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Thread: Firearms Technology and the Original Meaning of the Second Amendment

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    Firearms Technology and the Original Meaning of the Second Amendment

    It's sometimes argued that the founders couldn't envision modern technology rendering the Constitution outdate.

    Firearms Technology and the Original Meaning of the Second Amendment

    We do not limit any constitutional right to the technology that existed in 1791. In District of Columbia v. Heller, the court observed:

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

    This is an accurate statement of constitutional law, but it understates how truly frivolous the argument against modern firearms is.
    Just how frivolous?

    ...What kind of repeating arms were available before 1815, when the Madison-Monroe mass production innovation program began? The state of the art was the Girandoni air rifle, invented around 1779 for Austrian army sharpshooters. Lewis and Clark would carry a Girandoni on their famous expedition, during the Jefferson administration. The Girandoni could shoot 21 or 22 bullets in .46 or .49 caliber without reloading. Ballistically equal to a firearm, a single shot from the Girandoni could penetrate a one-inch wood plank, or take an elk. (For more on the Girandoni, see my article “The History of Firearms Magazines and Magazine Prohibitions,” 88 Albany L. Rev. 849, 852-53 (2015).)

    The first repeaters had been invented about three centuries before. The earliest-known model is a German breech-loading matchlock arquebus from around 1490-1530 with a 10-shot revolving cylinder. M.L. Brown, Firearms in Colonial America: The Impact on History and Technology, 1492-1792, 50 (1980). Henry VIII had a long gun that used a revolving cylinder (a “revolver”) for multiple shots. W.W. Greener, The Gun and Its Development, 81-82 (9th ed. 1910). A 16-round wheel lock dates from about 1580. Kopel, at 852.

    Production of repeaters continued in the seventeenth century. Brown, at 105-6 (four-barreled wheel-lock pistol could fire 15 shots in a few seconds); John Nigel George, English Guns and Rifles, 55-58 (1947) (English breech-loading lever-action repeater, and a revolver, made no later than the British Civil War, and perhaps earlier, by an English gun maker).

    The first repeaters to be built in large quantities appear to be the 1646 Danish flintlocks that used a pair of tubular magazines, and could fire 30 shots without reloading. Like a modern lever-action rifle, the next shot was made ready by a simple two-step motion of the trigger guard. These guns were produced for the Danish and Dutch armies. Brown, at 106-7.

    In Colonial America, repeating arms were available for people who could afford them, or who were skilled enough to make their own. For example, in September 1722, John Pim of Boston entertained some Indians by demonstrating a firearm he had made. Although “loaded but once,” it “was discharged eleven times following, with bullets in the space of two minutes each which went through a double door at fifty yards’ distance.” Samuel Niles, A Summary Historical Narrative of the Wars in New England, Massachusetts Historical Society Collections, 4th ser., vol. 5, 347 (1837). Pim’s gun may have been a type of the repeating flintlock that became “popular in England from the third quarter of the 17th century,” and was manufactured in Massachusetts starting in the early eighteenth. Harold L. Peterson, Arms and Armor in Colonial America 1526-1783, 215-17 (Dover reprint 2000) (Smithsonian Institution 1956). Another repeating flintlock, invented by Philadelphia’s Joseph Belton, could fire eight shots in three seconds. Idem, 217. Pim also owned a .52 caliber six-shot flintlock revolver, similar to the revolvers that had been made in England since the turn of the century. Brown, 255. A variety of multi-shot pistols from the late eighteenth century have been preserved, holding two to four rounds. Charles Winthrop Sawyer, Firearms in American History: 1600 to 1800, 194-98, 215-16 (1910).

    The Constitution is not outdated, some people are simply lacking in historical knowledge.

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    The Militia Acts were clear. individual infantry weapons of the day were the responsibility of the people (individually). Crew served weapons (then cannons, now heavy machine guns, mortars, etc) were the responsibility of society (then at the town level owned and maintained by the local government).
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