Historians have found themselves caught in the middle of America’s debate over gun control ever since the Supreme Court ruled in 2022 that firearms laws must be consistent with American “tradition.”
That decision in New York State Rifle & Pistol Association v. Bruen set off a new wave of challenges to state and federal restrictions on guns.
“What’s happening now is a fight over what the Second Amendment ultimately means,” says Chuck Michel, president and general counsel at the California Rifle & Pistol Association, which is suing the state over newly passed limits on concealed firearms. “This truly is a historic time for Second Amendment jurisprudence.”
Bruen has also created sudden, intense interest in research from people such as Brennan Gardner Rivas, an independent scholar who wrote her dissertation on the history of gun regulation in Texas.
“The states and attorneys general who are trying to defend their gun laws from challenges now have to seek out historians to identify analogous historical laws,” Rivas says. “They’ve all found me on their own through Googling me and looking up my publications and things like that.”
Rivas, who has consulted on more than a dozen cases since the landmark Bruen decision, says her work is a mixture of analyzing digitized collections of historical state laws, while also seeking out the “dusty archives” that might contain forgotten local or municipal ordinances. She says a prominent example of this was the ban on carrying guns in Tombstone, Ariz. — a ban that sparked the infamous gunfight at the O.K. Corral in 1881.
“I’m just always floored by how many regulations there were” in early America, Rivas says. “It seems like the more we dig, the more we find.”
The results of this kind of research have been collected in the Repository of Historical Gun Laws, maintained by the Duke Center for Firearms Law.
“It’s a searchable database that now is up to over 2,000 historical gun laws stretching from the medieval ages in England all the way up to about the 1920s or 1930s, which is when the federal government began to regulate firearms,” says Andrew Willinger, the center’s executive director. The repository was opened to the public in 2019.
The effort to collect historical gun regulations gained steam in the years after a 2008 Supreme Court ruling in District of Columbia v. Heller that signaled the high court’s interest in a more originalist approach to gun rights.
“Heller sort of set the stage for a jurisprudence that is more heavily historical than other areas of constitutional law,” Willinger says. “And so that’s really why the repository was started initially, because these historical arguments have an outsized role in the Second Amendment context.”
Besides the repository’s legal utility, Willinger says, it sheds light on history itself and the sometimes surprising ways attitudes toward guns have varied over time and across regions. As an example, he points to concealed firearms.
“It tended to be Southern states that were the most stringent in prohibiting concealed carry,” he says. “I think it reflected this feeling that concealed carry, as opposed to open carry, was cowardly.”
In the 21st century, views have shifted, and it’s the open display of firearms that raises more concerns. “That illustrates this issue of how do these historical laws interact with social practice when you have social practice that basically flips on its head?” Willinger says.
Another in-demand consultant is Patrick J. Charles, who spent five years researching his most recent book, Vote Gun: How Gun Rights Became Politicized in the United States. He says it’s not hard to find examples of gun restrictions in American history.
“There were a lot of localities that outright prohibited any carriage within what they called their corporate or commercial limits,” Charles says. “So if you wanted to go to the dentist, you had to not carry your gun. If you wanted to go to the drugstore, you had to not be able to carry a gun.”
But for states trying to defend modern laws, he says that might not be enough.
“There’s plenty of laws out there — that’s not the issue,” Charles says. “The [Supreme] Court said, ‘History and tradition.’ So, if I find two or three laws, the other side says, ‘That doesn’t constitute a tradition, because it’s just two or three laws.'”
Gun rights lawyers say the courts are right to be picky about which historical laws to consider.
“Before, we used to have junk statistics. Now we have this battle for junk historians,” says Michel, the gun rights attorney. “The history that the states are putting out there is distorted, it’s twisted, it’s taken out of context. It’s not completely cited.”
Some historical laws have been discounted as outliers or too parochial or from the wrong era. There’s debate about whether the only relevant period is 1791, when the Second Amendment was written, or whether courts also can look to the mid- to late 1800s, when the 14th Amendment was approved.
Complicating things is the fact that the Bruen test doesn’t require a state to find identical laws in American history. It acknowledges that times change, so it’s enough to find old laws that are “analogous.”
“The question is, what’s a sufficient analogy?” Michel asks. “That’s, I think, something that I hope the Supreme Court will clarify sooner rather than later.”
One vehicle for that clarification might be this year’s big gun case at the Supreme Court, United States v. Rahimi. It’s a challenge to a modern law allowing police to remove the guns of a person subject to a domestic violence protective order. Such orders weren’t known in 1790s courts, so the case might provide the court a way to sketch out more clearly how other kinds of historical restrictions on guns may be interpreted by the courts as analogous to modern-day laws.
During the oral arguments for Rahimi, in November, the term “history” or “historic” was mentioned almost a hundred times in an hour and a half. A decision in that case is expected by summer.
Charles, the author of Vote Gun, also hopes the high court will provide more guidance, in part to reduce what he sees as the misuse of history — the “picking and choosing,” as he puts it.
“History is both fluid and stagnant,” Charles says. “We can’t change the past that happened, but it’s fluid in the sense that our understanding of it changes. It can change small or it can change large, depending upon what evidence is uncovered or a new perspective or a different question is asked.”
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