Sunday, November 20, 2022

The legal history of bans on firearms and Bowie knives before 1900

 Bowie knives are back in constitutional law news these days, after a very long absence. The U.S. Supreme Court's Bruen decision instructs lower courts to look to U.S. legal history to see what sorts of restrictions on Second Amendment rights are consistent with the mainstream American legal tradition. According to the Court, the legal history of the Founding Era is the most important, the late nineteenth century much less so, and the twentieth century too late to create a tradition that contradicts the text of the Second Amendment.

 Post-Bruen, some gun control advocates have been looking to Bowie knife laws as analogical justifications for bans on common modern rifles and magazines. In a separate post, Bowie knife statutes 1837-1899, I provide a state-by-state survey of all state Bowie knife laws through 1899. This post examines constitutional case law on Bowie knives, the history of such knives, and the history of pre-1900 bans on types of firearms.

As described below, valid pre-1900 precedents on firearms prohibitions are non-existent. Bruen suggests that "dramatic technological changes may require a more nuanced approach" in drawing historical analogies to justify modern arms controls. Accordingly, there has been renewed interest in Bowie knives, which are said to be a new technology that appeared in the early 19th century. In the Fourth Circuit, Maryland Attorney General Frosh is defending a Maryland ban on many common rifles. In his recently-filed supplemental brief in Bianchi v. Frosh, Bowie knife laws are an important part of his argument, including with a citation to my article Knives and the Second Amendment, 47 U. Michigan J. of Law Reform 175 (2013) (with Clayton Cramer and Joseph Olson).


1 comment:

Floyd said...

Great essay