Westneat: Washington time warp

What in the world is going on here?

Of course there were no “hardware restrictions” involving gun magazines in 1791, says Robert Spitzer, a professor at the College of William & Mary School of Law in Virginia. “There weren’t any laws about the internet in 1791, either. Or space aliens,” he told me. “There were no laws about these things because there were no such things.”

Spitzer is an expert witness on the history of gun regulation in America. He has written six books on the subject. His overall view, which he presented at length in this case, is that gun laws have been with us since the very beginning and have tended to evolve as the guns have. You’d think that’d be kind of a “duh” finding. Machine guns got banned, for instance, only after they were invented and got used in crimes. But of late this obvious cause and effect has been a losing argument in gun cases.

The reason is that in 2022, the U.S. Supreme Court went all historical originalist. It ruled that for new gun laws to be constitutional, they must be “consistent with the Nation’s historical tradition of firearm regulation,” wrote Justice Clarence Thomas in what’s known as the Bruen case.

It’s a bit vague what that means. But some judges are taking it to the limit — that unless there was a similar law on the books back when the Second Amendment was ratified, in 1791, it’s out.

This makes things murky in a place like Washington, which wasn’t a state in 1791. It wasn’t even a distant gleam yet in Lewis and Clark’s eyepiece.

Spitzer presented a 71-page overview of the sweep of various weapon laws in America covering the last 300 years.

“There was no appetite to limit gun rights by the Founders,” the judge wrote. “The result is few, if any, historical analogue laws by which a state can justify a modern firearms regulation.”

The judge is saying that all modern attempts at gun regulation are probably illegitimate — and that it’s out of his hands.

“Until the Supreme Court expands their analogical focus beyond 1791, this Court as an inferior court must follow the Supreme Court founding era mandate,” he wrote.

Your neighbors could apparently start flying drones armed with assault weapons around their property. But since the Founders didn’t weigh in on that, too bad for you.

This is nuts, of course. It’s also the predictable result of the radical “originalism” that’s been coming out of the U.S. Supreme Court.

Spitzer said the courts aren’t equipped to do history like this. He said there are thousands of gun laws in U.S. history. But beyond the gaps, the exercise traps us in amber.

Currently the Supreme Court is weighing a different case where a lower court, citing the new historical test, threw out a domestic violence-related gun law. There weren’t laws back in 1791 to protect women from domestic abuse. As some historians have pointed out, that’s because wives were subordinate to their husbands, and wife beating was widely tolerated.

“We don’t live in the 1700s,” Spitzer told me. “The country was vastly different then. You can’t pretend that it wasn’t.”

Oh yes, sadly, we can. There’s a reason there’s an “again” at the end of Make America Great Again. It’s not to keep advancing as a modern society. It’s to shift backward in time.

Two more thoughts on this. One, if we’re traveling back to 1791 on gun regulation, it’s only fair we go back to 1791 on the guns themselves. So, single-shot powder muskets for everyone, deal?

The other thought is that if you don’t think they’re going to get all antiquated next on other modern concepts like contraception or same-sex marriage, then you’re really not paying attention.