By Shawn Hubler
Saul Cornell’s corner of academia has historically been sleepy. So few scholars share his specialty that the Fordham University professor jokes that he and his colleagues could hold a national convention “in an English phone booth.”
But in the months since a landmark Supreme Court decision upended the standards for determining the constitutionality of gun laws, Cornell has been booked solid. An authority on the history and laws around U.S. weapons, he has served as an expert witness in at least 15 federal cases on gun control laws, which is roughly 14 requests more than he used to get in a busy year.
Gun historians across the country are in demand like never before as lawyers must now comb through statutes drafted in the Colonial era and the early years of the Republic to litigate modern firearms restrictions. From experts on military gun stamping to scholars of U.S. homicide through the ages, they have been called — many for the first time — to parse the nation’s gun culture in court.
Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, concealed carry restrictions on bowie knives and 18th-century daggers known as “Arkansas toothpicks,” and a string-operated “trap gun” that may or may not be comparable to an AR-15 semi-automatic rifle.
“This is what the courts have unleashed upon us,” said Darrell A.H. Miller, a Duke University law professor and faculty co-director at the Duke Center for Firearms Law. “Suddenly everyone is looking for early Republic scholars to tell them what the culture and norms around firearms law were in the 18th century.”
In a 6-3 decision last June, the Supreme Court dramatically shifted the standard for firearm restrictions. Writing for the majority in New York State Rifle & Pistol Association v. Bruen, Justice Clarence Thomas found that gun laws should be judged not by the longstanding practice of balancing gun rights against the public interest, but according to the Second Amendment’s text and the “historical tradition” of gun regulation.
The constitutionality of gun constraints, he suggested, would hinge on whether the government could show a “historical analogue” in the law, either in 1791 when Americans ratified the right to bear arms, or around 1868, when the Fourteenth Amendment extended protections against federal infringements on gun rights to the states.
That originalist view has been celebrated by gun rights advocates for strengthening a constitutional right and presenting a wide-open opportunity to erase gun control laws. Many others, seeking stricter controls against a crushing epidemic of gun violence, say that it is dangerous and absurd to base modern public safety on the 1700s and 1800s when a gun can be built with a 3D printer and plans shared on the internet.
Lawyers on both sides say it is unclear how Bruen will be interpreted in the long term; it seemed to leave some room to account for “unprecedented” societal concerns, new technology and sensitive places, such as schools.
In the near term, however, the decision has set off an explosion of legal challenges to gun laws and a scramble by government lawyers to find historically analogous regulations in centuries-old traditions and statutes.
The stakes are high. In just the first 10 weeks of this year, there have been more than 100 mass shootings, and gunfire has claimed the lives of more than 8,100 people and injured more than 6,000, according to the Gun Violence Archive, a research group that tracks public reports.
In West Virginia, a federal judge in October struck down a prohibition aimed at “ghost guns” that are untraceable and often built through at-home kits because, in 1791, privately owned firearms were not required to have serial numbers. In Texas, another federal judge recently ruled that it was unconstitutional to take guns from domestic abusers in part because men who beat their wives rarely were prosecuted, let alone forced to relinquish their firearms, until the 1970s.
The Bruen decision and subsequent federal rulings have provided momentum to gun rights groups across the nation, particularly in Democratic-led states.
“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,” Sam Paredes, the executive director of the Gun Owners of California, said. “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.”
Some judges have bristled at the new rules. In a Mississippi challenge to a law prohibiting felons from carrying firearms, U.S. District Judge Carlton W. Reeves last fall wrote in a blistering order, “This Court is not a trained historian,” adding, “And we are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791.” Reeves wondered if the court should hire a neutral history consultant; both sides objected, preferring experts of their own.
Other judges have demanded encyclopedic briefings. In California, a federal judge who is weighing challenges to several key gun laws ordered lawyers to draw up a compendium of laws on lethal arms from Colonial times through the post-Civil War era. The 56-page list submitted to U.S. District Court Judge Roger T. Benitez included dueling pistols, muskets, trick “cane guns” and a custom-made instrument of mass murder known as “the infernal machine.”
Robert J. Spitzer, a retired political science professor at SUNY Cortland who has written a half-dozen books on the history of gun rights, has consulted on at least 10 gun law cases. “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,” he said, adding that some of the first laws in Colonial America were gun control measures.
In Oregon, where gun rights groups are challenging controls passed by voters in November, the court file features dueling historians. For the plaintiffs, Ashley Hlebinsky, the former curator of the Cody Firearms Museum at the Buffalo Bill Center of the West in Wyoming. For the government, Brian DeLay, a historian at the University of California, Berkeley, and an expert in the history of early American arms.
A highlight is the discussion of a novel, multishot air rifle that Meriwether Lewis and William Clark brought on their continental expedition. The plaintiffs mention the gun as an indication that high-capacity firearms were common, even in the early 1800s, and yet were unregulated by the nation’s founders who presumably could have restricted them.
But DeLay writes that commercially feasible guns capable of firing multiple rounds were far beyond the technological reach of the era, and that those in existence were little more than “expensive curiosities” for collectors. Writing laws for them in 1791, he writes, would be like implementing regulations for “personal jetpacks” today.
Most of the scholars tapped by the states say they are both honored to serve and deeply unsettled. Some said they feared that partisan judges were co-opting history itself and larding the law with culture war myths and politically useful distortions; others that, in an anti-intellectual era, historians simply will be ignored.
How the law will ultimately view history remains to be seen.
On Thursday, the 11th U.S. Circuit Court of Appeals in Atlanta cited 19th century laws to uphold a Florida age limit on gun purchases, rejecting a challenge by the National Rifle Association. But last month, the 5th U.S. Circuit Court of Appeals in New Orleans struck down a Texas prohibition on guns for people who have domestic violence restraining orders against them.
Adam Winkler, a University of California, Los Angeles, law professor who has written widely on gun rights, said that inconsistency in the way the appellate courts interpret history will likely force the Supreme Court to eventually clarify or revise the Bruen test, but the bar will be high for firearm restrictions. “The fact of the matter is, a large number of our gun laws are 20th century inventions,” he said.