1791 Does Not Give You a Menu

The Founders did not say a State may pick a manner of carry and extinguish the other. Concealment-as-such is not a 1791 category. When the early republic later regulated manner — starting in 1813 — it regulated secrecy and left open carry standing. Chandler and Nunn are that analogue, not a State menu.

Madison’s text is “keep and bear.” St. George Tucker, writing the first major American Blackstone in 1803, treats the Amendment as the “true palladium of liberty,” self-defense as “the first law of nature,” and stresses that unlike England the American right has no “condition or degree” qualifier. (Tucker, Blackstone’s Commentaries, 1803, app. 300.) He is attacking disarmament-by-pretext (game laws), not drafting a concealed-vs-open codebook. He never says the legislature may elect one mode and abolish the other.

If you want a Founding-era practice rule, it is this: peaceable public carry was not a crime in the early republic, and concealed-weapons statutes almost do not exist until 1813 onward. Kopel’s count is eight states before 1846, mostly Southern plus Indiana. That inventory is Clayton E. Cramer, Concealed Weapon Laws of the Early Republic (1999). That timing matters. A wave of dirk / Bowie / “secret assassination” statutes a generation after ratification is not the 1791 settlement.

What the 1840s–50s Courts Actually Held — and What They Did Not

This is the layer the cases actually use.

  • Bliss v. Commonwealth (Ky. 1822) goes the other way: a conceal ban was void because it forbade a manner that was lawful when the state constitution was adopted. Kentucky later amended its constitution to authorize conceal bans. Bliss is the high-water mark that the right includes even the secret mode.
  • State v. Reid (Ala. 1840): a conceal ban can stand if the arm can still be borne openly; a “regulation” that makes the arm “wholly useless for the purpose of defence” would be void.
  • Nunn v. State (Ga. 1846): the conceal half of the statute stands; the open-carry prohibition is “in conflict with the Constitution, and void.” Heller later cites Nunn with approval.
  • State v. Chandler, 5 La. Ann. 489 (1850): the 1813 act is valid because it “interfered with no man’s right to carry arms … ‘in full open view.’” That open mode “is the right guaranteed by the Constitution of the United States.” Concealment was the vice (secret advantage / assassination). Openness was the equality condition.

Read those holdings in order and the modern slogan falls apart. They are not “the State may choose open or concealed.” They are “the State may burden the secret mode because the constitutional mode remains.”

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On the local scene

Sheriff, AG sue to end some firearm registrations

Dave Marshak, the Jefferson County sheriff, said he joined a lawsuit to eliminate federal registration requirements for short-barreled rifles and suppressors, also called silencers, to protect the rights of law-abiding gun owners.

On Sept. 8, Missouri Attorney General Catherine Hanaway and Marshak filed the lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in the U.S. District Court for the Eastern District of Missouri.

Marshak said he is participating in the lawsuit as a state resident and not as the sheriff. He said Jefferson County will not pay any money to help finance the suit or cover his legal expenses.

The lawsuit alleges federal restrictions are unconstitutional when applied to short-barreled rifles and suppressors because those items are protected under the Second Amendment, and Congress’ decision to zero out taxes on the purchase of certain short-barreled firearms, suppressors and other weapons invalidated the ATF’s authority to require registration of a gun or firearm accessory’s owner.

“I believe strongly in both the rule of law and the Second Amendment,” Marshak said. “I have spent my career enforcing laws and holding people accountable when they commit crimes, particularly violent crimes. At the same time, government must operate within the limits imposed on it by the Constitution.

“I don’t believe we should treat millions of law-abiding gun owners as though they are potential criminals because of what someone else might do.”

The lawsuit says the federal government’s restrictions through the National Firearms Act are unconstitutional. The NFA, enacted in 1934, has historically required owners of suppressors, short‑barreled rifles and other weapons to register them with the federal government and receive approval before a transfer.

According to the lawsuit, the registration requirements force people to share personal information “akin to that obtained from an individual being arrested and charged with a crime.”

The suit also said completing ATF forms online may take the better part of an hour, and those seeking permission to own short-barreled rifles and suppressors incur costs related to providing fingerprint information and a photograph with each application.

Hanaway argues that people who want to avoid arrest, prosecution and imprisonment for a felony violation of federal law are left with two choices: comply with onerous regulations or forgo possession of short-barreled rifles and suppressors. The lawsuit said those who do not have proper registration could face up to 10 years in prison and a fine of up to $250,000.

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A précis 

Restriction on Handgun Sales to Out-of-State Residents Violates Second Amendment

So held Elite Precision Customs L.L.C. v. BATFE, decided today by Fifth Circuit Judge Jerry Smith, joined by Kurt Engelhardt; a very short excerpt of the reasoning, but you can see the opinion for a lot more:

It is no defense of the Ban’s constitutionality to theorize that it is only a minor infringement of Second Amendment rights that still “allow[s] ample access to handguns by those who are permitted to possess and purchase them under state and local laws.” Mance v. Sessions (5th Cir. 2018) (rejecting a pre-Bruen challenge to the Ban)….

Even to the extent that the Ban can be circumvented by the licensee-to-licensee transfer workaround (which vests full veto power over interstate handgun sales in a group of third parties financially dependent on the government’s licensing regime), the Ban invariably calls for the payment of a fee over and above the cost of a handgun. We must pause before endorsing a cost attached to the exercise of a fundamental constitutional right. To the extent that prior decisions from this court hint there is an acceptable cost that may be imposed on the basic exercise of Second Amendment rights, they are abrogated by Bruen and its progeny.

Judge Catharina Haynes dissented, stating she agreed with the district court’s decision upholding the law.

David H. Thompson, Peter A. Patterson, and William V. Bergstrom (Cooper & Kirk, PLLC) and Cody J. Wisniewski (FPC Action Foundation) represent plaintiffs. Note that the Firearms Policy Coalition has in the past retained me to file some amicus briefs on their behalf, but I was not at all involved in this particular case.

Eugene Volokh is the Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford, and the Gary T. Schwartz Distinguished Professor of Law Emeritus and Distinguished Research Professor at UCLA School of Law.

Fifth Circuit holds that the federal ban on direct interstate handgun purchases is unconstitutional under the Second Amendment

2026.09.18_083-1_OPINION

 

‘Insanity is doing the same thing over and over again and expecting different results’ – attributed to Albert Einstein

Group That Pushed Mexico Into Lawsuit Against Gun Makers at It Again

Mexico’s ill-fated lawsuit against the gun industry was a case of knowing what was inevitable. There was no world where the Supreme Court, especially this one, would allow a lawsuit to proceed against the industry despite the Protection of Lawful Commerce in Arms Act. I didn’t expect the 9-0 decision, but it was clear-cut.

Well, the “brains” behind that — I use that term very, very loosely here — are at it again.

This time, it seems they’re trying to goad Canada into filing a lawsuit as well, one just as doomed as Mexico’s was.

A new report from Global Action on Gun Violence lays the groundwork for a greater understanding of the cross-border gun trafficking crisis, the harm this phenomenon causes, and recommendations for decreasing this trafficking pipeline.

Jonathan Lowy, founder and president of Global Action on Gun Violence  (GAGV) asserts, “The U.S. gun violence epidemic is causing a regional and global pandemic.  This data confirms that overwhelming majorities of crime guns in Canada and the Caribbean flow directly from U.S. gun shops, as a result of reckless gun industry practices enabled by weak U.S. laws.  GAGV is committed to stopping this crime gun pipeline at the most effective point — the gun industry source.

Gun trafficking is one of the world’s greatest threats to public safety, and the United States is the most prolific source of gun trafficking. Guns are brought illicitly from weak gun law states to stronger gun law states and from the U.S. to other nations with far more stringent gun laws.  The result fuels death rates in the United States that are 20 times higher than in comparable countries, contributes to nations in the Americas having the highest death rates in the world, and enables organized crime, gun trafficking, human trafficking, and a host of other public health, human rights and other societal harms.

Now, Canada has a problem compared to its usually low crime rate, and this despite a plethora of gun control laws on the books, but I fail to see how this is our fault.

After all, it’s already illegal to traffic guns outside of the United States without appropriate approval, and so whoever is trafficking guns is breaking the laws of both nations.

But we already see some…interesting use of numbers here.

One of the supposed key findings of the report said, “84.6% of crime guns in Canada are from the U.S.”

Interesting, sure, but it’s also kind of BS. Cam wrote about this back in June, and most of the so-called crime guns weren’t from the United States. While it’s possible that there’s been some new data, I think it’s also worth noting that this claim is supposedly based on ATF tracing data. However, wouldn’t the Canadian authorities check their own databases first? Why outsource tracing to the U.S. when you’ve got the Royal Canadian Mounted Police that should, ostensibly, be able to at least trace guns domestically? Then, if they’re not in domestic databases, ask the ATF for help.

That didn’t make it in Lowy’s so-called report.

What did, though? Well, I’m glad you asked.

Recommendations

  • Legal and policy reforms, at the federal and state level, can make a difference, as can litigation brought in and outside of the U.S. against negligent gun industry companies who facilitate gun trafficking.

  • Policies and industry reforms to reduce the supply of crime guns at the source. Federal reforms should include universal background checks, buyer licensing or individualized vetting, stronger scrutiny of bulk and repeat sales, better dealer oversight, mandatory tracing, and repeal of legal barriers that shield the gun industry from accountability.

  • Similar reforms at the state level should prioritize Ohio because of its outsized role. Strategic litigation, as well as enhanced cross-border enforcement on firearms trafficking into Canada.

That’s right, everything on that list is part of the anti-gun wishlist. Conveniently.

Lowy knows that an entire country suing the gun industry would likely bankrupt it, even if the industry ultimately won. That’s the point. It’s a case of the process being the punishment. He likely knows good and well that these companies have done nothing wrong. If nothing else, the questions asked by the Supreme Court should have made it clear that the manufacturers don’t know who the bad actors are, and they sell to distributors anyway, at least in most gun transactions.

It’s not about facts, though. It’s about completely disrupting the Second Amendment. That’s the goal, and it really has nothing to do with violence in other countries.