(Bloomberg Opinion) -- Today the U.S. Supreme Court hears arguments in New York State Rifle and Pistol Association v. Bruen, in which the petitioners are challenging a New York state law that requires applicants for a concealed-carry permit to demonstrate “proper cause” for carrying a concealed handgun. (Generally, applicants must show they have a specific need for armed self-defense.) As in many gun-rights cases, history will play a prominent role. Justice Brett Kavanaugh, for example, has written that “text, history and tradition” are the factors for courts to weigh.
But U.S. history is every bit as contested as the present. I spoke to Patrick J. Charles, a historian and legal scholar, about the history of armed carry — and about the role of history in legal arguments and court decisions. Charles is author of “Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry” and is a senior historian for the U.S. Air Force currently on assignment as a congressional legislative fellow. (His opinions are not those of the U.S. Air Force or the Department of Defense.) An edited transcript of our telephone conversation and subsequent emails follows.
Francis Wilkinson: Other historians filed an amicus brief in this case in support of the respondents — that is, defending New York’s law. Your amicus brief is in support of neither party. Why did you file a separate brief instead of joining them?
Patrick J. Charles: As it currently stands, without definitive guidance from the Supreme Court as to how, if at all, history matters in defining the contours of the Second Amendment, it is improper for me to take sides as either a historian or a legal scholar. Most of the historical findings in the historians’ amicus brief are taken from my own research and writings on the Second Amendment. Moreover, I do agree with the historians’ brief that until recently there is little to no historical support for concluding that the Second Amendment protects broad carry rights. With that said, the Supreme Court could still use the history of armed carriage laws in a way that ends up striking down New York’s licensing regime. This would require the court to take a history in law approach where it picks and chooses its historical friends and discards the bulk of the historical record.
Wilkinson: We have trouble in this country agreeing on what’s right in front of our eyes. So it’s not surprising that we should disagree about practices and intentions from a couple hundred years ago. That was certainly the case with the 5-4 Heller decision in 2008, which established an individual right to possess firearms in the home. Both the majority opinion and the dissents were laden with historical references. But they employed conflicting historical accounts to buttress opposite conclusions. Won’t this week’s arguments produce a new round of competing histories — this time on the constitutionality of firearm possession outside the home?
Charles: It’s possible. But I think the law and history of armed carriage in this case is much more concrete than the law and history of individual gun rights in Heller. The evidence is pretty much overwhelming that armed carriage was restricted in public places from the late 13th century (in England) until the late 20th century, when gun rights advocates lobbied to replace “may issue” carry laws with “shall issue” carry laws, and most recently to replace “shall issue” carry laws with “constitutional carry” laws, which allow for virtually unrestricted concealed or open carry.
Wilkinson: Republican-led states have moved pretty much in unison to adopt “constitutional carry” — guns for everybody everywhere — laws. Can the history of firearm regulation compete against the political reality of the gun-rights movement and the Republican Party in 2021?
Charles: Historically, there’s just never been a point in time when people have been able to carry guns without some regulation. That doesn’t mean the Supreme Court can’t come out and say New York’s law is unconstitutional. We are at the zenith of gun rights in this country. I think there’s a living constitutional argument, albeit a narrow one, in favor of eliminating “may issue” type laws like New York’s — if the petitioners focus on the fact that so many states have moved away from these types of laws.
Wilkinson: What you’re describing is a paradox — that in order for the court to find a legitimate constitutional right to carry firearms, the majority has to subscribe to the doctrine of a living Constitution, that is, a Constitution that adapts to the changing culture, economy and politics of the nation. But neither the court’s conservative majority nor the gun movement subscribes to that. So if there is no sound historical basis for an unimpeded right to carry a firearm, the justices primed to rule for gun rights are still going to have to find one, aren’t they?
Charles: The point you raise is largely correct. Most, but not all, gun-rights proponents argue that the Second Amendment was drafted, ratified and generally understood to provide for broad carry rights in public and private. Only a small minority of gun-rights proponents support a living Constitution approach, largely because a living Constitution approach would end up conceding the constitutionality of most gun controls. Gun-rights proponents generally do not want that. They want to reset all Second Amendment jurisprudence to the late 18th century. But we know from the historical record that any broad right to carry interpretation of the Second Amendment is unfounded.
This is not to say that the founding generation did not carry arms while hunting, traveling, on their property or at times for personal self-defense. They most assuredly did. But to say that the founding generation viewed the Second Amendment as protecting a virtually unfettered right to go anywhere and everywhere armed is utter nonsense.
If any of the justices is intent on finding a broad right to carry arms in public within the historical record, they are most likely to turn to the history of the antebellum South, which generally afforded a qualified right to open-carry arms in public. But even in the antebellum South, concealed carry was generally viewed to be outside the Second Amendment’s scope. The only other history the justices could turn to is that of the modern era — post-1985, when gun-rights advocates began lobbying for “shall issue” concealed carry laws. But adopting this history, as you suggest, would mean the justices are embracing a living Constitution approach, which is something most of the conservative justices do not doctrinally embrace.
It’s complex and convoluted and ironic all at the same time. That’s what fascinates me so much.
Wilkinson: What brought you to this scholarship?
Charles: Heller. When it was decided at the District of Columbia Circuit Court of Appeals, before being argued in the Supreme Court, I was a law student. I was blown away by the court’s historical analysis and how it informed the court’s legal rationale, particularly the court’s analysis of the phrases “bear arms” and “well-regulated militia.” At the time, I felt I was either woefully uninformed about the history of the American Revolution or the opinion was clearly wrong. So it piqued my curiosity and I began doing archival research on the legal and popular meaning of the words in the Second Amendment. As it turns out, the court was wrong. Virtually every one of the Second Amendment’s words and phrases can be found in the militia laws of the time. This to me confirmed that a militia-centric interpretation of the Second Amendment was proper, assuming of course that the Founding Fathers’ interpretation of the text mattered most. From that point on, my historical interest in the issue took off.
Wilkinson: A lot of Second Amendment scholarship has taken place in the brief period after Heller, correct?
Charles: On the regulation side, yes. Prior to Heller, very few scholars were looking at the history of gun regulation, its ebbs and flows, its changes and transformations, and why it changed and transformed. Everybody just kind of dismissed that and said, ‘Well, we really need to focus on the Founding and the Second Founding’ — the Reconstruction Congress and constitutional amendments.
Wilkinson: With regard to the New York case before the Supreme Court, in a blog post you directly confront one of the petitioners’ history claims, which is that New York’s Sullivan Law, a 1911 law that restricts armed carry, was motivated by a discriminatory anti-immigrant agenda. You say evidence for that is “utterly lacking.” Walk us through that.
Charles: The anti-immigrant historical argument against the Sullivan Law began in the late 1970s. But this historical argument is utterly false. It was just another way for gun rights advocates to attack the law, which was widely viewed as the antithesis of gun rights for much of the 20th century. From the law’s enactment in 1911, gun rights advocates have held it up as the proverbial devil. There’s nothing in the legislative history of the law that shows that this law was anti-immigrant. And if it was indeed anti-immigrant, as the petitioner suggests, then it was a nationwide conspiracy because similar laws that required a discretionary permit to carry a concealed weapon existed throughout the U.S. at that time. But there is nothing in the historical record that supports a nationwide conspiracy either.
Wilkinson: The anti-immigrant attack seems a corollary to arguments that gun regulations have racist roots — employed to keep Black people from defending themselves.
Charles: The argument that gun control has racist roots is a built on a kernel of historical truth, but the argument is largely hogwash. If you look at all the gun control laws spanning five centuries, the overwhelming majority, say 95% to 99%, are not racist, and were never meant to be racist. Indeed, in the pantheon of history racist gun control laws have been enacted, and at times bad actors have enforced gun control laws in a discriminatory manner, but that doesn’t constitutionally cancel all gun-control regulations across the board.
Wilkinson: You use a phrase to describe the process by which a lot of dubious historical claims about gun rights have entered wider circulation — the “circular citation gymnastics.” Can you describe how that works?
Charles: An early tactic of gun-rights proponents was to have multiple people write very similar articles and then cite one another’s work as supporting evidence for the same historical proposition. If one author’s claim was disproven, which happened many times, it didn’t matter because gun-rights writers could then cite another author making the same claim. It just went on and on in a circle.
That’s what happened with the anti-immigrant narrative about the Sullivan Law. The historical claim that the law was anti-immigrant is repeated many times. But when you actually go and check everybody’s citations, they all go back to the same two books. And those two books don’t come remotely close to meeting the necessary historical burden of proof.
Wilkinson: Are the courts fooled?
Charles: It’s always hard for the courts to get history exactly right. You’re asking courts to do intensive research on the history of gun control on the spot — research that only a handful of historians such as myself are really good at. I can see something and tell you where that argument comes from, because I’ve read a lot of stuff. The clerks and the justices don’t know that history unless someone like me points it out. So what I’m asking for in my brief is basically for the court to take a deep look at some of these dubious claims.
Wilkinson: The Heller case was loaded with history. But the ruling and the dissents still conformed to the ideological predispositions of the respective justices. What did you make of the historical arguments the justices made?
Charles: At times, the opinions read like the justices are talking past each other. The history of the Second Amendment can cut both ways depending on the time and place; the legal answer was somewhere in the middle if the justices would have come together and worked it out. But maybe that’s not so much a problem with the justices as it is a problem with our adversarial legal system. You have two sides that are almost forced to make competing historical claims.
Wilkinson: But both claims can’t be correct.
Charles: As it pertains to a specific historical time, place and event, you’re right. But as someone who studies legal theory, there are often multiple right answers to the same question when history is used to adjudicate legal questions. Often, one can use the same history to come on either side of a legal question — that is, if you know the historical facts and you frame them in a certain way and apply other jurisprudential tools.
Prior to Heller, Justice Antonin Scalia had already tipped his hand that he had a particular historical view of the Second Amendment. I disagree with that view. But what’s interesting, as I’ve said, is that even if he had gotten all the history right, he could still have come to the conclusion that the Second Amendment, through a living Constitution, protects a right to own a handgun in your home for self-defense.
If the justices stick firmly to the question of concealed carry in Bruen, I think it is ultimately an easy case for them get right. Armed carriage has been regulated for centuries — especially concealed carry. If I were a justice sitting on the court, I would say that this history presumes that any law regulating concealed carry is constitutional. Then I would look specifically at New York’s law to see if it passes constitutional muster.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Francis Wilkinson writes about U.S. politics and domestic policy for Bloomberg Opinion. He was previously executive editor of the Week, a writer for Rolling Stone, a communications consultant and a political media strategist.
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