« Programming Note: Blog Holiday
Michael Ramsey
| Main | Why Justice Bushrod Washington Rejected a “Deeply Rooted in History” Standard for Fundamental Rights and Instead Adopted a Broader “All Times” Standard
Andrew Hyman »


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.