Category: History
The History of Bans on Types of Arms Before 1900
Restrictions on carry, minors, and misuse were the norm — not bans
Controversial arms are nothing new in the United States. During the 19th century, there were widespread concerns about criminal use of arms such a Bowie knives, slungshots, blackjacks, and brass knuckles. The full history of state, territorial, and colonial laws about controversial arms is detailed in my recent article for Notre Dame’s Journal of Legislation, The History of Bans on Types of Arms Before 1900, coauthored with Joseph Greenlee.
Because the article is thorough, it is enormous: 163 pages of text, and 1,563 footnotes. The student staff for volume 50 of the Journal of Legislation was spectacular. Not every law journal has staff who could handle such a megillah, let alone a staff that whose meticulous cite-check would improve the article.
The mainstream American approach to controls of the above arms were: 1. bans on concealed carry; 2. limits on sales to minors, such as requiring parental permission; and 3. extra penalties for misuse in a crime. Sales bans were the minority approach, and possession bans very rare.
From 1607 through 1899, sales bans for nonfirearm arms were:
- Bowie knife. Sales bans in Georgia, Tennessee, and later in Arkansas. Georgia ban held to violate the Second Amendment. Nunn v. State, 1 Ga. 243 (1846).
- Prohibitive transfer or occupational vendor taxes in Alabama and Florida, which were repealed. Personal property taxes at levels high enough to discourage possession by poor people in Mississippi, Alabama, and North Carolina.
- Dirk (a type of fighting knife). Georgia (1837) (held to violate Second Amendment); Arkansas (1881).
- Sword cane (a sword concealed in a walking stick). Georgia (1837), held to violate the Second Amendment. Arkansas (1881).
- Slungshot or “colt” (most typically, a lead weight held in the tip of a flexible bludgeon). Sales bans in nine states or territories. The Kentucky ban was later repealed. Illinois also banned possession.
- Sand club or blackjack. New York (1881), (1884), (1889), (1899).
- Billy. New York (1881), (1884), (1889), (1899).
- Metallic knuckles. Sales bans in eight states, later repealed in Kentucky. Illinois also banned possession.
- Cannons. No bans. Restrictions on discharge without permission in a variety of municipalities.
American bans on possession or sale to adults of particular types of firearms were:
- Georgia (1837), all handguns except horse pistols. Held unconstitutional in Nunn v. State, 1 Ga. 243 (1846).
- Tennessee (1879) and Arkansas (1881). Bans on sales of concealable handguns. Based on militia-centric interpretations of the state constitutions, the laws did not ban the largest and most powerful revolvers, namely those like the Army or Navy models.
- Florida (1893). Discretionary licensing and an exorbitant licensing fee for carry of repeating rifles. Extended to handguns in 1901. The law was “never intended to be applied to the white population” and “conceded to be in contravention of the Constitution and non-enforceable if contested.” Watson v. Stone, 148 Fla. 516 (1941) (Buford, J., concurring).
Earlier this month, the en banc Fourth Circuit, by a 10-5 vote, upheld Maryland’s ban on common rifles dubbed “assault weapons.” Judge Wilkinson’s majority opinion cited the article 16 times, and Judge Richardson’s dissent cited it 9 times. Bianchi v. Brown, 2024 WL 3666180 (4th Cir. 2024) (en banc).
The article has also been cited in three U.S. District Court opinions supporting the claims of Second Amendment plaintiffs. Association of New Jersey Rifle & Pistol Clubs, Inc. v. Platkin, 2024 WL 3585580 (D.N.J. July 30, 2024); Miller v. Bonta, 699 F.Supp.3d 956, 981 n.86, 987 n.107 (S.D. Cal. 2023); Duncan v. Bonta, 695 F.Supp.3d 1206, 1242 n.177 (S.D. Cal. 2023). And in a Third Circuit dissent disagreeing with Second Amendment claims. Lara v. Commissioner Pennsylvania State Police, 91 F.4th 122, 144-45, 147 (3d Cir. 2024) (Restrepo, J., dissenting).
As the cites indicate, judges can disagree about how strictly or broadly to draw historical analogies, and about what sorts of laws create an established tradition at a given level of generality. It is at least helpful, I hope, that judges can have access to a common set of facts about the historical regulation of controversial arms.
The Bombing of Nagasaki, August 9, 1945
The Target Committee appointed by President Harry Truman to decide which Japanese cities would receive the Little Boy and Fat Man atomic bombings did not place Nagasaki among their top two choices. Instead they identified Kokura as the second target after Hiroshima. In Kokura, a city of 130,000 people on the island of Kyushu, the Japanese operated one of their biggest ordnance factories, manufacturing among other things chemical weapons. The Americans knew all this, but strangely had not targeted the city yet in their conventional bombing campaign. That was one of the reasons the Target Committee thought it would be a good option after Hiroshima.
The third choice, Nagasaki was a port city located about 100 miles from Kokura. It was larger, with an approximate population of 263,000 people, and some major military facilities, including two Mitsubishi military factories. Nagasaki also was an important port city. Like Kokura and Hiroshima, it had not suffered much thus far from American conventional bombing.
After the bombing of Hiroshima on August 6, workers on Tinian island labored intensely to put the finishing touches on the Fat Man bomb and prepare it for use. This was a plutonium implosion device of far greater complexity than the Little Boy bomb used at Hiroshima, which used uranium-235 in a fairly conventional explosive mechanism. The scientists and ordnance experts at Los Alamos had agonized for years over how to use plutonium in an atomic weapon, and Fat Man was the result.
The decision to use Fat Man just days after the explosion of Little Boy at Hiroshima was based on two calculations: the always-changeable Japanese weather—the appearance of a typhoon or other major weather event could force deployment to be postponed for weeks—and the belief that two bombings following in quick succession would convince the Japanese that the Americans had plenty of atomic devices and were ready to keep using them until Japan finally surrendered. Reports of approaching bad weather convinced the Americans to drop the next bomb on August 9.
A few seconds after the detonation of ‘Little Boy‘ over Hiroshima.
Combat Strike Operations Order 35
509th Composite Group U.S. Army Air Force
Taking off from Tinian island at approximately 2:45 a.m. with Colonel Paul Tibbets as command pilot of the ‘Enola Gay‘, the B-29 ascended to operational altitude as it flew to Iwo Jima island to rendezvous just before 6:00 a.m. with the accompanying observation and photography aircraft
At 08:09, Colonel Tibbets started his bomb run over Hiroshima and handed control over to his bombardier, Major Thomas Ferebee.
The release at 08:15 went as planned, and the gun type atomic bomb containing about 141 pounds of uranium-235 took 44.4 seconds to fall from the aircraft flying at about 31,000 feet to a detonation height of about 1,900 feet above the city.
Due to a crosswind, the bomb missed the aiming point, the Aioi Bridge, by approximately 800 feet and detonated directly over Shima Surgical Clinic with the force equivalent to 16 kilotons of TNT.
The radius of total destruction was about 1 mile, with resulting fires across 4.4 square miles.
Around 70,000 to 80,000 people, including 12 U.S. prisoners of war, were killed and another 70,000 injured.
Lewis, Clark, and the Girandoni Air Rifle
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About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern.
But that reasoning can not be applied to this great charter.
If all men are created equal, that is final.
If they are endowed with inalienable rights, that is final.
If governments derive their just powers from the consent of the governed, that is final.
No advance, no progress can be made beyond these propositions.
If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.
Those who wish to proceed in that direction can not lay claim to progress.
They are reactionary.
Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers…………………
After 82 Years, a Hero’s Remains Are Coming Home
World War II was one of history’s deadliest conflicts. The Pacific theater of that conflict was particularly nasty; my mother’s oldest brother served as a Marine in that theater and harbored bad feelings towards Japan for the rest of his life, despite that nation’s dramatic post-war changes. And in that theater, one of the greatest war crimes was the Bataan Death March.
In that event, roughly 76,000 prisoners of war, 10,000 of them Americans, the balance Filipinos, were force-marched from the tip of the Bataan Peninsula to a town called San Fernando, where they were crammed in rail cars and taken to Capas, where they were forced to walk another seven miles to the former training base, Camp O’Donnell, where they were held prisoner. Only 54,000 of the original 76,000 survived the march; captives were beaten, shot, bayoneted, and beheaded en route if they faltered or fell. After reaching Camp O’Donnell and until the end of the war, 26,000 more Filipinos and 1,500 Americans died while being held as POWs by the Japanese. Many of those who died were buried in mass graves, and since the end of the war, the United States has been making efforts to identify remains and bring them home for burial.
Today we learn that the remains of one more American serviceman are, after 82 years, coming home.
A 20-year-old soldier from Louisiana who died as a prisoner of war during World War II has been accounted for, the Defense POW/MIA Accounting Agency (DPAA) said Monday.
U.S. Army Pfc. Joseph C. Murphy was serving in the 31st Infantry Regiment in the Philippines in 1942. While he was serving, Japanese forces invaded the Philippine Islands, sparking months of intense fighting in the region. During this time, thousands of U.S. and Filipino service members were captured as prisoners of war.
Murphy was among those reported captured when U.S. soldiers in the Bataan peninsula surrendered to Japanese forces, the DPAA said, and was one of tens of thousands of POWs subjected to the Bataan Death March in the spring of 1942. After the 65-mile trek, Murphy and other soldiers were held at the Cabanatuan POW Camp #1.
Murphy’s remains were identified after an effort began in 2019 to use DNA as well as dental records and other anthropological data to identify the remains.
It’s to the credit of the DPAA that, after over eight decades, this effort is still ongoing and they are still bringing our men home. It’s a painstaking process; of that we can have no doubt, but it’s worth doing, even at this distance in time. Not only does it show respect for our fallen from that conflict, but it serves as reassurance to today’s soldiers, airmen, sailors, and Marines that if you fall in a foreign land, America will spare no effort to bring your remains back.
Now that he has been accounted for, a rosette will be placed besides Murphy’s name on the Walls of the Missing at the Manila American Cemetery and Memorial. He will be buried in his Louisiana hometown in early August.
This is the proper form. Thousands of Americans fell in the Bataan Death March and the subsequent imprisonment. The legitimate roles of our federal government are few, but expending some resources to identify those who have fallen defending our nation and our constitution is a worthwhile effort, and we can hope that Pfc. Murphy’s family, at long last, has some closure.
The Salvation Army Celebrates the True Meaning of National Donut Day
Many Americans don’t know that National Donut Day actually has its roots in doing good. Celebrated on the first Friday in June, this sweet tradition dates back to World War I, when nearly 250 Salvation Army volunteers known as “Donut Lassies” traveled overseas to provide emotional and spiritual support as well as fried confections, supplies, and other services to troops on the front lines.
The original donuts were fried in small pans on the front lines, and the Lassies are credited with popularizing the donut in the United States when troops returned home from war. The Salvation Army in Chicago celebrated the first National Donut Day in 1938 to commemorate their work and help those in need during the Great Depression.
That same spirit of service continues to this day. For more than a century the organization has provided a wide range of essential services like food, shelter, and emotional and spiritual support to the most vulnerable and to the men and women serving on the front lines of need.
“Whether glazed or cake, and whatever the toppings, donuts represent our long history of providing hope and comfort – from our volunteers in the trenches of war to our continued service on the front lines of need,” said Commissioner Kenneth Hodder, National Commander of The Salvation Army. “Knowing that National Donut Day has its roots in the ‘fight for good’ makes these treats taste even sweeter.”
6 June 1944, United Kingdom
Soldiers, Sailors and Airmen of the Allied Expeditionary Forces:
You are about to embark upon the Great Crusade, toward which we have striven these many months. The eyes of the world are upon you. The hopes and prayers of liberty-loving people everywhere march with you. In company with our brave Allies and brothers-in-arms on other Fronts you will bring about the destruction of the German war machine, the elimination of Nazi tyranny over oppressed peoples of Europe, and security for ourselves in a free world.
Your task will not be an easy one. Your enemy is well trained, well equipped and battle-hardened. He will fight savagely.
But this is the year 1944. Much has happened since the Nazi triumphs of 1940-41. The United Nations have inflicted upon the Germans great defeats, in open battle, man-to-man. Our air offensive has seriously reduced their strength in the air and their capacity to wage war on the ground. Our Home Fronts have given us an overwhelming superiority in weapons and munitions of war, and placed at our disposal great reserves of trained fighting men. The tide has turned. The free men of the world are marching together to victory.
I have full confidence in your courage, devotion to duty, and skill in battle. We will accept nothing less than full victory.
Good Luck! And let us all beseech the blessing of Almighty God upon this great and noble undertaking.
“Twilight, you say? Listen to H.G. Wells. H.G. Wells says: “The past is but the beginning of a beginning, and all that is and has been is but the twilight of the dawn.” Well, that’s a new day – our sunlit new day – to keep alive the fire so that when we look back at the time of choosing, we can say that we did all that could be done – never less.”
-Ronald Reagan 1988
REMINDER: It’s Victims of Communism Day.
Today is May Day. Since 2007, I have advocated using this date as an international Victims of Communism Day. I outlined the rationale for this proposal (which was not my original idea) in my very first post on the subject:
May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their [authority]. I suggest that we instead use it as a day to commemorate those regimes’ millions of victims.
The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century’s other great totalitarian tyranny. And May Day is the most fitting day to do so….
Our comparative neglect of communist crimes has serious costs. Victims of Communism Day can serve the dual purpose of appropriately commemorating the millions of victims, and diminishing the likelihood that such atrocities will recur. Just as Holocaust Memorial Day and other similar events promote awareness of the dangers of racism, anti-Semitism, and radical nationalism, so Victims of Communism Day can increase awareness of the dangers of left-wing forms of totalitarianism, and government domination of the economy and civil society.
While communism is most closely associated with Russia, where the first communist regime was established, it had equally horrendous effects in other nations around the world. The highest death toll for a communist regime was not in Russia, but in China. Mao Zedong’s Great Leap Forward was likely the biggest episode of mass murder in the entire history of the world.
May 1, 2024
The Roman poet Ovid wrote in his Book Of Days that the month of May is named for the maiores, Latin for “elders,” and that the following month, June is named for the iuniores, or “young people”
Today is Camerone Day, the anniversary of the Battle of Camerone.
On this day in 1863, 3 officers and 62 men of the French Foreign Legion exemplified stoic determination in the face of overwhelming odds.
The Legionnaires under Captain Jean Danjou, retreating in good order from Palo Verde as a diversion, made a stand in an hacienda in the Mexican town of Camarón de Tejeda and were surrounded by as many as 2000 Mexican troops.
When called on to surrender, by Colonel Francisco de Paula Milán, the Mexican commander, Captain Danjou replied, “We have munitions. We will not surrender.”
In the ensuing battle, nearly all of the Legionnaires, including Captain Danjou, were killed. When the last 5 unwounded men ran out of ammunition, under the command of Lieutenant Maudet, they loaded their last round, fixed bayonets, and charged the enemy.
Inevitably, they were surrounded and captured. The last remaining NCO, Corporal Maine, insisted that the wounded be treated, the survivors be sent with their arms back to France, and that the body of Captain Danjou be escorted for a proper military burial. Colonel Milan reportedly said; “Que podré negar a cierto hombres? No, estos no son hombres, son demonios.” What can I refuse to such men? No, these are not men, they are devils.
The Foreign Legion celebrates this day as an annual holiday where, on parade, the wooden prosthetic hand of Captain Danjou is carried as a high honor.
Today, my Dad, already ‘The Elder’ of the clan, as the oldest living, becomes the oldest ever lived, as he surpasses the age of his older brother who passed in February of 2021, a little less than 5 months before his centenary birthday.
Yes, Dad is “Ninety and Nine”, and in September will celebrate his 100th birthday, having proclaimed on more than one occasion that he plans on casting his vote in the 2024 federal election.