“What’s happening now is a fight over what the Second Amendment ultimately means,” says Chuck Michel, president and general counsel at the California Rifle & Pistol Association, which is suing the state over newly passed limits on concealed firearms. “This truly is a historic time for Second Amendment jurisprudence.”
Bruen has also created sudden, intense interest in research from people such as Brennan Gardner Rivas, an independent scholar who wrote her dissertation on the history of gun regulation in Texas.
“The states and attorneys general who are trying to defend their gun laws from challenges now have to seek out historians to identify analogous historical laws,” Rivas says. “They’ve all found me on their own through Googling me and looking up my publications and things like that.”
Rivas, who has consulted on more than a dozen cases since the landmark Bruen decision, says her work is a mixture of analyzing digitized collections of historical state laws, while also seeking out the “dusty archives” that might contain forgotten local or municipal ordinances. She says a prominent example of this was the ban on carrying guns in Tombstone, Ariz. — a ban that sparked the infamous gunfight at the O.K. Corral in 1881.
“I’m just always floored by how many regulations there were” in early America, Rivas says. “It seems like the more we dig, the more we find.”
The results of this kind of research have been collected in the Repository of Historical Gun Laws, maintained by the Duke Center for Firearms Law.
“It’s a searchable database that now is up to over 2,000 historical gun laws stretching from the medieval ages in England all the way up to about the 1920s or 1930s, which is when the federal government began to regulate firearms,” says Andrew Willinger, the center’s executive director. The repository was opened to the public in 2019. …
“There’s plenty of laws out there — that’s not the issue,” [Patrick J.] Charles says. “The [Supreme] Court said, ‘History and tradition.’ So, if I find two or three laws, the other side says, ‘That doesn’t constitute a tradition, because it’s just two or three laws.'”
Gun rights lawyers say the courts are right to be picky about which historical laws to consider.
“Before, we used to have junk statistics. Now we have this battle for junk historians,” says Michel, the gun rights attorney. “The history that the states are putting out there is distorted, it’s twisted, it’s taken out of context. It’s not completely cited.”
Some historical laws have been discounted as outliers or too parochial or from the wrong era. There’s debate about whether the only relevant period is 1791, when the Second Amendment was written, or whether courts also can look to the mid- to late 1800s, when the 14th Amendment was approved.
Complicating things is the fact that the Bruen test doesn’t require a state to find identical laws in American history. It acknowledges that times change, so it’s enough to find old laws that are “analogous.”
“The question is, what’s a sufficient analogy?” Michel asks. “That’s, I think, something that I hope the Supreme Court will clarify sooner rather than later.”
— Martin Kaste in In Today’s Gun Rights Cases, Historians Are in Hot Demand. Here’s Why