Tuesday, October 5, 2021

Cornell on Regulating Arms under the 14th Amendment

Saul Cornell, Fordham University, has published The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America in the UC Davis Law Review Online.  It is a preview of a longer version of the paper forthcoming in the UC Davis Law Review in the spring, published now because of its relevance to New York State Rifle & Pistol Association Inc. v. Bruen, which will be argued before the U.S. Supreme Court on November 3.  

Professor Cornell tells us that the essay “shows that the language of state constitutional arms-bearing provisions changed dramatically in the era of the 14th Amendment,” although not as scholars previously have noted.  “The arms bearing provisions in the reconstructed states and the new western states were not simply more individualistic” they also replaced “18th-century language focused on standing armies” with “an express right to regulate arms in public.  States and localities took up this new understanding and enacted dozens of new laws limiting public carry. The most important new development was the rise of permit schemes, which emerged decades before New York’s Sullivan Law, which is at issue in Bruen.  “By the end of the 19th century, more than half of California was living under this regulatory regime.”

--Dan Ernst