America’s Original Gun Control
Category: Op/EdVia: hallux • 2 months ago • 9 comments
By: Robert J. Spitzer - The Atlantic
In the summer of 1619, the leaders of the fledgling Jamestown colony came together as the first general assembly to enact “just Laws for the happy guiding and governing of the people there inhabiting.” Consisting of the governor, Sir George Yeardley; his four councillors; and 22 elected “burgesses,” or representatives, the group approved more than 30 measures. Among them was the nation’s first gun law :
That no man do sell or give any Indians any piece, shot, or powder, or any other arms offensive or defensive, upon pain of being held a traitor to the colony and of being hanged as soon as the fact is proved, without all redemption.
After that early example of gun control came many more laws placing restrictions on the ownership and use of firearms. If guns have always been part of American society, so have gun laws.
This fact might come as a surprise to some gun-rights advocates, who seem to believe that America’s past was one of unregulated gun ownership. That view received a big assist in 2022, when the Supreme Court declared in New York State Rifle & Pistol Association Inc. v. Bruen that the constitutionality of modern gun laws depends on whether they are “consistent with this Nation’s historical tradition of firearm regulation.” In other words, the constitutional standard for any modern gun law boils down to whether you can find a good precedent for it back in the 1700s or 1800s.
The advocates’ assumption is that such precedents are few and far between, but thanks to the work of researchers and the digitization of archival material, thousands of old gun laws, of every imaginable variety, are now available for reference. Far from being exceptional in American history, gun-control regulations are the default. If Bruen was designed to nullify the constitutional basis for many gun laws, it ought to fail.
Because of the constant conflict between Indigenous people and European settlers in the early colonial period, virtually every colony enacted laws similar to Jamestown’s to keep firearms out of the hands of “hostiles,” ineffective as the laws generally were. Over the two centuries that followed, and up to the Civil War, the pervasive fear of enslaved persons’ rebellion prompted many colonies and, later, states to enact laws to prevent their obtaining guns. Gun regulations in the antebellum period, however, were not all about bans: At least 11 states enacted licensing laws that allowed—usually under some form of supervision—enslaved people and free Black people to carry weapons.
Throughout this long period in the history of the republic, up until the beginning of the 20th century, gun laws placed conditions or restrictions on weapons access for a wide variety of citizens—in particular, indentured servants, vagrants, non-Protestants, those who refused to swear an oath of loyalty to the government, felons, foreigners, minors, and those under the influence of alcohol. Numerous laws regulated hunting practices, as well as firearms’ carry, use, storage, and transportation; regulated the manufacture, inspection, storage, and sale of firearms; imposed gun licensing; and restricted dangerous or unusual weapons.
Despite the Thomas opinion’s claim that “the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited,” some local authorities outlawed the discharge of firearms in or near towns, buildings, or roads, as well as after dark, on Sundays, at public gatherings, and in cemeteries. In some jurisdictions, any use of a firearm that wasted gunpowder was also an offense.
A typical penalty for violations of these laws was some combination of a fine and imprisonment. In the 1700s and 1800s, the period of principal interest to the justices because of the Second Amendment’s adoption in 1791 and the addition of the Fourteenth Amendment in 1868, a breach of gun-carry and hunting laws could also have resulted in confiscation.
Naturally, some of these laws addressed problems unique to their time. Concerns about conserving gunpowder, for example, were important from the 1600s to the mid-1800s, because its relative scarcity made it a precious substance that was dangerous to keep on hand in any quantity and soon degraded if not properly stored or handled. Other types of laws, though, corresponded much more directly to modern gun regulations.
Take the matter of the carrying of firearms or other dangerous weapons in public. As early as 1686 , New Jersey enacted a law against anyone who presumed “privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,” because they induced “great fear and quarrels.” This law also warned the gentry against what we would now call open carry: “No planter shall ride or go armed with sword, pistol or dagger, upon the penalty.” New Hampshire passed a law in 1744 penalizing any unlawful assembly of a dozen or more persons “being armed with clubs, or other weapons,” including firearms, that refused to disperse. Massachusetts followed suit in 1751 . Virginia and North Carolina passed similar laws against the open carry of weapons in 1786 and 1792 , respectively.
In the post-revolutionary 1800s , as rising violent crime led more people to arm themselves, a total of 42 states (plus the District of Columbia) enacted laws against concealed carry. Three more did so in the early 1900s, so that the total included almost every state in the Union. As many states from the 1700s to 1900s also enacted some form of weapons-licensing law.
That’s not all. Over that same period, at least 22 states restricted any gun carrying, including of long guns. Moreover, across the entire period, three-quarters of the states had laws either against “brandishing”—waving a gun around in a menacing or threatening manner—or merely having a weapon on display in public.
For modern Americans, concealed carry is synonymous with toting a handgun. But in the 1700s and 1800s, a time when single-shot pistols were unreliable and inaccurate, fighting knives were a major concern. The most infamous of these was the bowie knife, named after Jim Bowie, who reputedly killed one man and wounded another using a “big knife” given to him by his brother, Rezin Bowie, in a fight in 1827. Bowie-related mythology was magnified by the adventurer’s death at the Alamo, in Texas, in 1836, which fanned demand for the knife —but also spurred the enactment of laws against its carry. In the 1830s, at least six states passed such laws; by the century’s end, every state but one restricted bowie knives.
Another example of a new technology or design that prompted legislation was the trap gun. This was a contraption intended to deter trespassers, poachers, or thieves that was rigged to cause a firearm to go off, usually triggered by a string or wire. A 1771 New Jersey law criminalized the setting of “any loaded Gun in such Manner as that the same shall be intended to go off or discharge itself, or be discharged by any String, Rope, or other Contrivance.” At least 17 other states enacted anti-trap-gun laws from the 1850s to the early 1900s.
As best I can determine, trap guns’ use was relatively rare, but incidents involving them received considerable press attention. A Bangor, Maine, newspaper reported on October 27, 1870 , that a burglar who broke into a New York City shop had “the top of his head blown off” by a trap gun. “A few such ‘accidents’ are needed to teach the thieves who have lately been operating in this city, a lesson,” opined the periodical. But most contemporary commentary supported anti-trap-gun laws because of the risk that innocent people could be injured or killed, and because of a revulsion against such vigilante-style justice.
By the end of the 19th century, America was changing dramatically, becoming a majority-urban nation. That shift to an industrial, metropolitan society coincided with the mass production and increased circulation of ever-cheaper and more reliable handguns, leading to a rise in homicides and other gun crimes. The new century was also marked by the advent of modern policing, with greater capabilities to address these growing problems; this development was reflected in a new generation of gun laws aiming to tackle the challenges of public order and safety in American cities. Thus New York’s Sullivan Act —a major provision of which was struck down in the Bruen ruling—came into force in 1911, the year that gave John Browning’s famous semiautomatic-pistol design its name.
What does this long record amount to? For a start, America’s actual gun-law history collides with its gun mythology: that guns were widely carried and largely unregulated until the rise of the regulatory state in the 20th century. No question, gun ownership is as old as the country—though less widespread and unfettered than our folklore suggests —but so are gun laws.
In addition, even though for much of its history America was an agrarian country, a modern nation-state still in the making, with local governments that possessed few resources and limited power, its lawmakers and enforcers were inventive and determined about ensuring public safety. When they perceived a threat to that order from firearms, they passed laws to restrict or prevent them. And back then, by and large, no court struck those laws down.
That is what is truly consistent with this nation’s historical tradition of firearm regulation. So if we accept the originalist premise of Bruen , the actual result should be to render a broad array of gun regulations constitutional.