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10/14/2021

Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook is guest-blogging about the historical aspects of the briefing in New York State Rifle & Pistol Association v. Bruen, the Supreme Court's pending public carry case. Here are his initial posts:

New York's Futile Search for Historical Precedents for its Handgun Carry Restrictions

Does a Medieval English Statute Supersede the Second Amendment?

Don't Know Much About History

From the first post:

In my recent book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, I extensively survey the historical evidence and conclude that the founding generation understood the right to bear arms to be a genuine right not subject to the types of limitations New York and other "may issue" states place upon it. Nothing that New York and its amici have said undermines that conclusion. Indeed, my book anticipates and addresses most if not all of the arguments made and primary historical sources cited by New York and its amici.

In this series, I plan to address several key points of contention among the parties about what history shows about the right to carry, including the Statute of Northampton and its American analogues and the so-called "Massachusetts model" of regulating individuals carrying firearms in a threatening manner through a surety system. I also will address the historical arguments made in the amicus brief filed by former Judge Michael Luttig, who surprisingly to many supports the State of New York in this case.

At the outset, however, I will begin by emphasizing the overwhelming evidence that during the Founding generation the carrying of firearms in public was a common and unremarkable practice. This evidence is impossible to square with the argument that public carry was heavily restricted and in most cases criminal at the Founding, and it therefore casts serious doubt on New York's arguments to the contrary before the details of those arguments are even assessed.