Historic Weapons Licensing Laws

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

The Supreme Court’s 2022 ruling in NYSRPA v. Bruen striking down New York state’s handgun concealed carry licensing system did not declare gun licensing per se unconstitutional, but it did reject New York’s “proper cause” requirement saying that it gave too much discretion over license decisions to local officials.[1] The Bruen decision, however, has brought new scrutiny to gun licensing laws throughout the country. As of this writing, 21 states (plus the District of Columbia) have retained some kind of permitting system for concealed gun carrying. These laws have a lengthy historical pedigree.

The Supreme Court’s history-based standard for evaluating the constitutionality of current gun laws draws focus to the historical nature of weapons licensing and permitting laws. One might suppose that such laws date only to New York’s 1911 Sullivan law, which was challenged in Bruen and is often thought of as the first modern gun licensing law. The Sullivan Law has been called “a statute without precedent in the United States” and a law that “had no precedent in American law.” By another account, “[u]ntil the early twentieth century, there were no laws that required that individuals receive government permission before purchasing or borrowing a firearm.” Yet these suppositions are incorrect. Weapons licensing as a public policy tool is an old technique, not a new one, as I detail in a recent article in the Dickinson Law Review. 

In fact, colonial, state, and municipal laws requiring licenses or permits for dangerous weapons and substances date to the 1600s and 1700s, and they became more widespread in the 1800s and early 1900s. These laws mostly pertained to those weapons and substances that posed a threat to public safety at the time: concealable weapons, including handguns, fighting knives, various types of clubs, and explosives (ranging from firecrackers and gunpowder to nitroglycerine after its invention). This is consistent with the widespread use of licensing as a policy tool applied to numerous activities and professions by the nineteenth century. Licensing was used “to regulate and control a host of economic activities, trades, callings, and professions,” though “the overall justification for licensing was the same as the police power generally—the public good and the people’s welfare.” That principle applied specifically to weapons licensing.

From the 1600s through the early 1900s, weapons licensing laws were enacted in a total of at least 45 states plus the District of Columbia. These laws encompassed nine categories. At least 89 licensing requirement laws were enacted in at least 34 states for individuals as a pre-requisite to carrying or owning weapons; 18 states enacted such laws in the 1800s and 29 did so in the 1900s (some states enacted laws in multiple centuries). 

At least 27 states enacted laws to regulate the discharge of firearms through licensing, with 13 of those states doing so from the 1700s up to the start of the Civil War, and another 21 states doing so between the end of the Civil War and 1900. Hunting licensing laws were enacted in at least 12 states, with two states doing so in the 1700s. At least 12 states enacted licensing laws for hunting from the 1800s through the early 1900s. Laws in at least 21 states required a license for the commercial sale, transport, or firing of weapons, including at commercial locations like shooting galleries or firing ranges, from the 1600s through the early 1900s. For example, a 1642 Connecticut law criminalized selling or otherwise giving any “gun or gunpowder” or other weapons to any Indians unless licensed to do so from a court or “two magistrates.”

Laws in at least 22 states required a license for the possession, handling, or transport of gunpowder and other explosives from the 1600s through the early 1900s. Laws in at least 17 states required those selling or otherwise providing weapons to individuals to record and keep information pertaining to the buyers of weapons in the late 1800s and early 1900s. In addition, at least 15 states imposed licensing requirements on specified marginalized groups (variously including Native Americans, non-citizens, non-state residents, or minors). In the pre-Civil War period, at least 13 states mandated that enslaved persons or free Blacks obtain a license to carry weapons. And nine states enacted regulatory taxes on firearms.

Historic weapons license laws pertaining to carry or ownership were especially significant, both because more old laws fell into this category than any other and because these laws are often very similar to modern gun carry and ownership licensing. Gun carry licensing laws proliferated among the states in the post-Civil War period—a fact that is notable because, prior to their enactment, concealed gun carry was simply outlawed in many places. From the 1600s through the start of the 20^th century, every state in the U.S. penalized concealed weapons carrying as a criminal offense. After the Civil War, however, many states began to allow concealed carry by those who first obtained a license (though all of the states retained penalties for unlicensed weapons carry): from 1865-1900, at least 18 states enacted carry licensing laws, and 29 states did so in the early 1900s. These 89 licensing laws fell into two categories: those statutes that specified criteria for granting the license (60% of the laws), and those that did not (40% of the laws). 

Among licensing laws that stipulated criteria, they typically included items such as whether gun carrying was necessary for the applicant’s profession, what would now be called character references from those who knew the applicant, temperance, maturity, and even an evaluation of whether the individual was capable of “self-control.” In no instance did any licensing law examined impose any time limit or deadline specifying how quickly the government needed to make decisions on license applications. If anything, old licensing laws gave local governing officials even more discretion than the Sullivan Law. 

The proliferation of weapons carry licensing schemes occurred during the latter part of the 19^th century because of rising urbanization, the transition of gun manufacturing and sales from craft to industry, the growing sophistication of governments that formerly lacked the resources to implement such schemes, and the rise of modern policing, among other factors.

In short, weapons licensing was a ubiquitous regulatory tool from the country’s beginnings that then spread widely in the nineteenth century. Contrary to the Supreme Court’s conclusion in Bruen that New York’s “proper cause” standard for acquiring a carry permit lacked support in the “American tradition,” historical licensing criteria were, if anything, often even more discretionary than the New York permit standard the Court rejected. And while carry licensing dates only to the latter half of the nineteenth century, it was uniformly preceded by laws in every state that simply criminalized carrying concealed weapons outright.