The Historical Pedigree of Long Gun Registration

In Heller II, the D.C. Circuit claimed that long gun registration requirements are novel, not historic. Heller III reiterated this line, stating that the registration requirement for long guns lacks the “historical pedigree” of the registration requirement for handguns. But is this entirely right? Historical American firearm registration laws suggest that long gun registration is far from novel.

After delving into the Repository of Historical Gun Laws, I found several state (and territorial) statutes from the late nineteenth and early twentieth centuries that required the registration, licensing, or reporting of long guns. These laws contained similar requirements to handgun registration laws. An especially common trend was the requirement of identifying information of both the firearm purchased and the purchaser.

One of the early regulations on long guns was an 1893 Florida law. The statute required a license and $100 bond to carry or own a Winchester or other repeating rifle. The license application required identifying information, including the name of the person taking out the license, the maker of the firearm, the caliber, and the number of the firearm. The explicit mention of rifles and the brand name “Winchester” indicates the statute applied to long guns. (Note that commentators have flagged the likely racist motives of this legislation.)

Several other laws, like the 1893 Florida law, were explicit about the inclusion of long guns. For example, a 1918 Montana law required every person who owned or possessed any firearms to make a report of such firearms to the county sheriff. The act defined “firearms” as any revolver, pistol, shotgun, or rifle. The definition of “firearms” explicitly included long guns.

Similarly, a 1933 Hawaii law required a permit to obtain firearms of any description, “whether usable or unusable, serviceable or unserviceable, modern or antique.” The act defined “firearm” as including “pistols, revolvers, rifles, shotguns, machine guns, [and] automatic rifles,” among other explosive weapons.

Finally, a 1933 Wyoming law required the registration of all firearms. The registry collected the identifying information of the name of the manufacturer, the person from whom the firearm was obtained, the date of its acquisition, the manufacturer’s number, its color, its caliber, whether the firearm was new or secondhand, whether it was automatic, a revolver, a single shot pistol, a rifle, a shotgun or machine gun, and the purchaser’s name. The registry’s inclusion of this information shows that long guns were being registered as well as handguns.

On the other hand, some statutes used broader terms like “gun” or “firearm.” The historical definitions of these terms suggest that such statutes included long guns.

Webster’s 1828 American Dictionary of the English Language defined “gun” as “[a]n instrument consisting of a barrel or tube of iron or other metal fixed in a stock, from which balls, shot, or other deadly weapons are discharged by the explosion of gunpowder.” Importantly, according to Webster’s, pistols were “never called a gun.” The broad definition, as well as the explicit exclusion of pistols, implies that the term “gun” historically included long guns. Further, the same dictionary defined “firearms” as “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.” Again, the broad definition implies the inclusion of long guns.

A few licensing and registration laws used the general term “guns” or “firearms,” which implied application to long guns. For example, a 1913 Michigan law required that retail businesses keep a register of every purchaser of guns, pistols, other firearms, and silencers.

Along the same lines, a 1917 New Hampshire law required an application for noncitizens of the United States to possess any firearm of any description. The application required identifying information, including full name, occupation, and residential address. Even more, the noncitizen was required to display his permit when requested by any person. (Note: This law is in the process of being added to the Repository, so the link is to HeinOnline.)

Similarly broad, a 1925 Michigan law required the purchaser of any gun to give the seller a statement of personal identifying information to forward to the police or county sheriff.

The list of historical long gun registration laws is not exhaustive. What it already shows, however, is that registration before 1934 was not limited to handguns.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Genesa Cefali. This post, like the Repository, is exemplary and not exhaustive.]

Is First Amendment Fee Jurisprudence the Right Approach to the Second Amendment?

The historical record suggests: Maybe not.

First Amendment “fee jurisprudence” deals with the constitutionality of fees charged by governmental entities on activities protected by the First Amendment, like fees charged to hold a rally or parade. The rule is that fees can be imposed on the exercise of a constitutional right when the fees are designed to defray, and do not exceed, the administrative costs of regulating the protected activity. The Second Circuit borrowed First Amendment fee jurisprudence in the Second Amendment context in Kwong v. Bloomberg. Kwong upheld a $340 firearm licensing fee because it was designed to defray (and did not exceed) the administrative costs associated with the licensing scheme. A handful of other courts (e.g., here, here) have also adopted First Amendment fee jurisprudence in the Second Amendment context.

But does this make sense? If the right to bear arms had no relevant history of its own, then it would make sense to look for analogies outside of the Second Amendment context. But the right to bear arms does have a relevant history of its own – a rich record of state and local regulations from pre-colonial times to 1934 (the year the federal government stepped in, and when the Repository stops recording laws). Courts can consider the historical record of fees as applied to guns. This “local” history of the Second Amendment should come before analogies to the doctrine of the First.

The historical record of firearm taxation and licensing suggests that First Amendment fee jurisprudence may not be the most apt analogy. Tax revenue and licensing fees were not typically used to defray costs of the licensing or registration scheme.

Often, the tax revenue and licensing fees were explicitly directed to an unrelated program or project. For example, an 1867 Washington County, Mississippi tax law explicitly declared that the revenue was to contribute to the bridge fund of Washington County. A 1903 Virginia tax on shotguns, rifles, muskets, and other firearms would go to support “the government and public free schools.” Most strikingly, a 1926 Virginia law directed that all the license tax collected from a handgun licensing scheme would create a “diseased and crippled children’s hospital fund.” The explicit purpose of the fund was to establish and maintain a hospital for the care, treatment, and vocational training of diseased and crippled Virginian children.

Sometimes, the tax revenue was directed to a tangentially related program. For example, an 1889 California tax on the storage, manufacture, or sale of gunpowder and other explosive materials directed that the revenue would go to a Fireman’s Charitable Fund. The logical connection is that explosives can cause fires, which require firefighters to put out. However, such a tangential connection was not defraying the costs of the regulatory scheme.

Occasionally, the tax revenue and licensing fees just went to the general state revenue. For example, an 1844 Mississippi tax law’s explicit purpose was to raise revenue for the state. In sum, very few statutes explicitly designated the revenue to defray the costs of implementation.

The fact that these statutes rarely dedicated the revenue to defraying the costs of implementation, instead directing the revenue to sometimes unrelated organizations, suggests that First Amendment fee jurisprudence may not be the proper approach to firearm license fees today.

[Ed. Note: This post about gun laws in the Center’s Repository of Historical Gun Laws is written by Center research assistant Genesa Cefali. This post, like the Repository, is exemplary and not exhaustive.]