This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

Many legal scholars and most courts implementing Bruen’s framework have approached early American law as if the statutory record constitutes the sum total of the founding era’s legal traditions.  Given that presumption, silences in the statutes become evidence of the absence of regulation.  According to the decision itself, in certain instances “the lack of a distinctly similar historical regulation addressing [the same] problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”  In fact, there is a wealth of evidence of regulation of a wide range of issues in the records of local jurisdictions, particularly involving violence that threatened the public order.  This material, however, is difficult to use, locate, and interpret, and has only begun to be tapped by historians.  Bringing it into contemporary legal matters, moreover, is a challenge because the records take such a different form than the published legal materials that are widely available and conventionally cited today.

These jurisdictions were overseen by justices of the peace and other local officials, such as mayors and sheriffs, who served in that capacity.  All these officials followed common law procedures and principles laid out in manuals for justices of the peace.  While these manuals were updated in each state following the Revolution, they generally followed the same procedures and principles of earlier English manuals, which dated back centuries and had been widely followed in the colonies.  In fact, Bruen itself does engage with some of these sources, citing manuals on “the office and duties of a justice of the peace” when discussing surety laws.

The post-Revolutionary manuals were part of an effort to collect and define the laws of each state.  That effort included the legal manuals that guided legal practice in local jurisdictions, as well as collecting and organizing colonial statutes and publishing new statutes and appellate decisions.  In fact, some of the authors of justices’ manuals also played a key role in collecting and organizing their states’ statutes and appellate decisions.[1]  To them, common law practice in local jurisdictions was central to law and the legal system in their states.  The point was that broad areas of law—in fact, most issues relating to the public health, safety, and welfare—were defined by common law principles and left to local discretion.  To be sure, many state leaders took a dim view of the power of local jurisdictions and worked to bring local jurisdictions under state authority.  The success of those efforts is evidenced in the ever-increasing number of statutes, which dealt with an ever-wider range of issues.  But, in the founding era, the laws in force in any given state included a broad range of issues left to local jurisdictions, governed by common law.[2]  To look only to statutes and appellate decisions is to miss much of the legal tradition of the time. 

It is difficult for those who are used to working with published legal materials to imagine what local records are like.  These are loose records, housed in municipal, county, state, and private archives across the United States.  They are stored in boxes, sometimes organized by case, sometimes by the date of the particular record.  The records of a single case can be scattered over many years, filed in different folders or boxes.  Sometimes the records have just been dumped into bankers’ boxes without any organization at all.  In other instances, they have been kept in the form that they took at the time, folded in thirds or fourths, and tied in ribbons.  The paper then disintegrates when they are untied and unfolded.  Some archives restrict access for this reason.  The common characteristic is volume:  these records are voluminous, even though record-keeping at this level was uneven and many of the records that were kept have been discarded.  There are boxes upon boxes and reel upon microfilm reel of them.  

Accessing these materials is a challenge.  Few of these records have been scanned and made available digitally.  Once accessed, they require knowledge of the legal process to interpret.  These records consist of the various forms required in the prosecution of private (what we would now call civil) and public (what we would now call criminal) legal matters.  Public cases involved the full range of crimes, as they were defined at that time, as well as a more open-ended charge often referred to as breaches of the peace, threats, disorderly conduct, among other designations.  The forms in this area include complaints, warrants, summons, bonds, indictments, and occasionally witness statements.  Sometimes the forms were printed.  They were also copied by hand, using the suggested language from the justices’ manuals.  The records are, nonetheless, voluminous, which makes the term “silent” particularly inapt.  We have turned a deaf ear to them.

What remains, moreover, represents only a fraction of local legal practice, because justices did not keep records for many of the actions they took, and many of the records that were kept have been discarded or lost to time and disintegration.  Legal historians have only recently begun to explore these local records and are now piecing together the wealth of information these materials contain about the legal traditions of the nation at its founding.

These records not only form a key part of our legal tradition, but also speak directly to central issues of current concern.  But it is difficult to bring this material into contemporary legal matters because it does not take the same form as the legal evidence that is more commonly known and conventionally used today (enacted laws, regulations, or published judicial decisions).  These local records cannot be cited in the usual way—statute title, volume, publisher, and date, or case name, date, volume and page.  I have often put local legal records into the conventional citation form, well knowing that it misconstrues the nature of the evidence, but also knowing that I have no alternative because of existing citation conventions.  Even historical journals, where the editors regularly deal with manuscript records, do not conceive of legal records in that way.

Below are notes, taken by Mandy Cooper—my former research assistant and currently a lecturer in the History Department at the University of North Carolina at Greensboro—from several microfilm reels of loose records from Albemarle County, Virginia (the county that includes Charlottesville, the University of Virginia, and Monticello).  The goal was to sketch out the kinds of cases and their relative numbers, although we knew that an exact count would be impossible because the records of each case were likely scattered through the collection and would be difficult to put together.  Neither of us usually counts cases in this way, precisely because the manner of record keeping and organization then does not create a reliable basis for statistical analysis today.  In particular, the organization of the records makes it difficult to gather together all of the individual documents in each case.  As a result, the tabulation of cases contains some duplication and overcounting.  But the list gives a sense of the range of issues that were handled at the local level and the manner of addressing them. 

The lack of systematization in categorizing these offenses speaks to the flexibility and discretion given to local jurisdictions.  Officials handled threats to “the peace”—the good order of the community—as they arose.  They then put a label on it, without necessarily feeling the need for consistency in categorization.  For instance, Fear of Harm, Threats, Breach of the Peace, Domestic, Peace Warrant, Peace Bond, Domestic Restraining Order, and Peace Warrant/Recognizance, all referred to threats or violent acts of some kind to individuals, groups of people, or property.  The Domestic, Peace Warrant and Peace Bond, and Domestic Restraining Order “labels” involve domestic violence.  Those cases may seem surprising because it is commonly assumed that domestic violence was not prosecuted as a criminal matter until recently.  In matters involving peace bonds, offenders were required to find sureties to post a peace bond and, failing that, would be jailed.  If they misbehaved thereafter, their sureties would lose their bond and the offender would be jailed. In cases involving specific criminal charges, peace bonds were also required. 

There is also a link to the original documents from a Richmond, Virginia Hustings Court case that might seem surprising: one involving an enslaved man accused of sexually assaulting—“ravishing”—a young girl who was also enslaved.[3]  The enslaved man was acquitted.  The fact that local officials acted on the complaint with criminal proceedings is still revealing of the discretion allowed to local officials. 

As this example from the local records suggests, attempting to reconstruct a legal tradition just from statutes or reported cases is going to produce an incomplete and skewed picture.  The records from Albemarle County are representative of how local jurisdictions worked and the issues they handled, which included a far broader array of matters than those addressed by state legislatures and appellate courts.  At the same time, the specific configuration of cases reflects the concerns and problems of the people in that county.  Historians are mindful of the strengths and limits of their evidence when making broad and general pronouncements about past traditions.  To the extent that judges are relying on history, they should be cautious as well.   

Here are Professor Cooper’s notes on the Albemarle County records:

Commonwealth Causes, reel 237, 1798-1800, Court Records, Albemarle County, Local Government Records Collection, The Library of Virginia, Richmond, Virginia.

Retailing Liquor without a License: 83

Surveyor of the Road: 71

Keeping a Billiard Table: 1

Excessive & Unlawful Gaming: 1

Fear of Harm: 2

Fear of Harm or Burning Tobacco Houses: 1

Gaming: 5

Assault & Battery: 6

Bastard Child: 14

Unknown: 5

Building Fence Across Established Road: 4

Failing to Keep a Good & Sufficient Jail: 1

Failing to Attend Court as a Witness: 1

Stopping the Road: 4

Profane Swearing: 1

Profane Swearing on the Sabbath: 1

Forgery: 1

Failing to Survey an Entry According to Law: 1

Not Prosecuting Presentments: 1

Murder: 1

Rape & Assault: 1

Domestic, Peace Warrant: 1

Maiming: 1

Bond of Naratio (Letting prisoner escape?)

Peace Warrant/Recognizance: 3

Arson: 1

Theft: 10 (2 involved textiles. Others listed below)

• Unknown
• Hat (20 shillings value)
• Fraudulently ordering items at store
• 1 French crown
• 7 sides of leather
• 2 Spanish Dollars, 10 necklaces (valued at 10 shillings), 10 earbobs (valued at 10 shillings), 5 gold forks (valued at £5)
• Steer (stolen and killed)
• $44, 5 French Crowns, and more money

 

Commonwealth Causes, reel 238, 1801-1802, Court Records, Albemarle County, Local Government Records Collection, The Library of Virginia, Richmond, Virginia.

Gaming: 34

Failing to Prosecute Presentments: 1

Unknown: 11 (Many of these were witness summons for indictments not specified)

Surveyor of Road: 45

Not Keeping Ferry Running: 2

Retailing Liquor without a License: 58

Recognizance (Unknown Charge): 5

Fear of Harm: 3

Restraining Order/Peace Warrant: 3

Forgery: 2

Treating a Member of Freeholders with Drink: 7

Breaking the Peace: 1

Fraud: 1

Slander & Libel: 1

Obstructing a Public Road (with a fence): 1

Letting Slave Go Free: 2

Duel: 1

Threat: 1

Attempted Murder2

Assault: 1

Theft: 10

• Steer (valued at $12)
• Trunk (valued at $10) & £52
• “ “          “          – this may have been a duplicate
• 9 pieces of bacon (valued at $15)
• Account books (valued at $100) – these were from a still house, and charges included destroying 2 stills and 100 gallons of whiskey
• 7 sides of leather (valued at $4)
• Unknown
• Hog
• $35 in silver
• Bacon (valued at $3)

 

Commonwealth Causes, reel 238, 1801-1802, Court Records, Albemarle County, Local Government Records Collection, The Library of Virginia, Richmond, Virginia.

Retailing Liquor: 44

Assault: 3

Refusing to Assist Slave Patrol & Attempted Rescue of a Slave: 1

Assault & Affray: 1

Peace Recognizance: 11

Unknown: 4

Surveyor of Road: 74

Gaming: 55

Peace bond/Domestic Restraining Order: 1

Attempted Murder: 1

Drunkenness: 2

Not Keeping Bridge in Repair: 1

Summons to give security for good behavior: 1

Fear of Harm: 3

Stopping a Road: 1

Failing to Appear as Juryman: 3

Affray: 2

Breach of Peace: 2

Not Keeping Jail Clean: 1

Obstructing Navigation of a River: 1

Forgery: 1

Selling without a License: 1

Theft: 4 (3 involved textiles. Other one listed below)

• Pat of butter & 9 dozen candles (valued at $7.50)

 

[1] For example, see John Haywood, The Duty and Office of Justices of the Peace, Sheriffs, Coroners, Constables, &c. According to the Laws of the State of North Carolina (Raleigh, N. C., 1808), and John Faucheraud Grimké, The South Carolina Justice of the Peace (Philadelphia, 1788).

[2] For more detail, see Parts I and II of The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill:  University of North Carolina Press, 2009).

[3] Commonwealth v. Roger, Richmond City, Hustings Court, Suit Papers, Ended Causes, folder August 1816 A-H, box 27, Bar Code 1007275, The Library of Virginia, Richmond, Virginia.

[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.]

When reconstructing the legal order of the early republic, the inclination is to start where we are now and then move backward along a straight line.  Because statutes and appellate decisions at the state and federal level are now such an important part of our legal order, we look to similar kinds of laws in the past for our legal antecedents.  But that is to compare apples to oranges, because the institutional context in the post-Revolutionary period was so different than it is now.  In this period, law-making bodies at the state and federal level shared space with local jurisdictions, which exercised considerable discretion over a wide range of issues involving the public order, including the regulation of firearms. 

The devolution of authority to local jurisdictions was purposeful.  The U.S. Constitution placed most matters involving the public order with states, which governed them through their police powers.  States, in turn, left authority over many of these issues with local areas—counties, municipalities, and even more local jurisdictions, such as townships.  In so doing, states affirmed longstanding practice, dating back to the colonial era, that allowed local authority over issues that were considered, by their very nature, to be local.  The problems of cities were not those of rural areas.  Places near the coast were different than those situated inland.  The variety within states was endless, and people expected to address the issues facing their particular communities themselves.

Those issues involved anything and everything relating to the health, safety, and welfare of the public.  Included were:  the regulation of markets, including their location and days and hours of operation; the maintenance of basic infrastructure, such as roads and bridges; health measures, such as quarantines to stop the spread of disease and the oversight of businesses with known health hazards, such as butchering; and the provision of welfare for the orphaned, aged, and infirm.  But the power of local jurisdictions extended even further than this already incomplete list suggests because the maintenance of the public order involved an open-ended charge to tend to the “peace,” which covered anything that undermined the collective wellbeing of the community. 

While local jurisdictions issued ordinances and similar kinds of orders, they also addressed threats against the peace through legal actions in local courts.  When dealing with such issues, officials used general charges:  assault, riot, vagrancy, or simply disorderly conduct or disturbing the peace.  Even as the charges obscure the actual nature of the threats, they underscore the underlying point:  the specifics did not matter if the behavior threatened the peace. 

What constituted a threat?  There were the usual suspects:  drunks, gamblers, brawlers, prostitutes, malingerers, and thieves.  Many of the charges were directed at subordinate people—particularly the working poor, people of color, and the enslaved—for actions perceived as unruly.  But local officials spent much of their time handling interpersonal conflicts among otherwise law-abiding community members:  conflicts within families and among neighbors that had degenerated to violence or threats of violence.  Many of these conflicts involved men who failed in their communal obligations: who drank away their earnings, beat their wives or children, or harassed their neighbors. 

The peace of the community took precedence over individual rights.  It was not that rights did not matter.  Local officials upheld procedural rights.  But the rights that now take center stage in our legal order—those in the federal and state bills of rights, for instance—remained subordinate to matters involving the peace. Even property rights had limited power.  What people could do with their property depended on the implications for others and the public order more generally.  In this area of law, authority came with obligations.  When it was abused, local officials could and did intervene to uphold the community’s interests.

Offenses against the peace resulted in a significant loss of personal freedom.  While the penalties depended on the nature of the charge, those convicted of general offenses against the peace generally had to post a peace bond or, if lacking funds, find others willing to do it.  Bonds came with responsibility and risk:  those entering into these agreements lost their money if the offender violated the peace in any way again.  As such, bond holders acquired broad authority over the offender’s life.  In many states, offenders who could not provide a bond were sold off to the highest bidder and forced to work off their fines. 

Local officials assessed the threat level of specific peace-threatening behavior, based on what they knew of those involved.  But weapons were, by definition, threatening to the public order.  People with weapons were more dangerous than people without them.  Brandishing or even just displaying weapons for no obvious reason was a threat.  Bringing weapons to any kind of social interaction was a threat.  The presence of weapons at an incident raised the seriousness of the offense when violence or even just threatening behavior was involved.  Unknown people carrying weapons were most definitely threatening.  At this time, weapons were more likely to be knives and clubs, which were more available and more reliable than guns.  But the legal principles that regulated all threats to the public order could and did extend to guns, when they were present.  In the legal logic of the peace, the right of any individual to own, carry, and use guns could never take priority over the peace of the community.