Gun control’s success in the courts has come, in part, from the long history and tradition of firearms regulation. While gun control is often thought to be a 20th-century invention, Americans have regulated guns since our earliest days. The founding fathers, for instance, had strict laws that today’s National Rifle Association would never accept. James Madison, the author of the Second Amendment, and his generation restricted the possession of guns by political dissenters and racial minorities.
Through militia laws they also required people to appear at musters where their guns would be inspected by government officials and registered on public rolls. The founders even had their own version of Obamacare’s individual mandate: In 1792, Congress passed a law requiring nearly all free men to outfit themselves with a military-style firearm and appropriate ammunition. To the founders, the Second Amendment was not a libertarian license for anyone to have any gun, anywhere he wanted. Instead, the founders balanced gun rights with the regulation they thought necessary for the public welfare.
Gun control has been a prominent feature of our legal landscape ever since — from the Wild West, where frontier towns such as Tombstone and Dodge City had the most restrictive gun laws in the nation, to the New Deal, when Franklin Roosevelt pushed to limit access to machine guns and other weapons popular among Prohibition-era gangsters.
And state courts, which have recognized the right of individuals to own firearms for personal protection since the early 1800s, have historically upheld gun laws as long as they don’t nullify that right.
Even the National Rifle Association used to be an advocate of gun control. In the 1920s and ’30s, the NRA was at the forefront of the movement, pushing states to adopt strict laws limiting the ability of people to carry concealed guns in public.
Of course, at this year’s NRA convention, going on in St. Louis through Sunday, all you are likely to hear about is the importance of repealing gun-control laws. Although the NRA likes to say that we just need to vigorously enforce the rules already on the books, in legislatures and courts across the nation the organization shows its true colors by fighting to get rid of those laws — including the few surviving restrictive concealed-carry regulations that the NRA once endorsed.
Second Amendment experts predict that the next major gun case to go to the Supreme Court will be a challenge to one of the remaining state or local laws that effectively bar the carrying of concealed weapons. Given that nearly every state allows almost anyone to carry guns on the streets, what the justices have to say about concealed carry will be less significant than what they say about the role of the courts in scrutinizing gun laws. Will the justices respect the long-standing tradition of gun control? Or will they create novel, untested hurdles for such laws?
In a hostile political environment, the courts have long been gun-control advocates’ best friend. Whether that 200-year friendship can last much longer will be the question that next confronts the Supreme Court.
Adam Winkler is a law professor at the University of California at Los Angeles and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.”
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