“They talk about gun rights. What about Chris's right to live?”
—Richard Martinez, after his son Chris was killed in the 2014 Santa Barbara spree shootings
“Your dead kids don't trump my Constitutional rights.”
—Joe “the Plumber” Wurzlebacher, responding to Richard Martinez
Firearms and ballistics are at the center of public debate in the United States today. They are technologies that are associated both with danger (in the form of gun violence) and safety (in the form of claims that firearms offer personal protection). This essay explores our understanding of the role of gun rights in American society through history: an issue which recent Supreme Court rulings have moved to the forefront of political debates in the face of efforts to regulate firearms and stem the tide of gun violence in the United States.Footnote 1
The quotations at the start of this article—from a conversation recorded after a deadly shooting spree near the campus of the University of California, Santa Barbara in 2014—appear in Jonathan Lowy and Kelly Sampson's article, “The Right Not to Be Shot.”Footnote 2 Lowy and Sampson, two leading attorneys working to end the epidemic of gun violence and cross-border gun trafficking, describe two “dueling visions” of gun rights in America. The first is an expansive vision, claiming that the Second Amendment entitles anyone who can legally possess a gun to carry and use it—any way and anywhere. This approach might be termed “gundamentalism,” since it implies that the Second Amendment trumps all other rights.
The second idea is that public safety—or, as Lowy and Sampson put it, “The right to live—the right not to be shot”—trumps individual gun rights. They write: “America's ‘First Freedom’ is not the right to firearms; it's the freedom that the Founders, in fact, announced first: the right to life, liberty, and the pursuit of happiness.”Footnote 3 Rights to other freedoms (e.g., speech, assembly, and liberty) may be threatened by unfettered gun use in the United States, an outlier among industrial democracies in its incidents of annual gun-related homicides, suicides, murder-suicides, and accidental deaths. In 2020, annual gun deaths soared past 45,000, the highest since 1994. People of color bear the brunt of the violence: 42 percent of firearm homicide victims in 2020 were Black males between the ages of 15 and 34, a group that accounts for only 2 percent of the population. Although school shootings understandably grab the public's attention, they account for less than 1 percent of the total gun deaths suffered by American children.Footnote 4 This is information that thirty years of federal restrictions on data gathering about gun violence cannot suppress.Footnote 5
These two diverging conceptions of gun rights are also associated with different histories.Footnote 6 Citing the Supreme Court's summer 2022 ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, legal scholar Darrell A. H. Miller of Duke University School of Law explains that the rights of American citizens are now contingent on our understanding of history, and that it is incumbent on judges to guard against an “ersatz history” based on “hagiography or invented traditions.”Footnote 7 After the Court's decision, Harvard University historian Jill Lepore wrote, “The Court's originalist justification for striking down a New York gun law is more than capricious—it relies on a fundamentally anti-democratic historical record that deliberately excludes women and people of color.”Footnote 8
What role did appeals to history play in the recent Bruen decision, and how do such appeals continue to impact post-Bruen litigation across the country? How accurate are the historical arguments made in these cases? How did the politicization of gun rights in the United States spur the writing of new versions of the past? What is the current state of historical research on guns and society, and what new areas of research are needed?Footnote 9
A Brief Overview of the History
“Does the Constitution require the public to be exposed to a risk of lethal violence?”Footnote 10 This is not a rhetorical question. On June 23, 2022, the U.S. Supreme Court decided Bruen, a case that recast Second Amendment jurisprudence and unleashed a tidal wave of lawsuits challenging existing gun laws in states across America.Footnote 11 In this controversial and ideologically charged decision, the Supreme Court ruled, for the first time in American history, that the Second Amendment confers a constitutional right to carry a gun outside the home for reasons of self-defense. In another unprecedented move, the Court rejected the use of the standard tools of constitutional analysis, including balancing tests that weigh the social cost of the exercise of the right to bear arms. In the wake of this decision, courts must now confine their analysis to “text, history, and tradition.”Footnote 12 Challenges to municipal and state gun regulations across the country—from limits on large capacity magazines (LCMs) to bans on carrying guns in public transport—are currently being litigated under the new, ideologically distorted, Bruen framework.Footnote 13
An important part of this new framework is the search for lineal progenitors and analogues of modern gun laws. Proponents of gun rights typically insist that regulations be direct descendants of earlier laws. Governments defending their laws have, more often than not, argued that modern gun violence poses new problems unanticipated by earlier generations and accordingly have focused on locating analogues of earlier laws.
A number of amicus briefs were submitted to the Supreme Court in the Bruen case, discussing the complex history of rights and regulations over centuries.Footnote 14 The majority decision, written by Justice Clarence Thomas, brushed aside criticism articulated in a dissent authored by Justice Stephen Breyer, who questioned the Court's foray into this contested historical terrain. The Bruen decision represents a doubling down on the originalist doctrine that has emerged as a defining feature of the Roberts Court's jurisprudence. As in its earlier gun rights decision, District of Columbia v. Heller (2008), the Justices left it up to lower courts to figure out what was the relevant history. One can appreciate the frustration of Federal Judge Carlton Reeves (Southern District of Mississippi), who complained that the Bruen decision requires him to “play historian in the name of constitutional adjudication,” adding, “The justices of the Supreme Court, as distinguished as they may be, are not trained historians.”Footnote 15
How Gun History Was Weaponized
There is great irony in the fact that the Supreme Court, while stressing the importance of “history”—produced a narrative about the past that rests on such thin empirical ground. The legal journals that explore the history of the Second Amendment are not normally peer reviewed and are edited by law students with little training in historical methods. The proliferation of legal journals, which now number over one thousand, exacerbates the problem by multiplying the ways that distorted accounts of the past enter legal scholarship without critical scrutiny from professional historians. More than that, Bruen was no accident: rather, it was the result of a decades-long political effort to rewrite historical understanding of the Second Amendment.Footnote 16
For more than two hundred years, most legal scholars viewed the Second Amendment as conferring a right “to keep and bear arms” only in the context of a “well-regulated militia.”Footnote 17 Participation was as least as much an obligation as a right conferring a strong claim against government interference. Militia statutes prescribed the type of weapon required by citizens and imposed penalties on those who failed to procure them. Founding-era militias were used to police slaves and put down agrarian protest, not foment resistance against government authority.
Over time, the Founders’ vision of a militia proved difficult to realize, and by the 1840s, many critics were bemoaning the inadequacy of this once venerated institution. The legal framework governing firearms evolved, in part in response to the proliferation of more deadly weapons. The invention of breech-loading firearms, metal cartridges, magazines, and other innovations meant that, by the end of the nineteenth century, firearms were over twenty times more lethal than the flintlock muskets and pistols of the Founders’ era.Footnote 18
The Supreme Court applied the militia-centered, collective view of the right to bear arms well into the twentieth century. It upheld the 1934 National Firearms Act and the 1938 Gun Control Act, which imposed severe restrictions on machine guns, sawn-off shotguns, and silencers. In United States v. Miller (1939), the Court found the Second Amendment protected the right to keep and bear firearms only for certain military purposes.Footnote 19 This ruling fit with the prevailing understanding of the Second Amendment in legal scholarship at the time. From 1900 to 1959, only twelve studies on the Second Amendment appeared in professional legal journals, each of them understanding the right as being linked to a well-regulated militia.Footnote 20 Even gun rights proponents acknowledged this privately at the time: In a 1955 internal report for the National Rifle Association (NRA), Jack Basil Jr. (who later became director of the NRA's Legislative Service) acknowledged that “the Second Amendment appears to apply to a collective, not an individual, right to bear arms.”Footnote 21
Proponents of expansive gun rights strove to undermine this consensus in both the courts and in public discourse. Although the NRA was best known to the public for its education and safety programs from the 1920s to the 1960s, it lobbied to promote a view of individual firearm ownership as a badge of citizenship essential to public safety and national defense. Nonetheless, the individual rights interpretation was slow to gain wider traction. In 1968, Congress responded to the crime and assassinations of the 1960s by passing the Gun Control Act, which regulated interstate firearm sales and imposed new age and mental health restrictions on gun purchases. Even actor and famed gun rights advocate Charlton Heston—a five-term president of the NRA who, decades later, became famous for saying the government would have to pry his gun from his “cold, dead hands”—joined the public campaign in support of passing the act.Footnote 22 One additional factor behind the 1968 Gun Control Act was a desire to protect domestic gun manufacturers from cheaper foreign imports.Footnote 23
The debate over gun rights and gun control was also impacted by the politics of race. For example, California's Mulford Act was enacted after the Black Panther Party's invocation of the Second Amendment and decision to open carry guns.Footnote 24 New research has also demonstrated that one important motivating force behind the adoption of federal gun control laws was a desire to protect domestic gun manufacturers against the threat posed by cheaper foreign imports. One of the leading champions of the 1968 Gun Control Act, Senator Thomas Dodd, for example, represented Connecticut, one of the oldest gun manufacturing regions in the nation.Footnote 25 Racism also shapes resistance to gun control; as Darrell Miller and others have noted, for in its modern Second Amendment jurisprudence, the Court has weaponized race in its effort to radically shift the understanding of Second Amendment rights.Footnote 26
After passage of the 1968 Gun Control Act, and a 1971 incident in which an NRA member was shot and killed during a raid by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the NRA redoubled its efforts to promote an individual rights reading of the Second Amendment.Footnote 27 Its view gained ground as the Republican Party shifted to the right, while other legislation removing restrictions on donations to political parties favored industry-promoting groups such as the NRA and the National Shooting Sports Foundation (The Firearm Industry Trade Association).Footnote 28 By the 1980s, a small group of lawyer-activists began publishing a flood of studies in legal journals arguing that the language of the Second Amendment was intended to protect an individual right unconnected to militia service.Footnote 29
History and historical reenactment were integral to advancing this novel narrative.Footnote 30 Through the NRA's magazines, supported scholarship, sponsored TV films, and a private museum network, the group tried to impose a monolithic, mythical reading of American history: what I term “gunsplaining” for the masses. In writing the Court's majority decision in the landmark 2008 Heller case—which, for the first time, held that the second Amendment protected an individual right to own a firearm for purposes of self-defense—Justice Antonin Scalia drew exclusively from the 1994 book, To Keep and Bear Arms: The Origins of an Anglo-American Right. In it, historian Joyce Lee Malcolm argues that the individual right to carry arms can be traced back to the 1689 English Bill of Rights. Malcolm, a historian of early modern England, holds an endowed faculty position at George Mason University funded largely by the NRA.Footnote 31
Scalia's opinion, however, rested on Malcolm's erroneous interpretation of English history.Footnote 32 As the text of the English Bill of Rights (1689) made clear, this right was restricted both by class and religion and was subject to Parliament's absolute authority to legislate.Footnote 33 Common law in England and colonial America recognized that personal security was best protected through a well-ordered society in which the public carrying of dangerous weapons was closely regulated in the interest of public safety.Footnote 34
Under English common law, the right of armed self-defense was extremely limited. Individuals were required to retreat, not stand their ground. At the time the Second Amendment was enacted, American law built on this heritage. The more aggressive modern view of standing one's ground only emerged later.Footnote 35 The historical narrative relied on by the Court majority in Bruen did not come from professional historians; instead, it came from popular culture. In movies, TV, and video games, the gun is depicted as a magical, sacred totem—like a magic wand—that enables good to conquer evil. In these cultural forms, the gun is portrayed as central to American identity.Footnote 36 This mythical narrative continues to cloud public debate over gun policy.
Some of the many falsehoods of the Supreme Court's “bad history” include the following:
1. That unfettered use of guns is a sacred American “tradition.”Footnote 37
2. That the Founders wrote the Second Amendment because they wanted citizens to be armed as a check on state power.Footnote 38
3. That guns were always necessary for replenishing food stocks. For at least two hundred years, most Americans have not relied on hunting as a major way of putting food on the table.Footnote 39
4. That all guns are constitutionally protected, and all guns are essentially the same. It is not true that “a gun is a gun is a gun”: modern semi-automatic weapons are exponentially more lethal than a flintlock musket.Footnote 40
A more recent development is the claim by proponents of expanded gun rights that gun control is inherently racist, classist, and sexist. NRA litigator David Kopel recently described the NRA as an “arsenal of civil rights.”Footnote 41
The idea that citizens have an unfettered constitutional right to carry weapons in public originated in the antebellum South and its culture of violence and honor.Footnote 42 Miller argues that the right to bear arms has been inextricably bound to racism and white supremacy since its inception: “There is a long tradition, going back to the slave codes, of disarming Blacks and enslaved persons. But equally, there is a long tradition of whites using private personal arms to act as privatized police of Black persons and communities in the slave patrol.”Footnote 43
Carol Anderson and Carl Bogus have documented that at least some of the framers (and ratifiers) of the Second Amendment wanted to ensure that their militias—which doubled as slave patrols—would never be disarmed. During Reconstruction, Klan members blamed the federal government for infringing on their “rights” to armed self-defense when it prosecuted them for terrorism against Black citizens.Footnote 44 Yet to read the arguments advanced by proponents of expanded gun rights in Bruen, Miller reflects, “You would think a main reason for regulating guns—both historically and today—was racial and ethnic bigotry.Footnote 45 While being careful to ensure that gun regulations do not replicate racial oppression (e.g., through unequal enforcement of laws), he concludes that it is essential to be aware of how gun rights are being enlisted to maintain white supremacy.Footnote 46
Toward a Broader History of Firearms
In conclusion, I propose the need for a history of firearms and their social impacts that goes beyond the rights paradigm and the celebration of innovations in gun design and manufacture.Footnote 47 The version of firearms history that contemporary courts, politicians, and others have relied on is drawn largely from corporate archives and a politically skewed account of the past. It does not include records of people on the other side of the gun: the victims and their families, the physicians who heal them, and the impact on society of the pervasive fear of gun violence. A wider range of archives and histories is needed for an integrated history of firearms that considers, among other things, the visual representations of firearms, religious narratives, and the history of emotions.Footnote 48
The study of objects in visual and material culture may be integral to investigating what might be called “the rights question” in the history of guns. For example, Figure 1, by the artist Glenn LaVertu, is part of a group of drawings entitled “Terminal Ballistics” that deal with the physical and emotional trauma of loss from gun violence. In a statement, LaVertu writes: “I started this series of works as a way to redirect the aim from the target/victim to the shooter/audience. They are a way for me to give a voice to the fallen, addressing the killer, and to generate empathy for the people they left behind.”Footnote 49
Glenn LaVertu, “I Am Loved By Someone” (2020). Materials: crayon, ink and 18k gold leaf on target practice sheet.
Bringing history of design, engineering, and consumer safety into the story of rights also offers a fruitful vein of research, for firearms are products, and consumers have rights, including to product safety information. A firearm is a technological object, and it is important to study the way in which changing technologies influence what firearm products are designed, manufactured, marketed, and sold. Courts, all the way up to the Supreme Court, have wrestled with the issue of how to define the category “firearms,” often looking to historians of technology for guidance.Footnote 50 At the same time that design changes in firearm and ballistics technology have increased their lethality exponentially since the 1700s, the term “gun” persists as a shorthand for products as different in design and capacity as flintlock muskets and AR15 rifles. Similarly, the term “bullet” is used to denote products that differ greatly in their capacity to cause extensive tissue damage (from buckshot pellets and soft lead bullets to the controversial Black Talon ammunition, introduced to the police market by Winchester in 1991, and so named for its metal “petals” designed to expand on impact to make wound channels wider). It also encompasses jacketed hollow-point bullets, which are widely marketed and sold in the U.S. today as personal protective armor for self-defense. These are designed to fragment on impact, increasing the damaging power of the bullet by decreasing what is sometimes referred to as its “over-penetration” (the bullet's chance of exiting the body). Furthermore, studies conducted by medical surgeons in laboratory experiments have found that the kinetic energy of a bullet relates directly to its wounding potential.Footnote 51
While firearm products do share much in common with other commercial products, such as household appliances and cars, there are many elements that are distinct in terms of how firearms are manufactured, consumed, represented in media, regulated, and de-regulated.Footnote 52 For example, product liability laws grant specific waivers to the gun industry, and the laws regarding ownership and use are currently in significant flux in the post-Bruen landscape.Footnote 53 Anti-gun violence movements are shifting their focus to the industry itself. The next few years will further another new wave of litigation—now on business rights, ethics, and responsibilities.
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