Bruen Dissent and Gun Control (Part 35)

by | Dec 17, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Supreme Court - Gun RightsJustice Breyer continued: Start with Sir John Knight’s Case, which, according to the Court, considered Knight’s arrest for walking “‘about the streets’” and into a church “‘armed with guns.’” Ante, at 34 (quoting Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep., at 76). The Court thinks that Knight’s acquittal by a jury demonstrates that the Statute of Northampton only prohibited public carriage of firearms with an intent to terrify. Ante, at 34–35. But by now the legal significance of Knight’s acquittal is impossible to reconstruct. Brief for Patrick J. Charles as Amicus Curiae 23, n. 9.

The primary source describing the case (the English Reports) was notoriously incomplete at the time Sir John Knight’s Case was decided. Id., at 24–25. And the facts that historians can reconstruct do not uniformly support the Court’s interpretation. The King’s Bench required Knight to pay a surety to guarantee his future good behavior, so it may be more accurate to think of the case as having ended in “a conditional pardon” than acquittal. Young, 992 F. 3d, at 791; see also Rex v. Sir John Knight, 1 Comb. 40, 90 Eng. Rep. 331 (K. B. 1686). And, notably, it appears that Knight based his defense on his loyalty to the Crown, not a lack of intent to terrify. 3 The Entring Book of Roger Morrice 1677–1691: The Reign of James II, 1685–1687, pp. 307–308 (T. Harris ed. 2007). Similarly, the passage from the Hawkins treatise on which the Court relies states that the Statute of Northampton’s prohibition on the public carriage of weapons did not apply to the “wearing of Arms . . . unless it be accompanied with such Circumstances as are apt to terrify the People.” Hawkins 136. But Hawkins goes on to enumerate relatively narrow circumstances where this exception applied: when “Persons of Quality . . . wea[r] common Weapons, or have their usual Number of Attendants with them, for their Ornament or Defence, in such Places, and upon such Occasions, in which it is the common Fashion to make use of them,” or to persons merely wearing “privy Coats of Mail.” Ibid. It would make little sense if a narrow exception for nobility, see Oxford English Dictionary (3d ed., Dec. 2012), (defining “quality,” A.I.5.a), and “privy coats of mail” were allowed to swallow the broad rule that Hawkins (and other commentators of his time) described elsewhere.

Again, the dissent tends to undermine its position by citing to Old English cases that were rooted in tyranny and nepotism. The king’s decision to make exceptions for “nobility”, i.e. people born into a certain social class, is a rationale that should be rejected because it violates the Constitution.