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The History of Bans on Types of Arms Before 1900
Before 1900, was there a legal history in America of prohibiting particular types of arms? Yes, but it is very short. The far more common policy for controversial arms, such as Bowie knives or handguns, was forbidding concealed carry, limiting sales to minors, or imposing extra punishment for use in a crime.
My coauthor Joseph Greenlee and I explain it all in our 165 page article, The History of Bans on Types of Arms Before 1900, recently submitted to law reviews. Here is the abstract:
This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America.
Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons.
The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis.
Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons.
It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women.
The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines.
Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.
And here is the introduction:
This Article describes the history of bans on particular types of arms in America, through 1899. It also describes arms bans in England until the time of American independence. Arms encompassed in this article include firearms, knives, swords, blunt weapons, and many others. While arms advanced considerably from medieval England through the nineteenth-century United States, bans on particular types of arms were rare.
The U.S. Supreme Court's decision New York State Rifle & Pistol Association v. Bruen instructed lower courts to decide Second Amendment cases "consistent with Heller, which demands a test rooted in the Second Amendment's text, as informed by history." Bruen examined the legal history of restrictions on the right to bear arms through 1899. This Article focuses on one aspect of the legal history of the right to keep arms: prohibitions on particular types of arms.
Part I describes prohibitions on possession of firearms and other arms in England. The launcegay, a type of light lance for horsemen, was banned, as were small handguns, although the handgun ban was widely ignored. A class-based handgun licensing law was apparently little enforced. While most firearms were single-shot, repeating firearms existed for centuries in England, with no special restrictions.
Part II covers America from the colonial period through the Early Republic. No colonial law banned any particular arm. The Dutch colony New Netherland came the closest when it limited the number of flintlocks colonists could bring into the colony, in an effort to quash the trading of flintlocks to Indians. In the British colonies, there were many laws requiring most people, including many women, to possess particular types of arms. The Article is the first to provide a complete, item-by-item list of every mandated arm. Some private individuals owned repeating (multi-shot) firearms and cannons, but such arms were far too expensive for a government to mandate individual possession.
As summarized in Part III, the nineteenth century was the greatest century before or since for firearms technology and affordability. When the century began, an average person could afford a single-shot flintlock musket or rifle. By the end of the century, an average person could afford the same types of firearms that are available today, such as repeaters with semiautomatic action, slide action, lever action, or revolver action. Ammunition had improved even more.
The rest of the article describes nineteenth century laws forbidding particular types of arms. Part IV examines the four prohibitory laws on particular types of firearms: Georgia (most handguns), Tennessee and Arkansas (allowing only "Army & Navy" type handguns, i.e. large revolvers), and Florida (race-based licensing system for Winchesters and other repeating rifles).
Part V turns in depth to the most controversial arm of nineteenth-century America: the Bowie knife. Sales were banned in a few states, and possession was punitively taxed in a few others. The mainstream approach, adopted in most states, was to ban concealed carry, to forbid sales to minors, or to impose extra punishment for criminal misuse. As Part V explains, Bowie knife laws usually applied to other weapons too.
Part VI summarizes the nineteenth century laws about the various other arms. These are other sharp weapons (such as dirks, daggers, and sword canes), flexible impact arms (such as slungshots and blackjacks), rigid impact arms (such as brass knuckles), and cannons. Possession bans were rare, whereas laws on concealed carry, sales to minors, or extra punishment for misuse were more common.
Part VII applies modern Second Amendment doctrine to the legal history presented in the Article. It suggests that some arms prohibitions and regulations may be valid, but bans on modern semiautomatic rifles and magazines are not.
If this Article described only possession bans for adults, it would be very short. Besides outright bans on possession, the Article also describes laws that that forbade sales or manufacture. These are similar to possession bans, at least for future would-be owners. Even with sales or manufacture bans included, this Article would still be very short. For all arms except firearms, the Article describes nonprohibitory regulations. Thus, this Article includes a comprehensive list of all regulations—such as concealed carry bans, limits on sales to minors, or extra punishment for use in a crime—that applied to any of the nonfirearm arms discussed in the Article. This Article is the first to provide a full list of all colonial, state, and territorial restrictions on these arms.
We also list some local restrictions, such as by a county or municipality, but we have not attempted a comprehensive survey of the thousands of local governments.
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Have to admit, you don’t see many mass murders committed with Crossbows
Likewise you don’t see a lot of homes defended with a ballista.
Dammit, now I want one
If you come at the King with a ballista, you best not miss!
They’re essentially offensive weapons, not defensive, because they’re best used against structures, not people. Perhaps Drac
ulakman’s castle needs moats, and stone covered mud embankments, not to mention a tame Nazgul or two.…and to think that I saw it on Conspiracy Street.
Likewise you don’t see a lot of homes defended with a ballista.
You need to get out more.
https://www.youtube.com/watch?v=Mj-JeX4tSB4
Indulge yourself, Frankie!
https://en.wikipedia.org/wiki/Repeating_crossbow
Nah, I’ll shoot my eye out
You know you want one. Go on, I triple-dog-dare you!
Damnit!!! I NEED one of these!
The Zhuge Nu is a handy little weapon that even the Confucian scholar or palace women can use in self-defence… It fires weakly so you have to tip the darts with poison. Once the darts are tipped with “tiger-killing poison”, you can shoot it at a horse or a man and as long as you draw blood, your adversary will die immediately. The draw-back to the weapon is its very limited range.[1]
— Gujin Tushu Jicheng
Sounds like an interesting … article? At 165 pages, that might be better published as a small book. (It would certainly be easier to read.)
A random observation from the article (page 74): Winning a duel using a restricted weapon make the winner liable for the deceased loser’s debts. On the next page, an 1865 Mississippi law requiring a permit from the county police for a black person to have a gun or Bowie knife.
It’s interesting, I suppose, to know the history of which weapons were available and how they were regulated. But isn’t the main, salient feature which defines the gun-regulation problem today the number of guns available?
All this talk about banning, or restricting, this type of gun or that type of gun is (IMHO) missing the point. The problem is that there are so many guns that I can predict with near-certainty that sooner or later, probably sometime in the next few years, a single-digit-age shooter will actually kill his teacher, with a gun. Sooner or later, if you live in a big city, you’ll be mugged at gunpoint by a teenager, or hit by a stray bullet outside a bar or something. And it’s not because of the type of guns available; it’s because of the number of guns in the country.
This is also one of the main reasons for our problems with police – apparently-trigger-happy cops shooting people who turn out to have been holding cellular phones or toys, AND, cops leaving the force or leaving the cities. If you’re a cop, your life depends on assuming that everyone you see at a crime scene, including small children, cripples, and the elderly, is armed and ready to shoot you, unless you have searched him already. Who would want to continue in such a job for more than a short time??
If I had to choose between banning the most fearsome gun-types (choice A) or just gathering up, say, 90% of the guns in my city, to be chosen at random, and tossing them into the deepest part of the ocean (choice B), B seems to me like the much better choice, from a public-safety point of view. You can have your portable concealable fully-automatic armor-piercing laser-guided computer-assisted night-vision-scoped Saturday-Night Special, so long as I don’t have to worry about where the other twenty million guns in my city are gonna turn up.
Remember Kate Steinle? Remember how she died? Someone (it happened to be an illegal immigrant, but that is incidental) picked up a mysterious cloth bag and accidentally discharged the gun it happened to contain; the bullet ricocheted off the ground into her body.
It’s interesting, I suppose, to know the history of which ways to spread information were available and how they were regulated. But isn’t the main, salient feature which defines the information-regulation problem today the amount of information available?
FIFY
Oh, wait, that’s right, you lefties now oppose freedom of speech, too.
So I guess you are consistent in your pathology
If I had to choose between banning the most fearsome gun-types (choice A) or just gathering up, say, 90% of the guns in my city, to be chosen at random, and tossing them into the deepest part of the ocean (choice B), B seems to me like the much better choice, from a public-safety point of view.
Only because you’re an innumerate and psychotic moron.
“One innocent person will be killed if we don’t do this!!11!”
How many innocent people will be killed if you do do that?
How many will be raped? Robbed? Beaten?
Just how psychotic do you have to be to favor taking away people’s ability to effectively defend themselves from criminals?
Prohibition didn’t work with alcohol, it doesn’t work with drugs, and it will not keep guns out of criminal hands
All you can do is keep guns out of law abiding hands. All you can do is make it hard for people to be able to defend themselves, and easier for criminals to victimize them
Which is why only monsters and morons support “gun control”
“Remember Kate Steinle? Remember how she died? Someone (it happened to be an illegal immigrant, but that is incidental) picked up a mysterious cloth bag and accidentally discharged the gun it happened to contain; the bullet ricocheted off the ground into her body.
”
Nice story. How about thr rest of the story?
Wasn’t that one of those insufferable “Family Circus” comics??
“Who shot Baby PJ?!??!”
“Not Me!!!!!!!”
Frank
re: “But isn’t the main, salient feature which defines the gun-regulation problem today the number of guns available?”
No. Next question?
The longer answer – The absolute number of guns is meaningless. The relevant number to your hypothesis is the per capita rate of ownership. Unfortunately for your hypothesis, while that number has climbed some lately, it remains historically low. Furthermore, that increase is occurring at the same time that violent crimes are decreasing. The logical fallacy inherent in your argument is the Availability Heuristic. Yes, some kid will sooner or later kill his teacher with a gun. Yes, someone will die from an accidental discharge. What you’re missing is that that happened in the past, too. Back then, it was a purely local story that no one outside your town ever saw. Now every gun-related incident is splashed across the national media, creating the impression that gun violence is more common than it really is.
No, the number of guns is not the problem.
Rossami, counting yourself, and including only other persons whom you have known face-to-face, how many incidents of gun violence can your recall that affected members of that group? Whatever your answer, on what basis do you propose to relate that experience to a broad estimate of various levels of gun prevalence, and their effects on personal safety in society at large?
For starters, people who are interested in the facts can look at the number of guns in circulation in the US, and compare it over the last 40 years to the number of violent crimes.
I don’t think you’ll like what you see, Stephen.
Cavanaugh, anyone who gets to cherry-pick a statistical method can get the statistics he wants. One thing we know for sure about all gun statistics is that nobody keeps any of them systematically. There is no requirement to do so, and there is every incentive to lie—regardless of which side of the debate is doing the counting.
That is an argument you could use with justification to critique (but not refute) any of dozens of statistical points I could make against increased gun prevalence. But until there is agreement on information about guns, and gun crimes, pro-gun advocates who assert anything with certainty are just making it up. Same with anti-gunners. Because I do not want to be liar, I try not to assert truth based on sketchy statistics and uncheckable sampling methods.
But among pro-gun advocates and gun-control advocates there is a notable difference—when insight demands an effort to systematize gun information, and thus enable a better look, only gun-control advocates show up. Pro-gun advocates tend to be vehemently anti-information. That tells worlds about what pro-gun advocates actually believe accurate information would show. If they really thought accurate information would bolster their interests, they would demand the information.
I will demonstrate one point about pistol prevalence, with a critique you cannot refute, which does not depend on cherry picked facts. It highlights pistol prevalence as notably more risky than you probably suppose. It starts with this essentially tautological generalization: All the pistol shootings which happen must be accounted for by all the pistols there are.
So let’s employ your guns-in-circulation notion to do some math. What do you suppose the typical service life of a pistol is? Pick any number you like. For the sake of this demonstration I will pick 50 years. I think that is probably too short, but in a moment you will see that any longer service life would make the case against pistols stronger, so my number is conservative.
Excluding suicides, but including other fatalities, and including non-fatal pistol shooting injuries treated in hospitals, how many shootings take place each year? That is a number which can be counted with more reliability than most. It turns out to be ~120,000 per year. Look up your own number and plug it in, if you don’t like that one.
Thus we can compute—by simple multiplication of the pistol service life estimate, times the annual shootings—that all the pistols there are have over the prior 50 years accounted for approximately 6 million shootings. What has the nationwide prevalence number for pistols been? I will choose 300 million, which might approximate the present situation, but which would be notably high for years toward the beginning of that 50-year interval. (Possibly, shootings per year might have been lower then, but you seem to be arguing the opposite.) But use today’s ~300 million pistols, to keep the result conservative (meaning as favorable as possible for pistol advocates; as you will see, a lower number would be less favorable for pistol advocates).
With those assumptions you can do a simple division to estimate the likelihood that a pistol in the U.S. will sometime during its service life be used to shoot someone. Turns out that 6 million shootings divided by 300,000,000 pistols gives a probability of 2 percent. Possibly the right calculation is as high as 4 percent per pistol, depending on the service life and gun prevalence figures you choose, but it can hardly be lower than 2 percent. Which is many multiples greater than the reassuring tiny fractions of a percent bruited by pro-gun advocates.
One reason for the statistical contrast includes the fact that this is not an annual figure, it is a cumulative one—which is the only kind which ought to be chosen to measure the effects over time of the enduring prevalence of pistols. Another reason is that it counts injuries by pistol shot, not just fatalities. Given that almost every such injury ought to be presumed to be a case of a potentially fatal result avoided by chance, that is also a fair measure.
Finally, from those basic insights, a statistician could compute the likelihood that someone who owns any number of pistols has one which will at some time during its service life be used to shoot someone. For prolific pistol purchasers, that number is sure to go above 10%, perhaps far above 10% if they buy a lot of pistols over the years. That makes your ostensibly reliable and law-abiding gun-collecting neighbor look like a pretty dangerous guy to have in the neighborhood.
See what I have done? By reducing the question to a calculation which is purely about pistol prevalence and time, I get to take out of the picture the essentially bogus arguments about law-abiding and responsible gun owners. No one knows how law abiding anyone will be forever. There is no reason to care anyway. This analysis is a matter of pure prevalence. All the pistols there are must account for all the pistol shootings which happen.
With this method, there are estimated values, but no games with statistical sleight of hand. Nothing is being sampled. It is the entire phenomenon measured cumulatively over an interval chosen to be the most relevant to the quantities being measured and compared—which are pistol prevalence and pistol shootings.
If you check the way the math works, you will see that longer pistol service life estimates increase the percentage of pistols used to shoot someone, because more years mean more deaths and injuries accumulate. Likewise, if smaller numbers of pistols are estimated to be prevalent during the estimated service life, that too increases the percentage of pistols used to shoot someone, because fewer pistols have to account for all the damage. Only increasing the number of pistols assumed to have been prevalent can reduce the estimated percentage odds that any one of those pistols has been used to shoot someone—but no reasonable estimate along those lines can keep the percentage result from being shockingly high in comparison to the tiny fractions of a percent we are accustomed to hear from pro-gun advocates.
That is because pro-gun advocates choose inappropriate annual numbers, usually discount injuries to zero (even though injuries are far more common than fatalities), and do not reckon at all that the long service life of a pistol is highly likely to put it into the hands of multiple owners. With all those facts taken into dispassionate account, the risk increment to society of every pistol purchased comes into sharper focus. With other things equal, we also get a strong inference that folks who buy lots of pistols proportionately multiply their contributions to societal risk, even if they never shoot someone themselves.
In short, this is an analysis that says, “Spare me the blather about about your innocent motives. Having a lot of guns around is inherently dangerous, and that danger can be measured with fair accuracy.”
You know lathrop, you might have spared us the wall of text and gotten straight to your point.
In short, this is an analysis that says, “Spare me the blather about about your innocent motives. Having a lot of guns around is inherently dangerous, and that danger can be measured with fair accuracy.”
Commener_XY, what do you think about the high percentages of pistols which eventually get used to shoot people?
Given that the number of pistols is likely in the hundreds of millions, even if a million peoples were shot, it would be less than 1% of “Pistols which eventually get used to shoot people”
Ted Kennedy’s Oldsmobile Delta 88 had a higher mortality rate.
(great photo of it here) https://www.gettyimages.com/detail/news-photo/view-of-an-oldsmobile-delta-88-car-owned-and-driven-by-news-photo/52089353
Frank
So the FBI statistics are ‘cherry-picked’ and unreliable, but we’re supposed to take your bullshit imaginary math and just go along with it?
Fact: Over the last 40 years, violent crime rates have plummeted. For the sake of actually being truthful – the last few years have shown a slight uptick.
Fact: Over the same time period, gun ownership has exponentially skyrocketed.
Fact: You complain about my statistics, and then just make up your own to suit whatever long-winded idiocy you want to conjure up.
Cavanaugh, pick your own numerical premises and do the math. You will not reach any much-different conclusion with inputs anyone would consider reasonable. The ones I cited are mainstream approximations readily available online. Vary them at will.
Nothing you do that will not make you ridiculous will deliver a result that is not many multiples higher than the annual numbers pro-gun advocates cite. They hope to distract attention from the destructive role of gun prevalence, so they pick analytic methods tailored to minimize prevalence as a consideration—annual fatalities only, injuries ignored, gun prevalence unreliably estimated, and discounted as a cause, the cumulative character of risk over time ignored.
The method I cited bypasses confounding variables. It isolates pistol prevalence and pistol-caused deaths and injuries as the only subjects under consideration. It properly accounts for the fact that guns are durable, and that the societal risks they deliver are thus cumulative over time.
In your previous comment you taunted me, saying I would not like what I see. I saw obfuscation, and substituted clarity. Now you don’t like what you see.
By the way, if you were better at math, you would not assert contrary to fact that gun ownership has expanded exponentially. And you probably would have found mathematically intelligent ways to critique the model I offered as too simple, and subject to dispute on the basis of method. I thought that was what you might do, but do not expect that it can get you far. If you figure out how to do it, perhaps we could have a worthwhile dialogue, and establish reasonable outer limits for what that method might show. You will still not like what you see.
What you ‘cited’ Stephen, is your own bullshit.
You are a tool who makes up his own equations because looking at the actual facts – for example the violent crime statistics per year compiled by the FBI, would prove that you’re full of shit.
Here’s the table from 2000-2019. (I’m having trouble finding the stats from the 1980s and ’90s) Notice how violent crime, as well as the crime rate, has gone down?
https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-1
How many guns were in circulation in the US, per year, during that time? What was the trend, and mathematically how would you describe it?
If you were better at math, instead of the ignorant fool you are, you’d notice the problems with your imaginary equation before posting your drivel, and spare the rest of us the potential eye injury from rolling them too hard at your asinine arguments. For example, thinking that each “pistol wound” in your imagined equation must’ve been caused by individually unique pistols. Another issue would be the assumption that you can always tell a pistol wound from one caused by a rifle.
I was doing calculus in IB as a junior, and I just blew a gaping wound in your imaginary equation without lifting the proverbial finger.
Tell me again who’s “bad” at math.
Let’s apply the same analysis to cars: in 2012 2.5 million Americans were treated at a hospital for car crash injuries. A car lasts maybe 20 years. There are 282 million cars in America in 2021 (Statista).
Lessee, carry the one … 17% of cars send someone to the hospital.
My wife and I have owned maybe a dozen cars over the years and sent zero people to the hospital. In fact, zero people have needed a bandaid because of our cars.
Since your analysis says cars are over 8 times more dangerous than guns, I guess we’re just a statistical anomaly.
Pro-gun advocates tend to be vehemently anti-information
We are anti the government being able to spy on people, the horror!
And we know that the reason why you gun haters want to collect that “information” is so that you can later use it to confiscate our weapons.
So, spare us the BS whining.
Reality: Putting more guns in the hands of ordinary law abiding citizens leads to a decrease in violent crime
Reality: The left favors an increase in violent crime. This is why left wing DAs are so eager to decrease prosecution and punishment for violent criminals
Reality: nothing that comes from the anti-gun side is EVER done in good faith. So no, we’re not going to give you data that you can use for evil purposes, because the only reason you want the data is so you can engage in those evil purposes
Because if you were actually open to learning from the data, you wouldn’t still be anti-gun
The problem with this thinking is that yo implement confiscation you will have to kill many more people than would be murdered on crimes. 262 million disarmed citizens were killed by their own government in the 20th century.
“Have to” ?!
By this sort of analysis, the NFA should be toast.
Since the NFA isn’t going to be toast, the courts won’t adopt it.
Well of course the NFA has been upheld by the courts, so it has a lot of inertia that has to be overcome.
But it is illustrative of what limited power the federal government thought they had in the midst of the New Deal at a time the were claiming huge powers over the economy like in Wickard. NLRA, etc.
The NFA merely asserted they could require tax stamps for some guns.
Compare that to the powers they are claiming today to outlaw whole classes of commonly used weapons, and magazines.
The interval 1900 – present comprises more than half of U.S. history since ratification of the Constitution. Why should anyone get a hearing whose premise is to analyze history and tradition based on arbitrary exclusion of that more-recent time interval?
In general, it works the other way. Everyone understands that the history which occurred more recently, and the traditions practiced more-recently, are wisely counted more influential now than are events from long ago.
You mean like the 150 plus years since slavery was abolished?
Actually, I think the Supreme Court said late 1860s for the states, and 1790s for the feds. What has happened since Amdts 2 & 14 were enacted is essentially irrelevant when discussing the deprivation of this enumerated fundamental right to keep and bear arms (for self defense and unofficial militia use). Your Living Constitution theory might make sense in other areas, but not here, where the only thing that is relevant is what the 2nd Amdt meant at those points in the past.
Hayden, your comment would make sense except for one thing—the claim the Court made on behalf of history and tradition to justify its decision. If you want to an all-constitutional law decision, maybe a narrow focus on the founding era primarily, and the civil war era secondarily, makes sense. Especially if you are willing to overlook legal precedents from other eras as a basis for decision making.
But once you claim a basis in history and tradition, you have to take the record whole. Either that or be exposed as an outcome-oriented cherry-picking varmint of a Justice. You cannot coherently argue that the history and tradition of the nation consist of only those parts you prefer, and ignore everything else to the contrary. You cannot do that even if you dream up some bogus reasoning designed to dignify cherry picking as principled.
There is another problem too. The Court and Kopel too concentrate on legislation. That is not the way history and tradition work. If you intend to look to history and tradition, you nod toward the laws, but you concentrate instead on legal outcomes. Those tell you not only what actually happened, but what people expected would happen.
If you read Kopel, you get the impression repeatedly that he claims to have read everything relevant. In fact, what he cites is only a tiny fraction of the relevant record, with the remainder contained in legal outcomes and other records he seems not to consult. Kopel never seems to cite anything from those other sources, either pro or con. It makes me wonder if he even knows that legislation is quite often an unreliable source of historical inference.
During the colonial era, and the early post-constitutional era, it was more common than it later became for legal outcomes to be, by our standards, arbitrary. But if magistrates ordered people to be deprived of arms, despite no specific written authority to do so, that does not put the deprivation outside the history and tradition of those times. On the contrary, the ability of the magistrate to do it, and have it enforced, actually implies strong normative support.
You are mistating Bruen’s holding which “which demands a test rooted in the Second Amendment’s text, as informed by history. ”
The court is claiming a basis in the second amendments text, and any narrow infringements must be based on history and tradition, in the context of the 2nd amendment.
So attempts to read the 2nd amendment as only guaranteeing a states right to arm the militia clearly fail because there were no such restrictions at the founding, and any case law from the era, and of course reams of public commentary by the founders support the right as an individual one.
We can all concede there were dark periods in our history where rights were ignored or subjugated to prejudice and corruption and partisanship. Those eras should be seen as what they were, anomalies outside our constitutional traditions. No one today cites the Alien and Sedition acts, Dred Scott, Plessy, Korematsu as more than an aberration where Congress the President and the Supreme Court lost its way, and those instances have been repudiated by the whole of the nation.
And that corrective process is also happening where a handful of states, and at times the federal government has decided the 2nd amendment is inconvenient and should be ignored.
Kazinski, your comment is historically incoherent. It would get you laughed out of any graduate history seminar. I get that the Bruen majority would also have been tossed, so that puts you in supportive company. And the offenses charged against all of you would be failure to consider reams of historical evidence to the contrary of your assertions.
Just stop trying to pretend that the Bruen decision had anything to do with history, and you will be fine—at least until you start trying to argue historical support for Heller. You cannot claim a historical justification to sever from the 2A the only text in it which is plainly supported by the historical record.
Some other points you might want to add can be supported by (very tenuous, likely mistaken, Scalia-like) historical arguments. You cannot read the militia clause out of the 2A and call yourself historically interested.
I think that the Bruen point was to look at the 2nd Amdt through the historical lens of the 1790s, when it was enacted. What it meant then, is what it means now. You may not like that, but right now, it is the law of the land. The key dates are 1791 for the 2nd Amdt, and 1868 when the 14th Amdt, that incorporates the 2nd Amdt for the states, was ratified.
I think that the majority in Bruen was suspicious, and skeptical, of the approach you seem to espouse. It seems too amendable to historic revisionism. 1791 and 1868 are stakes in the ground, to keep historians from redefining, and watering down, this fundamental, enumerated, civil and natural right to Keep And Bear Arms.
By the way, judged by ordinary standards for historical relevance, those, “reams of public commentary by the founders,” do not exist. Scalia presented them as pastiche. Heller’s argument is loaded with historically irrelevant commentary, gathered from times and places which had nothing to do with the founding. Those remarks—which fooled many who read everything to reinforce their priors—depended on ignoring far stronger and more relevant historical evidence to the contrary.
You have been misled by a corrupt method of historical reasoning. It amounts approximately to, “If any founder said anything I like for any reason, at any time, anywhere, it counts as a constitutional justification.” No, that is not a historical method.
The founders, just like everyone else, were capable to let context frame their points of debate. A founder who might have favored an individual right explicitly protected in the Pennsylvania constitution could have quite sensibly—when you understand the differing context—have argued the opposite for the federal constitution. That would not even be remarkable, and it certainly would not be hypocritical. There were excellent reasons to do it that way.
Historical methods demand citations which can be shown to have actual connection in time, place, and context with the subject under historical consideration—in this case the drafting of the Constitution and the Bill of Rights, and their ratification. Scalia threw in a lot of stuff which cannot get over that bar, and you bought it.
Something else. Courts have the evidence before them that they have. Remember the Miller case, where the Supreme Court held the NFA did not infringe the 2nd Amdt because the sawed off shotgun wasn’t in use by the military? Of course, they had been used as “trench sweepers” by US troops in WW I, and our armories were filled with them at the time. But, by the time they heard the case, the defendants were both dead, and in the appeals system, they were procedurally beyond adding new evidence. Which is to say that the decision was based on an (intentionally) fictitious evidentiary record.
Here we have essentially the same sort of thing. It was the Heller side that submitted the historical review and the like. One of the main authors of the historical analysis they utilized was EV, who had clerked for one of the Republican nominated Justices. The Republican majority no doubt remembered him, from his time there, and they trusted his research.
The other thing to keep in mind is that big cases often don’t revolve around what the Justices say they do, in their decisions, but rather often involve much deeper issues. A good argument and briefs by DC here (in Heller) might possibly, have swayed a single Republican Justice. Maybe. Probably not. Judges (and Justices) routinely cherry pick evidence, history, precedents, etc. That is a big reason why so many appellate decisions have dissents. That’s something that most students discover their first week or two in law school.
Also, “as informed by history,” cannot possibly mean misinformed by made-up history, while real history to the contrary gets ignored.
“Real History” ?? like that a US Senator could abandon a young woman to asphyxiate (Not Drown, there’s a difference) and still serve 40 more years in the Senate, run for President, and merely get his Driver’s License suspended?? And he was one of the boobs questioning Clarence Thomas about “Long Dong Silver”
Frank
Thank you for your scholarship on this. I’m sure it will help judges, and citizens alike.
I would be curious to know which law reviews it was submitted to, and which, if any, has published this?
But none of this is restriction of the right to bear arms, it all involves conflict of rights.
You have a right to a gun or to not have a gun. But you have no right to have a gun and not at the same time, logical impossibility.