It is now April 2021. I have lost count of how many times the Ninth Circuit has disregarded the Supreme Court’s COVID-19 Free Exercise Clause cases. (Of course, all from the shadow docket). I won’t even bother discussing the majority opinion in Tandon v. Newsom. Judge Bumatay’s dissent is all you need to read:
The instructions provided by the Court are clear and, by now, redundant. First, regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny. Roman Catholic Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free Exercise Clause merely by permitting some secular businesses to languish in disfavored status alongside religious activity. Id. Second, the fact that a restriction is itself phrased without reference to religion is not dispositive. See Gateway City Church, 2021 WL 753575, at *1. So long as some comparable secular activities are less burdened than religious activity, strict scrutiny applies. Third, businesses are analogous comparators to religious practice in the pandemic context. Roman Catholic Diocese.
The first and third elements are the most important.
Next stop, an application for an injunction at the Supreme Court. This case involves in-home bible study. But it also involves singing. Let’s see what Justices Kavanaugh and Barrett do here. In any event, Governor Newsom will likely play a game of whac-a-mole and rescind the regulation to frustrate appellate review.
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Yesterday, President Biden allowed Donald Trump’s ban on a wide range of temporary work visas for foreign workers to expire. He thereby ended a badly flawed policy enacted by the previous administration on the pretext that it was needed to benefit the US economy and curb the spread of Covid. In February, Biden revoked Trump’s accompanying policy barring nearly all entry by immigrants seeking permanent residency in the United States.
But late is still a lot better than never. And I have to admit that Biden has ended both policies faster than I initially thought he would. I outlined the legal and policy flaws in the migration and visa bans in greater detail in a June 2020 article in The Atlantic.
The expiration of the work visa ban probably moots out ongoing litigation challenging its legality. In October, a federal district court ruled against the Trump administration on this issue, in part because the sweeping power claimed by Trump (and later continued for a time by Biden) violates nondelegation principles. The court issued a preliminary injunction barring enforcement of the ban against the many employers who are members of the the US Chamber of Commerce, the National Association of Manufacturers, and other industry groups who were plaintiffs in the case.
The nondelegation issue raised in that case is an extremely important one, with applications to a wide range of other immigration and trade restrictions. See my discussion here, here, here, and here.
The Biden administration has taken a number of valuable steps to undo the harmful immigration policies of its predecessor. But there is plenty of room for further progress.
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It is now April 2021. I have lost count of how many times the Ninth Circuit has disregarded the Supreme Court’s COVID-19 Free Exercise Clause cases. (Of course, all from the shadow docket). I won’t even bother discussing the majority opinion in Tandon v. Newsom. Judge Bumatay’s dissent is all you need to read:
The instructions provided by the Court are clear and, by now, redundant. First, regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny. Roman Catholic Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free Exercise Clause merely by permitting some secular businesses to languish in disfavored status alongside religious activity. Id. Second, the fact that a restriction is itself phrased without reference to religion is not dispositive. See Gateway City Church, 2021 WL 753575, at *1. So long as some comparable secular activities are less burdened than religious activity, strict scrutiny applies. Third, businesses are analogous comparators to religious practice in the pandemic context. Roman Catholic Diocese.
The first and third elements are the most important.
Next stop, an application for an injunction at the Supreme Court. This case involves in-home bible study. But it also involves singing. Let’s see what Justices Kavanaugh and Barrett do here. In any event, Governor Newsom will likely play a game of whac-a-mole and rescind the regulation to frustrate appellate review.
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via IFTTT
The en banc Ninth Circuit last week heldthat the Second Amendmentdoes not extend to open public firearm carriage. The new in Young v. State of Hawaii complements the Circuit’s en banc from five years earlier, Peruta v. San Diego, which held that concealed carry is outside the Second Amendment. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.”
By statute, Hawaii has a restrictive “may issue” carry licensing system. If an applicant proves “sufficient” “urgency or need,” then a police chief “may” issue a permit. In practice, Hawaii is “never issue.” Carry permits are issued to security guards for use while on duty, and never to private citizens.
George Mocsary (U. Wyoming Law) and I examine the decision in a new article, Errors of Omission: Words Missing from the Ninth Circuit’s Young v. State of Hawaii. We argue that when the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. While carrying defensive arms may be regulated, it may not be prohibited. Below are some arguments from the article.
Supreme Court opinions
Young avoids quoting the language from the Supreme Court’s District of Columbia v. Heller that is directly on point:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis added).
The exceptions prove the rules stated in Heller: ordinary Americans (not just the militia) have Second Amendment rights, but felons and the mentally ill can be excluded from the right. Firearm commerce is necessary to the exercise of Second Amendment rights, but the government may impose conditions and qualifications on commercial vendors. As for carrying, “the full scope of the Second Amendment” includes “the carrying of firearms” in most places, but not “sensitive places.”
Rather than addressing the above language, Young misleadingly says that Heller authorized “bans on possession in sensitive places.” Heller‘s actual words about “carrying firearms” never appear in Young.
Young three times quotes the Supreme Court’s 1897 Robertson v. Baldwin for the proposition that the Second Amendment right was “inherited from our English ancestors.” Yet Young ignores what Robertson said about the scope of the Second Amendment right, on the same page from which Young quotes. According to Robertson, all rights have implicit limits derived from English law.
Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion. . . .
The obvious implication an implicit Second Amendment exception that the right to keep and bear arms “is not infringed by laws prohibiting the carrying of concealed weapons” is that laws prohibiting open carry do infringe the right.
Also missing from Young is what the Supreme Court said about the right to carry in 1857’s Dred Scott v. Sandford. Young cites Dred Scott while observing that the early Supreme Court rarely exercised its power of judicial review of federal statutes. Yet Young neglects to mention that one of Chief Justice Taney’s reasons for holding that free blacks were not citizens was that if they were, they would have the right to “keep and carry arms wherever they went.”
English legal history
Young‘s lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.
The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.
According to the Ninth Circuit, the 1615 King’s Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public “notwithstanding he doth not break the peace.” Justice Croke’s seriatem opinion, however, reads
[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King’s people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).
Justice Houghton’s opinion adds that the sheriff may arrest someone, “upon suspition.”
By omitting “in his presence,” Young turns Chune‘s actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).
Blunderbuss pistol, similar to the gun in Sir John Knight’s Case.
The leading case on the Statute of Northampton was Sir John Knight’s Case, from 1686. Sir John Knight was a Protestant member of the Church of England and loved doing what he could to assist enforcement of the statutes that outlawed Catholic religious practice. After he helped break up a secret Catholic mass, some Catholics beat him up, and on other occasion assaulted a poor elderly woman who would not reveal Knight’s location. For defense, Knight carried a blunderbuss when he went to Protestant church one Sunday. King James II was a Catholic, and he personally ordered the Attorney General to prosecute Knight for violating the Statute of Northampton.
As trial, the Chief Justice of the King’s Bench observed that the Statute of Northampton had “almost gone in desuetudinem.” Or in English, desuetude. That is, the law had long been unenforced and ignored–similar to the old laws in several states against certain sex acts that were discussed by the U.S. Supreme Court in Lawrence v.Texas; they were unenforced for so long that the Court found them legally unenforceable. The Chief Justice continued: “yet where the crime shall appear to be malo animo, it will come within the Act” Malo animo means “with evil intent; with malice.” (Black’s Law Dict. 2014).
The Ninth Circuit describes another statement by the Chief Justice, as if it contradicted what the Chief Justice said above: “According to another reporter, the Chief Justice of the King’s Bench opined that the meaning of the Statute of Northampton was to punish those who go armed.” On the cited page of English Reports:
The Chief Justice also said, the meaning of the statute of 2 Edw. 3, c. 3 [Northampton], was to punish people who go armed to terrify the King’s subjects. It is likewise a great offence at the common law, as if the King were not able or willing to protect his subjects; and therefore this Act is but an affirmance of that law.
The Ninth Circuit said “go armed,” but the King’s Bench said “go armed to terrify the King’s subjects.” The jury acquitted Knight.
The case reports are plain, but the Young majority muddles them to reach the conclusion that the case provides no clear precedent: “We cannot resolve this dispute in the original sources, much less in the academic literature.”
The Young majority speculates that Knight might have been “acquitted by virtue of his aristocratic status.”For the possibility, Young cites a law review article claiming that aristocrats were “the one group expressly exempted from the Statute of Northampton.” To see whether this is true, one need only read the Statute: “Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants…” Aristocrats were expressly not exempted. Moreover, the case reports show that Knight’s lawyer had argued, “This statute was made to prevent the people’s being oppressed by great men; but this is a private matter, and not within the statute.”
William Hawkins’ 1714 A Treatise of the Pleas of the Crown was very influential on both sides of the Atlantic. The Young majority writes:
Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. “[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault.”
But the Ninth Circuit omits what “such Armour” was. Hawkins was referring to the public carrying of “dangerous and unusual Weapons”—and not to common arms. (Heller adopted the common law rule against carrying “dangerous and unusual Weapons” and turned it into the principle that “dangerous and unusual weapons” are not protected by the Second Amendment. Under Heller, handguns are necessarily not considered “dangerous and unusual,” because they are protected by the Second Amendment.)
Some American colonies and States enacted statutes or prosecuted common law offenses against “offensively” carrying arms “to the terror of the people.” Young argues that these too were treated as comprehensive bans on carrying. To test whether this is true, consider the opinion in the leading early case on the subject, North Carolina’s 1843 State v. Huntley.
According to Young, the Statute of Northampton was enacted verbatim by the North Carolina legislature in 1792. “Ironically, notwithstanding its recent independence, North Carolina did not even remove the references to the king,” writes the Ninth Circuit. Young cites to “1792 N.C. Laws 60, 61 ch. 3.” The lengthier cite would be François-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina 60–61 (1792). As the State of North Carolina later officially declared, the book “was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State.” Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).
According to the Ninth Circuit:
In 1836, the North Carolina legislature explicitly repealed “all the statutes of England or Great Britain” in use in the state…which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein.State v. Huntly, 25 N.C. 418, 420–21 (1843)….[T]he court concluded that the statute’s prohibitions “[had] been always an offen[s]e at common law.”
More precisely, the North Carolina Supreme Court said there was no “statute” to uphold. In the words of the Huntly court:
The [defendant’s] argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here.
The North Carolina court said that the Statute of Northampton was just an expression of a common law rule against “riding or going about armed with unusual and dangerous weapons, to the terror of the people.”
According to the indictment—which Huntly had argued did not constitute a crime because the Statute of Northampton was not in effect in North Carolina—Huntley had armed himself “with pistols, guns, knives and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night,” to the citizens of Anson, N.C., in town and on the highway, and did “openly and publicly declare a purpose and intent” “to beat, wound, kill and murder” James H. Ratcliff “by which said arming, exposure, exhibition and declarations . . . divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.”
Huntly agreed with “the Chief Justice in Sir John Knight’s case, that the statute of Northampton was made in affirmance of the common law.” The Huntly court then delivered a detailed exposition of what exactly the common law offense was:
It has been remarked, that a double-barrelled gun, or any other gun, cannot in this country come under the description of “unusual weapons,” for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an “unusual weapon,” wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.–But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement [a legal term of art for any lawful activity]–the citizen is at perfect liberty to carry his gun. It is the wicked purpose–and the mischievous result–which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.
Although the Huntly court did not like the idea of routine gun carrying, it recognized that peaceable carrying for any purpose was lawful. Despite devoting 60 pages to legal history and despite citing Huntly, the Ninth Circuit does not mention the above paragraph, which directly addresses the scope of the common law offense of carrying dangerous or unusual arms to the terror of the people.
The Ninth Circuit tells a long legal history built on inferences about what the Statute of Northampton must have meant in America. Yet the court omitted the paragraph from the state supreme court opinion that authoritatively describes what Northampton’s principles actually did mean in America.
The majority in Young v. State of Hawaii claims that total prohibition of the right to bear a handgun is consistent with “overwhelming” American legal history. The claim is refuted by the very sources on which the majority relies, once their full text is brought to light.
This article is co-authored by George Mocsary, professor of law at the University of Wyoming College of Law.
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The en banc Ninth Circuit last week heldthat the Second Amendmentdoes not extend to open public firearm carriage. The new in Young v. State of Hawaii complements the Circuit’s en banc from five years earlier, Peruta v. San Diego, which held that concealed carry is outside the Second Amendment. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.”
By statute, Hawaii has a restrictive “may issue” carry licensing system. If an applicant proves “sufficient” “urgency or need,” then a police chief “may” issue a permit. In practice, Hawaii is “never issue.” Carry permits are issued to security guards for use while on duty, and never to private citizens.
George Mocsary (U. Wyoming Law) and I examine the decision in a new article, Errors of Omission: Words Missing from the Ninth Circuit’s Young v. State of Hawaii. We argue that when the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. While carrying defensive arms may be regulated, it may not be prohibited. Below are some arguments from the article.
Supreme Court opinions
Young avoids quoting the language from the Supreme Court’s District of Columbia v. Heller that is directly on point:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis added).
The exceptions prove the rules stated in Heller: ordinary Americans (not just the militia) have Second Amendment rights, but felons and the mentally ill can be excluded from the right. Firearm commerce is necessary to the exercise of Second Amendment rights, but the government may impose conditions and qualifications on commercial vendors. As for carrying, “the full scope of the Second Amendment” includes “the carrying of firearms” in most places, but not “sensitive places.”
Rather than addressing the above language, Young misleadingly says that Heller authorized “bans on possession in sensitive places.” Heller‘s actual words about “carrying firearms” never appear in Young.
Young three times quotes the Supreme Court’s 1897 Robertson v. Baldwin for the proposition that the Second Amendment right was “inherited from our English ancestors.” Yet Young ignores what Robertson said about the scope of the Second Amendment right, on the same page from which Young quotes. According to Robertson, all rights have implicit limits derived from English law.
Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant’s motion. . . .
The obvious implication an implicit Second Amendment exception that the right to keep and bear arms “is not infringed by laws prohibiting the carrying of concealed weapons” is that laws prohibiting open carry do infringe the right.
Also missing from Young is what the Supreme Court said about the right to carry in 1857’s Dred Scott v. Sandford. Young cites Dred Scott while observing that the early Supreme Court rarely exercised its power of judicial review of federal statutes. Yet Young neglects to mention that one of Chief Justice Taney’s reasons for holding that free blacks were not citizens was that if they were, they would have the right to “keep and carry arms wherever they went.”
English legal history
Young‘s lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.
The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.
According to the Ninth Circuit, the 1615 King’s Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public “notwithstanding he doth not break the peace.” Justice Croke’s seriatem opinion, however, reads
[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King’s people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).
Justice Houghton’s opinion adds that the sheriff may arrest someone, “upon suspition.”
By omitting “in his presence,” Young turns Chune‘s actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).
Blunderbuss pistol, similar to the gun in Sir John Knight’s Case.
The leading case on the Statute of Northampton was Sir John Knight’s Case, from 1686. Sir John Knight was a Protestant member of the Church of England and loved doing what he could to assist enforcement of the statutes that outlawed Catholic religious practice. After he helped break up a secret Catholic mass, some Catholics beat him up, and on other occasion assaulted a poor elderly woman who would not reveal Knight’s location. For defense, Knight carried a blunderbuss when he went to Protestant church one Sunday. King James II was a Catholic, and he personally ordered the Attorney General to prosecute Knight for violating the Statute of Northampton.
As trial, the Chief Justice of the King’s Bench observed that the Statute of Northampton had “almost gone in desuetudinem.” Or in English, desuetude. That is, the law had long been unenforced and ignored–similar to the old laws in several states against certain sex acts that were discussed by the U.S. Supreme Court in Lawrence v.Texas; they were unenforced for so long that the Court found them legally unenforceable. The Chief Justice continued: “yet where the crime shall appear to be malo animo, it will come within the Act” Malo animo means “with evil intent; with malice.” (Black’s Law Dict. 2014).
The Ninth Circuit describes another statement by the Chief Justice, as if it contradicted what the Chief Justice said above: “According to another reporter, the Chief Justice of the King’s Bench opined that the meaning of the Statute of Northampton was to punish those who go armed.” On the cited page of English Reports:
The Chief Justice also said, the meaning of the statute of 2 Edw. 3, c. 3 [Northampton], was to punish people who go armed to terrify the King’s subjects. It is likewise a great offence at the common law, as if the King were not able or willing to protect his subjects; and therefore this Act is but an affirmance of that law.
The Ninth Circuit said “go armed,” but the King’s Bench said “go armed to terrify the King’s subjects.” The jury acquitted Knight.
The case reports are plain, but the Young majority muddles them to reach the conclusion that the case provides no clear precedent: “We cannot resolve this dispute in the original sources, much less in the academic literature.”
The Young majority speculates that Knight might have been “acquitted by virtue of his aristocratic status.”For the possibility, Young cites a law review article claiming that aristocrats were “the one group expressly exempted from the Statute of Northampton.” To see whether this is true, one need only read the Statute: “Item, it is enacted, that no man great nor small, of what condition soever he be, except the king’s servants…” Aristocrats were expressly not exempted. Moreover, the case reports show that Knight’s lawyer had argued, “This statute was made to prevent the people’s being oppressed by great men; but this is a private matter, and not within the statute.”
William Hawkins’ 1714 A Treatise of the Pleas of the Crown was very influential on both sides of the Atlantic. The Young majority writes:
Hawkins, however, also recognized that the lawful public carry of arms required some particular need. The desire for proactive self-defense was not a good enough reason to go armed openly. “[A] man cannot excuse the wearing [of] such armour in public, by alleging that such a one threatened him, and [that] he wears it for the safety of his person from his assault.”
But the Ninth Circuit omits what “such Armour” was. Hawkins was referring to the public carrying of “dangerous and unusual Weapons”—and not to common arms. (Heller adopted the common law rule against carrying “dangerous and unusual Weapons” and turned it into the principle that “dangerous and unusual weapons” are not protected by the Second Amendment. Under Heller, handguns are necessarily not considered “dangerous and unusual,” because they are protected by the Second Amendment.)
Some American colonies and States enacted statutes or prosecuted common law offenses against “offensively” carrying arms “to the terror of the people.” Young argues that these too were treated as comprehensive bans on carrying. To test whether this is true, consider the opinion in the leading early case on the subject, North Carolina’s 1843 State v. Huntley.
According to Young, the Statute of Northampton was enacted verbatim by the North Carolina legislature in 1792. “Ironically, notwithstanding its recent independence, North Carolina did not even remove the references to the king,” writes the Ninth Circuit. Young cites to “1792 N.C. Laws 60, 61 ch. 3.” The lengthier cite would be François-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina 60–61 (1792). As the State of North Carolina later officially declared, the book “was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State.” Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).
According to the Ninth Circuit:
In 1836, the North Carolina legislature explicitly repealed “all the statutes of England or Great Britain” in use in the state…which prompted a challenge to its Northampton analogue. The Supreme Court of North Carolina upheld the statute, however, finding that the Statute of Northampton did not create the substantive prohibitions therein.State v. Huntly, 25 N.C. 418, 420–21 (1843)….[T]he court concluded that the statute’s prohibitions “[had] been always an offen[s]e at common law.”
More precisely, the North Carolina Supreme Court said there was no “statute” to uphold. In the words of the Huntly court:
The [defendant’s] argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to the terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here.
The North Carolina court said that the Statute of Northampton was just an expression of a common law rule against “riding or going about armed with unusual and dangerous weapons, to the terror of the people.”
According to the indictment—which Huntly had argued did not constitute a crime because the Statute of Northampton was not in effect in North Carolina—Huntley had armed himself “with pistols, guns, knives and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night,” to the citizens of Anson, N.C., in town and on the highway, and did “openly and publicly declare a purpose and intent” “to beat, wound, kill and murder” James H. Ratcliff “by which said arming, exposure, exhibition and declarations . . . divers good citizens of the State were terrified, and the peace of the State endangered, to the evil example of all others in like cases offending, to the terror of the people, and against the peace and dignity of the State.”
Huntly agreed with “the Chief Justice in Sir John Knight’s case, that the statute of Northampton was made in affirmance of the common law.” The Huntly court then delivered a detailed exposition of what exactly the common law offense was:
It has been remarked, that a double-barrelled gun, or any other gun, cannot in this country come under the description of “unusual weapons,” for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an “unusual weapon,” wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.–But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement [a legal term of art for any lawful activity]–the citizen is at perfect liberty to carry his gun. It is the wicked purpose–and the mischievous result–which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.
Although the Huntly court did not like the idea of routine gun carrying, it recognized that peaceable carrying for any purpose was lawful. Despite devoting 60 pages to legal history and despite citing Huntly, the Ninth Circuit does not mention the above paragraph, which directly addresses the scope of the common law offense of carrying dangerous or unusual arms to the terror of the people.
The Ninth Circuit tells a long legal history built on inferences about what the Statute of Northampton must have meant in America. Yet the court omitted the paragraph from the state supreme court opinion that authoritatively describes what Northampton’s principles actually did mean in America.
The majority in Young v. State of Hawaii claims that total prohibition of the right to bear a handgun is consistent with “overwhelming” American legal history. The claim is refuted by the very sources on which the majority relies, once their full text is brought to light.
This article is co-authored by George Mocsary, professor of law at the University of Wyoming College of Law.
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President Joe Biden officially unveiled his $2 trillion American Jobs Plan during a speech today in Pittsburgh, Pennsylvania. He promised to devote big dollar amounts to the even bigger goal of rebuilding America’s infrastructure, broadly defined.
“It’s not a plan that tinkers around the edges. It’s a once-in-a-generation investment in America, unlike anything we’ve seen or done since we’ve built the interstate highway system or the space race,” Biden said today. “Our infrastructure is crumbling. It’s 13th in the world.”
Some $610 billion of Biden’s $2 trillion spending spree would go toward transportation infrastructure, with $115 billion of that money going toward repairing highways and bridges, as well as local streets.
At least $20 billion would go toward safety improvements for all modes of transit, including cyclists and pedestrians, according to a White House outline of the American Jobs Plan. In practice, that likely means a lot of federal funding for sidewalks and bike lanes. Another $85 billion of the transportation funding in Biden’s plan will go toward repairing existing public transit and funding expansions of those systems.
That money, the White House says, will double federal spending on public transit. It comes on the heels of multiple rounds of federal aid to transit included in various COVID relief bills.
The CARES Act, passed in March 2020, gave transit agencies $25 billion in emergency aid. The subsequent relief bill passed by Congress in December 2020 allocated another $15 billion toward the industry. The $1.9 trillion American Rescue Act topped this up with another $30 billion in funding.
And while Biden’s plan says that this additional funding is also targeted at expanding systems to meet rider demand, actual rider demand has plummeted during the pandemic by as much 65 percent, according to a recent study from the Reason Foundation (which also publishes this website).
The president said in his speech today that his American Jobs Plan would replace the 10 most economically significant bridges in the country, but otherwise omitted details about what specific projects he’d like to fund.
Biden’s transportation infrastructure plans are “vague because the focus is all on the second-order effects of transportation, not on actual transportation,” says Adrian Moore, vice president of research at the Reason Foundation. “It’s all about what’s going to happen for equity or climate change or suburban development.”
Indeed, one can see that in the very name of the American Jobs Plan, the title of which does not mention infrastructure. That’s more than a rhetorical point. The focus on jobs, and particularly unionized American jobs, means that Biden’s $2 trillion spending plan will buy a lot less infrastructure than it otherwise could.
Prevailing wage laws that require federal infrastructure projects to pay union rates to workers are a known contributor to America’s outrageously high infrastructure costs. So are Buy America provisions that generally mandate federally-funded infrastructure projects procure (often more expensive) domestic parts and materials.
Biden doubled down on both of those features of American infrastructure spending in his speech tonight.
“I’m a union guy. They built the middle class, it’s about time they get a piece of the action” he said, adding later that “not a contract will go out that I control that will not go to a company that is an American company with American products all the way down the line and American workers.”
Boosting union employment and American manufacturing is hardly the only broad goal Biden invoked in his speech. He also said spending on infrastructure would help us compete with China, combat climate change, kickstart economic growth, and, incredibly, reduce the federal deficit.
The nitty-gritty of which particular projects will bring us all these good things will have to be hashed out later. It certainly didn’t get a lot of attention tonight.
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President Joe Biden officially unveiled his $2 trillion American Jobs Plan during a speech today in Pittsburgh, Pennsylvania. He promised to devote big dollar amounts to the even bigger goal of rebuilding America’s infrastructure, broadly defined.
“It’s not a plan that tinkers around the edges. It’s a once-in-a-generation investment in America, unlike anything we’ve seen or done since we’ve built the interstate highway system or the space race,” Biden said today. “Our infrastructure is crumbling. It’s 13th in the world.”
Some $610 billion of Biden’s $2 trillion spending spree would go toward transportation infrastructure, with $115 billion of that money going toward repairing highways and bridges, as well as local streets.
At least $20 billion would go toward safety improvements for all modes of transit, including cyclists and pedestrians, according to a White House outline of the American Jobs Plan. In practice, that likely means a lot of federal funding for sidewalks and bike lanes. Another $85 billion of the transportation funding in Biden’s plan will go toward repairing existing public transit and funding expansions of those systems.
That money, the White House says, will double federal spending on public transit. It comes on the heels of multiple rounds of federal aid to transit included in various COVID relief bills.
The CARES Act, passed in March 2020, gave transit agencies $25 billion in emergency aid. The subsequent relief bill passed by Congress in December 2020 allocated another $15 billion toward the industry. The $1.9 trillion American Rescue Act topped this up with another $30 billion in funding.
And while Biden’s plan says that this additional funding is also targeted at expanding systems to meet rider demand, actual rider demand has plummeted during the pandemic by as much 65 percent, according to a recent study from the Reason Foundation (which also publishes this website).
The president said in his speech today that his American Jobs Plan would replace the 10 most economically significant bridges in the country, but otherwise omitted details about what specific projects he’d like to fund.
Biden’s transportation infrastructure plans are “vague because the focus is all on the second-order effects of transportation, not on actual transportation,” says Adrian Moore, vice president of research at the Reason Foundation. “It’s all about what’s going to happen for equity or climate change or suburban development.”
Indeed, one can see that in the very name of the American Jobs Plan, the title of which does not mention infrastructure. That’s more than a rhetorical point. The focus on jobs, and particularly unionized American jobs, means that Biden’s $2 trillion spending plan will buy a lot less infrastructure than it otherwise could.
Prevailing wage laws that require federal infrastructure projects to pay union rates to workers are a known contributor to America’s outrageously high infrastructure costs. So are Buy America provisions that generally mandate federally-funded infrastructure projects procure (often more expensive) domestic parts and materials.
Biden doubled down on both of those features of American infrastructure spending in his speech tonight.
“I’m a union guy. They built the middle class, it’s about time they get a piece of the action” he said, adding later that “not a contract will go out that I control that will not go to a company that is an American company with American products all the way down the line and American workers.”
Boosting union employment and American manufacturing is hardly the only broad goal Biden invoked in his speech. He also said spending on infrastructure would help us compete with China, combat climate change, kickstart economic growth, and, incredibly, reduce the federal deficit.
The nitty-gritty of which particular projects will bring us all these good things will have to be hashed out later. It certainly didn’t get a lot of attention tonight.
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After nearly 3 million deaths worldwide (and almost 600,000 in the United States), it looks like the end of the COVID-19 pandemic may be within sight as vaccines proliferate. In “The Last Pandemic,” the cover story of the new issue of Reason, Science Correspondent Ronald Bailey argues that technological breakthroughs and policy progress mean humanity may never again have to endure such a disaster.
“The greatly speeded-up biomedical innovation provoked by the current global scourge has provided future generations with tools to keep subsequent viral invasions at bay,” writes Bailey. “These include fast new vaccine production platforms, the development of better diagnostic and disease surveillance monitoring, and progress in the rapid design of therapeutics.”
The main potential sticking point? The role of governments, which continue to hamper the ability of scientists and medical providers to deal quickly and effectively with diseases. Bailey tells Nick Gillespie that while Operation Warp Speed—through which the United States government incentivized pharmaceutical companies to develop vaccines with unprecedented speed—was wildly successful, bureaucratic inertia and turf wars still stand in the way of quicker, faster, more effective innovation.
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