Oregon Firearms Federation v. Kotek - Part 3
Oregon Firearms Federation v. Kotek - Part 3
Firearms and Weapons Technology and Regulations in the Civil War and Reconstruction Era (1850-1880)
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 Civil War and Reconstruction Era (1850-1880)
In the mid-nineteenth century, metallic cartridges for firearms, which combined primer, propellant, and projectile into a single package that could be loaded in one step, were introduced onto the American market.
In the decades before the Civil War began in 1861, another technological advancement paved the way for reliable repeating rifles: breech loading, wherein a firearm user could load their firearm through the breech, or the rear of the barrel, as opposed to the muzzle, or the front of the barrel. Between 1811 and 1860, there was a flurry of patent activity around breech loading firearms, with various gun manufacturers attempting to perfect the technology.
Towards the beginning of the Civil War, gun manufacturers began combining breech loading and metallic cartridges with levers that could cycle spent casings and new rounds into firearms. This combination of metallic cartridges, breech loading, and lever-action technology first appeared in the 1840s and improved through the 1850s.
In the 1860s, the Henry and Winchester rifles, which were lever-action firearms, became the first large-capacity repeating firearms to enjoy limited commercial success in the United States.
Both rifles had a capacity of more than ten rounds. Unlike modern detachable LCMs, both rifles relied on a fixed magazine and lever to cycle spent metallic cartridges out of the chamber and cycle new metallic cartridges into the chamber. An individual using a Winchester or Henry could fire their rounds only as quickly as they could work the lever and trigger. Both models required the user to reload the rounds one by one after the fixed magazine had been emptied.
The Henry rifle, which came onto the market in 1860, required the user to insert rounds through the tip of the firearm’s magazine, which was located near the muzzle of the rifle. The Winchester rifle, which came onto the market in 1866, improved upon this technology by allowing the user to load cartridges through a side gate on the rifle.
Between 1861 and 1872, there were 74,000 Henry and Winchester rifles produced; of those, about 65,000 were exported to foreign militaries and 8,500 were purchased by or for officers in the Union Army during the Civil War, leaving just 500 for the civilian market.
According to Dr. DeLay’s[1] estimates, large-capacity firearms accounted for less than 0.002 percent of firearms in the United States at the time of the ratification of the Fourteenth Amendment in 1868.
This Court finds that, while large capacity repeating firearms became commercially available in the United States around 1860, they nevertheless represented an exceedingly small portion of the U.S. civilian gun stock at that time.
The mid-nineteenth century also saw a proliferation in the production of revolvers. Colt’s patent on the revolver expired in 1857, at which point various other firearms manufacturers began making their version of a revolver. At the beginning of the Civil War, these manufacturers obtained government contracts to produce revolvers for the military. These contracts allowed manufacturers to vastly increase their production of revolvers.
When the Civil War ended in 1865, these manufacturers turned to the civilian market to continue selling revolvers at the level they had previously been producing for the military. The revolvers had an ammunition capacity of less than eleven rounds.
The rise in production of these handguns also led to a drop in price. In the years immediately following the Civil War, a Colt revolver sold for about thirty-two dollars; by the end of the nineteenth century, an individual could purchase a working handgun for just two dollars.
Accordingly, based on the credible evidence presented at trial, this Court finds as follows: The first large-capacity repeating rifles entered the U.S. civilian market in the 1860s. These rifles used fixed magazines, could only be fired as quickly as the user could work the lever and trigger, and required rounds to be loaded one at a time after the user had fired all the rounds in the magazine. The Henry and Winchester rifles were not commonly owned by U.S. civilians at the time of the Fourteenth Amendment’s ratification in 1868. The expiration of Colt’s patent led to an increase in the number of revolvers produced by firearms manufacturers. These revolvers were sold to the military before and during the Civil War. Following the Civil War, gun manufacturers began selling revolvers to U.S. civilians in larger quantities. The existing revolvers did not allow an individual to shoot more than ten rounds without reloading.
Firearms and Weapons Regulations in the Civil War and Reconstruction (1850-1880)
The proliferation of relatively inexpensive revolvers in the U.S. civilian market following the end of the Civil War led to an increase in interpersonal violence involving firearms.
The influx of these revolvers, which could fire multiple rounds — although less than ten—without needing to be reloaded, injected a new and more lethal technology into the already rising rates of violence and crime throughout the county.
In response, states enacted statutes specifically targeted at revolvers, and primarily targeted the concealed carry of these revolvers, which was considered a particularly dangerous feature of these weapons.
From the beginning of the Civil War in 1861 through to the end of the nineteenth century, at least nine states and territories passed anti-concealed carry statutes that specifically prohibited the concealed carrying of revolvers. Cities in Illinois, Iowa, Kansas, Missouri, Nebraska, and Washington also passed anti-concealed carry statutes specifically prohibiting the concealed carry of revolvers.
Still other states passed broad anti-carry laws prohibiting the carry of revolvers, concealed or otherwise, with any intent to do harm.
A West Virginia law from 1882, for instance, made it a misdemeanor for someone to “carry about his person any revolver.” A Syracuse, New York law from 1885 also prohibited the carry, concealed or otherwise, of revolvers with “intent to do bodily harm to any person.” Notably, all laws that mention “revolver” specifically were enacted after 1860, mirroring the surge of revolvers entering the civilian market after the Civil War.
In the years leading up to and after the Civil War, states also continued to regulate the carrying of Bowie knives.
Fourteen states banned the concealed carry of Bowie knives between 1850 and 1875. An additional six states enacted laws that completely prohibited the carry, concealed or otherwise, of these knives. Between 1875 and 1900, twenty-two states had laws prohibiting the concealed carry of Bowie knives.
As with mid-nineteenth century regulations on Bowie knives, some states also went beyond prohibiting the concealed carry of Bowie knives to prohibit the sale or transfer of these weapons. An 1881 Arkansas law, for instance, made it a misdemeanor to sell, barter, exchange, or furnish a Bowie knife “in any manner” to “any person.”
In the mid-to-late nineteenth century, a weapon known as a slungshot — which was a handheld weapon with a piece of metal, stone, or some similar type of weighted object attached to a flexible strap or handle — became widely associated with criminal and gang violence.
Slungshots were considered particularly dangerous due to their relatively small size, which made them easy to conceal. The slungshot’s flexible handle also magnified its striking power, meaning that the user could inflict more damage than with other kinds of blunt objects.
States and local governments responded to the proliferation of the slungshot largely by prohibiting the carry, and particularly the concealed carry, of these weapons.
Between 1850 and 1875, sixteen states and municipalities enacted laws regulating the concealed carry of slungshots. Between 1875 and 1900, thirty-one states and municipalities enacted laws regulating the carry of slungshots.
States also regulated the carrying of blunt objects and bludgeons more generally, with eight states passing regulations on bludgeons and thirteen states passing regulations on billy clubs, the equivalent of a modern-day baton or night stick, between 1875 and 1900.
In the late nineteenth century, states also passed laws regulating the use of trap guns, which were conventional firearms rigged with a wire or other device to fire without the firearm operator being physically present. Trap guns were particularly dangerous because they did not need an operator present to fire, which meant that trap guns could fire at unintended targets or victims. While the earliest regulation on trap guns was passed in New Jersey in 1771, by the end of the nineteenth century, eleven states had passed regulations on trap guns. By 1925, this number would grow to fourteen states.
Accordingly, based on the credible evidence presented at trial, this Court finds as follows: In the mid-to-late nineteenth century, the proliferation of revolvers among the U.S. civilian population led to an increase in these weapons being used for interpersonal violence. As they had done in the early nineteenth century, governments responded to this rise in violence by regulating the feature of revolvers thought to contribute most to their dangerousness — their ability to be easily concealed. Governments also responded to a rise in the use of dangerous weapons like Bowie knives, trap guns, and slungshots by enacting regulations that targeted the features that made these weapons particularly dangerous.
[1] Dr. DeLay, one of several expert witnesses at the trial, “is a professor of history at the University of California, Berkeley, where he focuses on the international arms trade in the eighteenth and nineteenth centuries. Dr. DeLay received his bachelor’s degree from the University of Colorado at Boulder, and his master’s degree and Ph.D. in American History from Harvard University.”
Image of revolver ad (1864) via Terrence Witkowski at ResearchGate.