly have to wrestle with. It is a legal doctrine
that runs directly counter to the argument that all arms, no matter how deadly and no
matter their intended purpose, are protected under the umbrella of the Second
Amendment—an argument that did not enter the public discourse until the rise of the
‘no compromise’ gun rights movement in the early 1970s.
503
Up to that point in time,
gun rights advocates only claimed that common use, sporting and target shooting type
firearms were constitutionally protected by the Second Amendment.
504
Military grade
firearms were not.
505
Moreover, in line with contemporary proponents of military
grade firearms restrictions, gun rights advocates of years’ past openly admitted that
military grade firearms, such as the AR-15, were not about stopping would be
right ‘to keep and bear arms.’ The courts have held that the states under there general and broad
police powers may regulate, within the limits of their constitutions, the possession and use of
firearms in furtherance of the health, safety, and general welfare of their citizens. In the exercise
of this power and in the due administration of criminal justice, the states have adopted various
controls over the possession, purchase, sale, carrying, or use of firearms.”); N
ATIONAL RIFLE
ASSOCIATION, THE PRO AND CON OF FIREARMS LEGISLATION 3 (1940) (noting that state
governments through the “judicious use” of “the police power . . . may properly regulate the use
of firearms as a means of preventing crime but legislatures cannot exercise [it] in an arbitrary
manner . . .”); Karl T. Frederick,
Pistol Regulation: Its Principles and History, 23 AM. INST.
CRIM. L. & CRIMINOLOGY 531, 540 (1932) (“The decisions of courts have generally been to the
effect that the particular laws under consideration regulating the possession or use of pistols
were not unconstitutional by reason of [state constitutional right to arms provisions], but that in
the particular cases presented they constituted an exercise of what is known as the ‘police
power’ of the State and were valid.”).
503
See generally CHARLES, VOTE GUN, supra note 418, at 199–247.
504
See, e.g., Woodson D. Scott, A Statement By the President of the National Rifle
Association, A
M. RIFLEMAN, Mar. 1970, at 16 (“[T]he NRA pledges its continued efforts to keep
the American public alerted to the dangers of firearms confiscation and of governmental
interference in the private ownership of guns in ways not contemplated by the Constitution of
the United States . . . . We perceived no need at this time for any registration, licensing, I.D.
card, data retrieval or certification law, or for any law prohibiting the sale of acquisition of
target and sporting firearms in the interstate of foreign commerce.”) (emphasis added);
Handguns Are Sporting Arms, A
M. RIFLEMAN, Jan. 1970, at 45 (noting that eighty percent of all
handguns are for “hunting, target shooting, or other outdoor use”).
505
See, e.g., L.R. Kershner, Sabotage from Within Precedes Loss of Right to Possess Guns,
G
UN WK., May 29, 1970, at 14. The idea that military-style weapons, such as the AR-15, are
necessary for individual self-defense and therefore protected by the Second Amendment does
not really begin to take hold in gun rights discourse until the early 1990s. See, e.g., Michael
Rezendes, Reading Their ‘Rights’: Gun Lobby Challenging 2d Amendment’s Interpretation,
B
OS. GLOBE, Sep t. 10, 1995; Katharine Q. Seelye, GOP Aims to Repeal Assault Weapons Ban,
T
IMES-TRIB. (Scranton, Pa.), Apr. 6, 1995, at 8; Susan Baer, Citing Crime, NRA Woos Women,
B
ALT. SUN (MD), Oct. 17, 1993; Robert J. Cottrol & Don B. Kates, Assault Weapon Ban is
Suspect: Founders Backed Gun Ownership, D
EMOCRAT & CHRON. (Rochester, N.Y.), Mar. 3,
1993; see also Stephen P. Halbrook, Reality Check: The ‘Assault Weapon’ Fantasy and Second
Amendment Jurisprudence, 14 G
EO. J. L. & PUB. POL’Y 47, 48–49 (2016).
78https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 701
assailants, but ‘killing’ and ‘liquidating’ them.
506
As William B. Edwards, a mid-to-
late twentieth century gun rights advocate and frequent Guns Magazine contributor
507
wrote in 1961 promoting the police use of the AR-15:
The avowed job of the law enforcement officer is to apprehend, not liquidate,
the malefactor. But AR-15, which will put a dozen bullets into the desperado
before the smile fades from his face, will raise the morality rate amongst
baddies something considerable. And maybe this is in a way serving the ends
of justice. At least, the families of murdered children, of outraged night
nurses, of harmless store keepers slain by thugs in pursuit of small change,
may be excused the feeling that if more crimes of violence were dealt with
swiftly and violently by police, it would be a good example of other would-
be criminals.
508
So, how would this four-rule, principled approach to text, history, and tradition
apply to say the “sensitive places” doctrine? Recall that the “sensitive places” doctrine
affords governments the authority to outright prohibit the carrying, transport, or use
of “arms” at specific, sensitive locations.
509
What is unclear, especially in the wake
of Bruen, is the exacting criteria for lawmakers and the courts to designate an area
“sensitive.”
510
Historically speaking, for nearly five centuries in England, from the
late thirteenth century through the late eighteenth century, what constituted a so-called
“sensitive place” in which arms bearing could be prohibited was rather broad. It
encompassed densely populated areas, as well as areas where people regularly
congregated or conducted commerce. The text “fairs” and “markets” language
contained within the 1328 Statute of Northampton makes this abundantly clear.
511
So
too do several other English legal sources. For instance, in 1351, Edward III issued a
proclamation declaring it was unlawful to “go armed” with dangerous weapons
“within the City of London, or within the Suburbs, or any other places between the
said city and the Palace of Westminster . . . except the officers of the King . . . .”
512
Similarly, in John Carpenter’s 1419 treatise Liber Albus, it stipulates that
506
See, e.g., William B. Edwards, New Gun Against Crime, GUNS MAG., Apr. 1961, at 49.
507
See, e.g., W illiam B. Edwards, How You Can Get Good Gun Publicity, GUNS MAG., Mar.
1961, at 22–24, 58–59; William B. Edwards, Why Not Have a Pro Gun Law?, G
UNS MAG., Sep t.
1957, at 22–25, 52–58, 62.
508
Edwards, New Gun Against Crime, supra note 506, at 49 (emphasis added).
509
See supra Part III.B.
510
N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 U.S. 2111, 2133–34 (2022); United
States v. Class, 930 F.3d 460, 463–64 (D.C. Cir. 2019); see, e.g., GeorgiaCarry.Org, Inc. v.
Georgia, 687 F. 3d 1244, 1260–61 (11th Cir. 2012).
511
Statute of Northampton, 2 Edw. 3, c. 3 (1328) (Eng.).
512
Royal Proclamation as to the Wearing of Arms in the City, and at Westminster; and as to
Playing at Games in the Palace at Westminster, in M
EMORIALS OF LONDON AND LIFE 268, 268–
69
(H.T. Riley ed., 1868).
79Published by EngagedScholarship@CSU, 2023
702 CLEVELAND STATE LAW REVIEW [71:623
no one, of whatever condition he be, go armed in the said city [of London[ or
in the suburbs, or carry arms, by day or by night, except the va[]lets of the
great lords of the land, carrying the swords of their masters in their presence,
and the serjeants-at-arms of his lordship the King, of my lady the Queen, the
Prince, and the other children of his lordship the King, and the officers of the
City, and such persons as shall come in their company in aid of them, at their
command, for saving and maintaining the said peace; under the penalty
aforesaid, and the loss of their arms and armour.
513
The extent in which this English understanding of what constituted a “sensitive
place”—that is where arms bearing could be prohibited—traveled across the Atlantic
is unknown.
514
As outlined in Part III.A, the Justice of the Peace, sheriff, and constable
records up through the late nineteenth century did not survive for historical posterity,
and therefore it is impossible for historians to reconstruct exactly how often, when,
and where armed carriage restrictions were enforced.
515
What the historical record
does unequivocally inform is that armed carriage restrictions indeed made their way
into the American Colonies and subsequent United States.
516
Additionally, historians
can state with certainty that governments were well within their authority to prohibit
armed assemblies circa the late eighteenth century, no matter whether said assemblies
were deemed the militia
517
or not.
518
This is because it had long been understood that
513
JOHN CARPENTER, LIBER ALBUS: THE WHITE BOOK OF THE CITY OF LONDON 335 (Henry
Thomas Riley ed., 1861) (emphasis added). For other affirmations in the Liber Albus that the
going armed in densely populated public places was unlawful. See id. at 555, 556, 558, 560,
580.
514
But see DEL. CONST. of 1776, art. XXVIII (“To prevent any violence or force being used
at the said elections, no person shall come armed to any of them, and no muster of the militia
shall be made on that day . . . .”).
515
See infra Part III.A.
516
See Charles, The Faces of the Second Amendment Outside the Home, Take Two, supra
note 3, at 381, 391.
517
See Charles, The 1792 National Militia Act, the Second Amendment, and Individual
Militia Rights, supra note 371, at 326– 27, 374, 376–77.
518
An Act to Prevent Routs, Riots, and Tumultuous Assemblies, and the Evil Consequences
Thereof,
September Session, Chapter VIII (Mass. 1786); An Act for the More Speedy and
Effectual Suppression of Tumults and Insurrections in the Commonwealth, January Session,
Chapter LIX
(Mass. 1786); An Act to Prevent Routs, Riots, and Tumultuous Assemblies (N.J.
1797), reprinted in An Act to Prevent Routs, Riots, and Tumultuous Assemblies, T
HE
CUMBERLAND GAZETTE (Mass.), Nov. 17, 1786; An Act to Prevent Hunting with Fire-Arms in
the City of New-York, and the Liberties Thereof (N.Y. 1763), reprinted in J
AMES B. LYON, THE
COLONIAL LAWS OF NEW YORK FROM THE YEAR 1664 TO THE REVOLUTION 748 (1894); An Act
Against Riots and Rioters
(Pa. 1705); see also RAWLE, supra note 174, at 126 (noting that the
Second Amendment “ought not . . . in any government . . . be abused to the disturbance of the
public peace,” which included the assembling “of persons with arms, for an unlawful purpose .
. .”); B
URN’S ABRIDGEMENT, OR THE AMERICAN JUSTICE, CONTAINING THE WHOLE PRACTICE,
AUTHORITY AND DUTY OF JUSTICES OF THE PEACE, WITH CORRECT FORMS OF PRECEDENTS
RELATING THERETO, AND ADAPTED TO THE PRESENT SITUATION IN THE UNITED STATES 22 (2d ed.,
1792)
(“[I]n some cases there may be an affray, where there is no actual violence; as where a
80https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 703
any armed assemblage required the consent of government officials.
519
The same was
true for the hue and cry as is attested by several historical sources.
520
The historical point is simply this: the founders did not place the Second
Amendment right to “bear arms” above other fundamental rights, particularly those of
free speech, assembly, religion, education, political participation, and one’s ability to
engage in regular commerce.
521
To suggest otherwise is to misunderstand how the
founders’ conceptualized and understood liberty.
522
The same can be said for
subsequent generations of Americans up through the early to mid-twentieth century.
In fact, it is not until the late twentieth century that one will find frequent examples of
persons asserting that the Second Amendment is greater than or equal to other
man arms himself with dangerous and unusual weapons, in such a manner as will naturally
cause terror to the people; which is said to have been always an offence at the common law, and
strictly prohibited by statute.”).
519
This understanding of the law goes all the way back to the 1328 Statute of Northampton.
See Statute of Northampton, 2 Edw. 3, c. 3 (1328) (Eng.); see also May 16, 1388, in C
ALENDAR
OF
CLOSE ROLLS, RICHARD II, 1385–1389, at 399–400 (H.C. Maxwell-Lyte ed., vol. 3 1914);
December 1, 1377, in C
ALENDAR OF CLOSE ROLLS, RICHARD II, 1377–1381, at 34 (H.C.
Maxwell-Lyte ed., vol. 1 1914).
520
See, e.g., BLACKSTONE, supra note 71, at 293–94; RICHARD BURN, THE JUSTICE OF THE
PEACE AND PARISH OFFICER 234 (Vol. 2, 1762); JOHN BOND, A COMPLETE GUIDE FOR JUSTICES
OF THE
PEACE 42 (Vol. 1, 1685); WILLIAM SHEPPARD, A NEW SURVEY OF THE JUSTICE OF THE
PEACE HIS OFFICE 38, 53 (1659); DALTON, THE COUNTREY JUSTICE, supra note 167, at 360.
521
See, e.g., THOMAS DAWES, AN ORATION, DELIVERED JULY 4, 1787, AT THE REQUEST OF THE
INHABITANTS OF THE TOWN OF BOSTON, IN CELEBRATION OF THE ANNIVERSARY OF AMERICAN
INDEPENDENCE 11 (1787) (“Education is one of the deepest principles of Independence . . . In
arbitrary governments, where the people neither make the law nor choose those who legislate,
the more ignorance the more peace. But in a government where the people fill all the branches
of the sovereignty, Intelligence is the life of Liberty. An American would resent his being denied
the use of his mus[ket]: but he would deprive himself a stronger safeguard, if he should want
that learning which is necessary to a knowledge of his constitution.”). One gun rights writer
asserted otherwise given the fact that St. George Tucker referred to the Second Amendment as
the “palladium of liberty.” See Stephen P. Halbrook, St. George Tucker’s Second Amendment:
Deconstructing “The True Palladium of Liberty”, 3
TENN. J. L. & POL’Y 120, 123 (2006). But
Tucker’s description of the Second Amendment as a “palladium of liberty” was not meant to
place the rights to “keep and bear arms” above other rights. Rather, it was how the founders’
described several rights that were understood to balance the constitution in favor of the people.
See Charles & O’Neill, Saving the Press Clause from Ruin, supra note 483, at 1717–18, 1745–
46. And as it pertained to the Second Amendment specifically, Tucker’s “palladium of liberty”
reference was specific to the importance of a constitutional well-regulated militia. See Charles,
The Constitutional Significance of a “Well-Regulated Militia” Asserted and Proven, supra note
292, at 76– 77.
522
See, e.g., THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY: 1782-1793, at 395
(Henry P. Johnston ed., vol. 3 1890) (“Civil liberty consists, not in a right to every man, to do
just what he pleases; but it consists in equal right, to all the citizens, to have, enjoy, and to do,
in peace, security, and without molestation, whatever the equal and constitutional laws of the
country admit to be consistent with the public good.”); see also Charles, Restoring “Life,
Liberty, and the Pursuit of Happiness” in Our Constitutional Jurisprudence, supra note 151, at
524– 27.
81Published by EngagedScholarship@CSU, 2023
704 CLEVELAND STATE LAW REVIEW [71:623
fundamental rights, and these assertions were coming from gun rights extremists no
less.
523
This historiography is something that the courts will eventually have to
grapple with. They will also have to grapple with several highly specious historical
claims. For today, it is common for gun rights writers to whimsically state things like
eighteenth century persons frequently carried their firearms loaded to and from their
house to wherever with impunity, and the hue and cry was a laissez faire crime
enforcement system where virtually anyone could take up personal arms to pursue an
alleged criminal.
524
Such historical claims have little to no evidentiary support,
525
and, if anything, contradict the bulk of the evidentiary record.
526
Additionally, gun
rights writers often claim that in the Early Republic individuals could form, associate,
and train their own independent militias divorced from government service.
527
Hereto,
the evidentiary record strongly rebuts the historical claim,
528
and it effectively
underscores just how important it is for jurists to understand historiography, and ask
questions such as: Where are these historical claims coming from? Why are the
authors making them? What organizations are the authors affiliated with? What
historical evidence definitively supports it? Is the historical evidence being used
within its proper historical context? What historical evidence contradicts it?
The same set of questions need to be asked regarding the ‘racist history’ allegation
recently advanced by gun rights writers in this area—the allegation being that mid-to-
523
See, e.g., Wa yne LaPierre, America’s First Freedom, AM. RIFLEMAN, Dec. 1997, at 8 (“I
say that the Second Amendment is, in order of importance, the first amendment. It is America’s
First Freedom, the one right that protects all the others. Among freedom of speech, of the press,
of religion, of assembly, of redress of grievances, it is the first among equals . . . . The right to
keep and bear arms is the one right that allows ‘rights’ to exist at all.”); Harold W. Glassen,
“Vice-President’s Report 1967: First Board of Directors Meeting,” undated 1967, Glassen
Papers, box 1 (postulating that the “Second Amendment might well have been and probably
was placed immediately following the First Amendment with the idea of making enforcement
of the first possible . . .”); Daniel K. Stern, Tell the People!, A
M. RIFLEMAN, Mar. 1955, at 39,
40.
524
See, e.g., Joyce L. Malcolm, The Creation of a “True Antient and Indubitable” Right:
The English Bill of Rights and the Right to Be Armed, 32 J.
BRIT. STUD. 226, 229 (1993) (“Men
were expected to defend themselves and their families and, if need be, their neighbors as well.
But the duty was not merely defensive. Anyone who discovered a crime was required to raise
the ‘hue and cry’ and join, ‘ready appareled,’ in pursuit of the culprit if necessary . . . .”).
525
Consider the historical claim that the founders carried their firearms loaded to and from
their house to wherever with impunity. The claim is easily rebutted by simply presenting two
historical facts. First, late eighteenth-century firearm technology made carrying a loaded
firearms for sufficient periods of time impossible, assuming of course one wanted it to fire. See
Charles, The Faces of the Second Amendment Outside the Home, Take Three, supra note 9, at
46– 47 and accompanying notes. Second, as several legal treatises attest, the mere act of
presenting a firearm legally constituted an assault. See, e.g., H
AWKINS, supra note 93, at 133–
34, ch. 63, § 1.
526
See Charles, The Faces of the Second Amendment Outside the Home, Take Three, supra
note 9, at 46–47.
527
See, e.g., HALBROOK, A RIGHT TO BEAR ARMS, supra note 371, at 30, 61– 62.
528
See supra note 147.
82https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 705
late nineteenth century “sensitive places” laws, particularly those enacted in the South
maintain a “racial subtext.”
529
This historical allegation, professionally speaking, is
complete and utter garbage.
530
It is built primarily on inference, not proven historical
facts.
531
Was racism rampant in the United States from the mid-to-late nineteenth
century? Yes. But answering “yes” to this question does not automatically lead to the
conclusion that each and every law enacted during that period is in itself racist.
532
Sexism was also rampant throughout the mid-to-late nineteenth century, yet it would
be foolish to claim that all laws enacted during this period maintain a sexist subtext.
Similarly, racism and sexism were rampant in the United States throughout the 1960s
(and persists today), yet it would be foolish to argue that every firearms regulation
adopted during that period are racist and sexist.
The simple point is that historical claims need to be proven with actual,
substantiated evidence, not inferred nor created on an advocacy whim. Yet sadly this
is the foundation from which gun rights advocates build their historical claims.
533
It
generally starts with a kernel of truth, such as following the Civil War people of color
were subjected to both institutional and overt acts of racism, as well as widespread
civil rights violations, often at the hands of state and local government officials, or
that in the early twentieth century Italian immigrants faced widespread
discrimination.
534
But from there the history almost always goes awry.
535
Any and all
529
David B. Kopel & Joseph G.S. Greenlee, The “Sensitive Places” Doctrine: Locational
Limits on the Right to Bear Arms,
13 CHARLESTON L. REV. 205, 250 (2018). Hypocritically,
while alleging that mid-to-late nineteenth “sensitive places” laws maintain a “racial subtext,”
Kopel and Greenlee rely on historically verifiable, racist ‘bring your guns to church’ laws to
argue against a broad interpretation of the “sensitive places” doctrine. Id. at 232, 242.
530
See Charles, Racist History and the Second Amendment, supra note 374, at 1345–68
(outlining the development of specious racist history claims by gun rights writers).
531
See Reddon Fined $50: For Concealed Pistol. Charge of Disturbing Public Worship Not
Sustained,
BIRMINGHAM NEWS (Ala .), Sep t. 29, 1899, at 5 (case where a white man, R.G.
Reddon, was tried and convicted for “chasing a negro whom it was supposed was an escaped
convict . . . through a colored church”); Legal Notes—Carrying Concealed Weapons, F
ULTON
GAZETTE (Mo.), Aug. 9, 1878, at 3 (quoting L.W. McKinney, the prosecuting attorney in a case
where two persons unlawfully carried concealed weapons to a picnic, as stating he would
prosecute everyone who violated the “sensitive places’ law “without regard to race, color or
previous condition of servitude”).
532
See, e.g., Justin Aimonetti & Christian Talley, Race, Ramos, and the Second Amendment
Standard of Review, 107
VA. L. REV. ONLINE 193, 194– 95, 197 (2021) (making this racist history
line of argument).
533
See Charles, The Second Amendment in Historiographical Crisis, supra note 22, at 1747–
48.
534
See, e.g., Immigration and Relocation in U.S. History: Under Attack, LIBRARY OF
CONGRESS, www.loc.gov/classroom-materials/immigration/italian/under-attack/ (last
visited Jan. 25, 2023).
535
See Charles, A Historian’s Assessment of the Anti-Immigrant Narrative in NYSPRA v.
Bruen, supra note 233 (discrediting gun rights writers’ history on the 1911 Sullivan Law);
83Published by EngagedScholarship@CSU, 2023
706 CLEVELAND STATE LAW REVIEW [71:623
history of gun rights is cast as a positive good. Conversely, any and all history of gun
control is cast as a negative evil. This is undoubtedly intentional.
536
Portraying gun
rights as positive good and gun control as a negative evil has long been a political
messaging tactic by gun rights advocates. In the early twentieth century, gun rights
advocates audaciously claimed gun control was the tool of organized crime to disarm
law-abiding citizens.
537
It was not. Come World War II, gun rights advocates began
framing gun control as part of a Nazi and fascist agenda to disarm the United States
from within.
538
It was not. Following the war, gun rights advocates framed gun control
as a key component of a communist agenda to take over the United States from
within.
539
It was not. And by the late 1960s and early 1970s, with the precipitous rise
of crime, gun rights advocates took to principally framing gun control as a ‘liberal’
scheme to disarm law-abiding citizens.
540
It was not. Needless to say, based on this
author’s extensive research and experience, the history often advanced by gun rights
advocates is not what it appears to be.
541
It must be read and analyzed with a grain of
salt (more like a pound of salt). Therefore, it is imperative that jurists understand the
reefs and shoals of historiography, and objectively weigh history based on the totality
of the evidence, not selective quotations, or bombastic and unproven historical claims.
This is particularly true when it comes to “sensitive places” laws circa the mid-to-
late nineteenth century. For not only do gun rights advocates baselessly claim that
these laws were enacted with a “racial subtext,” but they have also already begun
selling the courts on a historical paradigm that would gut the “sensitive places”
Charles, Racist History and the Second Amendment, supra note 374, at 1361–62 (discrediting
gun rights writers’ claim that all gun control is racist).
536
See, e.g., KOPEL, supra note 375, at 1–4.
537
See, e.g., Otto R. Keiter, Anti -Legislation Plaint, AM. RIFLEMAN, Oct. 1939, at 36; C.B.
Lister, The Remedy, D
U PONT MAG., Mar. 1924, at 10. See also Elizabeth S. Hall, A Lady Speaks,
F
IELD & STREAM, Jan. 1936, at 15; Harry McGuire, Behold, the Popgun Crusaders!, OUTDOOR
LIFE, Sept. 1932, at 17; Harry McGuire, Farewell to the Popgun Crusaders, OUTDOOR LIFE,
Dec. 1931, at 20–21; Harry McGuire, The Good Women of the Friday Morning Club, O
UTDOOR
LIFE, Apr. 1929, at 1.
538
See, e.g., C.B. Lister, The Nazi Deadline, AM. RIFLEMAN, Feb. 1942, at 7; Danger Ahead!!
Help!!, A
M. RIFLEMAN, Apr. 1941, insert, at 2; Zero Hour, AM. RIFLEMAN, Dec. 1940, at 4;
Important Decisions, A
M. RIFLEMAN, Aug. 1940, at 22; ‘National Defense’ Decoy, AM.
RIFLEMAN, Aug. 1940, at 4.
539
CHARLES, VOTE GUN, supra note 418, at 34–78, 125–49.
540
Id. at 150–247.
541
See, e.g., MARK V. TUSHNET, OUT OF RANGE: WHY THE CONSTITUTION CAN’T END THE
BATTLE OVER GUNS 129 (2007) (noting that the gun rights conception of the Second Amendment
is “ill -defined, largely because its proponents have devouted most of their effort to creating [a
broad, gun rights centric interpreation of the right to keep and bear arms] and not much to
elaborating what that model implies about particular forms of gun control”).
84https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 707
doctrine to only those places where security guards and magnetometers are present.
542
According to these advocates, the courts should not give mid-to-late nineteenth
century “sensitive places” laws any historical credence given that said laws were
“short-lived,” inconsistent with what was practiced in most jurisdictions, and therefore
cannot “provide any insight into the original meaning of the Second Amendment,”
particularly given “their temporal distance from the Founding.”
543
On its face, this
line of history-in-law argument may appear convincing. However, as anyone who
studies Second Amendment literature knows, it is an argument that is directly at odds
with what gun rights advocates have said previously.
Beginning in the 1990s, gun rights advocates repeatedly asserted that the mid-to-
late nineteenth century was highly, if not more informative than the founding when it
came to interpreting the scope and meaning of the Second Amendment.
544
Yet after
Bruen oral arguments, knowing that a robust “sensitive places” doctrine may restrict
the right to carry arms in public, gun rights advocates began singing a different
tune.
545
And this is not the first time that gun rights advocates have suddenly changed
course on the history of the Second Amendment. During and prior to litigating Heller
and McDonald, gun rights advocates frequently espoused support for the English
origins of the right to arms.
546
However, post-McDonald, when it was clear that the
542
See David Kopel, The Sensitive Places Issue in New York Rifle, REASON: THE VOLOKH
CONSPIRACY (Nov. 8, 2021, 1:04 PM), reason.com/volokh/2021/11/08/the-sensitive-
places-issue -in-new -york-rifle/.
543
Brief of Amicus Curiae the Independent Institute in Support of Petitioners at 16, N.Y.
State Rifle & Pistol Ass’n, Inc. v. City of New York, 883 F.3d 45 (2018) (No. 18-280). Gun
rights writers David. B. Kopel and Stephen P. Halbrook respectively serve as the Independent
Institute’s research director and senior fellow. See About David P. Kopel, I
NDEP. INST.,
www.independent.org/aboutus/person_detail.asp?id=999 (last visited Jan. 29, 2023);
About Stephen P. Halbrook, I
NDEP. INST.,
www.independent.org/aboutus/person_detail.asp?id=517 (last visited Jan. 29, 2023). For
more than 15 years, the NRA has paid stipends to the Independent Institute to fund Kopel’s and
Halbrook’s Second Amendment research. See Van Sant, supra note 365; Civil Rights Defense
Fund -Supported Research (Previous Years), NRA
CIVIL RIGHTS DEFENSE FUND, June 20, 2012
(on file with author) (showing a $315,000 in grants to the Independent Institute to fund Kopel’s
and Halbrook’s Second Amendment research over a 2 year span); Civil Rights Defense Fund-
Supported Research, NRA
CIVIL RIGHTS DEFENSE FUND, June 20, 2012 (on file with author)
(showing a $55,000 grant to the Independent Institute to fund Kopel’s “Second Amendment
Project”).
544
See, e.g., Amicus Brief for Academics for the Second Amendment in Support of
Petitioners at 11–15, McDonald v. City of Chicago, 561 U.S. 742 (2010) (No. 08-1521);
S
TEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR
ARMS, 1866-1876, at ix-xi (1998).
545
See Kopel, The Sensitive Places Issue in New York Rifle, supra note 542; David Kopel,
Bearing Arms in “Sensitive Places”,
REASON: THE VOLOKH CONSPIRACY (Nov. 2, 2021, 3:26
AM), reason.com/volokh/2021/11/02/bearing-arms-in-sensitive-places/.
546
See, e.g., Brief of Amicus Curiae CATO Institute and History Professor Joyce Lee
Malcom in Support of Respondent at 4–34, District of Columbia v. Heller, 554 U.S. 570 (2008)
(No. 07-290); David B. Kopel, It Isn’t About Duck Hunting: The British Origins of the Right to
85Published by EngagedScholarship@CSU, 2023
708 CLEVELAND STATE LAW REVIEW [71:623
English history of arms regulation may derail a robust Second Amendment, gun rights
advocates immediately abandoned it.
547
To be clear, the only history that matters to
gun rights advocates at any specific time is whatever history advances the greatest
abundance of Second Amendment rights. All other history is conveniently cast aside
until the case and argument arises where it may prove useful again. This is not an
honest or holistic approach to history-in-law. It is fugazi.
And what are gun rights advocates so afraid of when it comes to “sensitive places”
laws circa the mid-to-late nineteenth century? Two historical facts come to mind, both
of which severely undercut an unduly broad conception of the Second Amendment
outside the home. First, the mid-to-late nineteenth century is the historical period in
which the police power becomes more jurisprudentially engrained, and modern
conceptions of arms regulation are developed, discussed, and gradually
implemented.
548
Second and more importantly, “sensitive places” laws circa mid-to-
late nineteenth century were worded quite broadly and generally upheld by the courts
as a constitutional exercise of governmental police power.
549
For instance, except for
travelers or sojourners, several cities and towns prohibited the concealed carrying of
weapons within their respective jurisdictions.
550
Meanwhile, other cities and towns
Arms, 93 MICH. L. REV. 1333, 1333–34 (1995); Robert J. Cottrol & Raymond T. Diamond, The
Fifth Auxiliary Right, 104 Y
ALE L.J. 995, 996 (1995).
547
See, e.g., David Kopel, Second Amendment Professors Brief in Supreme Court Right to
Bear Arms Case, R
EASON: THE VOLOKH CONSPIRACY (Oct. 6, 2021, 6:31 PM),
reason.com/volokh/2021/10/06/second-amendment-professors-brief -in-supreme-court-
right-to-bear -arms-case/; Brief of Amicus Curiae Professors of the Second Amendment et al. in
Support of Petitioners at 4–16, N.Y. Rifle & Pistol Ass’n, Inc. v. Bruen, 142 U.S. 2111 (2022)
(No. 20-843); Stephen P. Halbrook, The Common Law and the Right of the People to Bear
Arms: Carrying Firearms at the Founding and the Early Republic, 7 L
INCOLN MEM’L UNIV. L.
REV. 44– 45 (2020).
548
See CHARLES, ARMED IN AMERICA, supra note 3, at 146–65.
549
See, e.g., State v. Shelby, 90 Mo. 302, 468–69 (Mo. 1886); State v. Wilforth, 74 Mo. 528,
530– 31 (Mo. 1881); The Supreme Court: On Carrying Concealed Weapons, S
TATE J. (Jefferson
City, Mo.), Apr. 12, 1878, at 2 (only reprint of 1878 Missouri Supreme Court opinion State v.
Reando); Owens v. State, 3 Tex. App. 404 (Tex. App. 1878), reprinted in C
ASES ARGUED AND
ADJUDGED IN THE COURT OF APPEALS OF THE STATE OF TEXAS 404– 8 (Vol. 3, 1878); Hill v. State,
53 Ga. 472, 473–75 (Ga. 1874); English v. State, 35 Tex. 473, 473–74, 476 (Tex. 1873);
Andrews v. State, 50 Tenn. 165, 168 (Tenn. 1871). But see Rainey v. State, 1 Tex. App. 62
(Tex. App. 1880), reprinted in T
EXAS CRIMINAL REPORTS 62– 64 (Vol . 8, 1880) (noting that a
conviction requires the armed carriage to be at a time when the sensitive place has people
assembled).
550
See, e.g., An Act Defining and Punishing Certain Offenses Against the Public Peace,
reprinted in
ACTS, RESOLUTIONS AND MEMORIALS OF THE FIFTEENTH LEGISLATIVE ASSEMBLY OF
THE
TERRITORY OF ARIZONA 30, 30 (1889) (prohibiting “any person within any settlement, town,
village or city within this Territory” from carrying “any pistol, dirk, dagger, slung shot, sword
cane, spear, brass knuckles, bowie knife, or any other kind of knife manufactured or sold for the
purposes of offense or defense,” but “[p]ersons traveling may be permitted to carry arms within
settlements or town of the Territory for one-half hour after arriving in such settlements or town,
and while going out of such towns or settlements”); An Ordinance Defining Offenses and Fixing
the Punishment Thereof, Aug. 16, 1878, reprinted in
AMENDED CITY CHARTER AND
ORDINANCES OF THE CITY OF WALLA WALLA 165, 170 (1896) (prohibiting the carrying of
86https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 709
prohibited armed carriage altogether within their corporate or commercial limits.
551
Such was the case for the Pennsylvania capital city of Harrisburg circa 1873, which
“concealed weapons within the corporate limits,” except for law enforcement, city officials,
watchmen acting in their official capacity, and “any person temporarily sojourning in the City
for a period of not exceeding five days . . .”).
551
See, e.g., THE REVISED ORDINANCES OF PROVO CITY, UTAH, supra note 464, at 96 (“Every
person who shall wear, or carry upon his person any pistol, or other fire arm, slungshot, false-
knuckles, bowieknife, dagger or any other dangerous or deadly weapon within the city limits of
this city is guilty of an offence, and upon conviction thereof shall be liable to a fine in any sum
not exceeding twenty-five dollars, or to be imprisoned in the city jail not exceeding twenty-five
days, or to both fine and imprisonment.”); T
HE REVISED ORDINANCES OF PAYSON CITY, UTAH
84 (1893) (“Every person who shall wear, or carry upon his person any pistol, or other firearm,
slungshot, false-knuckles, bowieknife, dagger or any other dangerous or deadly weapon within
the limits of this city is guilty of an offense, and upon conviction thereof shall be liable to a fine
in any sum not exceeding twenty-five dollars, or to be imprisoned in the city jail not exceeding
twenty-five days, or to both fine and imprisonment.”); T
HE REVISED ORDINANCES OF TOOELE
CITY, UTAH 87 (1893) (“Every person who shall wear, or carry upon his person any pistol, or
other fire arm, slungshot, false-knuckles, bowieknife, dagger or any other dangerous or deadly
weapon, is guilty of an offence, and upon conviction thereof shall be liable to a fine in any sum
not exceeding twenty-five dollars, or to be imprisoned in the city jail not exceeding twenty-five
days, or to both such fine and imprisonment.”); An Ordinance: An Ordinance to Prohibit the
Carrying of Concealed Deadly Weapons (Feb. 4, 1889), reprinted in
MARYSVILLE DAILY
DEMOCRAT (Cal .), Feb. 7, 1889, at 4 (“It shall be unlawful for any person, not being a public
officer or traveler, or not having a written permit from the Marshal of the city of Marysville, to
wear or carry concealed, or otherwise, within the limits of the city of Marysville, any pistol,
dirk, or other dangerous or deadly weapon.”); An Ordinance to Prohibit Intoxication, Breach of
Peace, Carrying Deadly Weapons, the Use of Obscene Language, the Discharge of Fire-Arms,
and to Close Places of Amusement on Sunday in the City of Wallace (Jan. 31, 1889), reprinted
in
WALLACE COUNTY. REG. (KAN.), Feb. 9, 1889, at 2 (“Any person who shall be found carrying
on his person a pistol, bowie knife, dirk or other deadly weapon shall upon conviction be fined
in any sum not exceeding $25 or by imprisonment in the city jail not exceeding 30 days;
Provided however that this section shall not apply to any peace officer of the state, counties or
cities of this state and provided further that if it shall appear to the court trying the offense that
the accused was engaged in any legitimate business or calling that would necessitate the
carrying of any such weapons, such persons shall be acquitted.”); Ordinance No. 97: Ordinance
Related to Carrying Deadly Weapons (May 17, 1882), reprinted in
BURLINGTON DEMOCRAT
(Kan. ), May 26, 1882, at 2 (“That is shall be unlawful for any person hereafter to carry on his
or her person a pistol, bowie-knife, dirk or other deadly weapon, concealed or otherwise, within
the corporate limits of sad City of Burlington, Provided: This Section shall not apply to any
person carrying a deadly weapon while in the performance of his or her legitimate business,
wherein the law commands such person to carry a deadly weapon.”); An Ordinance:
Concerning Carrying Fire Arms and Lethal Weapons (Feb. 4, 1876), reprinted in
DEMOCRATIC
LEADER (Cheyenne, Wyo.), Feb. 13, 1876, at 3 (prohibiting the carrying of “any pistol, revolver,
knife, slung-shot, bludegeon or other lethal weapon” within the city of Cheyenne);
Miscellaneous Ordinance (Jun e 24, 1871), reprinted in
ABILENE WKLY. CHRON. (Kan .), Jun e
29, 1871, at 3
(“That any person who shall carry within the corporate limits of the city of Abilene
or commons, a pistol, revolver, gun, musket, dirk, bowie knife, or other dangerous weapon upon
his person, either openly or concealed, except to bring the same and forthwith [to] deposit it or
them at their house, store room, or residence, shall be fined seventy-five dollars.”). For some
examples of concealed carry prohibitions within corporate limits, see Ordinance No. 25: An
Ordinance Regulating Certain Misdemeanors and Punishments (Jun e 8, 1883), reprinted in
W
YANDOTT HERALD (Kan. ), Jun e 14, 1883, at 2 (“If any person shall carry concealed on his
87Published by EngagedScholarship@CSU, 2023
710 CLEVELAND STATE LAW REVIEW [71:623
prohibited both the open and concealed carrying of “any pistol, dirk-knife, slung-shot
or deadly weapon, within the city limits . . . except police officers . . . .”
552
The same
was true for the Washington capital of Olympia circa 1860, which prohibited any
“carry[ing] . . . [of] deadly weapons within the corporate limits” during the “usual
walks of life . . . .”
553
Then there was the small town of Great Bend, Kansas, which
maintained a large “painted notice on the southwest corner of the public square,”
which read: “Desperadoes are warned not to carry firearms or deadly or dangerous
weapons in the city limits. The penalty for the violation of this law is a fifty-dollar
fine, or imprisonment until paid.”
554
Several local and state laws were quite specific in defining “sensitive places,” such
as the North Carolina religious camp grounds of Stanley Creek and Rock Spring; both
of which had obtained the consent of the North Carolina Assembly to prohibit “the
carrying of guns or pistols within the incorporate limits of the Camp Ground” when
people were “assembled for public worship . . . .”
555
The cities of New Haven,
person any pistol or revolver, brass or iron knucks, iron, lead, or wooden billies, or slung-shot,
or other weapon liable to produce great bodily hard, within the corporate limits of [Armourdale,
Kansas], shall be deemed guilty of a misdemeanor . . . .”); An Ordinance Against Carrying
Concealed Deadly Weapons, or Selling Same to Minors (Mar. 14, 1881), reprinted in W
EEKLY
MESSENGER (Russellville, Ky.), Apr. 16, 1881, at 2 (“If any person chall carry concealed a
deadly weapon upon or about his person, other than an ordinary pocket knife, within the
corporate limits of said town of Russellville, he shall, upon conviction thereof, be finded not
less than twenty-five nor more than one-hundred dollars and imprisoned in the County Jail for
not less than ten nor more than thirty days . . . .”); Ordinance No. 33: To Prevent Persons
Carrying Fire Arms or Deadly Weapons of Any Kind, Within the Corporate Limits of the City
of Lewiston (Nov. 18, 1879), reprinted in L
EWISTON DAILY TELLER (Idaho), Nov. 21, 1879, at
2 (“It shall be unlawful for any person to carry any firear arms or deadly weapons of any kind,
in a concealed manner, within the limits of the city of Lewiston.”).
552
LOUIS RICHARDS & JAMES M. LAMBERTON, A DIGEST OF THE LAWS AND ORDINANCES FOR
THE
GOVERNMENT OF THE CITY OF HARRISBURG, PENNSYLVANIA IN FORCE AUGUST 1, A.D. 1906
557– 58 (1906).
553
Ordinance No. 13: An Ordinance to Prohibit the Use and Carrying of Deadly Weapons
and the Discharging of Fire Arms (Mar. 3, 1860), reprinted in W
ASHINGTON STANDARD
(Olympia, Wash.), Dec. 29, 1860, at 4.
554
Letter from Great Bend, DAILY KAN. TRIB. (Lawrence, Kan .), Jul y 27, 1873, at 2.
555
Stanley Creek Camp Ground, Gaston County, N.C.—Laws and Regulations, S. HOME,
Sep t. 22, 1873, at 2; Rock Spring Camp Ground, Lincoln Co., N.C.: Laws and Regulations,
C
HARLOTTE DEMOCRAT, July 30, 1872, at 2.
88https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 711
Connecticut,
556
Buffalo, New York,
557
Chicago, Illinois,
558
Cincinnati, Ohio,
559
Saint Paul, Minnesota,
560
Spokane, Washington,
561
Philadelphia,
562
Reading,
563
and
Williamsport, Pennsylvania,
564
Wilmington, Delaware,
565
and others
566
outright
556
CHARTER AND ORDINANCES OF THE CITY OF NEW HAVEN, TOGETHER WITH LEGISLATIVE
ACTS AFFECTING SAID CITY 293 (1898) (“No person shall carry or have any fire-arms on any of
said parks, and no fire-arms shall be discharged from, or into any of the same.”).
557
Park Ordinances, BUFFALO COMMERCIAL (N.Y.), May 15, 1873, at 4 (“All persons are
forbidden to carry firearms, or fire at or shoot any bird or animal”).
558
THE MUNICIPAL CODE OF CHICAGO 391 (1881) (“All persons are forbidden to carry
firearms or to throw stongs or other missiles within any one of the public parks.”).
559
ANNUAL REPORT OF THE BOARD OF PARK TRUSTEES FOR THE YEAR ENDING DECEMBER 31,
1891, at 27 (1892) (May 16, 1892 rule by the Cincinnati Board of Park Commissioners
stipulating that “[n]o person shall bring into or discharge within the parks any firearms or other
device by which birds or animals may be killed, injured, or frightened”).
560
ANNUAL REPORTS OF THE CITY OFFICERS AND CITY BOARDS OF THE CITY OF SAINT PAUL
689 (1889) (“No person shall carry firearms or shoot birds in any Park or within fifty yards
thereof, or throw stones or other missiles therein.”).
561
THE MUNICIPAL CODE OF THE CITY OF SPOKANE, WASHINGTON 316 (1896) (1892
ordinance directing that “[a]ll persons are forbidden to carry firearms or to throw stone or other
missiles within any one of the public parks or other public grounds of the city”).
562
LAWS OF THE GENERAL ASSEMBLY OF THE STATE OF PENNSYLVANIA, PASSED AT THE
SESSION OF 1868, at 1088 (1868) (1868 state law stipulating that in Fairmount Park “[n]o person
shall carry fire arms or shoot birds in the park, or within fifty yards thereof, or throw stones or
other missiles therein”); see also F
AIRMOUNT PARK 124 (1871).
563
A DIGEST OF THE LAWS AND ORDINANCES FOR THE GOVERNMENT OF THE MUNICIPAL
CORPORATION OF THE CITY OF READING, PENNSYLVANIA IN FORCE APRIL 1, 1897, at 240 (1897)
(1887 law stipulating that in Penn’s Common “[n]o person shall carry fire arms or shoot birds
in the park, or within fifty yards thereof, or throw stones or other missiles therein”).
564
LAWS AND ORDINANCES, FOR THE GOVERNMENT OF THE MUNICIPAL CORPORATION OF THE
CITY OF WILLIAMSPORT, PENNSYLVANIA, IN FORCE APRIL 1ST, 1891, at 141 (1891) (“No person
shall carry fire-arms, or shoot in the park . . . .”).
565
Park Regulations, MORNING NEWS (Wilmington, Del.), Jul y 13, 1888, at 4 (“No person
shall carry fire-arms or shoot birds or other animals within the park, or throw stones or other
missiles therein.”); see also T
HE CHARTER OF THE CITY OF WILMINGTON 571 (1893) (1893
amendment to the city’s charter prescribing the same rule).
566
See, e.g., THE REVISED ORDINANCES OF THE CITY OF CANTON OF 1910, at 284 (1910) (“All
persons are forbidden to carry firearms, or to throw stones or other missiles within any of said
parks.”); Park Regulations, E
VENING STAR (Washington, D.C.), May 14, 1895, at 1 (stipulating
that in Rock Creek Park, “all persons are forbidden: To carry or discharge firearms, firecrackers,
rockets, torpedoes or other fireworks.”); C
ITY OF TRENTON: CHARTERS AND ORDINANCES 390
(1903) (1890 Trenton, New Jersey ordinance stipulating that “[n]o person shall carry firearms
or shoot birds in said park or squares, within fifty yards thereof, or throw stones or other missiles
therein”); D
IGEST OF ORDINANCES OF THE BOROUGH OF PHOENIXVILLE 135 (1906) (1878
ordinance stipulating that “[n]o person shall carry fire-arms or shoot birds or throw stones or
89Published by EngagedScholarship@CSU, 2023
712 CLEVELAND STATE LAW REVIEW [71:623
prohibited the carrying and discharging of firearms in urban based parks. Then there
was the town of Columbia, Missouri, which in accord with Missouri state law,
567
passed an ordinance prohibiting the carrying of dangerous weapons “into any school
room, or place where people are assembled for educational, literary or social purposes;
or into any court room, during the sitting of court, or to any election precinct on any
election day; or into any other public assemblage of persons met for any lawful
purpose . . . .”
568
Similarly, the city of Stockton, Kansas passed an ordinance
prohibiting the carrying of dangerous weapons “into any church or place where the
people have assembled for public worship, or into any school room or place where
people have assembled for educational, literary or social purposes, or to any election
on any election day, or into any court room during the sitting of court, or into any other
public assemblage of persons . . . or shall go upon the public streets or public places
of the city . . . .”
569
As for state “sensitive places” laws, in 1869 Tennessee prohibited the carrying of
dangerous weapons into “any election . . . fair, race course, or other public assembly
of the people.”
570
Not long thereafter, Texas prohibited the carrying of dangerous
weapons “into any church or religious assembly, any school-room or other place
where persons assembled for educational, literary, or scientific purposes, or into a ball
room, social party, or other social gathering, composed of ladies and gentlemen, or to
any election precinct on the day or days of any election, where any portion of the
other missiles therein.”); THE CENTRALIA CITY CODE 188 (1896) (“All persons are forbidden to
carry firearms, or to throw stones or other missiles in said park.”); T
HE REVISED ORDINANCES
OF THE
CITY OF DANVILLE 83 (1883) (“Whoever shall carry any fire-arms into said parks, or
shall fire off or discharge the same in, or into said parks . . . shall be fined not less than one
dollar no more than one hundred dollars, for each offense.”); D
AVID H. MACADAM, TOWER
GROVE PARK OF THE CITY OF ST. LOUIS 117 (1883) (“All persons are forbidden . . . [t]o carry
firearms or to throw stones or missiles within it.”).
567
The ordinance mirrored an 1874 Missouri state law titled “Acts of the . . . General
Assembly of the State of Missouri.” L
AWS OF MISSOURI: GENERAL AND LOCAL LAWS PASSED AT
THE
ADJOURNED SESSION OF THE XXVII GENERAL ASSEMBLY 43 (1874). The law was slightly
modified a year later. See L
AWS OF MISSOURI: GENERAL AND LOCAL LAWS PASSED AT THE
REGULAR SESSION OF THE TWENTY-EIGHTH GENERAL ASSEMBLY 50– 51 (1875). In 1883, the
state law was amended to increase the fine. See L
AWS OF MISSOURI PASSED AT THE SESSION OF
THE
THIRTY-SECOND GENERAL ASSEMBLY 76 (1883). In 1890, Warrensburg, Missouri adopted
a similar law. See Concealed or Deadly Weapons, J
OHNSON COUNTY STAR (Mo.), Jun e 7, 1890,
at 4.
568
Chapter XVII: Carrying Concealed Weapons—Firing Guns, Pistols, Fire Crackers, Etc.,
reprinted in
GENERAL ORDINANCES OF THE TOWN OF COLUMBIA, IN BOONE COUNTY, MISSOURI
35 (Lewis M. Switzler ed., 1890). Like Columbia, Webb City, Missouri enacted a similar law.
See Ordinance No. 577: An Ordinance Defining What Shall Constitute Misdemeanors or
Offenses Against the City of Webb City, and Providing Penalties Therefor, May 15, 1905,
reprinted in
THE REVISED ORDINANCES OF THE CITY OF WEBB CITY, MISSOURI, 1905, at 100
(1905).
569
Ordinance No. 76: An Ordinance Prohibiting Deadly Weapons, reprinted in STOCKTON
REV. & ROOKS CNTY. REC. (Kan .), Jul y 1, 1887, at 1.
570
PUBLIC STATUTES OF THE STATE OF TENNESSEE SINCE THE YEAR 1858, at 108 (James H.
Shankland ed., 1871).
90https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 713
people of this state are collected to vote at any election, or to any other place where
people may be assembled to muster or to perform any other public duty, or any other
public assembly . . . .”
571
That same year, Georgia provided that “no person . . . be
permitted or allowed to carry about his or her person any . . . pistol or revolver, or any
kind of deadly weapon, to any election ground or precinct, or any place of public
worship, or any other public gathering in this state . . . .”
572
Arizona followed suit in
1889, prohibiting the carrying of dangerous weapons “into any church or religious
assembly, any school room, or other place where persons are assembled for
amusement or for educational or scientific purposes, or into any circus, show or public
exhibition of any kind, or into a ball room, social party or social gathering, or to any
election precinct on the day or days of any election, . . . or to any other place where
people may be assembled to minister or to perform any other public duty, or to any
other public assembly . . . .”
573
Then there was the state of Oklahoma, which by 1890
had prohibited the carrying of dangerous weapons “into any church or religious
assembly, any school room or other place where persons are assembled for public
worship, for amusement, or for educational or scientific purposes, or into any circus,
show or public exhibition of any kind, or into any ball room, or to any social party or
social gathering, or to any election, or to any place where intoxicating liquors are sold,
or to any political convention, or to any other public assembly . . . .”
574
If one examines these local and state “sensitive places” laws from a macro level,
circa the mid-to-late nineteenth century, it is safe to say that state and local
governments maintained the authority to prohibit the carrying of dangerous weapons
in a variety of places where people were known to congregate. Such places included
(1) churches and places of worship; (2) places where large public assemblies generally
took place, i.e., parks, town squares, and the like; (3) polling places
575
and other
buildings where political activity generally took place; (4) schools and institutions of
higher learning; (5) places where events of amusement took place, i.e., places where
people congregate for large planned events; and (6) bars, clubs, social venues, or
anywhere in which alcohol or psychoactive or mood altering drugs were purchased or
consumed.
571
An Act Regulating the Right to Keep and Bear Arms, reprinted in GEORGE W. PASCHAL,
A DIGEST OF THE LAWS OF TEXAS: CONTAINING THE LAWS IN FORCE, AND THE REPEALED LAWS
ON
WHICH RIGHTS REST FROM 1754 TO 1875, at 1322 (5th ed.1873).
572
An Act to Preserve the Peace and Harmony of the People of This State, and for Other
Purposes, reprinted in A
CTS AND RESOLUTIONS OF THE GENERAL ASSEMBLY OF THE STATE OF
GEORGIA, PASSED IN ATLANTA, GEORGIA, AT THE SESSION OF 1870, at 421 (1870).
573
An Act Defining and Punishing Certain Offenses Against the Public Peace, supra note
550, at 30.
574
Article 47: Concealed Weapons, reprinted in STATUTES OF OKLAHOMA 1890, at 495–96
(Will T. Little, L.G. Pitman, & R.J. Barker eds., 1891).
575
In the Reconstruction South, prohibitions on going armed to polling places were viewed
as vital to holding free and fair elections from the threat of violence. See, e.g., The Carrying of
Firearms Forbidden, supra note 148, at 1 (“All men entitled to vote must be allowed to exercise
this privilege, and will be protected in so doing . . . and therefore all concerned is hereby called
to the orders heretofore issued from these headquarters, forbidding the carrying of firearms,
which orders must be rigidly adhered to.”).
91Published by EngagedScholarship@CSU, 2023
714 CLEVELAND STATE LAW REVIEW [71:623
Given how broad these “sensitive places” categories are, it is no wonder that gun
rights advocates are urging the courts to adopt a limited, security guard and
magnetometer standard of review. In hopes of ensuring this outcome, gun rights
advocates are trying to minimize the historical record by proclaiming that these
“sensitive places” laws were only adopted in a minority of jurisdictions, and therefore
are an improper vehicle for crafting a “sensitive places” doctrine.
576
Yet,
hypocritically (and not surprisingly), while litigating Heller, McDonald, and Bruen,
the very same gun rights advocates advanced ‘minority’ history to buttress their legal
arguments.
577
The courts should not permit gun rights advocates or any litigant to
have it both ways. For to accept this history-in-law double standard is only going to
perpetuate fugazi Second Amendment history, not resolve it.
Furthermore, if the history of mid-to-late nineteenth century “sensitive places”
laws is indeed minimalized by the courts as gun rights advocates would like, then it
must be conceded that under any ‘widespread adoption’, ‘uniformity of law’, or ad
hoc ‘census population’ standard of review
578
only a handful of firearms regulations
will ever survive constitutional scrutiny.
579
This is because up until the early to mid-
twentieth century one will be hard pressed to find any assemblance of legal uniformity
when it comes to firearms regulation.
580
Consider that up to the mid-nineteenth
century, except for the categories of hunting,
581
discharging firearms in public or near
576
See, e.g., Plaintiffs’ Reply to Defendant’s Opposition to Plaintiffs’ Motion for
Preliminary Injunction at 33, Antonyuk et al. v. Bruen, 2022 WL 3999791 (N.D.N.Y. 2022)
(1:22-cv000734) (arguing that the burden is on the government to show a “broad historical
tradition” regarding “sensitive places,” “not an outlier or two”).
577
A great example of this is how gun rights advocates used the 1787 Dissent of the Minority
of the Convention of Pennsylvania to advocate for a broad, individual rights interpretation of
the Second Amendment. See, e.g., Brief of Amicus Curiae Academics for the Second
Amendment in Support of Respondent at 25, District of Columbia v. Heller, 554 U.S. 570
(2008) (No. 07-290); Brief of Amicus Curiae of Organizations and Scholars in Support of
Respondent at 13–14, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290); see
also H
ALBROOK, THE FOUNDERS’ SECOND AMENDMENT, supra note 301, at 195– 96. Another
great example is how gun rights advocates used eighteenth century ‘bring your guns to church’
laws —Southern colonial laws that maintain a racist past—to advocate for broad carry rights.
See, e.g., Brief of Petitioners at 8, 28, 31, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142
U.S. 2111 (2022) (No. 20-843); Brief of Amici Curiae Professors of Second Amendment Law
et al. in Support of Petitioners at 25, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 U.S.
2111 (2022) (No. 20-843); Brief of Amicus Curiae National African American Gun Association
in Support of Petitioners at 5–8, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 U.S. 2111
(2022) (No. 20-843).
578
See supra note 462.
579
See CHARLES, ARMED IN AMERICA, supra note 3, at 193–203 (discussing how and why
the gun rights movement of the early twentieth century was responsible for the bringing
uniformity to firearms regualtion); see supra pp. 78–79 (discussing the history of uniform state
law movement).
580
PATRICK J. CHARLES, THE SECOND AMENDMENT: THE INTENT AND ITS INTERPRETATION BY
THE
STATES AND THE SUPREME COURT 20– 21 (2009).
581
Id. at 18–19.
92https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 715
populated areas,
582
armed assemblage,
583
and the carrying of concealed weapons
outside the home,
584
all other firearm regulations were far from being widespread or
uniform. And if one canvases firearms regulations up through the close of the
nineteenth century, except for perhaps laws prohibiting minors from purchasing
firearms and laws against firearm brandishing,
585
one will be hard pressed to find any
other categories of firearm regulation that were nationally widespread.
This is particularly true for “sensitive places” laws, which makes complete
historical sense considering that firearms localism
586
(not firearms nationalism)
prevailed in the United States from the Early Republic through the early-to-mid
twentieth century. The historical reality is that different states and localities
maintained different laws for restricting armed carriage and therefore limiting the
potential for deadly affrays within their public spaces. Take for instance the town of
Oklahoma City, Oklahoma circa 1890, wherein, except for “officers of law in
discharge of their duties,” the concealed carrying of dangerous weapons was outright
prohibited.
587
Additionally, to prevent any firearms related injuries, it was against the
law for anyone, “at any time, under any circumstances, within the limits of said city,
excepting officers of the law” to “discharge any pistol, gun, or other firearm or
arms.”
588
If one puts these two laws together, it effectively nullifies the need for any
“sensitive places” law. The same can be said for those jurisdictions that adopted armed
carriage licensing laws, including much of California. Consider the city of Oakland,
California circa 1889. Out the city’s roughly 48,000 inhabitants,
589
only sixty-nine
maintained armed carriage licenses.
590
In light of this fact, there was no need for
Oakland to have a “sensitive places” law given that its armed carriage licensing law
already restricted armed carriage within the corporate city limits to just 0.14% of the
population.
591
Lastly, one must consider that several localities outright prohibited the
582
See infra p. 103.
583
See Charles, The Faces of the Second Amendment Outside the Home, Take Two, supra
note 3, at 402, 404–05.
584
CHARLES, ARMED IN AMERICA, supra note 3, at 156.
585
Joseph Blocher & Reva B. Siegel, When Guns Threaten the Public Sphere: A New
Account of Public Safety Under Heller, 116 N
W. U. L. REV. 139, 169– 70 (2021).
586
For more on firearms localism, see generally Blocher, Firearms Localism, supra note
404; C
HARLES, VOTE GUN, supra note 418, at preface. See also infra notes 587–88 (providing
examples of firearms localism).
587
Ordinance No. 15, reprinted in EVENING GAZETTE (Oklahoma City, OK), Sept. 16, 1890,
at 3.
588
Id. (emphasis added).
589
See Oakland Census Data for 1860-1940, BAY AREA CENSUS,
www.bayareacensus.ca.gov/cities/Oakland40.htm (last visited Jan. 27, 2023).
590
Carry Arms: Those Who Have Permits to Carry Concealed Weapons, supra note 253, at
1.
591
See id.
93Published by EngagedScholarship@CSU, 2023
716 CLEVELAND STATE LAW REVIEW [71:623
carrying of dangerous weapons within their corporate limits, concealed or
otherwise,
592
which effectively negated the need for any type of “sensitive places”
law.
Here again, the point to be made is that throughout most of our country’s history
firearms regulation was far from uniform—at least not until the early to mid-twentieth
century. This historical fact is something that gun rights advocates will continue to
seize upon in the wake of Bruen with the hope of jurisprudentially negating most gun
controls. But as noted earlier in this Article, Associate Justice Brett Kavanaugh’s
concurrence in Bruen, joined by Chief Justice John Roberts, weighs heavily against
this.
593
Therein, Kavanaugh wrote that if Bruen’s approach to text, history, and
tradition is properly applied by the lower courts, a “variety” of firearms regulations
will ultimately withstand constitutional scrutiny, including laws that did not appear or
proliferate within the statute and ordinance books until the early to mid-twentieth
century.
594
And quite honestly the only way this happens is if the lower courts reject
any ‘history and tradition’ test that requires government defendants to show a
particular type of firearms regulation was widespread, uniform, or passes some ad hoc
census population test by the close of the nineteenth century.
Rather, in its place, the lower courts should adopt a standard that shifts the
evidentiary burden once the government provides sufficient historical evidence of an
analogous regulation. The burden would then rest on the challenging party to show
that the analogous regulation was publicly understood to be unconstitutional or
inviolate of the right to arms through no-kidding, substantiated historical evidence.
Not only is this burden shifting approach to history and tradition more historically
objective and even keeled for the respective parties, but it is also in line with Bruen’s
discussion on the constitutionality of “sensitive places” laws, where it states that
“[a]lthough the historical record yields relatively few 18th- and 19th-century
‘sensitive places’ where weapons were altogether prohibited,” a lack of historical
evidence showing any “disputes regarding the[ir] lawfulness” presumes their
constitutionality.
595
In other words, what Bruen commands is that historical evidence
proving the constitutionality or unconstitutionality of any respective “sensitive places”
law is what matters most, not whether the law was widespread or uniform.
And if the lower courts indeed view uniformity of the law as relevant in deciding
whether a respective “sensitive places” law (or any firearms regulation for that matter)
is constitutional, this is where this Article believes early to mid-twentieth century
firearms regulation history could be leveraged. Once again, it is during this period that
we see many of the scattered, localized firearm regulations of the mid-to-late
592
See, e.g., An Act to Prohibit the Unlawful Carrying and Use of Deadly Weapons,
reprinted in A
CTS OF THE LEGISLATIVE ASSEMBLY OF THE TERRITORY OF NEW MEXICO, TWENTY-
S
EVENTH SESSION 55 (1887); Ordinance No. 12: Deadly Weapons, reprinted in BURLINGTON
PATRIOT (Kan .), May 18, 1883, at 4.
593
See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 U.S. 2111, 2161–62 (2022)
(Kavanaugh, J., concurring).
594
Id.
595
Id. at 2133.
94https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6
2023] THE FUGAZI SECOND AMENDMENT 717
nineteenth century begin to become more widespread and normalized.
596
Yes, there
is no disputing that the Bruen majority rejected twentieth century history as non-
persuasive when looking for “insight into the meaning of the Second Amendment,”
especially when it “contradicts earlier evidence.”
597
At the same time, however, it is
worth noting that the Bruen majority was silent as to whether early to mid-twentieth
century history should be jurisprudentially jettisoned altogether, particularly in cases
where the history can inform whether a type of firearms regulation subsequently
became accepted or widespread.
598
V.
CONCLUSION
Throughout this Article, Bruen’s historical contradictions, fabrications, double-
standards, and non-holistic use of history-in-law were laid to bare. And assuredly, in
the coming months and years there will be several legal commentators, scholars, and
even jurists who will not only proclaim Bruen was rightly decided, but also that the
Bruen majority ‘got the history right’. While this author concedes that the holding in
Bruen—this being that highly discretionary “may issue” armed carriage laws violate
the Second Amendment—is one of a handful of legitimate outcomes that the Supreme
Court could have arrived at (depending, of course, on how the history was framed), it
is patently absurd to argue that Bruen’s historical approach and overall marshalling,
selecting, analyzing of historical evidence was honest, objective, and even-keeled. It
is fugazi, plain and simple.
The full jurisprudential consequences that Bruen will impose on the future of gun
control are yet to be seen.
599
Given that Supreme Court precedent is the highest legal
authority form which the lower courts must weigh future Second Amendment cases
and controversies, there is an argument to be made that most forms of gun control—
except those that were nationally widespread up through the late nineteenth century,
which was relatively few—should be struck down as unconstitutional. But, as this
Article points out, this approach does not appear to align with Associate Justice Brett
Kavanaugh’s concurrence.
600
The same can be said of Associate Justice Samuel
Alito’s, which notes that striking down discretionary “may issue” armed carriage laws
like New York’s is “all” the Court decided in Bruen, nothing more:
Our holding decides nothing about who may lawfully possess a firearm or
the requirements that must be met to buy a gun. Nor does it decide anything
about the kinds of weapons that people may possess. Nor have we disturbed
anything that we said in Heller or [McDonald], about restrictions that may
be imposed on the possession or carrying of guns.
601
596
See supra pp. 98–100.
597
Bruen, 142 U.S. at 2154, n.28.
598
Id. at 2122–56.
599
See supra note 19 for the early case results.
600
Bruen, 142 U.S. at 2161–62 (Kavanaugh, J., concurring).
601
Id. at 2157 (Alito, J., concurring) (emphasis added).
95Published by EngagedScholarship@CSU, 2023
718 CLEVELAND STATE LAW REVIEW [71:623
Needless to say, Bruen has created quite the jurisprudential conundrum. Much like
after Heller and McDonald, the onus is now on the lower courts to fashion a history-
based jurisprudential test that is holistic, predictable, and reliable and therefore
legitimate. It will not be an easy challenge. However, this author hopes the suggestions
laid out in Part IV will serve as a helpful guidepost for the courts on ‘what to’ and
‘what not to do’ in the name of ensuring a more historically accurate and
jurisprudentially transparent Second Amendment.
96https://engagedscholarship.csuohio.edu/clevstlrev/vol71/iss3/6