Hovering above the current political debate over gun control legislation is the question of constitutional limits.1 The Supreme Court’s 2008 decision in District of Columbia v. Heller2 holds that the Second Amendment restricts regulation of the private possession of firearms. The decision is based largely on legal history—particularly the English origins of the amendment and the historic significance of its words and syntax. The court acknowledges that "the right secured by the Second Amendment is not unlimited" but has declined to define the full scope of permissible regulation.3 As a result, the Heller decision has opened the door for challenges to gun control laws throughout the country, leaving the lower courts with legal history as the main tool for resolving such challenges.

In the past few weeks, federal courts have issued three significant decisions—on the West Coast, in Chicago, and here in New York—that warrant the attention of anyone who cares about gun control, pro or con. Two of those decisions discuss legal history at length. This article will suggest that the New York court reached the wiser conclusion of the two, because it properly recognized that legal history is too complex and uncertain a vehicle for setting policy on gun control today.

On Nov. 27, 2012, a unanimous panel of the U.S. Court of Appeals for the Second Circuit and, separately, a judge of the U.S. District Court for the Northern District of California each came out with rulings that rejected constitutional challenges to gun regulations in those states.4 Two weeks later, on Dec. 11, 2012, the U.S. Court of Appeals for the Seventh Circuit, by a 2-1 margin, invalidated an Illinois law that forbids possession in public of a "ready-to-use" firearm, with limited exceptions.5 The author of the Seventh Circuit’s majority opinion, Judge Richard Posner, expressly criticized the Second Circuit’s ruling in several respects, including its "historical analysis."

The fact that history should play a prominent role in the current debate over the scope of permissible gun regulation comes straight out of Heller, which struck down gun control regulations in Washington, D.C.6 Justice Antonin Scalia, who wrote for the 5-4 majority, is a longtime exponent of "originalism" in constitutional interpretation, which focuses attention on "what the text [of the relevant constitutional provision] was thought to mean when the people adopted it."7Heller provided an opportunity for Justice Scalia to demonstrate how, in his view, history should be used to settle a litigated constitutional question.

Collective or Individual Right?

The subject of historical scrutiny in Heller is the wording of the Second Amendment, which provides:

A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.8

At issue was the question whether the amendment protected a "collective right" associated with state militias or instead an "individual right" to possess and use guns for nonmilitary purposes like personal self-defense. The Supreme Court’s 1939 decision in United States v. Miller seemed to have settled that question in favor of the "collective" interpretation when it upheld the National Firearms Act of 1934, which barred the possession of so-called "sawed-off shotguns."9 The majority in Heller, however, concluded that Miller was not controlling and that the Founders originally intended the Second Amendment to preserve an ancient right of individuals to have guns for self-protection.10

Historical analysis permeates both the Heller majority decision by Scalia and the principal dissent by Justice John Paul Stevens. Central to Scalia’s argument is his contention that "the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right."11 According to Scalia, the Second Amendment was prefigured in the English Declaration of Rights of 1689, which includes a clause stating: "That the Subjects, which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law."12 The Declaration of Rights was presented to Prince William of Orange and his wife Mary for their acceptance as a precondition to being named King and Queen in 1689. Scalia calls the arms clause "an assurance from William and Mary…that Protestants would never be disarmed," and thus served as "the predecessor to our Second Amendment."

Much else in the Heller majority decision depends upon Scalia’s account of Second Amendment history. In contrast, Stevens’ dissenting opinion provides an altogether different historical account. On the English Declaration of Rights as the supposed source of a personal arms right, Stevens is dismissive. He contends that the relevant language actually had a regulatory function and "did not establish a general right of all persons, or even of all Protestants, to possess weapons."13

The historical writing on behalf of both the majority and the dissenters in Heller is lively, entertaining, and unfortunately oversimplified. As the American historian, Jack N. Rakove, observes in his Pulitzer Prize-winning work, Original Meanings, "it is no easy task to discover the original meaning of a clause" in the Constitution.14 It turns out the issue is far more complex than suggested by Scalia or, for that matter, Stevens.

In reality, the convoluted history of regulation of personal arms in England is worthy of a doctoral dissertation.15 Conflicting and contradictory patterns are discernible going back to the post-Roman period preceding the Norman invasion. Restrictions on personal possession of weapons appear in the laws of King Cnut, the Danish ruler of England in the early 11th century. The Statute of Northampton (1328) declared that no one could "go nor ride armed by night or by day in fairs, markets, nor in the presence of the justices or other ministers," upon pain of criminal penalty. Tudor laws limited the possession of guns to persons with income of at least £100 per year, reflecting a hierarchical society. They remained in force under the Stuart monarchs in the 17th century, supplemented by edicts of outright disarmament during Cromwell’s Interregnum government (1649-60).16

Following the restoration of Charles II, a Militia Act of 1662 authorized seizure of weapons thought by the local authorities "to be dangerous to the peace of the kingdom." A highly restrictive Game Law of 1671 reasserted the hierarchical weapons limitations inherited from the Tudor era. Indeed, England’s leading historian of the militia concluded that during the Restoration period (post-1660) much of the "civil population ceased to have arms."17

On the other hand, a quite different strand of English history discloses not just laws permitting arms possession among certain elements of society but an actual legal obligation to maintain such weapons. Medieval England had no professional police force; public order and national defense were maintained through decentralized use of county militias. The Statute of Winchester (1285) had made it a duty, not merely a right, for every male between the ages of 16 and 60 to keep weapons commensurate with his personal means. English subjects remained obliged well into the 18th century to join their neighbors, "upon a Cry for Arms to keep the Peace," to apprehend felons or to assist the sheriff in resisting rioters.18

So as of January 1689, when the newly elected Convention—the legislative body—assembled in London to compose a Declaration of preconditions to accepting William and Mary as King James’ successors, English law relating to personal possession of arms was internally contradictory and confused.19 The law both prohibited and required the keeping of weapons. The king’s recent policies had added to the confusion. Land-owning Convention participants resented being replaced as militia leaders in their counties by James’ Roman Catholic supporters.20 This resulted in the grievance inserted at the beginning of the Declaration of Rights accusing James of "causing severall good Subjects, being Protestants, to be disarmed, at the same time when Papists were both Armed and Imployed, contrary to Law."21

The objection to disarmament had both collective and personal implications. In its original version as approved by the House of Commons, the clause declared simply that Protestant subjects could keep arms "for their common Defence," i.e., for militia service. The House of Lords both expanded and narrowed the assurance by striking the word "common" and adding "suitable to their Conditions and as allowed by law."22 Those revisions were preserved in the final version of the Declaration of Rights that William and Mary assented to, as well as in the later English Bill of Rights, which amounted to a ratification of the Declaration by a subsequent Parliament.

Scalia’s Heller decision insists that the arms clause in the Declaration of Rights "was clearly an individual right, having nothing whatever to do with service in a militia."23 As just shown, the historical reality is different, and considerably more complex.

Modern Times

This brings us to the recent federal court of appeals decisions that attempt to apply Heller to new attempts by gun enthusiasts to invalidate state gun control laws on constitutional grounds. In Kachalsky v. County of Westchester, the Second Circuit addressed a challenge to Section 400.00(2)(f) of the New York Penal Law, which requires a showing of a special need to obtain a license to carry a concealed handgun.24 The plaintiffs attacked the provision under the Second Amendment, as interpreted in Heller. But the Second Circuit concluded that Heller supplied "no categorical answer to this case," because it had concerned firearms kept in one’s home, while the New York statute relates solely to firearms carried in a public place.25 Moreover, while the Supreme Court’s 2008 McDonald v. City of Chicago decision had applied the Second Amendment to the states, it had "reaffirmed Heller’s assurances that Second Amendment rights are far from absolute and that many long-standing handgun regulations are ‘presumptively lawful.’"26

To determine whether the Second Amendment right extends to public possession of firearms, the court first looked at history. The resulting picture turned out to be confusing and ambiguous. As explained by Judge Richard Wesley, writing for a unanimous panel:

History and tradition do not speak with one voice here. What history demonstrates is that states often disagreed as to the scope of the right to bear arms, whether the right was embodied in a state Constitution or the Second Amendment.27

The court’s historical survey did, however, disclose a long tradition of state regulation, indicating that "state regulation of the use of firearms in public was ‘enshrined with[in] the scope’ of the Second Amendment when it was adopted."28 This meant that "substantial deference" to legislative judgments was called for. While the Second Amendment may protect personal possession of firearms within the home, it does not bar reasonable regulation of weapons in public places.

Two weeks later, the Seventh Circuit reached a different view of an Illinois law that prohibits, with certain exceptions, personal possession of immediately accessible firearms outside the home.29 In a 2-1 decision authored by Posner, the panel rejected the statute as unconstitutional. Moore v. Madigan, 2012 WL 6156062 (Dec. 11, 2012). The majority chastised the state for "ask[ing] us to repudiate the [Supreme] Court’s historical analysis. That we can’t do."30

The majority in Moore provides its own historical analysis, describing a long tradition of gun-keeping on the frontier in early America, which it distinguishes from the situation in England, where "there was no wilderness and there were no [hostilities with Indians] and the right to hunt was largely limited to landowners, who were few." Based upon this separate history, and in the absence of a "pragmatic" basis for the law, the court concludes that the Second Amendment limits gun controls in public places, not just in the home.31

Posner distinguishes the invalidated Illinois statute from the New York law upheld in Kachalsky on the ground that the former imposes a blanket ban on public possession of ready-to-use firearms while New York has a licensing process. But he objects to Kachalsky’s conclusion that "the Second Amendment should have much greater scope inside the home than outside." He also mentions his "disagreement, unnecessary to bore the reader with, with some of the historical analysis in the Kachalsky opinion."32 Having opined on the history, he ends by declaring, strangely, that the court is "disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home."33

Conclusion

In his 2005 Cardozo Lecture at the New York City Bar, Lee Bollinger, president of Columbia University and a student of constitutional law, praised those who had "the mental courage to take in, to explore, the full complexity of [a] subject," which he described as a core value of academic freedom.34 History, properly pursued, requires that kind of courage—the ability to "set aside one’s preexisting beliefs, to hold simultaneously in one’s mind multiple angles of seeing things." That is why one must be careful in harnessing history as an instrument of persuasion.

While historical analysis has its place in the law, history is too subtle a discipline to control the disposition of the most pressing public issues presented for legal resolution today. The Second Circuit recognized this in its Kachalsky decision. It stands as a model for courts that consider Second Amendment issues in the future.

Richard G. Menaker, a partner and commercial litigator at Menaker & Herrmann, wrote on the English law background to the Second Amendment for his doctoral dissertation at Oxford University and has organized programs and written on historical topics for the New York City Bar and The Gilder Lehrman Institute of American History.

Endnotes:

1. A grant from the American Philosophical Society permitted research used in this article.

2. 554 U.S. 570 (2008). The court more recently has held the Second Amendment applicable to the states. McDonald v. City of Chicago, —U.S.—, 130 S. Ct. 3020 (2010).

3. 554 U.S. 626-27 n .26, 636.

4. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012); Jackson v. City of San Francisco, —F.Supp.2d— (N.D. Cal. Docket No. C 09-2143 RS, Nov. 27, 2012).

5. Moore v. Madigan, —F.3d—, 2012 WL 6156062 (7th Cir. Docket Nos. 12-1269, 12-1788, Dec. 11, 2012).

6. 554 U.S. 570 (2008).

7. A. Scalia, Forward to S. Calabresi (ed.), Originalism: A Quarter-Century of Debate at 43 (2007).

8. U.S. Const., Amend. II.

9. United States v. Miller, 307 U.S. 816 (1939), addressing 26 U.S.C. §5811 (1934).

10. 354 U.S. at 628, describing "the inherent right of self-defense" as "central to the Second Amendment right."

11. 554 U.S. at 592 (emphasis in original).

12. Enacted into law by Parliament as a clause in the English Bill of Rights. 1 W.&M., sess. 2, c. 2, spelling and punctuation as in 2 Eng. Stat. at Large 1554-55 (1706). The Declaration of Rights was approved by the Convention that convened beginning Jan. 22, 1689. The Convention became a valid parliament as of Feb. 12, 1689, when William and Mary acceded to the throne, and it thereafter ratified the Declaration of Rights. See Note 19 infra.

13. 554 U.S. at 664.

14. J. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution at xiii (1996).

15. See, e.g., R. Menaker, A History of England’s Arms Control Laws to 1870, Dissertation, University of Oxford (1972).

16. 2 Cnut, c. 80 (c. 1027), in 1 F. Liebermaan (ed.), Gesetze der Angelsachsen 366 (1898); 2 Edw. III, c. 3 (1328); 25 Hen. VIII, c. 17 (1534); 33 Hen. VIII, c. 6 (1542); 2 Acts & Ords. Interregnum 124, 196, 399, 1293, 1297, 1311, 1453 (1649-60).

17. 14 Car. II, st. 1, c. 6 (1662). The quoted language is a paraphrase of the act that appears in 2 R. Burn, The Justice of the Peace and Parish Officer 383 (1756). For the Game Act, see 22 & 23 Car. II, c. 25 (1671). For disarmed population, see J. Western, The English Militia in the Eighteenth Century 71 (1965). In view of this background, the assertion in J. Malcolm, To Keep and Bear Arms, 78, 123 (1996) (relied on in Heller), that English law incorporated a "tradition that everyone was entitled to firearms for personal defence" is polemic, not history.

18. See generally G. Scott Thompson, Lords Lieutenants in the Sixteenth Century (1923); 13 Edw. I, c. 1. (1285), repealed in 1624, 21 Jac. I, c. 28, although posse duty continued into the 18th century. 4 W. Blackstone, Commentaries 122 (1765).

19. The initial legislative body is known simply as the "Convention" not as a parliament because it was elected without a monarch on the throne. See generally T. Harris, Revolution: The Great Crisis of the British Monarchy, 1685-1720 (2007) 311-54. Certain of its actions, including passage of the Declaration of Rights, were ratified when it became a valid parliament after the accession of William and Mary later in 1689. The ratified Declaration is known as the English Bill of Rights.

20. T. Harris, Revolution 230-31.

21. 10 J. House of Commons 25 (1688/89) (official record of English parliament).

22. J. House of Commons, Note 30 supra, at 25.

23. 554 U.S. at 593.

24. 701 F.3d at 83-84.

25. 701 F.3d at 88.

26. 701 F.3d at 89, citing McDonald v. City of Chicago, note 1 supra, 130 S. Ct. at 3047.

27. 701 F.3d at 91.

28. 701 F.3d at 96, quoting Heller, 554 U.S. at 634.

29. 720 ILCS 5/24-1 (a)(4), et seq.

30. 2012 WL 6156062, at *2.

31. 2012 WL 6156062 at *2-3.

32. 2012 WL 6156062 at 8. Posner’s distinction in this part of the decision between having sex in the privacy of one’s home versus "having sex on the sidewalk in front of one’s home" demonstrates his abhorrence of leaving his readers bored.

33. 2012 WL 6156062 at *9. Judge Stephen E. Williams, in his dissent, cites Kachalsky as soundly reasoned.

34. L. Bollinger, "Academic Freedom and the Scholarly Temperament," 60 Record of the New York City Bar 326, 336 (March 23, 2005).