In the opening scene of the new film “The Last Duel”, set in 14th century France, a herald announces the rules of conduct for death at a tournament. He declared that no member of the public – regardless of their social background – was allowed to bring weapons to the event.
This view may seem far from 21st century America. But medieval arms laws – including a 1328 English statute prohibiting the public carrying of sharp weapons without royal permission – are now before the U.S. Supreme Court, New York State Rifle and Pistol Association v. Bruen, to duel legal opinion in a case. are in the centre.
The plaintiffs are challenging New York’s “reasonable cause” gun law, which strictly prohibits the public transportation of firearms. If they win, similar laws will be questioned in many other states. That means concealed licensing laws could be broadly liberalized for the millions of Americans currently living in those more restrictive jurisdictions.
Few know how big a role history has played in the fight for gun rights – the theme of the 2019 collection of essays, “The Right to Bear Arms? The Controversial Role of History in Contemporary Debate on the Second Amendment,” which I co-edited with Smithsonian Museum of American History curators Barton Hacker and Margaret Winning.
This book explores how courts in the United States have turned to history to see how guns should be treated—the decrees, laws, and interpretations of the past that are at the forefront of the case before the Supreme Court today.
Scalia points to the English Bill of Rights
The legal system of the United States developed from the English legal tradition. This relationship – often referred to by originalists – is crucial to understanding the arguments surrounding gun rights in America today.
Originality is a legal philosophy that attempts to interpret legal texts, including the constitution, based on what lawyers consider their original meaning.
Gun rights advocates won a significant victory in the District of Columbia v. Heller. In that 2008 decision, the Supreme Court ruled for the first time that the Second Amendment protects a person’s right to keep a firearm for personal self-defense in the home.
Justice Antonin Scalia, author of the 5–4 majority Heller opinion, claimed that the English state had a long tradition of giving freedom to bear arms related to the English Bill of Rights of 1689, which included a clause that reads Can Protestants have arms to defend themselves according to their own conditions and permitted by law.”
Scalia’s argument relies heavily on the work of historian Joyce Malcolm, author of “To Keep and Bear Arms: The Origins of an Anglo-American Right” and a Second Amendment scholar at the Antonin Scalia Law School at George Mason University. Lawyers supporting Malcolm and the expansion of gun rights argue that the clause formed the legal basis for personal self-defense to possess weapons in colonial America.
After prevailing in Heller, gun rights activists are calling for a liberalization of restrictions on carrying guns in public outside the home. In the New York case, some lawyers and other parties are now arguing that medieval statutes only prohibit public carry that “intimidates” the public, and that such statutes actually prevent “normal” public carry. were not implemented.
However, most scholars of English and American history strongly dispute the accuracy of this claim. In fact, since Heller’s decision, the history of firearms regulation in England and America has been called an “explosion of empirical research” by Fordham University law professor Saul Cornell.
Many of these findings appear in a brief presented in court in New York State Rifle and Pistol Association v. Bruen.
The law, signed by 17 professors of English history and American history – including me – demonstrates, through a review of brief historical evidence, that “neither English nor American history is a widespread practice of public carrying of firearms or other dangerous weapons.” Supports the Second Amendment. Common interest in self-defense.”
It sheds light on 700 years of trans-Atlantic arms regulations, from the English tradition of doing so through the American tradition of prohibiting public transportation.
The brief clarifies that limits on the public transport of dangerous weapons, including firearms, are centuries-old legal and cultural norms.
The royal proclamations of the early 13th century routinely banned the armed movement in public without special permission. In 1328, the Statute of Northampton prohibited the public carrying of swords and daggers, uncovered or concealed – this was before the invention of firearms – without explicit permission from the authorities.
As the legal scholar and historian Geoffrey Robertson, an expert on the English Bill of Rights, said: “There was never an absolute ‘right’ to carry a gun. As the Bill of Rights (1689) made clear, it was only was ‘permitted by law’.”
An American tradition of limiting public carry
The English tradition of extensive public carry restrictions continued in colonies across the Atlantic.
During periods of increased risk of attack, some colonies required certain individuals to carry guns to the church or to work in fields away from fortified or populated areas. However, this obligation was not understood as establishing the right to carry a firearm in public.
After the American Revolution, states continued to adopt rules that echoed the Statute of Northampton. Recent scholarship has revealed that firearms regulations from the mid to late 19th century varied greatly by jurisdiction and geography, but that 19 states had restrictions on public carrying of books.
After the Civil War, as firearm fatalities rapidly increased through technological advances, municipalities and states such as Texas also imposed widespread public transportation prohibitions.
By 1900, there was a legal consensus that states and territories generally had the right to limit public carry. While the American approach to the public carry ban was fluid – varying in time and jurisdiction based on social and political changes – many American colonies, states, territories, and municipalities have a consistent history and tradition of carrying dangerous weapons in public. broad restrictions, especially without special need for self-defense.
An Invented Tradition?
So how did a 1689 English Bill of Rights, which never gave an absolute right to carry guns, turn into an important justification for that right in America?
Patrick Charles, author of the 2019 book “Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry,” argues that pro-gun advocates use the historical record to justify the individual right to keep and carry weapons selectively interpreted. public.
Essentially, he invented a tradition.
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“Invented traditions”, a concept highlighted in the 1983 book “The Invention of Tradition”, edited by historians Eric Hobsbawm and Terence Ranger, are cultural practices that are believed to have emerged much earlier, but Really based on a lot. recent past. A classic example is the Scottish tartan kilt, which was once thought to be derived from an ancient garment of Scottish Highlanders but was actually invented by an Englishman in the 18th century.
The “individual right” to carry firearms in public appears to be another.