N.Y. v. Bruen: The Second Amendment and More Bad History Takes

In light of the Supreme Court’s new ruling on gun regulation (New York State Rifle & Pistol Association Inc. v. Bruen) I thought that these articles might be of interest.

1.The first one is an interview with Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America, by the New Yorker magazine’s Isaac Chotiner (“The Historical Cherry-Picking at the Heart of the Supreme Court’s Gun-Rights Expansion: A century-old New York law requiring individuals to prove “proper cause” to carry a handgun has been struck down. Are other gun-safety measures in peril?”)

Here’s an excerpt:

In terms of the decision itself, what was notable about how the Court presented the history of the Second Amendment and guns?

Most notable is that the Court says it is going to look to history and tradition, but then ignores history and tradition. The Court says that only gun laws which have historical precedent are constitutionally permissible, and then the Court dismisses all of the historical precedents for heavy restrictions on concealed-carry laws as outliers. The Court says that it is going to look to history, but dismisses early English common law as too old. The Court says that it is going to look to history, but dismisses any laws that were adopted after the mid-eighteen-hundreds as too young. The Court says that it is looking to history, but also says that shall-issue permitting is constitutional, even though shall-issue permitting is a twentieth-century invention. So the Court says that it is doing history and tradition analysis, but conveniently ignores any history it doesn’t like.”

2. A post in Politico does a really great job debunking the Court’s Second Amendment originalist claims: “The Supreme Court’s Faux ‘Originalism’: The conservative Supreme Court’s favorite judicial philosophy requires a very, very firm grasp of history — one that none of the justices seem to possess.”

In the case of the Second Amendment, Congress sought to assuage the concerns of antifederalists who feared the rise of a large standing army that might stamp out Americans’ liberties, much as the British army had done in the 1760s and 1770s. The amendment provided that Congress could never deprive people the right to own firearms in the dispatch of their obligation to fulfill militia service. The right to own a gun for individual self-protection was a different — a matter of common law that, as Scribble Scrabble noted, could be expanded, modified or taken away by legislation.

The distinction between collective rights and obligations to bear arms, and individual rights to gun ownership, was widely understood. In Virginia, Thomas Jefferson attempted to include a specific individual right to bear arms in the state constitution, to complement the existing provision safeguarding militias. His effort failed. Similar efforts failed in other states.

One might argue that early state constitutions were distinct from the federal Constitution approved by convention in 1787. But these early state documents deeply informed the federal effort in Philadelphia. The discussion around their adoption lends an understanding of how Americans thought about rights in the late 18th century.

But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.”

You read that right. The author of the Second Amendment drafted statewide legislation that was effectively a forerunner to the New York state law that the Supreme Court just struck down. The bill, which was really aimed at regulating deer hunting, did not pass. But it clearly demonstrated that Madison viewed individual gun ownership as well within the state’s regulatory prerogative.

3. The next two were published in The New York Review of Books:

Ruling by Fear: The Supreme Court’s conservative justices paint a dark portrait of society, danger lurking in every shadow, to justify overturning a New York gun control law.” by Liza Batkin


“By enshrining a constitutional “right to carry a handgun for self-defense outside the home,” the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen all but guarantees more guns on streets already bristling with them. It ushers in a world that many people will not be happy to inhabit. But the conservative justices are already living in that world. A dark and cynical view of society runs through their opinions and the questions they asked at oral argument. Danger lurks behind every corner, threatening to lunge at our heels, and the best we can do is arm up. It’s a Wild West worldview in the guise of an originalist, text-bound decision.”

The Remaking of the Second Amendment: The Supreme Court’s expanding interpretation of the Second Amendment threatens longstanding democratic authority to enact gun safety measures.” by Duncan Hosie and Reva Siegel

Excerpt (reminder of recent “originalist” (not!) case establishing the Second Amendment as an individual right for the first time with emphasis on the 2008 part):

“That changed in 2008, when five Republican-appointed justices on the Supreme Court asserted that they had discovered the “original meaning” of the Second Amendment and used it to invalidate a law restricting handgun possession. The case, District of Columbia v. Heller, involved a challenge to a local law that barred most residents from owning handguns and required that firearms kept at home be unloaded and disassembled or bound by a trigger lock or similar device. The Court’s conservative majority held that the Constitution’s framers ratified the Second Amendment to protect an individual right to keep and bear arms for self-defense, especially in the home, where the need for defense of self, family, and property is “most acute.” This 5-4 decision changed the way most Americans read the Second Amendment. The Court brushed away the Amendment’s first clause—“a well regulated Militia, being necessary to the security of a free State”—as merely “prefatory” and instead emphasized “self-defense” as “the core lawful purpose” of the Second Amendment.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s