The Challenges of Authenticating Historical Gun Laws: Lessons from Mississippi’s So-Called Revised Statutes

This guest post does not necessarily represent the views of the Duke Center for Firearms Law. 

What factors are essential for conducting academic research that is truly impactful for the U.S. legal system? As a student of public policy with an interest in law, asking this question catalyzed my desire to participate in meaningful legal research at Duke and subsequently led me to the Duke Center for Firearms Law, where I serve as a Research Assistant. In my time at the Center, I have come to understand how its scholars answer this question, particularly through one major focus of the Center in building its Repository of Historical Gun Laws: ensuring the accuracy of all laws in the Repository while also extending its breadth. To that end, I was recently reminded of the significance of this objective while routinely authenticating some potential entry material that was not quite what it seemed. 

Usually, at least among its governmental (rather than institutional) entries, the “base unit” of the Repository is the session law, expressly enacted by a colonial, territorial, or state legislature. These laws are among the best preserved, and they are often straightforward to authenticate: governing bodies recognize the importance of keeping their records in order, and previous university-driven initiatives and organizations like LLMC Digital have worked hard to compile session laws and make them accessible and searchable online. But relying solely on thousands of distinct and sometimes contradictory session laws as the legal corpus of a state or territory is ultimately untenable because such laws multiply over time and can’t be easily parsed. So was born another type of legal document: the statutory code, or law compilation. 

Not all these codes serve the same purpose or were created in the same way. Sometimes, their editors diligently compiled the entire corpus of existing session laws and relevant legislation faithfully to the original text, only altering entries to reflect the precedence of later-enacted legislation over earlier laws. In other cases, though, editors brought a more active approach to code compilation process, drawing on the general substance (rather than the exact wording) of previously enacted laws to harmonize conflicting session laws into a single, combined statutory provision that then legally superseded any predecessors. In both instances, the process dilutes the easily traceable nature of simple session laws. But the former method leaves a trail for researchers to follow in their authentication efforts, while the latter does not. 

With this in mind, I reviewed a section of what appeared to be The Revised Statutes of Mississippi (1836), a code that was returned by a search for firearm-related laws in Gale’s “The Making of Modern Law: Primary Sources”, a reputable database collection that has been a helpful tool for identifying historical gun regulations. The firearms-relevant excerpt that met the search criteria, in Article 2 (“Of disorderly Practices on public Occasions and Holydays, and in Taverns and Vessels”) of Title 10 (“Of the Prevention and Punishment of Immorality and disorderly Practices”) of Chapter 19 (“Of the Internal Police of this State”), read as follows:

§ 3. No person shall fire or discharge any gun, pistol, rockets, squib, cracker, or other firework, within a quarter of a mile of any building, on the twenty-fifth day of December, on the last day of December, on the first day of January, or on the twenty-second day of February, in any year; nor on the fourth day of July or such other day as shall at any time be celebrated as the anniversary of American independence, without the order of some officer of the militia, while in the course of military exercises. Every person offending against these provisions shall forfeit the sum of ten dollars, to be recovered by any person who will prosecute in the name of the superintendents of the poor of the county with their consent and under their direction, for the use of the poor.

The content of the excerpt seemed neither unreasonable nor unprecedented. But nothing in the text or margin annotations indicated which session law or laws the statutory language drew from. Even in compilations where the editors overwrote previous legislation with their own harmonizing language, they generally cited their sources (or, at least, explained their reasoning). That was not the case, however, with the 1836 Revised Statutes of Mississippi. I then examined the surrounding sections and statutes and found them similarly unsourced. I knew by this point that, even if nothing else was awry, this compilation was certainly a unique case where the code compiler had taken liberties with the underlying session laws. 

I next thought that perhaps citations were provided in previous editions of Mississippi’s revised code or expounded in subsequent ones. I searched the (chronologically) nearest editions of the state code that I could find, those of 1824 (12 years before) and 1848 (12 years after). To my surprise, both editions were structured and ordered completely differently from the 1836 code I was reviewing, so I couldn’t even find the equivalent sections. For example, in the 1824 version, there were no sections classified as “Articles” nor written descriptions for each chapter, and neither edition used “Titles” as a type of subchapter. These discrepancies furthered my initial suspicions and prompted me to begin investigating the legitimacy of the entire 1836 “code”. 

I then examined the first section of the code, titled “An Act Concerning the Revised Statutes.” I thought this section might offer more insight into how, why, and when the editor was authorized to create such a “blank slate” compilation; instead, I found a page full of blank spaces where enactment dates should have appeared. After some more time flipping back and forth through the code, I turned to its title page. There, I noticed a faint cursive scribble likely left by the Harvard Law School archivists who handled the original document that read: “Never enacted; (see back cover).” Following those instructions, I flipped to the end, where appended to the code was a paper typed on “Law School of Harvard University” letterhead that read:

A search for “Pray’s Revised Statutes” (named for Mississippi legislator Publius Rutilius Rufus Pray) yielded a page on the Mississippi Department of Archives and History website confirming that, “in 1833, [Pray] was empowered by the legislature to revise the statutes of the state . . . . He submitted his changes to the legislature in 1836, but his code was never adopted.” Evidently, neither the Mississippi government’s online disclaimers nor Miss Macdonald’s 1935 warning were ever passed on to Gale. Gale’s database displayed the 1836 code like any other legitimate legal document or compilation in the collection and actively recommended it through the search algorithm. Thus, the onus was apparently on researchers to discover its true status for themselves. In our case, suffice it to say no sections of “(Pray’s) 1836 Revised Statutes of Mississippi” feature among the Repository’s entries. 

So ends the story of one convoluted authentication effort, but this challenge will no doubt continue to manifest itself as the research team looks to new horizons to supplement the Repository. No matter how the Repository continues to grow, one thing is certain: continued vigilance to source authenticity will be key.