- Publication Date
- September 3, 2026
- Keywords
- Arms Technology, Cases/Lawsuits, Intellectual Property, Second Amendment
- Abstract
- The U.S. Supreme Court has consolidated Viramontes v. Cook County with Grant v. Higgins to decide whether the Second Amendment protects possession of AR-platform and other common semiautomatic rifles. In Grant, the Second Circuit recast Heller’s “dangerous and unusual” as “unusually dangerous,” and Bruen’s “unprecedented societal concerns or dramatic technological changes” as “novel societal problems stemming from newly developed technology.” Because the “relatively primitive” arms of the founding period failed to “facilitate mass killings,” the court reasoned, the AR-15 is a technological novelty more analogous to an 1830’s knife than to its founding-era predecessors. Yet Bruen identified no criterion by which a technological change is sufficiently “dramatic” to warrant its “more nuanced approach.” Kamper and Chittum’s Not Frozen in Amber (forthcoming) reads the Second Amendment with the Patent Clause to recover the founding conception of technology, but draws its firearms patents from 1836 onward, after the Act of 1836 had displaced the founding-era statutes and the Patent Office fire had destroyed their records. This paper examines the founding-era Acts’ departure from the Statute of Monopolies, their separate treatments of improvement and of novelty, and the firearms patents granted before 1836. Between 1790 and 1836, inventors patented incremental improvements to arms in “common use,” and those improvements produced the repeating arms of the period, which subsequent inventors improved in turn. Measured by the founding era’s own law of novelty, the arms at issue are not a dramatic technological change but the latest increment in a history and tradition of arms improvement that began in the founding period.
- Recommended Citation
- Keren Karmiel, Jonathan S. Goldstein & Joseph G.S. Greenlee, Nothing New Under the Gun (Firearms Rsch. Ctr., Working Paper No. 2026-9).
