Key Takeaways
- Gun regulation at the founding was mostly state law, covering militia matters, gunpowder storage, and English-derived rules against carrying arms at fairs, markets, and before government officials.
- Under Bruen, modern gun laws are judged by their consistency with historical tradition, so courts reason by analogy from the purposes behind older laws.
- The Supreme Court has not settled whether 1791, 1868, or some broader period is the key reference point for that history.
What gun laws existed when the Second Amendment was ratified, and why would judges in the twenty-first century care?
In this TalksOnLaw Brief, Joel Cohen talks with Darrell A. H. Miller, now the Harry N. Wyatt Professor of Law at the University of Chicago Law School and co-founder of the Duke Center for Firearms Law, about the gun laws on the books around 1791 and their new relevance.
What Founding-Era Gun Laws Looked Like
Professor Miller explains that the historical record includes regulations of the militia, rules on gunpowder storage, and legacies of English common law, such as requirements that people keep weapons away from fairs, markets, and the king's ministers. These were overwhelmingly state laws. Apart from the militia, he notes, the federal government did not enter the business of gun regulation until around the 1930s.
The Statute of Northampton in North Carolina
His leading example is a North Carolina law from the late 1700s, nearly contemporaneous with the Second Amendment's ratification, that essentially cut and pasted the English Statute of Northampton, passed under Edward III, barring arms at fairs and markets and in the presence of the king's ministers. Transplanted to America, he explains, the concern was no longer the king's peace but the people's peace: the common peace that belongs to the people as sovereign. He adds that in Edward III's time the concern was swords and armor, not firearms.
From Jet Airliners to Analogies
Why does this matter now? Under New York State Rifle & Pistol Association v. Bruen, a regulation's constitutionality depends on its fit with historical tradition. But, Professor Miller notes, the federal government did not prohibit loaded guns in airliner cabins until the 1960s, and no 1791 law addressed jet travel. Courts will have to look at the purpose behind older laws: if fairs and markets were restricted because crowds made weapons dangerous, a sports arena may be analogous. Modern technology raises the stakes, as the Las Vegas shooting from a hotel room above a concert crowd showed. He also explains that the relevant time frame is hotly contested: it could be 1791, when the Second Amendment was ratified; 1868, when the Fourteenth Amendment applied it to the states; or a longer span. The Duke Repository of Historical Gun Laws, he notes, includes rules on firing guns from the decks of riverboats, which may inform debates over public transportation.
What to Know Now
Founding-era laws have become central evidence in gun cases. In United States v. Rahimi (2024), the Court relied on historical surety and "going armed" laws, including the tradition associated with the Statute of Northampton, to uphold the federal ban on gun possession by people under domestic-violence restraining orders, holding that modern laws need only be consistent with the principles behind the tradition. Courts have since weighed historical analogues in many settings: the Second Circuit relied on them in upholding bans on guns on the New York subway and in Times Square at a preliminary stage, while in 2026 the Supreme Court found Hawaii's private-property carry rule inconsistent with tradition in Wolford v. Lopez. The question of which era controls, 1791 or 1868, remains open. Scholars and judges continue to debate how to translate old laws into modern rules.
