Oregon Firearms Federation v. Kotek - Part 2
Oregon Firearms Federation v. Kotek - Part 2
Firearms and Weapons Technology and Regulations in the Early-to-Mid-Nineteenth Century (1800-1850)
This week, in a three-part series, we highlight excerpts from Oregon Firearms Federation v. Kotek, an important, recent court case out of Oregon concerning Measure 114. The Measure, passed last November, institutes Permit-to-Purchase licensing as well as restrictions on large capacity magazines. These policies are crucial to saving lives, but their implementation has been stalled due to pending court cases. This decision by Judge Immergut (a Trump appointee) provides an important framework for applying relevant history as well as determining “common use” in the context of large capacity magazines being used in self-defense.
U.S. District Court for the District of Oregon, Judge Karin Immergut, July 14, 2023
Firearms and Weapons Technology in the Early-to-Mid-Nineteenth Century (1800-1850)
At the beginning of the nineteenth century, repeating firearms were still a rarity in American daily life. [Berkeley historian Brian DeLay[1]] testified about the existence of one repeating rifle in America in the period between 1791, when the Second Amendment was adopted, and 1830, when repeating pistols began to emerge onto the U.S. civilian market: the Girandoni repeating firearm.
The Girandoni repeating rifle was an air rifle created by an Italian gun maker and was regarded, for its time, as the best repeating air gun available. The Girandoni air rifle relied on a reservoir of compressed air to fire; to prime the reservoir such that the firearm could fire without reloading, an individual had to complete 1,500 strokes of the firearm’s air pump, which made priming the gun a laborious process. There is no evidence of the Girandoni air rifle existing in America prior to 1776. There is, however, evidence that a Girandoni air rifle was brought on the Lewis and Clark expedition from 1803 to 1804.
Following the Founding in 1776 and the ratification of the Second Amendment in 1791, most repeating firearms that appear in the historical record before the mid-nineteenth century are all variations of the superposed system used by the Belton firearm.
These firearms enjoyed very limited success in the United States. A few hundred of these superposed firearms were used by the U.S. Navy during the War of 1812. These superposed firearms did not enjoy any commercial success among the public.
In the early nineteenth century, pistols remained single-shot, muzzleloading devices. Early nineteenth century pistols came in three traditional sizes: a large pistol known as a horse pistol, which was designed to be carried for mounted combat, a mid-size pistol known as a belt pistol, which was designed to be hung from a belt, and a pocket pistol, which was designed to be concealed in a pocket.
In the 1820s, firearms moved from a flintlock ignition system, which relied on an external charge caused by the friction of flint on steel to spark the firearm’s charge, to a percussion ignition system, which employed an internal combustion caused by pressure and a chemical compound to spark the firearm’s charge. Around this time, firearms also moved from round-ball ammunition to a conically shaped projectile.
Following these technological advancements, the first reliable repeating handguns began entering the civilian market in the 1830s. None were large-capacity firearms.
The first type of reliable repeating handgun, known as a pepperbox, was a handgun with multiple barrels that revolved around a single axis. A pepperbox could typically hold between three and six rounds, and reloading was a time-consuming process that involved multiple steps.
The second type of reliable repeating pistol, known as a revolver, was a handgun with rotating chambers. The first commercially successful revolver was patented by Samuel Colt, and came to be known as the Colt revolver. A Colt revolver in the 1830s could hold between five and seven rounds, with the most common capacity being six rounds. It took a user five steps to reload a single chamber, meaning that it took a user thirty separate steps to fully reload a popular six-shot revolver. Colt revolvers did not become popular among the civilian population until the mid-to-late 1840s. Large-capacity pepperboxes or revolvers, which could fire more than ten rounds without reloading, were not common in the early or mid-nineteenth century.
No large-capacity firearms, including revolvers or rifles capable of firing more than ten rounds without reloading, enjoyed any commercial success before 1860.
Based on the credible evidence presented at trial, this Court finds as follows: the first reliable repeating handguns entered the civilian market in the 1830s, but were not popular with civilians until the mid-to-late 1840s. None of these handguns had a capacity of more than ten rounds. No firearm with a capacity of more than ten rounds enjoyed any commercial success before 1860.
Firearms and Weapons Regulations in the Early-to-Mid-Nineteenth Century (1800-1850)
The beginning half of the nineteenth century saw a rise in “deadly weapons” regulations, wherein local and state governments sought to regulate weapons viewed as being particularly dangerous to public safety. Many of these weapons were considered particularly dangerous because of how easily they could be concealed.
These “deadly weapons” regulations took various forms, largely related to the type of weapon – or the feature of the deadly weapon – that the government sought to regulate. At the beginning of the nineteenth century, for instance, the most popular pistols were single-shot, muzzleloading devices. These pistols gave the user one shot, after which the pistol would be essentially as useful as a bludgeon.
Knives, on the other hand, could be used as many times as the individual desired and could be exceedingly deadly. Accordingly, laws regulating knives were often broad, trying to capture as many kinds of fighting knives as possible, including “daggers,” “dirks,” “stilettos,” “Arkansas tooth-picks,” and others. Often, these laws took the form of anti-concealed carry statutes, which prohibited the carrying of a concealed knife in public. An anti-concealed carry statute passed in 1813 in Louisiana, for instance, made it a criminal offense for any person to “be found with any concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon.”
These laws typically did not ban possession of knives outright, however, because of the relative simplicity and commonality of knives as a household item. Governments in early-to-mid-nineteenth century America lacked the type of policing infrastructure necessary to ban possession of a common and easily made item.
Instead, these laws sought to prevent what was viewed as the most dangerous feature of a knife: its ability to be concealed on a person in public places.
Often, concealed carry laws that restricted the carrying of knives contained exceptions for ordinary pocketknives. Regulations in the early to mid-nineteenth century also targeted a specific type of knife, known as a Bowie knife. A Bowie knife is a long, large knife, typically six or more inches in length, with a guard on the handle and a double-edge blade near the tip.
While it is difficult to gauge in numerical terms the popularity of Bowie knives during the nineteenth century, Bowie knives were frequently reported as being associated with crime in the mid-nineteenth century. [Historian] Brennan Rivas[2] testified that, from these reports, she could conclude that there was a significant amount of societal concern associated with the carrying of Bowie knives, and particularly with the concealed carrying of these knives.
Governments responded to the carrying of Bowie knives by enacting laws criminalizing their concealed carry.
Prior to 1850, four states prohibited the concealed carrying of Bowie knives. Bowie knives were particularly regulated via concealed carry statutes because the ability to conceal a Bowie knife was thought to render the weapon particularly dangerous.
The early and mid-nineteenth century also saw a rise in interpersonal violence and murder, particularly in the American South. Much of this violence involved pistols, which at this time were still typically single-shot, muzzleloading devices.
Governments responded to this rise in interpersonal violence by enacting anti-concealed carry laws targeting pistols. These concealed carry laws often targeted pocket pistols specifically, which were the smallest size of pistol and were readily concealable.
A Memphis city ordinance passed in 1826, for instance, prohibited the carry – open or concealed – of any pocket pistol. New Jersey also specifically targeted pocket pistols in its anti-concealed carry law. Between 1800 and 1850, eleven states or municipalities enacted regulations prohibiting the concealed carry of pistols. Some of these laws, such as those passed in Alabama and Arkansas, exempted individuals who were “upon a journey.”
Some laws went beyond prohibiting the concealed carry of weapons that were considered particularly dangerous.
In Florida, for instance, an 1838 law made it unlawful for anyone to sell pocket pistols without first paying a yearly fee. The same 1826 Memphis law that outlawed the carrying of pocket pistols also made it a misdemeanor to sell a Bowie knife. In Alabama, an 1837 law imposed greater criminal penalties for the use of a Bowie knife and taxed the sale or gift of Bowie knives; two years later, Alabama passed another law prohibiting the concealed carry of Bowie knives.
Based on the credible evidence presented at trial, this Court finds as follows: State and municipal governments in the beginning half of the nineteenth century regulated weapons viewed as being particularly dangerous to public safety. These regulations were tailored to address the particular features of the weapons that made them most dangerous to public safety.
Tomorrow in Part 3, we will share more excerpts from this decision, focusing on the historical findings of the court.