A Response to Professor Cornell on the Second Amendment
Robert Leider
[Ed.: This guest post is from Robert Leider, Assistant Professor of Law at George Mason University Antonin Scalia Law School, responding to this Originalism Blog guest post by Saul Cornell.]
Historians and legal scholars are presently debating the historical scope of the right to bear arms. One of the most prominent participants in this debate, Professor Saul Cornell, has a recent post on the Originalism Blog criticizing my work. But his post does not respond to most of the objections that I have raised against his arguments, so I wanted to explain where I see the debate in the hope that we can move it forward.
Saul Cornell does not believe that the Second Amendment protects the general right of individuals to carry arms in public. In support, Saul Cornell has argued that antebellum America had two regulatory traditions governing the carrying of weapons. The South, he claims, had a “permissive” culture that allowed people to carry arms openly, while prohibiting the carrying of concealed weapons. The North, he says, had a restrictive culture, generally prohibiting individuals from carrying weapons.
With respect to the North’s restrictive culture Cornell purports to find these restrictions in an 1836 Massachusetts law (later copied by nine other jurisdictions), which provided that individuals who went armed with dangerous weapons “without reasonable cause to fear an assault or other injury” may have to find sureties of the peace “on complaint of any person having reasonable cause to fear an injury, or breach of the peace.” He also claims that the common law crime of going armed to the terror of the people (codified by the English Statute of Northampton) generally prohibited going armed.
On its face, the Massachusetts statute does not prohibit publicly carrying weapons. The statute only provides that individuals carrying weapons may have to find sureties to keep the peace, and only if a person “having reasonable cause to fear an injury, or breach of the peace” files a complaint. Yet, Cornell argues that my statutory reading is anachronistic. Relying on a grand jury charge by Judge Peter Oxenbridge Thacher, Cornell argues that this statute was a general prohibition of public carry.
In response, I have made the following arguments: (1) Thacher’s grand jury charge was just a welcome address to members of the grand jury. It was not a binding legal instruction in any case. (2) Contemporary newspaper articles, including some written by nineteenth-century lawyers, repeatedly state that Massachusetts had no statute forbidding the carrying of weapons. (3) We have no evidence that the surety laws were regularly enforced, particularly against those carrying weapons for lawful purposes including self-defense. Searches of databases of nineteenth-century newspapers (which reported on local court matters) turn up extraordinarily few cases involving either the surety law or the common-law crime of going armed to the terror of the people. What cases exist mostly involve interpersonal violence. Newspapers that I have found in three jurisdictions complain that the surety law generally went unenforced. One of those newspapers, advocating for Michigan to pass a law prohibiting concealed weapons, said that if the surety law was a general restriction on public carry, then it was unconstitutional. (4) There is not a single reported decision challenging the surety law in any of the ten jurisdictions in which it was passed. This is odd. Statutory restrictions on the carrying of concealed weapons were repeatedly challenged in courts of record as violating the right to bear arms. Yet, in the ten jurisdictions with a supposed general ban on public carry, the statute evades judicial review in all of them. (5) The Massachusetts Supreme Judicial Court rejected a defendant’s challenge to an 1893 Massachusetts law prohibiting parading in cities and towns with arms. It is hard to explain the need for the 1893 law if the 1836 law already prohibited public carry. Even more odd, the Massachusetts Supreme Judicial Court never mentioned the state’s supposed 60-year history of restricting public carry when it upheld the law. (6) These surety laws have no relevance for interpreting the constitutional right to bear arms. They were passed decades after the codification of the right. There is no evidence that the legislatures that passed these laws understood them as a general ban on public carry; nor is there evidence (if the legislatures understood these laws to be a general ban) that they debated whether such a general ban was consistent with the constitutional right to bear arms. No judicial decision addresses that issue either.
To these six reasons, I can now add a seventh that confirms my reading: a July 19, 1940 letter of the Virginia Attorney General, which stated that “[t]here is no statute prohibiting the carrying of revolvers that do not come within he prohibition against concealed weapons.” Opinions of the Attorney General and Report to the Governor of Virginia, From July 1, 1940 to June 30, 1941, at 52. The opinion then cites the surety provision and notes that a person going armed “may be required to give a recognizance.”
Against all this evidence, Cornell comes back to Judge Thacher’s comments over and over. Cornell’s blog post on June 1, 2022, is mostly an attempt to bolster Judge Thacher’s authority. Now, in his December 19 blog post, Cornell criticizes me for being “reduced to making the absurd argument that Thacher’s gloss on his state’s own law does not count because it was uttered in a grand jury charge, not a trial.” He continues, “anyone with even a smattering of knowledge about antebellum American legal culture would understand that grand jury charges were exceedingly important civic and legal occasions. These events offered learned judges, the ‘sages of the law,’ an opportunity to expound the meaning of statutes and other important legal texts.”
Cornell’s argument is more ad hominem than responsive. The fact that Thacher’s address was a welcome address, not a legal instruction, is important. Because this was only a welcome address, Thacher may not have been talking with the utmost legal precision when he declared that Massachusetts law generally prohibited people from going armed. But even if he was, his understanding of the law was not subject to appellate review. More importantly, however, my argument cannot be “reduced” to an attack on Thacher’s authority. Cornell is correct that I attack Thacher’s position. But I do so after examining a wide variety of other sources, which undermine Thacher’s understanding of the statute. Cornell has never responded to this other evidence.
Nor has Cornell done the kind of archival research necessary to support his claims. Justice of the peace records are difficult to find; but many are extant in the surety jurisdictions. Cornell has criticized my efforts to comb newspaper records to find reports of surety cases. But my searches have found more surety cases than he has unearthed. If Cornell does not like my approach, he is free to do his own archival research. I would welcome the opportunity to see the cases Cornell is able to uncover, and how many of them involve people carrying weapons for lawful self-defense.
Cornell also claims that the Statute of Northampton was a broad ban on public carry and, in support, he cites Michael Dalton’s Country Justice manual for justices of the peace. Like the surety laws, the Statute of Northampton was a law that was technically extant, but, by the eighteenth century, the law was (to the best of our knowledge) hardly ever enforced. As a result, the case law involving the crime was seriously underdeveloped. We have many (often conflicting) opinions of various treatise writers on their understanding of the crime. But we have no cases to sort out whose understanding was correct.
Given this, it is hard to say with any certainty what constituted the elements of the offense. Cornell is right that “criminal intent and mens rea were governed by different rules in the Founding era.” And he is likely right that the crime did not require specific intent to terrorize. But there is substantial authority to support that, by the eighteenth century, the crime required going armed in a manner likely to provoke a breach of the peace. In this country, the single state supreme court (North Carolina) to analyze the crime in any depth held that the crime prohibited going armed “to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people.”
Finally, I think it is important to step back from the trees and look at the forest. The question in all this is whether the right to bear arms guarantees to individuals the general right to carry arms publicly. Substantial precedent in this country holds that such a right exists; and while states may regulate the right using their police powers, they may not abuse those powers to render the right a nullity. Cornell’s chief intervention in this debate is based on the supposed regulatory traditions of long-disused statutes. These statutes are relevant, but they are not the only thing we have to look at.
For instance, there are statutes on the books in multiple states that criminalize consensual sexual conduct, notwithstanding Griswold and Lawrence. A future historian examining how early twenty-first century American law regulated consensual sexual relations would get a distorted view of our law if he focused only on those statutes. Likewise, we should analyze the scope of the right to bear arms by examining all of the legal evidence from the relevant time. We should not define the right primarily by looking to a bunch of rarely enforced statutes whose claim to fame is that they were dug up by a twenty-first century historian.