As I have learned from my research on early gun laws, weapons regulation in early America went even further, extending to three broad types of laws, spanning nearly 300 years of American history. First, laws restricting weapons carrying were enacted extending to guns, fighting knives, and clubs throughout the 1800s. These laws criminalized concealed weapons carrying in 50 states (including territories that later became states), open weapons carrying in at least 29 states, and even long gun carrying in at least 22 states. Second, at least 36 states laws passed laws that criminalized public weapons brandishing and display. Third, at least 47 states enacted laws providing for the licensing of some of these activities.
This blizzard of weapons regulations makes the contemporary inability to enact similar laws seem both ahistorical and contrary to the fundamental goal of protecting the public and preserving public order.
This history matters for at least two reasons: First, the new standard for judging the constitutionality of modern gun laws under the Supreme Court’s 2022 Bruen decision is based on whether they are “consistent with this Nation’s historical tradition of firearm regulation.” Analogous historic gun laws, according to the court, need not be “a dead ringer for historical precursors” but must be “analogous enough to pass constitutional muster.” Second, many believe this slavish devotion to history to be deeply flawed. For example, why should law-making in modern society be jacketed by the standards of pre-industrial 18th century America? Modern gun technologies are far, far more deadly than the one-shot flintlocks of the 18th century—shouldn’t that matter? And what, exactly, constitutes an acceptable historical analogue? Still, it is equally clear that there is wisdom to be found in our gun law past.
That past reveals at least two key lessons. First, in most of our history, gun laws and gun rights were perfectly compatible. Only in the last few decades have the two become locked in a zero-sum relationship, where a gain for one side is seen as a loss for the other. Second, these prolific and varied gun laws make clear that the default in American history was regulation and restriction for guns and other weapons, especially once individuals left their domiciles.
— Robert J. Spitzer in For Most of U.S. History We’ve Had Both Gun Rights and Gun Regulations
