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Historical gun laws take centre stage as Supreme Court decision fuels legal debates on firearm restrictions

Saul Cornell, a professor at Fordham University, has historically been in a quiet corner of academia. He and his colleagues, who specialise in the history and laws around American weapons, could be counted on the fingers of one hand. However, after a landmark Supreme Court decision changed the standards for determining the constitutionality of gun laws, Dr. Cornell has been in high demand.

Gun historians across the US are now sought after, as lawyers look to statutes from the Colonial era and early years of the Republic to litigate modern firearms restrictions. These historians have been called to parse the nation’s gun culture in court, and cases now explore weapons bans in early saloons, novelty air rifles, concealed carry restrictions on bowie knives and 18th-century daggers, and a string-operated “trap gun” that may or may not be comparable to an AR-15 semiautomatic rifle.

In a 6-3 decision last June, the Supreme Court shifted the standard for firearm restrictions. Justice Clarence Thomas, writing for the majority in New York State Rifle & Pistol Association v. Bruen, found that gun laws should be judged according to the Second Amendment’s text and the “historical tradition” of gun regulation rather than the longstanding practice of balancing gun rights against the public interest. The constitutionality of gun constraints would hinge on whether the government could show a “historical analogue” in the law, either in 1791 when Americans ratified the right to bear arms or around 1868 when the Fourteenth Amendment extended protections against federal infringements on gun rights to the states.

This originalist view has been celebrated by gun rights advocates for strengthening a constitutional right and presenting a wide-open opportunity to erase gun control laws. However, others seeking stricter controls against gun violence argue that it is dangerous and absurd to base modern public safety on the 1700s and 1800s when guns can now be built with a 3-D printer and plans shared on the internet.

Lawyers on both sides say it is unclear how Bruen will be interpreted in the long term, but the decision has set off an explosion of legal challenges to gun laws and a scramble by government lawyers to find historically analogous regulations in centuries-old traditions and statutes. The stakes are high as there have been more than 100 mass shootings in just the first 10 weeks of the year, with over 8,100 lives lost and more than 6,000 injured, according to the Gun Violence Archive.

The Bruen decision and subsequent federal rulings have provided momentum to gun rights groups across the nation, particularly in Democratic-led states. Some judges have resisted the new rules, while others have demanded encyclopedic briefings. Online archive traffic has surged, with views of a searchable repository of historical gun laws hosted by the Duke firearms law center rising to 1,000 per month, up from 200 or 300.

Demand has similarly boomed for scholars who can put gun technology and law into context. Jennifer Tucker, who directs the Center for the Study of Guns and Society at Wesleyan University, said lawyers have reached out to seek experts on topics such as weapon restrictions on stagecoaches and the contested history around an 18th-century attempt at an extended capacity firearm known as the “Puckle gun.”

Scholars tapped by the states say they are honored to serve but deeply unsettled. Some fear that partisan judges are co-opting history itself and larding the law with culture war myths and politically useful distortions; others worry that historians will simply be ignored in an anti-intellectual era.

The way the law will ultimately view history remains to be seen. Inconsistency in the way appellate courts interpret history may force the Supreme Court to eventually clarify or revise the Bruen test, but the bar will be high.

This article was based on this New York Times report.