Private: With Friends Like These? Gun Rights Advocates Game the Amicus Brief System

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

It is hardly surprising to find amicus briefs by both gun rights groups and gun violence prevention groups in a major gun related case such as Wrenn v. District of Columbia. The issue in Wrenn, the scope of the right to travel armed in public, is one of the hottest being litigated since the Supreme Court decided District of Columbia v. Heller, its controversial five-to-four gun rights decision. If the broad amicus interest in the case is to be expected, there is at least one surprising—and sneaky—aspect of the strategy pursued by one of the amici: the National Rifle Association. In Wrenn, the NRA has essentially taken an end-run around the word limits on amicus briefs by submitting two briefs—one under its own name and another by a group of gun rights advocates with close ties to the NRA, which the NRA represents as a scholarly brief by historians. Even more troubling is the attempt by one of the latter brief’s signers, David Kopel, a long time gun rights and libertarian activist to trumpet their brief on The Volokh Conspiracy, a widely read libertarian law blog that is now hosted by The Washington Post.

The NRA “historians'” brief was submitted on behalf of a gun-rights foundation in California and five individuals, only two of whom have PhD’s in history or a related discipline. One of those, Joyce Lee Malcolm, holds an NRA-funded chair at George Mason law school. It is the only chair I can think of which seems to carry an ideological litmus test for its holder. The other full time scholar on the brief, Robert Cottrol, is one of the trustees of the NRA’s Civil Rights Defense Fund.

The mere fact that one takes funding from a source with a particular ideological or policy agenda does not, of course, necessarily discredit the actual research produced with those funds.  That must ultimately be judged on its own merits. (Full disclosure:  About a decade ago I received a grant from a foundation interested in gun control, although my research challenged the prevailing  collective rights theory of the Second Amendment then supported by the foundation.) And none of this would matter in the end if the facts presented in the NRA historians' brief were accurate and the arguments it made historically plausible. Unfortunately, neither of these turns out to be the case.

Consider their claim about the meaning of the Statute of Northampton—a centuries-old English statute that broadly restricted carrying guns in public—which was central to  a noteworthy 17th century English prosecution, “Sir John Knight’s Case” (1686). According to the NRA historians’ brief, the holding in that case established that the public-carry-restricting statute applied only to “people who go armed to terrify the King’s subjects.” In fact, any serious historian would cringe at such a mischaracterization. As Blackstone noted a century after “Sir John Knight’s Case,” “[t]he offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton.” This case was decided during the intense religious conflict that preceded England’s Glorious Revolution. Sir John Knight was a militant Protestant who broke up a Catholic religious service. A sympathetic Protestant jury who shared his militant anti-Catholic views acquitted Sir John. Despite the jury’s nullification of the charge, an action that tied the court’s hands, Sir John was still subject to a peace bond. Of course, given that Sir John was an aristocrat, he was arguably entitled to travel armed under the statute’s recognized exception that exempted noblemen from the public carry prohibition. If there was the broad right for anyone to travel armed—as the NRA scholars maintain—it makes little sense that virtually every notable commentator would have emphasized the narrower exception for aristocrats. To be sure, a broader conception of such a right did eventually emerge in the South, but these developments post-dated the adoption of the Second Amendment. The NRA historians confuse the fact that Americans owned firearms and used them for many lawful purposes, some of which required carrying them in public, with the existence a broad constitutional right to carry pistols and other concealable weapons for self-defense  in populous areas.

Sadly, the NRA scholars’ brief shows that even historians fall victim to the curse of law office history. The brief correctly notes that several colonies passed laws requiring armed travel to church in the 17th century. Virginia’s law stated the obligation this way: “ALL men that are fittinge to beare armes, shall bringe their peices to the church uppon payne of every effence.” What the brief does not mention is that the same legislative body also mandated “NOE man shall goe to worke in the grounds without theire armes, and a centinell uppon them.” Moreover, individuals were also prohibited from wasting “powder unnecessarily” for “enterteynments.” Rather than demonstrate a broad individual right to use guns for any reason on any occasion, in any place whatsoever, the laws the NRA scholars cite demonstrate that during Virginia’s early history the state intruded into people’s lives in unprecedented ways to deal with the dangers posed by living in a frontier society in a near constant state of warfare with their Indian neighbors.

The NRA scholars wonder why there were no bans on concealed weapons during the colonial and revolutionary era. Once again, such a question betrays the distortions wrought by law office history. Rhode Island’s gun census compiled in the 1750s affords one answer to that question. Ninety percent of the firearms owned in Rhode Island were long guns; concealable pistols constituted a tiny fraction of the stock of weapons owned by Americans in the 18th century. The enactment of laws against concealed weapons happened only after hand guns became cheap, plentiful and more accurate—something that did not occur until decades after the American Revolution.

History is all about context. It is hard to take seriously the claims of a so-called “historians” brief that seems to get so many historical facts wrong and seems to have such a thin conception of context. One can only hope that federal judges can see through this effort to game the amicus brief system and recognize the NRA historians' brief for what it really is: another gun rights ideological manifesto championing a modern libertarian vision of the Second Amendment.