The History of Bans on Types of Arms Before 1900

Abstract

This Article examines all American state, territorial, and colonial laws that prohibited possession or sale of any type of arm. Also covered are English laws before 1776, and the Dutch and Swedish colonies in America.

Among the arms studied are handguns, repeating guns, Bowie knives, daggers, slungshots, blackjacks, brass knuckles, and cannons.

The U.S. Supreme Court's decision in New York State Rifle and Pistol Association v. Bruen directs lower courts to review modern gun control laws in part by analogy to historic laws before 1900. This Article provides the resources to do so, and offers its own analysis.

Besides describing prohibitory laws, the Article details other types of regulation, such as forbidding concealed carry, forbidding all carry, restricting sales to minors, licensing dealers, or taxing possession. It is the first comprehensive study of historic American laws about knives, swords, and blunt weapons.

It is also the first comprehensive study of the types of arms for which colonies and states required ownership by militiamen, by some men not in the militia, and by some women.

The arms regulation laws and cases of the 19th century are examined in the context of the century's tremendous advances in firearms. The century that began with the single-shot muzzle-loading musket ended with modern semiautomatic handguns and magazines.

Synthesizing Supreme Court doctrine with historic statutes and cases, the Article concludes that prohibitions on semiautomatic rifles and magazines lack foundation in American legal history. In contrast, other regulations, such as restricting the purchase of certain arms by minors, have a stronger historic basis.

Keywords: arms prohibition, Second Amendment, NYSRPA v. Bruen, Bowie knives, semiautomatic firearms

JEL Classification: K14, K19, O33