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08/02/2017

Saul Cornell Strikes Back (against Wrenn v. DC)
Michael Ramsey

At Take Care Blog ("Ensuring the President 'shall take Care that the Laws be faithfully executed'"), Saul Cornell (Fordham University, Department of History): Slavery and the Right to Travel Armed: A Short History Lesson (commenting on the recent D.C. Circuit decision in Wrenn v. District of Columbia, which was critical of some of Professor Cornell's scholarship). Key points:

The scope of the right to keep and bear arms outside of the home after District of Columbia v. Heller remains one of the most contested issues in American law. It is thus easy to see why gun rights champions have applauded Wrenn v. District of Columbiaa ruling that struck down the District of Columbia’s may-issue gun carrying scheme. Under DC’s law and others in places like California, New York, and Maryland, an individual must demonstrate a “good” or “proper” reason for being publicly armed in order to obtain a carry permit.  

Wrenn cuts against the growing consensus among courts that limiting the right to travel armed to individuals who have a good reason is not only consistent with Heller, but continues the dominant tradition in Anglo-American law for the last seven hundred years. To get around seven hundred years of history is no easy matter, but the decision in Wrenn does so by a highly selective culling of historical evidence and a shocking ignorance of the most important facts about Anglo-American criminal law and its history. 

Recent constitutional scholarship has demonstrated that the permissive vision of a broad right to carry emerged in the antebellum South, frequently in decisions rendered by pro-slavery judges. Given this fact it is not surprising that Wrenn’s justification for a right to carry cites these southern cases to support its gun rights conception of the Second Amendment. The only non-southern case cited, Thompkins v. Johnson, deals with a slave owner trying to recover a runaway slave in Pennsylvania. In that case the court concluded that the slave owner had a right to both arm himself and travel armed so that he could recapture his slave. In its opinion, the court reminded Americans: “the law of the land recognizes the right of one man to hold another in bondage, and that right must be protected.”

...

The court also erroneously interprets the common law tradition and it ignores recent evidence about the statutory restrictions on traveling armed that were enacted by legislatures outside of the slave south. The court adopts a gun rights fantasy in place of history. According to Wrenn, “under surety laws, put simply, everyone started out with robust carrying rights. Those reasonably accused were then burdened.”

This view is the opposite of the historical reality. The dominant tradition outside of the South restricted the right to travel armed. This right was generally limited to a small list of context-dependent exemptions. 

To see the falsity of Wrenn’s gun rights historical fantasy one need only examine the standard legal texts of the Anglo-American legal tradition and read them with some degree of historical sophistication, i.e. without presentist assumptions. Bans on traveling armed in populated areas were categorical violations of the King’s Peace. Consider the view of Michael Dalton, one of the most influential legal authors in the Anglo-American world, who wrote that: “All such as shall go or ride armed (offensively) in Fairs, Markets, or elsewhere; or shall wear or carry any guns, dags or pistols" violated the King’s Peace. “Any Constable, seeing this, may arrest them, and may carry them before the Justice of the Peace, and the Justice may bind them to the peace.” 

Wrenn turns this historical reality upside down, conjuring up a right where none existed.  ...

(Aside:  unclear what this has to do with the President's duty to "take care that the laws be faithfully executed.").