For over a decade, I have been reading, studying, and writing about old weapons laws. This research has been a revelation precisely because it uncovers a regulatory past fundamentally at odds with the prevailing stereotypical theme of American popular culture and considerable academic writing: that the American nation was forged and typified by widespread weapons ownership and carrying, mostly unencumbered by weapons regulations.
In fact, the emergent truth is the opposite: without question, gun ownership is as old as the country, but so are gun and other weapons laws. Regulating weapons was the default in American history, and those laws were essential to America’s development.
As I examine in my new book, Gun Law History: How Three-Hundred Years of Weapons Laws Built the Nation, from the early 1600s to the start of the twentieth century, colonies, states, and localities enacted literally thousands of gun laws of every imaginable variety. In fact, in many respects, guns and other weapons were more heavily regulated in the country’s first 300 years than in the last thirty, when a muscular political movement to roll back numerous gun laws met with considerable success at the state and local levels, though that effort, ironically, also spurred a counter-move in some states to strengthen gun laws. This, in turn, has led to an increasingly bifurcated system of state and local laws, a tale that has been covered extensively in scholarly and popular accounts.
America’s historic embrace of weapons laws has found extensive confirmation, thanks in no small part to the digitization of old gun laws made available within the last decade, a project pioneered by Duke Law School’s Center for Firearms Law. This significant data source is more than a matter of antiquarian interest because of the Supreme Court’s conservative doctrinal turn regarding the meaning of the Second Amendment’s right to bear arms.
In 2008, the nation’s highest court ruled for the first time in history that the Second Amendment protected an individual or personal right to own a handgun for self-defense in the home, rejecting the militia-based meaning enshrined in the amendment’s reference to “a well regulated militia.” That decision, District of Columbia v. Heller, was, as the majority opinion’s author Justice Antonin Scalia said, his most history-driven opinion.
In 2022, the Court’s conservative majority doubled down on history-based analysis arising from its adherence to the doctrine of constitutional Originalism in NYSRPA v. Bruen. The majority opinion, authored by Justice Clarence Thomas, struck down New York’s discretionary permitting regime and also asserted a new right: that the Second Amendment protected “an individual’s right to carry a handgun for self-defense outside the home,” claiming that there was “little evidence of an early American practice of regulating public carry by the general public.” The Court went even further, saying that the constitutionality of modern gun laws now depends on whether they are “consistent with this Nation’s historical tradition of firearm regulation.”
The problem with the Court’s historic analysis pertaining to gun carrying is that it is almost entirely wrong. Far from being exceptional in American history, gun regulations restricted all manner of weapons carrying. As the historian Saul Cornell concluded, “there was no general right of armed travel when the Second Amendment was adopted, and certainly no right to travel with concealed weapons.”
Stated differently, the popular culture image of American gun-toting throughout history, unencumbered by laws, is mostly a fiction. Yes, Americans owned guns since the country’s earliest days, but handgun ownership was relatively uncommon until after the Civil War, and laws criminalizing gun carrying—especially concealed carry of pistols, fighting knives, and various types of clubs—were ubiquitous.
For example, research demonstrates that as the nation grew, no-carry laws, dating to the 1600s, proliferated—such that, by the start of the twentieth century, every state in the country had enacted laws prohibiting the carrying of concealed weapons. In addition, at least three-quarters of the states enacted open weapons carry restrictions, and nearly half of the states restricted all weapons carrying (with customary exceptions for the military, police, travelers, and instances of justifiable self-defense where the burden was on the defender to justify the weapons carrying).
Further, at least three-quarters of the states had laws that punished public weapons displays, including, but not limited to, brandishment. About half of these state laws punished those who displayed weapons publicly in a threatening manner, but the other half punished the mere public presence of weapons — that is, the mere appearance of weapons-carrying in public was sufficient grounds for prosecution.
As for the 1911 New York pistol licensing law that drew court scrutiny in the Bruen case as unduly restrictive or discretionary, history yields two important lessons. First, while often considered the first such licensing law, it was not. Weapons licensing laws in fact have an extensive historical pedigree, dating to the 1600s. The earliest licensing laws tended to be limited in scope, however, for another reason that has escaped the Court’s notice: early American governance lacked the powers, tools, record-keeping, communications capabilities and policing to enact and enforce the sort of wide-ranging licensing schemes we take for granted today. As governance and technology grew in the nineteenth century, so too did licensing. In all, by the start of the twentieth century, every state had enacted weapons licensing laws, amounting to over 350 such statutes.
Second, the discretionary nature of the 1911 New York law that the Court found objectionable was not only not unique, it was typical. Old weapons licensing laws were routinely highly discretionary, giving local authorities discretionary carte blanche over gun licensing decisions.
In addition to these carry laws, this study offers, perhaps for the first time, the full panoply of types of old weapons laws. Further, the book argues that weapons laws were essential to American political development.
Other categories of historical weapons restrictions analyzed in this account include those related to weapons technology advances, restrictions on unusual weapons, restrictions pertaining to those deemed “undesirable,” and minors, among many others.
These and other laws proliferated for a central reason that has also received far too little attention. Weapons laws were essential to fulfilling the government’s pre-eminent, most important purpose: protecting the “public peace” or “the people’s welfare.” For that reason alone, weapons restrictions were indispensable to the development of the modern American nation-state as it evolved from a small, agrarian, Atlantic-coast-hugging, fledgling nation to a transcontinental industrial and economic giant.
The words “history” and “historic” appear in the 2022 Bruen decision over 200 times. To date, the high court has largely fumbled the very task it claims should determine the constitutionality of modern gun laws: the provenance of historical weapons laws. Leaving aside the troubling predicate of this paradigm, and the manifold problems with the theory behind it, the courts should either take the history paradigm seriously or abandon it altogether.
