Historical Context, Weapons Laws, and Early American Governance
This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
As all who study the Second Amendment’s right to bear arms now know, the Supreme Court’s 2022 Bruen decision established a new, history-based standard for evaluating the constitutionality of current gun laws by asking whether they are “consistent with this Nation’s historical tradition of firearm regulation.” This decision has triggered wide-ranging searches for historical weapons law analogues. To be sure, this new and novel constitutional standard poses a host of problems, both conceptual and practical.
That aside, much of the writing on this subject has jumped over the central question of what “doing history” actually means. The word “history” or its derivations appears over 200 times in the Bruen decision, yet shockingly little writing has paid attention to what was going on in the country, or what the American nation-state was like, in the seventeenth, eighteen, and nineteenth centuries, how profoundly it changed during that time, and what, in turn, that means for laws regulating weapons.
I was trained in political science, not history, but much of my research and writing over the decades pertaining to subjects including the American presidency, the president’s constitutional powers, and presidential-congressional relations has relied heavily on an approach that unites the two disciplines, called American Political Development (APD). This important sub-field in American politics is defined as the “theoretical precept [that] because a polity in all its different parts is constructed historically, over time, the nature and prospects of any single part will be best understood within the long course of political formation.” Karen Orren & Stephen Skowronek, The Search for American Political Development 1 (2004). That is, APD is not simply a recitation of history, but a way to utilize historical evidence to understand and analyze its relationship to the evolution and development of the American nation-state.
In recent legal challenges to modern weapons laws, such as restrictions on assault weapons and large capacity ammunition magazines, firearms permitting laws, concealed carry laws, extreme risk protection order (red flag) laws, gun purchase waiting periods, and restrictions on ghost guns, historical analysis must confront the looming fact that the size, scope, resources, and policy tools of early American governance were far more limited than in the modern era, and many of the social problems that accompanied America’s political development did not exist in the pre-industrial U.S.
At the time of the Constitutional founding period at the end of the 1700s, the U.S. was an overwhelmingly agrarian, Atlantic-coast hugging, 13-state nation where over 90 percent of the population engaged in subsistence agriculture and was governed by a small, underfunded government that was trying to establish and legitimize itself. It lacked the resources, modes of communication, and policy tools that modern governance takes for granted. The overwhelming narrative arc of the nineteenth century embodied the nation’s evolution from an agrarian society to one where, by the early twentieth century, the nation spanned the continent and was an industrial giant where the majority of Americans lived in crowded cities that generated an entirely new set of social and political problems.
To take one example of how this matters, consider current challenges to laws that bar firearms to those with prior criminal records. Those challenging such laws argue that, since no such bans existed early in our history, they cannot be constitutionally justified now. Leaving aside the fact that this standard is one that insists on an historical twin rather than similar or analogous laws, it also fails to consider the far more limited capabilities of early American governance, as well as the multifarious (though little studied) powers exercised by local governments.
Other research on early weapons laws has identified both broad governmental power to disarm those considered to pose a danger to society to preserve the public peace, and a variety of types of laws that allowed for disarming those whose actions or circumstances were far less dire than direct threats to public physical safety (such as disarming those who violated hunting regulations, and those deemed vagrants, tramps, or considered of “unsound mind”).
Beyond this, however, there are two obvious reasons that few if any special laws were enacted in early American history to bar felons prophylactically from future weapons possession. First, governments lacked the ability and the means to implement such laws. Stated differently, America was a developing nation-state in the nineteenth century and before. In order to bar felons from future weapons possession, governments would have needed to compile and maintain a comprehensive system of record-keeping to identify and keep track of such persons, then collect, circulate, and regularly update that information to government officials throughout the state, a process we take for granted today, but which was beyond the powers, tools, or resources of most governments at the time.
Second, governments would have had to possess an efficient, comprehensive, and effective system of policing to enforce such laws; yet policing barely existed in the early-to-mid-nineteenth century in the way we think of it today. Up to this time policing fell to a haphazard mix of the watch system, constables, militias, and vigilantes. Modern police forces only came into being in a handful of large cities before the Civil War. Boston created a police force in 1838, New York City created a standing police force in 1845, followed by Chicago in 1851, Philadelphia in 1854, and Baltimore in 1857. Even with that, the professionalization of policing did not occur until the early twentieth century. See, e.g., William R. Kelly and Daniel P. Mears, The Reinvention of Policing 53-61 (2023); Larry K. Gaines, et al., Policing in America 51-59 (1994). In short, neither sophisticated record-keeping nor modern policing existed in most places in the country until the beginning of the twentieth century, meaning that a prospective lifetime ban on weapons ownership for felons or others was neither practical nor feasible. That does not mean, however, that governments did nothing.
Early governments did enact measures to confront rising violence in the early nineteenth century, and then again in the latter part of that century as interpersonal violence escalated. Most importantly, states and localities enacted anti-concealed carry weapons laws—feasibly enforceable measures that addressed rising arms-fueled violence. In fact, by the start of the twentieth century, every state in the country had enacted such laws. In addition, a majority of states enacted open weapons carry restrictions, and at least three-fourths of the states enacted laws to punish weapons brandishing (to display a weapon in public in a menacing or threatening way) or simple weapons display laws that punished the mere public carrying of a weapon in the presence of others.
Historian Saul Cornell stated the problem succinctly: “It is impossible to construct and evaluate legal analogies without understanding the profound differences separating early America from modern America.” Saul Cornell, Constitutional Mischiefs and Constitutional Remedies: Making Sense of Limits on the Right to Keep and Bear Arms in the Founding Era, 51 Fordham Urban L. J. 54-55 (2023). As long as the Supreme Court insists that history must guide constitutional inquiry regarding gun rights, then that historical inquiry must meaningfully occur. Otherwise, the high court should abandon the standard and find another.