•  
  •  
 

Abstract

In the aftermath of the Supreme Court’s 2008 decision in District of Columbia v. Heller, perhaps the most controversial and hotly contested undecided issue in Second Amendment law is to what extent the right to bear arms applies outside of the home. As in Heller, where the Supreme Court relied in large part on the historical record to come to its decision, history has played a critical role in cases addressing the carrying of firearms in public. Advocates’ arguments in these cases center, in part, on whether English and founding-era American laws regulating the carrying of firearms required an intent to terrorize. This debate stems from mentions of ‘public terror’ in several historical treatises, cases, and statutes. Advocates of a broad right to carry in public claim these sources support their theory that historical laws prohibited public carry only when it was intended to terrorize the public. In contrast, those supporting a more limited right to carry argue these sources support their theory that historical laws prohibited public carry because such conduct was inherently an act of public terror.

This article brings new sources to bear on the debate, specifically, cases and treatises addressing the common-law public disorder crimes of riot, rout, unlawful assembly, and affray from the late sixteenth century to the late nineteenth century. Because these crimes, like publicly carrying weapons, are rooted in concerns about public terror, they serve as analogous sources to use in determining what the terror language in historical legal discussions of public carry really means. The public disorder cases and treatises discussed in this article show that these crimes sometimes involved the carrying of weapons, and when they did, they were deemed to automatically incite public terror without any necessity for intent.

Download

Share

COinS