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Abstract
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In New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the Supreme Court adopted a text, history, and tradition modality to adjudicate Second Amendment claims.1 Lower courts have struggled to apply Bruen's framework and have grappled with the difficulty of evaluating historical sources, competing narratives about the Founding era, silences in the historical record, and the problem of analogizing Founding-era laws to modern statutes.2 This Article offers some much-needed historical context for understanding the interpretive issues posed by Bruen, and it offers some insights into the nature of the Founding era's views of gun rights and gun regulation. The key to unlocking the historical meaning of the Second Amendment's text is recovering the interpretive assumptions and methods that lawyers would have used to read the text in 1791 and applying those assumptions to the historical reality Americans faced in the early years of the Republic.3 In addition to canvassing the statutory history of gun regulation, it is vital to recover the way common law practices, including peace bonds, were used to preserve the peace.4 Moreover, one must acknowledge the silences in the historical record. These silences are in some cases artifacts of the nature of historical archives and document preservation, and in other instances are a consequence of a dearth of research in this field.5 Finally, some silences reflect the fact that early America was a pre-industrial and agrarian society and simply did not face many of the gun violence problems that plague modern America.6 Given these facts, it is not surprising that Founding-era legislatures addressed problems they confronted and did not legislate to remediate problems they could not have foreseen.7
Finally, Bruen's methodology requires judges to distinguish between the actual history necessary to understand early American constitutionalism and a series of myths about guns and regulation that were created by later generations to sell novels, movies, and guns themselves.8 Unfortunately, many of these myths continue to cloud legal discussions of American gun policy and Second Amendment jurisprudence.9
This Article situates legal conceptions of the right to keep and bear arms in the context of Founding-era views of rights. Understanding how the Founding era conceptualized rights more broadly is vital to understanding the centrality of the peace to American law. The generation that wrote the Second Amendment sought to protect liberty and preserve the peace. Although regulation and liberty are often set against one another in modern legal theory, the two concepts were viewed as inextricably linked in Founding-era constitutionalism. Some modern commentators have erroneously treated the Second Amendment's prohibition on infringement of the right to keep and bear arms as essentially synonymous with the First Amendment's bar on abridging the rights it protects. But the Founding generation did not view these two terms as synonymous. Understanding the original meaning of infringement is therefore essential to making sense of Bruen.
Context is key to making sense of Founding-era gun regulations. Although it seems hard for many in modern America to fathom, the Founders did not confront an analogous problem to modern gun violence. The Founding generation faced a different problem: too few of the right type of guns needed to arm the militia. Analogies drawn from regulations enacted to deal with these so-called mischiefs pose problems for efforts to evaluate modern laws enacted in a time when there are more guns than people, and where violence and suicide are major public health problems. Drawing analogies from the historical record requires some degree of sophistication. One point emerges clearly from the historical record. The Founders had few constitutional qualms about disarming groups deemed dangerous. Nor did the Founding generation have qualms about disarming non-law-abiding citizens. The disarmament of the Quakers, one of the most peaceful groups in early America, demonstrates that violence was not the exclusive criterion for disarming persons. Finally, modern efforts to analogize the First and Second Amendments rest on a profound misunderstanding of the way the Founding era approached the protection of rights, including the core freedoms protected by the First Amendment.10
Not all history has the same value in modern legal inquiries -- a point originalists have correctly emphasized. Still, it is nonetheless true that one must get this history right if one adopts an originalist approach to interpreting the Second Amendment.11 One must canvass the relevant primary sources, secondary literature, and early American jurisprudence to arrive at an understanding of the scope of permissible regulation consistent with the Second Amendment and its various state analogues. It is also vital to understand the limits of the historical record and the silences in it.
Language: en |