Graham Ambrose, a recent graduate of the Stanford Law School, has posted his note, Gunmaking at the Founding, which is forthcoming in the Stanford Law Review:
Homemade guns are being used in a growing number of crimes across the United States, creating what gun control organizations describe as the fastest-growing threat to public safety in America. States and the federal government are cracking down. New laws criminalize gunmaking without a license, prohibit the sale or transfer of homemade guns, and even ban some forms of gunmaking altogether.
But the constitutionality of these regulations is uncertain. After the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), courts have begun to invalidate rules that are not “consistent with this Nation’s historical tradition of firearm regulation.” Constitutional challenges to new gunmaking regulations have already created court splits on a pair of key questions commanded by Bruen: Does the plain text of the Second Amendment cover a right to manufacture firearms? Are modern restrictions on gunmaking consistent with this country’s historical tradition of firearm regulation?
This Note begins to answer these questions by recounting the history of gunmaking practices and regulations at the Founding. It uncovers evidence that the Second Amendment as originally understood did not cover gunmaking and that, in any event, early Americans regulated gunmaking extensively. In light of this history, Bruen should permit reasonable modern regulations. This case study makes two methodological arguments relevant to Second Amendment jurisprudence. First, non-statutory sources of law should play a role in illuminating original constitutional meaning. Second, after United States v. Rahimi (2024), modern regulations may be upheld by legal principles that emerge from disparate bodies of law.
--Dan Ernst
