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Antebellum Enforcement of Gun Laws and the Limits of Law Office History: A Response to Professor Leider
Saul Cornell

[Ed.: This guest post continues the debate (see here, here and here) over originalism and the Second Amendment, with Professor Cornell's response to this post by Robert Leider.]

As I explained in my earlier blog post, and in dozens of articles, Second Amendment “originalism” has too often become an exercise in “law office history.” Robert Leider’s response to my most recent blog post beautifully illustrates many of these defects in Second Amendment scholarship, problems  that have been well documented by multiple scholars.

I have debunked Leider’s claims about surety laws and the  legality of habitual armed travel in antebellum America elsewhere but it is worth highlighting a few of the problems with his analysis because they shed additional light on the limits of law office history in Second Amendment scholarship.  Events in 1893, transpiring more than a half century after the enactment of the Massachusetts surety law,  are simply not  relevant to understanding what happened in the 1830s. He continues to use documents from later periods to illuminate ideas from an earlier time, a method that effectively reads history backwards.

Moreover, Leider  erroneously asserts that a grand jury charge is little more than “a welcome” with no probative value for understanding the public meaning of laws enacted in early America. No serious legal historian would accept his characterization of grand jury charges, particularly when they were published, reprinted, and drew praise by the legal community at the time.

Leider has also misinterpreted the prosecution of the Snowden brothers, two African American abolitionists who were charged with violating the 1830s Massachusetts surety law. The trial judge in that case unambiguously interpreted the Massachusetts surety law as prohibiting armed travel, absent a reasonable fear. Leider badly misrepresents the history of the case in both his SSRN posting and in his amicus brief in Bruen. He ignores the express statement made by the judge presiding in the case  who clearly interpreted the law in the same way that Thacher did in his grand jury charge. Leider, it is worth noting, has found no jurist from Massachusetts from this period who supports his view of the state’s surety law. I have provided evidence of three respected jurists who all endorsed the view that armed travel was prohibited, absent a specified threat (the issue at the core of Bruen.)

Leider’s  methodology is deeply flawed and violates multiple rules of historical inquiry. He relies on an impressionistic sampling of newspapers using digital searching tools,  a methodology that invites error.  I agree that more research is certainly needed in this field, but key word searching is not a substitute for well-designed historical research, even  if one is focusing primarily on newspapers. Leider clearly did not look at a broad range of newspapers from the period and  he certainly did not pay attention to the ideological bias of different newspapers when interpreting their accounts. If he had  followed  these basic procedures  his conclusions would have been different.

Context is key to making sense of this episode. Leider seems unaware that the Snowdens were arrested after considerable tumult in Boston, unrest so severe that the militia was mobilized. Nor does he seem aware that the Snowdens were apprehended outside of a city armory. Finally, he ignores the fact that radical abolitionists in Boston had advised the city’s  Black population to disobey  state law and arm themselves. Although one can sympathize with the plight of the  city’s  abolitionists and African-American citizens, there is no doubt that the Snowdens  violated the law prohibiting armed travel absent a specified threat. Moreover, the decision of the judge in the case  to impose a surety directly contradicts Leider’s claims about the meaning and enforcement of the Massachusetts law. Leider’s account is not a form of originalism, but a bizarre form of  anti-originalism that takes radical political statements from abolitionist newspapers as a better guide to the meaning of the law than the pronouncements of two of the state’s most respected jurists. To compound this interpretive error, Leider also mistakenly claims the law was not enforced because the judge imposed no penalty beyond the surety. But this ignores the fact that the only penalty provided by the law was  the imposition of a surety. Thus, Leider not only misinterpreted the law, but he also misconstrued the outcome of the case.

Professor Leider needs to correct these errors in  his future scholarship and other scholars need to be aware of these errors before citing his work as a dependable authority on the early history of gun regulation. In short, Leider’s work  shows that the problem of law office history continues to cast a long shadow over Second Amendment scholarship and jurisprudence.