History

Gunpowder, Plague, and Tradition

In 1720, writer and self-designated medical expert Joseph Browne published his A Practical Treatise of the Plague, in which he extolled the benefits of the “firing of Guns, especially Cannon” to “purify” an atmosphere laden with pestilence.  In recommending this approach, Browne had significant company.  It appears that igniting gunpowder had been the folk medicine of soldiers, sailors, and city-dwellers for decades, if not centuries.  Stephen Bradwell, a seventeenth century English physician, in addition to dispensing sound public health advice like keeping the streets clean, and avoiding throngs, recommended launching fireworks and firing guns in the public streets so that the gunpowder would “dry” the air.  Daniel Defoe, in his Journal of the Plague Year (1722) also writes of the common practice of sanitizing dwellings by burning gunpowder. (Defoe includes the story of one poor man who used so much that he destroyed his house.)

For the Founding Fathers (for whom the germ theory of disease was by no means universally accepted), the idea of shooting cannon and firing guns to cleanse the air of “miasma” may have seemed reasonable – no matter how risible it is today.  The technique’s widespread acceptance as good practice in the 1700s may not be a problem for medicine, but it does present a problem for law.

Scholarship Highlight: Cottrol & Diamond on Public Safety and the Second Amendment

Robert Cottrol and Ray Diamond have posted on SSRN a new piece on Public Safety and the Right to Bear Arms. In the piece, Cottrol and Diamond provide a detailed and thorough examination of the debates and historical understanding that influenced codification of the Second Amendment and its interpretation in the ensuing years, decades, and centuries.

Guns and Lattes: Lethal Analogies and the Future of the Second Amendment

In New York State Rifle & Pistol Association Inc. v. City of New York, New York, the first gun case to reach the high court in almost a decade, gun rights advocates pushed their conception of the scope of the right in a novel direction.  The city regulation being challenged in the case restricted New York City residents who had obtained a premises license from traveling with their arms in public apart from a few well-defined exceptions. The challenged regulation did allow permit holders to take their weapons to firing ranges in the city but prohibited them from taking guns to a country house or firing range outside of the city.   Much of the oral argument focused on the fact that the original regulation at the heart of the case had already been repealed by the city and preempted by new state regulations that effectively barred the city from re-enacting the regulation. In the technical language of the law the case had been mooted.  One legal commentator even compared the case to the famous Monty Python sketch in which a dead parrot is palmed off as merely resting.  The irate customer eventually declares: “This is an ex-parrot.” Several justices, frustrated with the arguments presented by former solicitor general Paul Clement, stopped short of mimicking Monty Python’s John Cleese, but the underlying point was the same. There is no live issue in this case for the Supreme Court to adjudicate.  Most court watchers feel that because it no longer represents a live controversy, a requirement hard wired into the Supreme Court’s Article III constitutional power to hear cases, it will be mooted.

More on Text, History, and Tradition and NYSRPA

Much of the oral argument in NYSRPA v. New York City dealt with mootness: whether there was even a case or controversy before the court, as required by Article III of the United States Constitution.   But someday, whether in NYSRPA or some other case, the Court will have to address the question of which method to use to analyze the Second Amendment.  The two main contenders are the two-part framework, adopted by most of the lower courts; and text, history, and tradition, endorsed by a minority of judges, including now-Justice Brett Kavanaugh.

The “Text, History, and Tradition” Alternative

I’ve written previously about the surprising agreement among courts of appeals interpreting and applying the Second Amendment. They all agree, for instance, that the standard two-part framework is the best way to analyze Second Amendment challenges. Under that framework, the first question is whether the challenged law burdens conduct protected by the Constitution; if it does, the second question is whether the law passes some form of heightened scrutiny. But there’s an alternative test that has been strongly urged by gun-rights advocates and some dissenting judges. That test looks solely to “text, history, and tradition” to assess compliance with the Second Amendment. This debate peaked through the mootness fog during this week’s NYSRPA arguments.

The 90th Anniversary of NRA’s First Guiding Legislative Policies and the Implications for NYSRPA v. City of New York

Ninety years ago today, in the December edition of American Rifleman, the National Rifle Association (NRA) published the editorial “Merry Christmas—And Gun Laws.” The editorial’s anniversary is noteworthy for two reasons.  First, its publication marked the first time that the NRA provided guidance as to the types of firearms legislation the organization would and would not endorse.  Second, the editorial highlights a key issue of dispute between the parties in this week’s Supreme Court case New York State Rifle & Pistol Association v. City of New York.

One Gun Policy Idea We Can Agree On: Magazine Regulation

Gun policy change in America seems to have come to a fork in the road: on the one hand, the forces favoring stronger gun laws have become more numerous, more vocal, and arguably more successful. On the other hand, the infusion of new, very conservative judicial appointments coming from the Trump administration who seem to embrace unadorned fealty to a broad reading of the Second Amendment (including two new conservative Supreme Court justices) suggests that the courts are poised to view gun laws with greater skepticism.

Scholarship Highlight: Lund on Second Amendment Methodology

Nelson Lund has posted a new paper to SSRN, History and Tradition in Second Amendment Jurisprudence, forthcoming in the University of Florida Journal of Law & Public Policy. Lund’s paper is fascinating and provocative. He argues that the approach advocated by then-Judge Kavanaugh—that focuses on text, history, and tradition in lieu of traditional methods of means-end scrutiny—is misguided. Justice Kavanaugh, Lund contends “misinterpreted Heller” and thus adopted an approach “he mistakenly imputed to Heller.”

Retrospective on Fall Symposium: Gun Rights and Regulation Outside the Home

Last Friday, the Center hosted its fall symposium on Gun Rights and Regulation Outside the Home. The discussions generated through the panel presentations and Q&A portion of the event were engaging and thought-provoking. We intentionally convened scholars from a broad variety of disciplines and viewpoints. Judging by the presentations, there’s no doubt that the spring issue of Law & Contemporary Problems, which will be publishing the articles that come out of the symposium, is going to be well worth the read. The event was recorded and the panel discussions can be viewed at the links below.

The Untold, Somewhat Embarrassing Story Behind the NRA’s Laudatory Messages from President’s Roosevelt, Truman, and Eisenhower

To say the history of gun rights is full of hyperboles, misnomers, and myths would be an understatement.  Time and time again, when historians examine the history of gun rights, it turns out that what is long claimed to be settled history is more nominal than real.  There is an abundance of examples of this, several of which are outlined in my book Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry.

My recent research trip at the Dwight D. Eisenhower Presidential Library shed much light on another historical hyperbole—that Presidents Franklin D. Roosevelt, Harry S. Truman, and Eisenhower each, on their own volition, sent the National Rifle Association (NRA) laudatory messages of support.