Informed Comment Homepage

Thoughts on the Middle East, History and Religion

Header Right

  • Featured
  • US politics
  • Middle East
  • Environment
  • US Foreign Policy
  • Energy
  • Economy
  • Politics
  • About
  • Archives
  • Submissions

© 2025 Informed Comment

  • Skip to content
  • Skip to primary sidebar
Featured
How Clarence Thomas gets the History of Gun Regulation Wrong: And a Modest Proposal to Make Gunmen put up Surety Bonds

How Clarence Thomas gets the History of Gun Regulation Wrong: And a Modest Proposal to Make Gunmen put up Surety Bonds

Juan Cole 06/24/2022

Tweet
Share
Reddit
Email

Ann Arbor (Informed Comment) – Originalists on the Supreme Court such as the late Antonin Scalia and current Justice Clarence Thomas claim to seek guidance to the meaning of the constitution in history, but most historians believe that their arguments are singularly ahistorical. These two thinkers find an English common law and American eighteenth- and nineteenth century notion of an absolute right to bear arms throughout the past seven centuries.

As Fordham University’s Saul Cornell points out, the Originalist misuse of history, has ironically enough, provoked loads of new historical research that further undermines the arguments of Scalia and Thomas, among others.

Historians like Wesleyan University’s Jennifer Tucker beg to disagree with Scalia and Thomas.

Tucker writes of the historical discoveries about past restrictions on weapons,

    “Many of these findings appear in an amicus brief presented to the Court in New York State Rifle and Pistol Association v. Bruen. Signed by 17 professors of law, English history and American history – including me – the brief demonstrates through a review of historical evidence that “neither English nor American history supports a broad Second Amendment right to carry firearms or other dangerous weapons in public based on a generic interest in self-defense.”

    It highlights 700 years of trans-Atlantic weapons regulations, from the English tradition of restricting public carry through the American tradition of doing the same“.

Tucker points out that the 1328 Statute of Northampton prohibited the carrying of weapons, openly or hidden, without express permission from the authorities.

Article continues after bonus IC video
CNN: “Supreme Court strikes down New York concealed handgun law”

That the present Triassic Era Supreme Court is simply doing politics under the cover of law, many have pointed out, is clearly visible when they strike down a state’s right to regulate the carrying of firearms hidden on one’s person but then strike down a 50-year precedent on abortion rights, saying such decisions should be the prerogative of the — wait for it — states.

Saul Cornell has knocked down the Originalist arguments in his “The Long Arc of Arms Regulation in Public: From Surety to Permitting, 1328–1928.”

He points to Michael Dalton’s Country Justice, a preeminent legal text of the early modern period, which says,

    “All such as shall go or ride armed (offensively) in Fairs, Markets or elsewhere; or shall wear, or carry any Guns, Dags or Pistols charged; . . . any Constable, seeing this may arrest them, and carry them before the Justice of Peace, and the Justice may bind them to the Peace; yea, though those persons were so armed or weaponed for their defense upon any private quarrel . . . .”

Actually, the way people were supposed to deal with being threatened by a gun owner was to go to the sheriff or magistrate with a complaint, and that official would demand that the gunman put up money as a surety against bad behavior.

So that is what gun safety advocates should press for, since Thomas and his 5 far right colleagues are so hung up on their imaginary notion of the past.

Just write laws requiring the posting of a surety bond by people who want to carry a concealed firearm. The law could be crafted for all such people, or maybe for a large subset of them. Say, they’d have to post the surety bond if they had shown a propensity to flout the law– say, if they had parking tickets or DUIs, or say, if they have had a court-ordered restraining order taken out against them. If the surety bond were substantial enough, it could serve as a hefty fine for further law-breaking or trouble-making.

As late as the Alabama antebellum case State v. Reid, 1 Ala. 612, 616-17 (1840), Cornell writes, the court decided that a policeman did not need to carry a concealed weapon without a very good reason (police were not routinely armed before the Civil War).

Cornell writes,

    ” It is also vital to read Reid against the background of an inherited common law tradition. “If the emergency is pressing,” the Reid Court declared, “there can be no necessity for concealing the weapon, and if the threatened violence will allow of it, the individual may be arrested and constrained to find sureties to keep the peace, or committed to jail.” Reid acknowledged a fact that many modern gun rights activists and some judges have ignored — the imposition of a peace bond was the primary mechanism for the enforcement of the peace.”

So that’s my suggestion. States like New York that worry about too much gun violence should just make people put up surety bonds if they want to carry a a concealed firearm. That’s the way our long common law tradition dealt with this issue. It should make the Originalists happy.

One of the biggest problems with American criminal law is that it concentrates only on punishing perpetrators but shows little interest in restitution for victims. This is one area in which Muslim law is superior to the US tradition. Making people carrying guns post surety bonds, which they would forfeit if they misbehave, would create a pool of funding for the victims of gun violence or of crimes committed with a firearm.

Filed Under: Featured, Guns

About the Author

Juan Cole is the founder and chief editor of Informed Comment. He is Richard P. Mitchell Professor of History at the University of Michigan He is author of, among many other books, Muhammad: Prophet of Peace amid the Clash of Empires and The Rubaiyat of Omar Khayyam. Follow him on Twitter at @jricole or the Informed Comment Facebook Page

Primary Sidebar

Support Independent Journalism

Click here to donate via PayPal.

Personal checks should be made out to Juan Cole and sent to me at:

Juan Cole
P. O. Box 4218,
Ann Arbor, MI 48104-2548
USA
(Remember, make the checks out to “Juan Cole” or they can’t be cashed)

STAY INFORMED

Join our newsletter to have sharp analysis delivered to your inbox every day.
Warning! Social media will not reliably deliver Informed Comment to you. They are shadowbanning news sites, especially if "controversial."
To see new IC posts, please sign up for our email Newsletter.

Social Media

Bluesky | Instagram

Popular

  • Antisemitism Awareness Act – Protecting Jews from What?
  • When Politics Leaves Reality Behind
  • Trump, the Suez Canal, and the end of Eisenhower's World Order
  • The Real Evil Empire May Surprise You
  • American Psycho: Trump's Delusional Crusade Transforms America into a Pariah State

Gaza Yet Stands


Juan Cole's New Ebook at Amazon. Click Here to Buy
__________________________

Muhammad: Prophet of Peace amid the Clash of Empires



Click here to Buy Muhammad: Prophet of Peace amid the Clash of Empires.

The Rubaiyat of Omar Khayyam


Click here to Buy The Rubaiyat.
Sign up for our newsletter

Informed Comment © 2025 All Rights Reserved