The Biden Administration recently pushed out a new rule to restrict “ghost guns”—firearms without a serial number. The rule would require that kits for homemade do-it-yourself firearms are manufactured only by federal firearm licensees (FFLs) and that the kit’s frame or receiver be marked with a serial number. It also requires that any FFLs or gunsmiths who come into possession of an unserialized firearm affix a serial number before selling it. As the administration notes, “[t]his requirement will apply regardless of how the firearm was made, meaning it includes ghost guns made from individual parts, kits, or by 3D-printers.” The rule is almost certain to be challenged by gun-rights advocates and, whatever other arguments there may be against the rule (such as the administrative law challenges that have been raised against the bump stock regulation), the Second Amendment is likely to take center stage. And if the Supreme Court in Bruen declares text, history, and tradition to be the guiding methodology for evaluating Second Amendment claims, courts are going to face serious challenges in evaluating the ghost gun rule.
The test of text, history, and tradition (THT) would require courts to judge the constitutionality of a gun law by whether it is supported by those three things alone. Laws that are grounded in history and tradition are permissible. Those without such a pedigree are not. Proponents of the test, like then-Judge Brett Kavanaugh, assured critics that a THT test would not imperil all forms of modern regulations that respond to novel problems. “Rather,” he said, “in such cases, the proper interpretive approach is to reason by analogy from history and tradition.” Such assurances did not, however, quell the criticism from those who find such a test unworkable. Nelson Lund, the former Patrick Henry Professor of Constitutional Law and the Second Amendment and current University Professor at the Antonin Scalia Law School, critiqued the test at length in an article on “The Proper Role of History and Tradition in Second Amendment Jurisprudence.” And Joseph Blocher, Darrell Miller, and Eric Ruben filed in an amicus brief in Bruen on behalf of neither party arguing that THT will only shift the values focus beneath board: “applying Heller to require an exclusive focus on history and tradition will force lower courts into covert, unguided, ad hoc balancing, disguised as analogy.” These and other problems with THT are on display in the debate over ghost guns.
Consider the requirements of the Administration’s ghost gun rule. Does imposing a serialization requirement violate the Second Amendment? Does requiring that gun kits be manufactured and sold by FFLs violate the Second Amendment? There were no federally licensed gun manufacturers or dealers when the Second Amendment was ratified. In fact, the federal government didn’t get into the business of regulating firearms until relatively late in the game: the 1934 National Firearms Act was the first major substantive regulation of firearms at the federal level—and only then regulated a subset of arms thought particularly suitable for criminal use (the 1938 Federal Firearms Act covered more weapons and required licenses for manufacturing and shipping interstate). States were not doing much more to regulate manufacturing and dealing in the 18th century—though many did restrict selling or trading guns to African Americans or Native Americans. That history, for the most part, is largely uncontested.
In a forthcoming article, “The American Tradition of Self-Made Arms,” Joseph Greenlee describes the substantially unregulated practice of historical arms-making in the United States and argues from this history that modern regulations are thus suspect.
Regulations on self-built arms are not longstanding. In fact, there were no restrictions on the manufacture of arms for personal use in America during the seventeenth, eighteenth, or nineteenth centuries. All such restrictions have been enacted within the last decade.
Greenlee argues against modern laws like those in place in several states that regulate self-made guns. In California, for example, “prior to manufacturing or assembling a firearm, one must apply to the California Department of Justice for a unique serial number and permanently affix it to the firearm.” Though it differs in details, the proposed ghost gun rule follows a similar trajectory as these state laws requiring serialization. After surveying the cases and evidence, Greenlee concludes (among other things) that “history and tradition—which is used to inform the Amendment’s text under Heller—reveals that Americans have long enjoyed and depended on the unregulated right to build arms since the colonial days.” (Emphasis added).
In my view these kinds of historical analyses, as interesting and useful as they might be for understanding past practices and tracing changes in firearms technology, shed little light on a fundamental question of constitution law: what are the limits on the government’s regulatory power. That’s because much of this style of argument—and indeed the conceit of the THT test in general—is to transform nonregulation into a right. For these advocates, the existence of some unregulated practice in the past is not ambiguous evidence about the status of government power, but a sign that the practice was protected as a right, at least when it comes to guns. That can’t be true.
Both historically and today, government (local, state, and federal) has lots of power to regulate conduct that it declines to exercise. Maybe, for any given circumstance, it has the power to regulate, but lacks political will to do so. Or has the power, but thinks it would be bad public policy. Or sees no problems in the current environment that requires regulation but might turn to it in the future. In other words, discovering that historical practice X was not regulated cannot alone tell us whether (a) the government lacked the power to regulate because X is a protected right or (b) the government chose for other reasons altogether not to regulate X. THT and arguments like those about self-made guns imply that government always regulates to the outer limits of its power. Thus, if conduct remained unregulated, then it was protected. But this inexplicably erases a whole category of regulable and yet not regulated behavior. If historical argument is going to take a prominent place in Second Amendment analysis, it ought to be based on evidence of widespread understanding that a past practice was protected as a right, not simply that it existed without regulation.