Territorial Gun Regulation and the “Lost” History of the Federal Second Amendment

  • Date:
  • August 08, 2022

[NOTE: For a more in-depth examination of Bruen's approach to territorial laws and the topics in this post, see my article "The Territories under Text, History, and Tradition" in the Washington University Law Review.]

The Court’s opinion in Bruen considered five territorial gun laws—passed in the Arizona, New Mexico, Wyoming, Idaho, and Oklahoma territories between 1869 and 1890—that supported New York’s position and, in some cases, imposed even broader restrictions on the right to public carry.  The Court proceeded to disregard all five as “exceptional” outliers.  The Court relied on the nature of territorial government—supposedly tolerant of “legislative improvisations” that did not accord “with the Nation’s earlier approach to firearm regulation”—as a primary reason for giving these territorial laws little to no weight in its historical analysis. 

But does that approach make sense, especially when one considers that the Bill of Rights, including the Second Amendment, was widely accepted to apply directly to territorial governments (unlike state governments) at the time these laws were passed?   Is it possible that, in reasoning away these territorial laws, the Court may have discarded some of the best historical evidence we have of what gun regulations were considered consistent with the federal Second Amendment when they were enacted?

The Supreme Court held in 1833 that the protections in the Bill of Rights applied only against the federal government, and not against state or local governments.  Barron v. City of Baltimore, 32 U.S. 243 (1833).  On multiple occasions in the late 19th century, the specific timeframe when these territorial laws were passed, the Court affirmed the then-fundamental principle that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state.”  Presser v. People of State of Ill., 116 U.S. 252, 265 (1886); see also United States v. Cruikshank, 92 U.S. 542, 553 (1875).  Given this limited scope, the federal Second Amendment did very little work from 1791 up until the McDonald decision in 2010.  The historical laws that Bruen spends dozens of pages analyzing are, for the most part, laws passed under (and cases applying) state-analogue provisions to the Second Amendment, which were similar but often slightly distinct in their wording. 

Although some state courts continued to hold after 1833 that the federal Second Amendment bound state governments,[1] that approach was not consistent with Barron.  This area of state decisional law is murky at best and, if anything, merely suggests that it was at least several decades before Barron took hold at the state level.  For example, the Tennessee Supreme Court considered the Second Amendment (and Tennessee’s state-analogue) in two separate mid-19th-century cases—Aymette and Andrews—but only cited Barron and the anti-incorporation principle in the 1871 Andrews case.[2]  It bears noting that even the Supreme Court’s adherence to its own precedent in the early to mid-1800s was spotty at best, with one commentator noting that “the best explanation for [the Marshall Court’s] failure to rely on precedent is probably the lack of a reliable digest system during the early part of the nineteenth century.”  Some state courts may have initially been unaware of Barron and, later, simply assumed that state-analogue provisions should be construed identically to the federal Second Amendment because this interpretation did not require them to disturb pre-Barron decisions. 

But one area where the federal Second Amendment did apply from the outset, without any murkiness, was in the continental territories.  The Constitution grants Congress the exclusive power “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”  Art. IV, Sec. 3, Cl. 2.  Practically speaking, this means that Congress can form a territorial government, under its direct oversight, which then legislates for the territory so long as its laws are “not inconsistent with the Constitution or laws of the United States.”  Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 534 (1828). 

As described in a 2006 law review article by Alan Tauber, both the Louisiana Purchase and the Mexican Cession—which comprise over one-third of the area of the current United States and thus a substantial amount of the territory at issue in Bruen—were acquired under treaties or agreements that explicitly extended federal constitutional rights, privileges, and immunities to inhabitants of those territories (in the case of the Mexican Cession, to those inhabitants who chose to renounce their Mexican citizenship).  For example, the agreement between the U.S. and France memorializing the Louisiana Purchase stated that inhabitants would be incorporated and admitted “according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States.”  There’s not much ambiguity there, and multiple Supreme Court decisions subsequently recognized that the Constitution, including the amendments in the Bill of Rights, applied directly in these incorporated territories up until statehood.  See, e.g., Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 44 (1890) (“Doubtless congress, in legislating for the territories, would be subject to those fundamental limitations in favor of personal rights which are formulated in the constitution and its amendments.”) (emphasis added).  Although the Insular Cases added a new layer of complexity regarding how the Constitution applied in unincorporated territories, they affirmed the central principle that—in incorporated continental territories that were made part of the United States with a view toward ultimate statehood—the Constitution and Bill of Rights applied directly to government action.  See Downes v. Bidwell, 182 U.S. 244, 321–29 (1901) (White, J., concurring).

This all leads to the inescapable conclusion that a gun regulation passed by a Western territorial government in 1869, or 1890, was not only subject to challenge under the federal Second Amendment, but that the territorial legislators who passed that law were (at least in theory) aware that their actions were circumscribed by the protections in the Bill of Rights.  It appears that the Court’s response is: “So what?”  According to Bruen, territorial government was “transitional,”[3] “temporary,” “exceptional,” and “not-yet-mature”—territorial officials were free to do as they pleased without any federal oversight, so one should not rely on their actions as evidence of what laws were considered constitutional at the time.  Is the Court right?  Did the American territorial system implicitly permit laws that contravened the Constitution?

In fact, there are both legal and practical examples pointing the other way.  On the legal side, federal courts frequently evaluated and struck down territorial laws that infringed protections in the Bill of Rights.  As early as 1850, Webster v. Reid, 52 U.S. 437, invalidated an Iowa territorial law under the Seventh Amendment.  In 1878, the Court assumed that the Sixth Amendment applied in the Utah territory and further opined that “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion [because] . . . [t]he first amendment to the Constitution expressly forbids such legislation.”  Reynolds v. United States, 98 U.S. 145.  In another Utah case about 20 years later, the Court again affirmed the application of the Seventh Amendment right to trial by jury in the territories.  American Pub. Co. v. Fisher, 166 U.S. 464 (1897).  And that same year, in Bauman v. Ross, 167 U.S. 548 (1897), the Court held that the Fifth Amendment applied to Washington D.C.[4] 

Even the Court’s preferred source for information about territorial government, Earl Pomeroy’s book The Territories and the United States, notes that “[r]esistance to outside authority was practical, not doctrinal.  There were few arguments on a constitutional basis for general territorial autonomy after 1861.”  It was established doctrine that the Bill of Rights applied directly in the territories.  Therefore, the lack of case law applying the Second Amendment specifically to territorial gun laws seems equally—if not more—likely to indicate that territorial gun laws were viewed as consistent with that amendment.  If they were not viewed this way, one would expect to see judicial challenges, as were brought under other amendments in the Bill of Rights.

Not only were territorial laws struck down under the Bill of Rights, but—in stark contrast to the picture painted in Bruen—the federal government was not shy about intervening in the territories to curb practices that it considered improper.  For example, the federal government passed three separate acts between 1862 and 1882 attempting to stamp out polygamy in the Utah territory.  These laws included provisions criminalizing polygamy and permitting jurors to be struck in polygamy trials for failing to answer questions about their marital status.  And the Court repeatedly sanctioned federal intervention in the territory to address polygamy; first in Reynolds and, later, in Murphy v. Ramsey, 114 U.S. 15, 45 (1885).  Murphy contains lofty assertions about the self-evident right of Congress to legislate to secure single marriage: “the sure foundation of all that is stable and noble in our civilization.” One might wonder why, if the right to keep and bear arms was held similarly sacrosanct at the time, Congress did not intervene to address the “exceptional” public-carry restrictions passed in many Western territories.

In Bruen, the Court invoked two other factors in its analysis of these territorial laws:  first, they applied to a very small percentage of the U.S. population at the time; and, second, these laws “were rarely subject to judicial scrutiny.”[5]  While the Court’s point about population density is well-taken, keep in mind that there at least five separate laws at issue.  And viewing population only as of a date certain—the Court picks 1890—can be dangerous, especially in the territorial context.  To take just one example, the recorded population of the Oklahoma territory increased from 61,834 in 1890 to 398,331 in 1900: an astonishing 544% increase in population in just 10 years.  It’s certainly true that the population of these territories was at all times a small percentage of the nation’s total population, but using a single-year snapshot obscures the breakneck pace at which many territories grew.

The lack of judicial scrutiny, as noted above, more plausibly indicates that these laws were considered constitutional—especially when one considers the weight of authority holding that the Bill of Rights applied directly to territorial governments and cases striking down territorial laws under other amendments.  It would be odd, to say the least, to presume a legislative motive to violate protections in the Bill of Rights—rather than to presume that territorial legislators intended to comply with Constitutional protections which they knew applied to their actions.

This all suggests that the five territorial public-carry laws the Court declined to credit in Bruen may not be outliers at all, but in fact may hold crucial clues to the meaning of the federal Second Amendment in the 19th century.  The history of territorial gun regulation has special value because it is likely the best post-ratification evidence of regulatory practice in a context where the application of the federal Second Amendment to gun regulation was settled (at least, that is, until 1976 when the D.C. handgun ban overturned in Heller was passed).  The Western territories were an area where the federal government had direct regulatory and police power.  These territorial laws, long ignored and now explicitly rejected by the Supreme Court as persuasive of historical tradition, may actually be an ideal starting point for determining the kind of regulations that were considered consistent with the Second Amendment to the U.S. Constitution at that time. 

It's easy to disregard the territorial regulations as outliers under a blanket rule that territorial government was “exceptional” and unusual.  But, if the basis for that rule is suspect, five separate laws passed in different territories over a 20-plus-year period (immediately following passage of the 14th Amendment) start to look a lot more like evidence of historical tradition rather than a localized aberration.  If we are going to evaluate gun laws by reference to history, why not start with regulations passed in areas where government action was indisputably constrained by the Second Amendment itself? 

[1] See, e.g., State v. Buzzard, 4 Ark. 18 (1842); Nunn v. State, 1 Ga. 243 (1846); State v. Chandler, 5 La. Ann. 489, 490 (1850); see also State v. Workman, 35 W. Va. 367, 367 (1891) (noting that the applicability of the Second Amendment to the states was “a question upon which authorities differ”).

[2] See Aymette v. State, 21 Tenn. 154 (1840); State v. Andrews, 50 Tenn. 165, 172-74 (1871).

[3] Regarding the Court’s repeated invocation of the “temporary” nature of territorial government, it’s interesting to note that the five territories whose laws the Court considers comprised a total of 177 years of territorial government, stretching from 1850 to 1912.  And the reality is even more complicated, because certain portions of these territories were originally acquired in 1803 and existed under territorial government (in one form or another) for 100-odd years.  Of course, the actual gun laws in question were not in force for that entire period, but territorial government could—in reality—be quite lengthy.  

[4] For further discussion of this case law, see Abbott Lawrence Lowell’s 1899 Harvard Law Review essay The Status of Our New Possessions: A Third View.

[5] The Court also notes that some of these regulations either did not survive the ascension to statehood or were later held unconstitutional as contrary to state constitutional provisions.  But again, this analysis largely ignores that the scope of the federal Second Amendment may not be identical to all state-analogue provisions.  For example, when Idaho’s territorial public-carry ban was struck down after it became a state, the Idaho state analogue to the Second Amendment provided that “[t]he people have the right to bear arms for their security and defense”—a broader, more explicit recognition of an individual right to carry arms for self-defense than that contained in the federal Second Amendment.  See In re Brickey, 8 Idaho 597 (1902).