Table of Contents Introduction I. A History of Gunmaking A. Gunsmithing in the Colonies: 1606-1763 B. Gunmaking at the Founding: 1763-1820 II. A History of Gunmaking Regulations A. Gunmaking Regulations in England: 1500-1700 B. Regulating Gunmaking in the Colonies: 1600-1763 C. Regulating Gunmaking at the Founding: 1763-1820 III. Bruen Applied: Modern Gunmaking Regulations A. The Second Amendment Quartet B. The Quartet's Progeny C. The Plain Text 1. The plain meaning of "keep and bear" does not include gunmaking 2. "Keep and bear" may include obtaining, but not necessarily manufacturing D. The Nation's Historical Tradition of Gunmaking Regulation Conclusion
Introduction
In May 2022, a man in small-town Connecticut visited his local police station looking for information about the legal status of gunmaking. (1) The man told police that he wanted to build a semiautomatic rifle with his eighteen-year-old grandson and hoped to do everything legally. (2) Police grew suspicious and followed the man home. (3) There, they found a trove of crude and unlabeled homemade guns in various stages of assembly, as well as ammunition, gunmaking tools, and a book about gunmaking. (4) The grandson confessed to officers that he had purchased the contraband online. (5) Although he knew the firearms were illegal, he wanted to build weapons "to protect his family." (6) According to police, the grandson thought "guns [were] cool" and found "firearm laws to be tyrannical." (7) Police arrested both the grandfather and his grandson. (8)
The legal status of gunmaking is unclear. (9) Over the past decade, many states and the federal government have rewritten laws to address the growing problem of homemade guns. (10) One particularly high-profile form of the problem involves "ghost guns," or homemade firearms unlabeled with a serial number. (11) The number of unlabeled guns found at crime scenes nationwide rose elevenfold from 2016 to 2021. (12) In California, somewhere between one-quarter and one-half of firearms recovered at crime scenes are ghost guns, and most suspects caught with them cannot legally possess firearms at all. (13) Prominent gun control organizations have called ghost guns "the fastest growing gun safety problem in the country" and an "existential threat to public safety." (14)
Authorities have begun to crack down. Fourteen states and the District of Columbia have recently enacted laws regulating the manufacture of guns or gun parts without a license or without following standards such as weapons labeling. (15) Federal law permits individuals to make guns--so long as the gun is "detectable," as defined by federal law--but has long required anyone "engaged in the business" of making firearms for livelihood or profit to be licensed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). (16) Licensed manufacturers are required to identify the firearm "by means of a serial number engraved or cast on the receiver or frame of the weapon." (17) Serial numbers allow police to trace guns used in specific crimes through their chain of custody, to track lost or stolen weapons, and to ensure that licensees are compliant with rules regulating the inventory and sale of weapons. (18) Most recently, the Biden administration has tried to curb the ghost gun proliferation by broadening the federal definition of a "firearm" to require a license from manufacturers who sell finished firearm parts. (19)
These regulations are now under threat. After a quartet of landmark Supreme Court cases--Heller, McDonald, Bruen, and Rahimi--the constitutionality of all gun regulations hinges on a new "history and tradition" test. (20) After Bruen, if the plain text of the Second Amendment covers the regulated conduct, then the regulation will be invalidated unless the government can "justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." (21) Specifically, the inquiry considers "whether the challenged regulation is consistent with the principles that underpin our regulatory tradition." (22) As the Rahimi Court clarified, a principle can emerge from multiple bodies of historical regulations "[t]aken together." (23)
Litigants have already begun to use Bruen to invalidate gunmaking regulations by arguing that the Second Amendment's plain text covers gunmaking--or is at least ambiguous on gunmaking--and that early Americans did not regulate gunmaking at all. (24) These claims have been raised in a lawsuit that was recently heard on appeal by the Supreme Court in the 2024-2025 term challenging the ATF's authority to regulate ghost guns. (25) This suit and others raise several questions: What is the "history and tradition" of making firearms and regulating homemade firearms in the United States? Does the right to "keep and bear arms" encompass a federal constitutional right to manufacture unlabeled arms without a license? Already lower courts have split on these questions. (26)
This Note begins to answer these questions by surveying the history of gunmaking at the Founding. (27) It uncovers two historical traditions necessary to evaluate the constitutionality of modern gunmaking rules. The first is a tradition even older than American gunmaking itself: the tradition of gun importing. The guns used by early Americans were seldom made by early Americans. Rather, the vast majority of this Nation's guns used before the nineteenth century were manufactured in Europe. Most early Americans who worked on guns were not makers of whole weapons, but gun repairers. (28) Given this tradition of gun importing, an American of 1791 would likely not have considered the right to "keep and bear arms" synonymous with a federal constitutional right to make arms, since most arms of the time were not made domestically but shipped in from abroad. And given that the plain text of the Second Amendment does not address the production of arms, a hypothetical federal constitutional right to gunmaking would require that right to be "found hiding in the Constitution's penumbras." (29)
Even if the Second Amendment does protect gunmaking, a second historical tradition informs the Bruen analysis: the tradition of gunmaking regulation. This Note shows that public and private authorities regulated gunmaking before, during, and after the Founding. First, public authorities and industry actors regulated who could make guns for whom. These commercial regulations kept guns and gunmaking out of the hands of persons perceived as threats to safety, such as enemy Native tribes and English loyalists who took up arms for the Crown. (30) One of the most important institutions for regulating gunsmiths was the apprenticeship, a public-private system that comprehensively regulated the professional, educational, social, and moral rearing of gunsmiths. (31) Second, authorities and industry actors regulated how guns and gun parts could be made by requiring gun inspection and gun labeling for quality assurance and property designation. (32) These regulations sometimes also took the form of private rules backed by norms and customs. (33) Third, public authorities instituted regulations to standardize gunmaking. (34) Fourth and finally, when authorities needed gunsmiths for collective defense, gunsmiths could be impressed to produce or repair weapons. (35)
This history of gunmaking regulation reveals a principle: Public authorities wielded powers to train and sanction gunmakers and to halt or permit their work as the exigencies of public safety required. Those who have purported to tell the story of gunmaking in early America have largely overlooked these historical regulations and the tradition of regulating gunmaking. (36)
This Note argues that whether or not a federal constitutional right to gunmaking exists, reasonable modern gunmaking regulations are consistent with the Nation's historical tradition of firearm regulation and, therefore, permissible under Bruen. Part I surveys the history of gunmaking in early America, beginning with the first colonial gunsmiths of the seventeenth century. Part II surveys the history of gunmaking regulations. Finally, Part III analyzes modern regulations of arms manufacturing in light of Bruen and Rahimi.
Ultimately, this Note is about more than gunmaking. It makes two methodological arguments relevant to Second Amendment jurisprudence. First, by uncovering important nonstatutory sources of law, this Note expands our understanding of "our Founders' law" and gets us closer to original understandings of the Second Amendment. (37) Second, after Rahimi, modern laws may be upheld by legal principles that emerge from multiple--even unrelated--bodies of law. (38) This doctrine of Second Amendment emergence allows a larger number of modern regulations to survive constitutional scrutiny.
I. A History of Gunmaking
This Part explores the history of gunmaking in early America, from colonial times through the Founding. It begins with the English colonies, where a small but persistent gunmaking tradition took root--and where survival depended on reliable arms imports from Europe. It then discusses gunmaking at the Founding of the United States.
Any history of gunmaking can be only provisional. (39) Records from most gunsmiths have not survived, if such records were ever kept. (40) For centuries, gunmaking was a trade protected by secrecy. (41) Multiple professions were involving in gunmaking, and contemporaries and later historians used various terms to describe their work. (42) Most crucially, there is an unavoidable definitional problem about what it meant to "make" a gun. The standard term of the era, "gunsmith," referred both to a maker of whole weapons (akin to an auto manufacturer today) and, much more commonly, to a weapons repairer (akin to an auto mechanic). (43) The historical record seldom clearly distinguishes between the two; some "gunsmiths" made entire weapons, while many more...
