Restrictions That ‘Our Ancestors Would Never Have Accepted’: The Historical Case Against Assault Weapon Bans
15 Pages Posted: 14 Sep 2023 Last revised: 17 Sep 2023
Date Written: September 12, 2023
The debate around what types of “arms” the Second Amendment protects has been revitalized in the wake of Bruen’s renewed focus on our historical tradition as the determinative factor in Second Amendment cases. Thus far, several district courts have upheld state “assault weapon” bans in part by ruling that the Second Amendment applies only to firearms most useful for self-defense, whereas the firearms covered by such bans are more suited to combat. Thus, these courts conclude, firearms that fall under assault weapon ban laws are not protected "arms" under the Second Amendment.
This is an overly sanitized version of the Second Amendment that our founders, as well as their immediate descendants in the 19th century, would consider unrecognizable. While prior generations of Americans undoubtedly believed self-defense, hunting, and sport were all important components of the right to keep and bear arms, an overriding purpose frequently dominated their discussion of that right: preventing and responding to tyranny.
Today, the idea that the Second Amendment exists in part as a “doomsday provision” to repel a foreign invader or a domestic tyrant is treated as a joke. From the President to legal scholars, many deride it as an insurrectionary notion without any true historical pedigree that was concocted by pro-gun activists in the last half-century.
For its part, the Supreme Court has only tiptoed around this question. In Heller, it did acknowledge that early generations of Americans “understood across the political spectrum that the [Second Amendment] helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” But in the years since Heller, the Court has been silent on this history, even as Bruen corrected the errant circuit courts by returning the focus to historical tradition.
With more and more states passing restrictions on the very sorts of common firearms that would be most suitable for repelling efforts to overthrow our constitutional republic, a renewed focus on this core purpose of the Second Amendment is overdue. This article aims to bring renewed attention to the overwhelming amount of founding-era and 19th century commentary that emphasizes the importance of the Second Amendment right as a tool to resist tyranny. In light of this clear history, so-called “assault weapon” bans and similar laws are incompatible with our historical tradition and should be struck down.
Part I presents a few modern-era judicial opinions to demonstrate that the idea that the Second Amendment is meant as a last resort against tyranny lives on among some jurists. Part II includes a sampling of 18th-century sources which confirm that the founding generation saw the Second Amendment as a defense against tyranny. Part III focuses on 19th-century commentary, which explains that “arms of modern warfare” are most protected by the Second Amendment. Finally, Part IV briefly looks at how these principles were put into practice by the early civil rights movement in the Jim Crow era.
Keywords: Second Amendment, Assault Weapon, Assault Weapons Ban, Magazine, Bruen, Heller, Tyranny, Historical Tradition
JEL Classification: K10, K14, K19, K30, K39
Suggested Citation: Suggested Citation