Courts have struck down limits on gun ownership for domestic abusers, accused felons, and young adults. They’ve overturned bans on guns with shaved-off serial numbers and guns made with 3D printers. All were overturned based on the notion that the U.S. of the 1700s didn’t have gun control.
But Spitzer says that actually, the opposite is true. “It’s difficult to think of any kind of gun law that you can think of today that didn’t exist in some form 150, 200, 300 years ago. In many respects, guns and weapons were more strictly regulated in our first 300 years of history than in the last 30 years.”
On Wednesday’s episode of What Next, I spoke with Spitzer about America’s real history with firearms and how it could change the gun laws of our present—and future. Our conversation has been condensed and edited for clarity.
Mary C. Curtis: This all started with the Supreme Court case New York State Rifle and Pistol Association v. Bruen.
Robert Spitzer: It was a legal challenge to New York state’s pistol permit law, a law that had been challenged many times in the past and always held constitutional. It had been on the books since 1911, actually. But a new, more activist and conservative Supreme Court was clearly open to the idea of striking down at least a part of the New York state pistol permit law. And what they were particularly interested in was what’s called the proper cause provision. It wasn’t enough in New York to just not be a felon, not be judged incompetent, and other things. You had to actually say, “Well, here is why I want to have a permit” and go through a lengthy process to get that permit. And local officials could turn you down if they felt that you weren’t a good person to have a pistol permit.
So the court struck that down in the Bruen decision last summer, but they went beyond that even though they didn’t really have to. They said for the first time in history that the Second Amendment right to bear arms extends to a right to carry guns outside of the home for personal protection. And they said something else. They changed the standard for judging the constitutionality of current laws by saying, “Are there similar laws in past history”—this takes us to the 1700s and 1800s in particular—” that are similar enough to the current law that you can argue that those laws should be constitutional?” Part of the problem is, Well, similar based on what? How do you determine what old law is appropriate to compare to a modern gun law or weapons law?