Judging the Ninth Circuit’s Use of History in Young v. Hawaii

Since the Ninth Circuit Court of Appeals issued its en banc decision in the much-anticipated Second Amendment outside the home case Young v. Hawaii, there has been a parade of critical commentary from gun rights circles. Gun Owners of America Senior Vice President Erich Pratt described the decision as both embodying a hypocritical “‘guns for me, but not for thee’ double-standard” and ignoring the plain text of the Second Amendment—that is the right to “bear arms…shall not be infringed.” Similarly, Firearms Policy Center Director of Constitutional Studies Joseph Greenlee criticized the Ninth Circuit for “effectively eliminat[ing] the word ‘bear’ from the Constitution” and undermining “half a millennium of Anglo American legal history….” Meanwhile, gun rights scholars David B. Kopel and George Moscary have taken to criticizing the Ninth Circuit for allegedly committing several textual and historical errors of omission.

While I agree that the Ninth Circuit engaged in a few historical missteps or omissions, the majority opinion’s use of historical evidence, sources, and reasoning—and doing so in a way that was jurisprudentially transparent—makes it thus far the gold standard in utilizing history-in-law to adjudicate a Second Amendment question. What I mean by history-in-law is the study of how the law has evolved in a particular area, what events and factors cause the law to evolve, and how—if at all—this history is important when adjudicating constitutional questions. History-in-law should not be confused with originalism. The latter is primarily a textually based inquiry into the past, which is often ignorant of perils of historical inference. Meanwhile, the former—history-in-law—requires being honest about what the historical record does and does not clarify. Additionally, under history-in-law, the practice of historical inference or historical conjecture is strongly discouraged.

The use of historical inference or historical conjecture has been a staple in Second Amendment scholarship since the mid-1970s. Since that time, gun rights advocates have repeatedly claimed that the 1328 Statute of Northampton prohibition on carrying dangerous weapons in public places was almost never enforced and when it was it only applied in those instances when someone carried the weapons in a terrifying manner. Both historical claims have turned out to be patently false, for both were principally built upon 1) an inability to conduct intensive historical research; 2) the parsing of historical texts and subsequently explaining away their meaning; and 3) a failure to adequately test their chief historical claim—that the Statute of Northampton was only violated when individuals carried weapons in a terrifying manner.

Thankfully, for the sake of history, the Young majority cast aside these false historical claims and did so with intellectual humility. Throughout its discussion on the Statute of Northampton, the Young majority made a valiant effort to fully weigh and consider the competing historical claims of the appellees, appellants, and their accompanying amici. And in those instances where the Young majority felt it was unqualified to decide between the litigants’ competing and conflicting historical claims, the Young majority resorted to relying on those broader, undisputed facets of the historical record. I have referred to this is jurisprudential approach as the historical consensus approach to history-in-law. The Young majority particularly resorted to relying on historical consensus in its analysis of  Sir John Knight’s Case and I applaud them for their approach. For by relying on the broader, undisputed facets of the historical record, the Young majority was able to sidestep the potential long-term constitutional consequences of having to choose between competing and conflicting historical accounts, especially how competing and conflicting accounts often create poor constitutional constructs and facilitate historical mythmaking.

Some in gun rights circles have taken issue with the Young majority’s resort to consensus history. The way they see it, getting Sir John Knight’s Case ‘right’ is critical to properly adjudicating the Second Amendment outside the home. This is because, according to gun rights scholarship dating back to the mid-1970s, Sir John Knight’s Case was unequivocally understood by the Founding Fathers to be the leading case on the Statute of Northampton—and it was a case that from then on jurisprudentially decided that said statute applied only to carriers who caused a breach of the peace that terrorized the public.

There are several problems this longstanding gun rights centric take on Sir John Knight’s Case, and I strongly recommend Tim Harris’s piece within A Right to Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment. Still, for argument’s sake, even assuming the longstanding gun rights centric take of Sir John Knight’s Case is indeed historically accurate (and that is quite a large assumption), there is not a shred of historical evidence to suggest that the Founding Fathers understood it to be the leading case on the Statute of Northampton. In fact, the first ever citation to Sir John Knight’s Case in any American case, legal commentary, newspaper, or personal correspondence does not appear until 1843. Stop and think about that for a moment. How can anyone claim the Founding Fathers understood a case to be authoritative if it was never mentioned or appeared in American discourse from the time it was decided in 1686 to 1843? The answer—at least to historians—is the claim is a complete fabrication. And fabricated history is quite simply not history at all. It is fiction.

And this is not the only problem with following the longstanding gun right centric take on interpreting the Statute of Northampton post-Sir John Knight’s Case. There remains an abundance of methodological problems that persist to this day despite historians correcting them. Perhaps the most notable is how both gun rights scholars and advocates often omit those pieces of historical evidence that show the Statute of Northampton prohibited both bringing force affray and the act of carrying dangerous weapons in public. As prominent sixteenth century English legal writer William Lambarde wrote in his highly influential 1582 treatise Eirenarcha:

Yet may an affray be without worde or blow given as if a man shall sh[o]w himself furnished with armour or weapon, which is not usually worne and borne, it will strike a feare to others that be not armed as he is: and therefore both the Statute of Northampton . . . made against the wearing of Armour and weapon and the Writte thereupon grounded, doe speake of it, by the words, effrey del pays, an, in terrorem populi.

Lambarde also wrote about the Statute of Northampton in the treatise The Duties of Constables, in which he made sure to reference a recent proclamation made by Queen Elizabeth I on the matter:

[I]f any person whatsoever (except the Queenes servants and ministers in her presence, or in executing her precepts, or other offices, or such as shall assist them: and except it be upon Hue and Crie made to keep the peace, and that in places where acts against the Peace do happen) shall be so bold, as to go, or ride armed, by night, or by day, in Faires, Markets, or any other places: then any Constable, or any other of the saide Officers, may take such Armour from him, for the Queenes use, & may also commit him to the Gaole. And therefore, it shall be good in this behalf, for the Officers to stay and arrest all such persons as they shall find to carry Dags or Pistols, or to be appareled with privie coates, or doublets: as by the proclamation [of Queen Elizabeth I]…

Lambarde’s restatements are important for understanding the scope of the Statute of Northampton in the centuries that followed. For it was Lambarde’s treatises that other prominent legal commentators understood, restated, and paraphrased the scope and meaning of the Statute of Northampton. These prominent legal commentators include Abraham Fraunce, Michael Dalton, Edward Coke, and William Hawkins to name a few.

As irony would have it, gun rights scholars and advocates are not alone in omitting Lambarde’s writings on the Statute of Northampton. So too did the Young majority. Yet despite this omission, the Young majority did pull from other, later-in-time legal commentators—some who were influenced by Lambarde’s writings—to come to the right conclusion that English treatises by and large show that the Statute of Northampton prohibited the act of carrying dangerous weapons in public places, not some particularized intent to terrify as gun rights scholars have falsely claimed for decades.

Criticizing how the Young majority restated the Statute of Northampton is of course only one historically based criticism from within gun rights circles. There are indeed several others and each stem from a desire to elevate one-sided conflict history over consensus history. In other words, the historically based criticisms within gun rights circle seek to minimize—and hopefully mute—those facets of the historical record that show a wide array of regulation pertaining to public carry, whether openly or concealed.  At the same time, the same criticisms seek to elevate those facets of the historical record that seemingly support a broad right to carry firearms in public places.

The problem with the Ninth Circuit, or any court for that matter, accepting one-sided conflict history over consensus history is essentially two-fold. First, such an approach to constitutional adjudication would send the wrong message that historical subjectivity and inferences can trump historical objectivity and facts. While there is certainly no requirement that litigants in constitutional cases be historically objective and honest, the judges overseeing the cases—at least in my humble opinion—should make a valiant attempt to get history right, or at the very minimum minimize historical errors. Second, although the legal profession, to quote Judge Richard Posner, is the “most backward looking” of the professions, the courts should refrain from declaring what does and does not qualify as history. The Young dissent appears to have ignored these problems, all in the name of precedent requiring it. Fortunately, for the sake of history, the Young majority disagreed, noting:

We acknowledged from the very beginning that the historical record was mixed and that we were going to have to work through it—all of it—to discern the long-term trends. The dissent has picked its friends and come to a fore-ordained conclusion that its friends have spoken with a “single American voice”…We do not believe that Heller has decided the issue presented to us in this case, nor do we believe that Heller has foreclosed our examination of the historical record. But we, and the dissent, should be clear: If Heller has answered these questions then there is no reason to review the historical record. In the end the dissent’s view is not that our understanding of the history is wrong, but that history is now beside the point because Heller has reached a different conclusion. But that is an argument based on Heller, not an argument based on the historical evidence, and we ought not to pretend that selective citation of historical sources is itself good history.

Historical Hallelujah.