Gun Laws at the Founding

Gun regulations in the founding ara – what gun laws existed at the birth of the United States and how do they relate to the regulation of firearms today. Professor Darrell Miller of Duke Law School explores the status of gun laws during the founding of the United States and their relevance today.

Gun law at the time of the founding was largely a responsibility of the states. State laws included regulations of militia matters, gunpowder storage, and certain provisions inspired by English common law. For example a North Carolina law, nearly contemporaneous with the ratification of the 2nd Amending in 1891 adapted the English Statute of Northampton (from the 1300s) which restricted guns at fairs, markets, and in the presence of government ministers.  king's men. 

So why do these antiquated laws matter in the 21st century? The answer to that question turns on a recent Supreme Court case, New York State Rifle and Pistol Association v. Bruen. This landmark case established that the constitutionality of gun regulations hinges on their connection to historical traditions. In other words, we need to understand regulations past to make sense of the present and future of firearm regulations. This text, history & tradition test raises interesting questions where gun regulations seek to regulate modern locations or technologies that didn’t exist at the time of the founding.

Unlike in the 1700’s, today we have jet airliners, crowded sports arenas, automatic weapons, and high-rise hotels that raise new questions when it comes to firearm regulation. To adapt historical regulations to modern scenarios, legal scholars suggest an analogy-based approach. This method compares the intent behind old regulations, such as keeping guns out of congested areas, to current-day situations like sports arenas or airplanes. However, the debate is far from settled. Determining the appropriate time frame for analyzing the constitutionality of gun regulations remains a contested issue and courts continue to grapple with these questions.

Darrell Miller is a leading Second Amendment scholar and a professor at Duke Law School. He serves as co-director of the Duke Center for Firearms Law.