What Goes Up … : A Brief Legal History of Celebratory Gunfire

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

To assess the constitutionality of firearm laws today, the Supreme Court tells us to look to the past. Of course, “not all history is created equal.” We seek historical laws that are widespread, consistently applied, and long-lasting to support the constitutionality of modern gun restrictions. And no law is more universal, more uniform, more enduring than . . . the law of gravity.

As everyone knows, what goes up must come down. That is why, from the earliest days of our nation, there have been laws aimed at preventing ‘celebratory gunfire.’ Versions of those laws persist today.

Celebrations

Americans love to celebrate. Perhaps because of the rush they cause, loud sounds often accompany those celebrations. The day before the Declaration of Independence was adopted, John Adams predicted that fireworks would help mark its anniversary for generations to come. He was right. Fireworks are a mainstay of the Fourth of July.

The same explosive chemistry that creates the boom of fireworks, of course, is also what powers firearms. Literally: gunpowder. And for some misguided folks, guns offer an expedient alternative to fireworks. They shoot their guns in celebration.

Historic Laws

The risk of celebrating by shooting firearms skyward or at random is obvious. Falling bullets or stray ones are hazardous. Our forebears recognized this risk and passed laws to address it. Those laws have made cameos in recent notable Second Amendment cases.

In his dissent in District of Columbia v. Heller, Justice Breyer cited a Philadelphia law from 1721 that imposed a “penalty of 5 shillings (or two days in jail if the fine were not paid)” for shooting a gun or setting off fireworks without permission from the governor.[1] He also cited a colonial law from New York that “banned…the firing of guns (even in houses) for the three days surrounding New Year’s Day.” Justice Breyer mentioned these laws not to specifically highlight the dangers of celebratory gunfire, but rather to illustrate that we have long “restricted the firing of guns within city limits to at least some degree.”

Of course, these laws were not necessarily exclusively about celebratory gunfire. Justice Scalia retorted (to distinguish the purpose of those historic laws from the purpose behind the handgun ban challenged in Heller) that the New York law was intended to prevent “the great Damages … frequently done on [those days] by persons going House to House, with Guns and other Firearms and being often intoxicated with Liquor.” Probably sometimes “drunken hooligans” shot their firearms during altercations, not in merriment. Firing guns was prohibited either way.

However, when Chief Justice Roberts again pointed to the New York law in United States v. Rahimi, it was clear that he believed it was intended to address celebration, not confrontation. The law restricted “gun use by drunken New Year’s Eve revelers,” Roberts wrote. Revelers, not belligerents.

Such laws have recently appeared in state court decisions, as well. Last year, the Pennsylvania Supreme Court cited the 1774 “Act to Suppress the Disorderly Practice of Firing Guns, &c. on the Times Therein Mentioned.” The times therein mentioned being “any thirty-first day of December, or first or second day of January, in every year….” Here again, the law was punishable by a fine (this time “ten shillings”) because it caused “much mischief and greatly disturbs the public peace.” The Pennsylvania Supreme Court mentioned this law when it upheld a local ordinance prohibiting shooting outside authorized gun ranges.

The Duke Center for Firearms Law’s Repository of Historical Gun Laws goes even further back. On New Year’s Eve in 1655, an “Ordinance Of the Director General and Council of New Netherland[2] to prevent Firing of Guns, Planting May poles and other Irregularities within this Province” was passed. The danger of carelessly firing guns is still clear today. The planting of May poles, less so.

This historical law was, in part, about annoyance and morals. Legislators hoped to inhibit the “beating of drums” and “carousing.” And, as a side benefit, restricting celebratory gunfire might prevent the “unnecessary waste of powder.”[3] But the New Netherland law was primarily about public safety. In restricting the firing of guns during this period of celebration, it specifically sought to prevent “deplorable accidents such as wounding, which frequently arise therefrom.”

Modern Laws

As early as 1655, already “experience hath demonstrated and taught” us about the dangers of celebratory gunfire. Despite our long awareness of the risks, celebratory firing still occurs today. In January, a man was caught on camera firing a gun into the air in the middle of a crowd celebrating a Philadelphia Eagles victory. The city of Philadelphia can now legitimately claim more than three hundred years of experience with this issue.

Unfortunately, we also have terrible tragedies to remind us that the dangers are not speculative. In June 1999, 14-year-old Shannon Smith was in her back yard in Phoenix, Arizona, when she was struck in the head and killed by a falling bullet. The person responsible for firing the shot that killed her was never identified, but the incident led Arizona to pass “Shannon’s Law” the following year. This law elevated the penalty for negligently discharging a firearm in city limits from a misdemeanor to a felony.

More recently, Missouri suffered a similar tragedy when Blair Shanahan Lane (age 11) was killed by a stray bullet on July 4, 2011. A man confessed that he and others fired a gun into the air in celebration. One of the bullets killed the girl. The man was charged with involuntary manslaughter and sentenced to three years in prison, but the incident helped spur the passage of “Blair’s Law,” which made it a crime to recklessly discharge a firearm in city limits.[4]

Though this post opened with a reference to assessing the constitutionality of firearm laws under Bruen, there is little dispute about the constitutionality of laws that prohibit celebratory gunfire. That’s because there is plenty of evidence supporting a ‘historical tradition’ of restricting celebratory gun discharges. The earliest Supreme Court case to consider the Second Amendment recognized that it only protects ‘bearing arms for a lawful purpose,’[5] and celebratory gunfire has long been unlawful. Indeed, these laws seem to be a rare source of bipartisan agreement. Even Charlton Heston supported Shannon’s Law.

If there is anything surprising about these laws, it is not the longevity of poor human judgment. Rather, it is that more jurisdictions have not enacted them. Despite Philadelphia’s long history with the dangers of celebratory gunfire, the state lacks an explicit prohibition on discharging guns in celebration. When appealing to the public not to engage in this harmful tradition, Philadelphia’s district attorney suggested that “Risking a Catastrophe” may be charged to make the offense a felony. That statute might (or might not) apply. It is not explicitly about gunfire, and it does not mention firearms at all among the possible sources of catastrophe such as “fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance. . . .”

While many states have laws that prohibit negligent discharge of a firearm, or disorderly conduct, or discharging a firearm in a public place, there is value in expressly condemning the specific practice of celebratory gunfire. By highlighting the real danger, such laws offer a high-profile way to warn the public against engaging in this risky practice. And if history is any indication, unless we can do a better job of curbing this harmful tradition we will continue to suffer tragic casualties.