Looking for Historical Analogues in All the Wrong Places

Second Amendment

California’s Unsafe Handgun Act effectively bans the sale of almost all semiautomatic pistols that were designed beginning in 2007, and all such pistols introduced in 2013 and thereafter.  As explained in a previous post, in March, U.S. District Judge Cormac J. Carney of the Central District of California issued a preliminary injunction in Boland v. Bonta against enforcement the law.  The Ninth Circuit stayed the injunction pending appeal.

Along with co-counsel Dan Peterson, I filed an amici curiae brief in support of the plaintiffs on behalf of law enforcement and firearms rights groups.  I’d like to share our major points.  First, some background.

California bans pistols with  designs introduced in 2007 and thereafter based on two features that the state requires but that consumers don’t want or need.  One is a magazine disconnect mechanism that prevents the pistol from being fired without a magazine; that’s bad for emergency use in self-defense.  The other is a chamber load indicator, a hole, protrusion, or visual indicator allowing one to tell if a round or cartridge is in the chamber; that’s a substitute for the basic safety rule always to assume that a firearm is loaded.  Almost no manufacturer makes pistols with both features.

California is not appealing the injunction against enforcement of a third required feature, microstamping capability, in which the firing pin leaves a distinctive mark on the primer of a cartridge when fired. It’s supposed to help solve crimes, but won’t. Required since 2013, the technology just isn’t feasible, and no pistols are manufactured with that feature.

Our amici brief makes three major points.  First, the law blatantly bans firearms that are in common use by Americans for lawful purposes, which is the test applied by the Supreme Court in Heller to decide that a restriction violates the Second Amendment.  Second, the proving laws of only two antebellum states are not valid historical analogues of the kind required by the Court in Bruen.  And third, we look to the original public understanding of the Second Amendment when it was adopted in 1791, not when the Fourteenth Amendment was ratified in 1868.

First.  As the Heller Court held, “the sorts of weapons protected [by the Second Amendment] were those ‘in common use at the time.'” It suffices that “the American people have considered the handgun to be the quintessential self-defense weapon,” and because “handguns are the most popular weapon chosen by Americans for self-defense in the home,” they cannot be banned.

Notice who gets to choose which arms may be acquired for self-defense – the American people, not a state.  And notice that “the handgun” generically is a protected arm, not a subset of handguns with features not “chosen by Americans,” such as the California law requires.

The Supreme Court has told us twice since then that handguns are in common use. Concurring in Caetano v. Massachusetts, Justice Alito identified “the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols.”  And the Court observed in Bruen: “Nor does any party dispute that handguns are weapons ‘in common use’ today for self-defense.”

That should end the matter.  In order to uphold the preliminary injunction, the Ninth Circuit need look no further than the reality that California bans most handguns of 2007+ vintage and all handguns of 2013+ vintage, that these handguns are in common use nationwide, and thus the restriction violates the Second Amendment.

Second. Although Heller‘s common-use test governs, California nevertheless argues that two early laws on the proof testing of firearm barrels provide a historical analogue to support its current ban. An 1805 Massachusetts law required that barrels for muskets and pistols (but not rifles) made in-state be “proved” or tested to ensure that they would safely fire a minimum distance.  Maine passed a similar law in 1821. A violator of those laws would incur a civil monetary fine, but no jail time. The purpose was to ensure that purchasers, particularly militiamen, had access to safe, reliable firearms.

Per Bruen, in considering historical analogues, one must address the “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”  The “how” of the proving laws was to test fire barrels to ensure that they did not burst and they would shoot a ball (bullet) a minimum distance. They did not require additional features mandated by the state but not desired by consumers. They did not apply to arms imported from other states. There was no criminal penalty. The “why” was to ensure what every purchaser demands in a firearm – that it will safely fire a reasonable distance. Proofing firearms enhanced the ability of consumers to use them in self-defense.

By contrast, the “how” of the California law is to ban most models of pistols from the marketplace, depriving consumers of those they demand as best for self-defense, and to mandate features that do nothing to enhance self-defense. A person who manufactures, imports, or sells an “unsafe handgun” is subject to imprisonment for one year.

The “why” of the California law is to substitute the state’s version of a “not unsafe” handgun with what the consumers actually want and, regarding microstamping, the unrealistic goal of solving crimes. And the “why” is not to ensure safe firearms for the militia – the law does not apply to the sale of handguns to “the military or naval forces of this state” or members thereof, not to mention law enforcement.  They can buy all the “unsafe” handguns they wish.

Per Bruen, the state has the burden to “identify a well-established and representative historical analogue,” i.e., regulation, to support a modern restriction.  But in addition to the proving laws not being historical analogues, Massachusetts and Maine were outliers, constituting only 2 out of 24 states in 1820-21 and totaling only 8.5% of the U.S. population.

California also cites to policies adopted in 1775 that required firearms being purchased for the colonies during the American Revolution to be tested. These were nothing more than contractual provisions with no applicability to private transactions.  Presumably anyone, whether a colony or an individual, would require firearms they were purchasing to be proven as safe before paying for them.  No mandate there.

Third. California and an amicus brief by Everytown for Gun Safety look to 1868 (the year of ratification of the Fourteenth Amendment) and thereafter, rather than 1791 (the year the Second Amendment was ratified), as the proper period for examining historical analogues. We have refuted this argument previously, and it is soundly put to rest in a comprehensive law review article by Mark W. Smith.

Wishing to cite as analogues restrictions that were enacted around 1868 and for the rest of the nineteenth century (and even beyond), Everytown is filing the same amicus brief in cases around the country.  The argument is as baseless as is the part of its name touting “Gun Safety” (I’m still looking for where they teach gun safety classes).

As Justice Thomas wrote in Bruen, “individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government,” and “the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” He mentioned an “ongoing scholarly debate” on whether courts should rely on the prevailing understanding in 1868, but in no way endorsed that position.

Attempting to fix the meaning of, say, the Fourth Amendment as applied to the states according to what people thought in 1868, but leaving its meaning as applied to the federal government in the 1791 world view, would create an earthquake in constitutional law as we know it.  Everything we’ve learned about the First Amendment and the rest of the incorporated provisions in the Bill of Rights would descend into chaos.

That’s just not going to happen.  Well over two centuries of Supreme Court jurisprudence on the Bill of Rights and over a century of its incorporation jurisprudence would have to be reevaluated and much of it overturned.  As our brief shows, in all cases in which the Court has looked to history to determine the meaning of a provision of the Bill of Rights, it has focused exclusively or primarily to the Founding period, and never primarily on 1868.

It is true that a handful of courts of appeals have erroneously alluded to 1868 being the decisive year, but not in the context of a dispositive ruling.  The only post-Bruen decision to do so is NRA v. Bondi (11th Cir. 2023), which upheld Florida’s ban on the sale of firearms to persons aged 18-20 on the basis of similar bans dating mostly to the 1880s.  The court failed to mention the effect of its decision on, for example, the First or Fourth Amendments (since those would have be treated the same as the Second Amendment), or how its newly-minted theory might turn countless Bill of Rights precedents upside down.  After judgment, a judge of the court withheld issuance of the mandate, and a petition for rehearing en banc was filed in the case.  It seems likely to be granted.

Keep your fingers crossed on whether the Ninth Circuit will sustain or will stay the preliminary injunction in Boland.  It is, well, the Ninth Circuit.

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