By Christopher Maron '25
Guest Writer, Brown University
In 1791, the Second Amendment famously established the right of United States citizens to keep and bear arms. (1) Yet, this right is not absolute. (2) For example, ownership of “dangerous or unusual weapons,” is not protected by this doctrine. (3) Interpreting the limits of the Second Amendment involves weighing a fundamental American liberty against public safety, rendering it an inherently difficult task. To resolve this difficulty, the Supreme Court’s ruling in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) specified that modern gun laws must be “consistent with the Nation’s historical tradition of firearm regulation” to comport with the Second Amendment. (4)
Small-arms innovation since 1791 has produced highly sophisticated and deadly weapons, including semi-automatic rifles. Research shows that when possession of these rifles was outlawed during the period of the Public Safety and Recreational Firearms Use Protection Act (1994-2004), “mass shooting fatalities were 70% less likely to occur.” (5) The renewed legalization of such weapons in 2004 has crucially enabled acts of horrific violence, including the 2017 mass shootings in Parkland, Florida, and Las Vegas, Nevada, as well as the recent assassination attempt on former president Donald Trump. Considering this violence, along with the fact that “64% [of Americans] say they favor stricter gun control laws,” legislators may be inclined to reintroduce ownership restrictions on semi-automatic rifles. (6) However, America’s history of firearm regulation hardly addresses the destructive nature of these guns in particular. Thus, the Court’s deference to tradition irrespective of contemporary findings fundamentally hampers necessary regulations from taking form, leaving the public exceptionally vulnerable to gun violence.
To clarify, Bruen does not require modern firearm regulations to be exact replicas of traditional gun restrictions. The Court does not contend that proposed regulations must come paired with a “historical twin” to pass muster under the Second Amendment. (7) Rather, Bruen holds that gun restrictions with a mere “historical analogue,” or those that parallel “the principles that underpin our regulatory tradition,” are compatible with the Constitution. (8) In some scenarios, the commentary from British common law and early United States legislation furnishes a historical analogue sufficient to justify imperative gun regulations. Namely, in United States v. Zackey Rahimi (2024), a statute prohibiting alleged domestic abusers from possessing a firearm was found to adequately correspond with English surety laws and “going armed” laws, which “targeted the misuse of firearms” during the 1700s and 1800s. (9)
The substance of traditional gun restrictions is not universally productive, though. History does not lend a useful precedent for regulations aiming to prohibit especially destructive firearms. The content of the Second Amendment was largely informed by the limited functionality of the “muskets and sabers” available in 1791, which does not compare to the precision and deadliness of many of the weapons manufactured today. (10)
Notwithstanding, common law does provide some language that has been construed to circumscribe public access to egregiously threatening firearms. The “going armed” laws mentioned above outlawed carrying “dangerous and unusual weapons.” (11) Nevertheless, the title of dangerous and unusual has been traditionally interpreted to apply only to machine guns: weapons that shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” (12) Federal law “has strictly regulated automatic weapons since 1934” and “prohibited civilian ownership of new machine guns for the last half-century.” (13) Conversely, federal law has not “require[d] any special permits to own or purchase” semi-automatic weapons like the AR-15, which are accessible anyone who is “18 years of age or older and can pass a background check.” (14)
The nationwide ban on automatic weapons rooted in regulatory tradition has undeniably promoted public safety, given that machine guns are primarily designed to create an indiscriminate “kill zone.” (15) Yet, recent tragedies indicate that semi-automatic weapons can match the effect of what has been deemed a dangerous and unusual weapon; in 2016, a Sig Sauer MCX semi-automatic rifle was used to kill 49 people and wound 58 others in Orlando, Florida. (16) A semi-automatic rifle’s potential for indiscriminate killing is further augmented when coupled with accessories such as bump stocks, which manipulate the weapon’s recoil to “bump” the trigger against the shooter’s finger, generating firing rates nearly identical to those of some machine guns. (17) These frightful capabilities were realized in 2017 when multiple semi-automatic rifles equipped with bump stocks were used to kill 60 people and wound around 413 others in Las Vegas, Nevada.
Despite the dreadful violence that semi-automatic weapons have facilitated, the principles that underpin our regulatory tradition exclusively describe machine guns as dangerous and unusual. Therefore, there is no legitimate historical analogue that regulators can consult to mitigate the ridiculously high number of mass shootings in America without rewriting the Court’s traditional interpretation of the Second Amendment. Moreover, Bruen’s demand that modern firearm prohibitions must align with historical regulation originated in complete disregard of recent events, as Justice Alito’s concurring opinion heavily suggests that “statistics about the use of guns” were not “relevant to the question presented in [the] case.” (18) Hence, the Court’s ruling in Bruen has instituted a dubious rubric for gun laws that insulates alarmingly dangerous weapons from regulation.
The questionable implications of the Bruen doctrine are obvious when considering the government’s failed attempt to prohibit the bump stock accessory for semi-automatic weapons. In 2018, the Bureau of Alcohol, Tobacco, and Firearms (ATF) ordered owners of bump stocks to destroy or surrender them in response to the appalling shooting in Las Vegas mentioned earlier. (19) Nonetheless, the ATF’s ban was derived from the notion that semi-automatic rifles equipped with bump stocks qualify as machine guns since they are able “to shoot more than one shot” with only one pull and no “additional physical manipulation of the trigger by the shooter.” (20) The Supreme Court struck down the ATF’s prohibition in Garland v. Cargill (2024), asserting that a bump stock does not satisfy the statutory definition of an automatic rifle, as it “does not convert a semi-automatic rifle into a machine gun any more than a shooter with a lightning-fast trigger finger does.” (21)
In effect, the Court invalidated this specific ATF ban on bump stocks. However, when linked with the framework for gun laws established by Bruen, the Cargill decision ultimately shields bump stocks from regulation altogether. The automatic rifle is the only category of gun that has traditionally been classified as dangerous and unusual. Given that Cargill holds that semi-automatic rifles equipped with a bump stock can no longer be considered machine guns, there is now no legitimate historical analogue that the ATF can consult to justify a bump stock prohibition in accordance with Bruen.
Consequently, it is irrational to defer to historical precedent when contemporary statistics suggest doing otherwise. For comparison, like its historical protection of the right to own a firearm, America has a strong tradition of maintaining a capitalist free market. In 2024, “thousands of [modern] industrial facilities use and store hazardous chemicals in large quantities.” (22) Each of these facilities would “put at least one million people at risk of injury or death in the event of a chemical accident.” (23) It would be grossly negligent to insist that government oversight of these facilities must be consistent with America’s historical tradition of meager market regulation, which was unaffected by the profound risks presented today. Similarly, it is grossly negligent to insist that government gun restrictions must be consistent with America’s tradition of meager firearm regulation, which was unaffected by the gruesome capabilities of modern weapons.
Unfortunately, the Supreme Court has shown little sympathy for this argument. The rubric set forth by Bruen has functionally solidified the right for American citizens to brandish an excessively precise and deadly firearm. As a result, the public will remain susceptible to mass shootings, political figures will still be able to be targeted from hundreds of feet away despite an abundant presence of security, and America will stay unnecessarily unsafe.
Endnotes
U.S. Const. amend. II.
District of Columbia v. Heller, 554 U.S. 626 (2008).
Ibid., 627.
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 15 (2022).
Charles DiMaggio et al., “Changes in US Mass Shooting Deaths Associated with the 1994–2004 Federal Assault Weapons Ban: Analysis of Open-Source Data,” Journal of Trauma and Acute Care Surgery 86, no. 1 (January 2019): 11–19, https://doi.org/10.1097/ta.0000000000002060.
Ariel Edwards-Levy, “CNN Poll: Most Americans Want Stricter Gun Control, but They’re Divided on Whether Guns Make Public Places Safer,” CNN, May 26, 2023, https://www.cnn.com/2023/05/26/politics/cnn-poll-gun-laws/index.html.
New York State Rifle & Pistol Assn., Inc. v. Bruen, 21.
Ibid., 21, 26-31.
United States v. Zackey Rahimi, 602 U.S. 11 (2024).
Ibid., 7.
W. Blackstone, “Commentaries on the Laws of England” 145-146, 149-150 (10th ed. 1787).
National Firearms Act of 1934, 26 U.S.C. §5845(b).
Brief of the District of Columbia, et al., as Amici Curiae in Support of Petitioner, Garland v. Cargill (No. 22-976), 1.
Bryan Reynolds, “Popular AR-15 Rifle Easy to Buy,” Lima News, June 8, 2018, https://www.limaohio.com/news/2018/06/08/popular-ar-15-rifle-easy-to-buy/.
Bump-Stock-Type Devices, 83 Fed. Reg. 66514.
“Examples of Mass Shootings Involving Assault Weapons and/or Large Capacity Magazines,” Congress.gov, accessed July 18, 2024, https://www.congress.gov/117/meeting/house/115244/documents/HHRG-117-JU08-20221215-SD007.pdf.
Garland v. Cargill, 602 U.S. 2 (2024).
New York State Rifle & Pistol Assn., Inc. v. Bruen, 2 (Alito, J., concurring).
Bump-Stock-Type Devices, 83 Fed. Reg. 66514.
Ibid.
Garland v. Cargill, 12.
Meghan Purvis, “The Dangerous Dozen: A Look at How 12 Chemical Companies Jeopardize Millions of Americans,” U.S. PIRG Education Fund, June 2004, https://publicinterestnetwork.org/wp-content/uploads/2013/05/Dangerous_Dozen_USPIRG.pdf., 1.
Ibid.
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