Robert J. Spitzer (State University of New York at Cortland; College of William and Mary, Marshall-Wythe School of Law) has posted The Historic Regulation of “Unusual” Weapons on SSRN. Here is the abstract:
Is the AR-15 assault-type rifle an “unusual” gun? This might seem an amorphous or subjective question, but considerable effort has been expended to address a question very similar to this: namely, whether assault weapons are in “common use” in America today. The prodigious debate over this otherwise arcane and indisputably ambiguous question has become central to court determinations of whether civilian possession and use of assault weapons and other guns is or is not protected under the Second Amendment’s right to bear arms.
This “common use” standard appeared in the Supreme Court’s 2008 ruling in D.C. v. Heller, the case that established a right of citizens to have guns for personal self-defense under the Second Amendment. In overturning the District of Columbia’s then-strict law, the court concluded that handgun possession should be protected because such guns were in “common use” as they were “overwhelmingly chosen by American society” for self-protection. The Heller court plucked the “common use” phrase from a 1939 Supreme Court case, U.S. v. Miller.
An examination of America’s history of weapons regulations reveals that efforts to restrict “unusual” weapons is nothing new. This paper explores a variety of old weapons laws that imposed an array of restrictions on certain unusual types or categories of weapons, precisely on the grounds that they posed a threat to public safety and good order, or were of little use for conventional weapons-related activities. The old types of weapons and related technologies examined here include trap guns, punt/pivot/swivel guns, consideration of ghost guns, and switchblades. This analysis will shed important light on the contemporary legal and political struggle over modern weapons restrictions.
This excellent paper is very interesting, but it is not directly addressed at the target of the historical analogy test from Bruen, Rahimi, and Wolford. Because that test implements Heller’s theory of “the right to keep and bear arms” as preexisting legal right, the historical analogies must be to regulations that were consistent with the legal right as of 1791.
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