The Second Amendment on Board: Public and Private Historical Traditions of Firearm Regulation

By : Joshua Hochman

In New York State Rifle & Pistol Association v. Bruen, the SupremeCourt reaffirmed that laws prohibiting the carrying of firearms insensitive places were presumptively constitutional. Since Bruen,several states and the District of Columbia have defended theirsensitive-place laws by analogizing to historical statutes regulatingfirearms in other places, like schools and government buildings. Manyjudges, scholars, and litigants appear to have assumed that onlystatutescan count as evidence of the nation’s historical tradition offirearm regulation. This Note is the first expansive account sinceBruen to challenge this assumption. It argues that courts shouldconsider sources of analogical precedent outside of statutorylawmaking when applying the Court’s Second Amendment jurisprudence.Taking public transportation as a case study, the Note surveys rulesand regulations promulgated by railroad corporations in the nineteenthcentury and argues that these sources reveal a historical tradition ofregulating firearm carriage on public transportation. Bruen permitscourts to engage in more nuanced analogical reasoning when dealingwith unprecedented concerns or dramatic changes. One such change isthe shift in state capacity that has placed sites that were privatelyor quasi-publicly operated before the twentieth century under publiccontrol in the twenty-first century. As in the case of schools, whichthe Court has already deemed sensitive, a substantial portion of thenation’s transportation infrastructure in the nineteenth century wasnot entirely publicly owned and operated. For this reason, courtsshould consider evidence of historical firearm regulations enacted notjust by legislatures but by quasi-public or private corporations. Thiscase study instructs that courts and litigants can best honor Bruen’shistory-based test by considering all of the nation’s history offirearm regulation.

Yale Law Review,  133:1676 2024