Wyoming Law Review Wyoming Law Review
Volume 24Number 1 Article 3
2-2024
Restrictions "Our Ancestors Would Never Have Accepted": The Restrictions "Our Ancestors Would Never Have Accepted": The
Historical Case Against Assault Weapon Bans Historical Case Against Assault Weapon Bans
C.D. Michel
Michel & Associates, P.C.
Konstadinos Moros
Michel & Associates, P.C.
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Recommended Citation Recommended Citation
C.D. Michel, & Konstadinos Moros, Restrictions "Our Ancestors Would Never Have Accepted": The
Historical Case Against Assault Weapon Bans, 24 WYO. L. REV. 89 (2024).
Available at: scholarship.law.uwyo.edu/wlr/vol24/iss1/3
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WYOMING LAW REVIEW
VOLUME 24 2024 NUMBER 1
Restrictions “Our Ancestors Would Never Have
Accepted”: The Historical Case Against Assault
Weapon Bans
C.D. Michel
*
& Konstadinos Moros
**
I. INTRODUCTION ......................................................................................... 90
II. THE SECOND AMENDMENT IS INTENDED TO BE A FINAL GUARD
AGAINST TYRANNY ......................................................................................... 93
III. THE FOUNDERS AND THEIR CONTEMPORARIES SAW THE SECOND
AMENDMENT AS A DEFENSE AGAINST TYRANNY ..................................... 96
IV. LATER 19TH CENTURY COMMENTARY CONFIRMS THE “ARMS OF
MODERN WARFARE” ARE PROTECTED BY THE SECOND AMENDMENT .....
................................................................................................................... 101
V. ABOLITIONISTS AND FREE BLACK AMERICANS PROVIDE AN
EXCELLENT ILLUSTRATION OF SUCH “ARMS OF MODERN WARFARE”
BEING USED TO RESIST OPPRESSION ......................................................... 109
VI. CONCLUSION ........................................................................................... 111
90 WYOMING LAW REVIEW Vol. 24
ABSTRACT
The debate around what types of “arms” the Second Amendment
protects is revitalized in the wake of Bruen’s renewed focus on our
historical tradition as the determinative factor in Second Amendment
cases. Thus far, several district courts have upheld state “assault weapon”
bans in part by relying on an overly sanitized version of the Second
Amendment that our founders, as well as their immediate descendants in
the 19th century, would consider unrecognizable. While prior generations
of Americans undoubtedly believed self-defense, hunting, and sport were
all important components of the right to keep and bear arms, an overriding
purpose frequently dominated their discussion of that right: preventing
and responding to tyranny. This Article aims to bring renewed attention to
the overwhelming amount of founding-era and 19th-century commentary
that emphasizes the importance of the Second Amendment right as a tool
to resist tyranny. In light of the clear history, so-called “assault weapon”
bans and similar laws are incompatible with our historical tradition and
should be struck down.
I. INTRODUCTION
When it comes to the scope of the Second Amendment’s protection
of the individual right to keep and bear arms, a key question courts now
face is which specific “arms” the text of the Second Amendment protects.
1
Most courts, including the United States Supreme Court, have agreed
handguns are protected due to their popularity among Americans as the
“quintessential self-defense weapon.”
2
However, when the discussion
shifts to common semiautomatic rifles such as the AR-15 and the like, the
debate is far more contentious.
Some states, like California and Illinois, have argued that such “arms”
are not covered by the Second Amendment’s text, and so the government
can ban many of the most popular firearms in the country, even though
they are owned by millions of Americans for various lawful purposes.
3
1
See U.S. CONST. amend. II (“A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.”).
2
District of Columbia v. Heller, 554 U.S. 570, 629 (2008).
3
Even just going by the most high-profile firearm affected by such bans, the AR-
15, there can be no doubt it is commonly owned for lawful purposes. According to recent
research by the Washington Post, 6% of American adults (approximately 16 million
citizens) own an AR-15-style rifle. Emily Guskin, Aadit Tambe & Jon Gerberg, Why Do
Americans Own AR-15s?, WASH. POST (May 22, 2023, 6:12 AM),
www.washingtonpost.com/nation/interactive/2023/american-ar-15-gun-
owners/?itid=co_enhanced_ar15_0 [https://perma.cc/DU4M-V92E].
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 91
The Supreme Court’s decisions in District of Columbia v. Heller and New
York State Rifle & Pistol Ass’n Inc., v. Bruen require the government to use
historical analogue gun laws to justify a legislature’s modern laws.
4
Unable
to find any history of bans on commonly owned firearms, state
governments have turned to 19th-century regulation of weapons such as
Bowie knives, various blunt weapons, and sometimes small concealable
pistols to try to justify modern gun laws banning common rifles.
5
For its
part, the Supreme Court has only tiptoed around the topic of the Second
Amendment’s anti-tyranny purpose. In Heller, the Court acknowledged
early generations of Americans “understood across the political spectrum
that the [Second Amendment] helped to secure the ideal of a citizen militia,
which might be necessary to oppose an oppressive military force if the
constitutional order broke down.”
6
But in the years since Heller, the Court
has been silent on this history, even as Bruen corrected the errant circuit
courts by returning the focus to historical tradition.
7
The historical laws the state governments cite typically did not outright
ban the possession of certain weapons. Rather than banning the possession
of these items completely, these laws generally addressed the manner of
carry,
8
or specific places where possession can be restricted.
9
Nonetheless,
some state governments argue the historical restrictions on the carry of
“unusually dangerous” weapons are the equivalent of laws regulating
modern “weapons of war” (a euphemism referring to semiautomatic rifles
4
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022). (“We
reiterate that the standard for applying the Second Amendment is as follows: When the
Second Amendment’s plain text covers an individual’s conduct, the Constitution
presumptively protects that conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm
regulation. Only then may a court conclude that the individual’s conduct falls outside the
Second Amendment’s ‘unqualified command.’ [citation omitted].”); Heller, 554 U.S. at 634
(rejecting the application of a “judge-empowering interest balancing inquiry”).
5
David Kopel, The Legal History of Bans on Firearms and Bowie Knives Before 1900,
REASON MAG. (Nov. 20, 2022 12:55 PM), reason.com/
volokh/2022/11/20/the-legal-history-of-bans-on-firearms-and-bowie-knives-before-
1900/ [https://perma.cc/KMR9-74R8].
6
Heller, 554 U.S. at 599.
7
Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it
is one step too many. Step one of the predominant framework is broadly consistent with
Heller, which demands a test rooted in the Second Amendment’s text, as informed by
history. But Heller and McDonald do not support applying means-end scrutiny in the
Second Amendment context.”).
8
For example, Georgia made it illegal to carry, “unless in an open manner and
fully exposed to view, any pistol, (except horseman’s pistols,) dirk, sword in a cane, spear,
bowie-knife, or any other kind of knives, manufactured and sold for the purpose of
offence and defence.” GA. CODE § 4413 (1861).
9
See, e.g., 1870 Tex. Gen. Laws 139, ch. 73 (Prohibited carrying “any gun, pistol,
bowie-knife or other dangerous weapon, concealed or unconcealed,” within a half mile
of a polling place while the polls are open).
92 WYOMING LAW REVIEW Vol. 24
and their magazines).
10
Because, they contend, the AR-15 and other semi-
automatic firearms are such “weapons of war,” the government can restrict
or outright ban citizens from possessing them. As California Attorney
General Rob Bonta wrote in a recent brief defending California’s “assault
weapon” law, the banned rifles are most useful in military service;
therefore, as weapons of war, they “cannot be deemed ‘in common use’
for lawful purposes.”
11
In other words, California’s contention, is that the
banned rifles are not “arms” that are within the scope of the Second
Amendment.
12
An Oregon district court, ruling on a challenge to the state’s large
capacity magazine law, agreed that these rifles are not “arms” under the
protection of the Second Amendment.
13
The court declared the only
“lawful purpose” that receives any constitutional protection is armed self-
defense, and any arms not actively used for that purpose may be banned.
14
This view would provide protection to handguns given they are most often
used in self-defense incidents but little else.
15
An appellate panel in the
Seventh Circuit went further, ruling that “military weapons lie outside the
class of Arms to which the individual right applies.”
16
Arguments from these California, Oregon, and Illinois cases reveal a
profound misunderstanding of our historical tradition, not to mention
what arms the Second Amendment’s text covers. They fail to examine
what both Americans of the founding generation as well as Americans of
the 19th century had to say about the Second Amendment. For our
10
See Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023 WL 6180472, at *16
(S.D. Cal. Sept. 22, 2023) (referring to the State of California arguing that weapons “most
useful in military service” can be banned).
11
Defendant’s Memorandum of Points and Authorities in Support of Motion for
Summary Judgment at 12, Rupp v. Bonta, No. 8:17-cv-00746-JLS-JDE (C.D. Cal. May
26, 2023), ECF No. 149-1.
12
See id.
13
Or. Firearms Fed’n v. Kotek Or. All. for Gun Safety, No. 2:22-CV-01815-IM,
2023 WL 4541027, at *30 (D. Or. July 14, 2023).
14
Id. at *30.
15
See WILLIAM ENGLISH, 2021 NATIONAL FIREARMS SURVEY: UPDATED
ANALYSIS INCLUDING TYPES OF FIREARMS OWNED 1 (2022), (available at
papers.ssrn.com/sol3/papers.cfm?abstract_id=4109494) (“Handguns are the
most common firearm employed for self-defense (used in 65.9% of defensive incidents)
. . . .”).
16
Bevis v. City of Naperville, No. 23-1353, 2023 WL 7273709, at *14 (7th Cir.
Nov. 3, 2023). The dissent noted some considerable problems with the majority’s view,
including how popular handguns would be unprotected by the Second Amendment
because the military adopted them. Id. at *36 (Brennan, J., dissenting). Indeed, the Seventh
Circuit’s standard would leave muskets unprotected by the Second Amendment in 1791.
See id. at *14. After all, they were military arms that the Continental Army had used to
defeat the British.
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 93
predecessors, at least one other purpose was just as important as self-
defense: the ability to resist tyranny.
17
Simply put, this Article examines American historical tradition to show
that the 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.
An overwhelming amount of historical commentary bears this out. Part II
presents a few modern-era judicial opinions to demonstrate the idea that
the Second Amendment is meant as a last resort against tyranny.
18
Part III
includes a sampling of 18th-century sources which confirm the founding
generation saw the Second Amendment as a defense against tyranny.
19
Part
IV focuses on 19th-century commentary, which explains “arms of modern
warfare” are most protected by the Second Amendment.
20
Finally, Part V
briefly looks at how these principles were put into practice by the early civil
rights movement in the Jim Crow era.
21
II. THE SECOND AMENDMENT IS INTENDED TO BE A FINAL
GUARD AGAINST TYRANNY
There is no doubt the Second Amendment protects gun owners for
the lawful purposes of hunting, sport shooting, recreation, and self-
defense.
22
However, it also exists as a final defense against tyranny, whether
17
Resisting tyranny is itself also a form of self-defense, but on a more societal
level. To avoid confusion, for the purposes of this Article the phrase “self-defense” refers
to personal self-defense only. However, the reader should keep in mind that “[t]he right of
self-preservation, in turn, was understood as the right to defend oneself against attacks
by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical
government.” Parker v. District of Columbia., 478 F.3d 370, 383 (D.C. Cir. 2007), aff’d
sub nom. District of Columbia v. Heller, 554 U.S. 570 (2008).
18
See infra Part II.
19
See infra Part III.
20
See infra Part IV.
21
See infra Part V.
22
This is not a close question, as numerous courts and judges have agreed that the
Second Amendment applies to more than just strictly self-defense uses. See, e.g., District
of Columbia v. Heller, 554 U.S. 570, 624 (2008) (discussing “lawful purposes like self-
defense,” thereby implying the existence of other such lawful purposes); Ezell v. City of
Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (striking down Chicago ordinance that barred
firing ranges within city limits, and stating that “[t]he right to possess firearms for
protection implies a corresponding right to acquire and maintain proficiency in their
use.”); Heller v. District of Columbia, 670 F.3d 1244, 1260 (2011) (“Of course, the
[Supreme Court] also said the Second Amendment protects the right to keep and bear
arms for other ‘lawful purposes,’ such as hunting . . . .”); Friedman v. City of Highland
Park, 577 U.S. 1039, 1039–40 (2015) (Thomas, J., dissenting) (discussing other lawful
purposes such as hunting and target shooting). Even the dissenting opinion in Bruen
seemed to acknowledge this when it explained that “Some Americans use guns for
legitimate purposes, such as sport (e.g., hunting or target shooting), certain types of
employment (e.g., as a private security guard), or self-defense.” N.Y. State Rifle & Pistol
94 WYOMING LAW REVIEW Vol. 24
that tyranny comes in the form of a foreign invader or a homegrown
autocrat who attempts to overthrow our constitutional order. Several
judges of the modern era embrace the need for a failsafe against tyranny.
For example, in 2003, the Ninth Circuit erroneously ruled the Second
Amendment did not recognize an individual right to keep and bear arms.
23
But a dissenting judge whose own family had fled the Soviet Bloc
explained:
All too many of the other great tragedies of history—
Stalin’s atrocities, the killing fields of Cambodia, the
Holocaust, to name but a few—were perpetrated by armed
troops against unarmed populations . . . . If a few hundred
Jewish fighters in the Warsaw Ghetto could hold off the
Wehrmacht for almost a month with only a handful of
weapons, six million Jews armed with rifles could not so
easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons
of history. The prospect of tyranny may not grab the
headlines the way vivid stories of gun crime routinely do.
But few saw the Third Reich coming until it was too late.
The Second Amendment is a doomsday provision, one
designed for those exceptionally rare circumstances where
all other rights have failed—where the government refuses
to stand for reelection and silences those who protest;
where courts have lost the courage to oppose, or can find
no one to enforce their decrees. However improbable
these contingencies may seem today, facing them
unprepared is a mistake a free people get to make only
once.
Fortunately, the Framers were wise enough to entrench the
right of the people to keep and bear arms within our
constitutional structure. The purpose and importance of
that right was still fresh in their minds, and they spelled it
out clearly so it would not be forgotten.
24
Ass’n v. Bruen, 142 S. Ct. 2111, 2167 (2022) (Breyer, J., dissenting). Indeed, if a State
could ban any firearms except those most commonly used for self-defense, then many
hunting rifles as well as long-barrel shotguns could be banned without violating the
Second Amendment.
23
Silveira v. Lockyer, 312 F.3d 1052, 1056 (9th Cir. 2002), as amended (Jan. 27,
2003).
24
Silveira v. Lockyer, 328 F.3d 567, 569–70 (9th Cir. 2003) (Kozinski, J.,
dissenting). Several judges of the Supreme Court of the State of Washington, another
state that has recently banned common rifles, also previously agreed with this view. “The
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 95
Much more recently, an Illinois district court agreed, and enjoined
Illinois’s own assault weapons ban. The court pointed to Heller for support:
During the founding era, ‘[i]t was understood across the
political spectrum that the right . . . might be necessary to
oppose an oppressive military force if the constitutional
order broke down.’ Therefore, although ‘most
undoubtedly thought [the Second Amendment] even more
important for self-defense and hunting’ the additional
purpose of securing the ability of the citizenry to oppose
an oppressive military, should the need arise, cannot be
overlooked.
25
In Heller, the Supreme Court , while careful to note there is no
unfettered right to own any military weapon and suggesting that modern
technology may now limit the capabilities of a citizen militia, did not reject
the possibility of defending against an oppressive government:
[T]he conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia duty.
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. Indeed, it
may be true that no amount of small arms could be useful
against modern-day bombers and tanks. But the fact that
modern developments have limited the degree of fit
right to keep and bear arms has long been recognized by the common law as essential to
enable individuals to resist tyranny and defend themselves.” State v. Schelin, 55 P.3d 632,
645 (Wash. 2002) (Sanders, J., dissenting). And years later, a Ninth Circuit panel would
acknowledge that the history supported Judge Kozinski’s dissent as well. “Early American
legislators and commentators understood the Second Amendment and its state
predecessors as protecting Americans against tyranny and oppression.” Teixeira v. Cnty.
of Alameda, 873 F.3d 670, 686 (9th Cir. 2017). A Sixth Circuit judge likewise
acknowledged that “the Founding-era fears of tyranny and defenselessness . . . provided
the impetus behind the Second Amendment.” Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, 837
F.3d 678, 707 (6th Cir. 2016) (Batchelder, J., concurring).
25
Barnett v. Raoul, No. 3:23-CV-00209-SPM, 2023 U.S. Dist. LEXIS 74756, at
*19–20 (S.D. Ill. Apr. 28, 2023), vacated sub nom., Bevis v. City of Naperville, Nos. 23-1353,
23-1793, 23-1825, 2023 U.S. App. LEXIS 29332 (7th Cir. Nov. 3, 2023) (quoting Heller,
554 U.S. at 599). Another District Court recently agreed with the Barnett court, explaining
that “[o]nce one understands the history of tyrants resorting to taking away people’s arms
to suppress political opposition, Heller explains, one can see that the militia clause fits
perfectly with the operative clause.” Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023
WL 6180472, at *6 (S.D. Cal. Sept. 22, 2023).
96 WYOMING LAW REVIEW Vol. 24
between the prefatory clause and the protected right
cannot change our interpretation of the right.
26
None of this is to say the United States is near a situation today where
violent armed resistance is necessary to protect our constitutional order.
Hopefully, no such day ever comes. But this “doomsday provision” is an
inseparable part of why the Second Amendment exists. And people do not
typically resist a tyrant with small pistols or slow-firing hunting rifles, which
even governments have acknowledged when faced with invasion and
distributing weapons to civilians.
27
Resistors do it with the prevailing
common long guns of the day—AR-15s and other similar so-called
“assault weapons” that are owned by millions of regular citizens across the
country.
28
These are “the sorts of lawful weapons that they possessed at
home”
29
that would be brought to bear in the horrible circumstance of a
tyrant upsetting our constitutional order or a foreign invader occupying
our country.
30
III. THE FOUNDERS AND THEIR CONTEMPORARIES SAW THE
SECOND AMENDMENT AS A DEFENSE AGAINST TYRANNY
The idea the Second Amendment is intended to be a protection against
tyranny is derided by modern-day gun control advocates as an
26
Heller, 554 U.S. at 627–28. If anything, the Court may have been a bit too
pessimistic on the capabilities of guerilla fighters armed mostly with only small arms.
Given the modern military’s failure to bring the Taliban to heel across two decades of
fighting despite massive technological advantages, it’s clear common rifles are far from
useless in modern-day insurgencies, even against long odds.
27
When faced with Russian invasion, the Ukrainian government quickly
distributed 10,000 automatic rifles to civilians so they could help resist the invaders.
Stephen Gutowski, Ukraine Distributes 10,000 Automatic Rifles to Civilians as Capitol City
Fights Russian Invasion, RELOAD (February 24, 2022, 5:44 PM),
thereload.com/ukraine-distributes-10000-automatic-rifles-to-civilians-as-
capitol-city-fights-russian-invasion/[https://perma.cc/R8QB-BU67].
28
No doubt such firearms in the wrong hands can––and have––led to tragic
results. States can implement various measures to reduce the likelihood of such tragedies
by stopping violent criminals and others from getting AR-15s or other weapons. But
banning the most popular rifles in the country goes too far. “We are aware of the problem
of handgun violence in this country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun ownership is a solution. The
Constitution leaves the [government] a variety of tools for combating that problem . . . .
But the enshrinement of constitutional rights necessarily takes certain policy choices off
the table.” District of Columbia v. Heller, 554 U.S. 570, 624 (2008).
29
Id. at 627.
30
Arguably, their mere existence in civilian hands lessens the odds of tyranny in
the first place. “[A]s an anti-tyranny tool, widespread citizen arms ownership works most
effectively when it functions as a deterrent.” David B. Kopel, Guns Kill People, and Tyrants
with Gun Monopolies Kill the Most, 25 GONZ. J. INT’L L. 29, 55 (2021).
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 97
“insurrectionist theory,” invented by the NRA in the 1970s.
31
That is
hogwash. The “theory” was not invented by the NRA, nor is it a fringe
theory. It is instead the most historically supported view of the Second
Amendment’s purpose, going back to even before our founding.
Blackstone noted the right to keep and bear arms is a “natural right of
resistance and self-preservation, when the sanctions of society and law are
found insufficient to restrain the violence of oppression.”
32
The Supreme
Court itself, in explaining what “arms” meant in the context of the Second
Amendment, pointed to the 1773 edition of Samuel Johnson’s dictionary,
which defined arms as “[w]eapons of offence, or armour of defence.”
33
The very definition of the word “arms” in the relevant time period thus
encompasses “offence” and cannot be limited strictly to firearms most
useful for self-defense as various gun-banning states now argue.
34
The Bill of Rights was written by people who had just violently
overthrown their former government. They were understandably very
fearful the new government they were forming would likewise become
tyrannical. Because of their recent fight for freedom, the authors included
the Second Amendment, at least in part, as a fail-safe.
The authors of the Bill of Rights said so themselves. James Madison
tried to assuage fears of a tyrannical federal army running roughshod over
the people by explaining that because Americans had the “advantage of
being armed,” which people of other countries did not have, they could
form citizen militias that could counter any regular army:
31
See, e.g., Olivia Li, The Gun Rights Rhetoric That Helped Seed the Insurrectionist Mindset,
THE TRACE, (January 9, 2021), www.thetrace.org/2021/01/gun-rights-rhetoric-
insurrectionist-mindset-capitol-trump/ [https://perma.cc/MH48-N6YQ] (“There’s a
theory of the Second Amendment called the insurrectionist theory. According to it, the
Second Amendment preserves civilians’ right to bear arms so that they can take up arms
against a tyrannical government, should the need arise. . . . Now, there are other historians
who would say that that’s a tendentious reading of the history, at best, and that really
nothing about the idea of the Second Amendment is actually designed to empower the
people to overthrow the government. The insurrectionist theory wasn’t part of modern
legal discourse until the 1970s, at the earliest. . . . That was when the National Rifle
Association went from being a sportsman’s organization to a very strong and inflexible
gun-rights organization.”).
32
2 WILLIAM BLACKSTONE, COMMENTARIES *139.
33
District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (citing 1 SAMUEL
JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE 106 (4th ed. 1773)).
34
Similarly, an 1852 book by Joseph Bartlett Burleigh explained “[The term] Arms
. . . is used for whatever is intentionally made as an instrument of offence . . . .” JOSEPH
BARTLETT BURLEIGH, THE AMERICAN MANUAL: CONTAINING A BRIEF OUTLINE OF
THE ORIGIN AND PROGRESS OF GOVERNMENT, THE NATURE OF LIBERTY, AND THE
LAW OF NATIONS 31 (1852). He contrasted that from the term “weapons”, which are
instruments of offence or defense. Id. “We say fire-arms, but not fire-weapons; and weapons
offensive or defensive, but not arms offensive or defensive.” Id.
98 WYOMING LAW REVIEW Vol. 24
Let a regular army, fully equal to the resources of the
country, be formed; and let it be entirely at the devotion of
the federal government . . . . To these would be opposed a
militia amounting to near half a million of citizens with
arms in their hands, officered by men chosen from among
themselves, fighting for their common liberties, and united
and conducted by governments possessing their affections
and confidence. It may well be doubted, whether a militia
thus circumstanced could ever be conquered by such a
proportion of regular troops. Those who are best
acquainted with the last successful resistance of this
country against the British arms, will be most inclined to
deny the possibility of it. Besides the advantage of being armed,
which the Americans possess over the people of almost every other
nation, the existence of subordinate governments, to which
the people are attached, and by which the militia officers
are appointed, forms a barrier against the enterprises of
ambition, more insurmountable than any which a simple
government of any form can admit of.
35
Similarly, Alexander Hamilton added, should a large army ever be
raised, “that army can never be formidable to the liberties of the people
while there is a large body of citizens, little, if at all, inferior to them in
discipline and the use of arms, who stand ready to defend their own rights
and those of their fellow-citizens.”
36
Tench Coxe, a friend of Madison and himself a delegate to the
Constitutional Convention, in discussing the Second Amendment, wrote
“civil rulers . . . may attempt to tyrannize,” and rulers might use the power
of the military to injure fellow citizens, thus, “the people are confirmed by
the article in their right to keep and bear their private arms.”
37
He had
earlier also written that “Congress ha[s] no power to disarm the militia.
Their swords, and every other terrible implement of the soldier, are the
birthright of an American.”
38
35
THE FEDERALIST NO. 46 (James Madison) (emphasis added).
36
THE FEDERALIST NO. 29 (Alexander Hamilton).
37
Tench Coxe, JAMES MADISON RSCH. LIBR. & INFO. CTR.,
www.madisonbrigade.com/t_coxe.htm [https://perma.cc/E4UC-8QC7] (last
visited Nov. 22, 2023) (quoting Tench Coxe in ‘Remarks on the First Part of the
Amendments to the Federal Constitution’ under the Pseudonym ‘A Pennsylvanian’ in the
Philadelphia Federal Gazette, June 18, 1789, at 2 col. 1).
38
Id. (quoting Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788). Tench Coxe
would reaffirm these views again in 1813, when he wrote that the “militia” referenced in
the Second Amendment “embraces all the free white males of the proper ages.” Calling
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 99
Noah Webster, the famous early American lexicographer and a
member of the Connecticut House of Representatives from 1802–1807,
was also a strong advocate for adoption of the United States Constitution.
He wrote, “[b]efore a standing army can rule, the people must be disarmed;
as they are in almost every kingdom of Europe.”
39
Unlike in Europe, the
United States is less susceptible to tyrants enforcing unjust laws “because
the whole body of the people are armed, and constitute a force superior to
any band of regular troops that can be, on any pretense, raised in the
United States.”
40
William Patterson, who held many positions of power in the founding
era resulting in him being one of the first Associate Justices of the Supreme
Court from 1793 until his death in 1806,
41
wrote a militia is “the people
themselves prepared to act as soldiers for the purpose of resisting
oppression and securing their rights. . . . Tyrants dread freemen, when
freeman not only have arms in their hands, but know how to use them.”
42
St. George Tucker, who was later appointed to the federal bench by
President Madison,
43
wrote an American version of Blackstone’s
Commentaries on the Law of England, which was the first treatise for American
it “the army of the constitution”, Coxe wrote that “[t]hey have all the right, even in
profound peace, to purchase, keep and use arms of every description.” 1 DAVID
BREWSTER, SECOND AMERICAN EDITION OF THE NEW EDINBURGH ENCYCLOPÆDIA
pt. 2, at 652 (1813) (citing Tench Coxe). Coxe also referred to the “right to own and bear
arms” as one of the constitutional liberties “extended to all the people of the United
States.” Id.
39
NOAH WEBSTER, AN EXAMINATION INTO THE LEADING PRINCIPLES OF THE
FEDERAL CONSTITUTION PROPOSED BY THE LATE CONVENTION HELD AT
PHILADELPHIA (1787) reprinted in PAMPHLETS ON THE CONSTITUTION OF THE UNITED
STATES 56 (Paul Ford ed., 1888).
40
Id.
41
From 1776 to 1783, Patterson was the Attorney General of the then-colony of
New Jersey. After the revolution, he represented New Jersey in the Constitutional
Convention, where he proposed the “New Jersey Plan.” While the plan was rejected, it
helped precipitate the Connecticut Compromise that gave us our bicameral legislature.
He then served as one of New Jersey’s first two Senators before becoming resigning from
the Senate so that he could serve as Governor of New Jersey, a job he retained from 1790
until President Washington appointed him to the Supreme Court in 1793. Richard P.
McCormick, Political Essays of William Patterson, 18 J. RUTGERS U. LIBR. 38, 38 (1955); see
also Who Was William Patterson?, WILLIAM PATTERSON UNIV.,
www.wpunj.edu/about-us/history/williampaterson_bio.html (last accessed
Nov. 22, 2023).
42
McCormick, supra note 41, at 41.
43
David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV.
1359, 1373 (1998) (citing ST. GEORGE TUCKER, THE POEMS OF HENRY ST. GEORGE
TUCKER OF WILLIAMSON, VIRGINIA 1752-1827 5 (William S. Prince ed., 1977)).
100 WYOMING LAW REVIEW Vol. 24
lawyers on general common law.
44
Tucker explained the Second
Amendment
may be considered as the true palladium of liberty . . . in
most governments it has been the study of rulers to
confine this right within the narrowest limits possible.
Whenever standing armies are kept up, and the right of the
people to keep and bear arms is, under any colour or
pretext whatsoever, prohibited, liberty, if not already
annihilated, is on the brink of destruction.
45
While he wrote just after the founding era, Joseph Story, who served
as an associate justice of the Supreme Court from 1812 to 1845, cautioned
that “[o]ne of the ordinary modes, by which tyrants accomplish their
purposes without resistance, is, by disarming the people, and making it an
offence to keep arms.”
46
Those quotes represent just a handful of examples. Covering the many
founding-era Americans who spoke on the dangers of tyranny and the
merits of an armed populace would take an entire book.
47
Yet the examples
presented should be enough to make clear the founding generation of
Americans were deeply concerned with the prospect of tyranny, and the
Second Amendment was, at least in part, a response to those concerns.
The Supreme Court summarized when it came to founding era views,
“when the able-bodied men of a nation are trained in arms and organized,
they are better able to resist tyranny.”
48
The founders and their
contemporaries would thus consider it utterly bizarre that a state
44
Id. at 1372.
45
1 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES: WITH NOTES OF
REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF
THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA, pt. 1, at 300 (1803).
Tucker’s adoptive son, Henry St. George Tucker, would share these views as well. To
him, the right of bearing arms is “among [the] most valuable privileges, since it furnishes
the means of resisting, as a freeman ought, the inroads of usurpation.” See Kopel, supra
note 46, at 1400 (citing David Cobin & Paul Finkelman, Introduction to 1 HENRY ST.
GEORGE TUCKER, COMMENTARIES ON THE LAW OF VIRGINIA, 42–43 (3d ed. 1846)).
46
JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE
UNITED STATES 264 (1842).
47
For more on the founding era history of the Second Amendment, see generally
STEPHEN P. HALBROOK, THE FOUNDERS’ SECOND AMENDMENT: ORIGINS OF THE
RIGHT TO BEAR ARMS (2008).
48
Heller, 554 U.S. at 598.
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 101
government believes that the Second Amendment does not protect the
types of common firearms most useful for that purpose.
49
IV. LATER 19TH CENTURY COMMENTARY CONFIRMS THE “ARMS
OF MODERN WARFARE” ARE PROTECTED BY THE SECOND
AMENDMENT
Given the protective purpose of the Second Amendment, excluding
the right to bear so-called modern “weapons of war” makes no historical
sense, particularly in a country where there is a long tradition of widespread
lawful ownership of such arms.
50
The American tradition of permissive
ownership perpetuates a need for modern ownership because citizens
must be able to effectively protect themselves.
Arms analogous to the modern-day AR-15 and similar rifles certainly
existed in the 19th century. Around the time of the Civil War, new
technologies yielded mass-produced rifles that could be fed self-contained
metallic cartridges from a magazine.
51
Using a lever action, arms like the
Henry repeater allowed users to fire as fast as they could operate the lever
and pull the trigger—a rate of 15 rounds in 10.8 seconds for the Henry.
52
The Henry repeater was obviously a dramatic technological leap over
the single-shot firearms that came before. By the end of the Civil War,
repeating, cartridge-fed firearms were ubiquitous, yet never regulated or
banned. Many of the most popular rifle models had magazines that held
more than ten or fifteen rounds, while revolvers gave Americans five or
49
While some may argue that the founders may have thought differently had they
known about the capabilities of modern firearms, such an argument assumes that the
founders could not envision technological advancement in firearms. In fact, not only
could they envision such advancement, but they also almost purchased repeating arms.
Joseph Belton invented the Belton flintlock musket some time prior to 1777, which could
fire eight rounds before reloading. The Continental Congress commissioned Belton to
build or modify 100 muskets for the military on May 3, 1777, but the order was cancelled
on May 15, when Congress received Belton’s bid and considered it far too expensive. U.S.
CONT’L CONG., JOURNAL OF THE CONTINENTAL CONGRESS (1777), reprinted in
JOURNALS OF THE CONTINENTAL CONGRESS, 1774–1789 V7 324, 361 (Worthington
Chancy Ford ed., 1907).
50
Staples v. United States, 511 U.S. 600, 610 (1994) (referring to the AR-15
semiautomatic rifle in the context of discussing the “long tradition of widespread lawful
gun ownership” in America.); see also United States v. Williams, 872 F.2d 773, 776–77 (6th
Cir. 1989) (holding that because magazine-fed semiautomatics like the AKS rifle are
“quite prevalent in today’s society” and often look identical to automatic versions, “the
government was required to prove defendants’ knowledge of the weapon’s automatic
quality”).
51
David B. Kopel, The History of Firearms Magazines and Magazine Prohibitions, 78
ALB. L. REV. 849, 854–55 (2015).
52
NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT
437 (3d ed. 2018).
102 WYOMING LAW REVIEW Vol. 24
six rounds in a compact package. These firearms were therefore
exponentially more capable than the single-shot flintlock rifles and pistols
the founding generation had used. Yet despite this tremendous jump in
individual firepower, no state outright banned lever-action rifles or
revolvers.
53
Undoubtedly, the fact that the most clearly analogous firearms to
modern rifles went almost entirely unregulated in the 19th century is a
major problem for “assault weapon” bans under Bruen.
54
That is why states
like California compare their contemporary rifle bans to 19th-century
restrictions pertaining to Bowie knives and small pistols.
55
Unlike the
repeating rifles of the era, these weapons were regulated in some limited
ways, a fact hostile courts have relied on to uphold rifle bans.
56
One district
53
See Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023 WL 6180472, at *24
(S.D. Cal. Sept. 22, 2023) (“Though it is the State’s burden, even after having been offered
plenty of opportunity to do so, the State has not identified any law, anywhere, at any time,
between 1791 and 1868 that prohibited simple possession of a gun or its magazine or any
container of ammunition (unless the possessor was an African-American or a slave or a
mulatto).”).
54
Despite the massive advances over the single-shot firearms that came before,
repeating arms were only regulated by one state. And even then, it was not a ban - just a
licensing requirement that came at the end of the 19th century: “The closest historic
analogue to twenty-first century bans on semiautomatic rifles is an 1893 Florida statute
that required owners of Winchesters and other repeating rifles to apply for a license from
the board of county commissioners.” David B. Kopel & Joseph G.S. Greenlee, The History
of Bans on Types of Arms Before 1900, 50 J. LEGIS., 82–83 (forthcoming 2024), (available at
papers.ssrn.com/sol3/papers.cfm?abstract_id=4393197) [https://perma.cc/UUP5-
Q6M2]. What’s more, the history makes clear the law was written for racist reasons, as
Black Americans were using things like Winchester rifles “to drive off lynch mobs, such
as in famous 1892 incidents in Paducah, Kentucky and Jacksonville, Florida.” Id. at 86. A
Florida state supreme court judge who had previously served in the legislature confirmed
its racist intentions: “I know something of the history of this legislation. The original Act
of 1893 was passed when there was a great influx of negro laborers in this State drawn
here for the purpose of working in turpentine and lumber camps. The same condition
existed when the Act was amended in 1901 and the Act was passed for the purpose of
disarming the negro laborers and to thereby reduce the unlawful homicides that were
prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely
settled areas a better feeling of security. The statute was never intended to be applied to
the white population and in practice has never been so applied.” Watson v. Stone, 4 So.2d
700, 703 (1941) (Buford, J., concurring). Regardless of the reasoning for the adoption of
the Florida law, it is the only one of its kind. Such a lone outlier does not constitute a
historical tradition of firearm regulation. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142
S. Ct. 2111, 2153 (2022).
55
See Defendant’s Memorandum of Points and Authorities in Support of Motion
for Summary Judgment at 25, Rupp v. Bonta, No. 8:17-cv-00746-JLS-JDE (C.D. Cal. May
26, 2023), ECF No. 149-1.
56
See, e.g., Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec.,
2023 WL 2655150 at *12 (D. Del. Mar. 27, 2023); Herrera v. Raoul, No. 23-CV-532, 2023
WL 3074799 (N.D. Ill. Apr. 25, 2023), aff’d sub nom. Bevis v. City of Naperville, No. 23-
1353, 2023 WL 7273709 (7th Cir. Nov. 3, 2023) (emphasis added).
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 103
court in the Northern District of Illinois stated that laws governed the
most dangerous weapons of the era, including Bowie knives.
57
“At the start
of the twentieth century, every state except one regulated Bowie knives . .
. .”
58
The trouble with the suggestion that common rifle bans are like
historical Bowie knife restrictions is that those who lived in the 19th
century would have rejected that comparison.
59
Americans from this era
were not silent, and indeed wrote quite a bit about this topic. While there
was some disagreement at the time about the scope of the individual right
the Second Amendment protects, the available commentary largely agrees
the “arms of modern warfare” were the most protected type of weapon of
all.
That does not mean 19th-century Americans felt there was no room
for some gun control;
60
many commentators distinguished the possession
or carrying of military-style firearms from the carrying of concealed
weapons like Bowie knives and small pistols, the latter of which they felt
could be restricted without offending the Second Amendment. As one
example, the Supreme Court of Georgia ruled that while an 1837 law did
not err in banning concealed carry of certain weapons, it went too far in
barring open carry because the Second Amendment protects
57
Bevis v. City of Naperville, No. 22-C-4775, 2023 U.S. Dist. LEXIS 27308, at
*26 (N.D. Ill. Feb. 17, 2023). That court did not explain how bowie knives were the “most
dangerous” weapons of the era, see id., a ridiculous notion considering revolvers (and later,
repeating rifles) proliferated around the same time.
58
Id.
59
The Supreme Court has rejected this comparison as well. See Kopel & Greenlee,
supra note 54, at 191 (“Bans on modern rifles and magazines cannot be rescued by
diverting attention away from the legal history of firearms law, and instead pointing to
laws about other arms. Dozens of state and territorial legislatures enacted laws about
Bowie knives, as well as dirks and daggers. Prohibitory laws for these blades are fewer
than the number of bans on carrying handguns, and Bruen found the handgun laws
insufficient to establish a tradition constricting the Second Amendment.”); Bruen, 142 S.
Ct. at 2154 (“the bare existence of these localized restrictions cannot overcome the
overwhelming evidence of an otherwise enduring American tradition permitting public
carry.”).
60
Where exactly to draw the line on the modern-day limits of firearms protected
by the Second Amendment is an article for another day. That said, one court has recently
ruled that “commonly owned weapons that are useful for war and are reasonably related
to militia use are also fully protected, so long as they are not useful solely for military purposes.”
Duncan v. Bonta, No. 17-CV-1017-BEN (JLB), 2023 WL 6180472, at *17 (S.D. Cal. Sept.
22, 2023) (emphasis added). This would suggest that common rifles are protected because
they are useful for self-defense, sport, and other lawful purposes, and their being useful
in military combat as well does not change that. See id. However, weaponry which is not
commonly owned by civilian and has no uses besides military ones (e.g., explosives,
missiles, and the like) is unprotected under this interpretation. See id.
104 WYOMING LAW REVIEW Vol. 24
[t]he right of the whole people, old and young, men,
women and boys, and not militia only, to keep and bear
arms of every description, and not such merely as are used
by the militia, shall not be infringed, curtailed, or broken in
upon, in the smallest degree; and all this for the important
end to be attained: the rearing up and qualifying a well-
regulated militia, so vitally necessary to the security of a
free State.
61
Many commentators of the 19th century shared this view. Henry
Campbell Black, most famous for being the original author of Black’s Law
Dictionary, wrote “arms” here, meant
those of a soldier. They do not include dirks, bowie knives,
and such other weapons as are used in brawls, fights, and
riots. The citizen has at all times the right to keep arms of
modern warfare . . . . This right is not infringed by a state law
prohibiting the carrying of concealed deadly weapons. . . .
But a law which should prohibit the wearing of military
weapons openly upon the person, would be
unconstitutional.
62
Black would think it nonsensical that a modern court would analogize
Bowie knife carry restrictions to complete possession bans on modern rifles,
which he believed were the most protected arms of all.
Joel Bishop, writing in 1868, explained “the [Second Amendment]
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 brawls and
fights between maddened individuals . . . .”
63
61
Nunn v. State, 1 Ga. 243, 251 (1846); accord Aymette v. State, 21 Tenn. (2 Hum.)
154, 157 (1840) (“The grievances to which they were thus forced to submit were for the
most part of a public character, and could have been redressed only by the people rising
up for their common defence, to vindicate their rights.”).
62
HENRY CAMPBELL BLACK, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW
403–04 (1895) (emphasis added). The modern Supreme Court has rejected the contention
that only military arms are protected repeatedly. In striking down a ban on stun guns, it
explained it “has held that ‘the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were not in existence at the
time of the founding,’” Caetano v. Massachusetts, 577 U.S. 411, 411 (2016) (quoting
District of Columbia v. Heller, 554 U.S. 570, 582 (2008)). Regardless of these modern
debates on the scope of the Second Amendment, the “arms of modern warfare” were
considered core to the Second Amendment in the 19th century.
63
2 JOEL BISHOP, COMMENTARIES ON THE CRIMINAL LAW 75 (1868) (emphasis
added).
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 105
John Norton Pomeroy agreed, writing “a militia would be useless
unless the citizens were enabled to exercise themselves in the use of warlike
weapons.”
64
The Second Amendment, according to Pomeroy, was meant to
secure to the people “the ability to oppose themselves in military force
against the usurpations of government, as well as against enemies from
without.”
65
Yet, like several of his contemporaries, Pomeroy was quick to
add “this constitutional inhibition is certainly not violated by laws
forbidding persons to carry dangerous or concealed weapons.”
66
Benjamin Vaughan Abbott, a lawyer who served as the secretary of the
New York Code Commission (which drew up the state’s penal code in
1864), explained the Second Amendment “does not extend to carrying
bowie knives, fire-arms . . . concealed upon the person; or prohibit
legislative regulations of the manner in which arms may be carried. . . . The
constitutional provision means such weapons as are used for the purposes of
war.”
67
Anna Laurens Dawes, the daughter of Massachusetts Senator Henry
Laurens Dawes, added that while laws prohibiting the carrying of
concealed weapons were acceptable, “[a] law prohibiting the use of
weapons would take away all possibility of resisting any injustice, and this
method of depriving freemen of their rights was by no means without
precedent in English history.”
68
Several more commentators of the era echoed their fear of a
deprivation of rights and freedom.
69
Other constitutional commentators
64
JOHN NORTON POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW
OF THE UNITED STATES 152 (1868) (emphasis added).
65
Id.
66
Id. at 152–53.
67
1 BENJAMIN VAUGHAN ABBOTT, DICTIONARY OF TERMS AND PHRASES USED
IN AMERICAN OR ENGLISH JURISPRUDENCE 83 (1879) (emphasis added).
68
ANNA LAURENS DAWES, HOW WE ARE GOVERNED: AN EXPLANATION OF
THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES. A BOOK FOR YOUNG
PEOPLE 313 (1885).
69
See, e.g., HERMANN EDUARD VON HOLST, THE CONSTITUTIONAL LAW OF THE
UNITED STATES OF AMERICA 230 (Alfred Bishop Mason trans., 1887) (“It has therefore
been argued that the [The Second Amendment] refers only to arms necessary or suitable
for the equipment of militia; although it must not be inferred from this that the right is
restricted to those citizens who belong to the militia. . . . It is, however, generally admitted
that the secret carrying of arms can be prohibited.”); 2 CHARLES CHADMAN,
CONSTITUTIONAL LAW FEDERAL AND STATE: BEING A CLEAR AND COMPLETE
ANALYSIS OF THE CONSTITUTION, TOGETHER WITH A SUMMARY OF THE LEADING
DECISIONS AND BASIC PRINCIPLES WHICH GO TO MAKE UP THE FUNDAMENTAL LAW
OF THE STATE AND NATION 159 (1899) (“The right of the people to bear arms was a
practical recognition of their right to demand with force that the government as
constituted observe Constitutional restraints. The right is general and extends to all
106 WYOMING LAW REVIEW Vol. 24
were silent on the carry of concealable weapons but did see the Second
Amendment as protecting a right that existed so the people could
effectively resist tyranny, and explained that despotic governments did not
allow their citizens to be armed. The notion of overthrowing despotic
governments was so common it could even be found in schoolbooks of
the mid-19th century, such as one in 1848 instructing that the Second
Amendment “is so plainly proper that its propriety need not be argued. It
will be sufficient to contrast it with the practice of despotic governments,
who, while they maintain large standing armies, at all times subservient to
their pleasure, will not allow arms in the hands of the common people.”
70
Another commentator, who published in 1852, similarly stated
“[s]ome tyrannical governments resort to disarming the people, and
making it an offence to keep arms, or participate in military parades. In all
countries where despots rule with standing armies, the people are not
allowed to keep guns and other warlike weapons.”
71
In 1855, Furman Sheppard (who would later serve as District Attorney
of Philadelphia) shared the same sentiments: “If citizens are allowed to
keep and bear arms, it will be likely to operate as a check upon their rulers,
and restrain them from acts of tyranny and usurpation.”
72
Several other
textbooks of the 19th century would say the same.
73
citizens, whether enrolled in the militia or not. But it is held that it does not authorize the
carrying of weapons that are concealed . . . .”); LAURA DONNAN, OUR GOVERNMENTS:
BRIEF TALKS TO THE AMERICAN YOUTH ON OUR GOVERNMENTS, GENERAL AND
LOCAL 238 (1900) (“The Second Amendment] does not mean that only organized state
militia may keep and bear arms, but it means that every citizen may do so. . . . However,
it does not mean that men are allowed to carry concealed weapons.”); HORACE JEWELL
FENTON, CONSTITUTIONAL LAW: AN INTRODUCTORY TREATISE DESIGNED FOR USE
IN THE UNITED STATES NAVAL ACADEMY, AND IN OTHER SCHOOLS WHERE THE
PRINCIPLES OF THE CONSTITUTION ARE STUDIED 254–55 (“The purpose of this
amendment evidently is twofold: first, to check the government from arbitrarily disarming
the people and reducing them to the condition of serfs; secondly, to allow men so to
familiarize themselves with weapons as to keep the nation ever ready for emergencies. . .
. [but] statutes forbidding private citizens to carry concealed weapons are constitutional.”).
70
DANIEL PARKER, THE CONSTITUTIONAL INSTRUCTOR: FOR THE USE OF
SCHOOLS 155 (1848).
71
BURLEIGH, supra note 34, at 212.
72
FURMAN SHEPPARD, THE CONSTITUTIONAL TEXT-BOOK: A PRACTICAL AND
FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES, AND OF
PORTIONS OF THE PUBLIC AND ADMINISTRATIVE LAW OF THE FEDERAL GOVERNMENT:
DESIGNED CHIEFLY FOR THE USE OF SCHOOLS, ACADEMIES, AND COLLEGES 247
(1855).
73
HENRY FLANDERS, AN EXPOSITION OF THE CONSTITUTION OF THE UNITED
STATES 258 (1860) (“With arms in their hands, the people will not be likely to permit the
overthrow of their institutions by the unscrupulous ambition of a civil magistrate or
military chieftain. The very fact of their being armed will serve as a check to any arbitrary
or forcible invasion of their constitutional rights.”); EDWARD D. MANSFIELD, THE
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 107
Ideas of the inalienable right to bear arms were repeated by members
of Congress as well. Abolitionist Representative Edward Wade said in a
speech given in the House of Representatives that the “right to ‘keep and
bear arms,’ is thus guarantied, in order that if the liberties of the people
should be assailed, the means for their defence shall be in their own
hands.”
74
Similarly, Senator Charles Sumner’s speech The Crime Against
Kansas bristled at the mere suggestion that citizens in Kansas who opposed
slavery should be disarmed of their Sharps rifles by the proslavery
government: “Never was this efficient weapon more needed in just self
defence, than now in Kansas, and at least one article in our National
Constitution must be blotted out, before the complete right to it can in any
way be impeached.”
75
Thomas M. Cooley, who served on the Michigan Supreme Court for
two decades, wrote the Second Amendment “was meant to be a strong
moral check against the usurpation and arbitrary powers of rulers, and as
necessary and efficient means of regaining rights when temporarily
overturned by usurpation.”
76
In case there was any doubt, Cooley added
the meaning of the Second Amendment “undoubtedly is, that the people,
from whom the militia must be taken, shall have the right to keep and bear
arms, and they need no permission or regulation of law for the purpose.”
77
POLITICAL MANUAL: BEING A COMPLETE VIEW OF THE THEORY AND PRACTICE OF THE
GENERAL AND STATE GOVERNMENTS OF THE UNITED STATES, ADAPTED TO THE USE
OF COLLEGES, ACADEMIES, AND SCHOOLS 205 (1861) (“It is scarcely necessary to say,
that the right of the people thus to bear arms is the foundation of their liberties; for,
without it, they would be without any power of resistance against the existing
government.”); GEORGE W. PASCHAL, THE CONSTITUTION OF THE UNITED STATES
DEFINED AND CAREFULLY ANNOTATED 256 (1868) (“[The Second Amendment] is
based on the idea, that the people cannot be oppressed or enslaved, who are not first
disarmed.”); WILLIAM C. ROBINSON, NOTES ON ELEMENTARY LAW 103 (1875) (“The
constitution of the United States secures the right to keep and bear arms, such as are used
for purposes of war, in defence of the citizens or the state.”); ANDREW W. YOUNG &
SALTER S. CLARK, THE GOVERNMENT CLASS BOOK: A YOUTH’S MANUAL OF
INSTRUCTION IN THE PRINCIPLES OF CONSTITUTIONAL GOVERNMENT AND LAW 185
(1880) (“Right to Keep Arms—This means the right of every one to own and use, in a
peaceful manner, warlike weapons . . . . It was thought that without it, ambitious men
might, by the aid of the regular army, overthrow the liberties of the people and usurp the
powers of government.”)
74
Edward Wade, U.S. Representative of Ohio, Speech in the House of
Representatives (Aug. 2, 1856), digitalcommons.cedarville.edu/cgi/
viewcontent.cgi?article=1025&context=pamphlet_collection.
75
See Kopel, supra note 43, at 1446–47 (citing CHARLES SUMNER, THE KANSAS
QUESTION: SENATOR SUMNER’S SPEECH, REVIEWING THE ACTION OF THE FEDERAL
ADMINISTRATION UPON THE SUBJECT OF SLAVERY IN KANSAS 22–23 (1856)).
76
THOMAS M. COOLEY & ANDREW C. MCLAUGHLIN, THE GENERAL PRINCIPLES
OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 298 (3d ed. 1898).
77
Id.
108 WYOMING LAW REVIEW Vol. 24
These commentaries assert the prevailing combat firearms of the day
cannot be banned because they are exactly what would best serve the goal
of defeating a tyrant or foreign invader. In their era, effective firearms were
arms like Winchester rifles, Colt revolvers, and shotguns. Today, it would
be the exact kind of firearms usually affected by “assault weapon” bans. If
Americans who actually lived in the 19th century would not have considered
their laws restricting the carry of Bowie knives and other concealed
weapons analogous to a possession ban on common rifles, then neither
can we today.
More similar excerpts exist, but the point should be made by now:
Americans of the 19th century spoke clearly on this topic, and the guns
some deride today as “weapons of war” are what the Second Amendment
protects most of all.
78
Notice how matter-of-fact each of these entries are
written; these are not people advancing what they see as a controversial
argument, they are instead stating something they perceive as obvious and
undisputed.
79
Hence why so many of these excerpts are from school
textbooks of the day.
80
Given Bruen’s emphasis on historical tradition as
determinative in the Second Amendment analysis, their commentary at a
78
The Bevis district court (which upheld the Illinois Assault Weapon Ban in part
by analogizing to bowie knife carry laws) should have understood all of this, considering
it cited to a Tennessee Supreme Court decision of the 19th century which explained that
“[Legislatures] have a right to prohibit the wearing or keeping weapons dangerous to the
peace and safety of the citizens, and which are not usual in civilized warfare, or would not
contribute to the common defence [sic].” Bevis v. City of Naperville, No. 22 C 4775, 2023
U.S. Dist. LEXIS 27308, at *27 (N.D. Ill. Feb. 17, 2023) (citing Aymette v. State, 21 Tenn.
154, 159 (1840)). Another Tennessee Supreme Court case from the era drew this
distinction even more clearly in ruling on a law that completely prohibited the carry of a
dirk, sword cane, Spanish stiletto, belt or pocket pistol or revolver. The court mostly
upheld the law, but found that as to revolvers, the prohibition under the Act was too
broad and contradicted the constitutional right to bear arms. Andrews v. State, 50 Tenn.
(3 Heisk.) 165, 170–71 (1871). “In a word, as we have said, the statute amounts to a
prohibition to keep and use such weapon for any and all purposes. It therefore, in this
respect, violates the constitutional right to keep arms, and the incidental right to use them
in the ordinary mode of using such arms and is inoperative.” Id. at 187.
79
That some people today may disagree is not relevant, barring a constitutional
amendment. The Supreme Court did not consider twentieth century evidence whatsoever
in ruling on Bruen. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2154 n.28
(2022) (“We will not address any of the 20th-century historical evidence brought to bear
by respondents or their amici. As with their late-19th-century evidence, the 20th-century
evidence presented by respondents and their amici does not provide insight into the
meaning of the Second Amendment when it contradicts earlier evidence.”).
80
Some critics may argue that these quotes, despite the large number of them
presented here, are cherrypicked. While we cannot prove a negative to show the opposite
view did not exist, the fact that no state banned repeating rifles or revolvers (even though
they dramatically increased the firepower a single person was capable of compared to the
single-shot firearms they supplanted) is further evidence that this was the prevailing view
of the time.
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 109
time when firearms technology was advancing rapidly is critical evidence
that modern bans on common rifles are unconstitutional.
81
V. ABOLITIONISTS AND FREE BLACK AMERICANS PROVIDE AN
EXCELLENT ILLUSTRATION OF SUCH “ARMS OF MODERN
WARFARE” BEING USED TO RESIST OPPRESSION
The Second Amendment being used as a tool to resist tyranny and
oppression is not an abstract idea that has never been tested. Thankfully,
it has not yet been needed on a national level, but it was much discussed
among abolitionists and critical to the early civil rights movement.
For instance, Lysander Spooner, a famous American political
philosopher and ardent abolitionist, wrote the Second Amendment
“obviously recognize[s] the natural right of all men ‘to keep and bear arms’
for their personal defence; and prohibit[s] both Congress and the State
governments from infringing the right of ‘the people’—that is, of any of
the people—to do so.”
82
Spooner’s point was that slaves were men with
natural rights, and the natural right to keep and bear arms is “palpably
inconsistent with the idea of his being a slave.”
83
The idea of slaves having a right to bear arms was obviously one the
pro-slavery side deeply opposed, and this sentiment made its way into the
infamous Dred Scott decision.
84
There, Chief Justice Taney explained if
Black Americans were deemed to be people and not mere property, they
would be entitled to a whole series of rights, including the individual right
to keep and bear arms. If Blacks were citizens, Taney wrote, they would
have the right “to keep and carry arms wherever they went.”
85
“Thus, even
Chief Justice Taney recognized (albeit unenthusiastically in the case of
blacks) that public carry was a component of the right to keep and bear
arms—a right free blacks were often denied in antebellum America.”
86
Following the Civil War, Horace Greeley, the famous newspaper editor
and firebrand abolitionist, explained in a speech:
81
See Bruen, 142 S. Ct. at 2131 (“[W]hen a challenged regulation addresses a general
societal problem that has persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence that the challenged
regulation is inconsistent with the Second Amendment.”).
82
LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 98 (1856).
83
Id.
84
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded
by constitutional amendment, U.S. CONST. amend. XIV.
85
Id. at 417 (emphasis added).
86
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2154 n.28 (2022).
(citing Dred Scott, 60 U.S. 393).
110 WYOMING LAW REVIEW Vol. 24
[T]he moment slavery had passed away, all possible
pretexts for disarming Southern blacks passed away with
it. Our Federal Constitution gives the right to the people
everywhere to keep and bear arms; and every law whereby
any State legislature undertakes to contravene this, being in
conflict with the Constitution of the United States, had no
longer any legal force.
87
Yet the Jim Crow South would reject what Greeley saw as the obvious
truth. In the Postbellum period, Black Americans were victimized both by
their own state governments as well as by terrorist groups like the Ku Klux
Klan. President Grant himself complained in a letter to Congress that the
Klan’s objectives were, “by force and terror, to prevent all political action
not in accord with the views of the members, to deprive colored citizens
of the right to bear arms . . . and to reduce the colored people to a condition
closely akin to that of slavery.”
88
Because of this fear of now-armed former
slaves,
Black veterans returning home were considered dangerous,
and disarming them was a priority for the white
supremacists of the defeated Confederacy. . . . There is an
ironic similarity between the claims made by southern
whites then and the argument made by gun control
proponents today. Sheriffs and white posses raided black
homes to seize ‘illegal’ guns and declared such seizures
were not infringements of blacks’ Second Amendment
right to possess guns as part of a militia.
89
Frederick Douglass wrote gaining freedom in the South would require
“the ballot-box, the jury-box, and the cartridge-box.”
90
Winchester rifles
were particularly popular among marginalized groups who naturally
wanted the best small arms technology available for their self-defense.
John R. Mitchell, Jr., Vice President of the National Colored Press
Association, encouraged Black people to buy Winchesters to protect their
families from the “‘two-legged animals . . . growling around your home in
the dead of the night.”
91
Similarly, Ida B. Wells, a prominent early leader
in the civil rights movement, wrote in 1892, a “Winchester rifle should
87
JAMES PARTON, THE LIFE OF HORACE GREELEY 535–36 (1869).
88
H.J., 42nd Cong., 2d Sess. 716 (1872).
89
CHARLES E. COBB JR., THIS NONVIOLENT STUFF’LL GET YOU KILLED: HOW
GUNS MADE THE CIVIL RIGHTS MOVEMENT POSSIBLE 30 (2014).
90
Id. at 31.
91
NICHOLAS J. JOHNSON ET AL., FIREARMS LAW AND THE SECOND AMENDMENT
521 (3d ed. 2021) (quoting PAULA J. GIDDINGS, IDA: A SWORD AMONG LIONS 153–54
(2008).
2024 THE HISTORICAL CASE AGAINST ASSAULT WEAPON BANS 111
have a place of honor in every black home, and it should be used for the
protection which the law refuses to give.”
92
The full history of armed resistance to the state-sanctioned white
supremacist terrorism of the 19th century is abundantly documented.
Suffice it to say the “Reconstruction era is full of examples of black people
raising their voices—and brandishing their weapons—to express their
intention to fight for the rights due them as free citizens.”
93
VI. CONCLUSION
The Supreme Court instructs lower courts to look for “distinctly
similar” historical laws to justify modern regulations or, when new societal
concerns or large advances in technology have presented themselves,
historical analogues that are “relevantly similar” to the challenged law.
94
Whichever degree of similarity is required here, laws that ban popular rifles
cannot possibly meet it. Americans of the 18th and 19th centuries made
their voices clear: whatever other regulations on guns they may have found
permissible, they would never have accepted restrictions on the prevailing
rifles of the day.
Self-defense is undoubtedly inherent to the Second Amendment. The
firearms affected by “assault weapon” bans are also undoubtedly useful for
self-defense, which is why millions of Americans own them for that
purpose.
95
But the Second Amendment protects arms used for many
“lawful purposes,”
96
and one of those lawful purposes is the “doomsday
provision” in case our constitutional republic threatens to be toppled by
tyranny, whether foreign or domestic.
97
92
Id. (citing IDA B. WELLS, SOUTHERN HORRORS: LYNCH LAW IN ALL ITS PHASES
(1892) reprinted in IDA B. WELLS, THE LIGHT OF TRUTH: WRITINGS OF AN ANTI-
LYNCHING CRUSADER 84 (Henry Louis Gates, Jr. ed., 2014).
93
COBB, supra note 89, at 31.
94
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2131–32 (2022).
95
Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., No.
1:22-CV-00951-RGA, 2023 WL 2655150, at *14–15 (D. Del. Mar. 27, 2023) (“Gun
owners seek such rifles for a variety of lawful uses, including recreational target shooting,
self-defense, collecting, hunting, competition shooting, and professional use. . . . Taken
together, these data suggest that the banned assault long guns are indeed ‘in common use’
for several lawful purposes, including self-defense.”). A Washington Post survey also
found that AR-15s are owned for a variety of lawful purposes such as self-defense (33%
of respondents), target shooting (15%), recreation (15%), and hunting (12%). Guskin,
Tambe & Gerberg, supra note 3.
96
District of Columbia v. Heller, 554 U.S. 570, 625 (2008).
97
Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir. 2003) (Kozinski, J., dissenting
from denial of rehearing en banc).
112 WYOMING LAW REVIEW Vol. 24
Tyranny is not fought with a pocket pistol. History demands
Americans be allowed to be far better equipped than those who suffered
before us. We too often ignore this clear precedent in favor of a sanitized
and ahistorical modern interpretation of the Second Amendment. The
modern interpretation does the Second Amendment a disservice by
limiting it so profoundly.
With Bruen now demanding we look to history in construing the scope
of the Second Amendment, it is finally time we listened to what Americans
of the past had to say. Their writings make clear that modern bans on the
prevailing small arms of the day constitute laws that they “would never
have accepted.”
98
98
Bruen, 142 S. Ct. at 2133 (quoting Drummond v. Robinson Twp., 9 F.4th 217,
226 (3d Cir. 2021)).