A Multi-Sourced Approach to Exploring Historical Analogues of American Gun Regulation
The 2022 Supreme Court decision New York State Rifle & Pistol Association, Inc. v. Bruen changed the landscape of Second Amendment law by establishing a historical framework. In short, “well-established and representative historical analogues” must exist for modern gun laws to be upheld under the Second Amendment.
As four Duke history students interested in the intersection of law and history, Bruen poses particularly relevant questions about the relationship between the two disciplines. This summer, as part of a collaboration between History+ (hosted by the Duke History Department) and the Duke Center for Firearms Law (DCFL), we explored the nuances of Bruen’s framework and searched for evidence and archival records bearing on the historical tradition of American gun regulation. We catalogued weapons-related session laws in four states, located enforcement records of a late nineteenth-century North Carolina concealed carry law, and gathered weapons-related newspaper reports. We found that: (1) much historical evidence remains untapped, (2) developing objective methodologies is essential to finding and evaluating this evidence, and (3) multiple historical methods should be employed concurrently, as different ones attest to crucial but varying aspects of historical legal tradition.
Session Laws
Our first project was cataloging session laws, as they are one of the most direct historical analogs. Session laws are compilations of all laws passed by a state or commonwealth during a legislative session; they can cover time periods as short as a few days or as long as a few years. DCFL hosts a repository of historical gun laws, and, for our project, we employed a new systematized method to locate and record weapons-related session laws in four target states. We compiled every existing session law book pre-1900.[1] While many session law books are easily accessible, no single database includes every year and every edition for all the states. We also had to locate physical manuscripts for certain years, as they were not digitized. Once compiled, we used a coding program to flag a comprehensive, pre-determined list of weapons search terms in each book. We then examined each law to record relevant ones and cross-referenced that list with the existing laws in the DCFL Repository.
We chose four geographically diverse states: New Hampshire, Virginia, South Carolina, and Illinois. For these states, we found 243, 693, 282, and 381 relevant pre-twentieth-century session laws, respectively. Many laws, including weapon bans such as the 1877 New Hampshire law “An Act Regarding Concealed Weapons” and the 1858 South Carolina law “An Act to Punish Assault Committed with Concealed Weapons,” were not yet included in the DCFL Repository. This fact itself wasn’t particularly surprising, as the DCFL Repository does not purport to contain every historical gun law. But our work shows that many more relevant laws likely exist outside of the Repository’s current scope of coverage, especially considering undigitized documents and ones missing from these session law books. Moreover, we did not record the majority of militia laws due to their volume and duplicative nature.
The number and the types of session laws found in the four target states varied dramatically, making it difficult to form a consistent picture of weapons regulation on a national scale. For instance, whereas Virginia had an overwhelming number of municipal charters vesting city councils with power to regulate firearms and gunpowder, South Carolina had virtually none. In certain states, laws appeared to be specially tailored to local concerns: for example, statutes preventing those who participated in duels from later assuming political positions. Our results emphasize the importance of local history. Of course, the session laws themselves are incapable of illuminating public sentiment, legislative intent, or enforcement. Understanding the relevant historical analogues is a monumental task best accomplished holistically.
Historical Enforcement of North Carolina’s Concealed Carry Law
Our second project focused on the enforcement of historical firearm laws. While collecting session laws gave us some perspective into law as it existed in statute books, this second project helped us better understand how such laws were applied on the ground.
Taking advantage of our proximity and access to the State Archives of North Carolina in Raleigh, we collected records regarding the enforcement of an 1879 North Carolina state-wide law entitled “An Act to Make the Carrying of Concealed Weapons a Misdemeanor” in the years following the law’s passing. We did so by utilizing records found in court minutes from three counties — Durham, Mecklenburg, and Wake — between 1880 and 1902.[2] We successfully identified 401 individual concealed carry cases across the seven books, demonstrating some level of enforcement of the law; however, we encountered various challenges that hindered our identification of concealed carry cases and specific defendants.
Not all concealed carry cases were tried in the courts covered by our books. For example, one concealed weapon case in Wake County was tried before the mayor rather than in the superior court. This case was not picked up during our search because we did not have access to the mayoral court records. We could not find all court books for years immediately following 1879, presumably excluding cases we would have otherwise recorded. The books we did have access to varied in their legibility, as the cursive used in the books made it difficult to decipher the names of the defendants in some cases. We examined court outcomes in newspapers and were able to identify some names with reasonable certainty; however, we were not able to apply this process to all names, and it appears that not all cases were published in newspapers or that not all relevant newspapers are available online.
In instances where we were able to identify the same case in both a court record and a newspaper, thereby determining the correct name of the defendant, we were still often unable to determine the race of the defendant with reasonable certainty. Searching for a defendant’s name on websites such as Ancestry.com often yielded many results of people sharing the same name in the relevant census, a list from which we could not identify the correct person. A defendant is also not guaranteed to appear in a county’s census, as they might have been charged in a county where they did not live, or moved into the county in the years since the census, among other potential caveats. Looking at session laws and court records can provide a better understanding of the existence and enforcement of firearm laws, but fails to provide insight into social context.
Newspaper Records Involving Guns
To address the evolution of public sentiment, we undertook a third project: creating a newspaper archive. We developed a systematic method for collecting newspaper stories that reveal customs, attitudes, and beliefs about weapons and weapons regulation. Our approach involved creating two lists of search terms. The first list contained weapons-related terms, while the second included terms describing contexts where weapons were mentioned in stories. We organized the second list into categories such as “method of carrying” (e.g., concealed) and “location of possession” (e.g., graveyard).
Using Boolean search methods, we looked for instances where a term from the first list appeared within 15 words of a term from the second list. We used this search protocol for each decade between 1750 and 1890 on the newspaper archive website Readex. We applied this search protocol to each decade from 1750 to 1890 using the Readex newspaper archive website. For each search, we recorded the first twenty results ranked as “Best” by Readex and assigned codes to each result to categorize its content. Given our limited timeframe, we prioritized testing our protocols and compiling a substantial collection of consistently located and coded newspapers rather than achieving perfect comprehensiveness. Using the newspapers we recorded, we created a beta version of an online archive that enables users to search for weapons-related newspaper content by categories such as geographical location, year, and topic.
The archive contains stories that illuminate public opinion surrounding weapons laws, how laws were interpreted at the time they were enacted, and how weapons surfaced in daily life in early America. Some articles supported laws prohibiting dueling by labeling the practice barbarous, while others claimed that such laws disproportionately affected less affluent people, as they were more likely to be prosecuted and convicted. At the same time, a significant portion of relevant newspaper stories contained no discussion of weapons regulation and instead focused on factual reporting – such as guns used in hunting, celebration, and homicides. Certain results of this type seemed less directly relevant, epitomized by an 1823 news story about an annual shooting of a “Christmas turkey.” While fact-focused results are not unhelpful, we found that op-eds most directly addressed public attitudes surrounding weapons. In future continuations of this project, adding in searches for “opinionated” terms, such as “dangerous weapon,” may yield results that more consistently demonstrate interpretation and rhetoric around guns, rather than just how they were used.
We attempted to address this obstacle by balancing neutral search terms with more opinionated ones, but this proved to be a difficult process. For instance, searching “concealed carry” flagged many articles advocating for the practice to be banned; but it is unclear whether these articles alone should be taken as a gauge of popular sentiment. Given that Readex does not disclose its algorithm for determining the “Best” articles, it was also difficult to assess if any given sample of our search results was statistically representative of popular opinion. As each tailored search yielded tens of thousands of results, we could not record all of them. Overall, the newspaper archive demonstrates how contemporary reporting and opinion pieces might provide an understanding of how earlier generations viewed weapons and weapons regulation.
Conclusion
Our research over the last 10 weeks, made possible by History+ and the DCFL, led to a number of findings. First, there is ample historical evidence surrounding firearms, weapons, and their regulation. Second, our work shows that there are many untapped, relevant primary sources. If something is not currently housed in the Repository or other databases, that does not mean that such a source or law does not exist. Finally, our work illustrates how objective methodologies are crucial. For example, newspaper stories are a potentially fertile source of historical information but should be approached cautiously and systematically to ensure that outlier opinions and accounts are not given undue attention. Together, these sources and methodologies can begin to form a more comprehensive understanding of the American regulatory tradition surrounding firearms and other weapons.
[1] We searched across HeinOnline, Google Books, HaithiTrust, LLMC, and state-specific websites. We cross-checked our findings with MacDonald’s Check-List of Session Laws and the The Charlemagne Tower Collection of American Colonial Laws to confirm we amassed all published session law books. Elizabeth Grace MacDonald, ed., Check-List of Session Laws (New York, NY: H.W. Wilson Co, 1936); The Charlemagne Tower Collection of American Colonial Laws (Philadelphia, PA: J.B. Lippincott Co., 1890). The publication information for the Charlemagne Tower Collection is not present in the monograph itself; instead, it has been drawn from WorldCat: https://search.worldcat.org/title/1432074176.
[2] We looked in the following books: Durham County superior court minute docket from 1887–1888 and 1900–1902, Mecklenburg County inferior court minute docket from 1883–1884 and 1885–1887, and Wake County superior court minute dockets from 1880–1881, 1881–1883, and 1883–1884. We found that which level court tried a given criminal case depended on the county.