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26 posts from December 2022


Further Programming Note
Michael Ramsey

Thanks to the co-bloggers, guest bloggers and reader suggestions that have kept our content up this week.  But now it really is time for a holiday hiatus.  More to come in the New Year.

Ronald Levin on the Major Questions Doctrine
Michael Ramsey

Ronald M. Levin (Washington University in St. Louis - School of Law) has posted The Major Questions Doctrine: Unfounded, Unbounded, and Confounded (62 pages) on SSRN.  Here is the abstract:

As recently explicated by the Supreme Court in West Virginia v. EPA, the major questions doctrine provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Supreme Court has given for enforcing the doctrine do not withstand scrutiny even on their own terms.

In West Virginia, the Court relied heavily on its prior precedents, but this article’s review of the history of the doctrine highlights the Court’s repeated use of overstatements of the holdings in these prior cases as a substitute for giving reasons to justify the doctrine’s expanding scope.

The majority and concurring opinions in West Virginia did offer some normative arguments on behalf of the doctrine, but the article takes issue with them. For example, the doctrine’s supposed foundations in the nondelegation doctrine and other separation of powers principles are unsatisfactory, because they do not supply a credible basis for distinguishing major rules from non-major rules. Moreover, the major questions doctrine appears to make overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself.

Thus, the Court has not provided an adequate justification for the major questions doctrine, which threatens not only to weaken administrative governance, but also to politicize the Court’s decisionmaking in cases involving major questions (a regrettably ill-defined term). Although the Court may be unlikely to abandon the doctrine entirely, the article’s analysis suggests that the Court should apply it restrictively rather than expansively.

Via Larry Solum at Legal Theory Blog, who comments: "Recommended.  The paper does not consider the possibility that the Major Questions Doctrine is a 'compensating adjustment' that aims to achieve an originalist second best."

My tentative views of the major questions doctrine align with Professor Solum's suggestion. Also, I don't think the doctrine makes "overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself," or indeed makes any assumptions at all in this regard.  It only says that if major social policy problems are to be resolved at the federal level, Congress is the institution to do it.  If Congress can't or won't, the problems aren't resolved at the federal level and are left to the states.


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.


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.


Josh Halpern & Lavi Ben Dor: Boycotts: A First Amendment History
Michael Ramsey

Josh Halpern (Research Fellow and Lecturer of Law, Harvard Law School) & Lavi Ben Dor (University of Pennsylvania Law School J.D. '20) have posted Boycotts: A First Amendment History (44 pages) on SSRN.  Here is the abstract:

Over the past decade, more than half of U.S. states have enacted laws that prohibit recipients of public contracts and state investment from boycotting the State of Israel. These so-called “anti-BDS laws” have triggered a debate over whether the First Amendment’s Free Speech Clause includes a “right to boycott.” This Essay is the first to take up that question thoroughly from a historical standpoint. Examining the boycott’s constitutional status from before the Founding to the present era, we find that state actors have consistently treated the boycott as economic conduct subject to governmental control, and not as expression presumptively immune from state interference. Before the Founding, the colonists mandated a strict boycott of Britain, which local governmental bodies enforced through trial proceedings and economic punishments. At common law, courts used the doctrine of conspiracy to enjoin “unjustified” boycotts and hold liable their perpetrators. And in the modern era, state and federal officials have consistently compelled participation in the boycotts they approved (like those of apartheid-era South Africa and modern-day Russia), while prohibiting participation in the ones they opposed (like that of Israel).

The Essay concludes that modern anti-boycott laws not only fit within, but improve upon, this constitutional tradition. As the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware illustrates, the common law approach risks violating the First Amendment if the doctrine is applied to restrict not only the act of boycotting or refusing to deal, but also the expressive activities that accompany such politically-motivated refusals. Modern anti-boycott laws avoid that problem by surgically targeting the act of boycotting, while leaving regulated entities free to say whatever they please. From the standpoint of history, these laws reflect First Amendment progress, not decay.


Why Justice Bushrod Washington Rejected a “Deeply Rooted in History” Standard for Fundamental Rights and Instead Adopted a Broader “All Times” Standard
Andrew Hyman

Justice Bushrod Washington’s circuit court opinion in Corfield v. Coryell was the leading antebellum opinion on the Comity Clause of Article IV in the U.S. Constitution.  The Comity Clause says, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  Corfield was later widely discussed during the Thirty-Ninth Congress, which wrote the similar clause called the Privileges or Immunities Clause in the Fourteenth Amendment.  I contend that Washington’s opinion was driven in a significant way by public relations and public diplomacy, and this under-appreciated aspect of his Corfield opinion probably has implications for the meaning of the similar clause in the Fourteenth Amendment.  Washington intelligently and deliberately adopted an “all-times” standard for fundamental rights, instead of adopting a “deeply-rooted-in-history” standard, as I will explain presently.

The text of the Comity Clause bars discrimination by a host state against visitors who are citizens from other states.  There are longstanding libertarian arguments that the Comity Clause should also prevent a state from violating natural rights of its own citizens, but that has always been a minority position, for good reason.  While the concept of “natural rights” has been known and respected for centuries, terms like “natural privileges” or “natural immunities” have been virtually unknown, and instead privileges and immunities have been understood for centuries as things that states grant or withhold regardless of whether natural rights are involved or not.  So, the correct consensus legal position for centuries has been (and remains) that the Comity Clause bars discrimination against citizens from out of state, but does not affect how a state treats its own citizens, although there is a possible textual exception that a state cannot prevent its citizens from leaving the state to go enjoy privileges and immunities in other states.  

Justice Washington agreed that the Comity Clause is mainly an anti-discrimination provision rather than a font of substantive natural rights, and indeed Washington wrote in his notes that, “the meaning of this article is that the citizens of each State shall within every other State have equal privileges or rights as the citizens of such State have, the words all privileges of citizens being equivalent to equal privileges.”  That’s the natural reading of the clause’s text.  The Corfield case involved a citizen of one state visiting another state to harvest oysters.  Although the text of the Comity Clause does grant visitors “all” privileges and immunities of citizens in the visited state, Washington reasonably understood the words “privileges and immunities of citizens” to mean traditional rights of citizenship rather than whatever rights are currently respected by a state as to its current citizens.  Washington wrote (emphasis added):

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. 

Instead of writing “at all times,” Washington could have written that the rights protected by the Comity Clause had to be deeply-rooted in history, or something like that.  There is a very significant distinction there, and Washington had good reason to favor the “at all times” formulation instead of the “deeply-rooted-in-history” formulation, given that the former includes recent and current times whereas the latter does not.  Washington understood from the plain text of the Comity Clause that it was a non-discrimination provision that protected citizens from out of state, and he had a strong motive to avoid suggesting that such visitors could be deprived of fundamental enforceable rights so long as the visited state’s own citizens were also deprived of fundamental enforceable rights, and so he defined his way out of that pickle.  Washington reasonably and carefully defined the word “fundamental” so any right that a state is presently declining to recognize is not “fundamental” even if it is deeply-rooted in history.  It would have been highly impolitic for Washington to suggest that the Comity Clause invites states to violate any fundamental rights it wishes, either with respect to native citizens or visiting citizens, and that is the reason why he defined a right as fundamental only if it was deeply-rooted in history and still protected by a state.  Even if you somehow doubt this rather obvious explanation, there is no doubt that the term “all times” includes both past and present whereas “deeply-rooted-in-history” only includes the past, and Washington used the former rather than the latter standard.  This ensured that states could treat categories of their own citizens however they want so long as they treat visiting categories of citizens the same way, as to rights deeply rooted in history, without stigmatizing a state that decides to treat both its own citizens and visiting citizens in new or unusual ways that depart from established tradition.

Fast forward now to 1866, when the Thirty-Ninth Congress was debating the Privileges or Immunities Clause.  That clause says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”  Those last three words “of the United States” are critically important in view of Corfield, and including those three words greatly expanded the scope of protected rights.  This assertion is different from Justice Miller’s assertion in the Slaughter-House Cases in 1873 that those last words of the PI Clause greatly narrowed the scope of protected rights, although Miller was 100% right to perceive that those words point to federal law rather than state law.  Had those three words not been included, then we would have to look at both state and federal law to determine what are the fundamental privileges and immunities in question, and states would be as free as they were in Corfield to exclude any right from fundamental status merely by not recognizing or enforcing it with respect to any category of their own citizens.  

Fortunately, those last three words (“of the United States”) were included in the PI Clause rather than excluded, and so we are called upon to look at federal law rather than state law to determine what rights are sufficiently fundamental that states must respect them.  Inevitably, that will include the rights found in the Bill of Rights, but it will also include federal statutory rights that have, at all times since 1776, been enjoyed by the citizens of the United States with respect to the government of the United States.  Such rights must be both deeply-rooted as well as currently in force (not merely deeply-rooted) in order to apply against the states via the PI Clause.  In other words, Congress has a substantive role under the PI Clause, with respect to unenumerated rights that are deeply-rooted in history; if Congress believes those rights to be outdated, then Congress can repeal them from federal law.  Otherwise, those rights that are deeply-rooted in U.S. history apply against the states via the PI Clause.  To properly interpret the Privileges or Immunities Clause, there is a need to go looking back to 1776 but no farther back, because we are examining rights of U.S. citizenship, not British citizenship; as Justice Washington put it, we should focus on rights that have been respected from the time of “becoming free, independent, and sovereign.”

Some modern scholars believe that the PI Clause is largely about equality and preventing discrimination of various sorts, rather than the interpretation that I’ve described above (for the first time publicly).  In my view, the Equal Protection Clause is broad enough to do that job, although there is likely some overlap between the two clauses.

Professor Lessig has recently written that Congress has a much broader substantive role under the PI Clause than the limited role discussed here, whereas the courts have said Congress has no such role at all; I don’t know what the best answer would be from a policy point of view, but properly understanding Corfield can certainly illuminate the policy choice made in the 1860s.

Second Amendment  Originalism and the Problem of Law Office History
Saul Cornell

[Ed.: This guest post is from Professor Saul Cornell, Paul and Diane Guenther Chair in American History at Fordham University, responding to this post by Stephen Halbrook, excerpted on this blog here.]

There is something deeply ironic about Stephen Halbrook’s  attack on my work as an example of law office history. Halbrook accuses me of engaging in law office history because I read a 1790s statute using the interpretive rules governing statutory construction from that period, not the modern rules Halbrook and other Second Amendment originalists typically employ in their anachronistic interpretations. Recovering what a law meant in the 1790s means using  18th century  interpretive conventions and applying the appropriate common law concepts to make sense of the text. Halbrook’s misreading of the text he cites is typical of originalists whose law office history methodology seems blithely unaware that lawyers and jurists in the Founding era operated with different rules and assumptions. I have made this point in several articles, pointed it out to Halbrook in person, and yet he persists in repeating claims that are demonstrably false. (See my  essay in Law and Contemporary Problems for further discussion.) Halbrook and other gun rights scholars  don’t understand that criminal intent and mens rea  were governed by different rules in the Founding era. Anyone who has read the foundational work of Columbia legal scholar George Fletcher and the more recent important work of Guyora Binder and Simon Stern would be familiar with the difference between the  objective view of  criminal mens rea familiar to Blackstone and modern criminal law’s subjective approach.  Sadly, Halbrook  and others like him live in a Second Amendment bubble cut off from serious legal history. Halbrook and other Second Amendment originalists typically prefer to cite other gun rights scholars and originalists and seldom engage with legal historians, particularly those who write about fields outside of the Second Amendment itself. This  insularity and parochialism  undercuts Halbrook’s credibility among  real scholars who regard him as little more than a hired gun doing the bidding of the gun lobby. (Both Halbrook and fellow Volokh Conspiracy contributor David Kopel have taken  buckets of cash from the NRA  to fund amicus briefs  and other pro-gun proselytizing.) Halbrook’s grasp of the relevant legal and historical materials necessary to understand Anglo-American law in this area is deficient on multiple counts. He does not seem familiar with  the exposition of  the Statute of Northampton in Michael Dalton’s Country Justice, the most widely reprinted and influential popular guide to the law from the eighteenth century.   Dalton’s account of the traditional prohibition on armed travel explains why Halbrook’s reading of the Massachusetts statute he cites is profoundly anachronistic. Traveling armed, Dalton reminded his readers, who included among others  John Adams and Thomas Jefferson, was a threat to the peace and a per se  violation  of the law because “it striketh a fear and Terror” in those who did not violate the law which prohibited traveling habitually armed. (Arming was permissible in a small number of well-defined  exceptions, but Halbrook and other Second Amendment originalists, most notably Joyce Lee Malcolm, consistently confuse the exception to these rules with the rules themselves.)  Indeed, as historian Patrick Charles has shown, the entire idea of a right to peaceable armed travel in public, a concept used by the  Bruen majority,  was invented by gun rights activists and planted in law reviews as part of a larger strategy to remake the Second Amendment into its current super-sized gun rights amendment, an interpretation that has little foundation in text, history, or tradition. To be sure, the American Revolution republicanized the concept of the peace and other common law ideas. American law did expand gun rights, but not in the way Halbrook and his cabal of activist pseudo-scholars have maintained. Massachusetts revised its Northampton-style surety law during the codification movement  in the early 19th century and the state’s leading criminal law authority, Peter Oxenbridge Thacher explained the meaning of the law in unambiguous terms. “In our own Commonwealth [of Massachusetts],” he reminded members of the grand jury, “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.”  Confronted by such clear  evidence that the leading criminal jurist in antebellum Massachusetts interpreted the legal limits on armed travel in a way that supports my argument and contradicts their  anachronistic libertarian reading,  Second Amendment originalists,  including David Kopel, Robert Leider, and Halbrook,  are 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. In fact, 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. Yet, in the upside-down world of Second Amendment originalism such evidence is precluded from consideration. The real question scholars interested in the historical meaning of the Second Amendment  must ponder is simple. Who is a better guide to understanding what early American firearms statutes meant: early American jurists, including Thacher, or modern libertarians steeped in the culture of today’s Federalist Society? Most historians would pick the former, Kopel and Halbrook obviously favor the latter. This fact alone renders their comments on the history of the Second Amendment ludicrous.


Programming Note: Blog Holiday
Michael Ramsey

I will be taking a blog holiday for the balance of the year for family reasons.  Happy holidays to all and see you next year.


Stephen Halbrook on the Second Amendment after Bruen [Updated]
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook (Independent Institute) is guest blogging on gun rights cases after the Supreme Court's Bruen decision.  Here are the posts so far:

America's Rifle -- The AR-15 is protected by the Second Amendment

 "Plain Text" -- When the Second Amendment's plain text covers conduct, it is presumptively protected. 

Did the Fourteenth Amendment Alter the Meaning of the Second Amendment? -- 1791, not 1868, is the key date for determining the original understanding of the Second Amendment 

Should Courts Appoint Historians as Experts in Second Amendment Cases? Courts, not “experts,” should say what the law is 

On the 1791 vs. 1868 issue (which is the one I'm most interested in):

When proposing the Fourteenth Amendment to Congress in 1866, Senator Jacob Howard referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; … the right to keep and bear arms…." He averred that "the great object" of the amendment was "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." The design was not to change the nature of the rights, but to prevent the states from violating them.

The Second Amendment was ratified in 1791, and the Fourteenth Amendment was ratified in 1868. The Supreme Court stated in D.C. v. Heller (2008) and repeated this year in N.Y. York State Rifle & Pistol Ass'n v. Bruen: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them." So do we look for that understanding in 1791 or in 1868?

The simple answer would be that the substantive nature of the right is defined by reference to its origins in 1791, while the understanding that it's a fundamental right intended to be applied to the states would be found in 1868. But litigation-driven, preconceived outcomes are at work, few firearm restrictions existed at the Founding but more were adopted in the decades after the Fourteenth Amendment, and the incentive thus exists for opponents of the right to keep and bear arms to root for 1868 as the crucial date in order to find historical analogues to current restrictive laws.


The object [of the Fourteenth Amendment] was thus to extend the right to all citizens, not to change the nature of the right. As McDonald explained, Bill of Rights guarantees incorporated under the Fourteenth Amendment are enforced against the states "according to the same standards that protect those personal rights against federal encroachment." Just as the meaning of the rights to free speech and against unreasonable search and seizure are found in the understanding of 1791, so is the meaning of the right to keep and bear arms. The Supreme Court has never found that the primary meaning of any provision of the Bill of Rights is to be determined by how it was understood in 1868.


The sources cited [to the contrary]—a pre-Heller book by Prof. Akhil Amar and a pre-Bruen essay by Prof. Kurt Lash—fail to make a convincing case that the meaning of the Bill of Rights changed in 1868. First, its guarantees against federal violation have always been applicable since its ratification in 1791, and it would be incongruous to have a different Bill of Rights applicable to the states. Second, Supreme Court precedent has always looked to the 1791 understanding as the crucial period for the meaning of the guarantees, and a contrary rule invented for the Second Amendment has no basis in those precedents. Third, advocates of the 1868 theory rely on the privileges-or-immunities clause of the Fourteenth Amendment, but the Court has never relied on that clause for incorporation. And fourth, there is no indication that anyone at the time thought that this is what the Fourteenth Amendment would accomplish, and there is nothing in the text of the Amendment to support it, either.

From an originalist perspective, I think fourth point is the one that really matters (if true).

UPDATE:  A further post:

Analogical Reasoning and the Second Amendment

From the introduction:

In Bruen, the Supreme Court held that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." To justify a regulation, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." And that depends on whether there is a relevantly-similar historical analogue.

In assessing a modern restriction, "this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge." A green truck is not relevantly similar to a green hat if the subject is things you can wear. I would add that an antebellum ban on carrying a Bowie knife concealed is not relevantly similar to a current ban on possession of a rifle or magazine. As Bruen instructs, we look at "how and why the [modern and historical] regulations burden a law-abiding citizen's right to armed self-defense." Under that test, a modern requirement to register all guns would not be analogous to a historical requirement that a militiaman must exhibit his musket at muster.

And from later on:

In his Bruen dissent, Justice Breyer asked, "will the Court's approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?" He quotes Saul Cornell describing "law office history" as "a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion." Cornell is further cited for arguing that Heller was wrongly decided. Indeed, Cornell joined in an amicus curiae brief in Heller claiming that "the private keeping of firearms was manifestly not the right that the framers of the Bill of Rights guaranteed in 1789."

But Professor Cornell engages in what I call "history office law," which means that some historians make claims about legal history to reach preordained conclusions that betray their ignorance of statutory interpretation. A 1795 Massachusetts law made it an offense to "ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth." Cornell would cross out everything after "go armed," as if doing so "offensively" and in a manner that created "fear or terror" to others were not elements of the crime. Such distortions are routine on the part of anti-Second Amendment historians.

So Justice Breyer is correct that some judges and others may write "to produce a preordained conclusion," but his alternative of "interest balancing" through means-ends scrutiny is far worse, because it actually encourages that tendency. ...


Larry Solum on Speaker's Meaning and Sentence Meaning
Michael Ramsey

At Legal Theory Blog, Larry Solum has an updated entry in his Legal Theory Lexicon for Speaker's Meaning and Sentence Meaning.  From the introduction:

[W]e can ask the question, "How do we figure out the meaning of a legal text?" In some cases, we can tell what the statute [ed.: or a constitution or other legal text] unambiguously means without asking the "how" question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for a theory of communication.

One such theory was developed by the philosopher Paul Grice.  A key component of Grice's theory is the distinction between "speaker's meaning" and "sentence meaning."  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the  Lexicon  provides a basic introduction to Grice's ideas.

And on the basic distinction:

The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls "speaker's meaning."  And Grice developed a very precise and illuminating theory.  Grice uses the word "utterance" to refer to oral communications, and I will use that word as well.  For Grice the speaker's meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener's grasp of the speaker's communicative intentions.

Wow!  That sounds complicated!  Let's unpack Grice's formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

Ben says to Alice: "Pizza day!"

Alice says, "Great!  See you there."

Suppose that in context, when Ben says "Pizza day!" he means to say: "Today is the day that we usually have Pizza at Lampo's at noon, and I don't have a conflict."  But he doesn't have to spell it out, because Alice knows that every Tuesday, Ben and Alice have Pizza at Lampo's every Tuesday at noon unless Ben has a meeting.  When Ben says "Pizza day," Alice relies on her background knowledge and grasps that by saying "Pizza day!" Ben is conveying that he plans to meet her for Pizza.  By replying "Great!  See you there", Alice conveys that she is pleased and that she will be at Lampo's at noon today.

Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of "sentence meaning."


Grice contrasted the speaker's meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of "Pizza day" is very sparse.  Pizza is a food consisting of a crust and toppings such tomato sauce and cheese.  Day is a unit of time.  The phrase "pizza day" could mean any number of things.  It might be a day upon which there are pizzas--pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression "pizza day" is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

And on implications for textualism:

The distinction between speaker's meaning and sentence meaning allows us clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker's meaning than it is like sentence meaning.