In March 2023, the New York Times wrote an article titled, “In the Gun Law Fights of 2023, a Need for Experts on the Weapons of 1791.” The subtitle states, “A Supreme Court decision has forced courts to consider what gun restrictions existed two centuries ago, sending demand soaring for historians.”[i] While demand is soaring, the Supreme Court’s Bruen case has pitted historians against one another in ways that are potentially detrimental to the field.
In June 2022, the Supreme Court ruled in favor of the plaintiffs in the New York State Rifle and Pistol Association et al v Bruen. The case successfully challenged laws in a half-dozen states that allowed public carry only for people who proved a special need. However, Bruen’s history-based standard has had a broad impact, thrusting history into the spotlight.
Bruen was not the first-time history has been relevant to the modern constitutional gun debate. The 2008 Supreme Court ruling District of Columbia v. Heller affirmed the Second Amendment as an individual right. The Heller words most often quoted by lower courts are “constitutional rights are enshrined with the scope they were understood to have when the people adopted them.”[ii]
Heller suggested that some arms are not protected by the Second Amendment, namely those that are not in “common use” and are “dangerous and unusual.” Heller did not completely define these terms. Bruen took that concept one step further by creating a formula to establish a hierarchy of relevant time periods when deciding court cases.
Under Bruen’s test, the most relevant time frame in consideration regarding the constitutionality of modern regulations is the Founding Era, surrounding the ratification of the Second Amendment. Prior or subsequent time periods can be used to provide the context of what was available leading up to the formation of the Second Amendment, and to provide insight “to determine the public understanding of a legal text in the period after its enactment or ratification.”[iii]The closer to 1791, the greater the relevance. In contrast, late nineteenth century history can be helpful when it affirms what has been established by earlier history. The twentieth century is significantly less relevant than the prior periods. These eras do not necessarily provide insight though if they contradict earlier evidence.
Ultimately, it is for the courts to determine what time periods outside of the Founding Era, if any, to consider based on several factors: technology, availability, laws, and fundamental changes in society. Firstly, the attorneys must identify what technology existed before and during the Founding Era and whether the public and/or the Founding Fathers would have been aware of said technology. Secondly, they must argue for or against historical laws they see as relevant to their cases. Thirdly, if there are no seemingly relevant laws, they then must argue for the consideration of a later time frame. Often, this argument concerns a specific societal change that was not present previously, such as new technology, a shift in manufacturing and/or a stark increase in violent crime.
Founding Era: Firearms Technology
Although many cases are being heard in the courts, two of the most relevant concern repeating firearms, specifically the examination of 1. magazine restrictions and/or 2. so-called “assault weapons” bans. While these definitions differ from state to state, the general rule of thumb is the regulation of detachable magazines over ten rounds and/or semi-automatic centerfire (sometimes rimfire) rifles with certain features, such as pistol grips, folding or telescoping stocks, and threaded barrels.
Expert reports on both sides lay out histories of repeating firearms, usually with a focus on magazine-fed firearms and repeating firearms over ten rounds. Both sides agree that these technologies did exist, but they argue the extent to which they are applicable to modern firearms and law. Often referenced firearms in these reports are repeaters such as the magazine-fed Kalthoff (1640s), Lorenzoni (1660s), Girardoni (1770s), and Belton-Jover firearms (1780s). Another non-magazine repeater that garners a lot of attention is the original superposed design for the Belton Fusil (1750s), as well the Chambers repeating firearm (1790s) and recently, the Dafte self-rotating revolver (1680s).[iv]
References to these firearms are used to argue several points. 1. As previously stated, whether the technologies are comparable to their modern counterparts. 2. The next concern is if people would have known about the existence of these technologies. Both sides do so through an examination of a) quantity found in America at the time of the Founding Era b) whether foreign-made examples would be known in the states and c) whether a technology’s success or failure impacts a general population’s knowledge of their existence. This determination is crucial to another part of Bruen’s Test—historic laws.
Founding Era: Laws and Relevance
After identifying technological developments, the following step concerns how these technologies were regulated, if at all. The most important component under Bruen is providing guidance for how to determine a historical analogue. While the law does not have to be a twin of a past law, courts should not ‘uphold every modern law that remotely resembles a historical analogue.”[v]
While technology has a straightforward history, regardless of whether the conclusions differ, the dialogue on relevant laws gets more complicated. Although it is understood that early firearms laws did center around the regulation of people rather than technology, the arguments for why, are quite divergent.[vi] Since those laws do not focus on firearms, ammunition, or their features, some people shift focus on whether the regulation of trap guns and powder limits in the home count as analogues to modern laws through the lens of public safety.
One side argues that militia laws often contain carry requirements rather than restrictions of ammunition and arms. For example, in the Massachusetts Law of 1649, militiamen were required to carry twenty bullets. In 1785, Virginia required individuals to carry a cartridge box, four pounds of lead, including twenty blind cartridges. In 1786, New York enacted a statute that required a box of no less than twenty-four cartridges. Even Paul Revere’s Minutemen had to carry thirty bullets and gunpowder.[vii] That side argues that the legal requirement of a minimum number of munitions to be carried on one’s person dispels any referenced historical analogue that would support a restriction of repeating firearm capacity.
The other side argues though that powder restrictions on the amount of powder one can possess in their home proves the opposite. Public powder houses provided a structurally safe place to store powder for people. In 1725 Philadelphia, the government enacted a law “for the better securing of the city of Philadelphia from the Danger of Gunpowder.” Under this Act, it also identified the distance of beyond two miles outside of town limits to be safe.[viii]Similarly, Boston in 1783 also made a storage law citing the instability of black powder. “In the houses of the town of Boston, [it] is dangerous to the lives of those who are disposed to exert themselves when a fire happens to break out in town.”[ix] While the above example concerned town limits, some places created an identifiable safe distance from the Powder House itself. For example, in 1762, Rhode Island enacted “that no person whatsoever shall fire a gun or other fireworks within one hundred yards of the said powder house.”[x] These laws, often referred to as fire prevention laws, were established for the purpose of public safety. As a result, this side argues that the government intervening for public health sets a precedent for laws regulating other firearms and features today that they associate as dangerous.
The search for a historical analogue has caused many to look deeply into the laws of the past and unsurprisingly, each side reaches different conclusions. Although it’s interesting to note that both sides have successfully argued their positions in court since Bruen. The appeal process, however, reveals the larger grey area of this test because a win one day could still be a loss the next.
An Acceptable “Expert”
Bruen’s impact within the history field has not all been positive. An extreme amount of gatekeeping now exists to identify the adequacy of an individual’s background and sources to determine how much weight to give an expert report. While that sounds like a perfectly acceptable concept, it has devolved into a fight, with little respect being shown, between traditional academics, Ph.D.’s and J.D’s versus nontraditional scholars, collectors, and curators.
The problem lies in the ways of identifying good scholarship. It is believed that the university system of peer-review is a superior process to research done by collectors. However, as the study of the technology of firearms is lacking within the academic community, academic works are often riddled with flaws that cannot be caught through peer-review because the field has limited peers. On the other hand, firearms researchers and collectors do not need to go through the rigors of peer review to publish, so it can be difficult, unless one knows the scholars, to identify gun lore from fact. In essence, courts must take the expert’s word for it, which causes confusion. In the end, the fate of firearms history, in a post-Bruen era, is unfairly left to lawyers and judges who do their best in determining historical legitimacy—a unique challenge to the future of firearms scholarship.
[i] Hubler, Shawn. “In the Gun Law Fights of 2023, a Need for Experts on the Weapons of 1791.” The New York Times. March 14,2023 <https://www.nytimes.com/2023/03/14/us/gun-law-1791-supreme-court.html> Accessed July 5, 2023.
[ii] New York State Rifle & Pistol Association Inc v Bruen (Quoting Heller, 554 U.S. at 634-635. <https://www.supremecourt.gov/opinions/21pdf/20-843_new_m648.pdf> Accessed 12/20/2023.
[iii] Bruen (quoting Heller, 554 U.S. at 605)
[iv] The following is a list of sources where you can find more information on the referenced firearms: (Kalthoff) Houze, Herbert G and Ashley Hlebinsky, Co-Curators. “Art of the Hunt: Decorated European Sporting Arms from 1500-1800.” Exhibition. Houston Museum of Natural Science, 2019; (Lorenzoni) <https://royalarmouries.org/stories/our-collection/the-christmas-connection-to-captain-souths-lorenzoni-pistol-our-collection/> Accessed December 20 2023; (Dafte) Ferguson, Jonathan. “An Important Early Self-Rotating Revolver c. 1680, possibly by John Dafte.” The Antique Arms Fair at Olympia London. Pg. 30; (Belton) Kopel, David and Joseph Greenlee. “The History of Bans on Type of Arms before 1900.” Journals of Legislation, page 38; (Cookson) National Firearms Museum <https://www.nramuseum.org/the-museum/the-galleries/the-road-to-american-liberty/case-22-the-paper-cartridge/cookson-volitional-repeating-flintlock.aspx> Accessed December 20, 2023; (Belton-Jover) < https://www.youtube.com/watch?v=-wOmUM40G2U> Accessed June 15, 2023; Fagal, Andrew J.B. “The Promise of American Repeating Weapons, 1791-1821. Age of Revolutions. <https://ageofrevolutions.com/2016/10/20/the-promise-of-american-repeating-weapons-1791-1821/> December 20, 2023
[v] Bruen at 2131-2133. <https://www.supremecourt.gov/opinions/21pdf/20-843_new_m648.pdf> Accessed December 20, 2023
[vi]One of the best resources to search all firearms laws is the Duke Center for Firearms Law. <https://firearmslaw.duke.edu/> Accessed December 20, 2023
[vii] This information is compiled and referenced from Virginia Duncan et al v Bonta (2019) in the Order granting plaintiff’s Motion for summary judgment, referencing United States v. Miller (1939)
[viii] 1725 Pa. Laws 31, An Act for the Better Securing of the City of Philadelphia from the Danger of Gunpowder <https://firearmslaw.duke.edu/laws/1725-pa-laws-31-an-act-for-the-better-securing-of-the-city-of-philadelphia-from-the-danger-of-gunpowder-%c2%a7-2/> Accessed 10/25/22
[ix] Thomas Wetmore, Commissioner, The Charter and Ordinances of the City of Boston <https://firearmslaw.duke.edu/laws/thomas-wetmore-commissioner-the-charter-and-ordinances-of-the-city-of-boston-together-with-the-acts-of-the-legislature-relating-to-the-city-page-142-143-image-142-1834-available-at-the-making-of/> Accessed December 20, 2023
[x] 1762 R.I. Pub. Laws 132 <https://firearmslaw.duke.edu/laws/1762-r-i-pub-laws-132/> Accessed December 20, 2023