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The Myth of Continuity in American Gun Culture

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Brian DeLay argues today’s U.S gun culture is consumerist, state-phobic, and individualist, whereas early America’s gun culture was utilitarian, state-led, and collective. In this interview DeLay provides detailed critiques of the iterations of the myth of continuity being deployed to overturn laws regulating assault weapons, large-capacity magazines, and ghost guns.

Image courtesy of interviewee. April 15, 2024

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The speaker, a historian who has spent 15 years studying the international arms trade in the 18th and 19th centuries, discusses their unexpected involvement in Second Amendment cases following the Supreme Court's significant 2022 decision in Bruin. This video video ruling shifted the legal landscape by limiting courts to interpreting whether firearm regulations align with historical context, eliminating public interest considerations in gun regulation cases.

The speaker highlights that prior to the 2008 Heller decision, the Second Amendment was understood to protect the rights associated with state militias, not individual self-defense. The Bruin decision intensified challenges to existing firearm laws and empowered gun rights advocates, causing confusion in legal rulings as judges reached differing conclusions based on the same questions.

Key to the speaker's critique is the "myth of continuity," which posits that contemporary gun culture and 18th-century practices are fundamentally similar, allowing for the argument that since historical regulations were absent, current regulations should similarly be prohibited. They expose this myth as misleading, arguing that historical gun culture was state-led and collective, differing significantly from today's consumerist and individualist culture.

The speaker also addresses the growing issue of "ghost guns," untraceable firearms assembled from kits, and how gun rights advocates are using historical claims to argue against regulations. They assert that while self-made arms did exist historically, the context and social consequences were vastly different.

Ultimately, the speaker believes that the historical analysis required by the Bruin decision will reveal the flaws in previous rulings like Heller and Bruin itself, potentially undermining modern Second Amendment interpretations as new evidence comes to light. They express concern over historians being central to legal discussions on firearm regulation, suggesting that the expertise should lie with public health officials and elected representatives rather than historians.

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Here are some key quotes from the video you've :

1. **On the Historian's Perspective**:
- "I've been working on a couple of big ambitious projects having to do with the history of the International Arms trade in the 18th and the 19th centuries."

2. **Impact of the Bruin Decision**:
- "After Bruin, I started getting contacted by Attorney General's offices across the country who needed historians to help them try to defend firearms laws from challenges by second Amendment activists."

3. **Changes in Interpretation of the Second Amendment**:
- "Until 2008, courts across the country had determined that the Second Amendment protected rights associated with state militias... that it did not confer an individual right to armed self-defense."

4. **Significance of the Heller and Bruin Decisions**:
- "2008, the Supreme Court changed that interpretation... there were a lot of challenges to existing firearms restrictions across the United States based on this new interpretation of the Second Amendment."

5. **The Shift in Court Approach**:
- "Bruin... said that the only relevant question is whether the regulation that's being challenged is consistent with history, video and tradition."

6. **Critique of Historical Misreading**:
- "Much like Heller, it was based in a really thoroughgoing misreading of the history. Most professional historians... thought that the court got it disastrously wrong."

7. **Discussion on the Myth of Continuity**:
- "Again and again, plaintiffs in these cases... were asserting a fundamental continuity in gun culture in the present... and gun culture in the late 18th century."

8. **Contrasting Gun Cultures**:
- "Whereas in the United States today, gun culture is consumerist, it's state phobic and it's individualist. Early America's gun culture was utilitarian, it was state led, and it was collective."

9. **Critique on Inconsistency in Judicial Interpretation**:
- "One of the strongest critiques... is the incredible inconsistency with which they use history and historical principles in order to decide these cases."

10. **Reflections on Future Involvement of Historians**:
- "Bruin ensures that historians are going to be deeply involved with Second Amendment cases going forward... reason to lament that fact."

11. **Conclusion on the Role of Historians**:
- "I think that really belongs to public health officials, to constitutional scholars... Why should we be involved in these kinds of questions?"

These quotes capture the essential arguments and points made in the video regarding the historical convideo of the Second Amendment, the decisions of the Supreme Court, and the implications for future firearms regulation and jurisprudence.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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I've, I'm a historian,

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and for 15 years I've been working on a couple

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of big ambitious projects having to do with the history

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of the International Arms trade in the 18th

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and the 19th centuries.

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And, you know, in most of that entire time,

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I had never, ever been contacted

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to work on any kind of Second Amendment case.

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Um, and then in the summer of 2022,

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the Supreme Court handed down a very significant Second

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Amendment decision in Bruin.

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Um, and after Bruin, I started getting contacted

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by Attorney General's offices across the country

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who needed historians to help them try

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to defend firearms laws from challenges by,

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second Amendment activists.

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So the article is in some ways my attempt to sum up

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what I've learned in the course

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of working in all these cases.

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And to put it in a broader, context.

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Until 2008, courts across the country

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had determined that the Second Amendment protected,

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rights associated with state militias, that is to say

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that, the, the text of the amendment was interpreted to

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bear upon the rights

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of persons participating in militias.

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And so, courts had this found

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until 2008 that it did not confer an individual right

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to armed self-defense.

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2008, the Supreme Court changed that interpretation

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with a very important decision, named Heller

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in the aftermath of Heller.

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Um, understandably, there were a lot of challenges

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to existing firearms restrictions across the United States

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based on this new interpret interpretation

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of the Second Amendment and the right.

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And what emerged over the course

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of the next several years was a two-step process that courts

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around the country used when assessing

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Second Amendment challenges.

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The first question that courts were asking was whether

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or not, the regulation in question was in line

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with history, text and tradition.

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That is to say it's rooted in the, in the nation's history

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of firearms regulation.

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And if, depending on the answer to that question,

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they asked an another relevant question that you would think

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that courts, across the, any country would wanna ask,

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which is, what is the public interest

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in having this regulation on the books?

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And they tried to assess these two issues.

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Bruin, in the summer of 2022, authored by,

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Clarence Thomas said that that was one step too many,

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that the only relevant question of these two is whether

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or not, the regulation that's being challenged,

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is consistent with history, text

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and tradition, that in other words,

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courts were no longer permitted

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to assess public interest when it comes to firearms law.

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So it's an absolutely extraordinary decision. Um, much like

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Heller, it was based in

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a really thoroughgoing misreading of the history.

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Um, much like Heller, most professional historians

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with relevant expertise thought

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that the court got it disastrously wrong.

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And, since that decision came down in the summer

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of 2022, there's been a deluge of challenges basically

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to almost every firearms regulation on the books,

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and an emboldened gun rights, movement

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that thinks that, you know, they're going to be able

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to overturn virtually every firearms

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regulation on the books.

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So,

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Bruin has not only really shifted the parameters

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and the, the, the, the, the relevant questions that have

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to be asked in these, in these cases,

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but it's also advanced a, a model

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for how these cases are supposed to go,

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that frankly is really incoherent,

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and that is leading to a really messy jurisprudence

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where judges faced

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with exactly the same questions are coming

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to radically different decisions.

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Uh, so the myth of continuity, one of the most,

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one of the big observations that I came away

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with having worked on many of these cases is that again

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and again, plaintiffs in these cases

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and the experts that, that these plaintiffs had recruited

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to help them make their arguments were asserting a

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fundamental continuity in gun culture in the present in the

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United States and gun culture in the late 18th century

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around the time of the founding.

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And the, this argument takes all kinds of different,

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manifestations depending on the particular

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regulation that's under attack.

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But the basic premise here is that yeah, guns are,

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are different in some ways than they were in the late 18th

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century, but they're not that different.

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And yeah, maybe people are using them

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for somewhat different purposes,

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but they're not that different, right?

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So the guns aren't that different.

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The, the reasons people want them aren't that different.

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What they do with them is not that different.

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The big discontinuity is regulation

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that the founders didn't regulate what people did with guns.

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And therefore, we can't regulate what people do

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with guns either, because this is every,

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all the other factors here are basically the same.

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That's effectively the, the big 30,000 foot, description

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of what the myth of continuity is.

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Well, the myth is being deployed as kind

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of the fundamental grammar of many of these

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court cases, kind of regardless of

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what the specific regulation is.

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So the, a abstracted at its most basic is,

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is the myth breaks down into sort of three step argument.

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It says, X firearms related issue has been

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around since the founding second,

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the founders themselves didn't do anything about it.

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And third, as a consequence of Bruin,

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we can't do anything about it either.

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And so, you know, it really depends if, if,

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if we're talking about prohibitions on assault weapons

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or high capacity magazines or ghost guns

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or, you know, pick your, your issue,

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the myth takes different forms depending on

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what the issue is at stake.

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But the basic argument is, is really consistent

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that the highest level, I think the most important things

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that historians have found about gun culture in the late

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18th century and gun culture in our own times is

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that whereas in the United States today,

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gun culture is consumerist, it's state phobic

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and it's individualist.

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Um, early America's gun culture was utilitarian,

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it was state led, and it was collective.

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So the fundamental facts structuring,

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gun culture in early America were just really different in

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ways that is, extremely important

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for judges making these important decisions to understand.

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Well, this is at probably, the kind

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of second amendment case where the myth

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of continuity has been most, elaborated.

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Um, and what opponents

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of limits on assault weapons

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or high capacity magazines have been claiming about the past

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is that fundamentally, when we're talking about these kinds

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of cases, we're talking about repeating firearms,

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the technology of repeating firearms

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and combing through museum catalogs

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and, histories of firearms technology.

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These proponents of the myth of continuity have insisted

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that repeating technology, you know, repeating firearms

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or a technology that's been around for hundreds of years,

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and in a narrow technical sense, it's true, it

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gun makers in Europe in particular, starting as early maybe

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as the 16th, 15th, even 16th centuries,

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they understood that if they could figure out how to

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engineer a firearm so that it would fire more than once

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with a single loading, that that would be a force multiplier

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that would be incredibly valuable to militaries,

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to potential consumers.

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Um, and so a lot of innovation went into trying

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to design these firearms.

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And there are numerous examples of attempts

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to create repeating firearms in museums in Europe,

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and now in the United States.

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Um, what the proponents of the myth

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of continuity obscure in these cases,

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however, is that while there were all kinds

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of clever designs to come up with repeating firearms,

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that they were, first of all, they were,

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they represented a tiny, tiny fraction of the,

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all the firearms in the world in at the time, prior to the

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third decade of the 19th century.

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Um, secondly, almost none of them worked well.

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So they were highly unreliable and even unsafe to the user.

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Um, they were incredibly expensive if they were made well.

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And these firearms had never had any kind

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of significance either militarily

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or really commercially outside of a paper thin slice

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of Europe's, consuming elite.

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Um, and, and

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consequently repeating firearms had never produced any

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social consequences.

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And the reason that matters so much is that the argument

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that the gun rights, advocates make in these cases is

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that repeating firearms technology existed

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at the time of the founding.

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The founders didn't regulate repeating firearms technology,

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and therefore we can't either.

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But that argument relies on this fundamental distortion of

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what regulation is.

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So, you know, regulators around the world deal

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with actual social problems.

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They deal with things that are actually affecting

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the world they inhabit.

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They're not seeking the furthest regions

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of notional technologies

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and then preemptively regulating it.

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That's not how regulation worked in the 18th century,

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and it's almost never how regulation works even now.

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Um, and so consequently repeating firearms, yes,

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they existed, they existed in ways

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that were far less consequential than these,

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advocates would want judges to believe,

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and they did not attract regulatory attention

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because they had zero social consequences.

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Well, I mean, I think I,

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I do not accept at face value the claim

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that these judges are textualists.

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Um, I think that that is something that we should regard

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as a claim rather than a fact.

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Um, the, I think one of the strongest critiques

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that's been leveled at this court,

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in particular about Bruin,

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but about other cases that have been decided in the last

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several years, is the incredible inconsistency

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with which they use history

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and historical principles in order to decide these cases.

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And it is, I think, very difficult

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for a fair minded observer to not simply conclude

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that this is a political body.

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So this is a newer area of Second Amendment jurisprudence,

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unsurprisingly, because this is a

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relatively new technology.

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So the basic context is that

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there's a law in the United States that, guns sold,

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by federally licensed firearms, either manufacturers

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or dealers must bear serial numbers on

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certain critical components of the gun.

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And that law has been around for more than half a century,

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and it is totally vital to,

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law enforcement's capacity to solve gun crime.

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There was a carve out in the initial law in, 1960s

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that said that this is not going to apply to hobbyists

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who make their own firearms.

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That concession has now opened a, a, a a, an opportunity

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for a sort of thriving sub-industry

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to evolve over the last decade

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or so where companies produce parts and

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or kits with, you know, all the parts that are necessary

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that aren't entirely finished,

11:48.945 --> 11:52.085
but that come with either in the package

11:52.225 --> 11:53.925
or freely available online.

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Very simple instructions that allow people with no skill

11:57.345 --> 12:02.205
and no special tools usually to finish the unfinished pieces

12:02.425 --> 12:03.925
and then quickly assemble a firearm

12:04.075 --> 12:05.325
that has no serial numbers.

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And this is legal in many states.

12:09.055 --> 12:11.405
These so-called ghost guns,

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have caused increasing problems in the United States.

12:15.465 --> 12:18.325
Um, you know, often it enables people who are not of age

12:18.785 --> 12:20.765
who cannot pass a background check, right?

12:20.905 --> 12:22.605
Um, who were involved in criminal activity

12:22.625 --> 12:23.965
to acquire firearms that would

12:23.965 --> 12:25.005
otherwise be difficult to acquire.

12:25.825 --> 12:27.045
And, so

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consequently, many states in the United States have begun

12:29.925 --> 12:32.325
passing regulations seeking to regulate this,

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this new novel technology gun rights groups

12:37.325 --> 12:41.855
opposed to these regulations, have developed a version

12:41.855 --> 12:46.055
of the myth of continuity that, claims that,

12:46.645 --> 12:51.055
self-made arms are a venerable American tradition

12:51.205 --> 12:53.575
that had been going on since the colonial era

12:53.885 --> 12:56.575
that were in fact, critical to the ability

12:56.715 --> 12:58.015
of the 13 colonies

12:58.015 --> 12:59.895
to win their independence from Great Britain.

13:00.555 --> 13:03.135
And that had never been regulated by the founders before,

13:03.155 --> 13:06.935
and therefore, after Bruin, we may not regulate them either.

13:08.435 --> 13:10.135
And on the face of it,

13:10.135 --> 13:11.975
it could sound like a really preposterous claim.

13:12.395 --> 13:14.575
And as a professional historian who has come

13:14.575 --> 13:16.855
to know a whole lot about this, I'm here

13:16.855 --> 13:19.015
to tell you it is in fact a preposterous claim.

13:19.755 --> 13:23.535
Um, but the, again, like the version of the myth

13:23.535 --> 13:25.695
of continuity that's deployed for assault weapons and,

13:25.715 --> 13:30.265
and high capacity magazines, the individual fact claims

13:30.495 --> 13:33.985
that are often made in the expert declarations in these

13:33.985 --> 13:36.225
cases, or by the plaintiffs in their complaints,

13:36.965 --> 13:38.065
are often true.

13:38.655 --> 13:41.065
It's just that they've been so totally denuded of context,

13:41.645 --> 13:45.345
and they've been so stripped of the vital surrounding facts

13:45.345 --> 13:47.825
that one would need in order to appropriately assess them

13:48.295 --> 13:50.545
that they pres they end up presenting a profoundly

13:50.545 --> 13:51.625
misleading, picture.

13:52.085 --> 13:53.625
So, you know, the quick version

13:53.805 --> 13:55.905
of what's actually happening when it comes

13:55.905 --> 13:58.145
to the manufacturing of firearms in the 18th

13:58.145 --> 13:59.465
and early 19th century is

13:59.465 --> 14:03.585
that it was unsurprisingly a professional activity, right?

14:04.085 --> 14:06.945
It was not the case that amateurs could just decide

14:06.945 --> 14:08.785
to make their own guns because they needed them.

14:09.255 --> 14:10.385
That that didn't happen

14:10.385 --> 14:12.185
because guns were really hard to make

14:12.185 --> 14:14.905
and making them badly had very significant consequences.

14:15.645 --> 14:19.105
Um, and so, once again, you know, from my perspective

14:19.105 --> 14:23.755
as a historian, there is a tradition in this country whereby

14:24.375 --> 14:25.955
new technologies emerge.

14:26.775 --> 14:28.715
That's step one. Step two,

14:28.715 --> 14:31.115
these technologies become sufficiently reliable

14:31.375 --> 14:34.395
and widespread to begin generating social consequences.

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And then step three, regulators respond

14:37.715 --> 14:40.155
to these new social consequences with regulations.

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And that is the American tradition of regulating firearms.

14:43.295 --> 14:45.035
And it's, it goes back, you know,

14:45.105 --> 14:46.635
into the early 19th century,

14:47.055 --> 14:48.395
and it stretches all the way through.

14:48.395 --> 14:50.315
And actually what's happening with ghost guns is

14:50.835 --> 14:52.845
absolutely a classic example of

14:52.845 --> 14:54.365
that American tradition of regulation.

14:54.515 --> 14:57.685
Because as soon as these ghost guns had become reliable

14:57.705 --> 15:00.045
and widespread enough to begin generating social

15:00.045 --> 15:02.125
consequences, states across the country are

15:02.125 --> 15:03.285
responding with legislation.

15:03.995 --> 15:08.205
Well, Bruin ensures that historians are going

15:08.205 --> 15:09.325
to be deeply involved

15:09.485 --> 15:11.125
with Second Amendment cases going forward.

15:11.305 --> 15:14.525
And until, and unless the decision is radically altered

15:14.545 --> 15:19.265
or even one day maybe overturned, I think there's reason

15:19.285 --> 15:20.305
to lament that fact.

15:20.705 --> 15:23.785
I mean, from my perspective as a citizen, I don't think

15:23.785 --> 15:25.105
that historians are the ones

15:25.105 --> 15:27.545
that I want driving the bus when it comes to, or,

15:27.545 --> 15:29.905
or making very significant decisions when it comes

15:29.905 --> 15:31.265
to questions of firearm safety

15:31.265 --> 15:32.705
and firearms regulation in this country.

15:33.305 --> 15:36.065
I mean, I think that really belongs to,

15:36.365 --> 15:40.185
public health officials, to, constitutional scholars,

15:40.445 --> 15:43.865
to, legally elected appropriate elected, you know,

15:43.965 --> 15:45.665
representatives, you know,

15:45.665 --> 15:48.105
and to communities, to faith leaders, to all kinds

15:48.105 --> 15:50.265
of people, historians.

15:50.325 --> 15:52.145
Why should we be involved in these kinds of questions?

15:52.245 --> 15:54.025
But we are involved in these kinds of questions.

15:54.025 --> 15:56.665
And so my while, while on the one hand I think

15:56.665 --> 16:01.375
that's regrettable, on the other hand, I do think that,

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by mandating

16:04.765 --> 16:08.535
that authorities across the country recruit historians in

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order to defend firearms laws

16:10.275 --> 16:13.255
and look deeply into the founding era

16:13.355 --> 16:16.135
and the role of firearms in American life in the founding

16:16.135 --> 16:18.655
era, I think that inadvertently

16:18.655 --> 16:20.895
what the Bruin decision's going to do is it's going

16:20.895 --> 16:22.775
to only make it clear

16:23.155 --> 16:26.855
and clear how badly decided both Heller

16:26.855 --> 16:27.935
and Bruin were, right.

16:28.055 --> 16:30.975
I mean, the court is mandating that we produce new knowledge

16:30.975 --> 16:33.975
and learn more and more about what was actually happening

16:33.975 --> 16:36.135
around the time of the founding with guns in American life.

16:36.635 --> 16:39.975
And those facts do not support the court's interpretation.

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So I actually think that this, all this work in the medium

16:45.155 --> 16:47.455
to long term is gonna undermine the very foundation

16:47.455 --> 16:49.695
of modern Second Amendment jurisprudence in this country.

Impact of Bruin on Second Amendment Jurisprudence

00:00:00 - I've, I'm a historian, and for 15 years I've been working on a couple of big ambitious projects having to do with the history of the International Arms trade in the 18th and the 19th centuries. And, you know, in most of that entire time, I had never, ever been contacted to work on any kind of Second Amendment case. and then in the summer of 2022, the Supreme Court handed down a very significant Second Amendment decision in Bruin. and after Bruin, I started getting contacted
00:00:36 - who needed historians to help them try to defend firearms laws from challenges by, second Amendment activists. So the article is in some ways my attempt to sum up what I've learned in the course of working in all these cases. And to put it in a broader, context. Until 2008, courts across the country had determined that the Second Amendment protected,
00:01:09 - that, the, the text of the amendment was interpreted to bear upon the rights of persons participating in militias. And so, courts had this found until 2008 that it did not confer an individual right to armed self-defense. 2008, the Supreme Court changed that interpretation with a very important decision, named Heller in the aftermath of Heller.
00:01:40 - to existing firearms restrictions across the United States based on this new interpret interpretation of the Second Amendment and the right. And what emerged over the course of the next several years was a two-step process that courts around the country used when assessing Second Amendment challenges. The first question that courts were asking was whether or not, the regulation in question was in line
00:02:09 - That is to say it's rooted in the, in the nation's history of firearms regulation. And if, depending on the answer to that question, they asked an another relevant question that you would think that courts, across the, any country would wanna ask, which is, what is the public interest in having this regulation on the books? And they tried to assess these two issues. Bruin, in the summer of 2022, authored by, Clarence Thomas said that that was one step too many,
00:02:42 - or not, the regulation that's being challenged, is consistent with history, text and tradition, that in other words, courts were no longer permitted to assess public interest when it comes to firearms law. So it's an absolutely extraordinary decision. much like Heller, it was based in a really thoroughgoing misreading of the history. much like Heller, most professional historians with relevant expertise thought

Impact of Bruin Decision on Gun Regulation Challenges

00:03:12 - And, since that decision came down in the summer of 2022, there's been a deluge of challenges basically to almost every firearms regulation on the books, and an emboldened gun rights, movement that thinks that, you know, they're going to be able to overturn virtually every firearms regulation on the books. So, Bruin has not only really shifted the parameters and the, the, the, the, the relevant questions that have
00:03:43 - but it's also advanced a, a model for how these cases are supposed to go, that frankly is really incoherent, and that is leading to a really messy jurisprudence where judges faced with exactly the same questions are coming to radically different decisions. so the myth of continuity, one of the most, one of the big observations that I came away with having worked on many of these cases is that again
00:04:15 - and the experts that, that these plaintiffs had recruited to help them make their arguments were asserting a fundamental continuity in gun culture in the present in the United States and gun culture in the late 18th century around the time of the founding. And the, this argument takes all kinds of different, manifestations depending on the particular regulation that's under attack. But the basic premise here is that yeah, guns are,
00:04:47 - century, but they're not that different. And yeah, maybe people are using them for somewhat different purposes, but they're not that different, right? So the guns aren't that different. The, the reasons people want them aren't that different. What they do with them is not that different. The big discontinuity is regulation that the founders didn't regulate what people did with guns. And therefore, we can't regulate what people do with guns either, because this is every, all the other factors here are basically the same. That's effectively the, the big 30,000 foot, description
00:05:19 - Well, the myth is being deployed as kind of the fundamental grammar of many of these court cases, kind of regardless of what the specific regulation is. So the, a abstracted at its most basic is, is the myth breaks down into sort of three step argument. It says, X firearms related issue has been around since the founding second,
00:05:51 - And third, as a consequence of Bruin, we can't do anything about it either. And so, you know, it really depends if, if, if we're talking about prohibitions on assault weapons or high capacity magazines or ghost guns or, you know, pick your, your issue, the myth takes different forms depending on what the issue is at stake. But the basic argument is, is really consistent that the highest level, I think the most important things that historians have found about gun culture in the late

Evolution of Gun Culture: Past vs Present

00:06:24 - that whereas in the United States today, gun culture is consumerist, it's state phobic and it's individualist. early America's gun culture was utilitarian, it was state led, and it was collective. So the fundamental facts structuring, gun culture in early America were just really different in ways that is, extremely important for judges making these important decisions to understand.
00:06:58 - of second amendment case where the myth of continuity has been most, elaborated. and what opponents of limits on assault weapons or high capacity magazines have been claiming about the past is that fundamentally, when we're talking about these kinds of cases, we're talking about repeating firearms, the technology of repeating firearms and combing through museum catalogs and, histories of firearms technology.
00:07:29 - that repeating technology, you know, repeating firearms or a technology that's been around for hundreds of years, and in a narrow technical sense, it's true, it gun makers in Europe in particular, starting as early maybe as the 16th, 15th, even 16th centuries, they understood that if they could figure out how to engineer a firearm so that it would fire more than once with a single loading, that that would be a force multiplier
00:08:02 - to potential consumers. and so a lot of innovation went into trying to design these firearms. And there are numerous examples of attempts to create repeating firearms in museums in Europe, and now in the United States. what the proponents of the myth of continuity obscure in these cases, however, is that while there were all kinds of clever designs to come up with repeating firearms, that they were, first of all, they were,
00:08:34 - all the firearms in the world in at the time, prior to the third decade of the 19th century. secondly, almost none of them worked well. So they were highly unreliable and even unsafe to the user. they were incredibly expensive if they were made well. And these firearms had never had any kind of significance either militarily or really commercially outside of a paper thin slice of Europe's, consuming elite.
00:09:05 - consequently repeating firearms had never produced any social consequences. And the reason that matters so much is that the argument that the gun rights, advocates make in these cases is that repeating firearms technology existed at the time of the founding. The founders didn't regulate repeating firearms technology, and therefore we can't either. But that argument relies on this fundamental distortion of what regulation is. So, you know, regulators around the world deal

Regulation and Historical Misinterpretation of Firearms

00:09:36 - They deal with things that are actually affecting the world they inhabit. They're not seeking the furthest regions of notional technologies and then preemptively regulating it. That's not how regulation worked in the 18th century, and it's almost never how regulation works even now. and so consequently repeating firearms, yes, they existed, they existed in ways that were far less consequential than these, advocates would want judges to believe, and they did not attract regulatory attention
00:10:09 - Well, I mean, I think I, I do not accept at face value the claim that these judges are textualists. I think that that is something that we should regard as a claim rather than a fact. the, I think one of the strongest critiques that's been leveled at this court, in particular about Bruin, but about other cases that have been decided in the last several years, is the incredible inconsistency with which they use history and historical principles in order to decide these cases.
00:10:41 - for a fair minded observer to not simply conclude that this is a political body. So this is a newer area of Second Amendment jurisprudence, unsurprisingly, because this is a relatively new technology. So the basic context is that there's a law in the United States that, guns sold, by federally licensed firearms, either manufacturers or dealers must bear serial numbers on certain critical components of the gun.
00:11:12 - and it is totally vital to, law enforcement's capacity to solve gun crime. There was a carve out in the initial law in, 1960s that said that this is not going to apply to hobbyists who make their own firearms. That concession has now opened a, a, a a, an opportunity for a sort of thriving sub-industry to evolve over the last decade or so where companies produce parts and
00:11:45 - that aren't entirely finished, but that come with either in the package or freely available online. Very simple instructions that allow people with no skill and no special tools usually to finish the unfinished pieces and then quickly assemble a firearm that has no serial numbers. And this is legal in many states. These so-called ghost guns, have caused increasing problems in the United States.
00:12:18 - who cannot pass a background check, right? who were involved in criminal activity to acquire firearms that would otherwise be difficult to acquire. And, so consequently, many states in the United States have begun passing regulations seeking to regulate this, this new novel technology gun rights groups opposed to these regulations, have developed a version of the myth of continuity that, claims that,

Historians and the Second Amendment Reg debate

00:12:51 - that had been going on since the colonial era that were in fact, critical to the ability of the 13 colonies to win their independence from Great Britain. And that had never been regulated by the founders before, and therefore, after Bruin, we may not regulate them either. And on the face of it, it could sound like a really preposterous claim. And as a professional historian who has come to know a whole lot about this, I'm here
00:13:19 - but the, again, like the version of the myth of continuity that's deployed for assault weapons and, and high capacity magazines, the individual fact claims that are often made in the expert declarations in these cases, or by the plaintiffs in their complaints, are often true. It's just that they've been so totally denuded of context, and they've been so stripped of the vital surrounding facts that one would need in order to appropriately assess them
00:13:50 - misleading, picture. So, you know, the quick version of what's actually happening when it comes to the manufacturing of firearms in the 18th and early 19th century is that it was unsurprisingly a professional activity, right? It was not the case that amateurs could just decide to make their own guns because they needed them. That that didn't happen because guns were really hard to make and making them badly had very significant consequences. and so, once again, you know, from my perspective
00:14:24 - new technologies emerge. That's step one. Step two, these technologies become sufficiently reliable and widespread to begin generating social consequences. And then step three, regulators respond to these new social consequences with regulations. And that is the American tradition of regulating firearms. And it's, it goes back, you know, into the early 19th century, and it stretches all the way through. And actually what's happening with ghost guns is
00:14:52 - that American tradition of regulation. Because as soon as these ghost guns had become reliable and widespread enough to begin generating social consequences, states across the country are responding with legislation. Well, Bruin ensures that historians are going to be deeply involved with Second Amendment cases going forward. And until, and unless the decision is radically altered or even one day maybe overturned, I think there's reason to lament that fact. I mean, from my perspective as a citizen, I don't think
00:15:25 - that I want driving the bus when it comes to, or, or making very significant decisions when it comes to questions of firearm safety and firearms regulation in this country. I mean, I think that really belongs to, public health officials, to, constitutional scholars, to, legally elected appropriate elected, you know, representatives, you know, and to communities, to faith leaders, to all kinds of people, historians. Why should we be involved in these kinds of questions? But we are involved in these kinds of questions.

Historians Challenge Second Amendment Interpretations

00:15:56 - that's regrettable, on the other hand, I do think that, by mandating that authorities across the country recruit historians in order to defend firearms laws and look deeply into the founding era and the role of firearms in American life in the founding era, I think that inadvertently what the Bruin decision's going to do is it's going to only make it clear and clear how badly decided both Heller
00:16:47 - I mean, the court is mandating that we produce new knowledge and learn more and more about what was actually happening around the time of the founding with guns in American life. And those facts do not support the court's interpretation. So I actually think that this, all this work in the medium to long term is gonna undermine the very foundation of modern Second Amendment jurisprudence in this country.

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