Q U I C K   L I N K S

To learn more about the engraver of the 17th-century head-piece pictured to the left, see the IN BRIEF biography for Wenceslaus Hollar.

This detailed study of our founders’ gun laws (pre- and post-Second Amendment) is the first entry in She-philosopher.​com’s new series on the 17th-century historical context for Anglo-American gun culture.
  Forthcoming essays in the series will cover such topics as the first automatic weapons (and other fantastical military hardware) from a late-15th-century military treatise ... the character question (“good guys with guns”) ... the random gunshot that almost brought down Elizabeth I (in 1579) ... one of the first drive-by shootings (in 1682) ... women warriors (“Feminine Cavaliers”) in fact and fantasy ... and militarized recipes for “Triumphs and Trophies in Cookery” (pies filled with live frogs and birds, and ships with cannon that fire, with the food serving up table-top drama “which makes the Ladies to skip and shreek” and “will cause much delight and pleasure to the whole company” during holiday banquets in noble households, such as that in which Margaret Cavendish was raised).

Elizabeth I had a profound influence on military men who established English Protestant colonies in America. Click/tap here to view a facsimile of a popular 17th-century print glorifying Elizabeth’s military leadership — the Elizabethan photo op that galvanized an empire.
  Cf. Donald Trump’s postmodernist performance as a “wartime president” which has dishonored, and threatens to destroy, Elizabeth’s Anglo-American legacy.

Rep. Matt Gaetz’s (R-Fla.) support for rogue militias and armed insurrection is, as Lisa Desjardins pointed out on 5/28/2021, becoming mainstream, especially within the Republican party.
  During the 2020 election, Rep. Darrell Issa (R-Calif.), battling Democrat Ammar Campa-Najjar for California’s 50th District U.S. House seat, asserted: “A militia in fact is a personal right under the Second Amendment and your right to defend your community and to take charge, if your government fails you, or to take arms if your government turns on you; those are your constitutional rights” (qtd. in “Local Democrats Angered by 50th District Candidate Campa-Najjar’s Interview with Far-Right Group” by Matt Hoffman and David Washburn [posted to the KPBS website, 10/11/2020]; see also “Congressional Candidates Pandering to the Fringe” by columnist Michael Smolens [San Diego Union-Tribune, 10/18/2020, pp. B1 and B12]).
  Such anachronistic, but popular, misconceptions of the Second Amendment have great appeal for constituencies with legitimate grievances when “government fails you,” or “government turns on you,” and our First Amendment right to petition government for a redress of grievances goes nowhere.
  Law enforcement personnel, like Wilkinson County (Georgia) sheriff’s deputy Cody Griggers, who take an oath of public service, then go rogue — using the power of their office to terrorize others of whom they disapprove or dislike; to illegally traffic weapons (“At one point, Griggers offered to provide Zamudio with law enforcement-only 9 mm ammunition and explosives”); and to enable antigovernment militias (“I’m the guy on the inside. I can figure out if my dept is siding with the enemy or not, and from there I’m either positioned to maximize damage by attacking from the inside, or coordinate efforts to safely identify ourselves as patriots in order to maximize weapons pointed towards the enemy and minimize friendly fire,” bragged Griggers on social media) — are not simply the proverbial “bad apple,” but have garnered mainstream support (see “S.D. Arrest Leads FBI to Extremist Group and Ga. Deputy: Investigation began with online posts by member of Defend East County: Probe offers window into militia movement” by Andrew Dyer and Kristina Davis [San Diego Union-Tribune, 5/2/2021, pp. A1 and A21]).
  Cf. ongoing revelations about San Diego deputy sheriffs also using gun trafficking as a means to obtaining political power.

For more about the 21st-century rise of antigovernment militias, see: “The Armies of the Right: Though Trump Is Gone, the Legions of Far-Right Extremists He Inspired Will Continue Marching On” by Luis Feliz Leon (The Progressive, vol. 85, no. 2, April/May 2021, pp. 27–30).
  And see: “After the Storm: The U.S. Far Right Is at a Crossroads” by Matthew N. Lyons (The Progressive, vol. 85, no. 2, April/May 2021, pp. 23–26).

EDITED  Click/tap here to open an illustrated second-window aside with a note on this country’s earliest representative institution, the Virginia House of Burgesses, along with little-known founding principles of universal suffrage and of full representation in 1620s–1650s Virginia. LAST UPDATED: 5/26/2023, including new content re. the human trafficking of white persons in 1620s Virginia and in 1650s Virginia.
  Includes the text of Anglo-America’s first Aliens Restriction Act (1632), allowing the Virginia government to imprison and deport French inhabitants brought to the colony on the 17th-century equivalent of work visas.
  Also includes the text of one of Anglo-America’s first statutes (1631) mandating a census of all inhabitants and their material goods, including guns, ammunition, and other weaponry. The census has been a cornerstone of Anglo-American democracy since the founding of this country in the early 17th century. The original U.S. census — providing a snapshot of the provincial population, assets, and GDP — was an annual (instead of decennial) count, to be conducted on the 1st of December each year.

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ADDED 7/24/2020 (and last modified 11/27/2022): an endnote with my historian’s take on then President Trump’s misguided Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census (issued 21 July 2020), wherein I argue that the founding “principles of representative democracy underpinning our system of Government” are not what former President Trump thinks they are. Specifically, I cite 17th-century Anglo-American laws proving (1) the founders’ original intent that “all persons inhabitting in this collonie that are freemen [are] to have their votes in the election of” representatives (this was mandated in a 1658 statute); (2) that constitutional values concerning representation were driven by the republican principle, no taxation without representation, as in the preamble “we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in elections” (this was declared in a 1656 statute); and (3) that setting things up to promote convenience in voting, along with universal suffrage for all taxpaying residents, was also a founding principle.
  As such, former President Trump’s crusade against “Universal Mail-In Voting” — which he claims will be “INACCURATE & FRAUDULENT,” despite 21st-century safeguards, and expert projections that “the risk of ballot fraud [is] an infinitesimal 0.00004% to 0.0009%” (Calvin Woodward, “AP FACT CHECK: Trump’s Election Agitations and Distortions,” n. pag.) — is a postmodern obsession, not shared by Anglo-America’s founders, and very much at odds with the founding “principles of representative democracy underpinning our system of Government.”

NOTA BENE  A detailed discussion of the first published debate concerning gun control in the United States is available at our sister project known as Roses. See that website’s digital reissue (2014) of Thomas Tryon’s anti-gun polemic, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684).
  A prefatory discussion of Tryon’s Christian contribution to the gun culture debate in America is available at the Roses website’s What’s Blooming news page (entry dated 5/9/2014).
  And see also that website’s news blog entry posted on 3/26/2018 for more historical facts about guns & gun culture in 17th-century Virginia.

Thomas Tryon’s early-modern Christian perspective on the psychology of gun violence in The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684) is complemented by a PBS NewsHour segment with an updated assessment of gun culture in the postmodern U.S.: “A Look at the Rise of the AR-15 in America after 8 Killed at Texas Outlet Mall” (aired 5/8/2023).
  SUMMARY: “AR-15s, like the one used to kill eight people at a shopping mall in Allen, Texas, have become more popular around the country. The rifles have been involved in ten of the country’s 17 deadliest mass shootings. The Washington Post spent months examining the rise of the AR-15 in America and the politics and culture surrounding it. Geoff Bennett discussed that series with reporter Todd Frankel.”

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NEW  The Christian mystic and early practitioner of holistic medicine, Thomas Tryon (1634–1703), was the first Anglo-American to delve into the psychosocial consequences of gun violence as a public health issue. See his anti-gun polemic, The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey, and to All Such as Have Transported Themselves into New-Colonies for the Sake of a Quiet Retired Life, with its unique focus on how America’s gun culture affected the well-being of children (1st edn., 1684; digital reissue 2014, with my separate illustrated editor’s Introduction here).
  Over three centuries later, Tryon’s public-health approach to gun violence is gaining favor with the medical community.
  PBS NewsHour Weekend reports that “Since 2020, guns have been the leading cause of death for children in America. While many tragically lose their lives, child survivors of gun violence can endure a lifetime of physical and mental health challenges.” “Firearm-related injuries among children have been on the rise, with nearly 16 in 100,000 children experiencing gun violence, according to the latest data.” Of note, “A new study from the American Academy of Pediatrics points to the urgent need for connecting children to mental health services following a firearm injury.” (Ali Rogin, “Many Children Who Survive Gun Violence Face Barriers to Mental Health Care”; first aired 6/17/2023).
  Unfortunately, the recommended mental health services are not readily available to most child survivors of gun violence. “[O]ne reason is that there are significant workforce shortages of mental health professionals in the U.S. but particularly in high poverty areas in those communities where most firearm injuries occur.  ¶   And this is also compounded by limited reimbursement rates for mental health services, particularly those offered by Medicaid relative to private health insurance. And the reason that we focus study on Medicaid enrolled youth is that most youth in the U.S. who sustain firearm injuries are enrolled in Medicaid.” (Dr. Jennifer Hoffmann, a pediatric emergency medicine physician at Lurie Children’s Hospital of Chicago and a lead author of the new study, n. pag.)
  When asked “And so what does that mean in terms of what policymakers can do? What would you like to see change?” Dr. Hoffmann replied: “So, first of all, I think that policymakers should make more substantial investments to improving access to mental health services for children. And this includes meeting children where they are. Investing in school based mental health services. Also telehealth mental health services that can connect to children in communities that don’t have an in-person mental health provider. Also, policymakers need to increase research funding to address and prevent firearm injuries by applying a public health approach. We know that research on firearm injuries is substantially underfunded relative to the morbidity and mortality burden.” (n. pag.)

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NEW  It’s not just the medical community that is increasingly attuned to the crisis in children’s public health resulting from our permissive gun culture. A growing number of women, across the partisan divide, want real (i.e., effective) gun control to protect this nation’s children from growing gun violence. See the report in “When It Comes to Guns, Republican Women Don’t Always Agree with Republican Men: As gun violence grows in our country, GOP women seem to be thinking more like Democratic women” by Lauren Leader (posted to POLITICO, 6/11/2023).
  “For years traditional women’s issues in American politics have been defined by paid leave, equal pay, childcare, abortion and education. But our poll indicates that concerns about gun violence are galvanizing women on the left and center and establishing common ground with some conservative women. According to our poll, guns have become the single most important issue for Democratic women. And even meaningful numbers of Republican women agree with women on the left and middle about the right legislative solutions to pass.” (Lauren Leader, n. pag.)
  It is heartening to learn that a growing number of women are sick of the fake representation we confront, in blue and red states. “Well over half of women (55 percent) feel that the political leaders in their state are not listening to them on guns. This was remarkably consistent across party lines — just 13 percent of Republican women and 14 percent independent and Democratic women said politicians are listening to them on the issue. Among young women, only 9 percent think politicians listen to them a lot on guns.  ¶   What has emerged is a picture of American women united on the need for basic laws to protect their families, and especially children from terrible gun tragedies that continue daily. In short, women — including Republican women — want something done, and they are willing to hold leaders accountable for their actions, or inaction, as is far too often the case.  ¶   With basic safety and the survival of children on the line, it’s no wonder so many women agree. Gun violence is personal to them — they want to be heard and they want something done. May elected leaders in both parties take note: It’s a matter of life and death.” (Lauren Leader, n. pag.)
  In support of the majority of U.S. women headed back to the future on this issue: what we are really asking for is a return to this country’s founding, constitutional principles: “such rights as will best maintain peace and good order, and most effectually secure happiness and liberty to the people” (to quote Maryland’s constitutional convention, meeting on 17 August 1776). In 1905, the eminent constitutional scholar, Emlin McClain, reiterated this founding principle when he observed that many “so-called rights” are “in reality duties and privileges imposed and granted for the public good and not for individual benefit” (Emlin McClain, Constitutional Law in the United States, revised edn., 1910 [rpt. 1916], 284).
  As I have evidenced over and over at this website, government that is attentive to the “public peace and happiness” ends up being consistent “with the Nation’s historical tradition of firearm regulation” which, until recently, emphasized the founding constitutional principles of “domestic tranquillity,” “the common defence,” and “the general welfare” (Preamble to the U.S. Constitution).
  As for this country’s metastasizing scourge of fake representation (exemplified by gerrymandered state legislatures pushing a factional and/or sectarian agenda onto the people of their state), this — as well as the newfangled constitutional right of the multitude to bear arms being pushed by unrepresentative state governments and the courts — is inconsistent with our constitutionally-mandated “republican form of government” (Art. IV, § 4 of the U.S. Constitution).
  According to West New Jersey’s celebrated Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New-Jersey, in America (3 March 1676–77), “The first duty of a member [assemblymember] was to present the grievances and recommendations of his constituents; should he fail to carry out their instructions he could be challenged from the floor by the others from his tenth.” (J. E. Pomfret, The Province of West New Jersey, 1609–1702: a History of the Origins of an American Colony, 96)
  Such genuine representation is definitely a thing of the past. Over 3 centuries on, state assemblymembers focus on their own partisan legislative agendas and ignore constituent “grievances and recommendations” with impunity, as my experience in the blue state of California, now under the absolute control of the Democratic Party, makes clear.
  When a majority of us feel that our political leaders have stopped listening to us — a situation in which I myself am mired, as of 2015 — our society is in deep trouble. A republican government which is representative in name only begets political violence, and will fall eventually.
  Even the autocratic Stuarts who oversaw this country’s founding in the 17th century — Charles I (r. 1625–1641), Charles II (r. 1660–1685), James II (r. 1685–1688) — understood the importance of securing their vassals’ historical right to petition government for a redress of grievances. This is a cornerstone of the social contract.

For more on the history of guns in the U.S., see the PBS NewsHour feature, “Firearms Museum Takes Aim at Understanding History, Culture of Guns” (first aired 12/16/2019).
  SUMMARY: “Wyoming is the least populous state in the U.S. but ranks near the top in per capita gun ownership. It’s also home to the nation’s most comprehensive collection of historical firearms. Jeffrey Brown reports from Cody, where a renovated firearms museum traces the role guns have played in shaping American history and urges visitors to come to their own conclusions about their place in society today.”

The proud display of guns at gun shows (vs. museums) has catalyzed the gun-control debate in California.
  A new state law, which takes effect in 2021, bans gun and ammunition sales at state-owned venues, such as the Del Mar Fairgrounds in north San Diego County, where the Crossroads of the West Gun Show has been a biannual attraction for decades. The gun show event was again held in December 2019, after being suspended in 2018, but its future is uncertain, pending litigation, as reported by Morgan Cook in “Backers, Foes Rally as Gun Show Returns to Del Mar Fairground” (San Diego Union-Tribune, 12/15/2019, p. A3).
  Gun show supporters — “sane, trained, law-abiding gun owners who want to assemble, want to get together and learn, and meet with each other and transact business legally and use things responsibly” — contend that gun shows are good family entertainment, and “it’s important that people have access to meet gun enthusiasts, to have a place to go and meet and learn best practices and see some of the new equipment that is out. It’s a lot of fun.”
  Gun show opponents counter that “easy access to guns” should not “be advertised as family-friendly because women and children are so often victims of domestic violence homicides, the rate of which recent research has tied to gun ownership.” Nor is “a distaste for gun-enthusiast culture” driving local opposition: “This isn’t about culture [...] This is about the state being involved in promoting and profiting from the sale of firearms and ammunition on state-owned property. The government does not belong in this business.” (M. Cook, A3)

Gun show bans and other gun-control legislation enacted by the states are now being challenged at the local level, with the rise of “Second Amendment Sanctuaries.” (This is a case of compounding ironies: as I argue here, a sovereign state’s prerogative “to keep and bear arms” is what the original Second Amendment was all about.)
  The Second Amendment Sanctuary movement pits local elected representatives (sheriffs) against statewide elected representatives (governor and legislators) in a contest over state laws regulating guns (which supposedly violate the Constitution), giving sanctuary sheriffs the right to exercise “professional discretion” in choosing which state laws to enforce. (To reiterate, in pre- and post-revolutionary Anglo-America, any such rebellion against the provincial government would have been considered sedition, and put down accordingly.)
  Dueling op-eds over 21st-century “Second Amendment Sanctuaries” in California, Colorado, Illinois, Rhode Island, Texas and elsewhere were posted to the InsideSources.​com website on 12/18/2019:
  1. “POINT: Second Amendment Sanctuaries Reflect the Will of People Who Value the Constitution” by Teresa Mull.
  2. “COUNTERPOINT: Second Amendment Sanctuaries Are a Legal Fiction that Jeopardize Public Safety” by Chelsea Parsons.

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For more on local pushback against state gun-control laws — “including universal background checks, assault weapon bans and red flag laws that would allow authorities to temporarily take guns away from people deemed dangerous to themselves or others” — in 21st-century Virginia, see “Second Amendment Sanctuary Push Aims to Defy New Gun Laws” by Denise Lavoie of the Associated Press (posted to the AP website, 12/21/2019).
  In Virginia, which happens to be home to the National Rifle Association’s headquarters, “The counties are saying, this stuff is unconstitutional. We don’t want it, we don’t want to enforce it, and in most cases, we won’t enforce it,” according to Philip Van Cleave, president of the Virginia Citizens Defense League. And at least “One Virginia sheriff has vowed to deputize thousands of county residents ‘to protect their constitutional right to own firearms.’” (D. Lavoie, n. pag.)
  EDITED  But as I have documented elsewhere on this page, the state legislature’s right to regulate firearms, in addition to arming and disarming individuals, dates to the founding of this country (scil., the first militia law passed by the Virginia House of Burgesses on 5 March 1623–4).
  NEW  Moreover, the sovereign sheriff is another postmodern invention with no historical analogue. Historically, in Virginia, sheriffs were strictly regulated by the state legislature (e.g., no person could hold the office of sheriff for more than one year successively), and penalties were prescribed for abuses of the office (along with other profitable & powerful public offices, including clerk of court, escheator, surveyor, and collector). Of note, a stricter regulation of the activities of public officers was initiated by the reform-oriented Grand Assembly of June 1676, misleadingly dubbed “Bacon’s Assembly” because it was “packt” with radical republicans, and convened during Bacon’s Rebellion (which began in May 1676, with Bacon’s unauthorized Occaneechee campaign). But this Assembly’s acts proved to be in line with the will of the people (rising up against that era’s entrenched elites), and were repassed in substantially the same form in the assembly of February 1677 following the rebellion.
  NEW  The 17th-century An Act for the Regulateing of Officers and Offices, starting with sheriff, opened: “WHEREAS divers complaints have bin made throughout the country of the abuses and other ill management and administration of divers offices, and hath bin represented to this assembly, that redresse may be had therein, in order whereunto, Bee it enacted by the, governour, councell and burgesses of this grand assembly, and by the authority of the same, that noe person whatsoever within this country shall exercize, hold and enjoy the office of sherriffe or under sherriffe more then one yeare successively, and if any person or persons whatsoever within this country from and after the first day of May next, shall accept the said office of sherriff or under sherriff, and shall execute, hold or enjoy the same by him or themselves, or by his or their deputies contrary to the true intent and meaninge shall be ffined twenty thousand pounds of tobacco to the use of the countie where he so officiates, any lawe, custome or usage to the contrary notwithstanding, and that according to a former act of assembly the sherriffs place be enjoyed by the severall commissioners of the respective countyes successively; And bee it further enacted by the authoritie aforesaid, that noe person or persons whatsoever shall hold or enjoy any two of these offices hereafter named at one and the same time, being offices of profitt, vizt. the offices of sherriffs, clerke of courts, surveyor and escheator, from and after the first day of Aprill next ensueing, under the penaltie of five hundred pounds of tobacco everie week, hee or they shall hold and enjoy the same contrary to the true intent and meaning hereof....” (Act V, passed by the Virginia state legislature, 5 June 1676)

Another historic decision: “9th Circuit Ends California Ban on High-Capacity Gun Magazines” by Don Thompson of The Associated Press (posted to the PBS NewsHour website, 8/14/2020).
  “Aside from the magazine ban itself, [California Rifle & Pistol Association attorney Chuck] Michel and the unaffiliated Second Amendment Foundation said the case has legal implications for other gun restrictions should it reach the justices [of the Supreme Court] because it could allow the court to clarify an obscure legal debate over what standard of review should be used.  ¶   ‘The Supreme Court seems inclined to do away with the complicated subjective tests that many courts have wrongly applied in Second Amendment cases, in favor of a clearer more objective “originalist” approach that considers the text, history and tradition of a law to determine what infringements might be tolerated,’ Michel said in an email.” (D. Thompson, n. pag.)
  As I have argued here, the individual right to keep and bear arms, as popularized by the NRA, SCOTUS, etc. is a postmodern invention, and nothing to do with the original intent of militia laws dating back to 1619, when the Virginia House of Burgesses first made it a crime, punishable by death, to sell or give guns and ammunition to Native Americans (of note, subsequent statutes would allow the sale of guns — often part of the payment required for coveted tribal lands — to the indigenous inhabitants, but would afterwards prohibit the sale of shot and powder, and also any gun repairs). So “the text, history and tradition of” militia law in this country is not the simple & straightforward “right to armed self-defense” that many, including appellate Judge Kenneth Lee, seem to think.

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And see also “Court Strikes Ban on Gun Magazines: Law on high-capacity components ‘runs afoul of Second Amendment’” by Teri Figueroa (San Diego Union-Tribune, 8/15/2020, pp. A1 and A8). As Figueroa here explains, the lawsuit at the heart of Judge Lee’s 66-page decision was filed by five San Diego County residents who contend that California’s ban on high-capacity magazines infringes on their constitutional right to bear arms. “U.S. District Judge Roger Benitez sided with the plaintiffs and blocked enforcement. California appealed. Friday’s [federal appeals court] ruling upholds Benitez’s decision.” (T. Figueroa, A8)
  Of note, “Gov. Gavin Newsom — who as lieutenant governor crafted Prop. 63 in response to mass shootings — said during his coronavirus briefing Friday [8/14/2020] that he had not read the new decision, but he said the state law was sound.  ¶   ‘I think it was right and ... the overwhelming majority of Californians agreed’ when they voted in favor of the initiative, he said.  ¶   ‘I will remind everybody a gun has never killed anybody unless the gun is used as a blunt instrument,’ Newsom said. ‘A gun requires a dangerous and deadly component, and that is a bullet, ammunition.’  ¶   California, he said, has ‘long advanced efforts to focus not just on guns, but to focus on keeping those dangerous components out of the hands of people that should otherwise not be afforded that fundamental privilege-slash-right.’  ¶   Prop. 63 passed with 63.1 percent of the vote. The ‘yes’ votes in San Diego County tallied 61.5 percent. Approval in Orange County came in at 59.5 percent, and Los Angeles County backed it with 72 percent of the vote.” (T. Figueroa, A8)
  I would argue that Governor Newsom’s framing of ready access to ammunition as a “fundamental privilege-slash-right” is historically correct. As I believe I have proven here, from the founding of this country in 1607, access to guns and ammunition was considered a privilege (or a duty), not a right — and certainly not an inalienable right as many today claim.

The debate over Second Amendment gun rights amped up on 4 June 2021 with San Diego federal Judge Roger Benitez’s 94-page ruling which overturned California’s 30-year-old ban on assault weapons, declaring the state’s ban unconstitutional, and comparing the AR-15 semiautomatic rifle to a Swiss Army knife, “good for both home and battle.”
  For details, see “Judge Rejects Another State Ban: State vows to fight ruling on assault weapon restrictions” by Greg Moran (San Diego Union-Tribune, 6/6/2021, pp. A1 and A10), retitled “San Diego Federal Judge Wipes Out a Key Pillar of State Gun Regulations, Again: It is the third time since 2019 that U.S. District Judge Roger Benitez has struck down state gun laws” for online posting. And for a slightly different framing, see “Assault Weapons Ruling Prompts Outrage: Gun control backers fault judge’s reasoning in overturning state’s 30-year-old ban” by Alex Wigglesworth and Thomas Curwen (Los Angeles Times, 6/6/2021, pp. A1 and A10), retitled “After Judge Overturns California Assault Weapons Ban, State Officials Vow to Fight Back” for online posting.
  In the opinion of Judge Benitez, “The Second Amendment protects any law-abiding citizen’s right to choose to be armed to defend himself, his family, and his home[.] At the same time, the Second Amendment protects a citizen’s right to keep and bear arms to use should the militia be needed to fight against invaders, terrorists, and tyrants. The Second Amendment is about America’s freedom: the freedom to protect oneself, family, home, and homeland. California’s assault weapon ban disrespects that freedom.” (qtd. in G. Moran, A10)
  “In Friday’s ruling Benitez again drew unusual comparisons outside of the usual case law reference, though there were many of those, too. In addition to comparing assault-style weapons to the Swiss Army knife he also drew a comparison to the sales of the Ford F-150 pickup trucks to buttress his point that the assault rifles are widely popular and not weapons used by a relative handful.” (G. Moran, A10)
  A “local plaintiff in the case who is the chief executive of the San Diego County Gun Owners group welcomed the ruling. ‘I am happy that the judge agreed that these firearms are not exotic or unusual, and that my right to self defense is being violated by this ban,’ said Wendy Chou Hauffen. ‘These commonly owned rifles function just like any other firearm.’” (G. Moran, A10)
  Using the popularity — or even utility — of a particular gun for self-defense to prove a constitutional right to keep and bear arms is a postmodern invention, with no basis in “the text, history and tradition of” militia law in this country.
  The Second Amendment was originally about the struggle over royal prerogative. As the 1st duke of Newcastle advised Charles II, just prior to his restoration in 1660, the “Militia [...] Is your Ma[jes]ties Undoubted prerogative”: “Therfor I woulde have your Ma[jes]tie have all the Armes, & Amunitiann Inn your owne handes [...] firste by [...] disarminge off themm totalye, Inn all kindes, no more Citeye Captins or Collonnells, Artilerye yarde or Militarye yarde; & a penaltye Upponn anye thatt keepes Armes, levinge them nothinge butt their severall watches, Inn their severall wardes, & parishes to keepe the streetes Inn order & no more”; second, “& thenn by Arminge your selfe [...] to over Awe them & to keepe them In order” (William Cavendish, “For the Militia,” Section 1 of his Letter to Charles II, a scribal publication written c.1650s). Taking Newcastle’s advice, Charles II became the first monarch to maintain field regiments in peacetime (before 1661, kings of England had raised temporary armies in time of war, which were disbanded on the conclusion of hostilities).
  Giving to individual provinces within the United States a constitutional right to keep “a well regulated militia” (what Newcastle called “traynde bandes In Everye Countye”) struck at the heart of royal prerogative. And this was the original intent of the Second Amendment — to ensure that each commonwealth (“a free state”) had the prerogative to secure itself “against invasions and insurrections.”
  The 18th-century transference (the Second Amendment was adopted on 15 December 1791), to individual states, of the king’s prerogative to keep what Newcastle called a “well orderde forse” (militia) has no bearing on Wendy Chou Hauffen’s 21st-century “right to self defense” using exotic, unusual, or commonly owned firearms. To claim that it does, is anachronistic.
  EDITED  As I have argued at length here, the keeping of arms by private individuals was, from Anglo-America’s founding in 1607, controlled by provincial laws, and provincial governments have always had the right to arm and disarm the multitude according to those laws.

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As expected, California has appealed U.S. District Judge Roger Benitez’s 6/4/2021 decision, which critics (such as Governor Gavin Newsom) believe is rooted in ideology, not science and public health. See “State Appeals Assault Weapons Ruling: Citing public safety, attorney general [Rob Bonta] seeks to reverse San Diego judge’s decision on three-decade-old ban” by Patrick McGreevy (San Diego Union-Tribune, 6/11/2021, pp. A1 and A6), retitled “California Appeals Judge’s Ruling that Overturned the State’s Assault Weapons Ban” for online posting.
  After filing his appeal, California State AG Bonta acknowledged that “The ban on assault weapons will not put an end to all gun violence, but it is one important tool the state has to protect the safety of Californians while also respecting the rights of law-abiding residents who choose to possess firearms” (P. McGreevy, A6).
  For his part, Judge Benitez “disputed the argument of state officials that the assault weapons ban has reduced gun violence. He said the number of mass shootings is about the same as it was before the ban.  ¶   ‘The assault weapon ban has had no effect,’ Benitez wrote in his 94-page ruling. ‘California’s experiment is a failure.’  ¶   But state officials said there is evidence that the law has prevented gun deaths.  ¶   On Thursday [6/10/2021], Bonta cited a study by the Everytown for Gun Safety Support Fund, which found that, for the last 12 years, the use of an assault weapon in a mass shooting has led to ‘six times as many people shot per incident than when there was no assault weapon.’” (P. McGreevy, n. pag.)
  Ironically, 21st-century gun rights advocates associated with the case make a mockery of this country’s founding debate over royal prerogative. E.g., Sam Paredes, executive director of Gun Owners of California, claims that Governor Newsom — “who as lieutenant governor wrote Proposition 63, a 2016 initiative approved by voters to toughen state law with measures including a ban on the possession of large-capacity ammunition magazines” (P. McGreevy, A6) — forgets “he is governor and not king”; similarly, the plaintiffs, in defending Benitez’s “legally- and historically-correct decision,” are calling California’s assault weapons ban “tyrannical.”
  EDITED  In fact, Governor Newsom’s unwavering support for gun reforms “applicable to the local and other circumstances of the province” (SCOTUS Associate Justice Samuel Chase [1741–1811], as qtd. in William Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., Annapolis, 1811, p. vi) is in keeping with this country’s historical tradition of firearm regulation, dating back to our 17th-century founding, when the General Assembly of Virginia passed Anglo-America’s first firearm regulation on 3 August 1619, followed by Anglo-America’s first militia law on 5 March 1623-4, which evolved, over a century later, into the revolutionary assertion of states’ rights against kingly prerogative.

“Advocates Turning to Courts More Over Gun Rights: San Diego has become major front in legal battle against gun regulations,” by Greg Moran (San Diego Union-Tribune, 7/4/2021, pp. A1 and A14).
  This article summarizes ongoing efforts by gun rights groups intent on postmodernizing the Second Amendment — turning constitutional language protecting the prerogative of every commonwealth (“a free state”) in the union to secure itself “against invasions and insurrections” by keeping “a well regulated militia” (previously a royal prerogative) into an individual right to possess firearms for self-defense and other purposes.
  “With some of the strictest gun-control laws in the country, California has become a focus of these legal battles. And while lawsuits have been filed in each of the state’s four federal court districts, San Diego has become a major front in the legal battle.” (Greg Moran, A14)
  Of note, “The legal battles are taking place against a backdrop of polls showing support among voters for some stronger gun laws, such as universal background checks, along with a surge in gun buying. Last week, [California Attorney General Rob] Bonta reported a 65 percent increase in the sale of handguns in 2020 from 2019 in California.” (Greg Moran, A14)

A profile of the San Diego judge who is upending California gun laws: “This San Diego Judge Is Striking Down Gun Laws: In an era of fierce polarization, Judge Roger T. Benitez is an object of rage and adoration” by Laura J. Nelson and Kristina Davis (San Diego Union-Tribune, 8/8/2021, pp. A1 and A10).
  Described as a Cuban émigré (“sent to Florida as part of Operation Peter Pan, a covert U.S.-backed effort to evacuate children from Cuba”) who “has seen tyranny up close and personal,” Judge Benitez is known for “rhetorical flourishes, dramatic anecdotes and a tendency toward gun-related puns [which] seem at times designed to troll gun-safety advocates, who view his rulings and his expansive view of the Second Amendment with a mixture of outrage and alarm.” (L. J. Nelson and K. Davis, A10)
  I, too, disagree with any kind of stealthy postmodernization of the Second Amendment by an activist court, but I agree with Judge Benitez’s “insistence that government lawyers prove that gun-control measures actually work” (L. J. Nelson and K. Davis, A10). As I have argued elsewhere, I am tired of legislation we can’t properly evaluate — then revoke, revise, or reenact, as appropriate. But the demand for more data-driven policies and judgments applies to Judge Benitez, as well as to the lawyers who appear before him.
  “In an attempt to argue that an AR-15 being used in a mass shooting is an ‘infinitesimally rare event,’ Benitez wrote in June that ‘more people have died from the COVID-19 vaccine than mass shootings in California.’ The statement, with no citation, mirrors talking points — unproved — about vaccine fatalities that have circulated on Tucker Carlson’s Fox News show and other right-wing news outlets.
  “The Centers for Disease Control and Prevention has found no ‘causal link’ between vaccinations and deaths.” (L. J. Nelson and K. Davis, A10)

As of June 2022, the state of New York is battling a politicized SCOTUS over that state’s longstanding (since the 17th century) prerogative to arm and disarm particular persons. This historical prerogative was emphasized in 1905 by the respected constitutional scholar, judge, and legal educator, Emlin McClain, whose modern interpretation of the Second Amendment concluded: “... The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety. In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional.” (Emlin McClain, Constitutional Law in the United States, 1st edn., 1905, 311–312)
  Yet, on 6/23/2022, the U.S. Supreme Court overturned New York’s restrictive law on issuing concealed-carry permits. The ruling against New York’s concealed-carry law, known as New York State Rifle & Pistol Assn., Inc. v. Bruen, is available here.
  Presumably, SCOTUS’s reasoning herein concerning “this Nation’s historical tradition of firearm regulation” makes sense to legal professionals.
  But, to a historian like me — who, back in 2017, posted the full text of two of the colonial statutes deemed irrelevant to “restrictions on the public carry of handguns today” — the majority’s argument does not persuade.
  The tortured logic on display in pp. 39–41 of SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision — wherein the court’s conservative wing dismisses East New Jersey’s “solitary statute” of 1686, “An Act Against Wearing Swords, &c.” (followed up in 1694 with “An Act Concerning Slaves, &c.”) as but “eight years of history in half a Colony roughly a century before the founding”; ergo, “sheds little light on how to properly interpret the Second Amendment” — is historical revisionism that would not withstand peer review, as I intend to show with my detailed historical analysis of the statutes, including subsequent 18th-century acts “against Carrying of Guns ... by Persons not Qualified,” which SCOTUS conveniently ignores.
  In sum: “the People” of New York is the latest casualty of an unchecked, activist Supreme Court which is radically revising the original public meaning of the Second Amendment to include “an individual right to keep and bear arms for self-defense.” Substituting the multitude for the people of New York State — “It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment protects.” (3) — SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen decision rewrites history accordingly.
  So long as the court’s conservative wing maintains its supermajority, this will be what passes for constitutional law in the near future. But make no mistake: this postmodern revisioning of “the publick Liberty” (De Coetlogon, An Universal History of Arts and Sciences, 2 vols., 1745, 2.42) is but a pale imitation of the original.
  Some context for SCOTUS’s New York State Rifle & Pistol Assn., Inc. v. Bruen opinion:
  •  “Supreme Court Appears Likely to Void New York’s Gun Permit Law: The justices seem inclined to find that the right to keep and bear arms extends to carrying them outside the home” by Josh Gerstein (posted to POLITICO’s website, 11/3/2021).
  •  PBS NewsHour segment, “Supreme Court Mulls Limits of Second Amendment in New York Gun Law Case” (first aired, 11/3/2021).
  •  “New York Signs Stronger Gun-Control Measure into Law. Here’s What Will Change: The new laws will bolster existing ones and close what state leaders viewed as loopholes that included allowing the Buffalo shooter to slip through the state’s Red Flag statute” by Joseph Spector (posted to POLITICO’s website, 6/6/2022).
  •  “‘Frightful in its scope’: New York Lawmakers Scramble to Counteract SCOTUS Gun Ruling: ‘This decision isn’t just reckless. It’s reprehensible. It’s not what New Yorkers want,’ Gov. Kathy Hochul said” by Erin Durkin, Joseph Spector, Katelyn Cordero, Joe Anuta, Julian Shen-Berro and Max Jaeger (posted to POLITICO’s website, 6/23/2022).
  •  “Supreme Court Strikes Down New York Gun Law along Ideological Lines: The 6-3 decision is the latest in a series of moves by the increasingly conservative high court to adopt a muscular interpretation of the right to bear arms” by Josh Gerstein (posted to POLITICO’s website, 6/23/2022).
  •  “Albany Passes Strengthened Gun Laws in Wake of SCOTUS Ruling: The measure, intended to counteract the Supreme Court’s decision last week striking down a strict state gun law, strengthens permitting requirements and designates a slew of new gun-free zones” by Katelyn Cordero (posted to POLITICO’s website, 7/1/2022).
  •  “Supreme Court Decision Prompts Maryland Governor to Lower Gun License Barriers: His announcement comes after last month’s Supreme Court decision to strike down a similar provision in New York” by Ari Hawkins (posted to POLITICO’s website, 7/5/2022).
  •  “The Supreme Court Knocked Back Blue States on Gun Restrictions. They’re Seeing How Far They Can Step Forward: Democrats moved swiftly to blunt a ruling opening up concealed carry, previewing years of struggle” by Jeremy B. White and Katelyn Cordero (posted to POLITICO’s website, 7/8/2022).
 
That a politicized Supreme Court’s corruption of the historical record is now on the verge of being institutionalized is alarming, indeed.
  According to White and Cordero, “The legal fallout could be far broader than concealed-carry regulations. Jubilant Second Amendment advocates said the Supreme Court’s decision should revive or spur challenges to a range of other restrictions, pointing to the decision’s expansive new test that any regulations are consistent with ‘the historical tradition that delimits the outer bounds of the right to keep and bear arms.’  ¶   ‘I don’t think that any restrictions on the peaceable possession of firearms should survive this test if it’s applied faithfully,’ said Matt Larosiere, policy counsel for the Firearms Policy Coalition. ‘Certainly any restrictions on the simple, peaceable possession of a firearm are clearly suspect now.’ So are restrictions on assault weapons and high-capacity magazines, he added, and ‘quite likely the handgun roster.’” (J. B. White and K. Cordero, n. pag.)
  “‘The impact of the Second Amendment ruling [New York State Rifle & Pistol Assn., Inc. v. Bruen] will be most acutely felt in the handful of blue states that have continued to innovate in gun regulation.’” (J. B. White and K. Cordero, n. pag.)
  EDITED  Where are the checks and balances on an activist Supreme Court hell-bent on enshrining so much “ignorance or misinformation” (The Inconveniencies that Have Happened to Some Persons which Have Transported Themselves from England to Virginia; Without Provisions Necessary to Sustaine Themselves ..., 1622, n. pag.) about Anglo-America’s historical tradition of firearm regulation as constitutional law?
 
                   *  *  *
 
SCOTUS’s postmodern corruption of the historical record raises new questions about judicial supremacy when it comes to the matter of constitutional hermeneutics. According to Brad Snyder in The Supreme Court Has Too Much Power and Liberals Are to Blame: The idea that the court has ultimate say on constitutional matters didn’t arise with modern conservatives. You can thank the Warren Court” (posted to POLITICO’s website, 7/27/2022), “The Supreme Court has usurped the power of the elected branches to interpret the Constitution and to pass laws on behalf of the people themselves — the foundational principle of American representative democracy.” (n. pag.)
  Snyder believes “It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives.” And he suggests systemic reforms that go well beyond the usual solutions proffered by the left & the right: “Many people on the left have focused on increasing the number of Supreme Court justices. Liberal and conservative legal scholars have endorsed limiting their life tenure to unrenewable 18-year terms. There is, however, a third way.” (Brad Snyder, n. pag.)
  Our founders were obsessed with preempting the anticipated corruption of our political system, relying in part on the separation of powers to ensure checks & balances upon and within government. Thus, Article 6 of Maryland’s influential Declaration of Rights (introduced 27 August 1776, adopted 3 November 1776) stipulated “That the legislative, executive and judicial powers of government, ought to be for ever separate and distinct from each other.”; and Article 7 stipulated “That no power of suspending laws, or the execution of laws, unless by or derived from the legislature, ought to be exercised or allowed.”
  While term limits were applied by the states to all government offices except the judiciary, Article 30 of Maryland’s Declaration of Rights (1776) placed important legislative checks on an otherwise independent judiciary: “That the independency and uprightness of judges are essential to the impartial administration of justice, and a great security to the rights and liberties of the people; wherefore the chancellor, and all judges, ought to hold commissions during good behaviour, and the said chancellor and judges shall be removed for misbehaviour, on conviction in a court of law, and may be removed by the governor, upon the address of the general assembly, provided that two thirds of all the members of each house concur in such address. That salaries liberal, but not profuse, ought to be secured to the chancellor and the judges, during the continuance of their commissions, in such manner and at such time as the legislature shall hereafter direct, upon consideration of the circumstances of this state. No chancellor or judge ought to hold any other office, civil or military, or receive fees or perquisites of any kind.”
  So there is ample evidence that Snyder’s “third way” for checking & balancing SCOTUS supremacy is in line with our founders’ original intent.
 
                   *  *  *
 
As for SCOTUS’s continuing corruption of the historical record, Allison Orr Larsen locates the problem (an over-reliance on “law office history”) and suggests solutions in The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?: Justices say that history is a more legitimate way to interpret the Constitution, but they are taking that history from motivated advocacy groups, not professional historians” (posted to POLITICO’s website, 7/26/2022).
  “Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about ‘penance’ imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists.
  “This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.
  “The amicus brief is an old tool being put to a new purpose, and it is time for an update. The good news is that a few common-sense reforms would improve the situation.” (Allison Orr Larsen, n. pag.)
  Let’s hope so!

Another milestone has been reached in California’s battle to assert its ancient right to promote the general welfare by disarming persons in the polity: “California Is Working Hard to Pass Gun Laws — And Even Harder to Defend Them: State lawmakers introduce new gun legislation in a tense legal climate” by Owen Tucker-Smith (posted to POLITICO website, 1/6/2023).
  As reported here, U.S. District Judge Roger Benitez recently asked California to back up its gun-safety agenda with historical evidence dating back to adoption of the Second Amendment on 15 December 1791: “While lawmakers wait for the Supreme Court to clarify its interpretation of the Second Amendment, Benitez is already forcing state lawyers to defend California’s slate of restrictions. Last month, he asked lawyers to draft a 97-year history of gun restrictions in the state — beginning with the ratification of the Second Amendment and ending 20 years after the ratification of the 14th.  ¶   The request emerged from the Supreme Court’s ruling in Bruen, which stated that judges must employ an interpretation ‘rooted in the Second Amendment’s text, as informed by history.’  ¶   The judge will use this history to aid his analysis — and to help determine the fate of gun safety laws in California, new and old.” (Owen Tucker-Smith, n. pag.)
  This increasing reliance on “law office history” has, according to Adam Winkler, who specializes in constitutional law and gun policy at UCLA’s School of Law, “forced attorneys across the country to spend valuable time doing historical research on Second Amendment law.” Winkler “called the surge in litigation [subsequent to the conservative Supreme Court’s Bruen decision] a ‘huge burden’ for state DOJs across the country.” “‘They have limited resources, and they have to expend those resources defending this gun law, rather than pursuing other cases,’ Winkler said. ‘There’s only so many people you have working in the office.’” (Owen Tucker-Smith, n. pag.)
  As part of my concerted effort to right the historical record selectively picked over by the courts, I have created this web page, with little-known historical evidence which I know to be relevant to a true “originalist” interpretation of the text of the Second Amendment, even if activist judges like San Diego federal Judge Roger Benitez hope to exclude it, because it falls outside the arbitrary “97-year history of gun restrictions in the state” which he has requested.
  I opened this sidebar entry with the assertion that the state has an ancient right to disarm persons within its body politic on behalf of the common good: this has long been held to be good government, based on the rule of law “as will best maintain peace and good order, and most effectually secure happiness and liberty to the people of this state” (Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, & 1776, Baltimore, 1836, p. 220).
  In fact, the state’s right to disarm citizens goes back millennia, and is foundational to western civilization itself, dating to the 6th century BCE and the founding of Athenian democracy. The ancient Greeks (specifically, the lawgiver Solon) were the first to write into law that persons who publicly conduct themselves “in a most warlike manner” (early-modern phrasing from George Percy, “Observations gathered out of A discourse of the plantation of the southerne colonie in Virginia by the English, 1606,” in Hakluytus Posthumus or Purchas his Pilgrimes, ed. Samuel Purchas, 4 vols., 1625, 4.9.2.1688) disrupt civil society and should be disarmed. Click/tap here to open a second-window aside detailing the Attic laws involved.
  NOTA BENE  And to preempt those who would dismiss all this as ancient history well outside of Judge Benitez’s 97-year timeline, I would note that former U.S. President and founding father John Adams (1735–1826) owned a copy of John Potter’s Archaeologia Graeca (my source for the Attic laws in question) and that Potter’s two-volume Antiquities (1st edn., Oxford, 1697–98) was likewise a source for Sir William Blackstone’s Commentaries on the Laws of England (4 vols., Oxford, 1765–1769).
  In turn, Blackstone’s Commentaries were oft-cited by prominent early American jurists such as William Kilty. See, for example, Kilty’s A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland, and which by Experience Have Been Found Applicable to their Local and Other Circumstances ..., an early 19th-century work published with the imprimatur of the Maryland state legislature, in which Kilty references “a letter from Samuel Chase, Esq. at present [1810] one of the judges of the supreme court of the United States, to the late judge Tilghman, in answer to some enquiries made by him on the subject [the application and extention of the English statutes], of which I have been informed several copies were distributed. The following part of that letter is here inserted: ‘It is a general principle, that the first settlers of Maryland brought with them all English statutes made before the charter, and in force at the time, which were applicable to the local and other circumstances of the province, and the courts of justice always decided the applicability of any statute, and of consequence its extention. I have understood that the judges under the old government laid it down as a general rule, that all statutes for the administration of justice, whether made before or since the charter, so far as they were applicable, should be adopted by them.’” (Letter from SCOTUS Associate Justice Samuel Chase to Matthew Tilghman, justice for Talbot county, as qtd. in William Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., Annapolis, 1811, p. vi)
  Both Samuel Chase (1741–1811) and Matthew Tilghman (1718–1790) qualify as “founding fathers.”
  Justice Chase — the only Supreme Court justice to have been impeached (probably “the opening move in a Republican attempt to purge the Supreme Court of Federalists”) — was selected as a Maryland delegate to the first continental congress in 1774 and signed the Declaration of Independence on 2 August 1776. Despite his “passionate, impetuous temperament” and ethically-challenged entrepreneurial ventures, Samuel Chase was “one of the outstanding political and legal theorists of the period,” producing “persuasive and remarkable opinions [that] earned him a prominent place in the intellectual history of the early Supreme Court [as] perhaps the most notable jurist to sit on the Court before John Marshall.” (ODNB entry for “Chase, Samuel (1741–1811), Revolutionary Politician and Judge in the United States of America” by Jean B. Russo; and ANB entry for “Chase, Samuel (1741–1811), Associate Justice of the Supreme Court” by Margaret Horsnell)
  Justice Tilghman, a third-generation Marylander from one of the most powerful families on the eastern shore, has been dubbed “the Father of the Revolution” in Maryland and credited with “the order with which Maryland made the transition from province to state.” Matthew Tilghman “presided over seven of the nine Maryland provincial conventions held in the years 1774–6. He was also chairman of the committee of correspondence for Talbot county, president of the eastern shore council of safety in 1775, and head of every Maryland delegation to the continental congress from June 1774 until November 1776. Although wary of independence, Tilghman recognized its inevitability. However, he sought to ensure that the revolution did not threaten social order and the propertied interest. His opportunity came when he was chosen president of the convention that met on 14 August 1776 to draft the first Maryland state constitution. He also served as chairman of the committee elected by that body to prepare the new framework of government. What emerged under his aegis was one of the most conservative state constitutions in revolutionary America.” (ODNB entry for “Tilghman, Matthew (1718–1790), Planter and Colonial Politician” by Keith Mason; and ANB entry for “Tilghman, Matthew (1718–1790), Planter and Legislator” by Jane Wilson McWilliams)
  So these justices’ recommendations concerning the incorporation of ancient laws “such as have been found by experience applicable to our local and other circumstances” (W. Kilty, A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ..., 1811, vii) are significant for anyone trying to parse the original public meaning of revolutionary Anglo-America’s founding texts.
  Faulkner was right: “The past is not dead; it is not even the past.”
 
[ UPDATE 1 ]  Following the mass shooting during a Lunar New Year celebration at a ballroom dance hall in Monterey Park, CA on 1/21/2023, the PBS NewsHour’s Geoff Bennett also interviewed Adam Winkler about what are widely-perceived as California’s anti-gun rights laws, now being challenged in court and invalidated by federal judges such as Roger Benitez: “Can Gun Safety Laws Make an Impact on the Frequency of Mass Shootings?” (aired 1/23/2023). Responding to Bennett’s remark that the U.S. is now “a country where gun ownership is considered a constitutional right,” Winkler replies, “Well, it is true that California’s gun laws do work. We have the lowest firearms mortality rate in the nation in California, far lower than the national average.  ¶   However, we should recognize that California has restrictive gun laws only compared to other American states. Compared to the Western industrialized world, for instance, California has some of the loosest and most permissive laws in the world.  ¶   So, California’s gun laws do try to reduce gun violence, but it’s still very easy for pretty much anyone to get their hands on a firearm in California.” And SCOTUS “has made it much harder for states to defend gun laws.” In sum: “California has tried mightily in recent years to reduce gun violence, and with some success.  ¶   However, it’s very difficult for a gun law to be effective when a resident of California can go to Arizona or Nevada and purchase the exact weapon that is outlawed in the state of California. Guns easily cross state lines. And, really, the only way to have effective American gun safety reform is to do it at the federal level.  ¶   Unfortunately, American politics don’t seem to be particularly ripe for such reform.” (Adam Winkler, n. pag.)
 
[ UPDATE 2 ]  With the latest wave of mass shootings in California impacting Asian-American communities, the PBS NewsHour’s John Yang interviewed activist Gloria Pan of MomsRising and the AAPI Against Gun Violence Coalition: “Latest Wave of Mass Shootings Sparks New Debate over U.S. Gun Access” (aired 1/25/2023).
  As others like Adam Winkler have noted, Pan stressed that “in California, the gun laws actually work.  ¶   California is the largest state in the country, and yet they have the eighth lowest rate of harm from guns. So, it works. The problem is that guns flow from state to state. It’s very, very easy to get a gun. We need national reform in order to decrease gun violence everywhere, including in states where there are already gun laws.  ¶   We can — California would have even lower gun violence if we did not have a national problem.” (n. pag.)
  And Pan reiterated that high rates of gun ownership correlate with high rates of gun violence: “Historically, Asian Americans have had the lowest rates of gun ownership. And because of that, we have actually had the lowest rates of gun violence in our communities. We have had the lowest rates of gun injury and gun deaths.  ¶   And we’d like to keep it that way. The more guns there are within our community, the more likelihood that there will be this kind of harm against our community and within our community. [...] But the actual defensive use of guns is really not very high. And the fact that there is a gun as part of your life increases the risk of harm. [...] So, in our low gun-owning community, we should try to make sure that the guns are not accessible. We do not want to see the accessibility to guns actually lead to higher rates of successful suicide.” (n. pag.)
  Her call for a new debate about our postmodern gun culture recalls ancient laws for disarming a warlike multitude that I claim here are foundational to western civilization: “We need comprehensive gun policy reform. But that’s not going to happen, because we have a culture problem.  ¶   There’s big resistance to any kind of reform. The fact that high-capacity magazines and assault weapons are in civilian circulation is a symptom of that problem. So, I would love to see a ban on that. If we could accomplish that quickly, that would indicate that we’re moving in the right direction to get the comprehensive reform that we need.” (Gloria Pan, n. pag.)
  Without question, our postmodern gun culture — where the multitude fetishizes an imagined constitutional right to act “in a most warlike manner” (again quoting George Percy [1580–1632/3], the younger son of a prominent English nobleman who sought fortune & adventure in America, serving twice as president of the Virginia colony’s ruling council [in 1609 and 1611]) — would seem decadent & barbarous to the early-modern Europeans who claimed to civilize the American wilderness.
 
NEW  [ UPDATE 3 ]  Reeling from California’s Monterey Park shooting on 1/22/2023, Thomas Curwen published “The Victims Were Our Neighbors” (Los Angeles Times, 1/29/2023, pp. A1 and A11) — a poignant look at the “familiar patterns of response that keep us in a psychological and political stalemate.”
  “‘Part of what happens when you feel frustrated and resigned is that you’re unwilling to engage in nuance and complexity — not just with mass shooting but with American gun violence more broadly,’ he [Dr. Jonathan Metzl] said. The impulse is to look for ‘easy causal answers, but it is never one thing.’  ¶   Instead we fashion hand-lettered signs — ‘ban semi-automatic rifles’ — and decry politicians and the gun lobby and find ourselves caught up once again in a long debate that cannot be won.” (A11)
  “‘Mass shootings are a reflection of a dysfunctional political system,’ Metzl said. ‘Limiting casualties requires a functioning political system where people can negotiate for reasonable protection.’” (Thomas Curwen, A11)
  Since Curwen wrote his opinion piece for the LA Times, new ways of coming together to do democracy more effectively have been proposed.
  It’s not too late to reorient ourselves in pursuit of “the publick Liberty” and “the publick good.”

An op-ed by the San Diego Union-Tribune Editorial Board points out that the California legislature bears responsibility, as well as activist courts, for the failure of state gun laws to withstand postmodern Second Amendment challenges: see “Why There Is Still Hope for Gun Reforms” (4/7/2023 print edn., p. B4).
  In light of two more California judges (Dana Sabraw and Cormac Carney) finding fault with state gun laws (this time, the Unsafe Handgun Act of 2001), the editorial board calls for more “carefully crafted,” “responsible gun legislation”: “we urge Newsom and the Legislature to renew their efforts to reduce gun violence but to do so by thinking more fully through their legal obstacles. They must craft laws that can survive the high court — not pass measures that amount to little more than value statements or thoughts and prayers.” (B4)
  NEW  Dan Walters also notes how the California legislature’s lost art of law-making has provoked backlash, especially in the courts: “One entire class of California laws, those imposing sometimes unique restrictions on private gun ownership, has fallen prey to constitutional challenges in recent months, thanks to the U.S. Supreme Court’s expansive interpretations of the constitutional right to bear arms.  ¶   While gun organizations have been challenging California’s array of gun control laws for years, the Supreme Court’s landmark Bruen decision last year, invalidating New York’s almost total ban on the carrying of personal weapons, opened the door. One by one, California’s laws are being invalidated.  ¶   Just last month, for instance, a federal judge in Southern California overturned the state’s law prohibiting the sale of handguns that don’t meet stringent — and technically unworkable – safety requirements, declaring that it runs afoul of the Bruen decision.  ¶   Even before the Bruen decision, a San Diego federal judge, Roger Benitez, had tossed out California’s ban on magazines holding more than 10 rounds, the state’s ban on assault rifles, and a law requiring background checks for ammunition purchases.  ¶   Another law that fell recently was one dreamed up by Newsom and the Legislature as a symbolic stunt – authorizing lawsuits against some gun manufacturers with conditions that made defense almost impossible. It was patterned after a Texas law making it easier to sue those who performed abortions, and Attorney General Rob Bonta didn’t even try to defend it when the inevitable lawsuit challenged it.  ¶   Undeterred by the serial invalidation of California gun laws, Newsom and legislators are working on another measure that, they say, would fit within the constraints of the Bruen decision. Senate Bill 2 would create new standards for the issuance of concealed weapons permits and list a number of new places where carrying weapons would be prohibited, even by those having permits.” (Dan Walters, “When California Laws Go Too Far, the Courts Intervene,” column posted to CalMatters website, 5/2/2023)
  There is no question that the Bruen decision’s “text, history and tradition” standard has caused mass confusion for the states and courts: see “Supreme Court Ruling Creates Turmoil over Gun Laws in Lower Courts” by Alanna Durkin Richer and Lindsay Whitehurst, for The Associated Press (posted to the PBS NewsHour website, 2/18/2023).
  But it has also created new opportunities.
  “Under the Supreme Court’s new test, the government that wants to uphold a gun restriction must look back into history to show it is consistent with the country’s ‘historical tradition of firearm regulation.’” (A. D. Richer & L. Whitehurst, n. pag.)
  NEW  It just so happens that the Anglo-American historical tradition of firearm regulation is deeply rooted in gun laws serving “public interests like enhancing public safety” (the old test used by lower courts for evaluating challenges to firearm restrictions).
  See, for example, Maryland’s gun-control law enacted in 1658. And that same year, the Virginia state legislature was so concerned with preventing “a disturbance of the peace now made between the two nations” inhabiting the Virginia commonwealth that it reversed its policy dating to 1619 (the first gun law passed in Anglo-America) prohibiting settlers from selling or giving firearms and ammunition to indigenous Americans: “Whereas there is an act in force prohibiting the lending of gunns or ammunition to the Indians, by vertue of which many quarrells have arisen between English and Indians caringe [carrying] their owne gunns, which might, unles prevented, prove a disturbance of the peace now made between the two nations, It is enacted and ordained that it shall be lawfull for the Indians to make use of their owne gunns and amunition without the lett or molestation of any person or persons whatsoever within theire owne limitts.” (Act IV, passed by the Virginia “Grand Assembly held at James Cittie,” 7 March 1658–9)
  From first settlement in 1607, concerns for the public “peace and good order” and “the publick Liberty” drove Anglo-American law, including civil rights, which were limited to “such rights as will best maintain peace and good order, and most effectually secure happiness and liberty to the people of this state” (Proceedings of the Conventions of the Province of Maryland, Held at the City of Annapolis, in 1774, 1775, & 1776, 1836, 220).
  Since the ancient Greeks, an unregulated, armed multitude was deemed inimical to the public “peace and good order” and “the publick Liberty.”
  So there is less of a disjuncture here — between the latest (Bruen decision’s) postmodern “text, history and tradition” standard, and more traditional “public interests like enhancing public safety” — than many of us assume.
  Even more consequential, IMO, is that we apply the new Bruen test to the Second Amendment itself.
  Judged by an informed standard of “text, history and tradition” prior to the 20th century, it is obvious that the original Second Amendment has nothing to do with the multitude’s right to keep and bear arms. (As I have said many times, it concerned the ongoing struggle over the legal traditions of the royal prerogative, especially control of the armed forces, brought to a head in Britain and British America Carolorum — under the rule of Charles I and Charles II, 1625–1685 — and continuing well into the 18th century.)
  The Second Amendment provides no guidance whatsoever concerning the evolving rights and obligations of any “person or persons” to keep and bear arms.
  The sooner we all acknowledge & make peace with this inconvenient truth, the better.

NEW  Post-Bruen, the courts are producing so many anachronistic decisions upholding the multitude’s right to keep and bear arms that I (a devotee of festina lente, working in my usual slow haste ;-) can’t keep up with it all! Two recent decisions — again, grounded in erroneous assumptions about the kind of legal restrictions “our ancestors” would and would not have accepted — have grabbed my attention, and are worthy of comment in this space.
 
[ UPDATE 1 ]  The first concerns the February 2023 ruling by the U.S. Court of Appeals for the Fifth Circuit of Texas, Louisiana and Mississippi “that domestic abusers should be allowed to keep their guns,” despite the untenable situation we’re in whereby “Nearly three women a day are murdered by intimate male partners” (Katha Pollitt, “For Women’s History Month, Let’s Make History,” 316.7 [3–10 April 2023]: 12) For a summary, see the PBS NewsHour segment in which Amna Nawaz interviewed Chip Brownlee, “Court Ruling Allows People under Domestic Violence Restraining Orders to Possess Guns” (aired 2/9/2023).
  According to Nawaz, “It’s notable in their decision they made clear that the question wasn’t about whether keeping a gun away from someone who has a domestic violence restraining order is what they call a laudable goal.  ¶   They acknowledge it is, but they say they’re working under a new standard. That’s a standard that’s based on that Supreme Court decision in June [2022] known as the Bruen decision. What did that change?”
  Brownlee replies: “So, previously, in federal court cases, courts could weigh the benefits of a law against the constitutional questions around it.  ¶   So they could look at something and say, this law is designed to prevent gun violence, and it balances that with constitutional protections, and so it can be ruled OK. After Bruen last year, the Supreme Court essentially told lower federal courts that the only thing that they can take into account is history and tradition.  ¶   Basically, what they said is, if a law wasn’t around, around the time of the founding, around the colonial period, the early days of the U.S., then it can’t exist today. So they basically told the lower courts that they can’t consider these other things like public safety. [...] They had to look and see whether there were what’s called historical analogies back in the earlier history of America to support a law existing now.  ¶   And in the case of domestic violence, most states didn’t start criminalizing domestic violence until the 1900s. And in this specific case, this law, the law that we’re talking about, wasn’t around until the 1990s....” (n. pag.)
  This is only true if we adopt SCOTUS’s anachronistic view of “historical analogies.”
  To reiterate: the public peace & safety and “the publick Liberty” were driving concerns for all branches of government during the colonial & revolutionary periods. Then, as now, a range of laws were enacted criminalizing domestic violence (not just physical, but also verbal abuse), with the laudable goal of maintaining public “peace and good order” (“such rights as will best maintain peace and good order”, according to Maryland’s constitutional convention, meeting on 17 August 1776).
  A case in point: Maryland’s 1658 statute stipulating that the multitude (persons) can be disarmed if “such person be proved to beare armes to an Hostile intent.”
  Is this not a historical analogue for contemporary laws disarming hostile persons who have domestic violence restraining orders against them?
  Other Anglo-American laws from this period may not call out guns or domestic partners in modern terms, but that doesn’t mean that domestic violence wasn’t criminalized until the 1900s. Another historical analogue for modern laws disarming hostile persons who have domestic violence restraining orders against them: “If any person Slayeth another with Sword or Dagger who hath no weapon to defend himself; he shall be put to Death.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  Later, in 1682, “The Great Law or The Body of Laws, Of the Province of Pennsilvania & Territories thereunto belonging” stipulated that “violences, to the persons and estates of the inhabitants within this province” were “to be severely punished.” Longstanding prohibitions on duelling were enacted in The Law Against Challenging to Fight: “whosoever shall Challenge another person to fight, hee that Challengeth, and hee that accepteth the Challenge, shall for every such offence, pay five pounds, or suffer three month's imprisonment in the house of Correction, at hard Labour.” Duels usually involved weapons, but in general, “any person Convicted of an Assault or Battery, Committed by him on another person, hee shall be Reputed a Breaker of the peace, and shall be punisht according to the Nature and Circumstance of the fact.”
  Expansive laws such as this covered a wide range of violent acts, and it is anachronistic to assume that such violent persons who disrupt the “peace and good order” — in public & in private — can not be disarmed by the state. They certainly were in the past, as with the Virginia statute prohibiting a presumed hostile person from arming “himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence” (from An Act for Preventing Negroes Insurrections, enacted “at a Generall Assemblie” convened 8 June 1680 in Virginia, after suppressing Bacon’s Rebellion of 1676-77, in which black slaves were active participants).
  Indeed, our ancestors tolerated more expansive and punitive laws relating to “Actions of Assault or Battery Breach of the peace or the like” than anything proposed today. In the 17th century, smiting one’s parents (weaponless domestic violence) was a capital offence: “If any Child or Children, above sixteen years of age, and of Sufficient understanding, shall smite their Natural Father or Mother, unless thereunto provoked and forct for their selfe preservation from Death or Mayming, at the Complaint of the said Father and Mother, and not otherwise, they being Sufficient witnesses thereof, that Child or those Children so offending shall be put to Death.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  And domestic violence was not then limited to physical abuse (with or without weapons), but extended to “threatining & menacing speeches,” “foule words,” even “scornful” speech: “Assaults are made either by Blowes offering of hurtful blowes, or at leastby threatining & menacing speeches,” according to The Duke of Yorke’s Lawes.
  EDITED  In an era which too many of us assume would have disdained “woke” sensitivities, abusive speech of all kinds was criminalized. America’s first militia statute, enacted 5 March 1623–4 — shortly before the Virginia Company was dissolved, and Virginia became a royal colony (in May–June 1624) — included a section prohibiting speech that was merely critical of the status quo, as one of this country’s earliest representative assemblies mandated unquestioning obedience to Virginia’s government and sociopolitical hierarchy: “That no person within this colony upon the rumur of supposed change and alteration, presume to be disobedient to the present government, nor servants to their private officers, masters or overseers at their uttermost perills.”
  Later in the century, criticism of government officials was explicitly equated with assault: “To rebuke an Officer with foule words, so that he departs with fear without doing his Office shall be taken for an Assault.” (The Duke of Yorke’s Lawes, introduced 22 September 1676) “Assaulters and menacers of magistrates,” of “Master or Mistress,” and of authority figures in general (e.g., ministers, military officers) suffered various punishments (according to Pennsylvania’s The Law Against Menacing Magistrates, “hee shall be fined according to the nature of the fact, and be Committed to the house of Correction, at hard Labour, for one month after Conviction”). Even the speech of sullen teenagers, or other dependents, was considered an assault on their betters and routinely corrected with corporal punishment: “And if any Children or Servants become rude Stuborne or unruly refusing to hearken to the voice of their Parents or Masters the Constable and Overseers, (where no Justice of the Peace shall happen to dwell within ten miles of the said Town or Parish) have power upon the Complaint of their Parents or Masters call before them Such an Offender, and to Inflict such Corporall punishment as the merrit of their fact in their Judgment shall deserve, not excepting ten Stripes, provided that such Children and Servants be of Sixteen years of age.” (The Duke of Yorke’s Lawes, introduced 22 September 1676)
  Women’s disorderly speech (“scolding,” “gossip”) was also singled out and criminalized for disturbing the peace (especially when it incited a riot or insurrection, as occurred with Bacon’s Rebellion of 1676–77). Gags and ducking-stools (early-modern-style water-boarding) were prescribed punishments for female scolds. Thus, “babling women” who “slander and scandalize their neighbours [...] shallbe punished by ducking,” as was Joane Butler of Northampton County, Virginia (in 1634, she was “drawen over the Rings Creeke [Kings Creek] at the starne of a boate or Canoux”).
  Are we to discount this thick historical tradition of gun controls & speech restrictions — all enacted “for the better Preservation of the Peace” — simply because it doesn’t closely resemble contemporary laws?
  Our 18th-century founders didn’t. They believed, as did Charles II, that preventing “the great Disturbance of the Peace of His Royal Majesty’s Leige People [vassals] in this Colony” was of paramount importance, and they made keeping the public peace (domestic tranquility) a founding principle of U.S. constitutional government: “We, the people of the UNITED STATES, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, DO ordain and establish this CONSTITUTION for the United States of AMERICA.” (Preamble to The Constitution of the General Government [1789], as printed by William Kilty in 1799, “under the authority of the legislature” for the state of Maryland)
 
[ UPDATE 2 ]  My second example is U.S. District Court Judge Robert Payne’s May 2023 ruling that the law banning licensed federal firearms dealers from selling handguns to young adults under 21 violates the Second Amendment and is unconstitutional: see “Banning Gun Sales to Young American Adults under 21 Is Unconstitutional, Judge Rules” by Denise Lavoie, for The Associated Press (posted to AP’s website, 5/11/2023).
  SCOTUS’s Bruen decision virtually compels Judge Payne to find that “If the Court were to exclude 18-to-20-year-olds from the Second Amendment’s protection, it would impose limitations on the Second Amendment that do not exist with other constitutional guarantees.” — even though, historically, the Second Amendment is irrelevant here (the original text makes no guarantees of any kind to any person or persons, whatever their age).
  “Payne, who cited the 2022 Supreme Court [Bruen] ruling repeatedly in his ruling, wrote that the government failed to present ‘any evidence of age-based restrictions on the purchase or sale of firearms from the colonial era, Founding or Early Republic.’ The lack of similar regulations from those time periods indicates that the ‘Founders considered age-based regulations on the purchase of firearms to circumscribe the right to keep and bear arms confirmed by the Second Amendment,’ he wrote.” (Denise Lavoie, n. pag.)
  EDITED  As a historian, I find such pre-determined chains of if-then logic inappropriate for interpreting such complicated cultural phenomena as English common law, as it was adaptated to colonial circumstances as various as the city of Philadelphia in 1682 vs. the mid-sized family farms of West New Jersey in 1676 vs. the frontier settlements in Spotsylvania and Brunswick counties (Virginia) in 1720, where special units of “Rangers” were exempted from state-regulated militia duty, and subject to different gun laws than the Virginia multitude (as were “Tributary Indians” such as the Pamunkey and Chickahominy who, as “her Majesty’s Subjects,” according to the 6th revisal of Virginia laws in 1705, shared an Englishman’s “Liberties and Privileges” when it came to persons and property).
  There are all sorts of reasons why “similar [...] age-based regulations on the purchase of firearms” were not enacted during “the colonial era, Founding or Early Republic,” so a lack thereof proves nothing about “the country’s ‘historical tradition of firearm regulation’” — let alone whether the Gun Control Act of 1968, and the associated regulations from the Bureau of Alcohol, Tobacco, Firearms and Explosives, are consistent with this historical tradition.
  Surely, the spirit of a law (original intent) matters as much as the letter of the law when we’re trying to interpret legal texts. And when we judge gun laws according to textual ends, not just means, we find noticeable consistency across the centuries. Enacting gun controls that serve “public interests, like enhancing public safety” — with the end-goal of preserving the public peace (“such rights as will best maintain peace and good order”, to again quote Maryland’s constitutional convention, meeting on 17 August 1776) — is perfectly in keeping with “the country’s ‘historical tradition of firearm regulation.’”
  As we have seen, laws regulating the violent behavior (both physical and verbal) of young adults, aged 16 and older, date to the 1670s in Anglo-America, after James, duke of York, acquired New Netherland in 1664 (finalized with the Anglo-Dutch treaty of Westminster in 1674), and “the duke’s laws” were introduced to the proprietary colony of New York. When James became king in 1685, the proprietary colony of New York was transformed into a vast crown colony (the dominion of New England), extending over the whole area from Maine to the Delaware River. James’s crown colony of New England incorporated the colonies of Massachusetts, Connecticut, New Hampshire, and Rhode Island (1686), and then New York and New Jersey (1688). Even when New York was a proprietary colony under the duke, James ruled his proprietorship as an absolute monarch. The dominion of New England thus acquired many of the characteristics of absolutism which Charles II and James II established in old England. E.g., there was a standing army, censorship of the press, and arbitrary imprisonment.
  In the province of West New Jersey, with its liberal framework of government embodying “concepts and ideals that must by any test be regarded as an integral part of the American heritage” (J. E. Pomfret, The Province of West New Jersey, 1609–1702, 93), the large freedoms and guarantees of individual liberty for which West Jersey was famed (e.g., liberty of conscience, trial by jury with full recognition that the jury were judges of fact and law) deviated from “the country’s ‘historical tradition of firearm regulation’” established by “the duke’s laws.”
  Even in this bastion of individual liberty, the body of West Jersey law intended “That Men may peaceably and quietly enjoy their Estates.” But West Jersey’s approach to managing domestic violence was situational, allowing persons convicted of assault to be punished according to the nature of the offense as determined by the jury: “If any person or persons, shall willfully beat, hurt, wound, assault, or otherways abuse the person or persons of any man, woman, or child, they are to be punished according to the nature of the offence, which is to be determined by twelve men of the neighbourhood, appointed by the commissioners.” (“The Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New Jersey, in America,” 3 March 1676–7)
  Because this fundamental West Jersey law does not mention a violent offender’s age, or focus on “the purchase of firearms,” are we to ignore the “conspicuous importance” (Pomfret, 95) of the West Jersey Concessions and Agreements in “the country’s ‘historical tradition of firearm regulation’”?
  NEW  Is it not also relevant that age-based restrictions on the provisioning of firearms were in place throughout the colonial era? Multiple statutes gave to “the colonel or chief officer of the militia of every county” “full power and authority to list all male persons whatsoever, from sixteen to sixty years of age within his respective county, to serve in horse or foot, as in his discretion he shall see cause and think reasonable,” with “musket or ffuzee, the sword, cartouch box and ammunition of every ffoot soldier, and the horse, saddle and furniture, the carbine, pistolls, sword, cartouch box and ammunition of every trooper provided and kept in pursuance of this act” — that is, all arms which were required “to appear and exercise withall” in a well-regulated militia — exempted “from being seized or taken by any manner of distress, attachment, or writt of execution,” “to the end the militia of this her majesty’s colony and dominion, being settled and armed as aforesaid, may be the better fitted for service.” (An Act for Settling the Militia, enacted at a General Assembly in Virginia, convened 23 October 1705) Do we dismiss the all-important militia laws “from the colonial era, Founding or Early Republic” simply because they do not include anachronistic language (“the purchase or sale” of firearms) appropriate to a hyper-individualistic consumer society which did not exist in the 17th–18th centuries?
  EDITED  And is it not also relevant that, at the same time laws throughout British America reinforced the state’s right to arm and disarm the multitude, 17th- and 18th-century Virginia law took away the right to vote from those under the age of 21? (This abridgement of youth suffrage in 1699 was also reenacted in the 6th revisal of Virginia laws in 1705.)
  “In his 71-page ruling, Payne wrote that many of the rights and responsibilities of citizenship are granted at the age of 18, including the right to vote, enlist in the military without parental permission and serve on a federal jury.  ¶   ‘If the Court were to exclude 18-to-20-year-olds from the Second Amendment’s protection, it would impose limitations on the Second Amendment that do not exist with other constitutional guarantees,’ Payne wrote.” (Denise Lavoie, n. pag.)
  In a follow-up AP article about this case, it is reported that “Some judges have expressed frustration with the Bruen test and questioned whether judges are suited to be analyzing history. In his decision, Payne used a footnote to lament what he sees as the challenges with the test, saying ‘this court is staffed by lawyers who are neither trained nor experienced in making the nuanced historical analyses called for by Bruen.’  ¶   ‘There is a reason that historians attend years of demanding schooling and that their scholarship undergoes a rigorous peer-review process before publication,’ he wrote.” (“What to Know About Judge’s Ruling on Age Limit for Young Gun Buyers” by Alanna Durkin Richer and Denise Lavoie)
  So, even experienced jurists think that SCOTUS’s misguided Bruen decision is setting up the courts to fail.
  This is a far cry from the vision of justice established by the founders in the preamble to the constitution.
  IMO, it is Bruen’s corruption of “the country’s ‘historical tradition of firearm regulation’” that is unconstitutional, not modern gun violence prevention efforts that raise the minimum age for purchasing firearms, based on “scientific literature that shows the brain continues to develop in the early 20s and that 18- to 20-year-olds are more impulsive than older adults.”
  For more, see the PBS NewsHour Weekend segment, “As States Grapple with Age Limits for Buying Guns, What’s the Potential Effect?” (aired 5/13/2023).

NEW  I am growing increasingly frustrated every time I read about another post-Bruen court decision asserting that this-or-that contemporary law “is inconsistent with the Nation’s historical tradition of firearm regulation.” Case in point: “Could Hunter Biden Be the Next Poster Child for Second Amendment Rights?: The president’s son is under investigation for potentially breaking the law banning drug users from owning guns – but the law’s constitutionality faces growing challenges” by Betsy Woodruff Swan (POLITICO, 6/1/2023).
  From which: “The Gun Control Act of 1968 prohibits unlawful drug users from possessing firearms. The Bureau of Alcohol, Tobacco and Firearms says this ban applies to people who have admitted to using illegal drugs in the 12 months before buying a gun. Violators can receive up to 15 years in prison. [...] Just a week after Bruen was released, a federal district judge in Utah ruled that the prohibition on drug users owning guns was unconstitutional because of its vagueness. Judge Jill Parrish noted that the statute itself doesn’t define the word ‘user’ and also doesn’t say how the timing of people’s drug use affects their right to own guns. Parrish’s ruling — which the government has appealed — was based on the Fifth Amendment, not the Second, so it did not cite the Supreme Court’s Bruen decision. But Bruen only strengthens challenges to the drug-user prohibition.  ¶   Just ask Judge Patrick Wyrick, a district judge in Oklahoma who ruled in February that the government could not use the statute to prosecute a defendant who was caught with a gun and had marijuana in his car. In an opinion that relied heavily on Bruen, Wyrick wrote that barring marijuana users from possessing guns ‘is inconsistent with the Nation’s historical tradition of firearm regulation.’ He rejected the government’s attempts to defend the statute’s constitutionality, including the government’s citations to 19th century laws that restricted people from using firearms while drunk.” (Betsy Woodruff Swan, n. pag.)
  Laws restricting the multitude from shooting while drinking date to 17th-century America, and if shooting while using recreational drugs had been a problem back then, there would have been laws about this, too (anything which disturbed the “public peace and happiness” drew a government response).
  So I would challenge all justices, including Judge Wyrick, to define what exactly they mean by “the Nation’s historical tradition of firearm regulation.”
  As this unfinished Web page (with its 10 appendices) evidences, I can give you this country’s first gun statute ... and this country’s first militia statute ... and I can describe how these and other 17th-century statutes, ordinances & regulations evolved into the Second Amendment ... but I can not reduce the situational multiplicity of gun and militia laws across the first two centuries of Anglo-America’s founding to some pat “historical tradition of firearm regulation.”
  And I do not believe anyone else can, either.
  So I would propose that we stop equating SCOTUS’s anachronistic refashioning of gun rights with “the Nation’s historical tradition of firearm regulation.” The two are not the same.
  Indeed, it is the newfangled constitutional right of the multitude to bear arms that “is inconsistent with the Nation’s historical tradition of firearm regulation,” as I have reconstructed it here.
  Judge Wyrick, and others of his school, clearly have in mind a different “historical tradition of firearm regulation” than what I have documented here — one that has been cherry-picked for a special form of textual nit-picking (another Anglo-American tradition for which scholars like me and 17th-century Jesuits have long been excoriated ;-).
  Being a historian, not a lawyer, I am not qualified to engage in legalistic wrangling over firearm regulation (e.g., “up to 15 years in prison” seems to me a disproportionate and excessive punishment, by any standard; I have no idea how the Fifth Amendment applies to this case, but I expect I would find the legal arguments interesting; and I have personal experience in small claims court with how judges arbitrarily twist the vague concept of “use” — and “benefit” — for their own ends, but no clue how regular folk can protect ourselves against this).
  That said, in a constitutional republic such as ours, it’s only fair — and just — that a judge’s idiosyncratic definition of “the Nation’s historical tradition of firearm regulation” be clearly spelled out for all who are forced to comply with it.
  EDITED  Those of us who march to the beat of a different constitutional drummer — encapsulated in our nation’s historical commitment to “ensure domestic tranquillity” (Preamble, U.S. Constitution) and promote “good government and the public peace and happiness” (Maryland’s constitutional convention, meeting 27 August 1776) — are at a historic disadvantage, otherwise.

NEW  A related note on the early-modern public meaning of the legal phrases “person or persons” and “Persons, whether Free, or Servants” (aka the multitude), used in historical firearms legislation:
  Those who believe that “personhood begins at conception” have been emboldened by the fall of Roe v. Wade in 2022 to push for “personhood” laws, giving legal rights to unborn children.
  The legal fiction of fetal personhood does indeed date to 17th-century Anglo-America, to which English common law protecting the fetus’s private property rights applied: as such, the fetus was supposed “in law to be born for many purposes,” primarily so that “It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born.” (William Blackstone, Commentaries on the Laws of England, 4 vols., 3rd edn., 1768, 1.130) Nonetheless, this kind of legalistic supposition maintains the distinction between a fetus (potential child) and an “actually born” child.
  Indeed, through at least the 18th century, the fetus — corporeal, but irrational and not yet individuated — was by definition not a “person,” which “Word came at length to import the Mind, as being a Thing of the greatest Regard and Dignity among human Matters”: “PERSON, an individual Substance, of a rational or intelligent Nature.” (Ephraim Chambers, Cyclopaedia, 2 vols., 1728, s.v. Person, 2.793)
  “Person is defin’d an individual, reasonable, or intellectual Substance; or, an intellectual and incommunicable Substance.” (E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Trinity, 2.251)
  Of note, Chambers’ Cyclopaedia was widely read in the Americas, including by the influential jurist William Kilty, who cites it in his A Report of All Such English Statutes as Existed at the Time of the First Emigration of the People of Maryland ... (Annapolis, 1811).
  Also of note: mere personhood was never any guarantee of civil rights. See, for example, Virginia’s 1699 and 1705 statutes disenfranchising women (still regarded as femmes covert), Roman Catholic recusants, and “infants” (minors under 21 years of age).

+

NEW  I just (6/24/2023) learned from Robin Marty that “Alabama was the first state to ban abortion with no exceptions. It is the only state that has put ‘personhood’ — the idea that a fertilized egg has all the legal rights of a living, breathing, physically independent child — into its constitution.” (see “‘I Underestimated the Depth of Outrage’: A Year in Post-Roe America: Thinkers from across the political spectrum reckon with the dramatic and unpredictable ways the country has already changed since the historic Supreme Court decision”; posted to POLITICO website, 6/23/2023, n. pag.)
  I suppose you can put whatever you want into your state constitution, including a newfangled corruption of the millennia-old legal concept of person (since the Greeks, “an individual, reasonable, or intellectual Substance”). But such an establishmentarian push does, to my mind, violate the First Amendment, and makes a mockery of Anglo-America’s common law traditions.
  In his encyclopedia article on the embryo, Ephraim Chambers cites the French research scientist Denis Dodart (1634–1707), who described a human embryo at 21 days of age as resembling “the Maggot of a Silk-Worm” (E. Chambers, Cyclopaedia, 2 vols., 1728, s.v. Embryo, 1.298).
  A member of the prestigious French Academy of Sciences, whose works were well-known in England and America — see, for example, Robert Hooke’s review of the 2nd edn. of Dodart’s Mémoires pour servir á l’Histoire des Plantes for his scientific journal, Philosophical Collections, in 1679 — Dodart’s unflattering view of the unborn human offspring during its early stages of development was very much in the mainstream.
  How surprised, then, would Enlightenment researchers be — exploring the life sciences during the golden age of taxonomy — to learn that, come the 21st century, Alabama politicians would upend Western science’s elaborate classification schemes, so as to extend personhood to a maggot-like human organism!

NOTA BENE  For all you libertarians out there who believe in the Machiavellian theory of arms as essential to liberty (“Machiavelli’s military populism”), a brilliant historical study of the ideal of warrior citizenship — including its influence on the framing of U.S. constitutional governments — has been reissued by Princeton University Press: see The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, by J. G. A. Pocock (1st edn., 1975; new edn., introd. by Richard Whatmore, 2016).
  The book can be tough going in places, but I recommend that you persevere.
  After all, parsing “the differences between ‘republican’ and ‘liberal,’ ‘ancient’ and ‘modern,’ concepts of ‘liberty’; and [...] the tensions between them” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555) is in itself a complicated endeavor. Even a scholar of Pocock’s caliber can not turn such difficult discourse into light, summer reading. Refusing to “dumb it down,” Pocock’s scholarship does justice to the citizen warrior’s rich history and tradition, without being postmodernist (jargon-ridden), or condescending.
  IMO, Pocock provides a much more substantive foundation for contemporary republican arguments — impacting law, government, and culture — that the armed citizen is the only truly free man (and the bedrock of a balanced republic) than anything postmodern activist jurists (like San Diego’s Judge Roger T. Benitez) are trying to graft on to the Second Amendment.
  As Pocock points out, the debate over “the rise and fall of armed and active citizenship” is “ongoing and without a final outcome.” (J. G. A. Pocock, The Machiavellian Moment, new edn., 2016, 555)
  Maintaining (and even more ambitiously, advancing) what the 18th-century physician and encyclopedist, Dennis de Coetlogon, called “the publick Liberty” (De Coetlogon, An Universal History of Arts and Sciences, 2 vols., 1745, 2.42) is not now, and never has been, reducible to the Second Amendment, even if we manage to completely twist the clause’s meaning, such that it guarantees “an individual right to keep and bear arms for self-defense” (SCOTUS’s 6/23/2022 New York State Rifle & Pistol Assn., Inc. v. Bruen opinion, p. 2) which would have been inconceivable to our founding fathers & mothers.
  As such, those wishing to make the case for a refashioned commonwealth of armed proprietors will need more substantive grounds on which to build than a postmodern corruption of the Second Amendment.
  I would suggest that Pocock’s provocative scholarship outlines exactly the type of persuasive argument you’ll need in developing a post-Second Amendment rhetoric suitable to a 21st-century republic.
 
                   *  *  *
 
That said, it’s worth noting that scholars are moving Pocock’s seminal work in new directions which, I would argue, encourage contemporary citizens to rethink received wisdom concerning modern republicanism. Here I would recommend the work of Vickie B. Sullivan, especially Machiavelli, Hobbes, and the Formation of a Liberal Republicanism in England (Cambridge University Press, 2004).
  “Certain writers of the seventeenth and early eighteenth centuries, whom scholars often associate with classical republicanism, were not, in fact, hostile to liberalism. Indeed, these thinkers contributed to a synthesis of liberalism and modern republicanism. As this book argues, Marchamont Nedham, James Harrington, Henry Neville, Algernon Sidney, and John Trenchard and Thomas Gordon, the coauthors of a series of editorials entitled Cato’s Letters, provide a synthesis that responds to the demands of both republicans and liberals by offering a politically engaged citizenry as well as the protection of individual rights. The book also reinterprets the writings of Machiavelli and Hobbes to show that each contributed in a fundamental way to the formation of this liberal republicanism.” (Publisher’s blurb inside book cover)

Re. the mushrooming movement for gun control “policies ‘rooted in science and public health, not guesswork’”: “Bonta Off to Fast Start in State AG’s Office” (San Diego Union-Tribune editorial, 4/30/2021, p. B4), retitled “Sharing Gun Data Will Help Shape Better Laws and Make State Safer” for online posting.

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“Study Shows Majority of Gun Owners Support Specific Gun Safety Policies: ‘This is not as partisan an issue as it’s perceived, and this is not as controversial an issue as it is perceived,’ said Michael Siegel, who led the research” by Madison Fernandez (posted to POLITICO’s website, 10/19/2022).
  This study of gun owners is evidence that “voter attitudes about gun policy aren’t as divided as they seem.” (Madison Fernandez, n. pag.)
  “Red flag laws, universal background checks, required permits for the purchase or possession of a gun and violent misdemeanor laws are among those that win support from gun owners, according to the polling. Altogether, those policies have the potential to reduce firearm homicide rates by as much as 28 percent, the study says. Additionally, when specific provisions are included in gun laws, support from gun owners increases. Respondents also said they don’t believe there’s an ‘inherent conflict between the constitutional protection of gun rights and new laws designed to keep guns out of the hands of people who are at high risk for violence.’
  “A law prohibiting gun possession by those convicted of a domestic violence crime has the highest support among gun owners (78 percent). Republican gun owners support that measure at the same level. Republican respondents also supported prohibiting gun possession by people subject to a domestic violence restraining order (75 percent) and requiring background checks for concealed carry permits (71 percent).
  “But only one-third of gun owners support a ban on assault weapons. That support is even lower among Republican gun owners: 16 percent. Sixteen percent of Republican gun owners support a ban on high-capacity ammunition magazines, while 29 percent of gun owners overall said they support such a measure.
  “Siegel said this research should signal to lawmakers that ‘you don’t have to go back to your state and pass 20 different laws and try to regulate every single aspect of firearms, you just have to go back and pass a few laws that fulfill the principles that both gun owners and non-gun owners have.’” (Madison Fernandez, n. pag.)

NEW  This Web page leans into puncturing myths about America’s “historical tradition of firearm regulation” which are so well-established in popular culture that an ideological postmodern SCOTUS has written them into constitutional law.
  But the myth-making around gun violence doesn’t stop here. New myths — mostly pushed by the gun industry, conservative media, and partisan politicians, and amplified by social media — are gaining ground, and require fact-checking by others more qualified than I.
  In the myth-busting spirit, I’m happy to draw attention to a fascinating recent addition to this genre: “Gun Violence Is Actually Worse in Red States. It’s Not Even Close: America’s regions are poles apart when it comes to gun deaths and the cultural and ideological forces that drive them” by Colin Woodard (POLITICO, 4/23/2023).
  Woodard’s title pretty much sums up his study and findings.
  But I want also to highlight his conclusion from all this: “Building coalitions for gun reform at both the state and federal level would benefit from regionally tailored messaging that acknowledged traditions and attitudes around guns and the appropriate use of deadly violence are much deeper than mere party allegiance.” (Colin Woodard, n. pag.)
  When confronting such divisive identity topics (our American heritage & civil rights), we really do need to get beyond partisan either-or positioning, to a recognition of the heterogeneity masked by most of our cherished cultural traditions.
  Elsewhere on this page, I have tried to show that diversity has always been with us, even when it hasn’t looked like it on the surface.
  Pluralism is daunting at the best of times, especially for democracies, but the opportunities for forging innovative and lasting both/and alliances are unmatched.
  And while we’re on the subject of finding “new ways to connect and highlight commonalities rather than differences,” I have another recommendation to make: “The Expiration of Title 42 Is a Reality Check: Immigration reform is dead. Time to start over” by Justin Gest (POLITICO, 5/12/2023).
  Gest’s call for more critical pluralism when we need to make policy concerning emotion-driven topics (like the right to keep and bear arms) suggests the sort of practical wisdom we will need if we are to make real headway on gun reform.
  Rich Lowry makes a related point in his op-ed, “Obama Is Wrong About the Media: America is divided because of conflicts over principles, not facts” (POLITICO, 5/16/2023), in which he defends “our diverse, clamorous media environment.”
  According to Lowry, former President Obama “uses gun control as example of an issue where if we had a similar factual framework, we might have a better debate. He cites higher levels of U.S. gun violence than other countries as a predicate we should all accept, but that fact isn’t really in dispute.  ¶   His use of guns as an example of the lack of common information is telling, although not in the way he intends. He gives zero indication of any awareness of how advocates of gun control often believe in and propagate myths about guns, in fact they often have no idea what they’re talking about on elemental matters.  ¶   They tend to believe that AR-15s are more powerful than other rifles, when the opposite is the case, and think they fire more rapidly than handguns when they don’t. These advocates show no awareness that rifles of all types account for only a tiny proportion of gun violence. They inveigh against the ‘gun show loophole,’ when people buying guns at gun shows have to pass background checks. They rue that people can buy guns on the internet without background checks, when this also isn’t the case. And so on.  ¶   If every media outlet in the country stuck to what gun-control activists consider the truth, and there was no conservative media and specialized gun publications, Twitter accounts, and substacks to push back, the public would be enormously ill-served. As is, most major media outlets partake of these misconceptions, or don’t push back against them.  ¶   If groupthink is still a problem today, imagine how bad it once was, and how powerful it would be if we had less media rather than more. This gets to the crux of the matter.  ¶   We should realize that a relatively small set of people inevitably won’t have the knowledge and judgment to get all or even most of the big questions right, and it’s better to have everything litigated and argued about in a chaotic and permeable media ecosystem with all sorts of different formats and voices.” (n. pag.)

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NEW  And another call for crafting “a fusion politics” able to deliver real (not just rhetorical) populist reforms: “America’s Poverty Is Built by Design: How did the U.S. become a land of economic extremes with the rich getting richer while the working poor grind it out? Deliberately” by Sheryll Cashin (POLITICO, 5/21/2023).
  Cashin’s focus here is on dismantling the systems “rigged to favor people who are already advantaged,” but her concluding example of a new-style movement of engaged citizens is one that has coalesced in response to the scourge of gun violence in our communities: “In the final months of his life, Dr. King envisioned a national Poor People’s Campaign that intentionally built a multiracial coalition to demand an economic bill of rights. In the 2010s, Reverend William Barber II successfully led the Moral Mondays movement in North Carolina and recently revived a Poor People’s Campaign that brings conservative poor whites into the movement for economic fairness. The North Carolina movement paid off in 2023 expansions to Medicaid in the state, for example. They are a sign of hope in a nation riven by division, racism and hate. I see traction for a bold politics that joins the aspirations of all economically oppressed people, similar to the exciting rhetoric and moral claims of the new-South ‘Justins’ who are building multiracial power in Tennessee by speaking to a rainbow of humans seeking freedom from gun violence and oppression of all kinds.” (n. pag.)

N O T E

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