The Untold, Somewhat Embarrassing Story Behind the NRA’s Laudatory Messages from President’s Roosevelt, Truman, and Eisenhower

To say the history of gun rights is full of hyperboles, misnomers, and myths would be an understatement.  Time and time again, when historians examine the history of gun rights, it turns out that what is long claimed to be settled history is more nominal than real.  There is an abundance of examples of this, several of which are outlined in my book Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry.

My recent research trip at the Dwight D. Eisenhower Presidential Library shed much light on another historical hyperbole—that Presidents Franklin D. Roosevelt, Harry S. Truman, and Eisenhower each, on their own volition, sent the National Rifle Association (NRA) laudatory messages of support.

From the late 1930s through the early 1960s, the NRA used these laudatory messages to help promote the organization as one of America’s most patriotic and beloved.  According to the NRA’s view of history, it was only following the assassination of President John F. Kennedy that the biased, liberal-media began reporting on the NRA’s opposition to gun control—improperly calling the organization’s good standing into question.

There are several factual problems with this historical narrative, but none more so than the fact that—despite the NRA’s public testimonials stating otherwise—from the late 1930s through the early 1960s the NRA was principally behind the defeat of most proposed gun controls, whether it be at the federal, state, or local level.  Moreover, although the NRA often lauded itself for the passage of the first federal firearms controls—the 1934 National Firearms Act (NFA) and 1938 Federal Firearms Act (FFA) respectively—the NRA did everything within its power to prevent their passage. This included going so far as to offer a provision in the 1938 FFA that would have repealed the 1934 NFA in its entirety. Needless to say, from the 1930s through the early 1960s, the NRA was not so much a supporter of gun control as it was supporter of its own interests.

The point to be made is that when it comes to the history of gun rights, what many have long stated to be true is anything but. The reality is that the history of gun rights is often complex, multi-faceted, and its context often changes when historians peek behind the proverbial curtain. Such is the case for the laudatory messages of presidents Roosevelt, Truman, and Eisenhower’s to the NRA.  If one were to solely examine NRA literature, the historical takeaway is that the NRA was time and time again recognized by presidents as the nation’s preeminent patriotic organization.  However, a closer look reveals that neither Roosevelt, Truman, nor Eisenhower were responsible for said laudatory messages. It was the NRA.

For all three presidents, not only did the NRA leverage its contacts within the Department of War and Department of Navy to make the laudatory messages possible, but the NRA even drafted them.  Yes, you read that right—the NRA has historically celebrated laudatory messages from three presidents that the NRA principally authored.

In 1938, in the case of Roosevelt, it was NRA Executive Vice President Milton A. Reckord that submitted a request through Colonel James Roosevelt. The request eventually reached White House assistant William D. Hassett, who then reached out to the War Department to inquire whether “such a message is justified.”  Within a matter of days, the War Department sent a note to Roosevelt recommending that the president oblige the request.  Included within the War Department’s note were minor edits to the NRA’s self-written laudatory message. Days later, Roosevelt signed it and in the March 1938 edition of the American Rifleman read the headline, “President Commends Association at Annual Meeting.”

In 1945, in the case of Truman, it was Jim Berryman, editor of the American Rifleman, who reached out to the White House.  Berryman requested that the White House do the NRA a “favor” by drafting a letter of commendation and having Truman personally sign it, or what Berryman otherwise referred to as a “brief ‘pat-on-the-back.”  Ultimately, it was not anyone in the White House that drafted the letter of commendation, but rather the NRA.  The final letter of commendation signed by Truman, except for a few deletions, was virtually one and the same as the NRA’s.

The same can almost be said of Truman’s statement regarding the formation of the National War Trophy Safety Program (NWTSP).  The statement came about following the NRA having defeated the Truman administration’s attempt to pass legislation expanding federal firearms registration. At that time, the country was being flooded with surplus foreign firearms and explosives from World War II.  These weapons subsequently turned up at crime scenes, and were attributing to thousands of accidental deaths across the country. The Truman administration initially wanted to expand firearms registration as the solution—that is until the NRA handily killed it in Congress and convinced the War Department to accept an education over legislative approach with the formation of the NWTSP.

Therein, the NRA assisted in drafting a statement for Truman to sign endorsing the NWSTP. Truman agreed with most of what was in the draft except for one notable deletion. The draft proposed Truman state, “In my opinion, legislation cannot eliminate or reduce the existing hazard. The problem is one of education.” Truman’s staff deleted the first sentence entirely and modified the statement to read, “The problem is one primarily of education.”

Perhaps no president—that is until after the politicization of gun rights in the late 1970s—signed more laudatory messages to the NRA than Eisenhower. From 1953 through 1960, except for 1959, Eisenhower sent a laudatory message to the NRA for every annual convention.  Given this fact, one would assume that Eisenhower was a true-blue NRA supporter. Hereto though, it turns out that Eisenhower’s praise of the NRA was not so much his personal thoughts, but what the NRA wanted to project.  For one, the NRA, not Eisenhower, initiated and drafted each of the laudatory messages. Indeed, for several of the laudatory messages, Eisenhower’s staff edited the NRA’s drafts substantially, but the NRA initiated and drafted each of them, nonetheless.

Second, although it is true that Eisenhower became an NRA life member in 1956, much like John R. Kennedy and Richard Nixon, Eisenhower’s NRA life membership was not of his own volition. Rather, it was bestowed upon him for being the president, and it was one of hundreds of honorary memberships bestowed upon Eisenhower during his time in office.  Other memberships include the Sapsscam Amateur Chefs Club and the American Society of Mechanical Engineers, to name a few.  But what is particularly telling as to why Eisenhower was an NRA member in name only, was an edit to the NRA’s 1960 draft laudatory message. In it, the NRA asked Eisenhower to state, “I am proud to be a Life Member of the NRA,” but the sentence was deleted, with no mention of Eisenhower’s honorary membership included anywhere.

Why is this history important? Two reasons come to mind. First, as outlined earlier, it reinforces that there is much in the category of gun rights history that is left to be fleshed out by historians. Second, and more importantly, it highlights that the NRA was the primary driving force, and embarrassingly the ghost writer, behind most of its high-profile laudatory messages.




Heller and the Vagaries of History

By now, Heller’s central holding is familiar: whatever other restrictions it may impose, the government cannot ban handgun possession in the home because “the American people have considered the handgun to be the quintessential self-defense weapon.” But what “people” made that choice? Not The People who ratified the Second Amendment in 1791. For them, the “quintessential self-defense weapon” was almost certainly a musket or hunting rifle, if a firearm at all. Does it matter that, through sheer happenstance, Heller was decided in 2008 when handguns were the predominant self-defense weapon?

It ought not to matter if one is an originalist, unless the Second Amendment has a built-in technologically adapting metric like the Eight Amendment’s reference to “evolving standards of decency.” On that view, one might read the Second Amendment to protect whatever happens to be the quintessential self-defense weapon of the time. At the founding, maybe it was a muzzle-loading musket; in the post-Civil War era, maybe it was Sam Colt’s revolver; at one point, maybe the rifle or shotgun took precedence; and today, as Justice Scalia proclaimed, it might be the handgun. As Akhil Amar put it: “[B]etween 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman.” There’s good reason to believe that, as technology changes, so too does the People’s weapon of choice.

The Heller majority said something that could be read to support this evolving-standards-of-utility view. In discussing its 1939 decision in Miller v. United States, the Court said that case stood for the view that “the sorts of weapons protected were those ‘in common use at the time.’” Indeed, in 2016, the Supreme Court reversed the Massachusetts high court’s ruling that stun guns could be banned because they were not in common use in 1791. But Heller’s “common use” test—which raises a host of its own questions—is importantly different than its “quintessential self-defense weapon” (QSDW) test (if we can call it that). There are many types of weapons in common use, and not just firearms either. But there can be only one QSDW at a time. The tests for these two categories seem to be importantly different.

For the QSDW, Heller set a categorical rule that bans are forbidden. It doesn’t matter how compelling the government interest, how narrowly tailored the rule, or how decisive the weight of statistical and scientific data supporting the law. The Constitution, according to Heller, forbids a ban on the QSDW. In that instance, Second Amendment rights are trumps. As Joseph has written, sometimes in Constitutional law bans are subjected to these per se rules of invalidity. But it’s not at all clear that that is the case for the category of weapons that are in “common use” but are not the QSDW.

To see why, it’s important to observe a distinction between a constitutional provision’s “coverage” and its “protection.” Frederick Schauer explains it this way: coverage concerns the scope of the right; it tells us what category of conduct comes within the sweep of the Constitution. Fighting words, for example, fall outside the First Amendment’s scope. The government doesn’t need to articulate any interest or adduce any evidence to ban fighting words.  Protection, on the other hand, concerns whether covered conduct ultimately gets vindicated. The various modes of constitutional review—rational basis review, intermediate & strict scrutiny, the undue burden test, and the like—are all protection inquiries. Can the government ban independent corporate expenditures in elections? Can it ban judges running for political office from personally soliciting campaign donations? These are protection questions, and they depend on (in this instance) whether the strict scrutiny test is satisfied.

For the QSDW, the coverage and protection questions converge. But we know from Heller that that isn’t the case for every type of Second Amendment-related arm or activity. And the Court of Appeals have uniformly adopted a two-part test that splits the coverage and protection questions. First, they ask whether the arms, activity, or person falls within the scope of the Second Amendment. Next, if it does, the courts ask whether the government has carried its burden under the appropriate means-end scrutiny test. Most courts, for example, have held or assumed that so-called “assault weapons” fall with the Second Amendment’s scope (assault weapons are covered); but they have nevertheless uniformly upheld these laws because they concluded that the government satisfied means-end scrutiny (assault weapons are not protected).

Even Heller’s most ardent defenders—Justices Thomas and Scalia—might be read to support this distinction between the QSDW and other covered common-use weapons. In a dissent from the Supreme Court’s refusal to hear a challenge to Illinois’s assault weapons ban, they chided the lower court for upholding “a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits.” But they didn’t say the fact the weapons were common meant any ban was off the board. Instead, they suggested the state had to make a stronger showing, and that the lower court should have held the government to its burden. The distinction between these categories—the (one) QSDW and other common-use weapons—seems important to maintain. After all, if the core of the right is (as Heller says) self-defense, then it would make sense to provide greater protection to the QSDW while still recognizing that many other types of weapons are entitled to at least some (and perhaps even very strong) protection.




University of Utah, S.J. Quinney College of Law Jefferson B. Fordham Debate

This past Thursday, I was delighted to participate in the 36th Annual Jefferson B. Fordham Debate at the University of Utah, S.J. Quinney College of Law in Salt Lake City.

The topic of the debate was: “Be it resolved that the Second Amendment right to keep and bear arms should be limited to the home.”

My debate counterpart was George Mocsary, Professor of Law at the University of Wyoming, co-author of the casebook Firearms Law and the Second Amendment: Regulation, Rights, and Policy, and a guest blogger on this site.

There was an impressive turnout, with more than four hundred people signed up for the event — one of the largest crowds for the Fordham debate, I am told.   From what I could see (and from the character of the questions) there was a mix of strong gun-rights supporters, strong gun-safety advocates, and people just curious to learn more about the topic.

Our moderator, Professor RonNell Andersen Jones is an old friend from my days in practice, and handled her job with characteristic brilliance.   Her goal, as she mentioned in this news story, was to allow the community to engage in a difficult discussion on a highly emotional topic with civility and thought, and I think that George and I were able to deliver.

The debate and Q & A afterward were recorded, and are available here.




Firearms Law Workshop Mini-Symposium, Part V: The Use of the Second Amendment to Reject Conscription

In 2019, national conscription, or the draft, no longer feels like the ominous threat to civil liberties that it once did. Today, American male citizens must still register at 18 and there are existing proposals and a national commission considering expanding the draft to include women. Yet, the first and most significant fight over the constitutionality of conscription occurred during the American Civil War. Constitutional conservatives believed the power to draft would lead to a consolidated, centralized and despotic national government. Looking to preserve the original structure of federalism, constitutional conservatives saw the Second Amendment as an additional bulwark against the expansion of federal power. However, the use of the Second Amendment was primarily used by lawyers and a handful of influential legally-trained politicians to bolster their core objections to conscription and never became central to constitutional challenges in the wider, popular debates.

After the act was passed on March 3rd, several Democratic lawyers wrote pamphlets attacking the unconstitutionality of national conscription. According to New York attorney Dennis A. Mahoney, the Conscription Act violated the Second Amendment by putting the state militias “out of existence” and turning American citizens into conscripts instead of subjects of the militia. The federal government only had the right to call out the state militias in accordance with state laws but had no right to call people out “against their will” to perform military service in any manner outside of what conformed to the Constitution. Fellow New York attorney John Joseph Freedman agreed. He felt that the Second Amendment only confirmed the restrictions the framers placed upon the Article I powers over the militia. The amendment was added for the purpose of further restricting Congress’s powers over the militia.

Once the question of the constitutionality of the Conscription Act reached the courts in the summer of 1863, conservative lawyers looked to the Second Amendment to act as an additional safeguard for antebellum federalism but only two judges agreed. In New York City, Judge John McCunn, a Democratic judge on the city court, ruled that the entire law was “clearly unconstitutional” and violated the rights of the people. He thought that it not only exceeded the Article I powers granted to Congress, but both the Second Amendment and the “Commander-in-Chief” clause of the Article II did not authorize it. But because he was a city judge, McCunn found his decision quickly reversed by the New York Supreme Court on jurisdictional grounds.

The most important legal challenge to the Conscription Act came during the fall of 1863 before the Pennsylvania Supreme Court in the case of Kneedler v. Lane. The lengthy complaint and interrogatories filed by the three plaintiffs did not mention the Second Amendment. However, in oral argument, Democratic attorney George Wharton used the Second Amendment to support the proposition that if Congress could conscript every male citizen, the reserved powers of the states were nullified and state forces would be “absorbed” by the federal army. Wharton maintained that the Second Amendment’s first clause ensured a militia system that relied upon able-bodied citizens to render military service in emergencies for defensive warfare. When three of the five judges voted to strike down the Conscription Act in November, only Judge James Thompson’s concurring opinion referred to the Second Amendment as an additional protection for antebellum federalism. Thompson wrote that the Second Amendment reflected the apprehension of the framers over such a “dubious power” as the power of the federal government to coercively conscript.

Privately, Chief Justice Roger Taney agreed with McCunn and Thompson, writing an unpublished opinion in the spring finding the Conscription Act unconstitutional. Taney understood the Second Amendment to reflect the “sharp distinction” between the militia and regular army, noting that the militia was composed of state citizens who “retain all their rights and privileges as citizens who when called into service by the United States are not to be fused into one body–nor confounded with the Army of the United States, but called out as the militia.”

However, the opinions of these Democratic lawyers and judges did not carry the day. Just over two months after Kneedler was decided, with one member of the majority gone, the court reversed the injunction. By November 1864, Taney was dead. By the time conscription reached the Supreme Court in 1918, it was upheld unanimously and the role of the Second Amendment in protecting state militia power was largely forgotten.

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]




Firearms Law Workshop Mini-Symposium, Part IV: Regulation, Not Rights: the Early History of a National Firearms Industry

It should be no surprise that today some of the biggest gun companies are in New England, where the government fostered the development of firearms manufacturing. These include Colt’s Manufacturing Company LLC (Hartford, CT), Smith and Wesson (Springfield, MA), and Sturm, Ruger & Co., Inc., (Southport, CT). Although discussions of gun culture today tend to focus on the Second Amendment, we should consider the origins of the government’s intervention in the arms industry, a history that involves regulating the types of firearms manufacturers brought to the market. By understanding the precise ways the federal government fostered the emergence of an industry that is dependent on both military conflict and a civilian gun culture, we can point to the ways the government is obligated to regulate it. It is more than a Second Amendment issue; it is a safety regulation issue.

The Militia Act of 1792 required militia members to provide themselves with a musket, but many struggled to arm themselves in the face of post-war shortages. The federal government’s solution involved the construction of two federal armories, in Springfield, Massachusetts and Harpers Ferry, Virginia and five-year renewable contracts that came with 10-20 percent cash advances, as well as requirements that gun parts conform to federal standards and pass regular inspections. These contracts kept a small cohort of arms makers in the Connecticut River Valley steadily employed; according to one arms contractor, “if the patronage of the government is not continued, our factories will be worth but little.”[1]

The federal government helped Samuel Colt, for example, become one of America’s most eminent arms makers. In the 1830s, a board of ordnance officers tested his newly developed musket, but noted that several features caused safety risks. After making changes, Colt entered a short-term contract with the government. Colt also borrowed government-subsidized machinery to build a new factory in Hartford, Connecticut. His business was further helped by new civilian demand, which peaked after Colt used soldier testimony from Florida and Mexico in the 1830s and 1840s to market his guns as agents of frontier conquest. As Colt’s business took off in the years following the Mexican American War, he owed at least some of his success to a half century of government intervention in the arms industry.

As lawmakers face opposition when they attempt to regulate guns favored by the industry, we need to reevaluate policy aims based on true historical precedent. It is not historically sound for policymakers to allow gun manufacturers and marketers to determine what arms are in “common use.” By fully understanding the historical relationship between the firearms industry and the government, lawmakers could assert their prerogative to intervene with gun safety regulations. Armed with historical knowledge, sensible gun control might be seen as both constitutionally and politically sound.

[1] Memorial of Private Contractors to U.S. Congress, 1835?, Waters Family, Papers, 1749-1873, BoxW1, Folder 4 1835, American Antiquarian Society.

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]




Firearms Law Works-in-Progress Workshop

On Friday, the Center for Firearms Law hosted the first of what we hope will become an annual Firearms Law Works-in-Progress Workshop. The immediate goal was to give scholars—especially those new to the area—a chance to engage with another’s work. More broadly, and in keeping with the Center’s overall mission, our hope was to help build a scholarly community and to broaden and deepen firearms law as a scholarly discipline.

We were fortunate to have several groups of scholars in attendance: those recently entering the field of firearms law (broadly defined), those who have spent years (and in one case decades) writing on firearms law, and those with substantive expertise in other areas of law who are interested in the development of this new field of scholarship.

 

The papers represented a wide range of disciplines and methodologies, including: an empirical investigation of the links between state permitting laws and suicide risk; the sometimes-surprising role of police organizations in gun politics; just war theory and an ethic of Christian handgun ownership; the use of tort law to hold businesses liable for the misuse of guns on their property; and the historical role of the U.S. government in developing the national firearms industry.  Those papers (and others) were divided across four panels throughout the day, and the discussion was so engaging that it spilled over each and every time.

Scholarly programming is a central mission of the Center. Along with the historians’ roundtable at Oxford last month, and our first symposium next month—“The Second Amendment Outside the Home,” which will be published in Law & Contemporary Problems—the works-in-progress workshop represents the kind of engaged scholarly discussion we hope to achieve.




Book Mini-Symposium Part I: Militias, Bearing Arms, and the Forgotten Language of Eighteenth-Century Rights

Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms.  Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.

This conception is almost the exact opposite of the way most modern gun rights advocates view the matter. In modern gun rights ideology the right to bear arms makes possible a citizen militia, so the militia is an ancillary of the right to keep and bear arms.  Most members of the Founding era saw matters differently: because a well-regulated militia was necessary to the security of a free state,  they insisted, the right of the people to keep and bear arms had to be protected.

A closer look at the two first state declarations of rights is instructive. Virginia, the first state to draft a declaration of rights, did not expressly protect the right to bear arms. Instead, Virginia asserted: “that a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  The militia was set against the danger of a standing army and the need for the military to be subordinate to civilian authority. This was the classic Whig conception of the militia.

In a separate provision Virginia also affirmed: “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The recasting of the Lockean trinity of life, liberty, property in this text suggests that the idea of individual self-defense was not seen as identical to either the right to bear arms or the preservation of a well-regulated militia.  Modern gun rights ideology, including the majority opinion in District of Columbia v. Heller, have blurred these distinct concepts together, effectively rewriting the original conception of Second Amendment in light of post-eighteenth century changes in American thinking about gun rights.

Turning to the second declaration of rights drafted after Independence, the Pennsylvania Declaration of Rights, the idea of the right to bear arms is clearly expressed: “that the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” As was true for Virginia, Pennsylvania linked the militia with the traditional Whig fear about standing armies.

In Heller Justice Scalia adopted the modern gun rights view of this text, arguing that it unambiguously asserts an individual right to bear arms and that this right was synonymous with the individual right of self-defense.  One problem with this claim is that Pennsylvania also separated the Lockean trinity of life, liberty, and property, from the right to bear arms.

Another piece of textual evidence cutting against Scalia’s interpretation is the inclusion of a provision of a right not to bear arms. Protecting a right for conscientious objectors such as Quakers, Moravians, and Mennonites not to be forced to bear arms is hard to reconcile with Heller’s conceptualization of the right to bear arms as modern individual right. The idea of forcing someone to bear arms in individual self-defense is absurd.

Moreover, the history of the constitutional struggle over religious exemptions in Pennsylvania shows that “bearing arms” was not understood to be a synonym for “carry a gun” as Scalia argued in Heller. Pennsylvania allowed those religiously scrupulous about bearing arms to pay a fine instead of serving in the militia. For Quakers, the most militant pacifists in Pennsylvania, this compromise was unacceptable.  Any support for the militia, including  paying for substitutes, paying fines, or even paying for non-military supplies was a violation of Quaker faith.  Thus, a Quaker might bear a gun in many circumstances:  Quakers’ firms manufactured arms and Quakers even worked as gun smiths, but the one thing a Quaker might not do was serve in the militia. So contrary to Scalia, bearing a gun and bearing arms were not synonymous. Indeed, carrying a flag or a drum in a militia unit, either on a muster field  or in battle, would have violated the Quaker peace testimony, and been viewed by the community as an impermissible example of arms bearing. By contrast, using a gun to rid their own fields of critters and pests, an agricultural necessity, would have not posed any problem. Quakers were religious pacifists, not vegetarians, something Scalia’s account confuses.

Although the first declarations of rights drafted after Independence have often been quoted in the modern Second Amendment debate, they have seldom received the careful attention they deserve.  When read in context, these early legal texts do not support the simplistic claims so often made about the “original meaning” of the Second Amendment.  The time has come to free these texts from the ideological distortions wrought by the modern debate over gun rights and gun control and understand them as part of an eighteenth century debate over rights that shares little with our modern conflicts over the proper role of guns in a free society.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]




What’s in a name? The Evolution of the Term “Gun”

The 1828 edition of the American Dictionary of the English Language (which Justice Scalia cited in District of Columbia v. Heller when he defined “arms,” “keep,” “carry,” and “militia”) 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. The larger species of guns are called cannon; and the small species are called muskets, carbines, fowling pieces, &c. But one species of fire-arms, the pistol, is never called a gun.”

The Repository of Historical Gun Laws suggests that the italicized portion of this definition was widely accepted throughout the 19th century and into the early 20th century – laws from Connecticut (1835), San Francisco (1849), Chicago (1873), New Haven (CT) (1881), Massachusetts (1882), Rhode Island (1883),  Michigan (1883), New Jersey (1885), St. Louis (1887), Utah (1905), North Carolina (1913), and South Carolina (1923) all differentiate between guns and pistols.

Why does this matter? Statutes that only prohibited guns during this time period may have implicitly included an exception for pistols. Several such laws appear on the Repository, and while they may merely be examples of oversight or poor draftsmanship, there are signs that the omission was intentional. For instance, there is consistency in the use of “gun” in isolation: nearly all of the laws that mention guns but not pistols address hunting. Perhaps in such cases though it was unlawful to carry guns, it was lawful to carry pistols as they were not hunting weapons. Furthermore, several states that enacted laws only addressing guns enacted laws addressing both guns and pistols in the same year. In 1863, Delaware enacted a hunting law stating that “any gun . . . used with the consent or knowledge of the owner thereof, shall be forfeited and may be seized, condemned and sold as hereinafter provided.” That same year, Delaware enacted another law prohibiting specified persons from possessing “a gun, pistol, sword or any other warlike instrument.” Similarly, in 1880, Georgia enacted a hunting law stating that it was “unlawful for any person or persons to hunt with a gun by fire-light.” Also that same year, Georgia enacted another law that addressed “any person who shall intentionally point or aim a gun or pistol.” Similarly, New Jersey enacted a statute in 1901 that used the terms firearms and guns in separate clauses of the same sentence. Perhaps this is an example of colloquialism slipping through; however, this statute, like the others, also used the term “gun” in relation to hunting.

The New Jersey statute brings up another question. Where does the term “firearm” fit into all of this? The Repository suggests that at the very least, a pistol, though not always considered a gun, was regarded as a firearm. A statute from 1885 out of New York, for example, addressed the carrying of “any pistol or other firearms of any kind.” But was a gun a type of firearm? The answer to that question is less clear.

The syntax of several laws indicates that a gun was regarded as a type of firearm. When pistols, guns, and firearms are listed together on the Repository, the most common phrasing is “gun, pistol or other firearm.” You can see this with minimal variation in New Jersey (1885), Fresno (CA) (1896), Utah (1905), North Carolina (1913), and South Carolina (1923). Now, admittedly, that construction is ambiguous. It could be that the term “firearm” applies only to the term “pistol.” If that is true, then the term “gun” presumably refers to a separate category of weaponry. However, another interpretation is that “other firearms” applies to both “gun” and “pistol.” Laws out of Georgia (1847) and Arizona (1907) support this theory, as both read “gun or other firearm” (with slight grammatical differences).

The same dictionary that launched this discussion, however, supports the argument that the terms gun and firearm referred to distinct, though overlapping, types of weapons. The American Dictionary of the English Language from 1828 defines “firearm” as “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.” Though it expressly includes pistols, the definition also does not describe the same range of weaponry as the definition of “gun.” While the term gun encompasses canons as well as smaller species of guns such as muskets, the definition of “firearm” only includes examples weapons that could be carried. The definition of “firearm” does not say that the examples are comprehensive, however the examples do indicate a difference between the terms. As does the fact that neither entry refers to the other.

Regardless of whether guns were once considered firearms, at least one thing is clear: the definition of “gun” has evolved. Present-day dictionaries, such as the Oxford Dictionary, no longer exclude pistols from the definition of “gun.” Some do, however, limit the definition of “firearm” largely to weapons that are “small and portable, [such] as a pistol, rifle, shotgun, or musket.” Such definitions are consistent with the analysis of the 1828 definition of “firearm” above. Furthermore, if guns once were considered a subgroup within the category of firearms, then at some point it seems the roles reversed: The Oxford American Dictionary and Thesaurus (Second Edition, 2003), for instance, defines a firearm as “a gun, especially a pistol or rifle.”

While present-day dictionaries may offer some clarity, many questions remain. Why did the definition of “gun” initially exclude pistols? Why did it change, and when did it change? If this analysis is correct, how might it impact the way we analyze laws from the 18th and early 19th century?

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




Twitter Series: Historical Gun Law a Day

The Center’s Twitter account—@DukeFirearmsLaw—has been a way for us to get out information about the Center, interesting scholarship and cases, and news about this blog. And we’ve recently started amplifying laws from the Repository of Historical Gun Laws. Through our new hashtag #HistoricalGunLawADay series, we’ve been highlighting one new historical law every single day, showing the myriad ways that firearms have been regulated throughout Anglo-American history.

Some of these laws contain some comic relief, like the North Carolina one we spotlighted below:

Others illustrate with their specificity how pervasively gun-related activity has been regulated throughout history. This Brooklyn law typifies a transport law that formed part of a larger legal regime regulating firearms-related conduct:

The hashtag aims to underscore just how rich a resource the Repository is. It contains more than 1,500 historical laws, from medieval England all the way through 20th century America. Check out more about the Repository here, and be sure to follow the journey through #HistoricalGunLawADay on Twitter!




Minors and Firearms: A Divided Nation

In my last blog series, I discussed laws currently in the Repository of Historical Gun Laws that relate to the category “Felons, Foreigners and Others Deemed Dangerous By the State.”

I have begun wading into a new category on the Repository over the past few weeks: “Possession By, Use of, and Sales to Minors.” Recently, I organized these laws into three groups: (1) laws that address all firearms, (2) laws that address concealable weapons or weapons worn concealed, and (3) laws that address only pistols and revolvers. I translated these groups onto a map, and what emerged was a hard line across the country, dividing the map into the North and the South.

According to the Repository, northern states tended to enact laws falling in the first group—those that limited minors’ access to all firearms. For instance, from 1873 to 1912, Chicago (1873),  New Jersey (1885), New York (1885),  Nebraska (1895), and Vermont (1912) forbade the sale and/or giving of all firearms to minors of various ages, among other prohibitions (New York had an exception for those with the consent of a police magistrate, and Vermont had an exception for parents as well as instructors). Similarly, New Haven (CT) (1881), Massachusetts (1882), and Rhode Island (1883) outlawed the sale of any “gun, pistol, or other mechanical contrivance arranged for the explosion of [any cartridge or fixed ammunition of which fulminate is a component part]” to minors under fifteen and sixteen without a parent’s consent (later St. Louis (1887) enacted a nearly identical law). Michigan (1883) forbade people from selling, giving, or furnishing “any cartridge of any form or material, or any pistol, gun, or other mechanical contrivance, specially arranged or designated for the explosion of the same” to children under thirteen, and Pennsylvania (1881) outlawed the sale of canons, pistols, revolvers, and any other such deadly weapons to minors under sixteen.

Meanwhile, according to the Repository, southern states tended to pass laws in groups two and three—limiting minors’ access either to weapons capable of being concealed or pistols specifically.  Kentucky (exception for parent) (1860), Mississippi (1878), and Louisiana (1890) forbade people from giving or selling weapons capable of being concealed to minors of various ages. Alabama (1856), Lexington (Va) (1869), Georgia (1876), North Carolina (1893), and Texas (1897) outlawed giving, selling, lending, and/or furnishing minors of various ages with a pistol (with exceptions not relevant here).  West Virginia (1882) similarly forbade selling to or furnishing a person under the age of twenty-one with a pistol, in addition to forbidding the sale of a “dirk, bowie knife, razor, slung shot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character.”

The Repository does include some exceptions to this divide. In the North, for instance, Idaho (1909) enacted a law that restricted the sale of only concealable weapons to minors. Notably, however, Idaho (1888) already restricted the carrying of all deadly weapons, including firearms, in cities, towns, and villages. As such, minors’ access to all firearms was possibly already somewhat limited. The South also had at least one exception: in 1913 North Carolina enacted a law that stated that parents could not permit children under twelve to possess any firearm.

According to the Repository, areas that are along the divide between the North and the South are a bit mixed in what they forbid.  Fresno (CA) (1896) and Utah (1905) restricted the sale of or giving of all firearms to minors of various ages. On the other hand, Nevada (1881) prohibited minors from carrying only concealed weapons and Indiana (1875) forbade the sale of only concealed weapons to minors.

The Repository is not comprehensive, so the question remains: is there a divide, or are we missing relevant laws? If there is a divide, why did the divide exist? Does it represent a divergence in philosophy on gun regulation? Or is the divide coincidental, and the northern laws represent a temporal shift rather than a geographic one?

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