Gun Case Prompts Lawyers to Look Way Back - to 1328 :: 12/16/2015

Whether residents of Washington, D.C., can carry firearms in the street has prompted examination of English law from the Middle Ages

Lawyers who want to keep Washington, D.C., gun rules as they are point to a law from the reign of King Edward III of England that prohibited carrying a ‘Sword or Buckler, or other Arms for doing Mischief,’ in the streets of London. Photo: Print Collector/Getty Images

Both sides of the national gun debate are poring over history books to try to bolster their case on whether residents of the nation’s capital can more freely carry guns on the street.
On Friday, in a possible preview of a U.S. Supreme Court showdown, a federal appeals court in Washington will hear a challenge to a law that restricts who can legally carry a handgun outside the home.

A key question in the case is whether such regulations have “long-standing” precedent.

That has led lawyers to comb through historical documents for examples of how guns were used during the colonial era and earlier, in England during the Middle Ages.

The lawyers are taking the unusual step with the U.S. Supreme Court clearly in mind. No matter the outcome in the case on appeal, many legal experts think the high court will soon have to step in to more clearly settle whether and to what degree the Second Amendment protects the right to carry handguns outside the home—a question the justices have yet to address.

The emphasis on historical events makes sense given how “deeply the current Supreme Court considers history in some of its rulings,” said Adam Winkler, a law professor at the University of California, Los Angeles, and an expert on gun laws.

The issue of guns, and limits on their use, is under fresh scrutiny in the wake of the recent terrorist attacks in Paris. Rep. Peter King (R., N.Y.) and Sen. Dianne Feinstein (D., Calif.) this week reiterated their support for a bill, introduced in February, that would grant the U.S. attorney general the authority to ban gun sales to anyone suspected of terrorism-related activities.

The National Rifle Association and many lawmakers oppose the legislation, partly on grounds that it sweeps too broadly. “Pretty much anyone can end up on a terrorist watch list,” said NRA spokeswoman Jennifer Baker.

Open-carry gun activists gathering Monday in Ferguson, Mo. Photo: Michael B. Thomas/Agence France-Presse/Getty Images

The majority of states largely allow anyone who wants a concealed-carry permit and meets a few qualifications to get one. Illinois in 2013 became the last state to do away with a total ban on concealed carry.

In Washington, D.C., and nine states, people can carry handguns outside the home only if they can show a specific need to do so, for instance if they have recently been threatened with bodily harm. At issue in the case, Wrenn v. D.C., is whether this more stringent type of permitting regime violates the Second Amendment.

The Supreme Court, in its landmark 2008 decision Heller v. D.C., struck down Washington’s total ban on handguns, ruling that under the Second Amendment individuals have the right to keep handguns in their homes. Justice Antonin Scalia, the author of the majority opinion, wrote that certain “long-standing” gun restrictions were permissible under the Second Amendment, which protects the right “to keep and bear arms.”

But the opinion otherwise said little to help guide lower courts, especially in regard to one’s right to carry a gun outside the home. Nor did the court specifically define “long-standing.”

In the current case, parties that want to keep Washington’s gun-control rules in place—lawyers for both the city and Everytown for Gun Safety—are pointing to a 1328 English law passed during the reign of Edward III, decades before guns existed anywhere in the British Isles.

The law expanded on a 1285 statute that made it a crime “to be found going or wandering about the Streets of [London], after Curfew…with Sword or Buckler, or other Arms for doing Mischief,” according to a brief filed in September by lawyers for Everytown, a gun-control group backed by former New York Mayor Michael Bloomberg.

A collection of historians and the California Rifle and Pistol Association, a group associated with the NRA, filed their own understanding of the 700-year history of Anglo-American arms regulation. That brief, as well as one filed by the plaintiffs in the case, argues that the jury acquittal in 1686 of a man, “Sir John Knight,” who brought to a church in Bristol “a gun, to terrify the King’s subjects,” serves as evidence that the 1328 law wasn’t meant to apply broadly.

Lawyers for Washington and gun-control groups argue that officials in densely populated areas should be allowed some say over who can carry guns outside the home. Since the Heller ruling, that argument has held sway in appeals courts in New York, Philadelphia and Richmond, Va.

Gun-rights advocates and lawyers for the plaintiffs say the Second Amendment confers an ironclad right. A federal appeals court in San Francisco last year agreed, striking down permitting rules in two California counties. A larger, 11-judge panel has since decided to review that decision.

The three-judge opinion in San Francisco last year wrestled deeply with guns and history, and sent a message to those who work on gun cases that rulings of future courts, including the U.S. Supreme Court, might hinge on historical precedent.

“It’s very tricky to use history like this in a contemporary legal argument,” said Priya Satia, a history professor at Stanford University.

Still, judges on the D.C. Circuit Court of Appeals, in addition to several Supreme Court justices, frequently look to history for help in interpreting parts of the Constitution. And the Wrenn case is no exception.

“The lawyers and their teams have dug up a lot of new historical material,” said UCLA’s Mr. Winkler. If the case goes to the U.S. Supreme Court, “I’m betting we’re going to see a lot more.”

Write to Ashby Jones at ashby.jones@wsj.com

http://www.wsj.com/articles/gun-case-prompts-lawyers-to-look-way-backto-1328-1447962125