The Persistence of Common Law Limits on Armed Travel in the Early Republic: Surety and Affray Laws in Historical Context

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court abandoned the two-step test that had emerged after its landmark, but controversial ruling in District of Columbia v. Heller. The new approach announced in Bruen rejected the second prong of this test, casting aside means end scrutiny, or balancing, in favor of a “text, history, and tradition” approach. More recently, in United States v. Rahimi, the Court clarified some of the confusion over its Bruen test. One ongoing problem that lawyers and judges face when implementing this framework flows from the nature of materials required by the historical approach. Early American legal materials are often not easy to locate, and serious gaps in both the historical record and scholarship exist. Moreover, interpreting these materials requires an understanding of Anglo-American common law in the Founding Era. To be sure, most lawyers do get a smattering of common law in their law school course work, but learning to think and read like a Founding Era lawyer, the foundational claim that supports modern originalism, including Second Amendment jurisprudence, places much greater demands on lawyers and judges to think in common law terms about Founding Era law. Rather than apply the Founders’ common law, many jurists and legal scholars have resorted to a form of “common law lite,” a caricature that bears scant resemblance to the way common law functioned in early America. The problems with this “common law lite” approach emerge clearly in the way Bruen and its defenders have interpreted the role of sureties and early statutes prohibiting affray and traveling armed with offensive weapons. Implementing text, history, and tradition requires a more sophisticated approach to the past, one shaped by rigorous historical research and a more serious engagement with the Founders’ common law.