//  7/31/17  //  Commentary

By Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University

The scope of the right to keep and bear arms outside of the home after District of Columbia v. Heller remains one of the most contested issues in American law. It is thus easy to see why gun rights champions have applauded Wrenn v. District of Columbia, a ruling thatstruck down the District of Columbia’s may-issue gun carrying scheme. Under DC’s law and others in places like California, New York, and Maryland, an individual must demonstrate a “good” or “proper” reason for being publicly armed in order to obtain a carry permit.  

Wrenn cuts against the growing consensus among courts that limiting the right to travel armed to individuals who have a good reason is not only consistent with Heller, but continues the dominant tradition in Anglo-American law for the last seven hundred years. To get around seven hundred years of history is no easy matter, but the decision in Wrenn does so by a highly selective culling of historical evidence and a shocking ignorance of the most important facts about Anglo-American criminal law and its history. 

Recent constitutional scholarship has demonstrated that the permissive vision of a broad right to carry emerged in the antebellum South, frequently in decisions rendered by pro-slavery judges. Given this fact it is not surprising that Wrenn’s justification for a right to carry cites these southern cases to support its gun rights conception of the Second Amendment. The only non-southern case cited, Thompkins v. Johnson, deals with a slave owner trying to recover a runaway slave in Pennsylvania. In that case the court concluded that the slave owner had a right to both arm himself and travel armed so that he could recapture his slave. In its opinion, the court reminded Americans: “the law of the land recognizes the right of one man to hold another in bondage, and that right must be protected.”

If the Wrenn court seriously believes that this sordid part of the American legal tradition ought to be made the lodestar of modern Second Amendment jurisprudence, then the court needs more than a lesson in history, it needs to take a class in basic ethics and morality.

The court also erroneously interprets the common law tradition and it ignores recent evidence about the statutory restrictions on traveling armed that were enacted by legislatures outside of the slave south. The court adopts a gun rights fantasy in place of history.According to Wrenn, “under surety laws, put simply, everyone started out with robust carrying rights. Those reasonably accused were then burdened.”

This view is the opposite of the historical reality. The dominant tradition outside of the South restricted the right to travel armed. This right was generally limited to a small list of context-dependent exemptions. 

To see the falsity of Wrenn’s gun rights historical fantasy one need only examine the standard legal texts of the Anglo-American legal tradition and read them with some degree of historical sophistication, i.e. without presentist assumptions. Bans on traveling armed in populated areas were categorical violations of the King’s Peace. Consider the view of Michael Dalton, one of the most influential legal authors in the Anglo-American world, who wrote that: “All such as shall go or ride armed (offensively) in Fairs, Markets, or elsewhere; or shall wear or carry any guns, dags or pistols“ violated the King’s Peace. “Any Constable, seeing this, may arrest them, and may carry them before the Justice of the Peace, and the Justice may bind them to the peace.” 

Wrenn turns this historical reality upside down, conjuring up a right where none existed.  Under English law there were a few well defined exceptions to the ban on traveling armed, not a general right to do so. This view was echoed by popular legal guides published in the colonies both before and after the American Revolution. To be sure, Americans were better armed than their English brethren and the number of contextual exceptions to the general ban on armed travel would have been greater in the New World because circumstances were different, but this fact does not change the indisputable historical reality: there was no general right of armed travel in the Anglo-American world until Southern antebellum judges created such a right.

The existence of two opposing traditions regarding the scope of the right to carry arms was uncontroversial until fairly recently when gun rights activists, both inside and outside of the legal academy, created a revisionist history and used it to advance their legal agenda. A good illustration of this may be found in conclusions drawn by the editors of The American and English Encyclopedia of Law, a massive and highly influential popular legal reference work published at the end of the nineteenth century. The editors devoted an entire section to the scope of armed travel in public under American law. They acknowledged that by the dawn of the twentieth century there were two opposing legal traditions on public carry in America. In their view it was clear that “[t]he statutes of some of the States have made it an offence to carry weapons concealed about the body, while others prohibit the simple carrying of weapons, whether they are concealed or not. Such statutes have been held not to conflict with the constitutional right of the people of the United States to keep and bear arms.”

The notion that limits on public carry are incompatible with the Second Amendment is a modern invention, cooked up by gun rights advocates and libertarians. This was not the view of the Founders and it was certainly not the dominant view of Americans by the end of Reconstruction.

The permissive Southern view that Wrenn takes as normative was always a minority tradition in America, at least until recently.  Outside of the South, with a few exceptions, Anglo-American law favored a narrowly tailored right to carry firearms that was limited to a range of long standing exceptions to the general prohibition on traveling armed in public. 

Heller made history central to the resolution of future gun litigation. If courts are to take that injunction seriously they will need to do a much better job than the Wrenn Court did in its superficial, error-riddled decision. Courts need to face up to the fact that the expansive vision of public carry championed by today’s gun rights advocates was a product of the slave south’s unique gun culture.

To be sure, the same radical views eventually were adopted by radical abolitionists, including John Brown. The end result of this historical convergence was Bleeding Kansas, an unprecedented period of violence and civil unrest in American history. Instead of looking to Bleeding Kansas, courts ought to defer to the last seven hundred years of Anglo-American law. The dominant tradition over that course of time has been the limited view of public carry, not the expansive view.

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