Gun Control Regulations are as American as Apple Pie
Update 8/7/19: We originally published this piece after the mass shooting in Virginia Beach in June, but it's even more relevant after the twin massacres in El Paso and Dayton, and the renewed interest in expanded criminal background checks, red-flag laws and assault weapons bans.
After the mass shooting in Virginia Beach in June, Governor Northam called a special session of the legislature to consider new gun regulations in Virginia. The response from Republicans was fairly predictable; new laws would do nothing to reduce gun violence and would violate the Second Amendment.
Bluefield Daily Telegraph: “Let me just say my position has been very clear,” [VA] Senator Ben Chaffin, R-Russell, told the Bluefield Daily Telegraph. “ I support the Second Amendment which guarantees our right to bear arms without infringement. I will oppose and fight any attempt to restrict our constitutional rights. I will likewise oppose and fight any attempt to violate our due process as guaranteed as guaranteed by the United States and Virginia Constitutions.”
Certainly we should debate the merit of any proposed regulations based on the best available research, but the Second Amendment itself doesn't much limit the passage of gun laws created to ensure the public's safety. The Amendment was never meant to be an absolute bar on gun regulation and America's history, from our founding onward, is replete with restrictions on gun ownership and use. Public safety has always trumped gun rights.
The National Rifle Association [NRA] and many conservatives have pushed the false notion that the Supreme Court substantially limited potential gun control legislation with its opinion in DC v Heller . That is simply a fiction. While conservative Justice Antonin Scalia, writing for the majority, held that gun ownership is a general right [not just for those in a "militia"], he recognized that the right could be regulated by the states.
The Court found that cities like Washington, DC could not entirely ban handguns but suggested that many gun regulations would be constitutionally permissible. For example, Scalia wrote, "although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Scalia acknowledged that the nation's founders had created a myriad of gun control regulations based on public safety concerns.
So, DC v Heller stands for the principal that the government can't ban some types of guns entirely, but that sensible restrictions are permissible. What gun regulations will pass constitutional muster will rest on the future make-up of the Supreme Court and whether the justices will acknowledge America's long tradition of creating gun laws to protect public safety, many of which were more intrusive and restrictive than anything proposed today.
Professor Adam Winkler, author of "Gun Fight: The Battle Over the Right to Bear Arms in America": "The founding fathers who wrote the Second Amendment didn't believe the right to keep and bear arms was a libertarian license for anyone to have any gun anywhere he wanted. While they believed that the right to have arms was an individual right and that government should never be able to completely disarm the people, they balanced gun rights with public safety."
The National Rifle Association and similar groups have created a mythology around gun ownership that portrays the founders and earlier generations as intolerant to restrictions on gun ownership. That is simply false and it's not difficult to disprove. Here is just a sampling of such laws from the founding of America into the early 20th century.
Bans on Classes of Individuals:
At the time of the nation's founding many states had laws which prevented entire classes of individuals from owning firearms, such as slaves, free blacks, Native Americans, immigrants and those that would not sign loyalty oaths during the Revolution. Such bans would be unconstitutional today because of the equal protection clause of the 14th Amendment, but they were important to the founders as regulations necessary to protect public safety.
Gun Carry Restrictions:
Contrary to what the NRA would have you believe, there was no recognized right to carry firearms in public places when the Second Amendment was written. Actually, prohibitions on carrying firearms were common in colonial America.
Spitzer: "As early as 1686, New Jersey enacted a law against wearing weapons because they induced “great Fear and Quarrels.” Massachusetts followed in 1750. In the late 1700s, North Carolina and Virginia passed similar laws. In the 1800s, as interpersonal violence and gun carrying spread, thirty-eight states joined the list; five more did so in the early 1900s."
Even the wild west wasn't so wild, at least regarding firearms. Frontier towns had some of America's most restrictive gun regulations.
Winkler: "Frontier towns in the west -- places like Deadwood, S.D., and Tombstone, Ariz. -- had the most restrictive gun laws in the nation. When residents of Dodge City, Kan., formed their municipal government, what was the very first law they passed? One prohibiting the carrying of concealed weapons." ...
..."Once Dodge City expanded its laws to bar the carrying of guns openly too, a sign posted on the main street warned, "The Carrying of Firearms Strictly Prohibited."
"And these laws were enforced. The illegal carrying of a firearm was the second most common basis for arrests in the old west -- right behind drunk and disorderly conduct."
Gun Storage Regulations:
The fear of fires caused by gunpowder led early American cities to pass laws regulating gun storage. Many cities determined that public safety was more important than a person's right to keep a loaded firearm close at hand. A good example is Massachusetts which enacted a law in 1782 which barred residents from keeping loaded guns in their homes, barns, stables or shops.
Justice Breyer discusses similar gun storage laws in Philadelphia and New York in his dissent in DC V Heller.
After the Civil War seven states passed outright gun bans, mostly on handguns, because of rising gun violence.
Spitzer: "A handful of laws established outright, categorical bans that criminalized the sale or exchange of firearms. All were enacted in the post–Civil War era. Six of the seven state bans—in Arkansas, Kansas, Texas, and three in Tennessee—were of pistols. The seventh, from Wyoming, banned all firearms— both handguns and long guns—from “any city, town, or village.” Arkansas also banned any sale or transfer of pistols, except for those in military use."
Semi-Automatic Gun Restrictions
Until the 1990s, banning semi-automatic weapons [those that fire a round with each pull of the trigger without manual reloading] wasn't controversial, and such laws have never been overturned by the Supreme Court as violating the Second Amendment.
Rhode Island, Michigan and Massachusetts banned them in 1927, and Minnesota and Ohio followed in 1933. In each case the definition of semi-automatic was a bit different, but they all outlawed firearms capable of automatically reloading after each shot. Virginia and several other states outlawed weapons which could shoot a certain number of bullets [seven in the case of Virginia] semi-automatically.
And such bans have continued right up to the present. California, New Jersey, and Connecticut passed assault weapons bans before Congress passed the federal Assault Weapons Ban in 1994, and Hawaii, Maryland, Massachusetts and New York outlawed them since the federal ban expired in 2004.
Gun Registration and Firearms Sales:
Gun registration laws are nothing new. The states enacted a variety of registration laws in the early 1900s, although, some, like New York's Sullivan law, applied only to handguns. In 1927 Michigan passed a law requiring the owners of pistols to present their guns to local officials for safety inspections. Montana required its residents to file reports of all guns in their possession in 1918.
At about the same time, some states began to license firearms sales and a few allowed local government officials to bar such sales. Florida (1927), Georgia (1902), and North Carolina (1905) gave local governments the authority to "license, regulate, or even bar the commercial sale of firearms." In 1917, New Hampshire began licensing gun dealers and required them to maintain records for each gun purchaser including their name and address. They then had to provide this information to local officials. In 1925, West Virginia barred the “public display” of firearms for sale. Gun dealers had to be licensed, and were required to keep records of the name, address, age “and general appearance of the purchaser.
These are just a few of the gun control regulations that have been created by state and local governments. For a more exhaustive list, please see Professor Robert Spitzer's fine article, Gun Law History In The United States And Second Amendment Rights."
And, everyone who writes about the issue of America's history of gun regulation owes a dept of gratitude to Mark Frassetto who published the most detailed list to date. See: Firearms and Weapons Legislation Up To The Early Twentieth Century, by Mark Frassetto, 2016.
For a more comprehensive discussion of the Second Amendment, there is nothing more balanced and even handed than Professor Adam Winkler's "Gun Fight: The Battle Over the Right to Bear Arms in America."
In the end, gun regulation is a political question and it's up to us to fashion sensible gun laws that balance individual rights with public safety. The Second Amendment is not going to answer this for us; it was never meant to.
By: Don Lam & Curated Content