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10/08/2021

Law Professors' History-Oriented Brief in the New York Guns Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Second Amendment professors brief in Supreme Court right to bear arms case.  From the introduction: 

On November 3, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment right to "bear arms" is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need. The Supreme Court's docket page for the case shows about three dozen amicus briefs filed on each side. In the next several weeks, I will write about some of those briefs. I'll start with the amicus brief that I co-authored with George Mocsary (U. of Wyoming law school) and Joseph Greenlee (Firearms Policy Foundation).

... Our brief focuses on legal history, particularly in the Founding Era and before. In this post, I will summarize parts of the brief, and, for some parts, provide additional background information.

Part I briefly looks at the text of the Second Amendment, which protects the right to "keep" arms and the right to "bear" arms. Rather than creating a hierarchy, the text protects both rights equally. Dictionaries cited in the Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined "bear" as to "carry" or "wear."

...

Part II delves into English history. The first Englishmen to have a written guarantee of arms rights were the settlers of the Virginia Colony in 1607 and the New England Colony in 1620. Their royal charters gave them and all succeeding immigrants the perpetual right to import from the King's dominion's "the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence or otherwise."

Back in England, there was no written right to arms until the 1689 English Bill of Rights: "That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law." Yet the same Parliament that enacted the English Bill of Rights declared the right to arms, and other provisions, to be "true, ancient and indubitable rights." Like Americans such as John Adams, the English believed the right of self-defense and the right to arms to be based in natural law. ... [extensive historical discussion follows].

The New York case is likely to be the most significant originalist decision of the term.  For a historical counterpoint, see here (from Saul Cornell).