DeLay on The Myth of Continuity in American Gun Culture @BrianDeLay @UCBerkeley

Brian DeLay, University of California, Berkeley, has published The Myth of Continuity in American Gun Culture. Here is the abstract.

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen elevated history, text, and tradition as the sole criteria for assessing the constitutionality of firearms restrictions. Gun-rights advocates have responded with a wave of Second Amendment challenges, most employing a three-part argument: 1) X firearms-related issue has been around since the founding; 2) the Founders did little or nothing about it; 3) therefore we cannot do anything about it, either. Legal scholars are engaged in critical work on parts 2 and 3 of that argument. As a professional historian involved in several Second Amendment cases over the past year, I have the disciplinary expertise to offer a critique of part 1. This Article explains why the argument for continuity in American gun culture is largely a myth, and offers a case study in the role that historical research can play in Second Amendment cases in the Bruen era. It begins by arguing that whereas today’s gun culture is consumerist, state-phobic, and individualist, early America’s gun culture was utilitarian, state-led, and collective. The Article then presents detailed critiques of the iterations of the myth of continuity being deployed to overturn laws regulating assault weapons, large-capacity magazines, and ghost guns. It demonstrates that these were nonexistent or impractical technologies in the Founding era, no more likely to attract regulatory attention than jetpacks do in our own times. Once these products finally became reliable enough consumer items to cause societal problems in the twentieth and twenty-first centuries, regulation quickly followed. Put into proper historical context, then, assault weapons, large-capacity magazines, and ghost guns represented “dramatic technological changes” that provoked “unprecedented societal concerns.” Regulations addressing those concerns should be found constitutional under Bruen’s history-centric framework. Good history should help preserve some firearms laws in the Bruen era. More importantly, by forcing states to research Founding-era history in order to defend firearms regulation, the decision will inevitably bring renewed scrutiny to Heller’s ahistorical claim that the Second Amendment was crafted to protect an individual right to armed self-defense. The Article therefore concludes by predicting that Bruen will ultimately destabilize the very foundation of modern Second Amendment jurisprudence.

Download the article from SSRN at the link.