Bruen, Historical Understanding, And Self Defense

BY Herschel Smith
1 year, 11 months ago

Sent from reader Fred, this lawyer does a fine job of explaining some overlooked aspects of the Bruen decision.

In the case of New York State Rifle and Pistol Association v. Bruen, the Court ruled that law-abiding citizens have the right to carry firearms outside the home for self-defense. The Supreme Court explicitly affirmed that the Second Amendment protects twin rights: “to keep and bear arms,” with “keep” meaning to own or possess and “bear” meaning to carry outside the home.

But here’s the crucial part of the Bruen ruling that has escaped notice. Writing for the majority, Justice Clarence Thomas emphasizes that the proper test of constitutionality—which the Supreme Court established in District of Columbia v. Heller (2008)—“requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

Simply put, first you need to see what the text of the Second Amendment does (and does not) mention, and then you must look at what firearm regulations were in place at the time of the American Founding. Justice Thomas gives an example: “[W]hen a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.”

The Founders knew all about mass killings which were part of the American experience dating back to the Jamestown colony. On March 22, 1622, Native tribes of the Powhatan Confederacy killed 347 English settlers—men, women, and children. Indian raids represented a serious threat for more than two centuries after the Jamestown Massacre. Two mass killings occurred in 1755 alone. In July, Shawnee Indians attacked Draper’s Meadow, a Virginia settlement. They killed at least five people, including an infant. Then, in October, the Lenape raided a settlement along Penn’s Creek in Pennsylvania, killing fourteen.

In 1774, Mingos and Shawnees launched a series of raids on Virginia settlements. Thousands of settlers were forced to flee. In a letter dated July 1, 1774, James Madison concluded that the attacking Indians were “determined in the extirpation of the inhabitants.”

Likewise, John Adams declared the need for armed self-defense. The next year, Adams described how “hardy, robust” people throughout the colonies had become “habituated” to carrying “their fuzees or rifles upon one shoulder to defend themselves against the Indians.”

Nor did Indian raids present the only danger. During the Revolutionary War, New Jersey’s Pine Barrens offered a haven for robbers, who would plunder, burn, and murder. One historical account explains, “The inhabitants, in constant terror, were obliged for safety to carry their muskets with them into the fields, and even to the house of worship.”

The Founders enshrined the right of the people to keep and bear arms in part because they knew of this history of mass killings. As the testimonies of Madison and Adams illustrate, the Founders recognized the importance of firearms to self-defense.

I’ve always claimed that if the founders wanted to word the 2A differently, they could have.  If they had wanted to repeal it, they could have.  If they had wanted to refrain from toting weapons around themselves (which they did all the time), they could have.

They didn’t, not on any account.

The second amendment is about self defense.  Some will claim that it’s about ameliorating tyranny.  Those folks are thinking small in my opinion.

Yes, it is, but the amelioration of tyranny is a subset of self defense.  Self defense is about defending the person, family, neighborhood and community against individual attackers, gangs, or the state if tyrants want to rule you.

It isn’t either-or.  It’s both-and.


Comments

  1. On July 27, 2022 at 4:57 am, Joe Blow said:

    Ya know, thats a good point.
    Its a bit nuanced, but then thats what also leads me to hold the words “shall not be infringed” as such a binary concept.
    I think part of the purpose of anti-gun arguments is simply to poke, pry, and chip away at anything that comes loose. By framing the debate as ‘either-or’ as the left does, vs. arguing it in the inclusive ‘both-and’ it fragments the underlying truth about that clause in the constitution. Sacrosanct.

  2. On July 27, 2022 at 11:50 am, Fred said:

    Also, classically trained in liberal education, the men of that era considered tyranny to be a crime against God and men. So self defense against all ranges of crime was and is indeed the purpose of documenting the 2A. After all killing is wrong.

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This article is filed under the category(s) Second Amendment and was published July 26th, 2022 by Herschel Smith.

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