Spitzer on Understanding Gun Law History After Bruen: Moving Forward by Looking Back @spitzerb @WMLawSchool

Robert J. Spitzer, SUNY Cortland; College of William & Mary School of Law, is publishing Understanding Gun Law History After Bruen: Moving Forward by Looking Back in volume 51 of the Fordham Urban Law Journal. Here is the abstract.

The Supreme Court’s 2022 Bruen Second Amendment decision has remade the criteria for judging the constitutionality of contemporary gun laws. As a consequence, every manner of modern gun law has been subject to new court challenges. Courts and lawyers are now struggling to determine whether modern challenged gun laws are “consistent with this Nation's historical tradition of firearm regulation.” My article takes Bruen at its word that American weapons law history matters as the primary basis for determining the constitutionality of modern gun laws. Therefore, this article does two things. First, I argue that a specific and sequential set of steps explains the relationship between the invention and development of various weapons and weapons technologies, their circulation in society, and subsequent governmental efforts to regulate, restrict, or prohibit those weapons in order to protect public safety and thwart crime. This relationship exists consistently throughout American history and is found to apply to three types of dangerous weapons—guns, fighting knives, and certain types of clubs and other blunt objects—that were subject to widespread, extensive, and varied regulation in the colonies, states, and localities across 300 years of American history. Second, this framework is applied through a detailed examination of weapons and weapons laws, including state restrictions on fully automatic and semiautomatic firearms in the early twentieth century; surprisingly extensive regulation of ammunition feeding devices during the same period; pre-20th century firearms technologies, incorporating an array of experimental multi-shot weapons dating back several hundred years; and historical restrictions on fighting knives (most notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns. This article demonstrates that firearms and other dangerous weapons were subject to remarkably strict, consistent, and wide-ranging regulation throughout our history when they entered society, proliferated, and resulted in violence, harm, criminality, or threats to public safety and good order. This is even more remarkable given that the United States was an evolving and developing nation-state that could not claim to have reached maturity until the twentieth century. Gun ownership is as old as the country. But so are laws restricting guns and other dangerous weapons. If this history teaches anything, it is that the state has no less an abiding interest in preserving public safety today by restricting the tools that magnify violence than it did in prior centuries. Contemporary firearms restrictions are merely the latest iteration of a centuries-long tradition of weapons regulation and restriction.

Download the article from SSRN at the link.