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Courts all over America, including in Oregon, are wrestling with the constitutionality of gun laws in the wake of a Supreme Court ruling last year that said they should be viewed on the context of historical gun regulation.

Questions Abound on Applying Laws for Muskets to Assault Rifles

Another week, another mass shooting. So far in 2023, there has been an average of one a week. Inevitably, the public debate lurches back to restricting guns. And that conveys the conversation back to how gun rights were regulated in the 18th and 19th centuries.

This journey into history was prompted the U. S. Supreme Court’s 6-3 decision last year in which  Justice Clarence Thomas said contemporary gun regulation should be judged by historical practice  in 1791 when the Second Amendment was ratified as part of the Bill of Rights and in 1868 when the Fourteenth Amendment was ratified following the Civil War.

Gun rights advocates applaud the so-called originalist interpretation embraced by the court. Gun regulation advocates call originalism silly because the weaponry available today is sharply different and more powerful than anything available two centuries ago.

The question boils down to: Can laws and rights adopted when there muskets and rifles be meaningfully applied in our time to the ownership of automatic weapons and ghost guns?

The question is also a historical one that doesn’t necessarily buttress arguments by either gun rights advocates or gun regulation advocates. The question has sparked an explosion of lawsuits challenging existing gun laws, which in turn has been a boon for the relatively small cadre of historians who have studied and opined about earlier American treatment of guns.

Examples of Originalist Logic
A good example is a ruling by a West Virginia federal judge that tossed out a prohibition of ghost guns created on 3D printers without serial numbers. His reasoning: In 1791, it was legal for a private citizen to own a gun without a serial number.

Another example came when a federal judge in Texas ruled it was unconstitutional to remove guns from domestic abusers because prior to the 1970s men were rarely prosecuted for beating their wives.

Gun advocates see courtrooms in Blue States as an avenue to void gun regulations there, too. “We are going to defeat virtually every gun control on the books – assault weapons bans, large capacity magazine bans, ammunition registration, rosters of approved handguns for sale, limitations on how many guns you can buy in a month,” says Sam Paredes, executive director of the Gun Owners of California. “The courts have held that these laws don’t have an analogous law to 1791 when the Second Amendment was written, so they are by definition unconstitutional.”

The Ku Klux Klan Trials
There is a hole in this logic. Prior to ratification of the Fourteenth Amendment, the prevailing view of the Second Amendment was that it guaranteed the right for states to maintain and arm militias. If there was a right to own a gun, it was a right guaranteed by state constitutions, not the federal government.

The transcripts from the post-Civil War Ku Klux Klan trials include frequent references, including by defense attorneys representing Klansmen, to the prevailing view there was no federal constitutional right to own a gun. Part of the problem in recognizing this reality is that many people have never heard of, or chose to ignore, the Ku Klux Klan trials, which occurred during the tenure of President Ulysses S. Grant.

Complicating the picture further, arguments surfaced during this same period claiming the Fourteenth Amendment radically changed the Constitution to guarantee individual rights, including those in the Bill of Rights, for all Americans. Based on this analysis, the Second Amendment’s broader construction as a right to own a gun may only be true because of the Fourteenth Amendment. Gun rights advocates, for various reasons, don’t often cite the Fourteenth Amendment to back up their claims.

Historical Confusion
All this history has raised the ire of judges. In a hearing on a challenge to a Mississippi law prohibiting felons from possessing firearms, U.S. District Court Judge Carlton W. Reeves exclaimed, “This Court is not a trained historian. And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791.” Reeves suggested hiring a historian to sort things out. Both sides objected.

A federal judge in California who is overseeing several gun law challenges ordered lawyers to prepare a brief on gun laws in Colonial times. They produced a 56-page submission that reviewed the provenance of dueling pistols, muskets and “trick cane guns”.

The challenge in Oregon to voter-passed gun regulations under Measure 114 is unfolding in a Sherman County courtroom where expert witnesses include the curator of Wyoming’s Cody Firearms Museum for the plaintiffs and a University of California, Berkeley expert on early American guns for the defendants.

Missing from a historical context is how guns have radically transformed over centuries. Naturally, there is a disagreement about that, too. Gun rights advocates point to Meriwether Lewis and William Scott who they say possessed a multi-shot air rifle on their famous expedition. Brian DeLay, the historian working on the Oregon case, says multiple-round guns in that era were “curiosities”, not commercially feasible or technologically possible.

Some of the historians roped into gun law challenge lawsuits have expressed concern that courts are running roughshod over history in pursuit of partisan outcomes. A California judge ruling on a challenge to that state’s ban on large-capacity magazines dismissed the fuss: “The history and tradition is what it is.”

Back to the Supreme Court
Federal courts, based on their respective interpretations of  historical precedent, are ruling for and against gun restrictions across America, which suggests the fundamental question of gun rights will return to the Supreme Court for further refinement. It’s possible, the more recent history of weekly mass shootings will receive enhanced attention than colonial gun laws.

It’s also possible historians for courts will discover more actual history. “The typical image of every adult white male owning a gun, using it to defend hearth and home, the Wild West being tamed by the Colt and the Winchester – basically none of that stuff is true,” says Robert Spitzer, a retired political science professor and author of The Politics of Gun Control. Instead, he adds, some of the first laws passed in Colonial America were gun controls.