Notwithstanding the length of my critique of the Joshua Zeitz essay in Politico against originalism and the Supreme Court, I could not hope to capture all of its distortions of fact and law. Here’s another one:
But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.” You read that right. The author of the Second Amendment drafted statewide legislation that was effectively a forerunner to the New York state law that the Supreme Court just struck down. The bill, which was really aimed at regulating deer hunting, did not pass. But it clearly demonstrated that Madison viewed individual gun ownership as well within the state’s regulatory prerogative.
Actually, you did not read that right. Zeitz claims that Madison’s bill was “effectively a forerunner to the New York state law” under which citizens needed to prove a particularized need for self-defense in order to gain a license from the state to ever carry a firearm publicly. Madison, Zeitz would lead the reader to believe, treated the right to bear arms in public as so lightly restricted that he would ban the state’s citizens from carrying arms off their property unless on military duty, just to protect the lives of deer.
Law professor Jonathan Adler, however, offers what appears to be the text of the law in question, introduced by Madison in 1785:
@JoshuaMZeitz is this the bill proposed by Madison to which you refer in your Politico piece on Bruen? pic.twitter.com/5l3nklKHKd
— Jonathan H. Adler (@jadler1969) June 29, 2022
This is simply a hunting law like any modern restriction on when and in what volume deer may be hunted. There is no restriction whatsoever on the general population carrying weapons. Instead, it restricts bearing arms as a penalty for a first offense:
Whosoever shall offend against this act, shall forfeit and pay, for every deer by him unlawfully killed, twenty shillings, one half thereof to the use of the commonwealth, and the other half to the informer; and moreover, shall be bound to their good behaviour; and, if, within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him a new, and every such bearing of a gun shall be a breach of the new recognizance and cause to bind him again.
There is a colossal difference between what rights may be restricted in general, and what rights may be restricted as punishment for a crime. This is rather as if Zeitz claimed that a law punishing criminals with imprisonment was precedent for rounding up whole populations for internment. It is no precedent whatsoever for the New York gun law.
Historian, heal thyself.