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. 

Additional Resources

This video was created in collaboration with the Duke Center for Firearms Law, dedicated to the development of firearms law as a scholarly field, through the development and support of reliable, original, and insightful scholarship, research, and programming on firearms law. 

Cases and Law Discussed

  • Second Amendment to the United States Constitution –  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
  • NYSRPA v. Bruen – Supreme Court case which expanded Second Amendment rights outside of the home and established a new Second Amendment test. (2022)
  • Text, History and Tradition Test – Established by the 2022 landmark decision, NYSRPA v. Bruen, the text, history, and tradition test now governs laws restricting the right to keep and bear arms – invalidating any gun laws that fail to meet its standard.

Related Resources 

  • District of Columbia v. Heller – Established the personal 2nd Amendment right and struck down a law banning the keeping of guns in the home. (2008)
  • Gun Laws after Bruen – a 1hr titans of law interview with Prof. Blocher on the Supreme Court's decision in NYSFPA v. Bruen and its impact. 
  • Sensitive Places under the Second Amendment – restrictions on firearms are permited in areas deemed "sensitive" under Second Amendment doctrine. 
  • McDonald v. Chicago – Supreme Court case that established (through the 14th Amendment) that the 2nd Amendment right to keep and bear arms is applicable to states. (2010)

Gun Laws at the Founding Brief Transcript

An interview with constitutional law scholar, Prof. Darrell Miller of Duke Law School. 

Joel Cohen (host): Today we're going to be talking about gun laws. Not today, not last year, but the time of the founding of the United States. Hello and welcome to TalksOnLaw. I'm Joel Cohen. Today joining me on this historical gun rights, gun law journey is Professor Darrell Miller of Duke Law School, he is the co-director of the Duke Center for Firearms Law. Darrell, it is a treat to talk to you today. 

Professor Darrell Miller: Happy to talk to you Joel. 

Host: And we're talking about gun rights and gun laws at the founding. I guess first off. When are we talking about? 

Gun Laws at the Time of the Founding

Prof. Darrell Miller: Well, if you look in the historical record, there's going to be regulations on things like the militia. There's going to be regulations on storage of gunpowder. And then there's going to be some kind of regulations that are legacies of the English common law like requirements that people keep their guns away from fairs or markets or in the presence of the king's men such as government ministers. Those are all the kinds of laws that are on the books around 1791 when the Second Amendment is ratified. 

Host: So am I right that at the time of the founding we'd be talking about state laws that regulate guns. There wouldn't have been federal laws. 

Prof. Darrell Miller: Right, the federal government (except for the militia) does not get in the gun regulation business until the 1930s about, so most of this is state regulation. 

Host: Let's get into the weeds. Why don't we have a couple of examples of the laws that did exist at the time of the founding.

Prof. Darrell Miller: Right, so one important and really interesting one is a law from North Carolina in the 1700s. It's almost contemporaneous with ratification of the Second Amendment in 1791. And this essentially just cut and pasted an old common law era English regulation about prohibitions on guns in fairs and markets or in the presence of the king’s ministers. This was a statute that was known as the Statute of Northampton. It was passed under the reign of king Edward the Third and, essentially, its language is just cut and pasted into the North Carolina law. 

Host: What did North Carolina do when it came to the King's Men? Did they replace it with something else? 

Prof. Darrell Miller: Yeah. I think the premise was that when the Statue of Northampton is essentially transposed into the modern era, it's not about the king's peace anymore, right? So this is a peace provision. This is about keeping the peace from quarreling groups. It's about the people's peace. That is, it's the common peace that belongs not to the sovereign but to the people as sovereigns. This is a part of a larger, interesting area about the nature of the peace and who gets to keep the peace. 

Gun Laws That Did Not Exist at the Founding

Host: Well, I can imagine there's also a number of current gun laws that certainly did not exist. I'm thinking of technologies and places that weren't around at the time of the founding. Maybe you could walk through some examples that exist today of gun laws or gun regulations. That would not have existed at the time of the founding right? 

Prof. Darrell Miller: So, I mean, obviously we live in a completely different world in terms of transportation, in terms. of society, in terms of the size and congestion of cities then they did in the 1700s. So, a prime example that I often think of is that it really wasn't until the 1960s that the federal government got in the business of prohibiting guns, at least loaded guns in private hands in the cabin of a jet airliner. Obviously, you're never going to find a gun regulation about jet airliners in 1791 because there are no jet airliners. So this is an incredibly significant and important set of questions. Now that a case called New York State Rifle and Pistol Association v. Bruen has been decided because Bruen says that the constitutionality of a regulation is decided by how traditional it is, and if you talk about what is the tradition of prohibiting guns on airplanes, and you have to go back to 1791, you're not going to find anything. So what this suggests is these historical laws that existed in 1791 or thereafter are going to have to be understood not about whether they are about airplanes, but what is the purpose behind them in thinking about where guns might be restricted in the modern era. 

Host: So there may be an analogy approach where it's, okay, if as you mentioned, fairs and markets were seen as overly congested and therefore perhaps a dangerous place to discharge a firearm. Well, by analogy, perhaps a sports arena would fit. 

Prof. Darrell Miller: Absolutely. I mean that's the kind of work of analogy that's going to happen in the post-Bruen era and just to be clear. In Edward III’s time, we're not talking about firearms, we’re just talking about swords or talking about armor, but the dangers of weapons in congested crowded areas is totally exacerbated by modern technology where, as we saw in a tragedies like Las Vegas, where you don't even need to be in the crowd to actually be able to rain down.

Host: The shooter was in an adjacent hotel room. 

Prof. Darrell Miller: Yeah the shooter was in a hotel room above a crowd and so the modern era is going to have us really have to think about what are the purposes for these historical regulations? And how do they map on to our modern problems like people taking guns on airplanes, like people taking up sniper positions at outdoor concerts, and so forth. 

The Importance of Historical Gun Laws Today

Host: You mentioned that after the Bruen case, Second Amendment analysis or gun law restrictions have to be viewed with this text history tradition tests. What is the window of time that's relevant under that test. Is it just at the time of the founding or is it at the time the specific amendments were ratified? 

Prof. Darrell Miller: Well, that's a really important and hotly contested set of questions. So the case law, as it's developed and in Bruen itself, is not clear about what the relevant dates are. It could be 1791 when the 2nd is ratified or thereabouts. It could be 1868 when the 14th Amendment is ratified because the 2nd Amendment is applied to the states through the 14th Amendment. It could be some kind of an amalgam of time between these two dates or even longer, just so long as the same kinds of regulation is in place. So we don't have a really concrete answer to that question. of what is the relevant date. We've got some sense that some kinds of laws are going to be too new and therefore are going to be suspect because of their novelty, but even in those circumstances, there might be an opportunity to say, well, this modern regulation like a regulation on a gun in an airplane is similar enough to a historical regulation that it forms part of an unbroken tradition. 

Host: Interesting. So if and I haven't read all the laws that you have listed in this repository of ancient gun laws that you have on your website, and if there was a law that said you're not allowed to bring a canon on a ferry, then, we might be looking to a law like that to try and understand bringing a gun on an airplane. 

Prof. Darrell Miller: Right, so, I mean there are actually regulations in the repository about shooting guns off the decks of river boats, for example. And so what we're going to find out in the future is is that close enough to a prohibition on a loaded gun in the cabinet of a jet airliner to support a tradition of keeping guns out of public transportation or out of dangerous places like airplanes.

Host: Darryl Miller is a professor of law at Duke Law School and the co-director of the Duke Center for Firearms Law. What a fun conversation looking back at these laws and learning how they're so newly relevant today. 

Prof. Darrell Miller: Thank you.