Gun Regulation When the Fourteenth Amendment was Ratified

Mark Graber

Originalism as practiced by historians, who by "original" mean "authentic," yields different results than originalism as practiced by the Roberts Court, who by "original" seem to mean "novel."  Consider the right to bear arms.

The July 7, 1866, edition of Harper's Weekly, the leading Republican/Union weekly of the Civil War/Reconstruction Era, set out the basic principle underlying gun regulation at the time when the Fourteenth Amendment had just been sent to the states for ratification.  The essay, "The Excise Law" relied heavily on what the author regarding as broadly shared understandings about dangerous weapons when explaining why alcohol could be regulated on the same basis as guns.  The basic principle was “The object of laws is public order, not private morality.”  This principle covered all arms.  Harper's Weekly opined,  

Society is of opinion that gunpowder is so dangerous a commodity that its storage and sale must be regulated by law.  It is idle to say that any man has the right to make gunpowder and sell it, and that society has nothing to do with it.  Society has the right of defending its order and safety, and must judge when they are threatened."

 Guns as well as gunpowder were governed by this standard.  The essay continued,

It would be hard to show that a glass of bad rum is not a weapon as dangerous to society as a revolver in the pocket or a keg of powder in a store.  If society, under certain conditions, may protect itself against these, it may defend in the same way against rum.

"The Excise Law" articulated basic principles of nineteenth century constitutional law (the best analysis is Howard Gillman's THE CONSTITUTION BESIEGED).  No one had a right to threaten the public safety.  When the public safety was threatened, government had the power to regulate.  The only substantial limit on regulation was that if the regulation distinguished between classes of people, the distinction had to be based on real differences between those classes and advance the public interest.  New York could ban children from owing revolvers, but not after the Thirteenth Amendment, African-Americans.

The originalists on the Supreme Court offer an original reading of this history, at least if original is understood as meaning "novel" rather than "authentic."  The justices in New York Rifle and Pistol Association, Inc v. Bruen (2022) and United States v. Rahimi (2024) insist that contemporary regulations are constitutional only Americans in 1791 and, maybe, 1866 regulated the arms in question or a closely analogous regulation was in place in 1791 or, maybe, 1866, no matter how dangerous the arms are recognized to be in 2024.  Republican/Unionists would not have recognized this original interpretation of the constitutional right to bear arms.  If the government thought a weapon, a drink, or anything else, threatened the public, government could regulate.  Perhaps good policy reasons nevertheless exist for recognizing a constitutional right to dangerous weapons that were not thought dangerous in 1866, but such arguments did not occur to Harper's Weekly or, seemingly, other Republicans when the Reconstruction Amendments were framed.