Fordham Urban Law Journal Fordham Urban Law Journal
Volume 51
Number 1 Public Health, History, and the Future
Of Gun Regulation after Bruen
Article 3
2023
Understanding Gun Law History after Bruen: Moving Forward by Understanding Gun Law History after Bruen: Moving Forward by
Looking Back Looking Back
Robert J. Spitzer
Follow this and additional works at: ir.lawnet.fordham.edu/ulj
Recommended Citation Recommended Citation
Robert J. Spitzer, Understanding Gun Law History after Bruen: Moving Forward by Looking Back, 51
Fordham Urb. L.J. 57 (2023).
Available at: ir.lawnet.fordham.edu/ulj/vol51/iss1/3
This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and
History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The
Fordham Law Archive of Scholarship and History. For more information, please contact
[email protected].
57
UNDERSTANDING GUN LAW HISTORY AFTER
BRUEN: MOVING FORWARD BY LOOKING BACK
Robert J. Spitzer*
Introduction ........................................................................................ 58
I. Regulatory History of Fully Automatic and Semi-Automatic
Firearms ....................................................................................... 60
A. State-Level and Nationwide Attempts to Regulate
Automatic and Semi-Automatic Firearms in the Early
Twentieth Century ............................................................ 64
B. State Regulation of Ammunition Feeding Devices .......... 67
C. Lessons from the Regulation of Automatic and Semi-
Automatic Firearms and Ammunition Feeding Devices .. 70
D. The History of Pre-Twentieth Century Firearms
Technologies .................................................................... 72
E. Clarifying Terms and Concepts about Assault Weapons
and LCMs ......................................................................... 84
II. Historical Hardware Restrictions on Knives, Blunt Weapons,
Pistols, and Trap Guns ................................................................. 87
A. Historical Restrictions on the Bowie Knife and Similar
Long-Bladed Knives ......................................................... 88
B. Historical Restrictions on Clubs and Other Blunt Weapons
.......................................................................................... 95
C. Historical Restrictions on Pistol and Gun Carrying ......... 99
D. Historical Restrictions on Trap Guns ............................. 100
III. Recent Developments ................................................................. 102
Conclusion ........................................................................................ 103
APPENDIX A: DANGEROUS WEAPONS RESTRICTIONS
(YEARS OF ENACTMENT) .................................................... 105
APPENDIX B: BOWIE KNIFE LAWS BY TYPE ........................ 110
APPENDIX C: TYPES OF CARRY RESTRICTION LAWS
(YEARS OF ENACTMENT) .................................................... 114
58 FORDHAM URB. L.J. [Vol. LI
INTRODUCTION
The Supreme Court’s 2022 decision in New York State Rifle & Pistol
Ass’n, Inc. v. Bruen fundamentally disrupted the basis and criteria for
judging the constitutionality of contemporary gun laws.
1
Moving beyond
the approach taken by the Court in its 2008 decision of D.C. v. Heller,
2
the
Court for the first time in history expanded the Second Amendment right to
allow citizens to carry a gun in public spaces. Further, it decided that the
government would have to show that a gun regulation “is consistent with the
Nation’s historical tradition of firearm regulation” to uphold its
constitutionality.
3
The Court also said that “a modern-day regulation” need
not be “a dead ringer for historical precursors” for it to be “analogous enough
to pass constitutional muster.”
4
Thus, comparisons between old gun laws
and current ones now play a critical role in determining the constitutionality
of contemporary gun regulations. This new standard has opened the
floodgates of legal challenges to all manner of gun laws
5
and raised collateral
controversy about the logic and wisdom of the Court’s decision.
6
This new legal standard is, for example, applied in challenges to state and
local laws restricting assault weapons and large capacity magazines (LCMs).
The debate over these laws would seem to be a purely contemporary matter,
responding to the modern phenomenon of mass shootings and the
technologies that led to the development and spread of assault weapons.
Indeed, the modern effort to restrict such weapons was sparked in part by a
shooting at an elementary school in Stockton, California in 1989, when a
man, armed with an AK-47 and a handgun, killed five children and wounded
thirty-three others. The assailant fired a total of 105 rounds in about three
minutes from a 75-round magazine and a 30-round magazine, both of which
2023] GUN LAW HISTORY AFTER BRUEN 59
he emptied before killing himself.
7
Later that year, California enacted the
first assault weapons ban in the country. Five years later, Congress enacted
a limited ten-year assault weapons ban that also included a restriction on
ammunition magazines holding more than 10 rounds.
8
As of this writing, ten states plus the District of Columbia have enacted
similar bans, as have various localities around the country.
9
These
jurisdictions represent approximately 109 million people, or approximately
32.7% of the U.S. population.
10
14 states plus the District of Columbia
restrict LCMs.
11
These jurisdictions represent more than 115 million
individuals, or approximately 34.5% of the U.S. population.
12
These recent efforts to restrict assault weapons and LCMs are simply the
latest chapter in a centuries-long effort to promote public safety, protect the
public from harm, and dampen weapons-related criminality. The pattern of
criminal violence and concerns for public safety leading to weapons
restrictions is not new; in fact, it can be traced back to the Nation’s
60 FORDHAM URB. L.J. [Vol. LI
beginnings. While the particular weapons technologies and public safety
threats have changed over time, governmental responses to the dangers
posed by certain weapons have remained constant. Current restrictions on
assault weapons and detachable ammunition magazines are part of a pattern
in America’s history of legislative restrictions on particular weapons
stretching back centuries.
In this Article, I use the current challenges to assault weapons and large
capacity magazine limitation laws as the pivot point to examine a series of
historical cases of weapons regulations, all of which demonstrate that the
historic enactment of government regulations and restrictions on various
dangerous weapons occurred throughout America’s political development
when viable weapons technologies emerged, matured, entered the civil
society, and posed a threat to public safety and good order. Each of these
steps was a necessary predicate to the next. Part I of this Article first
examines state restrictions on fully automatic and semiautomatic firearms in
the early twentieth century, including surprisingly extensive regulation of
ammunition feeding devices during the same period. It then turns to an
examination of pre-twentieth century firearms technologies, incorporating
an array of experimental multi-shot weapons dating back several hundred
years. Part II examines historical restrictions on fighting knives (most
notably the Bowie knife), blunt weapons and clubs, pistols, and trap guns.
Part III returns to recent developments in the assault weapons debate.
I. R
EGULATORY HISTORY OF FULLY AUTOMATIC AND SEMI-
A
UTOMATIC FIREARMS
A central question pertaining to the regulation of modern semi-automatic
assault-type weapons and large capacity magazines is the matter of when
feasible multi-shot technologies emerged, and how, or whether, the
government responded with regulations. While feasible weapons capable of
firing rounds in rapid succession can be traced to guns of the late nineteenth
and early twentieth centuries, like the hand-cranked, multi-barreled Gatling
gun which could fire up to 200 rounds per minute,
13
it and its successors
were military weapons designed to be used in combat and fired from a tripod
or similar supporting apparatus, owing to the Gatling gun’s size and weight.
Strictly speaking, guns like the Gatling gun were not fully automatic as they
did not fire a continuous stream of bullets while depressing a gun trigger.
2023] GUN LAW HISTORY AFTER BRUEN 61
The development of a fully automatic machine gun for battlefield use,
capable of firing all its rounds from a single barrel and with a single trigger
pull, came to fruition during World War I. These tripod-mounted military
guns, like the Maxim, operated to devastating effect on the battlefield. They
initially fired 200–400 rounds per minute but later 400–600 rounds per
minute from a gun weighing roughly 100 pounds.
14
These were, of course,
purely military weapons that played no role in civilian life or society.
Out of World War I came a practical, lighter-weight, reliable, hand-held,
fully automatic weapon: the Thompson submachine gun, widely known as
the Tommy gun. Although it was developed for use in World War I as
“purely a military weapon,”
15
it came too late in the war to have much effect.
Its inventor, John Thompson, patented his .45 caliber gun in 1920.
16
The
Tommy gun was initially unregulated after World War I and was made
available for civilian purchase to try to boost anemic sales, typically with
either a 20–30 round stick magazine or a 100-round drum magazine
(although the Tommy gun could also fire in semi-automatic fashion).
17
The
early models of the Tommy gun could fire “an astounding 1,500 rounds per
minute. A Tommy gun could go through a 100-round drum magazine in four
seconds. Later versions fired 600 to 700 rounds per minute.”
18
The U.S.
military showed little interest in acquiring the weapon, as the military largely
demobilized and contracted sharply in size after the war.
19
It was only at
this point — in the early 1920s — that such hand-held weapons operated
reliably, were made available to civilians, and began to circulate in society.
20
By 1925, Thompson’s marketing company, Auto-Ordnance, had sold only
about 3,000 of the 15,000 it had manufactured up to this point, including to
police forces and individuals.
21
This pattern of anemic sales typified the
62 FORDHAM URB. L.J. [Vol. LI
gun’s commercial trajectory: “Despite its initial publicity and later notoriety,
the Thompson submachine gun was a failure from the start.”
22
This was
especially true for police forces, to whom Thompson and his company
marketed the gun aggressively, even when criminals found the gun
appealing. “As a criminal’s weapon, the Tommygun was an unqualified
success. As a police weapon, it was such a flop that many law-enforcement
officials wished sincerely that it had never come off the drawing board.”
23
For example, after the notorious 1929 St. Valentine’s Day massacre when
seven gangsters in Chicago were gunned down by rival gangsters dressed as
policemen, a representative of Auto-Ordnance visited Chicago police captain
John Stege to offer assistance. Captain Stege “practically ran him out of the
office . . . . It was Stege’s opinion that not even the police should be armed
with machine guns,” an opinion shared “by many other lawmen in the
country.”
24
Another police chief explained: “It is not possible for a police
officer to open a machine gun up on a crowded street . . . because you are
going to kill possibly ten innocent people to one criminal.”
25
Poor military
and law enforcement sales forced the company to “peddle the new gun in
peacetime” by trying “to think up something else it might be good for.” The
company’s conclusion was to market the gun as “good for anything.”
26
After 1926, sales began to rise, primarily because of newfound interest by
the American military, which started to use the weapon in foreign military
operations especially in Nicaragua, and by the Belgian military.
27
In 1930,
the Auto-Ordnance company closed its sales department because of
escalating concerns about its weapons falling into criminal hands, and the
attendant bad publicity. All commercial sales were discontinued except to
the military and law enforcement.
28
The result was that by 1932, sales had
fallen to fewer than ten per month. Through 1938, the company reported
total sales of 10,300. The company’s revival came thanks to World War II.
29
Before the early 1920s, these fully automatic weapons were unregulated
for the obvious reason that they did not exist or were not circulating widely
in society. When they did begin to circulate, however, their uniquely
sold by 1925. HELMER, supra note 15, at 74. Helmer says that “sales declined steadily” after
1921. Id. at 130.
22. H
ELMER, supra note 15, at 129.
23. Id. at 126–28. Helmer quotes numerous police officials denouncing the weapon as
useless for the police. Id.
24. Id. at 126.
25. Id. at 126–28. The gun’s rare actual use confirmed this fear. In an attack on John
Dillinger, for example, FBI agents “mistakenly shot three innocent customers.” Id.
26. Id. at 75.
27. Id. at 130–45.
28. Id. at 143–44.
29. Id. at 167–79.
2023] GUN LAW HISTORY AFTER BRUEN 63
destructive capabilities rapidly became apparent, especially to the emergent
Prohibition-fueled gangster organizations of the 1920s. Another automatic
weapon developed for World War I was the Browning Automatic Rifle
(BAR). It fired a .30-06 caliber round, could receive a 20-round box
magazine, and could fire up to 650 rounds per minute. The BAR first
appeared on the battlefield in 1918.
30
It was “a heavy machine rifle weighing
nearly twenty pounds with bipod and loaded magazine . . . .”
31
It, too, made
its way into civilian life and found favor among criminals and gangsters in
the 1920s and early 1930s.
32
Guns like the Tommy gun and the BAR were
used relatively infrequently by criminals, but when they were used, they
exacted a devastating toll and garnered extensive national attention, such as
their use in the infamous St. Valentine’s Day massacre.
33
Notable use of the
Tommy gun by criminals began to occur and receive attention in the news
about 1925.
34
News reports and exposés, juxtaposed with lurid and sensational accounts
of Tommy gun criminality, built pressure on the states to enact anti-machine
gun laws and put pressure on Congress to act. A long-stalled bill in Congress
to restrict the interstate shipment of guns received renewed interest and
support in 1926, eventually leading to congressional enactment of the
Mailing of Firearms Act of 1927,
35
a limited measure that failed to restrict
interstate handgun shipment because it did not affect non-Postal Service
shipments.
From 1926 on, news stories were filled with the kind of sensational
gangster-related stories that led to the Tommy gun being labeled the weapon
that “made the Twenties roar,” and that also led most states to enact anti-
machine gun laws. For example, a news article dated November 27, 1928,
reported that “Chicago’s war on gangsters and racketeers was reopened
tonight with the drafting of a law to prohibit the sale of machine guns.
64 FORDHAM URB. L.J. [Vol. LI
‘Tommy guns,’ the bullet spitting little Thompson submachine guns which
are inseparable from gang fights, bank robberies, assassinations and other
major crimes . . . could be purchased as easily and legally in Chicago as a
pound of meat . . . practically every sporting goods establishment in Chicago
carried the firearms and sold them readily.”
36
Illinois adopted an anti-
machine gun law in 1931.
37
A. State-Level and Nationwide Attempts to Regulate Automatic and
Semi-Automatic Firearms in the Early Twentieth Century
In response to the wider availability of firearms like the Tommy gun and
the BAR, between 1925 and 1934, at least 32 states enacted anti-machine
gun laws.
38
These state (and eventually federal) enactments were
anticipated, justified, and promoted by the National Conference of
Commissioners on Uniform State Laws, an organization formed in 1892 to
provide “non-partisan, well-conceived and well-drafted legislation that
brings clarity and stability to critical areas of state statutory law.”
39
In 1923,
2023] GUN LAW HISTORY AFTER BRUEN 65
the Commission organized a special committee to draft a “Uniform Act to
Regulate the Sale and Possession of Firearms.”
40
In 1928, it issued a model
law calling for the prohibition of the possession of “any firearm which shoots
more than twelve shots semi-automatically without reloading.”
41
In 1930, it
issued a model firearms act focusing on “guns of the pistol type.”
42
In 1932,
it issued a model act “intended not only to curb the use of the machine gun,
but to make it unwise for any civilian to possess one of the objectionable
type.”
43
The Commission explained that, between 1923 and 1930, “the
infant industry of racketeering grew to monstrous size, and with it the
automatic pistol replaced the revolver, to be in turn displaced by a partly
concealable type of machine gun — the Thompson .45 inch caliber
submachine gun becoming most popular . . . .”
44
Congress enacted a machine gun ban for the District of Columbia in 1932
which defined a machine gun as “any firearm which shoots automatically or
semiautomatically more than twelve shots without reloading.”
45
The
National Rifle Association endorsed D.C.’s ban, stating “it is our desire [that]
this legislation be enacted for the District of Columbia, in which case it can
then be used as a guide throughout the states of the Union.”
46
In his
testimony before Congress in 1934 on the bill that became the National
Firearms Act, NRA vice president Milton A. Reckord extolled his
organization’s role in passing the 1932 D.C. law, saying, “the association I
represent is absolutely favorable to reasonable legislation. We are
responsible for the uniform firearms act . . . in the District of Columbia. It
is on the books now.”
47
In 1934, Congress enacted the National Firearms Act, which imposed a
series of strict requirements on the civilian acquisition and general
circulation of fully automatic and other weapons. The National Firearms Act
imposed a tax on the manufacture, sale, and transfer of listed weapons,
including machine guns, sawed-off shotguns and rifles, silencers, and “any
66 FORDHAM URB. L.J. [Vol. LI
other weapons” with certain firing capabilities.
48
Such weapons had to be
registered with the Treasury Department, and the owners fingerprinted and
subject to a background check, with the payment of a $200 tax.
49
In his opening statement to the Ways and Means Committee of the U.S.
House of Representatives, Attorney General Homer Cummings made clear
that the bill under consideration was designed to fight the epidemic of gun
crime where criminals could evade capture by crossing state lines:
The development of late years of the predatory criminal who passes rapidly
from State to State, has created a situation which is giving concern to all
who are interested in law and order . . . . there are more people in the
underworld today armed with deadly weapons, in fact, twice as many, as
there are in the Army and the Navy of the United States combined . . . . In
other words, roughly speaking, there are at least 500,000 of these people
who are warring against society and who are carrying about with them or
have available at hand, weapons of the most deadly character.
50
As one member of the committee observed, “The question in my mind and I
think in the majority of the committee is what we can do to aid in suppressing
violations by such men as [John] Dillinger and others.”
51
To address the problem, the original version of the bill proposed
regulating both semi-automatic and fully automatic firearms, in that it
defined restricted machine guns as did the 1932 D.C. law, with its emphasis
on outlawing guns that could fire rapidly and repetitively without reloading,
whether semi-automatically or fully automatically: “The term ‘machine gun’
means any weapon designed to shoot automatically or semiautomatically 12
or more shots without reloading.”
52
The final version of the bill limited this
language to fully automatic firearms without citing any shot limit.
During the same time period, in addition to the National Firearms Act’s
restrictions on fully automatic weapons, at least seven states plus the District
of Columbia, and as many as ten states plus D.C., enacted laws restricting
semi-automatic weapons.
53
The reason for restricting semi-automatic
firearms is not hard to discern. These restrictions all appeared in the same
2023] GUN LAW HISTORY AFTER BRUEN 67
statutes as those restricting fully automatic weapons, which utilize the same
fundamental firearms technology: an action that automatically loads a new
round into the chamber after each shot is fired, potentially with the use of
detachable ammunition magazines or similar feeding devices, and is capable
of firing numerous rounds without reloading.
54
During the time that
Thompson and his company were developing and marketing the Tommy gun
(which, as noted, could fire in semi- or full-auto modes
55
), they were also
developing the Thompson Autorifle, a “strictly . . . semiautomatic rifle” for
which the military showed greater interest than it did for the Tommy gun.
56
The Autorifle was also promoted to police and military organizations, though
it was overshadowed by the attention focused on the Tommy gun.
57
As the prior discussion reveals, the regulation of fully automatic and semi-
automatic weapons in the 1920s and 1930s was closely tied to the enhanced
firing capacity of these weapons and their use by criminals. By that time,
gun technology was available that made it possible for ammunition to be
reliably fired in rapid succession and guns to be reloaded through
interchangeable ammunition magazines or similar devices. Again, the lesson
is the same: once these technologies began to spread in civil society and be
used for criminal or other dangerous purposes, and because of the belief that
it was “unwise for any civilian to possess” such weapons,
58
regulatory efforts
ensued.
B. State Regulation of Ammunition Feeding Devices
Restrictions on fully automatic and semi-automatic firearms were closely
tied to restrictions on ammunition magazines or their equivalent, as both
automatic and semi-automatic weapons are predicated on some kind of
mechanical loading function or device that automatically feeds new rounds
into the firing chamber after the previous round is fired. As is the case with
contemporary state limitations on ammunition magazine capacity, state laws
enacted early in the twentieth century imposed restrictions based on the
number of rounds that could be fired without reloading, ranging from more
than one in Massachusetts and Minnesota, and up to a high of eighteen in
Ohio.
68 FORDHAM URB. L.J. [Vol. LI
Magazine capacity/firing limits were imposed in three categories of state
laws.
59
Ten states plus the District of Columbia regulated semi-automatic
and fully automatic weapons: California, District of Columbia,
Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Ohio,
Rhode Island, South Dakota, and Virginia;
60
11 states regulated fully
automatic weapons only, where the regulation was defined by the number of
rounds that could be fired without reloading or by the ability to receive
ammunition feeding devices: Illinois, Louisiana, Minnesota, New Jersey,
North Dakota, Oregon, Pennsylvania, South Carolina, Texas, Vermont, and
Wisconsin;
61
and four states restricted all guns that could receive any type
of ammo feeding mechanism or round feeding device and fire them
continuously in a fully automatic manner: California, Hawaii, Missouri, and
Washington State.
62
2023] GUN LAW HISTORY AFTER BRUEN 69
TABLE 1
63
AMMUNITION MAGAZINE RESTRICTIONS IN 23 STATES, 1917–1934
Semi-automatic and
Fully Automatic
Firearms
(restricted firearms
holding more than the
listed number of rounds
or more without
reloading)
Fully Automatic
Firearms
(restricted firearms
capable of firing the
listed number of rounds
or more without
reloading or that could
receive ammunition
feeding devices)
Any Firearms
(weapons capable
of receiving
rounds through
certain named
round-feeding
devices)
- California (10 rounds;
1933)
- District of Columbia
(12 rounds; 1932)
- Massachusetts (1
round; 1927)
- Michigan (16 rounds;
1927)
- Minnesota (1 round;
1933)
- New Jersey (2 rounds;
hunting only; 1920)
- North Carolina (2
rounds; hunting only;
1917)
- Ohio (18 rounds;
1933)
- Rhode Island (12
rounds; 1927)
- South Dakota (5
rounds; 1933)
- Virginia (7 rounds;
1934)
- Illinois (8 rounds;
1931)
- Louisiana (8 rounds;
1932)
- Minnesota (12 rounds;
1933)
- New Jersey (any
removable device
holding rounds; 1927)
- North Dakota
(loadable bullet
reservoir; 1931)
- Oregon (2 rounds;
1933)
- Pennsylvania (2
rounds; 1929)
- South Carolina (8
rounds; 1934)
- Texas (5 rounds;
1933)
- Vermont (6 rounds;
1923)
- Wisconsin (2 rounds;
1933)
- California
(1927)
- Hawaii (1933)
- Missouri (1929)
- Washington
State (1933)
70 FORDHAM URB. L.J. [Vol. LI
A 1927 California law, for example, prohibited the possession of any
“machine gun,” where that term was defined to include:
[A]ll firearms known as machine rifles, machine guns or submachine guns
capable of discharging automatically and continuously loaded ammunition
of any caliber in which the ammunition is fed to such gun from or by means
of clips, disks, drums, belts or other separable mechanical device.
64
The other three states in this category, Hawaii, Missouri, and Washington,
utilized this same description.
65
In all, at least 23 states enacted 26 gun
restrictions based on the regulation of ammunition magazines or similar
feeding devices, and/or round capacity.
The original version of the legislation that became the National Firearms
Act of 1934, as noted earlier, included this definition of machine gun that
encompassed both semi-automatic and fully automatic firearms: “The term
‘machine gun’ means any weapon designed to shoot automatically or
semiautomatically 12 or more shots without reloading.”
66
Regulations
concerning removable magazines and magazine capacity were thus common
as early as the 1920s — the period of time when these weapons and devices
began to make their way into civilian life and also contributed to violence
and criminality, as illustrated by the Tommy gun narrative and other
weapons discussed here. These regulations were adopted by nearly half of
all states, representing approximately 58% of the American population at
that time.
67
C. Lessons from the Regulation of Automatic and Semi-Automatic
Firearms and Ammunition Feeding Devices
The lesson from this sequence of events early in the twentieth century is
indicative of our nation’s history of weapons regulations, whereby changes
in weapons policy followed a series of steps that respond to developments in
firearms (or other weapons) technologies and their filtration into society,
each dependent on the previous step. First, a new gun or gun technology is
invented. Second, it may then be patented, though the patenting of a design
or idea by no means assures that it will proceed beyond this point. Third, it
is often developed with a focus on military applications and supplying
military needs, not directly for civilian acquisition or use. Fourth, some
military-designed weapons may then spread to, or be adapted to, civilian
2023] GUN LAW HISTORY AFTER BRUEN 71
markets and use. Finally, if such weapons then circulate sufficiently in
society to pose a safety, violence, or criminological problem or threat, calls
for government regulation or restriction then may lead to gun policy and law
changes. New gun laws are not enacted when firearm technologies are
invented or conceived. They are enacted when those technologies mature
and circulate sufficiently in society to spill over into criminal or other
harmful use, presenting public safety concerns that governments attempt to
address through their police and policy-making powers.
This lesson is significant because some argue that the absence of
government gun regulations in history — at the time of the invention of
various weapons or weapons developments — means that regulations now
are unjustifiable or have no historical basis. For example, David Kopel
argues that “[m]agazines of more than ten rounds are older than the United
States.”
68
Drawing on examples like a firearm “created around 1580”
capable of firing sixteen “‘superposed’ loads” (with each round stacked on
top of the other); the Puckle gun said to fire eleven shots and patented in
1718; the Girandoni air rifle, invented in the late 1700s; and the Pepperbox
pistol of the early 1800s,
69
Kopel suggests that “magazines of more than ten
rounds are older than the Second Amendment.”
70
Therefore, by Kopel’s
reckoning, since these weapons existed early in (or even before) the
country’s existence, and were not specifically regulated, ipso facto, today’s
governments have no basis under the Second Amendment to regulate
contemporary assault weapons, like AR-platform rifles, or magazines
exceeding certain capacities (typically, a ten-round limit).
71
More to the
point, Kopel’s claim that ammunition magazines holding “more than ten
rounds” were “very commonly possessed in the United States since 1862”
and were “owned by many millions of law-abiding Americans” dating back
to the “mid-nineteenth century”
72
is simply false, as this Article
demonstrates.
72 FORDHAM URB. L.J. [Vol. LI
Kopel’s and similar arguments
73
fail for two sets of reasons. First, as
explained in the following section, this sort of narrative misrepresents the
feasibility, availability, and capabilities of these early weapons. Second, the
account fails to understand the relationship between firearms’ technological
development, their spread into civil society, and government gun policy. As
one gun history expert noted, “the guns of 1830 were essentially what they
had been in 1430: single metal tubes or barrels stuffed with combustible
powder and projectiles” where “[a]fter every shot, the shooter had to carry
out a minimum of three steps: pour powder into the barrel; add a
projectile . . . ; then ignite the gunpowder and send the projectile on its
way.”
74
D. The History of Pre-Twentieth Century Firearms Technologies
Single-shot, muzzle-loaded firearms were the ubiquitous guns from the
time of America’s initial settlement by Europeans until the latter part of the
nineteenth century.
75
Yet as researchers and experts of gun history have
noted, experimental multi-shot guns existed in the eighteenth century (with
multi-shot experimental designs dating back as much as two centuries
earlier).
For example, a firearm from the late 1500s that could fire up to sixteen
rounds is described in a book titled, Firearms Curiosa. But this book’s very
title indicates why this narrative is irrelevant to the modern gun debate. The
definition of “curiosa” is something that is rare or unusual. As the book’s
author, Lewis Winant says, his book is about “oddity guns” and “peculiar
firearms.”
76
That is, they were anything but common, ordinary, reliable, or
found in general circulation. Winant’s description of the sixteen shot gun
from the 1500s is that “the first pull of the trigger” fires “nine Roman candle
charges, a second pull will release the wheel on the rear lock and set off six
more such charges, and finally a third pull will fire the one remaining shot.”
77
A “Roman candle” charge was defined by Winant as one where “the operator
had no control of the interval between shots; he could not stop the firing once
he had started it.”
78
In other words, this firing process was more like lighting
2023] GUN LAW HISTORY AFTER BRUEN 73
the fuse of a string of firecrackers, where their ignition occurs in a manner
that cannot be controlled by the operator once the initial charge is ignited.
Roman candle firing was one type of “superposed” or “superimposed” firing.
The other type was controlled, where the gun “was charged with one load on
top of another, but the operator had control of the interval between shots. It
might have one movable lock or several fixed locks. Each shot would be
fired by trigger pull, presumably when the operator felt he had the proper
aim.”
79
Winant concludes: “Of all the ideas for producing multishot firearms
the scheme of superimposing loads in one barrel is probably the oldest, the
most discredited, the most frequently recurring, and also the most readily
accepted as new.”
80
Several “multi-shot” guns invented prior to the
perfection of the revolver and repeating rifle relied on this flawed strategy,
which had a number of defects all stemming from the difficulty and danger
of loading multiple charges in one barrel, with potentially catastrophic
results should a charge go off before it was supposed to.
An early multi-shot gun, the “Puckle Gun,” patented in 1718 in London
by James Puckle, reputedly could fire nine rounds per minute (hardly
comparable to the firing capabilities of semi- and fully automatic weapons
of the twentieth and twenty-first centuries). The patent drawing of this
weapon shows it sitting on a tripod on the ground.
81
It was not a hand-held
weapon. In the patent, Puckle described it as “a Portable Gun or Machine
(by me lately Invented) called a DEFENCE.”
82
As Winant says, it was a
military weapon: “Of the oddities among military weapons none has received
more publicity than the Puckle gun. . . . The Puckle invention was probably
the first crank-operated machine gun. It embodied several elements that
closely resemble construction features of Gatling, Hotchkiss and other
manually-operated machine guns.”
83
Winant continued, “[i]t is doubtful that
any of the Puckle guns that may have been actually produced ever saw
service.”
84
A different account of this weapon says: “There is in fact no
record of such a gun ever having been built,”
85
although there are claims to
the contrary. “A contemporaneous poet, commenting on ‘Puckle’s Machine
Company’, wrote ‘Fear not, my friends, this terrible machine. They’re only
wounded who have shares therein.’”
86
This weapon “never advanced
74 FORDHAM URB. L.J. [Vol. LI
beyond the prototype stage.”
87
Among its problems: “the flintlock
mechanism[s] that ignited the cartridges were unreliable, which is highly
important when trying to fire shots in rapid succession.”
88
As one analyst
concluded, the gun “was absolutely rubbish and made zero sense.”
89
And it
certainly never made its way to American shores.
In short, it was an experimental weapon designed for military use, and the
patent’s reference to “DEFENCE” was clearly a reference to military
defense, not personal defense. As this account confirms, it was likely never
even manufactured beyond perhaps a prototype.
90
It was a failed effort, even
though later gun inventors learned from its failure.
Another example is the case of Joseph Belton, an inventor who
corresponded with Congress in 1777, claiming that he could produce and
provide a flintlock that could fire as many as 16 to 20 consecutive rounds
without reloading. After showing preliminary interest on May 3, Congress
balked at Belton’s proposed “extraordinary allowance” and decided on May
15 that the idea “be dismissed.”
91
Belton reportedly demonstrated the rifle,
which by his account fired projectiles a distance of 20 to 30 yards, to several
government officials, including General Horatio Gates, Major General
Benedict Arnold, and scientist David Rittenhouse. These individuals, and
some others, signed a cautiously worded letter submitted by Belton to
Congress on July 10 saying that “Muskets of his Construction with some
small alterations, or improvements might be Rendered, of great Service, in
the Defense of lives, Redoubts, Ships &c, & even in the Field . . . .”
92
That
same day, however, Congress decided again that “the petition of Thomas
[Joseph] Belton be dismissed.”
93
The problems with Belton’s scheme were evident. It relied on
“superposed loads” as a firing method, a “discredited” and dead-end
technology.
94
Despite Belton’s offer to demonstrate the gun, not only are
2023] GUN LAW HISTORY AFTER BRUEN 75
there “no known surviving examples of Belton’s gun,” but “the only
evidence” of the gun’s existence is “the correspondence between Belton and
Congress.”
95
From this account, there is no reason to believe that the gun
“had been produced, and was possible to produce in quantity” at a reasonable
price.
96
In all, Belton’s claims about his experimental weapon bore no
relationship to actual firearms in circulation in America — since Belton’s
weapon was never proven feasible, much less reproduced, much less
distributed — during this time. For anyone to claim based on the Belton case
that “our Founding Fathers . . . knew about repeating rifles” and therefore
“the Second Amendment was . . . designed to protect the right to own a
repeating rifle”
97
is not only an unsupported claim, but a preposterous claim.
Kopel notes that an advertisement appeared in a South Carolina
newspaper in 1785 placed by a gunsmith offering for sale four-shot repeating
guns, though Kopel offers no further explanation or information.
98
The ad,
however, was an apparent reference to “imported Belgian or French-made
Segales pistols which had four rifled barrels.” Two of the four barrels could
be discharged by pulling two triggers; the barrels could then be rotated to
76 FORDHAM URB. L.J. [Vol. LI
discharge the other two. Yet this exotic weapon suffered from the same
technological and safety problems as similar guns of the time, and no
evidence has been offered to suggest that these European-made guns were
widely replicated, much less circulated in early American society.
99
Isaiah Jennings’ multi-shot flintlock rifle from 1821, capable of firing up
to twelve “superposed” shots before reloading,
100
is also cited as an early
multi-shot gun. Yet according to Flayderman’s Guide to Antique American
Firearms, its production quantity was so small as to be “unknown” and
therefore is “extremely rare,” unsurprising since it utilized fatally defective
“superposed” firing (discussed earlier) relying on twelve individual
touchholes.
101
By one account, “probably not more than 100 rifles of this
type [were] manufactured.”
102
Similar problems plagued or doomed multi-
shot flintlock pistols of the early nineteenth century. According to Carl P.
Russell: “Flintlock revolving pistols had been given trials and some practical
use very early in the nineteenth century, but the loose priming powder in the
pan of each cylinder constituted a hazard that was never eliminated.”
103
Another example often cited is the Girandoni (or Girardoni) air rifle, a
military weapon developed in Europe in the late 1700s for marksmen in the
Austrian army that was capable of firing up to 20 rounds. One of these made
its way to the U.S. where it was taken along on the Lewis and Clark
expedition of 1804–1806.
104
But these guns were a rarity, as they were
extremely expensive, fragile, and complex, and few were made — no more
than about 1,500.
105
As one writer noted: “The Girandoni air rifle is a might-
have been; a footnote to military history.”
106
In fact, the rifles never caught
on as they proved to be impractical on the battlefield, and even more so for
civilian use. To wit:
2023] GUN LAW HISTORY AFTER BRUEN 77
Leather gaskets needed to be constantly maintained and swelled with water
to sustain pressure. Once empty the reservoirs required a significant effort
and 1500 strokes to restore full power. A supply wagon was subsequently
outfitted with a mounted pump to readily supply soldiers but this negated
one of the key features—mobility. The rudimentary fabrication methods
of the day engineered weak threading on the reservoir neck and this was
the ultimate downfall of the weapon. The reservoirs were delicate in the
field and if the riveted brazed welds parted the weapon was rendered into
an awkward club as a last resort.
107
First introduced to the Austrian army in the late 1700s, “[t]he guns became
inoperable after a very short time” of use and were “entirely phased out” by
1810.
108
One American manufacturer, Isaiah Lukens of Pennsylvania,
apparently produced perhaps four such weapons.
109
The rest were made and
used in Europe. And while Lewis and Clark did bring a Girandoni with them,
they never intended to use it in combat or battle, but to impress and deter the
Native Americans they encountered (which it did). Whenever they planned
to fire the gun, they were careful to prepare it before encountering Native
Americans so that the Native Americans were not aware of the extensive pre-
fire preparations needed.
110
To take another example, the Volcanic repeating pistol, patented in 1854,
was said to have the ability to fire up to “ten or greater rounds.”
111
The
Volcanic Repeating Arms Company was founded in 1855, and it
experimented with several design innovations. But the company was “short
lived” and went “defunct” in 1866, even though its partners included Horace
Smith, Daniel B. Wesson, and Courtlandt Palmer.
112
Its patent and
technological work were important for subsequent developments, especially
for Smith and Wesson’s later work, but the actual weapons produced by
Volcanic were few, flawed, and experimental,
113
dubbed “radical defects”
78 FORDHAM URB. L.J. [Vol. LI
by Winchester himself.
114
In 1857 and 1858, Volcanic produced 3,200
“flawed” repeaters, most of which “collected dust for many decades” until
the company finally sold them for fifty cents each to employees.
115
Another account laboring to establish early gun firing provenance asserts
that “[s]emi-automatic technology was developed in the 1880s” with the
“Mannlicher rifle . . . generally attributed to be the first semi-automatic
rifle.”
116
Yet this “development” was initially a failure: “Ferdinand von
Mannlicher’s Model 1885 self-loading rifle design” was “a failure, never
seeing anything even resembling mass production.”
117
The true semi-
automatic weapon did not become feasible and available until the beginning
of the twentieth century, and a primary market was the military.
118
The more well -known “pepperbox” was a multi-shot handgun where the
number of shots capable of being fired repeatedly coincided with the number
of barrels bundled together (the barrels were turned by hand after each shot).
The gun found some civilian market popularity in the early 1800s, but it was
rapidly eclipsed by the superior Colt revolver, owing to pepperboxes’
“frightening flaws.”
119
The reason: pepperboxes were “heavy, lumpy, and
impractical.”
120
The addition of more barrels added more weight, and less
practicality, to the gun, resulting in an inverse relationship between more
barrels and less gun utility. By another account, “because of its small bore,
short range, and lack of accuracy, the pepperbox was by no means as
satisfactory as a revolver for military use.”
121
Further, “[t]hey also had a
nasty habit of discharging all their barrels at once. No shooter could be
certain he would not get two or three innocent bystanders, as well as his
intended victim.”
122
Indeed, the Colt revolver was “the first widely used
2023] GUN LAW HISTORY AFTER BRUEN 79
multishot weapon,”
123
although it took decades for this and similar revolvers
to catch on.
Colt’s technological developments notwithstanding, single shot guns were
the ubiquitous firearm until after the Civil War, although some long gun
repeaters appeared late in the Civil War.
124
Even so, the “standard infantry
weapon [in the Civil War] remained the single-shot, muzzle-loaded
weapon.”
125
Historian James M. McPherson concurred that, even though
some repeating rifles appeared in the Civil War as early as 1863, single-shot
muzzle-loaders “remained the principal infantry weapons throughout the
war.”
126
As noted, the idea of an available, affordable, reliable multi-shot firearm
did not arise until the development of Colt’s multi-shot revolver, patented in
the 1830s. Indeed, Colt biographer Jim Rasenberger says that Colt’s pistol
was the first practical firearm that could shoot more than one bullet without
reloading.
127
Even then, Colt could not readily manufacture multi-shot
weapons for many years because he could find no market for them, either
from the government or the public. The government, in fact, dismissed such
firearms as mere “novelties.”
128
After an 1837 test of Colt’s gun and others
the government concluded that it was “entirely unsuited to the general
purposes of the service.”
129
The government also rejected the weapon after
tests in 1836, 1840, and 1850.
130
Colt’s early failure to cultivate either a
military or a civilian market in the U.S. drove him to bankruptcy and then to
market his guns to European governments in the 1840s.
131
The gun made
appearances in the pre-Civil War West, yet even during the Civil War,
80 FORDHAM URB. L.J. [Vol. LI
“Colt’s revolver was a sideshow through most of the war . . . .”
132
And
though the Colt-type revolver “had proved itself, the official sidearm of the
United States Army [in the Civil War] remained a single shot pistol.”
133
It
took the Colt’s limited use during the Civil War to finally spur the post-Civil
War proliferation of the Colt-type revolver and similar firearms into
society.
134
While inventor Benjamin Henry claims credit for developing the first
practical, lever action repeating rifle (patented in 1860), his competitor
Winchester “deftly gutted” the Henry Arms Company, coopting it to form
the Winchester Arms Company in 1866, paving the way for Winchester’s
dominance.
135
The Winchester rifle could fire up to fifteen rounds without
reloading. Yet the widely known Winchester 1873, “was designed for sale
to the Government as a military arm.”
136
A gun whose legendary status
wildly outdistanced its actual production and impact, it was nevertheless an
important firearm in the late nineteenth century, although this “quintessential
frontier rifle flourished later, in the ‘post-frontier’ early 1900s. Its celebrity
biography backdated its diffusion and even its popularity.”
137
In fact, the
slogan stating that the Winchester “won the West” was invented by
Winchester executive Edwin Pugsley as a marketing ploy in 1919.
138
Further, “the notion of the Winchester and the Colt as iconic frontier guns is
‘as much a fiction as the sources from which it is drawn.’”
139
An analysis of
production runs of Henrys and Winchesters from 1861–1871 concluded that
they produced a total of 74,000 guns.
140
Most of them — about 64,000 —
were sold to foreign militaries, leaving about 9200 for domestic American
sales.
141
Of those, 8,500 were acquired by Union soldiers, leaving a very
small supply of guns for domestic civilian acquisition.
142
By comparison,
about 879,000 Springfield “trap-door” single shot rifles were manufactured
2023] GUN LAW HISTORY AFTER BRUEN 81
from the 1860s through 1877.
143
Additionally, the Winchester was not a
semi-automatic firearm; it was a lever-action rifle that required the shooter
to manipulate a lever in a forward-and-back motion before each shot.
144
And
when the gun was emptied, it had to be manually reloaded, one round at a
time.
145
The Winchester Model 1905, then called a “self-loading” rifle, was
a true semi-automatic firearm.
146
It could receive a five or ten round box
magazine, although from 1905 to 1920 only about 30,000 of the guns were
made (yielding a yearly average production of 1875 guns per year).
147
Even
in World War I, soldiers primarily used bolt-action one shot rifles that could
fire about twelve rounds per minute.
148
With all this, the Winchester was by no means universally embraced by
civilian long gun users. Indeed, “a good many westerners would have
nothing to do with the early Winchesters or other repeaters, for reasons they
considered very sound, and not until the 1880s did the repeating rifle assert
its dominance over the single-shot breechloader.”
149
According to A.C.
Gould, writing in 1892, single-shot rifles were: “less complicated, and less
82 FORDHAM URB. L.J. [Vol. LI
liable to get out of order; will shoot a greater variety of ammunition; will
shoot uncrimped ammunition, patched or unpatched bullets; will permit the
use of a longer barrel; an explosive bullet can be used; a greater range of rear
sights on tang can be used.”
150
Following the Civil War, revolvers were heavily marketed to the civilian
population. For example, when Smith & Wesson’s near-monopoly over the
manufacture of cartridge revolvers ended with the expiration of its Rollin
White patent in the 1870s, “dozens of other [gun] makers”
151
entered the
market. Soon these other manufacturers were producing abundant cheap
revolvers at low cost to the consumer. As Kennett and Anderson noted,
Colt’s initial revolvers sold for $35, but by 1900 the “‘two dollar pistol’ was
a fixture in American life.”
152
Further, as the mail order business boomed
from the 1870s on, companies like Montgomery Ward and Sears began
selling revolvers through their catalogs—especially small, cheaper, lighter-
weight models that cost less to mail. Cheap handguns were advertised not
only through catalogs, but also through newspaper and magazine
advertisements.
153
The rise in the circulation of multi-shot handguns in society was
accompanied by the rapid spread of concealed carry restrictions, especially
in the post-Civil War period, precisely because of their contribution to
escalating interpersonal violence.
154
By the end of the nineteenth century,
virtually every state in the country prohibited or severely restricted concealed
gun and other weapons carrying.
155
In addition, in the late 1800s and early
1900s several states barred possession of various weapons outright,
regardless of other circumstances.
156
2023] GUN LAW HISTORY AFTER BRUEN 83
As noted earlier, the problems with arguments claiming that historical
multi-shot weapons were both viable and commonly possessed before the
late nineteenth century are two-fold: they misrepresent and exaggerate the
actual past of the weapons cited, and even more importantly fail to
understand the connection between gun technology developments and the
steps leading up to changes in gun-related public policy to regulate threats
posed by those developments. As noted, that process has occurred, both
historically and in the modern era, through a series of sequential steps.
First, a new gun or gun technology must be invented. Second, it is then
normally patented, noting that there are many steps between a patent, actual
gun production, distribution, and dissemination. As Lewis Winant
sardonically observed, “Many patents are granted for arms that die a-
borning.”
157
And as gun expert Jack O’Connor wrote, “many types of guns
were invented, produced and discarded through the early years of the
development of the United States.”
158
Third, weapons development is
historically tied to military need and military acquisition, not directly for
civilian use or self-defense applications. Military weaponry is developed
without consideration of potential civilian use and the consequences of
dissemination in the civilian market.
159
Fourth, some military-designed
weapons may then spill over into, or be adapted to, civilian markets and use.
Fifth, if such weapons then circulate sufficiently to pose a public safety or
criminological problem or threat, calls for government regulation or
restriction then may lead to gun policy/law changes. This general sequence
is echoed in works like the Buyer’s Guide to Assault Weapons, a standard
reference work on assault weapons.
160
Again, to simply assert or assume that past firearms design/development,
invention, or patenting equals commonality, viability, or a measurable
Relation to the Sale and Carrying of Dangerous Weapons, Ch. 195 § 1 1911 N.Y. Laws 442–
43; 1915 N.D. Laws 96, ch. 83, §§ 1–3, 5; 1931 N.Y. Laws 1033, ch. 435, § 1. Not included
in this list are other state laws that barred weapons possession to specific groups (enslaved
persons, minors) or that criminalized weapons possession by individuals if they committed a
crime with the listed weapons.
157. W
INANT, supra note 76, at 36.
158. J
ACK O’CONNOR, COMPLETE BOOK OF RIFLES AND SHOTGUNS 42 (1961).
159. See generally N
ORM FLAYDERMAN, THE BOWIE KNIFE 485–86 (Andrew Mowbray ed.,
2004). Note that the third step, and perhaps the second, do not apply to non-firearms weapons
discussed here — in particular the Bowie knife and various clubs. These weapons were mostly
not developed for military use, though Bowie knives, for example, were brought by some
soldiers to Civil War service (though they were not military issue). Knives and clubs are far
simpler technologically compared to firearms (and of course do not rely on ammunition) and
thus were much more easily made, reproduced, and circulated.
160. P
HILLIP PETERSON, BUYER’S GUIDE TO ASSAULT WEAPONS 4–7 (2008). Peterson’s
Foreword summarizes a similar relationship between weapons development and subsequent
calls for regulation. Id.
84 FORDHAM URB. L.J. [Vol. LI
presence or impact on society, is a leap in logic without historical foundation.
It would be as logical to reject modern governmental regulation of electric
power through such government agencies as state power commissions and
the Federal Energy Regulatory Commission because no such regulation was
enacted around the time of Benjamin Franklin’s experiments with electricity
in the mid-eighteenth century. The fact that inventors worked on new
firearm designs and modifications tells us nothing about the consequences
of such designs for society and public policy. And the existence of such
designs does not equal technological viability or reliability, much less
general availability, much less societal circulation and use of these weapons.
Other weapons subject to government restriction in our history, discussed in
Part II, further illustrate these principles. Before turning to them, however,
it is useful to clarify aspects of contemporary commentary about assault
weapons.
E. Clarifying Terms and Concepts about Assault Weapons and
LCMs
Opponents of assault weapons and LCM laws often assert that “[p]rior to
1989, the term ‘assault weapon’ did not exist in the lexicon of firearms. It is
a political term, developed by anti-gun publicists to expand the category of
‘assault rifles’ so as to allow an attack on as many additional firearms as
possible on the basis of undefined ‘evil’ appearance.”
161
Such assertions are incorrect. The terms “assault weapon” and “assault
rifle” were the very terms used by the gun companies that first produced,
marketed, and sold such weapons to the public.
162
Gun industry use of the
terms “assault weapons” and “assault rifles” appeared in the early 1980s (and
even earlier), before political efforts to regulate them emerged in the late
1980s and early 1990s.
163
A study of the marketing strategies employed by gun manufacturers and
gun publications from the time that such weapons emerged in the American
civilian market in a significant way in the early 1980s verifies this by
2023] GUN LAW HISTORY AFTER BRUEN 85
reference to company advertisements and gun magazines.
164
Examples
include: Heckler and Koch selling its “HK 91 Semi-Automatic Assault
Rifle;” ads for the “Bushmaster assault rifle;” the AKM “imported assault
rifle;” the Beretta M-70 that “resembles many other assault rifles;” the
AR10/XM-10 (made by Paragon S&S Inc.) advertised as a “Famous Assault
Rifle is Now Available in a Semi Auto Civilian Legal Form!;”
165
the “AMT
25/.22 Lightning Carbine” that was advertised as an “assault-type semi-
auto;” Intratec extolling its TEC-9 as one that “clearly stands out among high
capacity assault-type pistols;”
166
and the after-market supplier Assault
Systems that appealed to civilian owners of “assault weapons,” among many
other examples. The use of military terminology, and the weapons’ military
character and appearance, were key to marketing the guns to the public.
167
Guns & Ammo magazine described the “success of military assault rifles in
the civilian market” in its July 1982 issue.
168
In 1984, Guns & Ammo
advertised a book called Assault Firearms that the magazine extolled as “full
of the hottest hardware available today.”
169
As a standard buyer’s guide on assault weapons noted, the “popularly-
held idea that the term ‘assault weapon’ originated with anti-gun activists,
media or politicians is wrong. The term was first adopted by the
manufacturers, wholesalers, importers and dealers in the American firearms
industry . . . .”
170
The more expansive phrase “assault weapon” is generally
used over “assault rifle” because “weapon” also includes not only rifles but
some shotguns and handguns that were also subject to regulation in the
federal 1994 assault weapons ban and subsequent laws.
An article in Outdoor Life belied the claim that assault weapons are
limited only to firearms that fire fully automatically. That article urged its
readers to share its information with non-shooting friends to dispel “myths”
about “assault weapons.” In its account, it correctly noted that “the term
‘assault weapon’ . . . generally referred to a type of light infantry firearm
initially developed in World War II; a magazine-fed rifle and carbine suitable
86 FORDHAM URB. L.J. [Vol. LI
for combat, such as the AK-47 and the M16/M4. These are selective-fire
weapons that can shoot semi-auto, full-auto, or in three-round bursts.”
171
The effort to rebrand “assault weapons” as something more benign and
severed from its military origins was seen in the publication struggles of
Phillip Peterson, whose book, titled as recently as 2008, Gun Digest Buyer’s
Guide to Assault Weapons,
172
is a well-known reference work on the subject.
As Peterson explained, the gun industry “moved to shame or ridicule” those
who used the phrase “assault weapons,” insisting that the term should now
only apply to fully automatic weapons. Peterson noted that the origin of the
term “assault weapon” was the industry itself.
173
He found that the NRA
refused to sell his book until he changed the title, which in 2010 he renamed
Gun Digest Buyer’s Guide to Tactical Rifles.
174
The very same pattern
played out in Canada, where gun companies also used the term “assault rifle”
in the 1970s and 1980s until political pressure began to build to restrict such
weapons in the aftermath of a mass shooting in Montreal in 1989. By the
1990s, gun companies marketing guns in Canada and their allies also adopted
terms like “modern sporting rifles.”
175
Similar claims are also made about the term “large capacity magazine,”
again calling it “politically charged rhetoric,” and rebranding such
magazines as “standard capacity.”
176
Identifying a large capacity magazine
as one that holds more than ten rounds is not arbitrary, for at least three
reasons.
First, the LCM definition of one holding ten or more rounds dates back to
at least 1989, when this early version of the law Congress eventually passed
in 1994 defined “a large capacity magazine or belt as one which holds over
ten rounds.”
177
Since that time, ten states plus the District of Columbia have
2023] GUN LAW HISTORY AFTER BRUEN 87
adopted the LCM ten round limit (see earlier discussion). Second, the
definition of LCMs based on a ten round limit has been and is widely
accepted and used in the scholarly literature in criminology and other fields
examining such devices.
178
Third, as Table 1 and the accompanying
discussion in this Article shows, from 1917 to 1934 roughly half of the states
in the U.S. enacted laws that restricted various ammunition feeding devices,
or guns that could accommodate them, based on a set number of rounds,
though the numerical cap for gun firing without reloading was not uniform.
Thus, the idea of restricting removable magazines by capping the number of
rounds dates back at least a century.
II. H
ISTORICAL HARDWARE RESTRICTIONS ON KNIVES, BLUNT
WEAPONS, PISTOLS, AND TRAP GUNS
Similar to government regulation of certain types of firearms and
ammunition feeding devices in the early twentieth century, which occurred
only after the weapons technologies matured, entered the civilian market,
and threatened the public through criminal use, government regulation of
weapons typically followed a version of this trajectory during the 1700s and
1800s. Even though, as discussed herein, serious crimes became more
widespread in the early 1800s, specific crime-related concerns that involved
dangerous weapons led to legislative enactments in the late 1700s and early
1800s. For example, from 1780-1809, at least four states, Connecticut, Ohio,
New Jersey, Maryland, enacted measures that increased the penalties for
burglaries or other crimes if the perpetrators were armed.
179
At least three
rounds of ammunition . . . .” Violent Crime Control and Law Enforcement Act of 1994, Pub.
L. No. 103-322, 108 Stat. 1796 (1994).
178. See, e.g., G
UNS IN AMERICAN SOCIETY: AN ENCYCLOPEDIA OF HISTORY, POLITICS,
CULTURE, AND THE LAW 777 (2d ed. 2012); Jaclyn Schildkraut & Tiffany Cox Hernandez,
Laws That Bit The Bullet: A Review of Legislative Responses to School Shootings, 39 A
M. J.
C
RIM. JUST. 358, 361 (2014); Luke Dillon, Mass Shootings in the United States: An
Exploratory Study of the Trends from 1982-2012 19 (May 22, 2014) (M.A. thesis, George
Mason University) (on file with the Mason Archival Repository Service, George Mason
University), mars.gmu.edu/xmlui/handle/1920/8694 [https://perma.cc/2BHZ-MM6B];
Jaclyn Schildkraut, Assault Weapons, Mass Shootings, and Options for Lawmakers,
ROCKEFELLER INST. OF GOV’T (2019), rockinst.org/issue-area/assault-weapons-mass-
shootings-and-options-for-lawmakers/ [https://perma.cc/K4JF-BN5F]; Christopher Koper,
Assessing the Potential to Reduce Deaths and Injuries from Mass Shootings Through
Restrictions on Assault Weapons and Other High-Capacity Semiautomatic Firearms,
C
RIMINOLOGY & PUB. POL’Y 147, 149 (2020); PHILIP J. COOK & KRISTIN A. GOSS, THE GUN
DEBATE 201 (2d ed. 2020).
179. An Act for the Punishment of Burglary and Robbery, 1783 Conn. Pub. Acts 633; An
Act for Suppressing and Prohibiting Every Species of Gaming for Money or Other Property,
and for Making Void All Contracts and Payments Made in Furtherance Thereof, ch. 13 § 4,
1788-1801, 1788 Ohio Laws 42; An Act Respecting Slaves, § 9 1799 N.J. Laws 474; 1809
Md. Laws 465.
88 FORDHAM URB. L.J. [Vol. LI
states, New York, Ohio, and Maryland, enacted laws to punish the discharge
of firearms near populated areas.
180
At least four states, Virginia,
Massachusetts, North Carolina, Tennessee, criminalized public arms
carrying.
181
Other examples of restrictions of specific types of weapons are
discussed in this section.
Note at the outset that knives and blunt objects like clubs are not firearms.
They are, however, weapons, and “arms” as that term is used in the debate
over gun policy and the Second Amendment.
182
Clearly, knives and clubs
do not pose the same threat today as they did in the nineteenth century and
before, but the fact that they were identified as a significant threat to public
safety and order, and were the subject of extensive and varied legislative
restrictions makes them directly relevant to this discussion. This conclusion
is further supported by the fact that fighting knives, types of clubs/blunt
objects and pistols were invariably treated together in laws to restrict them
enacted by the states as discussed in this Article.
A. Historical Restrictions on the Bowie Knife and Similar Long-
Bladed Knives
The Bowie knife is generally credited with having been invented by the
brother of adventurer Jim Bowie, Rezin Bowie. The knife was named after
Jim Bowie, who reputedly killed one man and wounded another using the
“big knife” given to him by his brother in the alternately notorious or
celebrated “Sandbar Duel” in 1827.
183
2023] GUN LAW HISTORY AFTER BRUEN 89
The “Bowie knife” rapidly became known beginning in the 1830s for the
distinctive type of long-bladed and usually single-edged knife with a hand
guard identified with Bowie, the man after whom the knife was named.
While Bowie knives initially “came in a variety of forms — with or without
guards, with differently shaped blades,” they eventually became more
standardized as “a large knife with a cross guard and a blade with a clipped
point.”
184
The distinctive traits of the Bowie knife are revealed in Robert
Abels’s book, Bowie Knives, which includes pictures of nearly one hundred
such knives made between 1835 and 1890.
185
The Bowie legend, the
explosive growth and spread of Bowie-related mythology (only magnified
by his death at the Alamo in 1836), and the knife’s distinctive features,
encouraged its proliferation,
186
referred to by one historian as “the craze for
the knives.”
187
As was true of other knives with long, thin blades,
188
they
were widely used in fights and duels, especially at a time when single-shot
pistols were often unreliable and inaccurate.
189
Indeed, such knives were
known as “fighting knives”
190
that were “intended for [interpersonal]
combat.”
191
In the early nineteenth century “guns and knives accounted for
a growing share of the known weapons that whites used to kill whites.”
192
In 1834, for example, a grand jury in Jasper County, Georgia deplored:
the practice which is common amongst us with the young the middle aged
and the aged to arm themselves with Pistols, dirks knives sticks & spears
erroneously, that “Jim Bowie used a traditional knife at a famous ‘sandbar fight’ on the lower
Mississippi River in 1827.”); David Kopel, Bowie Knife Statutes 1837-1899, V
OLOKH
CONSPIRACY (Nov. 20, 2022), reason.com/volokh/2022/11/20/bowie-knife-statutes-
1837-1899/ [https://perma.cc/ED2T-WGY7] (Rezin Bowie had just developed the distinctive
knife his brother used in the fight, so it could not have been “traditional.”).
184. Bowie Knife, supra note 183.
185. R
OBERT ABELS, BOWIE KNIVES 3 (Abels ed., 1979).
186. See V
IRGIL E. BAUGH, RENDEZVOUS AT THE ALAMO: HIGHLIGHTS IN THE LIVES OF
BOWIE, CROCKETT, AND TRAVIS 39–63 (1985).
187. D
AVIS, supra note 183, at 583.
188. Other such long-bladed, thin knives of varying configurations typically named in laws
barring their carrying included the Arkansas toothpick, the Spanish stiletto, dirks, daggers,
and the like. See, e.g., 1841 Ala. Acts 148–49; see also An Act Defining And Punishing
Certain Offenses Against The Public Peace § 1, 1889 Ariz. Sess. Laws 16; An Act to Prevent
the Carrying of Concealed Weapons, Aug. 10, 1871, reprinted in L
AWS OF THE DISTRICT OF
COLUMBIA: 1871-1872, Part II, 33 (1872); An Act Prohibiting The Carrying Of Weapons
Concealed Or Otherwise ch. 61 § 25, 1853 N.M. Laws 406.
189. DAVIS, supra note 183, at 164, 208; BAUGH, supra note 186, at 42; Karen Harris,
Bowie Knives: The Old West’s Most Famous Blade, O
LDWEST,
www.oldwest.org/bowie-knife-history/ [https://perma.cc/P7EV-R8VF] (last visited
Sept. 24, 2023); FLAYDERMAN, supra note 159, at 485; PAUL KIRCHNER, BOWIE KNIFE FIGHTS,
FIGHTERS, AND FIGHTING TECHNIQUES 35–44 (Paladin Press ed., 2010).
190. ROTH, supra note 154, at 218.
191. F
LAYDERMAN, supra note 159, at 59.
192. R
OTH, supra note 154, at 218.
90 FORDHAM URB. L.J. [Vol. LI
under the specious pretence of protecting themselves against insult, when
in fact being so armed they frequently insult others with impunity, or if
resistance is made the pistol dirk or club is immediately resorted to, hence
we so often hear of the stabbing shooting & murdering so many of our
citizens.
193
Homicide rates increased in the South in the early nineteenth century, as
did laws restricting concealed weapons carrying. Dueling also persisted
during this time, even as the practice was widely deplored by religious and
other groups, in newspapers, by anti-dueling societies and political
leaders.
194
Bowie knife writer Norm Flayderman provides abundant and
prolific evidence of the spread and early criminal use of Bowie knives in the
1830s, quoting from dozens of contemporaneous newspaper and other
accounts, and providing references to literally hundreds of additional articles
and accounts attesting to the widespread use of Bowie knives in fights, duels,
brawls and other criminal activities.
195
Flayderman concludes that, as early
as 1836, “most of the American public was well aware of the Bowie
knife.”
196
Very much like the allure of contemporary assault weapons to
some,
197
the Bowie knife’s notorious reputation also, if perversely, fanned
its sale and acquisition.
198
All this contributed to widespread enactment of
laws prohibiting dueling in the states.
199
In 1839, Congress passed a measure
barring dueling in the District of Columbia.
200
Both pistols and knives were
prominently used in such affairs.
201
At least three state court cases dealt in some manner with fighting knives
like the Bowie knife. In the 1840 case of Aymette v. State
202
the Supreme
Court of Tennessee upheld the conviction of William Aymette for wearing a
A search for the word “duel”
in the Duke Center for Firearms Law database of old gun laws yields 35 results.
200. Joint Resolution Prohibiting Dueling, HIST., ART & ARCHIVES: U.S. HOUSE OF
REPRESENTATIVES, history.house.gov/Records-and-Research/Listing/lfp_032/
[https://perma.cc/4JAD-7DJC] (last visited Sept. 24, 2023).
201. ROTH, supra note 154, at 180–83, 210–17.
202. See District of Columbia v. Heller, 554 U.S. 570, 613 (2008) (citing Aymette v. State,
21 Tenn. 152 (Tenn. 1840)).
2023] GUN LAW HISTORY AFTER BRUEN 91
Bowie knife concealed under his clothes under a state law of 1837–1838, ch.
137, sec. 2, providing:
that, if any person shall wear any bowie-knife, or Arkansas toothpick, or
other knife or weapon that shall in form, shape, or size resemble a bowie-
knife or Arkansas toothpick, under his clothes, or keep the same concealed
about his person such person shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined in a sum not less than two hundred dollars,
and shall be imprisoned in the county jail not less than three months and
not more than six months.
203
In its decision, the court concluded that the prohibition against wearing
the named weapons was well justified in that they “are usually employed in
private broils, and which are efficient only in the hands of the robber and the
assassin.”
204
The court continued, “The Legislature, therefore, have a right
to prohibit the wearing or keeping weapons dangerous to the peace and safety
of the citizens . . . .”
205
Further, the court added that the state law existed “to
preserve the public peace, and protect our citizens from the terror which a
wanton and unusual exhibition of arms might produce, or their lives from
being endangered by desperadoes with concealed arms . . . .”
206
Four years later, the Tennessee Supreme Court again dealt with a Bowie
knife law violation and challenge. In the case of Haynes v. Tennessee
(1844),
207
Stephen Haynes was indicted for carrying a concealed Bowie
knife. He was convicted of wearing a knife that resembled a Bowie knife
but appealed his conviction on the grounds that he was actually carrying a
“Mexican pirate knife,” which reputedly had a shorter, narrower blade. (At
the trial, witnesses disagreed as to the proper name for the knife in question.)
He also argued that the state law, in listing various types of knives including
those “similar” to Bowie knives, was “too indefinite” and could therefore
lead to “absurd consequences” that “must follow its enforcement . . . .”
208
On appeal, the court upheld his conviction and commended the Tennessee
state legislature’s enactment: “The design of the statute was to prohibit the
wearing of bowie knives and others of a similar description, which the
experience of the country had proven to be extremely dangerous and
destructive to human life; the carrying of which by truculent and evil
disposed persons but too often ended in assassination.”
209
The court
continued: “The design, meaning, and intent was to guard against the
92 FORDHAM URB. L.J. [Vol. LI
destruction of human life, by prohibiting the wearing [of] heavy, dangerous,
destructive knives, the only use of which is to kill . . . .”
210
The court noted
that the state law “wisely provides against bowie knives, Arkansas tooth
picks, or any other weapon in form, shape or size, resembling them.”
211
Noting the similarity among knives and the possibility of an unjust outcome
where, say, a person might be convicted of carrying a mere pocket knife, the
court posed this question: “what is to protect against conviction, when the
words of the statute cover the charge, and its true spirit and meaning does
not?” Their answer: “the judge and jury who try the case.”
212
As the author
of a book on Bowie knives noted, “the fact that the term ‘bowie knife’ had
never been precisely defined did not help his [Haynes’s] case.”
213
A third state court case relevant to the legal status of Bowie knives is
Cockrum v. State of Texas, 1859.
214
The Cockrum case involved John
Cockrum, who was charged with the murder of his brother-in-law, William
Self, with a Bowie knife.
215
Under Texas law, “a homicide, which would
otherwise be a case of manslaughter, if committed with a bowie-knife or
dagger, shall be deemed murder and punished as such . . . .”
216
The court
upheld the added penalty provision of the law relating to use of a Bowie
knife, despite the court’s very expansive interpretation of the right to bear
arms, but reversed and remanded the man’s conviction because of an error
2023] GUN LAW HISTORY AFTER BRUEN 93
related to statutory changes and jury instructions. It described the Bowie
knife as “an exceeding destructive weapon,” an “instrument of almost certain
death,” and “the most deadly of all weapons in common use.”
217
Further,
the court said: “He who carries such a weapon . . . makes himself more
dangerous to the rights of others, considering the frailties of human nature,
than if he carried a less dangerous weapon.”
218
All of these cases underscore courts’ recognition of the dangerous nature
and nefarious use of Bowie knives not only by their characterizations of
them, but by the fact that they are treated in the same restrictive and
prohibitory manner in law as other dangerous, deadly weapons including
pistols and various named clubs.
219
The ubiquity of the concern about the criminological consequences of
carrying Bowie knives and other, similar long-bladed knives is seen in the
widespread adoption of laws barring or restricting these weapons.
220
In the
1830s, at least six states enacted laws barring the carrying of Bowie knives
by name.
221
From then to the start of the twentieth century, every state plus
the District of Columbia (with the sole exception of New Hampshire)
restricted Bowie knives: a total of at least 42 states (including the District of
Columbia) barred or restricted Bowie knives by name; and another eight
94 FORDHAM URB. L.J. [Vol. LI
states enacted laws barring the category or type of knife embodied by the
Bowie knife but without mentioning them by name totaling 49 states plus the
District of Columbia.
222
For example, 15 states banned all carrying of Bowie
knives (by banning both concealed carry and open carry), while others
imposed taxes on individuals’ acquisition or possession of them. Georgia
sought to stamp out Bowie knife circulation (as well as that of other named
weapons) in an 1837 law: “it shall not be lawful for any merchant, or vender
of wares or merchandize in this State, or any other person or persons
whatsoever, to sell, or offer to sell, or to keep, or to have about their person
or elsewhere, any of the hereinafter described weapons . . . Bowie, or any
other kinds of knives, manufactured and sold for the purpose of wearing, or
carrying the same as arms of offence or defense, pistols, dirks, sword canes,
spears, &c.”
223
The desirability and utility of concealed-carry restrictions
were precisely that they pushed dangerous weapons out of public spaces and
places, improving public safety through the deterrent and punishment effects
of such laws, and also discouraging the settlement of private grievances and
disputes in public through weapons-fueled violence.
States were imaginative and persistent in their effort to suppress fighting
knives and other weapons. For example, an 1881 Arkansas law combined
no-carry provisions (whether concealed or openly) applying to any dirk,
bowie knife, sword, spear in a cane, brass or metal knuck[le]s, razors, “or
any pistol of any kind whatever” with another provision in the same law that
made it a misdemeanor to “sell, barter or exchange, or otherwise dispose of,
or in any manner furnish to any person” the aforementioned weapons,
including “any kind of cartridge.”
224
Even though the law allowed persons
to have the weapons on their own premises, it begs the question of how,
exactly, a person could legally obtain such weapons in the first place if they
were not already owned within a family before the 1881 law was enacted.
States relied on a variety of regulatory techniques to suppress Bowie knife
carrying: 29 states enacted laws to bar their concealed carry; 15 states barred
their carry whether concealed or openly; seven states enacted enhanced
criminal penalties for those who used the knives to commit a crime; four
states enacted regulatory taxes attached to their commercial sale; three states
imposed a tax for those who owned the knives; ten states barred their sale to
2023] GUN LAW HISTORY AFTER BRUEN 95
specified groups of people; and four states enacted penalties for brandishing
the knives.
225
The extensive and ubiquitous nature of these Bowie knife prohibitions
raises a further question: given the universal agreement that these knives
were dangerous, why not simply ban their possession outright? The answer
is two-fold. First, America was a developing nation-state in the nineteenth
century. The federal and state governments did not yet possess the maturity,
powers, tools, or resources to implement any measure as sweeping as a knife
ban, especially since knives are technologically very simple to produce.
After all, the front-line administrative entity on which we today relay for law
enforcement, the police, barely existed in the way we think of policing today
in the early nineteenth century (up to this time policing fell to a haphazard
mix of the watch system, constables, militias, and vigilantes). Modern police
forces only came in to being in a handful of large cities before the Civil
War.
226
Second, the chief remedy enacted by the states to address the
problem of knife fighting was far more focused and feasible: to bar the
carrying of knives, along with the other two categories of weapons that also
threatened public safety, clubs and pistols. The fact that all three types of
weapons were consistently treated together is conclusive evidence that all
were considered so dangerous and inimical to public safety that they were
subject to anti-carry laws and bundled together in legislative enactments.
B. Historical Restrictions on Clubs and Other Blunt Weapons
Among the most widely and ubiquitously regulated harmful implements
in U.S. history were various types of clubs and other blunt weapons.
227
Most
were anti-carry laws, which also generally encompassed pistols and specific
types of knives, although some of the laws extended prohibitions to these
weapons’ manufacture, possession, sale, or use in crime.
228
As the table in
Appendix A shows, at least six distinct types of clubs and blunt objects were
regulated in the United States. Notably, every state in the nation had laws
restricting one or more types of clubs. According to a detailed reference
book on the subject of these blunt instruments by Robert Escobar, they were
96 FORDHAM URB. L.J. [Vol. LI
considered “objectionable objects, once feared but now forgotten.”
229
Escobar provides what he calls “a family history” of these blunt weapons,
but adding that “[i]t’s a disreputable family to say the least, black sheep even
within the study of weaponry.”
230
They have been described as “wicked,
cowardly, ‘Soaked in blood and cured in whiskey.’”
231
Those who carried
them (excluding police) “were called vicious, devils and lurking
highwaymen.”
232
These club-type blunt objects compose a family of objects
used for striking others, and while they vary in name and construction, the
categories are “somewhat fluid.”
233
Among the six types of clubs regulated in U.S. laws, 15 states barred
bludgeon carrying. A bludgeon is a short stick with a thickened or weighted
end used as a weapon.
234
The earliest state anti-bludgeon law was in 1799;
12 such state laws were enacted in the 1700s and 1800s, and four in the early
1900s (as with each of these chronological categories, the state law total
exceeds the total number of states because some states enacted the same or
similar laws in multiple centuries).
A billy
235
club is a heavy, hand-held rigid club,
236
usually made of wood,
rubber, plastic, or metal,
237
that is traditionally carried by police, often called
a nightstick or baton.
238
Escobar cites an early reference to the billy club in
an 1854 New Orleans newspaper article in the Daily True Delta that referred
2023] GUN LAW HISTORY AFTER BRUEN 97
to “police armed with batons,”
239
a synonym for a billy club. As this
reference suggests, police have long adopted the billy club, or similar
striking implements, as part of their on-duty weaponry. At least 16 states
had anti-billy club laws, totaling 46 laws;
240
the earliest law appears to have
been enacted in Kansas in 1862,
241
followed by a New York law in 1866.
242
14 states enacted such laws in the 1800s; 11 states did so in the early
1900s.
243
At least 14 states barred the carrying of “clubs” more generically,
without specifying the type.
244
The oldest anti-club law was 1664; seven
states enacted these laws in the 1600s-1700s, seven states in the 1800s, and
two in the early 1900s.
245
Anti-slungshot laws were enacted by 43 states, with 71 laws enacted in
the 1800s and 12 in the 1900s.
246
A slungshot (or slung shot), also referred
to as “a type of blackjack,”
247
is a hand-held weapon for striking that has a
piece of metal or stone at one end attached to a flexible strap or handle that
was developed roughly in the 1840s (the first “known use” of slungshot was
1842).
248
By one account, “[s]lungshots were widely used by criminals and
street gang members in the 19th Century. They had the advantage of being
easy to make, silent, and very effective, particularly against an unsuspecting
opponent. This gave them a dubious reputation, similar to that carried by
switchblade knives in the 1950s, and they were outlawed in many
jurisdictions. Their use as a criminal weapon continued at least up until the
early 1920s.”
249
Escobar concurs that slungshots and blackjacks “were a
regular part of criminal weaponry . . . and gangsters could be merciless in
their use.”
250
In a criminal case considered the most famous of those
involving lawyer Abraham Lincoln, the future president defended a man
charged with murdering another using a slung shot. In the 1858 trial of
98 FORDHAM URB. L.J. [Vol. LI
William “Duff” Armstrong, Lincoln succeeded in winning Armstrong’s
acquittal.
251
These weapons were viewed as especially dangerous or harmful when
they emerged in society, given the ubiquity of state laws against carrying
them enacted after their invention and their spreading use by criminals and
as fighting implements. These devices were invented and appeared in
society during an identifiable period of time in the mid-nineteenth century,
sparking subsequent wide-ranging prohibitions. The earliest anti-slungshot
law was enacted in 1850; 43 states legislated against them in the 1800s
(including the District of Columbia), and 11 states in the early 1900s (note
this incorporates multiple laws enacted in more than one century by a few
states).
252
Sandbags, also known as sand clubs, were also a specific focus in anti-
carry laws as well. Consisting of nothing more than sand poured into a bag,
sack, sock, or similar tube-shaped fabric (although the weight could also be
something dense and heavy, like a lock in the end of a sock),
253
their
particular appeal was that they could be dispensed with by simply pouring
the sand out, leaving nothing more than an empty cloth bag. Alternately,
they could be made heavier by adding water to the sand. The first anti-
sandbag law was 1866, with ten states enacting such laws — seven in the
1800s and seven in the early 1900s.
254
Only four states did not have any
prohibitions in any of these six categories, but three of those four (Montana,
Ohio, and Washington State) had blanket legislative provisions against the
carrying of any concealed/dangerous/deadly weapons.
255
One state, New
Hampshire, may not have enacted such a law during this time but did at some
point.
256
2023] GUN LAW HISTORY AFTER BRUEN 99
C. Historical Restrictions on Pistol and Gun Carrying
Carry restriction laws were widely enacted from the 1600s through the
start of the twentieth century, spanning over three centuries. As early as
1686, New Jersey enacted a law against wearing weapons because they
induced “great Fear and Quarrels.”
257
Massachusetts followed in 1750.
258
In the late 1700s, Virginia and North Carolina passed similar laws.
259
In the
1800s, as interpersonal violence and gun carrying spread, 43 states joined
the list; four more did so in the early 1900s.
260
The enactment of laws
restricting concealed weapons carrying followed the rise of homicides and
interpersonal violence described by historian Randolph Roth, who noted that
restrictions on firearms from the colonial period to the start of the Revolution
were few because homicide rates were low.
261
When homicides did occur,
guns were seldom used, in large part because of the time involved loading
them, their unreliability, and (especially for pistols) their inaccuracy.
262
After the Revolutionary period, the spread of violence tied to concealable
percussion cap pistols and fighting knives led to the enactment of anti-
concealed carry weapons laws.
263
Concealed carry laws normally targeted
pistols as well as the types of fighting knives and various types of clubs
discussed here. In addition, at least three-fourths of the states enacted laws
that penalized public brandishing or display of weapons. At least four states
did so in the 1600s, two in the 1700s, 27 states in the 1800s, and three more
in the early 1900s.
264
As of 1938, “the carrying of concealed pistols is either
prohibited absolutely or permitted only with a license in every state but
two.”
265
Thus, the widespread enactment of concealed carry law restrictions
knives, daggers, and dirk-knives. C.f., N.H. Laws Ch. 67 (H.B. 1665) (2010). In 1923, New
Hampshire enacted an extensive licensing system for handgun carrying. N.H. Laws 138
(1923).
257. An Act Against Wearing Swords, Etc., 1686 N.J. Laws 289, 289 ch. IX.
258. An Act for Preventing and Suppressing of Riots, Routs and Unlawful Assemblies,
chap. 17, § 1, 1750 Mass. Acts 544.
259. See 1786 Va. Acts 35; see also 1792 N.C. Laws 60, ch. 3.
260. Including D.C. See Spitzer, supra note 53, at 63–67; An Act Against Carrying
Concealed Weapons, 1892 Vt. Acts & Resolves 95; 1923 N.H. Laws 138; infra App’x C.
261. See R
OTH, supra note 154, at 216–21; Randolph Roth, Why Guns Are and Aren’t the
Problem: The Relationship between Guns and Homicide in American History, in A RIGHT TO
BEAR ARMS? 116–17 (Jennifer Tucker et al. eds., 2019); ROGER LANE, MURDER IN AMERICA
344–45 (1997).
262. See R
OTH, supra note 154, at 216–21.
263. See id.
264. See S
PITZER, supra note 9, at 77–80; Robert J. Spitzer, To Brandish or Not to
Brandish: The Consequences of Gun Display, in NEW HISTORIES OF GUN RIGHTS AND
REGULATION: ESSAYS ON THE PLACE OF GUNS IN AMERICAN LAW AND SOCIETY (Joseph
Blocher, Jacob Charles, & Darrell A.H. Miller eds., forthcoming 2024).
265. Sam B. Warner, The Uniform Pistol Act, 29 J.
CRIM. L. & CRIMINOLOGY 529, 530
(1938).
100 FORDHAM URB. L.J. [Vol. LI
was the public policy remedy to the emergent crime problem described here.
In addition, and consonant with a maturing society, at least 29 states also
broadened their laws to restrict open weapons carrying between the 1830s
and the early 1900s. Further, at least 22 states enacted laws restricting the
carrying of long guns between the 1850s and the early 1900s.
266
D. Historical Restrictions on Trap Guns
Not to be confused with firearms used in trapshooting, trap guns were
devices or contraptions rigged in such a way as to fire when the owner was
not present to operate the gun. Typically, trap guns could be set to fire
remotely by rigging the firearm to be fired with a string or wire which then
discharged when tripped.
267
This early law from New Jersey in 1771 both
defines and summarizes the problem addressed by this law:
Whereas a most dangerous Method of setting Guns has too much prevailed
in this Province, Be it Enacted by the Authority aforesaid, That if any
Person or Persons within this Colony shall presume to set any loaded Gun
in such Manner as that the same shall be intended to go off or discharge
itself, or be discharged by any String, Rope, or other Contrivance, such
Person or Persons shall forfeit and pay the Sum of Six Pounds; and on Non-
payment thereof shall be committed to the common Gaol of the County for
Six Months.
268
Also sometimes referred to as “infernal machines,”
269
the term “trap gun”
came to encompass other kinds of traps designed to harm or kill those who
might encounter them, including for purposes of defending property from
intruders. Unlike the other weapons restrictions examined here, opinion was
initially more divided on the relative merits or wisdom of setting such
devices, with some arguing that thieves or criminals hurt or killed by the
devices had it coming,
270
though the weight of opinion seemed mostly
against such devices because of the likelihood that innocent persons could
be injured or killed, and also because such devices represented an arbitrary
2023] GUN LAW HISTORY AFTER BRUEN 101
and excessive meting out of private, vigilante-type “justice” that was
unjustifiably harsh — to seriously wound or kill a person — for crimes like
stealing food or similar commodities.
271
Those who set gun traps typically
did so to defend their places of business, properties, or possessions. An 1870
newspaper account from an incident in New York City provides an example
where a burglar was killed by a gun trap set by a shopkeeper, who was then
prosecuted: “As there is a statute against the use of such infernal machines,
which might cause loss of life to some innocent person, the jury censured
Agostino.”
272
After the verdict, the man continued to be held under $2,000
bail.
273
Inevitably, the traps wound up hurting or killing innocents, even including
the person who set the trap. For example, an 1891 newspaper account from
Chillicothe, Missouri illustrated the problem: “George Dowell, a young
farmer, was fined $50 under an old law for setting a trap-gun. Dowell set
the gun in his corn-crib to catch a thief, but his wife was the first person to
visit the crib and on opening the door was shot dead.”
274
In all, at least 18 states had anti-trap-gun laws.
275
The earliest such law
encountered was the 1771 New Jersey law (above). 11 laws were enacted in
102 FORDHAM URB. L.J. [Vol. LI
the 1700s-1800s, and nine in the early 1900s (counting states that enacted
multiple laws across the centuries).
III. R
ECENT DEVELOPMENTS
A profound change in firepower occurred in the U.S. in the 1980s, when
semi-automatic handguns, and a new generation of more expensive and more
deadly guns, entered the criminal market.
276
According to criminologists
Alfred Blumstein and Richard Rosenfeld, writing in the 1990s about the
period from 1985-–1993 and the dramatic rise in gun crime and homicides
during that period, “[o]ver the last decade the weapons involved in settling
juveniles’ disputes have changed dramatically from fists or knives to
handguns, with their much greater lethality.”
277
More specifically,
Blumstein attributed this deadly crime spike in the 1980s to “the advent of
crack cocaine, semiautomatic handguns and gangs” which “sparked the
surge in killings by teen-agers.”
278
Blumstein noted that “[b]eginning in
1985, there was steady growth in the use of guns by juveniles in committing
murder, leading to a doubling in the number of juvenile murders committed
with guns, with no shift in the number of non-gun homicides.”
279
These
“young people are less likely to exercise the restraint necessary to handle
dangerous weapons, particularly rapid-fire assault weapons.”
280
This shift to greater firepower is consistent with the fact that “from 1973
to 1993, the types of handguns most frequently produced” were “pistols
by a Trap-Gun, supra note 274 (discussing trap gun law in Missouri); The Man Trap, supra
note 272 (discussing trap gun law in New York); How a Melon Thief Came to Grief,
W
ELLINGTON ENTER., Sept. 21, 1881,
www.newspapers.com/image/171228605/?terms=%22trap%20gun%22&match=1
[https://perma.cc/27A3-KQRU] (discussing trap gun law in Ohio); WRIGHTSVILLE STAR, Mar.
7, 1873, at 3,
www.newspapers.com/image/774191522/?terms=%22trap%20gun%22&match=1
[https://perma.cc/PE24-KJYE] (discussing trap gun law in Pennsylvania).
276. The prevailing crime handguns of the 1970s and early 1980s were so-called “Saturday
night specials,” cheap, smaller caliber, short-barreled, easily concealable revolvers that
accounted for much gun crime. See Frontline Hot Guns, PBS (June 3, 1997),
www.pbs.org/wgbh/pages/frontline/shows/guns/etc/script.html
[https://perma.cc/HX2S-PH7A]; Interview with Garen Wintemute, Frontline Hot Guns, PBS,
www.pbs.org/wgbh/pages/frontline/shows/guns/etc/script.html
[https://perma.cc/9U23-6NCB].
277. Alfred Blumstein & Richard Rosenfeld, Explaining Recent Trends in U.S. Homicide
Rates, 88 J. CRIM. L. & CRIMINOLOGY 1175, 1191 (1998).
278. Fox Butterfield, Guns Blamed for Rise in Homicides by Youths in 80’s, N.Y. TIMES
(Dec. 10, 1998), www.nytimes.com/1998/12/10/us/guns-blamed-for-rise-in-
homicides-by-youths-in-80-s.html [https://perma.cc/A93H-X3B8].
279. Alfred Blumstein, Violence by Young People: Why the Deadly Nexus?, 229 NAT’L
INST. JUST. J. 2, 5 (1995), www.ojp.gov/pdffiles/nijj_229.pdf
[https://perma.cc/DA8W-4KGP].
280. See id.
2023] GUN LAW HISTORY AFTER BRUEN 103
rather than revolvers. Pistol production grew from 28% of the handguns
produced in the United States in 1973 to 80% in 1993.”
281
Pistols “generally
contain cartridges in a magazine located in the grip of the gun. When the
semiautomatic pistol is fired, the spent cartridge that contained the bullet and
propellant is ejected, the firing mechanism is cocked, and a new cartridge is
chambered”
282
whereas a revolver is defined as a “handgun that contains its
ammunition in a revolving cylinder that typically holds five to nine
cartridges . . . .”
283
In testimony before Congress on what became the assault weapons ban of
1994, law enforcement representatives discussed the rise in criminal
firepower they witnessed in the 1980s. For example, the executive vice
president of the National Association of Police Organizations, Tony Loizzo,
offered this testimony:
In the past, we used to face criminals armed with a cheap Saturday Night
Special that could fire off six rounds before loading. Now it is not at all
unusual for a cop to look down the barrel of a TEC–9 with a 32 round clip.
The ready availability of and easy access to assault weapons by criminals
has increased . . . dramatically . . . . The six-shot .38 caliber service
revolver, standard law enforcement issue for years, it just no match against
a criminal armed with a semi-automatic assault weapon.
284
John Pitta, executive vice president of the Federal Law Enforcement
Officers Association testified similarly with respect to the 1994 bill: “[t]he
TEC–9 assault pistol is the undisputed favorite of drug traffickers, gang
members and violent criminals. Cities across the country confiscate more
TEC–9s than any other assault pistol.”
285
The ultimate result was
congressional enactment of a ten-year restriction on assault weapons and also
on ammunition magazines capable of holding more than ten rounds.
286
C
ONCLUSION
What does the law say, and what should the law be, regarding the
regulation of firearms and other harmful or dangerous weapons and
accessories, in the light of the Supreme Court’s history-centric ruling in the
Bruen decision? Given the importance of history, especially, though not
limited to, the founding era and the Reconstruction era, the lesson is
abundantly clear.
104 FORDHAM URB. L.J. [Vol. LI
As the series of examples examined here illustrate, gun policy changes
occur in and through a sequential process. First, a new gun or gun
technology is invented. Second, it may then be patented, though the
patenting of a design or idea by no means assures that it will proceed beyond
that point. Third, it is often developed with a focus on military applications
and supplying military needs, not directly for civilian acquisition or use.
Fourth, some weapons may then spread to, or be adapted to, civilian markets
and use. Finally, if such weapons then circulate sufficiently in society to
pose a safety, violence, or criminological problem or threat, calls for
government regulation or restriction then may lead to gun policy/law
changes. New gun laws are not enacted when firearm technologies are
invented or conceived. They are enacted when those technologies circulate
sufficiently in society to spill over into criminal or other harmful use,
presenting public safety concerns that governments attempt to address
through their police and policy-making powers.
Beyond that, firearms and other dangerous weapons were subject to
remarkably strict, consistent, and wide-ranging regulation throughout our
history. This historical record spanning four centuries, as seen in the
examples examined here, is even more remarkable given that the United
States was an evolving and developing nation-state that could not claim to
have reached maturity until the twentieth century. The historical record
summarized here makes clear that contemporary restrictions of firearms
among the states are merely the latest iteration of a centuries-long tradition
of weapons regulations and restrictions.
Gun ownership is as old as the country. But so are laws restricting guns
and other dangerous weapons, which have adapted to changes in threats to
public safety. If this history teaches anything, it is that the state has no less
an abiding interest in preserving public safety today by restricting the tools
that magnify violence than it did in prior centuries.
2023] GUN LAW HISTORY AFTER BRUEN 105
APPENDIX A: DANGEROUS WEAPONS RESTRICTIONS
(YEARS
OF ENACTMENT)
287
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
Ala. 1837
1839
1841
1867
1876
1877
1879
1892
1805 1873 1839
1841
Alaska 1896
†
1896-
1899
1896 1896
Ariz. 1867
1889
1901
1873
1889
1893
1901
1889 1867
Ark. 1871
1875
1881
1835 1871 1820
1837
Cal. 1855
1896
1849
1853
1876
1917
1923
1864
1923
1917
1923
1850
1864
1849
Colo. 1862
1867
1877
1881
1876 1886 1862 1862
Conn. 1890
†
1890 1890
1923
Del. 1881
†
1797 1852
106 FORDHAM URB. L.J. [Vol. LI
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
D.C. 1858
1871
1892
1871 1857
1871
Fla. 1835
†
1838
1847
1868
1893
†
1888 1868
1888
1887
Ga. 1837
1860
1873
1816 1860 1837
Haw. 1852
1913
1852
1913
1913
Idaho 1864
†
1875
1879
1909
1875 1879 1909 1864
Ill. 1876
1881
1845 1881
1893
1881
Ind. 1859 1804
1855
1881
1905
1875
1905
1820 1831
Iowa 1882,
1887
1900
1882 1882 1887
1900
1882
1887
1897
1929
Kan. 1862
1863
1868
1883
1887
1862
1887
1883
1887
1899
1901
Ky. 1859 1798 1859 1812
1813
La. 1870 1813 1813
1842
2023] GUN LAW HISTORY AFTER BRUEN 107
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
1870
Me. 1840
1841
1884
†
1786 1840 1841
Md. 1872
1886
1888
1890
1809
1874
1886
1872
1874
1884
1886
1890
1927
1886 1890 1872
Mass. 1836
†
1750 1850
1927
1751
Mich. 1891 1927
1929
1887
1891
1927
1929
1913 1887
1891
1929
1887
1891
1927
1929
1887
Minn. 1882 1882
1888
1888 1881 1882
Miss. 1837
1838
1878
1880
288
1799
1804
1878 1838
1878
Mo. 1871
1897
1917
1923
1871
1897
1923
1818
1923
1883
1888
1897
1917
1873
Mont. 1864
1879
1885
1887 1864
1865
1888
Neb. 1877
1890
1899
1858 1872
1890
1899
1890 1881
108 FORDHAM URB. L.J. [Vol. LI
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
Nev. 1873 1872 1881 1881
1925
N.H. 1923
N.J. 1871
1895
1905
1799
1877
1927
1871
1927
1871
1873
1927
1871
1927
1686
N.M. 1852
†
1853
1859
1864
1887
1887 1853
1859
1869
1887
1852
1853
N.Y. 1866
1885
1911
†
1911
1913
1931
1866
1881
1884
1885
1900
1911
1913
1931
1664 1866 1866
1881
1900
1911
1913
1931
1891
N.C. 1840
1856
1858
1860
1879
1879 1792
,
1840
N.D. 1895
1915
†
1915 1915 1895 1915 1895
Ohio 1859
1880
1890
1859 1788
1859
1880
Okla. 1890
1891
1903
1890
1891
1890
1891
1903
1890 1890
Or. 1885
†
1898
1917
1885
1917
1917 1853
Pa. 1897 1897 1851 1851
2023] GUN LAW HISTORY AFTER BRUEN 109
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
R.I. 1893
1896
1908
1893
1908
1893
1896
1893
S.C. 1880
1923
1880 1880
S.D. 1903
†
1877
1903
1877
Tenn. 1838
1856
1863
1867
1871
1881
1893
1879
1882
1893
1821
Tex. 1856
1871
1879
1897
1899 1871
1879
1889
1897
1899
1870
Utah 1877 1877
1888
Vt. 1892
1895
†
1895 1895
1897
Va. 1838
1887
1792 1887 1794
Wash. 1854
1859
1869
1881 1854
1859
1869
1881
1883
1892
1896
1897
W.Va. 1870
1882
1870
1882
1891 1870
110 FORDHAM URB. L.J. [Vol. LI
State Bowie
Knife
Bludgeon Billy/
Billie
Club
Club Slung
Shot
Sand
Bag/
Sand
Club
Pistol Any
Concealed
/Deadly/
Dangerous
Weapon
1891
1925
1891
1925
Wis. 1883
1896
1883
1888
1858 1883
Wyo. 1884
1890
1899
1925
1876
1893
1884
1890
1899
1876
Total
States
50
(incl.
D.C.)
15 16 13 43 10 50 13
Total
Laws
137 25 44 17 79 21 66 24
APPENDIX
B: BOWIE KNIFE LAWS BY TYPE
289
State No
Concealed
Carry
No
Carry
Greater
Criminal
Penalty
Tax/
Punish
for Sale
Tax
Ownership
No Sale
to
Barred
Groups
290
No
Brandish
Ala. 1839
1841
1876
1879
1837 1837
1897
1837
1867
1876
Ala-
ska
Ariz. 1893
1901
1889
Ark. 1875 1881 1871 1881
2023] GUN LAW HISTORY AFTER BRUEN 111
State No
Concealed
Carry
No
Carry
Greater
Criminal
Penalty
Tax/
Punish
for Sale
Tax
Ownership
No Sale
to
Barred
Groups
290
No
Brandish
Cal. 1896 1896 1855
1858
Colo. 1862
1877
1881
Conn.
Del.
D.C. 1871
Fla. 1838
291
Ga. 1837
292
1873
1837
293
1860
Haw. 1852
1913
Idaho 1909 1879
Ill. 1876
1881
1883
1881
Ind. 1859
Iowa 1882
1887
1900
Kan. 1862
1863
1887
1883
Ky. 1859
La. 1855 1870
Me.
Md. 1872
1884
112 FORDHAM URB. L.J. [Vol. LI
State No
Concealed
Carry
No
Carry
Greater
Criminal
Penalty
Tax/
Punish
for Sale
Tax
Ownership
No Sale
to
Barred
Groups
290
No
Brandish
1886
1890
Mass.
Mich. 1891
Minn. 1884
Miss. 1878
1896
294
1837
1838
1888
295
1841
296
1892
297
1840
Mo. 1871
1883
1890
1897
1917
1923
Mont. 1864 1879
Neb. 1890
1899
1872
Nev. 1873
N.H.
N.J. 1895
N.M. 1859
1887
N.Y. 1885
N.C. 1879 1856
1858
1846
298
N.D.
Ohio 1859
1880
Okla. 1890
1903
1890
1891
Or.
2023] GUN LAW HISTORY AFTER BRUEN 113
State No
Concealed
Carry
No
Carry
Greater
Criminal
Penalty
Tax/
Punish
for Sale
Tax
Ownership
No Sale
to
Barred
Groups
290
No
Brandish
Pa. 1897
R.I. 1893
1896
1908
S.C. 1923
S.D.
Tenn. 1838
1863
1867
1869
1881
1893
1838
1856
1838
1867
1856
1867
Tex. 1871 1856 1897
Utah 1877
Vt. 1892
Va. 1838
1867
1887
1838
Wash. 1854
1859
1869
W.Va. 1870 1882
1891
1925
Wis. 1883
Wyo. 1884
Total
States
29 17 8 5 3 10 4
Total
Laws
58 23 11 7 6 11 7
114 FORDHAM URB. L.J. [Vol. LI
APPENDIX C: TYPES OF CARRY RESTRICTION LAWS
(YEARS OF ENACTMENT)
299
State No Concealed
Carry Laws
No Open/Any Carry
Laws
No Carry
Long Guns
Ala. 1839, 1841
Alaska 1896
Ariz. 1889 1889, 1901, 1901 1901
Ark. 1820, 1837 1875, 1881
Cal. 1850, 1864 1878, 1917 1878, 1917
Colo. 1862
Conn. 1890, 1923 1890 1890
Del. 1852
D.C. 1857, 1871 1858 1858
Fla. 1887 1838, 1868 1868
Ga. 1837 1837, 1873 1873
Haw. 1913 1852, 1913 1852, 1913
Idaho 1909
Ill. 1881
Ind. 1820
Iowa 1882, 1887,
1897, 1929
Kan. 1901 1868, 1872, 1881,
1899
1868, 1881,
1899
Ky. 1812, 1813
La. 1813 1870 1870
Me. 1840
Md. 1872 1874, 1886 1874, 1886
Mass. 1751 1891, 1903, 1927 1891, 1903,
1927
Mich. 1887 1927, 1929 1929
Minn. 1881
Miss. 1878 1878
Mo. 1873 1923 1923
Mont. 1864, 1865
Neb. 1881 1872 1872
2023] GUN LAW HISTORY AFTER BRUEN 115
State No Concealed
Carry Laws
No Open/Any Carry
Laws
No Carry
Long Guns
Nev. 1881, 1925
N.H. 1923
N.J. 1686 1871, 1873 1871, 1873
N.M. 1852, 1853
N.Y. 1891
N.C. 1792
N.D. 1895 1895
Ohio 1859
Okla. 1890 1890, 1890 1890, 1891
Or. 1853 1898, 1917
Penn. 1851 1851 1851
R.I. 1893
S.C. 1880 1901
S.D. 1877 1877
Tenn. 1821 1867, 1869, 1879,
1881, 1893
1869, 1881,
1893
Tex. 1870 1871, 1879, 1879 1871, 1879
Utah 1877, 1888 1877 1877
Vt. 1895, 1897 1895
Va. 1794, 1838
Wash. 1881
W. Va. 1870 1882, 1891, 1925 1882, 1891,
1925
Wis. 1858
Wyo. 1876 1876, 1893 1893
Total
States
50 (plus D.C.) 29 22
Total
Laws
66 53 36