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, 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. First, does the plain text of the Second Amendment cover a right to manufacture firearms? Second, 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, nonstatutory sources of law should play a role in illuminating original constitutional meaning. Second, after United States v. Rahimi, modern regulations may be upheld by legal principles that emerge from disparate bodies of law.
* J.D., Stanford Law School, 2024. I am deeply indebted to the help and encouragement of Joseph Blocher, T.W. Brown, Brian DeLay, Michael McConnell, Eugene Volokh, Robert Weisberg, and Ilan Wurman. Special thanks to Erin Douglas, Josh Hochman, and Garrett Wen. Without them this project would not exist. Thanks as well to the editors of the Stanford Law Review for thorough help, and especially to Andrew Nahom, Robert Vogel, and Victor Wu. Finally, deepest appreciation to Carole Goldberg, for blazing a trail. All errors are my own.