The Volokh Conspiracy
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The Founders were well aware of continuing advances in arms technology
Building on what had come before, the Madison-Monroe research program led the way to the many innovations of the 19th century
During the 19th century, firearms improved more than in any other century. As of 1800, most firearms were single-shot muzzleloading blackpowder flintlocks. By end of the century, semiautomatic pistols using detachable magazines with modern gunpowder and metallic cartridges were available. Would the Founders be surprised by the improvements in ability to exercise Second Amendment rights? Perhaps not, given the tremendous advances in firearms that had taken place before 1791. And certainly not, given that James Madison, author of the Second Amendment, initiated a federal government industrial with the specific aim of vastly improving the quality and quantity of firearms manufacture.
Part I of this post briefly describes Some of the firearms advances before 1791. Part II describes the federal industrial policy for advancing firearms technology.
This post is based on my article The History of Bans on Types of Arms Before 1900. It is forthcoming in Notre Dame's Journal of Legislation, vol. 50, no. 2, in 2024. The Post also draws on chapter 23 of my coauthored textbook Firearms Law and the Second Amendment: Regulations, Rights, and Policy (Aspen Pub., 3d ed. 2022).
I. Firearms improvements before 1791
While the Founders could not foresee all the specific advances that would take place in the nineteenth century, the Founders were well aware that firearms were getting better and better.
Tremendous improvements in firearms had always been part of the American experience. The first European settlers in America had mainly owned matchlocks. When the trigger is pressed, a smoldering hemp cord is lowered to the firing pan; the powder in the pan then ignites the main gunpowder charge in the barrel.
The first firearm more reliable than the matchlock was the wheel lock, invented by Leonardo da Vinci. In a wheel lock, the powder in the firing pan is ignited when a serrated wheel strikes a piece of iron pyrite. The wheel lock was the first firearm that could be kept loaded and ready for use in a sudden emergency. Although matchlock pistols had existed, the wheel lock made pistols far more practical and common. Paul Lockhart, Firepower: How Weapons Shaped Warfare 80 (2021).
The wheel lock was the "preferred firearm for cavalry" in the sixteenth and seventeenth centuries. Id. The proliferation of wheel locks in Europe in the sixteenth century coincided with the homicide rate falling by half. See Carlisle E. Moody, Firearms and the Decline of Violence in Europe: 1200-2010, 9 Rev. Eur. Stud. 53 (2017)
However, wheel locks cost about four times as much as matchlock. Moreover, their moving parts were far more complicated than the matchlocks'. Under conditions of hard use in North America, wheel locks were too delicate and too difficult to repair. The path of technological advancement often involves expensive inventions eventually leading to products that are affordable to average consumers and are even better than the original invention. That has been the story of firearms in America.
Flintlocks quintuple the rate of fire
The gun that was even better than the wheel lock, but simpler and less expensive, was the flintlock. The earliest versions of flintlocks had appeared in the mid-sixteenth century. But not until the end of the seventeenth century did most European armies replace their matchlocks with flintlocks. Americans, individually, made the transition much sooner. Lockhart at 106.
Indian warfare in the thick woods of the Atlantic seaboard was based on ambush, quick raids, and fast individual decision-making in combat—the opposite of the more orderly battles and sieges of European warfare. In America, the flintlock became a necessity.
Unlike matchlocks, flintlocks can be kept always ready. Because blackpowder is hygroscopic, and could be ruined by much water, it was common to store a firearm on the mantel above the fireplace. Another advantage, which mattered greatly in America but was mostly irrelevant for European warfare, is that a flintlock, unlike a matchlock, has s no smoldering hemp cord to give away the location of the user. Flintlocks are more reliable than matchlocks—all the more so in adverse weather, although still far from impervious to rain and moisture. Significantly, Flintlocks are much simpler and faster to reload than matchlocks. See, e.g., W.W. Greener, The Gun and Its Development 66-67 (9th ed. 1910); Charles C. Carlton, This Seat of Mars: War and the British Isles 1585-1746, at 171-73 (2011).
Initially, the flintlock could not shoot further or more accurately than a matchlock. Lockhart at 105. But it could shoot much more rapidly. A matchlock takes more than a minute to reload once. Id. at 107. In experienced hands, a flintlock could be fired and reloaded five times in a minute, although under the stress of combat, three times a minute was a more typical rate. Id. at 107-08. Compared to a matchlock, a flintlock was more likely to ignite the gunpowder charge instantaneously, rather than with a delay of some seconds. Id. at 104. "The flintlock gave infantry the ability to generate an overwhelmingly higher level of firepower." Id. at 107.
The Theoretical Lethality Index (TLI) is a measure of a weapon's effectiveness in military combat. The TLI of a seventeenth century musket is 19 and the TLI of an eighteenth century flintlock is 43. Trevor Dupuy, The Evolution of Weapons and Warfare 92 (1984). So the transition of firearm type in the American colonies more than doubled the TLI. There is no reason to believe that the American Founders were ignorant of how much better their own firearms were compared to those of the early colonists.
Joseph Belton's 16-shot model
In 1777 in Philadelphia, inventor Joseph Belton demonstrated a firearm that could fire 16 shots all at once. The committee watching the demonstration included General Horatio Gates, General Benedict Arnold, and scientist David Rittenhouse. They wrote to the Continental Congress and urged the adoption of Belton guns for the Continental Army. Congress voted to order a hundred--while requesting that they be produced as 8-shot models, since gunpowder was scarce. However, the deal fell through because Congress could not afford the high price that Belton demanded. Repeating arms were expensive, because their small internal components require especially complex and precise fitting.
Hence, the Founders who served in the Second Continental Congress were well aware that a 16-shot gun had been produced, and was possible to produce in quantity, for a high price. Delegates to the 1777 Continental Congress included future Supreme Court Chief Justice Samuel Chase, John Adams, Samuel Adams, Francis Dana, Elbridge Gerry, John Hancock, the two Charles Carrolls from Maryland, John Witherspoon (President of Princeton, the great American college for free thought), Benjamin Harrison (father and grandfather of two Presidents), Francis Lightfoot Lee, and Richard Henry Lee .
The Girardoni rifle
Likewise, the 22-shot Girardoni rifle famously carried by the Lewis & Clark expedition starting in 1803 was no secret, as it had been invented in 1779. It was used by the Austrian army as a sniper rifle. Powered by compressed air, its bullet his as hard as the modern Colt .45ACP cartridge. John Paul Jarvis, The Girandoni Air Rifle: Deadly Under Pressure, Guns.com, Mar. 15, 2011.
The Girardoni had a 21 or 22 round caliber tubular magazine, and could be quickly reloaded with 20 more rounds, using speedloading tubes that came with the gun. After about 40 shots, the air reservoir could be exhausted, and would need to be pumped up again.
Repeaters in ordinary commerce
As of 1785, South Carolina gunsmith James Ransier of Charleston, South Carolina, was advertising four-shot repeaters for sale. Columbian Herald (Charleston), Oct. 26, 1785.
The American Rifle
The founding generation was especially aware of one of the most common firearms of their time, the Pennsylvania-Kentucky rifle, which is also called "The American Rifle." The rifle was invented by German and Swiss gunsmith immigrants in the early eighteenth century. When they came to Pennsylvania for religious freedom, they were familiar with the heavy Jaeger rifles of Central Europe.
The American Rifle was created initially for the needs of frontiersmen who might spend months on a hunting expedition in the dense American woods. "What Americans demanded of their gunsmiths seemed impossible": a rifle that weighed ten pounds or less, for which a month of ammunition would weigh one to three pounds, "with proportionately small quantities of powder, be easy to load," and "with such velocity and flat trajectories that one fixed rear sight would serve as well at fifty yards as at three hundred, the necessary but slight difference in elevation being supplied by the user's experience." Robert Held, The Age of Firearms: A Pictorial History 142 (1956). "By about 1735 the impossible had taken shape" with the creation of the iconic American Rifle. Id.
As for the most common American firearm, the smoothbore (nonrifled) flintlock musket, there had also been great advances. To a casual observer, a basic flintlock musket of 1790 looks very similar to flintlock musket of 1690. However, improvements in small parts, some of them internal, had made the best flintlocks far superior to their ancestors. For example, thanks to English gunsmith Henry Nock's 1787 patented flintlock breech, "the gun shot so hard and so fast that the very possibility of such performance had hitherto not even been imaginable." Id. at 137.
The Founders were well aware that what had been impossible or unimaginable to one generation could become commonplace in the next. With the federal armories advanced research and development program that began in the Madison administration, the U.S. government did its best to make the impossible possible.
II. James Madison and James Monroe, the founding fathers of modern firearms
U.S. Representative James Madison is well-known as the author of the Second Amendment and the rest of the Bill of Rights. What is not well-known is how his presidency put the United States on the path to mass production of high-quality affordable firearms.
Because of weapons procurement problems during the War of 1812, President Madison's Secretary of War James Monroe, who would succeed Madison as President, proposed a program for advanced weapons research and production at the federal armories, which were located in Springfield, Massachusetts, and Harpers Ferry, Virginia. The Madison-Monroe program was to subsidize technological innovation. Ross Thomson, Structures of Change in the Mechanical Age: Technological Innovation in the United States 1790-1865, at 54-59 (2009). It was enthusiastically adopted with the support of both the major parties in Congress: the Madison-Monroe Democratic-Republicans, and the opposition Federalists. 8 Stat. 204 (1815); Johnson, Kopel, Mocsary, Wallace & Kilmer, Firearms Law and the Second Amendment: Regulation, Rights, and Policy 2209 (3d ed. 2022) (online chapter 23).
While serving as ambassador to France, Thomas Jefferson had observed the progress that the French were making in producing firearms with interchangeable parts. He enthusiastically recommended that the United States do the same. See Letter from Thomas Jefferson to John Jay (Secretary of Foreign Affairs under the Confederation government), Aug. 30, 1785, in 1 Memoirs, Correspondence, and Private Papers, of Thomas Jefferson 299 (Thomas Jefferson Randolph ed., 1829). In 1801, President Jefferson recounted his French observations to Virginia Governor James Monroe and expressed hope for Eli Whitney's plan for interchangeable gun parts. Letter from Thomas Jefferson to James Monroe, Nov. 14, 1801, in 35 The Papers Of Thomas Jefferson 662 (Barbara B. Oberg ed., 2008).
Under the bipartisan Madison-Monroe program, generous federal arms procurement contracts had long lead times and made much of the payment up-front, so that manufacturers could spend several years setting up and perfecting their factories. The program succeeded beyond expectations, and helped to create the American industrial revolution.
The initial objective was interchangeability, so that firearms parts damaged in combat could be replaced by functional spare parts. After that would come higher rates of factory production. And after that, it was hoped, production at lower cost than artisanal production. Achieving these objectives for the more intricate and closer-fitting parts of repeating firearms would be even more difficult.
To carry out the federal program, the inventors associated with the federal armories first had to invent machine tools. Consider for example, the wooden stock of a long gun. The back of the stock is held against the user's shoulder. The middle of the stock is where the action is attached. (The action is the part of the gun containing the moving parts that fire the ammunition; the Founding generation called it "the lock.") For many guns, the forward part of the stock would contain a groove to hold the barrel.
Making a stock requires many different cuts of wood, few of them straight. The
artisanal gunmaker would cut with hand tools such as saws and chisels. Necessarily, one artisanal stock would not be precisely the same size as another.
To make stocks faster and more uniformly, Thomas Blanchard invented fourteen different machine tools. Each machine would be set up for one particular cut. As the stock was cut, it would be moved from machine to machine. By mounting the stock to the machine tools with jigs and fixtures, a manufacturer could ensure that each stock would be placed in precisely the same position in the machine as the previous stock. The mounting was in relation to a bearing — a particular place on the stock that was used as a reference point. To check that the various parts of the firearm, and the machine tools themselves, were consistent, many new gauges were invented. Felicia Johnson Deyrup, Arms Makers of the Connecticut Valley: A Regional Study of the Economic Development of the Small Arms Industry, 1798-1870, at 97-98 (1948); Thomson at 56–57.
What Blanchard did for stocks, John H. Hall, of the Harpers Ferry Armory, did for
other firearms parts. Hall shipped some of his machine tools to Simeon North, in Connecticut. In 1834, Hall and North made interchangeable firearms. This was the first time that geographically separate factories had made interchangeable parts. Id. at 58; Merritt Roe Smith, Harpers Ferry Armory and the New Technology: The Challenge of Change 212 (1977).
Because Hall "established the efficacy" of machine tools, he "bolstered the confidence among arms makers that one day they would achieve in a larger, more efficient manner, what he had done on a limited scale. In this sense, Hall's work represented an important extension of the industrial revolution in America, a mechanical synthesis so different in degree as to constitute a difference in kind." Id. at 249.
The technological advances from the federal armories were widely shared among American manufacturers. The Springfield Armory built up a large network of cooperating private entrepreneurs and insisted that advances in manufacturing techniques be widely shared. By mid-century, what had begun as the mass production of firearms from interchangeable parts had become globally known as "the American system of manufacture"—a system that encompassed sewing machines, and, eventually typewriters, bicycles, and automobiles. See, e.g., David R. Meyer, Networked Machinists: High-Technology Industries In Antebellum America 81-84, 252-62, 279-80 (2006).
Springfield, in western Massachusetts on the Connecticut River, had been chosen for the federal armory in part because of its abundance of waterpower and for the nearby iron ore mines. Many private entrepreneurs, including Colt and Smith & Wesson, made the same choice. The Connecticut River Valley became known as the Gun Valley. It was the Silicon Valley of its times, the center of industrial revolution. Id. at 73–103, 229–80.
In short, the Founding generation was familiar with tremendous advances in firearms technology. In the American colonial experience, the rate of fire for an ordinary firearm had quintupled. As of 1791, repeating firearms capable of firing 16 or 22 shots had been demonstrated, but they were much too expensive for ordinary citizens. The Madison-Monroe administration's wise industrial policy, continued under future administrations, led the way towards the mass production of high quality firearms at low prices. No one in 1791 or 1815 could have foreseen all the firearms innovations in the 19th century. We do know that the American federal government did all it could to make those innovations possible.
