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May 23, 2023

The U.S. Has Long Had Both Gun Rights and Regulations

Soon after these fearsome weapons began to circulate in society, they developed

Soon after these fearsome weapons began to circulate in society, they developed a notorious reputation. Developed for the battlefield, these guns in civilian hands became the tools of choice in gruesome, highly publicized shootings. Calls for their restriction or banishment escalated, and state legislatures moved to enact new laws.

The gun in question was the notorious Thompson machine gun, and the time was the 1920s. Developed for trench warfare in World War I, the Tommy gun—a fully automatic weapon, though it could also fire semi-automatically—was made available for civilian purchase by inventor John Thompson's Auto Ordnance company. With the end of the war the American military was no longer interested in the gun, and Thompson was desperate for new sales, so he began to aggressively market the gun to police forces and civilians. Yet as William Helmer concluded in his book The Gun That Made the Twenties Roar: "As a criminal's weapon, the Tommygun was an unqualified success." By the middle of the decade, sensational news stories of gangland violence involving the gun sparked calls for government action that led at least 32 states to enact restrictions on the gun and similar gangster weapons. This culminated in the first important national gun law, the National Firearms Act of 1934, which imposed significant and effective restrictions on the guns’ acquisition.

The story of the Tommy gun bears remarkable resemblance to the contemporary controversy over efforts to restrict AR-15-type assault weapons. They, too, were developed for military use during the Vietnam era of the 1960s. When America ended its involvement in the war, sales declined, and manufacturers ramped up civilian marketing efforts (the civilian version fires semi-automatically). Yet there was little interest until the late 1980s, when cheaper imports flooded the market. The political catalyzing moment came in the aftermath of a 1989 mass shooting at an elementary school in Stockton, Cal., when a man firing an AK-47 killed five children and wounded thirty-three others. Shortly after, California became the first state to enact an assault weapons ban. Today, ten states plus D.C. have done the same.

The lesson of both weapons is the same: when particular weapons entered society and were used for nefarious purposes, regulatory efforts ensued (a lesson that seems lost on many in current America). This lesson is not confined to the last century, or to guns.

In 1827, adventurer Jim Bowie was presented with a uniquely styled "big knife" by his brother Rezin that he used to kill one man and wound another in a notorious brawl. Word of Jim Bowie's encounter, and the knife he used, spread rapidly. The distinctive long-bladed and usually single-edged knife with a hand guard became known as the Bowie knife. As the story spread, so did the knife. Yet this type of knife was part of a category of what were called "fighting knives"—long, thin-bladed knives often used in fights, duels, and other criminal activities. States moved with surprising speed to restrict or even bar them. In the 1830s, at least six states barred the carrying of Bowie knives by name. By the end of the nineteenth century, at least 42 states barred or restricted Bowie and similar knives, and another eight states restricted the category or type of knife embodied by the Bowie knife. Yet very much like the allure of contemporary assault weapons to some, the Bowie knife's notorious reputation also, if perversely, fanned its sale and acquisition.

Another, similarly reviled weapon was called a "slungshot," a simple hand-held weapon for striking with a weight at one end attached to a flexible strap or handle that began circulating roughly in the 1840s. Anti-slungshot laws were enacted by at least 43 states in the 1800s and early 1900s, as well as numerous other restrictions on other types of clubs. Why? Because, according to Robert Escobar's book on such weapons, "slungshots were widely used by criminals and street gang members in the 19th Century."

To be sure, knives and clubs are not guns. But they are weapons, and "arms" as the term is used in law. Even though they are far simpler, easier to make, and less expensive than guns, state and local governments historically regulated them ubiquitously and relentlessly because they posed a clear threat to public order and safety.

As I have learned from my research on early gun laws, weapons regulation in early America went even further, extending to three broad types of laws, spanning nearly 300 years of American history. First, laws restricting weapons carrying were enacted extending to guns, fighting knives, and clubs throughout the 1800s. These laws criminalized concealed weapons carrying in 50 states (including territories that later became states), open weapons carrying in at least 29 states, and even long gun carrying in at least 22 states. Second, at least 36 states laws passed laws that criminalized public weapons brandishing and display. Third, at least 47 states enacted laws providing for the licensing of some of these activities.

This blizzard of weapons regulations makes the contemporary inability to enact similar laws seem both ahistorical and contrary to the fundamental goal of protecting the public and preserving public order.

This history matters for at least two reasons: First, the new standard for judging the constitutionality of modern gun laws under the Supreme Court's 2022 Bruen decision is based on whether they are "consistent with this Nation's historical tradition of firearm regulation." Analogous historic gun laws, according to the court, need not be "a dead ringer for historical precursors" but must be "analogous enough to pass constitutional muster." Second, many believe this slavish devotion to history to be deeply flawed. For example, why should law-making in modern society be jacketed by the standards of pre-industrial 18th century America? Modern gun technologies are far, far more deadly than the one-shot flintlocks of the 18th century—shouldn't that matter? And what, exactly, constitutes an acceptable historical analogue? Still, it is equally clear that there is wisdom to be found in our gun law past.

That past reveals at least two key lessons. First, in most of our history, gun laws and gun rights were perfectly compatible. Only in the last few decades have the two become locked in a zero-sum relationship, where a gain for one side is seen as a loss for the other. Second, these prolific and varied gun laws make clear that the default in American history was regulation and restriction for guns and other weapons, especially once individuals left their domiciles.

What was past can also be true for the present.

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