This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
Opponents of firearm regulation, energized by the landmark Bruen decision, have been paying closer attention to early America. They like what they don’t see. The ruling makes historical evidence—or, more to the point, the absence of historical evidence—dispositive in certain instances. Laws restricting conceal-carry permits to those who can demonstrate “good cause?” Laws requiring buyers be at least twenty-one before purchasing handguns? Laws disarming felons or persons under restraining orders for domestic violence? They’re hard to find in early America. And, according to the most pro-gun-rights interpretation of Bruen’s standard, if Americans didn’t have such regulations in 1791, when the Second Amendment was ratified, or, maybe, in 1868, when the Fourteenth Amendment was ratified, then we can’t have them, either. “We are going to defeat virtually every gun control on the books,” exulted the executive director of a prominent gun-rights organization in March 2023, when asked by the New York Times about Bruen’s impact on his organization’s judicial agenda. The nation has embarked on a momentous reconsideration of gun regulations, with the distant past as the primary field of contention.
As an historian involved in several Second Amendment cases over the past year, what has most impressed me is the weakness of the gun rights’ case for historic continuity. No one who seriously studies guns in eighteenth century American life can fail to appreciate the profound differences between then and now. Yet in courtrooms across the country, opponents of firearm regulation have been confidently intoning a myth of continuity in American gun culture.
In a new essay, I explain in detail that the myth of continuity takes various forms, depending on the regulation that needs overturning. Arguing against limitations on high-capacity magazines and assault weapons, for example, plaintiffs and their allies have rummaged through a shared compendium of exotic guns, many literally drawn from a 1955 compendium of history’s rare and strange guns entitled Firearms Curiosa, in search of evidence for the antiquity of repeating firearms. Attacking regulations on ghost guns, gun-rights activists have conjured up a supposed American tradition of “self-made arms.” At its most general, the myth maintains that America has a stable gun culture dating back to the colonial era. Then and now, it asserts, Americans wanted and used guns for similar reasons. The myth acknowledges that firearms have evolved, but insists that guns in the late eighteenth century were sufficiently analogous to guns in our own time to have provoked similar societal concerns. As two pioneers of this narrative put it in a 2007 law review article, “it is certainly true that firearms technology has advanced since 1791—but not as much as some would like to think.”
What has really changed, the myth’s purveyors argue, isn’t so much the guns, the reasons Americans have them, what their owners do with them, or the resulting social consequences. What has really changed is law. Modern policymakers have broken with tradition by seeking to regulate weapons that the founders, in their wisdom, opted not to regulate. Regulation is the great discontinuity, in other words, and it must be overturned.
The myth of continuity’s perniciousness – or its promise, depending on your viewpoint – comes from the way it confidently projects our modern experience with guns and gun violence back onto the late eighteenth century. That projection has helped remake Second Amendment jurisprudence over the past fifteen years, most consequentially with Heller and its ahistorical premise that handguns played a similar role in urban crime and self-defense in 1791 as they did in 2008. Bruen’s framework ensures that the myth of continuity will figure even more prominently into regulatory battles going forward. That’s true not only because the decision centers history, but because of how it directs judges to interpret regulatory silence.
The Court expects some Second Amendment cases to be more “straightforward” than others. In the first category belong challenges to laws addressing an enduring societal problem involving firearms. If the activity in question went unregulated by the Founders, it is presumed to be constitutionally immune from regulation today. Cases involving “unprecedented societal concerns or dramatic technological changes,” however, will require a more “nuanced” exercise in analogical reasoning. Given that the second approach opens more avenues for defending regulation, much depends on whether courts can be convinced that a firearms-related problem has “persisted since the late 18th century.” Opponents of gun regulations therefore have more incentive than ever to argue for continuity in American gun culture.
What is usually at stake in such arguments is the vital question of why there might be regulatory silences in the historic record. After all, legislation responds to felt needs. Historical context is essential to fully understanding those needs. States defending firearms laws in the Bruen era will often need to provide that context in order to rebut the myth of continuity put forward by plaintiffs and their allies.
To appreciate the significance of such context, consider a technology that remains unregulated today: personal jetpacks. Jetpacks have intrigued militaries and the public for more than a hundred years. That interest has generated competition in research and development. Most of us know, however, that jetpacks remain an expensive and experimental curiosity in our own times because of stubborn technological, safety, and practical challenges, including cost. But imagine a scenario where a jurist 232 years in the future is presented with a shrewdly curated version of this context. Confronted only with documentary evidence that a patent was taken out on a jetpack design as early as 1919 (it was); that militaries remained intrigued by the technology throughout the century (indeed, they still are); and that the jetpack commanded enduring popular interest (any number of movies and television shows could serve as exhibits). Such a future jurist might be persuaded that jetpacks were a societal concern and that the absence of regulation reflected an ideological disposition against regulating jetpacks. Of course, a simpler and more accurate explanation would be that jetpacks remained too rare to attract regulatory attention in 2023.
Contrary to claims made by gun-rights activists in recent cases, repeating firearms were the jetpacks of the founding era. They were intriguing, expensive, and dangerous curiosities that attracted interest and even paying crowds. But they produced no social consequences and therefore attracted no regulatory attention. Explaining why repeating firearms were the jetpacks of the founding era, however, requires a type of historical analysis more typical of history journals than law reviews. It requires answers to practical questions about historic technologies and their social, military, and regulatory consequences; questions like: how well did repeating firearms work in the eighteenth and nineteenth centuries? Were they reliable, effective, or safe to shoot? How many were made? How widely did they circulate? What were they used for? More concretely, if large-capacity weapons were actually “well-known to and embraced by the founders,” as plaintiffs recently put it in a California complaint, why, then, did the founders fight their Revolution without them? Indeed, why did the United States military rely overwhelmingly on single-shot firearms in every war it fought between the ratification of the Second and Fourteenth Amendments?
Assault weapons, large-capacity magazines, ghost guns, and other class-of-arms cases invite an unusually detailed historical analysis, because of their focus on technological change. But Bruen’s framework is making historical analysis imperative in most topics in Second Amendment litigation. Numerous gun regulations now face the same basic, three-pronged attack: (1) X firearms-related issue has been around since at least the founding; (2) the founders did very little about it; (3) therefore we cannot do anything about it, either. In the year since Bruen, legal scholars have been doing vital work on points (2) and (3). But legal scholars are less well-positioned than historians to respond to the first prong of the attack: the claim that guns and gun problems in the late eighteenth century were fundamentally similar to those in our own times.
Professional historians are increasingly engaged with firearm cases. But with the exception of our legal-historian peers, we are too rarely in dialogue with colleagues in the legal academy. Historians and legal scholars seldom publish in or read the same journals, attend the same conferences, or review each other’s work. The lack of dialogue has been helpful to the gun rights activists pushing the myth of continuity in state and federal courts. Here’s to talking more and changing that.
 Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgement at 15, Wiese et al., v. Bonta et al., No. 2:17-cv-00903-WBS-KJN (E.D. Ca. Mar. 31, 2023)