Principle #4 from the Enacting Clause (Preamble) of the United States Constitution
Full Episode Transcript
In the Majority Supreme Court Opinion on New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote “. . . when it comes to interpreting the Constitution, not all history is created equal. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”
Justice Breyer, in his Dissenting Opinion, recalled points he raised earlier in the Heller case wherein he proposed weighing “the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.”
Breyer wrote:
The tradition of regulations restricting public carriage of firearms, inherited from England and adopted by the Colonies, continued into the founding era. Virginia, for example, enacted a law in 1786 that, like the Statute of Northampton, prohibited any person from “go[ing] nor rid[ing] armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.”
Public-carry restrictions proliferated after the Second Amendment’s ratification. Just one year later North Carolina enacted a law with language lifted from the Statute of Northampton. And, other States passed similar laws in the late 18th and 19th centuries.
Thomas had opined that the Statute of Northampton “has little bearing on the Second Amendment,” in part because it was “enacted . . . more than 450 years before the ratification of the Constitution.” Breyer highlighted the fact that the statute remained in force for hundreds of years, well into the 18th century. It included this: “The 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; . . ”
With respect to the Court’s inclination towards selective amplification, filtration and contextualization, Breyer warned of a one way ratchet and preordained conclusions. He asked: “ . . . will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?” He also wrote:
In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here.
Justice Breyer warned that such thinking would make it nearly impossible to sustain common-sense regulations necessary for our nation’s safety and security. Indeed, the Court has become the great enabler and facilitator of murder and mayhem.