Historical Gun Laws Targeting 'Dangerous' Groups and Outsiders
13 Pages Posted: 19 Nov 2020
Date Written: September 30, 2020
Then-Judge Amy Coney Barrett opened her dissent in Kanter v. Barr by identifying a historical principle underlying modern gun regulation: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” She went on to suggest that dangerousness is the Second Amendment’s exclusive limiting principle, such that “legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety.”
This is a historically contestable position — many scholars and judges conclude that dangerousness was not the exclusive basis for disarmament, and that the Founding generation also denied guns to those thought to be unvirtuous, disloyal, incompetent, and so on. But if “dangerousness” is the operative principle for historically-informed Second Amendment interpretation, how broadly does it sweep? In Barrett’s terms, what do “history and tradition” tell us about the “scope of the legislature’s power to take [the right to keep and bear arms] away?”
Answering that question means considering, in her words, “a category simultaneously broader and narrower than ‘felons’ — it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” In her Kanter dissent (which argued that the federal felon prohibitor was unconstitutional as applied to a non-violent felon), Judge Barrett focused on the latter — felons who might not be dangerous. But it is also important to consider the former: non-felon groups disarmed because they were thought to be dangerous.
Through that frame, the historical evidence demonstrates that the “scope of the legislature’s power” was quite broad, notwithstanding the fact that the founding generations applied that power to very different groups than law does today — both more narrowly (for example, by not disarming domestic abusers) and more broadly.
In this essay, we analyze two sets of historical gun laws that seem historically distant, but which the “dangerousness” approach makes relevant: laws regulating Native Americans and laws regulating those “disaffected to the cause of America.” These groups — much more so than felons, drug users, domestic abusers, and other groups targeted by contemporary restrictions — were subject to gun regulation by the Founding generations, apparently based on the perceived threat they posed. Relying largely on the Repository of Historical Gun Laws, the first part of the essay provides a historical overview of these laws, which have not received the same level of scholarly attention as some other historical prohibitions, such as those involving public carry or certain classes of arms.
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