On Sept. 14-15, Jennifer Tucker, associate professor of history, organized a conference titled “Firearms and the Common Law Tradition,” which was held at The Aspen Institute in Washington, D.C. In this Q&A, Tucker discusses the significance of the conference:
Q: What was distinctive about the Firearms and the Common Law Conference?
A: As far as we are aware, it was the first time that most of the historians and legal scholars involved in the debate over the Second Amendment and common law traditions relating to firearms have been in the same room and exchanged their views face to face and in pre-circulated papers. The inclusion of historians who study primarily the use of firearms across a range of historical periods (early modern England, colonial America, frontier west, etc.) was unusual in such a gathering, as was the participation of several curators of historic firearms collections in the U.K. and North America.
Q: What questions or topics were discussed?
A: What do we actually know, or take to be the case, about firearms and their uses in the Anglo-American tradition? How is the history of firearms presented and remembered? How has history been used in the arguments used in recent court cases over efforts to restrict gun rights? Everyone came away with a better and more nuanced understanding of the arguments for and against. By bringing people together (many for the first time), it informed historians about the legal stakes of the topic and also ensured a place in the discussion for historians who work on this subject.
Q: What makes the issue particularly timely?
A: The history of firearms use and regulation is playing an unprecedented role in litigation challenging firearms laws across the country. For example, the United States Court of Appeals for the Ninth Circuit recently upheld California’s law regulating the carrying of concealed weapons based almost entirely on history: a decision that will likely be appealed to the Supreme Court this fall.
Throughout the U.S., courts and legislatures are involved in deciding the kinds of firearm regulations that conform to the Supreme Court’s majority decision in DC v. Heller (2008) that struck down a 1975 federal law regulating gun ownership. Because the ruling was somewhat vague when it came to its implications for the regulation of the use of all firearms, the decision has invited further litigation. Much of the current legislation and litigation focuses on issues relating to concealed and open carry of firearms in public places. Lawyers on both sides have cited the 1328 Statute of Northampton, which limited the right of individuals in England to carry weapons in public. (The statute applied to swords and daggers: guns had not yet been invented.)
Q: How have historical arguments become important for the judicial debate about guns in America?
A: District of Columbia v. Heller (2008) was the first United States Supreme Court case to recognize the Second Amendment as an individual right to own a gun for self-defense. Heller left unanswered the question of which regulations would be constitutionally valid, merely providing a list of a few examples that were preemptively lawful.
Justice Antonin Scalia, wrote the majority decision in D.C. v. Heller, and he made it clear that the historical understanding of the right would play a central role in understanding what laws would be found constitutionally valid. He based his argument on a type of originalist jurisprudence, and while some legal and constitutional scholars believe that the Second Amendment conferred an individual right to own a firearm, others disagree with their reading of the historical record. For that reason, such matters as the meaning of “a well regulated militia” and “keep and bear arms” are of more than just antiquarian or historical interest.
Q: Did you hear anything that changed or influenced your thinking about this topic?
A: I think that historians who work on this topic have something to offer, but are not always included in the debates. I’m not a legal scholar, but as a historian of science I am aware that changes in technology (the shift from flintlocks to AK 47s, a doubling of the velocity of bullets, etc.) are often overlooked in debates about the past.
The day before the conference the participants had the chance to visit the national firearms collection in the Smithsonian. When you see and handle these guns, you start to realize things about them – their physical size and weight and how they worked, for example, that are not the same as just reading about material culture of firearms in books.
The Heller decision specifically rejected the idea that the Second Amendment only protected flintlocks and the full court in a recent decision also rejected the idea that stun guns aren’t protected because they didn’t exist at the founding. That being said, I think there is room for looking at the lethality of modern firearms when considering the constitutionality of regulation. The court implicitly acknowledges this in Heller when it stated that machine gun bans are acceptable – even though machine guns would be necessary to organize a modern militia force. It’s a difficult concession to explain unless the court is considering the modern capabilities of firearms outside of the historical scope of regulation. Obviously that is a point about which some of our participants would disagree.
Q: What else did you learn from the conference?
A: The level of interest and engagement of the participants convinced me that, beyond the controversial legal questions, the study of firearms merits more attention than it currently receives. The case of the history of guns invites a larger set of questions being asked by historians of technology: How have changes in the technology impacted social behavior, and been reflected in changes in the law? Technological history asks, at its most basic, what does it mean when we insert the history of technological development into the history of politics or society? How do technical matters shape political matters and vice versa? The study of guns offers a way to get at these kinds of questions.
Q: What do you hope to see happen in the future as a result of the conference?
A: Nationally, museums can be a way to get conversations going that might not happen in other contexts or be seen as too antagonistic. The National Rifle Association has three museums of its own, while the Smithsonian itself has not had a public exhibition about the history of firearms for at least 25 years. As far as I’m aware, there is no museum devoted to a critical analysis of gun violence. One of the first spin-offs from the conference will be a roundtable discussion that I’m organizing with the museum curators which will eventually be published in the journal Technology and Culture. Hopefully, it will encourage researchers to study new angles on this topic and contribute to a richer historical understanding of the changing role of gun technologies in American life.