May 18, 2015

Gun Laws Are as Old as Gun Ownership

by Robert J. Spitzer. He is the Distinguished Service Professor and Chair of the Political Science Department at SUNY Cortland. Spitzer is the author most recently of Guns Across America: Reconciling Gun Rules and Rights, published by Oxford University Press.

The contemporary American gun debate has been cast as a battle between two opposing, mutually exclusive principles: gun laws and gun rights. The struggle between these two is invariably portrayed as a zero-sum game—that the gain of one is a loss for the other. Yet our own history tells a different story, one that contains at least two important lessons. The first is that, throughout most of American history, gun rights and gun laws existed hand in hand. The second is that, in many respects, guns were more heavily regulated in our country’s first 300 years than in the last thirty years.

While gun ownership is as old as America, so are gun laws. Early gun laws covered every imaginable type of regulation, even including registration and outright gun bans. In fact, the first “gun grabbers” were not 1960’s Chablis-drinking liberals, but rum-guzzling pioneers of the 1600s. Early gun laws restricted gun ownership and possession to Native Americans, slaves, indentured servants, vagrants, non-Protestants, those who refused to swear an oath of loyalty to the government, felons, foreigners and numerous recreational restrictions. Early laws also regulated the manufacture, inspection, and sale of firearms, as well as gun storage and discharge restrictions. Others prohibited not only the firing of firearms in or near towns, but firing after dark, on Sundays, in public places, near roads and bridges or while under the influence of alcohol.

Among the earliest and most prolific laws were those restricting or barring the carrying of concealed weapons (these restrictions typically applied to pistols as well as certain types of knives). As early as 1686, New Jersey barred the wearing of concealable weapons in public because, according to the law, “it induced great Fear and Quarrels.” In 1837, Georgia made it illegal “to sell. . .or to keep or have about their persons” pistols or other listed weapons. The restriction applied both to merchants and private citizens, and its stated purpose was “to guard and protect the citizens of this State against the unwarrantable and too prevalent use of deadly weapons.” By the end of the 18th century, four states had enacted gun carry restrictions. In the 19th century, 37 states did so and another four states followed suit in the early 20th century.

As handguns and crime spread in the 19th century, state regulations also proliferated, commonly criminalizing not only the carrying of certain firearms, but the mere brandishing or display of guns, such as an 1852 Washington law against exhibiting weapons listed in the bill “in a rude, angry or threatening manner.”

After the Civil War, four states imposed particularly sharp restrictions on handguns: Arkansas barred all handgun transfers, and pistol cartridges, in 1881; Kansas barred all firearms carrying in 1901; Tennessee criminalized any transfer of handguns as well as their importation into the state in 1879; Texas banned handguns in towns in 1871; and Wyoming banned all firearms from “any city, town or village” in 1876.

In the early 20th century, most states banned fully automatic weapons, anticipating the first important federal gun law that did the same in 1934. And echoing contemporary restrictions on semi-automatic assault weapons, at least seven states in the 1920s and early 1930s sharply restricted or even banned semi-automatic weapons entirely, as well as certain gun accessories like silencers and large capacity bullet magazines.

Finally, consider this state law:

“every person within the state . . . who owns or has in his possession any fire arms or weapons shall make a full, true and complete verified report . . . to the sheriff of the county in which such person lives, of all fire arms and weapons which are owned or possessed by him or her or are in his or her control, and on sale or transfer into the possession of any other person such person shall immediately forward to the sheriff of the County in which such person lives the name and address of that purchaser and person into whose possession or control such fire arm or weapon was delivered. . . .For the purpose of this Act a fire arm or weapon shall be deemed to be any revolver, pistol, shot gun, rifle.”

While this might read like a recent tough state gun law, it was “An Act providing for the registration of all fire arms and weapons and regulating the sale thereof” enacted by Montana. In 1918.