Malcolm Gladwell Goes Bananas Over a Second Amendment Argument SCOTUS Didn't Make

I've written enough about Malcolm Gladwell's new book "The American Way of Killing" that I really should read it at some point, especially if he or his publicist respond to my invitation to join me on the Bearing Arms Cam & Company podcast. 

I've previously debunked his claim that the Second Amendment was adopted to protect slave patrols in the South, but I ran across what seems to be another deeply flawed argument in a Los Angeles Times piece on Gladwell and his latest tome. 

The federal government’s understanding (or misunderstanding, according to bestselling author Malcolm Gladwell) of the 2nd Amendment all begins with the tale of a rabble-rousing 17th century English nobleman. In 1686, at least one now contested-account recounts the story of Sir John Knight, a devout anti-Catholic, busting into the church of St. Michael in Bristol, England, during services with a gun. His aim? To terrify the King’s subjects. In 2022, more than three centuries later, United States Supreme Court justices used Knight’s acquittal by a jury to take it that the Founding Fathers, who were influenced by English law when drafting the Constitution, were not opposed to the carrying of guns in public for self-defense. This type of logic, which determines the law of the land by interpreting obscure bits of history over utilizing common sense, is what Gladwell calls “bananas.”

Now, it could be that this summation isn't what Gladwell actually contends, but is writer Shelby Hartman's interpretation of his text. For his sake, I really hope that's the case, because if Gladwell truly believes that the federal government's (or more specifically, the Supreme Court's) understanding of the right to keep and bear arms is contingent on a nearly 350-year-old legal case in England he's as bananas as he thinks the Court's "text, history, and tradition" test is. 

It was Heller, not Bruen, that firmly established the right to keep and bear arms was an individual right not connected to service in a militia. And the story of Sir John Knight appears nowhere in the text of the Heller decision. 

It also makes up only a small portion of the discussion about the right to bear arms in Bruen. And the reason why SCOTUS discussed it at all is because both the plaintiffs seeking to overturn New York's "may issue" laws and the state of New York brought up the case. The plaintiffs argued that Knight's acquittal was evidence that the Statute of Northampton prohibited carrying with an intent to terrify, rather than ordinary peaceful carry. New York argued that this interpretation was wrong. 

Knight's saga makes up about one page of the 63-page majority opinion in Bruen, and it's far from the only history discussed in the opinion. The Court examined laws in medieval England, the U.S. colonies, antebellum laws, and Reconstruction-era laws as well. 

What they found was that early English restrictions didn't establish a continuous tradition of prohibiting ordinary peaceful public carry; colonial-era laws did not support New York's position that ordinary citizens demonstrate a special need to carry; early American states regulated how firearms were carried, including concealed carry, but could not eliminate public carry altogether; and that a limited number of restrictions in the late 19th century did not establish a widespread tradition of banning public carry. 

These aren't "obscure bits of history." It's a fairly in-depth inquiry into the history of public carry, and U.S. history in particular. Bruen's majority opinion doesn't rest on the story of Sir John Knight. It rests on the fact that laws prohibiting the average citizen from bearing arms in public were few and far between, and fall outside the tradition of gun ownership in the United States. 

Of course Gladwell can disagree with the majority's interpretation of that history. He wouldn't be alone. And there are ongoing and legitimate debates about how much weight should be given to particular laws, whether the historical record is complete, and how closely modern restrictions must resemble those imposed at the time the Second Amendment (and perhaps the Fourteenth Amendment) was ratified.

Those debates, though, require actually engaging with the Court's reasoning, not reducing its historical analysis to the acquittal of an English nobleman who allegedly terrified churchgoers in 1686.

That brings me to the other part of Gladwell's argument that I find so irritating: his suggestion that the justices should have relied on "common sense" instead of history. Whose common sense are we talking about here?

To Gladwell (and gun control activists), it's apparently common sense that requiring people to demonstrate a special need before they're allowed to carry a firearm will make society safer. To tens of millions of American gun owners, it's common sense that violent criminals aren't going to be stopped by a law requiring them to obtain a government-issued permission slip before carrying a gun, and that ordinary citizens shouldn't have to convince the government that their lives are worth protecting.

The Supreme Court's job in Bruen wasn't to decide whether New York's carry restrictions are sensible to you, me, or Malcolm Gladwell. The Court had to determine whether those restrictions were consistent with the Constitution. When the question involves a right that was enshrined in the Bill of Rights more than two centuries ago, examining the historical understanding of that right isn't some bizarre judicial exercise. It's an attempt to determine what the government was empowered to regulate and what the Constitution placed beyond its reach.

That doesn't mean every historical analogy the Court draws is automatically persuasive, or that its methodology is immune from criticism. I have my issues with Footnote 9 in Bruen, as well as the justices' decision to broaden historical analogues in Rahimi, for instance. But there's a world of difference between criticizing the way the justices applied history and maintaining that they plucked some obscure case from Elizabethan England and used it to rewrite the Second Amendment.

I'm keeping my fingers crossed that Gladwell accepts my invitation to appear on Cam & Company, because I'd genuinely like to hear him explain his objections to Bruen in greater detail. Maybe the book makes a more nuanced argument than the one presented in the Los Angeles Times. 

Like I said, I certainly hope that's the case. But if his objection really boils down to the idea that judges should ignore centuries of legal history whenever it conflicts with what he considers common sense, then I think he's got the Constitution backward.

Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.

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