New York State Rifle & Pistol Association v. Bruen is a current case pending in the U.S. Supreme Court that could turn out to be a landmark decision for the interpretation of the 2nd Amendment of the U.S. Constitution. The case in essence begs an answer to the question of whether the 2nd Amendment and it’s clause on the right of the people to keep and bear arms protects the open-carry of firearms outside the home.
In their brief in opposition, as the respondent’s of the case begin to articulate reasons for the court to deny the petition for writ certiorari, the first line of argumentation involves a historical perspective with New York State arguing that its licensing regimes goes back for over a hundred years. Likewise, during oral arguments before the Supreme Court, Barbara Underwood – Solicitor General of New York – began her argument with a statement regarding the centuries long tradition of English and American law imposing limits on the open-carrying of firearms in public in the interest of public safety. Though the history and tradition of a legal scheme is not the only qualification when assessing its constitutionality – as an extreme and quite drastic example, in Brown v. Board of Education the Supreme Court struck down (rightfully so) the racial segregation of public schools even though this segregation had a long historical precedent – it is nonetheless a strong line of argumentation either in favor or against the interpretation of the U.S. Constitution. This is especially true when dealing with the interpretation of the 2nd Amendment, as prior notable 2nd Amendment cases such as District of Columbia v. Heller and McDonald v. City of Chicago relied heavily on the analysis of the history, text and tradition relevant to these cases.
One could argue that this rings truer now than at any other point in modern history. The conservative side of the Court often abides by an originalist interpretation of the Constitution. The most recent addition to the bench, Trump-appointee Amy Coney Barrett – who is also a subscriber to this judicial ideology -, describes originalism as the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative”. If a regime has been in place in one form or another since the Founding Period, wouldn’t it be fair to argue that these regimes were ostensibly accepted by the drafters of the Constitution?
One of the earliest examples of Anglo-American judicial legislation cited for justifying modern day regulation of open-carrying of firearms is the Statute of Northampton which was passed by the Parliament of England all the way back in 1328. Chapter 3 of this statute essentially banned carrying weapons in fairs and markets. The statute remains central to this day in the legal debate on whether the 2nd Amendment provides protection to carry arms in public.
New York State has a nearly one and a half century long history regarding gun regulation. Beginning in 1884, New York enacted a statewide licensing scheme, which required minors to acquire a license for carrying weapons in public. In 1905 this scheme was expanded to cover all persons who wished to carry any pistol, revolver or other firearm in public.
After the Civil War, in the period called Reconstruction – lasting from around 1865 to 1877 – U.S. States and localities saw a wave of gun regulation with a myriad of laws limiting guns in public places. A watershed moment in New York State came shortly after the expansion of the licensing scheme in 1905 when in 1911 the Sullivan Act was passed by the New York legislature, modeled on the laws passed during Reconstruction. The Act was introduced – according to the bill’s namesake, state senator Timothy Sullivan – after a “marked increase in highly publicized violent street crime” and many prominent New York politicians came under intense public pressure to act. The statewide law required licenses in order for New York residents to possess firearms which were small enough to be concealed.
The law was amended two years later in 1913 to establish statewide standards for licensing. This is where the contentious “proper cause”-standard, requiring every New York citizen to show that he or she has “proper cause” to carry a firearm, arose from and which is supremely relevant to the current Supreme Court case at hand.
History carries weight and in nowhere else quite as much as the Supreme Court of the United States. The historical record of gun regulation shows that there is more than 700 years of Anglo-American legal tradition of regulating arms in dense and populous areas. This tradition carries over to the colonial and the founding period, all the way through the Civil War to modern day America.
The Lawslingers