Institute for Legal, Legislative and Educational Action
The anti-gun media’s campaign to delegitimize the Supreme Court’s decision in Bruen continues unabated, with the latest salvo fired by the New York Times. On Tuesday, the Times published its latest hit piece on the Bruen decision, this time focusing on the Court’s “text, history, and tradition” test, which the paper says has “forced courts to consider what gun restrictions existed two centuries ago, sending demand soaring for historians.”
Unsurprisingly, while both plaintiffs and defendants in challenges to gun control laws are now combing through old statutes in search of evidence bolstering their position, the Times spends the vast majority of the piece highlighting the historians that the gun control lobby is relying on to defend their infringements.
Saul Cornell’s corner of academia has historically been sleepy. So few scholars share his specialty that the Fordham University professor jokes that he and his colleagues could hold a national convention “in an English phone booth.”
But in the months since a landmark Supreme Court decision upended the standards for determining the constitutionality of gun laws, Dr. Cornell has been booked solid. An authority on the history and laws around American weapons, he has served as an expert witness in at least 15 federal cases on gun control laws, which is roughly 14 requests more than he used to get in a busy year.
Gun historians across the country are in demand like never before as lawyers must now comb through statutes drafted in the Colonial era and the early years of the Republic to litigate modern firearms restrictions. From experts on military gun stamping to scholars of American homicide through the ages, they have been called — many for the first time — to parse the nation’s gun culture in court.
Cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, concealed carry restrictions on bowie knives and 18th-century daggers known as “Arkansas toothpicks,” and a string-operated “trap gun” that may or may not be comparable to an AR-15 semiautomatic rifle.
“This is what the courts have unleashed upon us,” said Darrell A. H. Miller, a Duke University law professor and faculty co-director at the Duke Center for Firearms Law. “Suddenly everyone is looking for early Republic scholars to tell them what the culture and norms around firearms law were in the 18th century.”
While the Times presented Cornell as an undisputed expert on gun laws, they broadly ignored what he’s actually had to say about the right to keep and bear arms. Cornell wrote in 2006 that the right to keep and bear arms isn’t an individual right at all, but rather a “civic right” guaranteeing that “citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia.” Conveniently, Cornell’s maintained that because we’re not talking about a right of individuals to keep and bear arms “there can be no right to bear arms without extensive regulation.”
Of course, the Supreme Court squarely rejected Cornell’s theory in 2008 when it issued its decision in Heller, striking down Washington, D.C.’s ban on handguns and its requirement mandating all registered firearms be stored locked and unloaded with ammunition stored separately, but as the Times reports, he continues to be a favorite source for anti-gun politicians defending infringements old and new.
Demand has similarly boomed for scholars who can put gun technology and law into context, particularly among Democratic attorneys general defending restrictions.
Jennifer Tucker, who directs the Center for the Study of Guns and Society at Wesleyan University, said lawyers have reached out to seek experts on topics as disparate as weapon restrictions on stage coaches and the contested history around an 18th-century attempt at an extended capacity firearm — which supposedly would fire round bullets at Christians and square ones at “heathens” — known as the “Puckle gun.”
Robert J. Spitzer, a retired political science professor at SUNY Cortland who has written a half-dozen books on the history of gun rights, has consulted on at least 10 gun law cases. “The typical image of every adult white male owning a gun, using it to defend hearth and home, the wild West being tamed by the Colt and the Winchester — basically none of that stuff is true,” he said, adding that some of the first laws in Colonial America were gun controls.
That may very well be the case, but were those laws longstanding or widespread? More importantly, is a statute from 1619 particularly relevant when the Supreme Court has said that courts should be looking at the history and tradition of the right to keep and bear arms at the time the Second Amendment was ratified in 1791 and the ratification of the Fourteenth Amendment in 1868?
The Times report tries to put on a brave face for it’s largely anti-gun audience, but there’s no getting around the fact that the gun control lobby is a modern creation, quite unlike the right to keep and bear arms. As the paper concludes:
Adam Winkler, a University of California, Los Angeles, law professor who has written widely on gun rights, said that inconsistency in the way the appellate courts interpret history will likely force the Supreme Court to eventually clarify or revise the Bruen test, but the bar will be high for firearm restrictions. “The fact of the matter is, a large number of our gun laws are 20th century inventions,” he said.
The bar should be high, given that we’re talking about an individual right. The interest-balancing test incorrectly applied by lower courts in the wake of Heller and McDonald gave far too much deference to the government to enact gun control laws even when they implicated the right to keep and bear arms. The Ninth Circuit, for example, has still never ruled a gun control law out of order in the fifteen years since Heller came down; upholding California’s “may issue” carry laws and Hawaii’s open-carry prohibition, bans on “assault weapons” and “large capacity” magazines, and dozens of other anti-gun statutes. That’s the history that anti-gun activists would rather point to, but as Adam Winkler suggests, those modern creations aren’t going to fare well when the Bruen test is fairly applied to them.