MASS VIOLENCE AND THE SECOND AMENDMENT: ANALOGIZING HISTORICAL PROHIBITIONS ON ARMED GROUPS TO MODERN PROHIBITIONS ON ASSAULT WEAPONS
AND LARGE-CAPACITY MAGAZINES
Mark Anthony Frassetto
INTRODUCTION .......................................................................................................... 44 I. THE BRUEN AND RAHIMI FRAMEWORK ...................................................... 46 II. RESTRICTIONS ON ARMED GROUPS AND THE HISTORY OF MASS
VIOLENCE.......................................................................................................... 49 A. Prohibitions on Armed Groups in England ................................................. 49 B. Prohibitions on Armed Groups in the American Colonies and
United States ............................................................................................... 54 C. Prohibitions on Private Militias in the United States ................................... 59 D. A History of Group Mass Violence ............................................................ 68 III. LARGE-CAPACITY MAGAZINES, ASSAULT WEAPONS, AND HISTORICAL ANALOGY ................................................................................... 75
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MASS VIOLENCE AND THE SECOND AMENDMENT: ANALOGIZING HISTORICAL PROHIBITIONS ON ARMED GROUPS TO MODERN PROHIBITIONS ON ASSAULT WEAPONS
AND LARGE-CAPACITY MAGAZINES
Mark Anthony Frassetto*
In the two years since the Supreme Court decided New York State Rifle & Pistol Ass'n v. Bruen, one of the most high-profile ongoing areas of Second Amendment litigation has been cases challenging the constitutionality of prohibitions on assault weapons and large-capacity magazines. Challenges to these laws are especially significant because assault weapons and large-capacity magazines are almost always used in the highest fatality mass shootings. Because Bruen mandated a history-focused analysis in Second Amendment cases, much of this litigation has focused on whether historical prohibitions on weapons like bowie knives or billy clubs and regulations on practices such as gunpowder storage and the concealed carry of firearms provide sufficient historical analogues to justify the modern prohibitions. This Article offers a new historical analogue for modern prohibitions on assault weapons and large-capacity magazines-- prohibitions on armed groups.
How mass killings have historically occurred differs from the present day. While today most killings of four or more people are committed by a single person with a firearm, before the twentieth century, that was often not the case. Instead, mass killings tended to be the result of violence perpetrated by armed groups. In response to group mass violence, both the common law and many state statutes prohibited armed groups, sometimes directly declaring them illegal and other times declaring armed groups unlawful assemblies or riots. Later, states would also prohibit private militia organizations, armed assemblies, and armed marches to limit the ability to assemble a force capable of causing mass violence. Today's prohibitions on large-capacity magazines and assault weapons are aimed at the same principle: prohibiting the means of committing mass violence.
In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court commanded the lower courts to look at whether historical regulations "impose[d] a comparable burden on the right of armed self-defense and whether that burden is comparably justified," and in United States v. Rahimi, the Supreme Court said that courts should look to whether a "challenged regulation is consistent with the principles that underpin our regulatory tradition." Historical restrictions on armed groups imposed a similar burden on armed self-defense as modern prohibitions on large-capacity magazines and assault weapons in that they regulated the amount of force a person (or group of people) could assemble. Similarly, like modern regulations on large-capacity magazines, prohibitions on armed groups were intended to prevent the same kinds of mass casualty events. While prohibitions on semi-automatic firearms and magazine capacity, unsurprisingly, did not exist during the Founding Era or the Early Republic, given the gun technology at the time, similar concerns about mass violence did lead to regulations that imposed similar burdens on armed self-defense. These regulations provide important historical analogues justifying modern restrictions on weapon lethality.
INTRODUCTION
Mass killings have always been viewed as uniquely horrific. Mass shootings grab headlines and national attention far more than the much larger number of
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Americans killed as part of the daily toll of gun violence.1 While most interpersonal homicides are, and have historically been, a single person killing a single other person, fears about large numbers of people being killed or injured or large amounts of property being damaged have animated more aggressive legal responses than ordinary homicides.2
How mass killings have historically occurred differs from the present day. While today most killings of four or more people are committed by a single person with a firearm, before the twentieth century, an individual person killing a large number of people was quite rare.3 Instead, mass killings tended to be the result of violence perpetrated by armed groups.4 Violence perpetrated by armed rioters, lynch mobs, private and quasi-private militias, and private police forces, as well as the reciprocal violence from police, the militia, and soldiers, was the primary cause of mass killings during the eighteenth and nineteenth centuries.5 In response to group mass violence, both the common law and many state statutes prohibited armed groups--sometimes directly declaring them illegal and other times declaring armed groups to be unlawful assemblies or riots subject to punishment or potentially lethal suppression by government forces.6 Later, states--in an effort to limit the ability to assemble a force capable of causing mass violence--also prohibited private militia organizations, armed assemblies, and armed marches.7
These laws were intended to preempt mass violence by making the means--armed groups--illegal even absent any turn to violence.8 Today's prohibitions on large-capacity magazines and assault weapons are aimed at the same principle: prohibiting the means of committing mass violence.9
In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court commanded the lower courts to look at whether historical regulations "impose[d] a comparable burden on the right of armed self-defense and whether that burden is comparably justified."10 Historical restrictions on armed groups imposed a burden on armed self-defense similar to the burden imposed
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by modern prohibitions on large-capacity magazines and assault weapons in that they regulated the amount of force a person (or group of people) could assemble.11 Like modern regulations on large-capacity magazines and assault weapons, prohibitions on armed groups were intended to prevent the same kinds of mass-casualty events.12 While prohibitions on semi-automatic firearms and magazine capacity, unsurprisingly, did not exist during the Founding Era or the Early Republic, given the gun technology at the time, similar concerns about mass violence led to regulations that imposed similar burdens on armed self-defense.13 These regulations provide important historical analogues justifying modern restrictions on weapon lethality.14
Part I of this Article will discuss the text-and-history test established in Bruen and its subsequent clarification in United States v. Rahimi. Part II will discuss laws regulating armed groups and the history of mass violence committed by them. Part III will conclude with a discussion of the analogy between restrictions on armed groups and modern regulations on large-capacity magazines.
I. THE BRUEN AND RAHIMI FRAMEWORK
In Bruen, the Supreme Court upended the Second Amendment framework that had uniformly been adopted by the lower federal courts over the fourteen years since District of Columbia v. Heller.15 Under the pre-Bruen two-part framework, courts first looked to whether a challenged regulation fell within the scope of the Second Amendment as defined by an analysis of the right's text, history, and tradition.16 If a regulation fell within the historical scope of the Second Amendment, a court would then apply one of the tiers of constitutional scrutiny--either intermediate or strict--depending on how significantly the regulation burdened the right.17 Under this framework, the lower courts upheld a wide variety of gun regulations while striking down a few outlier laws.18
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The Supreme Court adopted a new framework in Bruen focused on the Second Amendment's text and history. Under this framework, courts first look at whether "the Second Amendment's plain text covers an individual's conduct."19 This step generally tracks with Justice Scalia's textual analysis of the Second Amendment in Heller, but courts can consider other materials as well.20 In Heller, the Court summarized the Second Amendment's text as protecting "the individual right to possess and carry weapons in case of confrontation."21
If a challenged regulation falls within the plain text of the Second Amendment, courts then consider whether the challenged regulation is "consistent with the Nation's historical tradition of firearm regulation."22 At this step, a court analyzes whether a historical regulation is "relevantly similar" to the challenged modern gun regulation.23 This analysis includes "how and why the regulations burden a law-abiding citizen's right to armed self-defense."24 In other words, the court considers "whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified."25 The modern regulation need not be "a dead ringer for historical precursors" but must be similar enough that courts do not "uphold every modern law that remotely resembles a historical analogue."26 Courts may also use the provisions identified as presumptively lawful in Heller as analogues for modern regulations without independently showing a historical tradition of similar regulations during the relevant historical period.27
Two years after Bruen, the Court revisited its framework in United States v. Rahimi,28 a case challenging the federal law that bars firearm possession by persons subject to certain domestic-violence restraining orders.29 In an 8-1 decision, authored by Chief Justice John Roberts, the Court reversed a Fifth Circuit panel decision that struck down the law on the basis that similar restrictions did not exist during the eighteenth or nineteenth centuries.30
The Supreme Court rejected this approach, chiding the Fifth Circuit and other courts for having "misunderstood the methodology of our recent Second Amendment cases."31 The Court clarified that "the Second Amendment permits more than just those regulations identical to ones that could be found
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in 1791"32 and declared that history should be analyzed at a higher level of generality, looking to "whether the challenged regulation is consistent with the principles that underpin our regulatory tradition."33 This approach asks whether the law applies "the balance struck by the founding generation" between gun rights and public safety "to modern circumstances."34 The Court reaffirmed that "[w]hy and how the regulation burdens the right are central to this inquiry," stating that "if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations."35 The Court then explained that even "when a challenged regulation does not precisely match its historical precursors," it can still be constitutional as long as it "comport[s] with the principles underlying the Second Amendment."36
Applying this approach, the Court looked to historical laws requiring those who posed a threat to others to post bonds and looked to laws prohibiting carrying arms in a terrifying manner as analogous to the modern prohibition.37 After conducting the clarified Bruen historical analysis, the Court said, "Since the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms."38 Under this tradition, the Court had little difficulty upholding the prohibition on firearms possession by those subject to domestic-violence restraining orders.39 The Court also clarified that in facial Second Amendment challenges, a law should be found unconstitutional only when a challenger "establish[es] that no set of circumstances exists under which the Act would be valid."40
The historical regulations discussed in this Article "impose[d] a comparable burden on the right of armed self-defense" and are "comparably justified" to modern prohibitions on assault weapons and large-capacity magazines.41 Laws prohibiting armed groups--in an effort to reduce or eliminate mass violence-- effectively kept individuals from assembling the means to commit such violence.42 Modern gun laws impose similar burdens on Second Amendment rights (prohibiting individuals from using large-capacity magazines and assault
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weapons capable of causing mass violence) and are aimed at addressing the same concerns about reducing or eliminating mass violence.43 Under the Bruen framework, especially as clarified in Rahimi, these historical laws provide historical analogues that are relevant and in many cases will be decisive in deciding Second Amendment cases.44
II. RESTRICTIONS ON ARMED GROUPS AND THE HISTORY OF MASS VIOLENCE
Mass violence is not a new phenomenon in English or American history. What has changed is how that violence occurs. While mass killings in the United States today are primarily the result of individuals with firearms killing multiple people, this was not the case historically.45 Rather, large-scale violence was almost exclusively a group activity, and mass killings were almost always the result of armed groups.46 In both England and the United States, these threats of mass violence were addressed by prohibitions on armed groups, which allowed for participants to be prosecuted for unlawful assembly, riot, or being part of an unauthorized militia.47 Restrictions on armed groups date back to the early days of English common law, continued through the Founding Era, were endorsed by the Supreme Court in the late nineteenth century, and exist in some form in most states to the present day.48 These laws, like modern prohibitions on assault weapons and large-capacity magazines, sought to prohibit the means of committing mass violence, and they provide a useful analogue when considering the constitutionality of modern assault-weapon and large-capacitymagazine laws.
A. Prohibitions on Armed Groups in England
Under English common law, public gatherings were generally lawful, but several classes of conduct could convert a lawful assembly into an unlawful assembly or riot.49 Late sixteenth-century English treatise writer William Lambarde explained that, in order for a gathering to be unlawful, it must be shown "that their being together do[es] breed[] some apparent disturbance of
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the Peace."50 This conduct included not only overt acts such as "significance of speech, . . . turbulent gesture, or actual and express violence" but also the passive "shewe of Armor."51 Even before the conduct led to actual violence, it was regulated because it caused "the peaceable sort of men be unquieted and feared by the fact" and could cause the less peaceable to be "emboldened by the example."52 Lambarde's definition of riot was apparently uncontroversial enough that it was adopted by seventeenth-century dictionary writers.53 Similarly, early seventeenth-century treatise writer Fernando Pulton described a "rout" under the common law as "where three persons or above do[] assemble themselves, . . . and do[] shew [sic] by Armour, Gesture, or Speech, that they mean[] to do[] any violence, or to terrif[y] or fear[] any of the Kings people."54
These treatise writers' views were backed by the English courts. In the 1616 case of Howard v. Bell, the Court of King's Bench upheld substantial fines for a group of protesters for "assembling the tenants to the number of 200 in an open field, . . . weaponed with swords and daggers, abiding three hours together, and yet nothing was proved done there by any of the defendants, but conference concerning the defence of their title."55 In Semayne's Case, which is most famous for the idea that "a man's house is his castle," Lord Chief Justice Edward Coke said that while it was perfectly legal for a man to "assemble his friends and neighbours to defend his house against violence," it was a crime to "assemble them to go with him to the market, or elsewhere for his safeguard against violence."56
William Shepard's 1652 treatise, following roughly the same line as Lord Chief Justice Coke's opinion in Semayne's Case, said: "And albeit one be threatened, and in danger of his life, and to defend himself[] he gathers a force, and they ride about armed; this is a Riot . . . ."57 Similarly, early eighteenth-
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century treatise writer John Bond stated: "No person may go in Company to the Church, Fair or Market, [etc.] with any unusual Weapon to the Terror of the People, though he hath no intent to fight, . . . for this will be a Riot by the manner of going so."58 Joseph Keble's 1683 treatise agreed with earlier treatise writers that "Shew [sic] of Armor" was sufficient to convert a lawful gathering to a riot and established that:
[T]he manner of the doing of a lawful thing may make it unlawful, as if many in one Company Riding or going to the Sessions, Fair, Market, or Church itself, will ride or go Armed to the terror of the People; for although it be not only lawful, but meet and necessary also to go to the Church and Sessions, yet to go in such shew [sic], it is altogether needless, disordered, and against the Law.59
This same understanding remained in effect through the Glorious Revolution and the early eighteenth century. An example from Ireland illustrates the ongoing vitality of the standard. In the years preceding the Glorious Revolution, Irish Protestants in Borrisokane became concerned about attacks by the area's Catholic majority.60 Area Protestants armed themselves and gathered in the town square to defend themselves against an attack.61 No attack came.62 The Protestants were then prosecuted for unlawful assembly for gathering armed in the town center.63 Sixty of the Irish Protestants were indicted for the unlawful assembly, and ten were convicted.64 Afterward, the government in London wrote a letter to the presiding judges concerned about reports that the judges had instructed the jury that "any number of people armed as they pleased might meet . . . provided they did no unlawful act."65 One of the judges responded that both riot and unlawful assembly required an intent to do an unlawful act, but the other judge made clear that the judges had not extended this concept to armed groups, saying, "The very appearing with arms is an offense."66
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After the Glorious Revolution, English courts continued to find armed groups presumptively illegal even absent actual bad conduct. For example, in Queen v. Solely, an indictment was brought against a mob that attacked a guildhall to disrupt an election.67 In that case, Lord Chief Justice John Holt discussed the prohibition on armed groups, finding that "a number of men assemble[d] with arms" was "in terrorem populi, though no act is done."68 Lord Chief Justice Holt made clear that any armed group was illegal, saying "[i]f three come out of an ale-house and go armed, it is a riot."69 The Lord Chief Justice further distinguished between going armed singly, which was sometimes legal, and armed groups, which were always prohibited: "Though a man may ride with arms, yet he cannot take two with him to defend himself, even though his life is threatened; for he is in the protection of the law, which is sufficient for his defence."70
Influential treatise writer William Hawkins took a somewhat less punitive view in his Pleas of the Crown, stating that "riding together on the road with unusual weapons, . . . without any offer of violence to any one in respect either of his person or possessions, are not properly guilty of a riot, but only of an unlawful assembly."71 Hawkins also said:
[I]n every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people; as the shew [sic] of armour, threatening speeches, or turbulent gestures; for every such offence must be laid to be done in terrorem populi.72
In 1714, the common law offense of riot was partially codified in the famous Riot Act.73 Under the Riot Act, if a group of twelve or more people were "unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public[] peace," a public official could proclaim the gathering a riot and command the rioters to return to their homes within the hour.74 Failure to comply with the Act was a felony punishable by death without the benefit of clergy.75 A death sentence was not an idle threat. The Old Bailey Sessions Papers, a compendium of case reports from the London criminal
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courts, list forty-four riot cases between 1715 and 1800 where a death sentence was given, including several examples where multiple rioters were executed.76
After 1723, some prosecutions of armed groups began to shift from the common law and statutory crimes of riot and unlawful assembly to the more punitive Black Acts, which prohibited armed and disguised groups.77 Passage of the Black Acts initiated an extraordinarily punitive era of English law during which many very minor crimes carried the death penalty.78 Under the Black Acts, participants in armed groups--especially if disguised or engaged in hunting--were subject to death sentences after cursory trials, even when not engaged in especially serious conduct.79
Armed groups remained unlawful assemblies or riots under British law into the nineteenth century.80 This is exemplified by the disputes over prices at the Covent Garden Theater that broke out in 1809.81 When the theater increased prices, patrons of the theater--known as the OPs for "old price"--rebelled, engaging in a months-long campaign of disrupting performances in an effort to force a return to the previous prices.82 The legality of the OPs' conduct was
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debated in the local press.83 An anonymous lawyer, writing to the Morning Chronicle, stated, "[S]o long as the audience refrain from all acts of violence and threats, and confine themselves to hissing, and other peaceable demonstrations of disapprobation, . . . the magistrates and constables cannot interfere."84 However, even advocates for a narrower reading of prohibitions on riots and unlawful assemblies understood that a "shew [sic] of armour" was sufficient to convert the otherwise lawful conduct into an unlawful assembly.85 The anonymous lawyer advised protestors who were arrested to "bring an action for false imprisonment,"86 and one protestor did, resulting in the case of Clifford v. Brandon.87 The Clifford court noted that the protestors' conduct-- "com[ing] to the theatre with a predetermined purpose of interrupting the performance [and] for this purpose mak[ing] a great noise and disturbance"-- constituted a riot,88 and the court made clear that such conduct constituted a riot even without the crowd "offering personal violence to any individual, or doing any injury to the house."89 The jury ultimately found in favor of the plaintiff, Clifford, with some jurors reasoning that the riot was over by the time the defendant arrested him, and others saying that his wearing OP letters into the theatre did not equate to the instigation of a riot.90
B. Prohibitions on Armed Groups in the American Colonies and United States
The American Colonies and United States followed English common law by treating armed groups as riots or unlawful assemblies. One early American treatise, the first American edition of William Russell's Treatise on Crimes and Misdemeanors, stated: "If a number of men assemble with arms, in terrorem populi, though no act is done, it is a riot."91 This was because armed groups had "an apparent tendency [to force and violence]" and were "naturally apt to strike a terror into the people."92 The first American edition of John Frederick Archbold's Summary of the Law Relative to Pleading and Evidence in Criminal Cases
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stated that a riot required "circumstances, either of actual force or violence, or at least of an apparent tendency thereto, as were calculated to inspire people with terror; such as being armed, using threatening speeches, turbulent gestures, or the like."93 Similarly, in 1836, in the first American edition of The LawDictionary Explaining the Rise, Progress, and Present State of the British Law, Thomas Tomlins and Thomas Granger explained that a riot occurred "if a number of men assemble with arms, in terrorem populi, though no act is done," and provided an example: "three come out of an alehouse and go armed."94 Tomlins and Granger further clarified that only conduct with an "apparent tendency" towards violence was required, and it was "not necessary . . . that personal violence . . . be[] committed."95
J.A.G. Davis's Treatise on Criminal Law said that "in every riot there must be some such circumstances . . . as are naturally apt to strike a terror into the people," which was satisfied by a "show of arms."96 Davis identified only fairly narrow exceptions where an armed group would not constitute a terror, such as "assemblies of the people for the exercise of common sports or diversions."97 Such exceptions affirmed that the general rule was that armed groups were riots because they naturally created a threat of violence.98
Like in England, there was some dispute among American treatise writers about whether an armed group was necessarily a riot or only an unlawful assembly. In Francis Wharton's Precedents of Indictments and Pleas, he stated:
[P]ersons riding together on the road with unusual weapons, . . . in such a manner as is apt to raise a terror in the people, without any offer of violence to any one in respect either of his person or possessions, are not properly guilty of a riot, but only of an unlawful assembly.99
Similarly, in his Treatise on the Criminal Law of the United States, Wharton described unlawful assemblies as requiring "actual force or violence, or at least
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an apparent tendency thereto, as were calculated to inspire people with terror, such as being armed, using threatening speeches, turbulent gestures, or the like."100 Oliver Barber's Treatise on the Criminal Law of the State of New York also acknowledged the dispute about whether an armed group was a riot or unlawful assembly but clarified that, in either case, the "show of arms" was "naturally apt to strike a terror into the people."101
Similarly, in John Bouvier's 1843 American legal dictionary, he defined the terror requirement of a riot as satisfied when the rioters' conduct was "to the terror of the people," which included "a show of arms, threatening speeches, or turbulent gestures" but did not require that "personal violence should be committed."102 American treatise writers continued to consider armed groups riots after the ratification of the Fourteenth Amendment in 1868.103
Regulations on armed groups were not solely the province of common law; colonial legislatures and states also adopted statutory standards for riots, which took into account whether a group was armed with any weapon, specifically including improvised weapons. In 1750, faced with continuing outbreaks of violence, the Massachusetts state legislature adopted a new riot law, which prohibited assemblies of "Twelve or more, being Arm'd [sic] with Clubs or other Weapons," or fifty unarmed people when "unlawfully riotously or tumultuously assembled."104
In 1756, the Massachusetts colonial legislature, horrified by the violence of the November Pope Day Riot of 1755, passed a new law to prevent "Riotous, Tumultuous and Disorderly Assemblies."105 The law prohibited the assembling of groups of "Persons being more than three in Number" who were "armed, . . . with Sticks, Clubs, or any Kind of Weapons, or disguised with Vizards [sic] . . . or painted or discolored Faces, or being in any other Manner disguised" and "having any Kind of Imagery or Pageantry with them as a
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public[] Shew [sic] in any of the Streets or Lanes in . . . Boston."106 These laws were not simply remnants of British tyranny, as they were readopted in Massachusetts in the years following the American Revolution.107
In 1791, New Hampshire adopted a law with language similar to Massachusetts's law;108 New Jersey followed suit in 1797;109 and Maine, Rhode Island, Michigan, and Wisconsin adopted laws reflecting similar standards during the earlier part of the nineteenth century.110
American courts also broadly adopted the view that armed groups were riots or unlawful assemblies, and the courts sometimes found that armed groups' conduct rose to the level of treason. One of these important early cases, United States v. Mitchell, arose out of the Whiskey Rebellion, a revolt by settlers in western Pennsylvania angered by the Washington Administration's imposition of an excise tax on whiskey.111 In Mitchell, United States District Attorney William Rawle instructed the jury that "an assembly armed and arrayed in a warlike manner for a treasonable purpose is Bellum levatum [raised for war], though not Bellum percussum [engaged in war]."112 Rawle said an armed group could "be treated as riot, or treason," depending on whether the conduct had a treasonable purpose.113 The defense attorneys did not contest that a crime had been committed, saying that they "did not conceive it to be their duty to shew [sic], that the prisoner was guiltless of any description of crime against the United States, or the State of Pennsylvania."114 They did, however, contest the treason charge, warning that the prosecution's view of treason was "calculated to annul all distinctions heretofore wisely established in the grades and punishments of crimes; and by whose magic power a mob may easily be converted into a conspiracy; and a riot aggravated into High Treason."115 Justice William Patterson, riding circuit in Pennsylvania, sided with District Attorney Rawle and advised the jury that "[the prisoner's] attendance, armed, at
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Bradock's field, would of itself amount to Treason, if his design was treasonable."116
The expanded view of treason as articulated in Mitchell was not unanimously accepted. In an essay included in his edition of Blackstone's Commentaries, AntiFederalist judge and treatise author St. George Tucker criticized similar prosecutions for treason arising out of tax revolts.117 Tucker acknowledged that in England "[t]he bare circumstances of having arms, . . . of itself, creates a presumption of warlike force . . . and may be given in evidence . . . to prove quo animo [with evil intent] the people are assembled."118 But Tucker disagreed with this view in the frontier context, arguing that "[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side."119
Tucker's view, however, was inconsistent with the federal judiciary's approach, and other influential jurists disagreed with him. Justice Joseph Story, for example, believed that carrying arms in public "`in a military form, for the express purpose of overawing or intimidating the public' was a form of treason" even when "no actual blow has been struck, or engagement has taken place."120
In the decades that followed, several American state courts found that armed groups constituted riots regardless of whether actual violence occurred. For example, in Commonwealth v. Dupuy, the Pennsylvania Court of Nisi Prius said that "a man may call in his friends completely armed to . . . protect himself against a threatened assault in his own house, but if he go abroad thus attended by two or more, . . . it would be considered a riot."121 However, the court excepted an armed group protecting a man while traveling "to the magistrate to make his complaint."122
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C. Prohibitions on Private Militias in the United States
In the mid-nineteenth century, states began to adopt laws specifically prohibiting armed groups acting as private militias.123 In 1865, Maine became the first state to enact such a law, which prohibited:
[A]ny body of men whatsoever, other than the regularly organized corps of the militia, the troops of the United States, to associate themselves together as a military company or organization, or to parade in public with arms, in any city or town of this state, without the license of the governor . . . .124
Massachusetts enacted a law similar to Maine's in 1866.125 In 1865, Florida enacted a law which provided:
[I]f any person shall form any military organization in this State, not authorized by law, or shall participate or aid or abet in the formation of such organization, he shall be deemed to be guilty of a misdemeanor . . . .126
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Florida's law raises the question of what motivated these kinds of laws. The Florida state legislature enacted its law shortly after the conclusion of the Civil War alongside plainly racist provisions that made up the state's "Black Code."127 As such, the legislature may very well have passed the law in an effort to prohibit Black militias from forming. However, because other sections of Florida's laws were explicit in their racist purposes,128 the lack of express racism in the section prohibiting private militia activity may suggest broader motives on the legislature's part. In any event, many other states, including many northern states, passed similar laws with no clear racial motivation.129
In 1871, North Carolina passed a law prohibiting "secret political organizations," seemingly aimed at groups like the Ku Klux Klan.130 The law prohibited joining "any oath-bound secret political or military organization, society or association" for the purpose of "furthering any political object, or aiding the success of any political party or organization, or for resisting the laws."131 The law also prohibited using any "signs or grips or passwords, or any disguise of the person or voice, or any disguise whatsoever" to advance the group's objectives.132 Finally, like other prohibitions on private militias, the law forbade "persons [from] . . . band[ing] together and assembl[ing] to muster, drill or practice any military evolutions except by virtue of the authority of an officer recognized by law."133 Kentucky adopted a similar law in 1873.134
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Another two states, Illinois and Colorado, enacted laws prohibiting private militia activity in 1879.135 Iowa adopted a similar law the next year, and New York and Georgia followed suit in 1883 and 1885 respectively.136
In Dunne v. People of Illinois, the Illinois Military Code provisions prohibiting private militia organization were challenged in the Illinois Supreme Court for infringing on the federal power of organizing the militia.137 The dispute arose after a member of the Illinois State Guard, created by the Military Code, refused to serve on a jury, claiming an exemption based on militia service.138 The guardsman was fined fifty dollars, and he appealed the decision to the Illinois Supreme Court, arguing that Illinois's law violated the federal power to control state militias and was preempted by federal militia law.139 This challenge primarily focused on whether the creation of a state guard was inconsistent with federal control over the militia.140 The court rejected the guardsman's challenge, finding that militias were "a matter upon which there may be concurrent legislation by the States and Congress."141 After dealing with the actual scope of the appeal, the court also opined on other sections of the law. When addressing the prohibition on private militias, the court stated:
We have been referred to no source whence comes the right contended for, to bodies of men organized into military companies, under no discipline by the United States or State authorities, "to parade with arms" in any city or public place as their inclination or caprice may prompt them. No such right is conferred by any act of Congress, nor is it insisted this provision of our statute is in conflict with any paramount law of the United States. It is a matter that
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pertains alone to our domestic polity. The right of the citizen to "bear arms" for the defence of his person and property is not involved, even remotely, in this discussion. This section has no bearing whatever on that right, whatever it may be, and we will enter upon no discussion of that question. Whether bodies of men, with military organizations or otherwise, under no discipline or command by the United States or the State, shall be permitted to "parade with arms" in populous communities, is a matter within the regulation and subject to the police power of the State.142
After the Illinois Supreme Court's rejection of the Dunne challenge, a new case was brought directly addressing the prohibition on private militias in Illinois law. The case, Presser v. Illinois, ultimately made its way to the Supreme Court of the United States, where Illinois's law was upheld in one of the Court's few nineteenth-century Second Amendment cases.143
The case began when Herman Presser led an armed group of four hundred men, who were part of the Lehr und Wehr Verein, a primarily German civic association, on a parade through the streets of Chicago.144 The group was not licensed by the governor to parade and practice as a military company, so Presser was arrested and fined for the display.145
Presser argued, among other things, that Illinois's law prohibiting private militias was preempted by federal law and that the law violated the Second Amendment's protection of the right to keep and bear arms.146 The Court explained at length that federal law did not preempt Illinois's law before the Court disposed of Presser's other arguments.147 While Presser's Second Amendment claim could not prevail because the Bill of Rights did not extend to state governments at that time, the Court noted:
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.148
The Court also rejected a Fourteenth Amendment privileges-andimmunities claim, saying:149
Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are
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subject to the regulation and control of the State and Federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.150
Federal preemption was also the focus of briefing by Presser's attorneys, including Lyman Trumbull, who had co-authored the Thirteenth Amendment while serving as a United States Senator.151 Trumbull did not address the Second Amendment until the third section of his brief and described its protections in a way that maximally supported his preemption case, arguing that states were only limited by the Second and Fourteenth Amendments when "the keeping and bearing of arms is connected with some national purpose."152 This was intended to stop states from preventing federal organization of the militia by prohibiting any person from keeping and bearing arms.153 Trumbull took a strictly militia-focused view of the Second Amendment, stating that "[t]he citizen of the United States has secured to him the right to keep and bear arms as part of the militia."154 Because he understood the core of the right to be facilitating participation in the militia, Trumbull put aside the question of whether other regulations might violate the Second Amendment.155
After the Presser decision, there was a burst of new prohibitions on private militia activity, although it is unclear whether these events were connected. Nebraska, Alabama, Kentucky, California, West Virginia, North Carolina, Texas, Utah, and Minnesota all prohibited private militia activity in the years after Presser.156 Several of these states had exceptions for military schools or
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allowed members of benevolent associations to carry ceremonial swords, but they still generally prohibited organized armed groups.157 In 1889, Washington enshrined in its state constitution authority for the state to prohibit armed groups.158 Arizona adopted an identical constitutional provision upon achieving statehood.159 During the same period, Massachusetts, Georgia, and New York adopted updated versions of their prohibitions.160
Several states adopted related provisions aimed at prohibiting the use of private police forces like the Pinkerton Detective Agency, which were often used to break strikes.161 At least seven states adopted constitutional provisions targeted at strikebreakers, which prohibited bringing armed groups into the
Guard or militia or the troops of the United States, to associate themselves together as a military company or organization, or to parade in public with arms, in any city or town in the state, without the license of the governor therefor, which may at any time be revoked, nor shall it be lawful for any city or town to raise or appropriate any money towards arming, equipping, uniforming, or in any way supporting or sustaining or providing drill rooms or armories, for any such bodies of men."); Act of 1893, ch. 374, � 38, N.C. Sess. Laws 350, 356�57 ("It shall be unlawful for any persons to organize a military company, or drill or parade under arms as a military body, except under the militia laws and regulations of this state; and no person shall exercise or attempt to exercise the power or authority of a military officer in this state unless he holds a commission from the governor, and any person offending against this act shall be guilty of a misdemeanor."); Act of Jan. 8, 1889, ch. 16, sec. 7, � 3294, 1889 Tex. Gen. Laws 12, 12�13 ("Any number of persons not less than forty nor more than one hundred, of good moral character, desiring to form a company of volunteer guards, may meet and declare such purpose, and after obtaining consent from the governor may perfect their organization by electing their company officers in accordance with the provisions of this chapter. And it shall not be lawful for any body of men whatsoever, other than the regularly organized volunteer guard, to associate themselves together as a military company or organization, or to parade in public with arms in any part of the state, without the license of the governor therefor."); Act of 1894, ch. 53, � 53, 1894 Utah Laws 64, 76 ("It shall not be lawful for any body of men whatever, other than the regular organized volunteer militia of this Territory, and the troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this Territory."); Act of Jan. 5, 1897, ch. 118, � 107, 1987 Minn. Laws 204, 229 ("It shall not be lawful for any body of men whatever, other than the regularly organized national guard of this state, and the troops of the United States, to associate themselves together as a military company or organization, to drill or parade with arms in any city or town of this state, except the regular organization known as the Sons of Veterans.").
157. See, e.g., Act of 1888, ch. 1525, � 1, 1888 Ky. Acts 139, 139 ("[N]othing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords, or students in educational institutions chartered by the Legislature, wherein military science is part of the course of instruction, from drilling and parading with arms in public, under the superintendence of their instructors, or honorably discharged soldiers of the United States Army from parading or doing escort duty with arms. This section shall not apply to the Louisville Light Infantry."); Act of 1888�89, no. 94, � 1, 1888�89 Ala. Laws 82, 82 ("[T]he provisions of this act shall not apply to any school or college where military tactics are taught, to the Order of Knights Templar, Order of Knights of Pythias, or Patriarchs Militant.").
158. WASH. CONST. of 1889, art. 1, � 24 ("The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.").
159. ARIZ. CONST. of 1910, art. II, � 26 ("The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.").
160. Act of 1893, ch. 360, � 124, 1893 Mass. Acts 994, 1049; GA. CODE tit. 11, ch. 11, � 1205 (The Foote & Davies Co. 1895); Act of 1808, ch. 212, � 177, 1808 N.Y. Laws 508, 582�83.
161. See Elizabeth Joh, The Forgotten Threat: Private Policing and the State, 13 IND. J. GLO. LEGAL STUD. 357, 364 (2006) ("Of the private police services, the Pinkerton National Detective Agency played a leading role in providing these companies with employees to act as strike guards, `scabs' (substitute workers), undercover agents, and `strike missionaries.'").
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state.162 Many other states adopted similar state laws, prohibiting organizing or importing armed groups in laws aimed at strikebreaking activities.163 While first adopted in the late 1880s, these laws became common after the Homestead Strike of 1892 during which a gun battle between striking steelworkers and
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Pinkerton agents killed ten people.164 Even the federal government adopted a law prohibiting the federal government or D.C. from hiring any "employee of the Pinkerton Detective Agency, or similar agency."165
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In 1896, a defendant prosecuted under Massachusetts's revised prohibition on armed groups appealed his conviction to the Massachusetts Supreme Judicial Court, asserting that the prohibition violated the state's version of the Second Amendment.166 The defendant, James Murphy, had led a group of ten to twelve men in a parade armed with Springfield rifles (although he claimed they had been rendered inert by filing down the firing pin).167 The justices of the Supreme Judicial Court had little trouble upholding the conviction, stating: "The right to keep and bear arms for the common defence does not include the right to associate together as a military organization, or to drill and parade with arms in cities and towns, unless authorized so to do by law."168 The court stated that the prohibition was a "matter affecting the public security, quiet, and good order" and "it is within the police powers of the Legislature to regulate the bearing of arms so as to forbid such unauthorized drills and parades."169 The court cited both Presser and the Illinois Supreme Court decision for this point.170 The court also relied on the fact that it was "almost universally held that the Legislature may regulate and limit the mode of carrying arms," citing a variety of state supreme court decisions upholding public-carry regulations of various kinds.171 The court made clear that the prohibition was not aimed solely at actual mass violence but also the fear created by the potential for mass violence.172 It rejected claims that the carried arms being inoperable put the marchers outside of the statute, stating: "So far as appearance went, it was a parade with firearms which were efficient for use," and thus, "[w]ith the exception of the danger of being actually shot down, all the evils which the statute was intended to remedy still existed in the parade in which the defendant took part."173
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Several additional states prohibited private militia activity in the very early twentieth century, including Kansas, Arizona, Mississippi, Montana, Nevada, North Dakota, Idaho, Oklahoma, Rhode Island, Tennessee, Washington, Wyoming, and a bit later, in 1941, New Hampshire.174 A variety of other militia restrictions exist to the present day.175
D. A History of Group Mass Violence
The laws against armed groups and private militias described above were not enacted in a vacuum. Whether in England, the pre-Revolution American colonies, the Antebellum Period, or Reconstruction America, group mass violence was an unfortunate reality. Before the mid-twentieth century, mass violence generally took the shape of riots, often driven by economic, religious, and racial strife. These riots sometimes resulted in dozens or even hundreds of deaths and massive property destruction. The examples of riots discussed below underscore the government's longstanding concern about mass violence and interest in curbing it with prohibitions on armed groups.
In Founding Era England, working people often rioted against privatization of previously public lands176 and increases in food prices.177 Major religious riots also occurred during the eighteenth century.178 By far the deadliest were the anti-Catholic Gordon Riots in 1780, which were the most destructive in British history and resulted in almost three hundred deaths and substantial destruction in the City of London.179
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Riots were also common in the American colonies.180 In 1682, Virginia planters, upset about a glut in tobacco production resulting in low prices, went on a rampage, destroying tobacco crops on more than two hundred plantations before they could be suppressed by the local militias.181 In 1683, Boston rioters attacked royal officials, assaulting a customs collector, a marshal, and a member of the governor's council, before one rioter barged into the governor's mansion and threw two of the governor's men into a fireplace.182 Opposition to taxation resulted in mobs attacking tax collectors and shutting down courts on multiple occasions in New York and Virginia in the late seventeenth century.183
Rioting was especially prevalent in the leadup to the American Revolution. Between 1765 and 1769, there were at least 150 riots in American cities.184 The largest outbreak came in opposition to the Stamp Act of 1765; mobs made several cities nearly ungovernable for weeks at a time before the riots were successful and the Act was repealed.185 Colonial leaders were generally able to prevent the disorder from spiraling into deadly interpersonal violence, but the attacks did often result in property damage against imperial officials.186 In the 1770s, rioting began to focus more on conflicts between garrisoned British soldiers and the local populace.187 These conflicts culminated in the Boston Massacre when a crowd attacked British soldiers with snowballs and rocks and the soldiers fired their weapons, killing five and injuring seven.188 Other less violent riots involved the destruction of property, like British tea and the harassment of imperial customs agents.189
While this disorder was generally accepted by American revolutionary leaders as integral to the revolutionary process,190 after the Revolution, American officials sought to end riots as a valid form of political participation. Officials suppressed several uprisings, sometimes by opening fire on the riotous crowds.191 One prominent example came in the Fort Wilson Riot when armed Philadelphians protesting high prices and war profiteering besieged a group of thirty conservatives, including Robert Morris and James Wilson, inside Wilson's
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home.192 The riot resulted in one death in Wilson's home and several among the crowd before it was broken up by a conservative militia unit.193
After the American Revolution, a depressed economy and high taxes to pay war debts--which were mostly owned by wealthy merchants in port towns-- led to an explosion in defaults on personal debts by farmers in rural areas.194 To combat skyrocketing foreclosures, armed groups in rural areas blocked court sessions and foreclosure sales.195 The most prominent of these efforts came in western Massachusetts in 1786 when hundreds of armed men blocked the function of courts to prevent foreclosures on farms and livestock.196 The farmers, led by Revolutionary War captain Daniel Shay, were met aggressively by the state government, which raised a 4,400-man army to suppress the uprising.197 While Shay's forces were initially successful in stopping courts from functioning, they immediately panicked and fled when faced with the state army.198 Their effort to take the federal armory in Springfield, Massachusetts, ended in a bloody defeat; when government forces attacked Shay's retreating forces, they immediately routed, with most of the rebel leaders fleeing the state.199 Eighteen rebels were convicted of crimes and sentenced to death; ultimately, two who were convicted for theft crimes as part of the rebellion were executed.200 While the actual threat from Shay's forces was not great, many elites viewed it as a crisis at the time, and their concerns helped to stir the creation of the national Constitution.201
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After the ratification of the Constitution, Congress passed an excise tax on whiskey, which was resisted by farmers in rural areas throughout the country.202 Many farmers converted excess grain into whiskey, which was easier to transport than grain and provided much of the farmers' cash income.203 The largest effort to resist the tax broke out in western Pennsylvania.204 Armed farmers attacked and burned the home of a tax collector, forcing him to flee.205 The rebellion, known as the "Whiskey Rebellion," was met with overwhelming force by the federal government. President Washington himself led an army of 15,000 to suppress the unrest, which melted away against the overwhelming numbers.206 The suppression of the Whiskey Rebellion further established that armed mobs were not a valid form of political engagement.207
During the Antebellum period, riots in the North oftentimes targeted abolitionists and free Blacks.208 One scholar documented 1,218 riots that occurred between 1828 and the outbreak of the Civil War in 1861.209 Mobs attacked, assaulted, and ran out of town abolitionists attempting to organize rallies or petitions.210 Black communities were often the target of White attacks. For example, Whites in Providence, Rhode Island, attacked the city's Black neighborhood in 1824 and 1831,211 and mobs attacked the Black neighborhoods of Cincinnati in 1829, 1836, and 1841, forcing many of the city's Black residents to flee to Canada.212
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These riots peaked in the mid-1830s when the Abolitionist Movement first began to seriously assert itself.213 In 1834, mobs attacked abolitionists and the Black community in New York.214 The mobs destroyed more than sixty buildings, including six churches.215 That same year, an armed White mob in Philadelphia killed at least one Black man, horribly disfigured another, and attacked, damaged, or destroyed two churches and many homes in a predominantly Black neighborhood, in a purported response to a dispute occurring over a carousel.216 In 1835, workers in Washington, D.C., rampaged through the city attacking Blacks and abolitionists and destroying Black-owned businesses.217 In 1835, a mob attacked abolitionist newspaper publisher William Lloyd Garrison, who had to flee into protective custody in the city jail.218 In 1837, a White mob in Alton, Illinois, attacked the printing press of abolitionist Elijah Lovejoy and shot Lovejoy to death.219
Like in every other aspect of American life, mob violence in the southern states was substantially more deadly than in northern states.220 One study found that in 1835, the seventy-nine recorded southern mobs killed a total of sixtythree people, while the sixty-eight northern mobs killed eight.221 Vigilante mob violence existed in both the North and the South, but northerners were more likely to destroy a brothel and leave its occupants physically unharmed, while southerners would summarily execute gamblers and other strangers in town.222
A young Abraham Lincoln criticized this violence in an 1838 speech, in which he warned that "[w]henever the vicious portion of the population shall be permitted to gather bands of hundreds and thousands, and burn churches, ravage and rob provision-stores, throw printing-presses into the river, shoot editors, and hang and burn obnoxious persons at pleasure and with impunity, depend on it, this government cannot last."223
An odd target of violence that led to one of the deadliest Antebellum Era riots was theaters hosting British actors. Several New York performances by British actor Joshua Anderson had to be called off in 1831 and 1832.224 In 1849,
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working-class and immigrant New Yorkers who believed American actor Edwin Forrest was superior to English actor William MacReady disrupted a performance of MacBeth and fought state militia, resulting in the deaths of at least eighteen individuals and injuries to dozens more people.225
In the 1840s and 1850s, riots tended to focus on immigration and religion.226 In 1844, clashes between Catholics and Protestants in Philadelphia left approximately twenty people dead and the destruction of Catholic churches and homes throughout the city.227 In 1855, clashes between Protestant mobs and Catholic and immigrant communities in Louisville, Kentucky, resulted in twenty-two deaths and many more injuries.228 Attacks between Know Nothing nativists and Baltimore Democrats in 1856 resulted in fourteen deaths and the successful suppression of the Democratic vote, swinging Maryland to support Millard Filmore in that year's presidential election.229 In 1857, Know Nothings from Baltimore traveled to Washington, D.C., to attempt to block immigrant voters from the polls.230 President Buchanan called in the Marines, and at least ten people were killed.231
Mass violence increased dramatically in the years after the Civil War. Horrific mob attacks perpetrated by armed Whites against Blacks became commonplace in the South.232 Whites in Memphis attacked the city's Black neighborhoods, killing forty-six Black people, injuring others, and destroying Black churches, homes, and schools in the community.233 In New Orleans in 1866, White mobs led by the city's ex-Confederate mayor attacked the state's interracial constitutional convention.234 The mob attacked Black delegates marching to the convention and then stormed the convention building, indiscriminately firing upon delegates before spilling out into the streets and
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indiscriminately shooting Black people.235 Between forty and fifty were killed, and at least one hundred more were wounded in the attack.236
Horrific mass violence inspired Radical Republicans to seize control of Reconstruction from President Johnson.237 However, violence against freedmen continued. In 1868, a White mob fired on freedmen who were parading to a political rally in Camilla, Georgia.238 More than twenty of the ralliers were killed and wounded.239 Mass violence was the worst in Louisiana, which saw more than two hundred Blacks killed by an armed White mob in the Opelousas Massacre.240 Between seventy and 165 Black men were shot and killed in the Colfax Massacre,241 over two dozen were killed in an attempted coup by White Democrats in New Orleans,242 and as many as six Republican office holders were killed in an attack by the White League in Red River Parish, Louisiana.243 Horrific mass violence against freedmen also occurred in Mississippi,244 Alabama,245 and South Carolina.246
Other interethnic disputes also led to mass violence. In 1871, Catholics and Irish Protestants fought in New York, resulting in a major riot.247 New York militia responded aggressively and assaulted the Catholics, killing seventy
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people.248 In the American West, anti-Chinese sentiments among White workers often led to riots and mass killings. An anti-Chinese riot in Los Angeles resulted in eighteen Chinese men--more than ten percent of Los Angeles's Chinese population--being shot or hanged.249 A riot by armed, White mine workers in Rock Springs, Wyoming, resulted in the killing of twenty-eight Chinese people with guns and fire and the destruction of virtually all Chineseowned properties.250
Attacks by Whites on Blacks also continued throughout the country and included riots leading to lynchings, as well as mass violence destroying entire Black communities and killing dozens of people.251 The most notable of these atrocities is the Tulsa Massacre, in which an armed White mob killed at least thirty-six, but possibly as many as three hundred, Black Tulsans and displaced 6,000 people, as thirty-five city blocks in the community's prosperous Black neighborhood were destroyed.252
III. LARGE-CAPACITY MAGAZINES, ASSAULT WEAPONS, AND HISTORICAL ANALOGY
Like modern laws, which aim to prevent and mitigate mass violence by prohibiting the sale or possession of assault weapons and large-capacity magazines, historical prohibitions on armed groups aimed to prevent and mitigate mass violence by prohibiting assembling the means to commit that violence. In Bruen, the Court directed the analysis of historical analogy to two considerations, namely "how and why the regulations burden a law-abiding citizen's right to armed self-defense."253 The Court elaborated: "[W]hether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are `central' considerations when engaging in an analogical inquiry."254 The Court made
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clear that modern gun laws need not be "a historical twin" or "dead ringer" to historical regulations but warned against accepting too-farfetched analogies.255
Here, a stretch is not required. Like modern assault-weapon and largecapacity-magazine laws, historical prohibitions on armed groups sought to prevent mass violence by taking away the means by which mass violence could be committed. Laws prohibiting armed groups and laws prohibiting the sale or possession of especially dangerous weapons or weapon accessories are obviously not identical. Semi-automatic firearms and detachable magazines did not enter the civilian market until the early twentieth century, and large-capacity magazines were rare in the first half of the century.256 Unsurprisingly, the Founding Era and nineteenth-century historical record lack examples of laws regulating these weapons. Governments tend not to regulate speculatively in an attempt to address problems that may occur in the future.257 Instead, governments regulated the mass violence threat of the day--armed groups.258
This is exactly the kind of analogy the Court said should be considered when "unprecedented societal concerns or dramatic technological changes" have occurred.259 Analogizing assault weapons and large-capacity magazines to armed groups is the type of "nuanced approach" the Court called for when a problem the Founders did not face was addressed.260 The Court required only a "representative historical analogue, not a historical twin."261 Historical prohibitions on armed groups are such analogues. Laws prohibiting the purchase, sale, and possession of assault weapons and large-capacity magazines are constitutional because they are consistent with a long American tradition of firearms regulation.262
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This argument was further strengthened by the Court's decision in United States v. Rahimi.263 Rahimi makes clear that, as evidenced by the long history of regulating armed groups, modern regulations of assault weapons and large-
equivalent of the militia musket that was foremost in the mind of the founding generation. See C.D. Michel & Konstadinos Moros, Restrictions "Our Ancestors Would Never Have Accepted": The Historical Case Against Assault Weapon Bans, 24 WYO. L. REV. 89, 93 (2024) ("[T]he commonly owned civilian firearms of the era that are also optimal in warfare are the most protected of all when it comes to firearm regulation."); William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 NOTRE DAME L. REV. (forthcoming 2024) ("Every nineteenth-century court and legal treatise writer to consider the question understood that arms particularly useful to militia service fell within the very core of the right."). These arguments seem to rely on what is known as the "hybrid" or "civic-Republican" understanding of the Second Amendment. Under this view, the Second Amendment primarily protects an individual right to have guns in furtherance of the civic need for a militia to protect public safety and deter tyranny rather than an individual right to have guns primarily for purposes of self-defense. See Michael O'Shea, The Second Amendment Wild Card: The Persisting Relevance of the "Hybrid" Interpretation of the Right to Keep and Bear Arms, 81 TENN. L. REV. 597, 606 (2014) ("[U]nder the hybrid interpretation, the right to arms protects a personal right of individual citizens to `keep arms'--that is, to acquire, possess, practice with, and engage in other types of legitimate activity with those types of common firearms that are useful for militia purposes. But the right to bear arms is structured mainly by the civic purposes mentioned in the Second Amendment's preface--military readiness and protecting the public liberty by deterring government tyranny--not by the purpose of individual self-defense."); see also Robert Leider, Our Non-Originalist Right to Bear Arms, 89 IND. L.J. 1587, 1587�88 (2014).
Several nineteenth-century cases adopted this view of the Second Amendment and state-level analogues. See Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840) ("As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment."); English v. State, 35 Tex. 473, 475 (1871) ("the provision protects only the right to `keep' such `arms' as are used for purposes of war, in distinction from those which are employed in quarrels and broils, and fights between maddened individuals, since such only are properly known by the name of `arms,' and such only are adapted to promote `the security of a free state.'"); Haile v. State, 38 Ark. 564 (1882). The high point for the hybrid model came in 1939, when the Supreme Court decided United States v. Miller. 307 U.S. 174 (1939). In Miller, the National Firearm Act's prohibition on short-barreled shotguns was challenged as a violation of the Second Amendment. Id. at 176. The Court rejected this challenge, stating "In the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well[-]regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Id. at 178.
While technically Miller remains good law, the hybrid model of the Second Amendment carries little weight today because it was rejected by the Court in District of Columbia v. Heller. 554 U.S. 570 (2008). In Heller, the Court found that the Second Amendment protects "an individual right unconnected with militia service." Id. at 582; see also id. at 605 (same language); id. at 608 ("Story's Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service."); id. at 610 ("an individual right unconnected to militia service"); id. at 611 (same); id. at 612 (same); id. at 616 ("an individual right unconnected with militia service."). The Court went on to specifically reject the argument that the Second Amendment provides special protection for weapons necessary for military service. See id. at 627�28 ("It may be objected that if weapons that are most useful in military service--M�16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."). Earlier in Heller, the Court read Miller "to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 554 U.S. at 625. Given the Court's rejection of the hybrid approach in Heller, this Article does not address it in depth.
263. United States v. Herriott, No. 2:23-CR-37-PPS-JEM, 2024 WL 3103275, at *4 n.1 (N.D. Ind. June 24, 2024) ("If anything, Rahimi can be seen as a softening of the approach to the Second Amendment taken in Bruen. How else does one explain that the author of Bruen is the sole dissenter in Rahimi?").
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capacity magazines are "consistent with the principles that underpin our regulatory tradition."264 The prohibitions "faithfully [apply] the balance struck by the founding generation" and the generation that adopted the Fourteenth Amendment "to modern circumstances."265 Rahimi also maintains the "[w]hy and how" analysis from Bruen but makes clear that it was not intended to "suggest a law trapped in amber."266 As discussed above, historical restrictions on armed groups and modern restrictions on assault weapons and large-capacity magazines are adopted for the same "why"--to prevent acts of mass violence-- and the same "how"--limiting the availability of the means to commit that violence.
Whether the courts apply a principle-based approach or analyze the historical record with a higher degree of specificity, the long tradition of prohibiting armed groups provides a close historical analogy justifying modern prohibitions on assault weapons and large-capacity magazines under the BruenRahimi standard.