Another Citation

Memorandum Opinion by U.S. Attorney-General:

Application of 18 U.S.C. § 922(b)(1) and (c)(1) to Young Adults Section 922(b)(1) and (c)(1) of title 18, U.S. Code, is unconstitutional as applied to young adults between eighteen and twenty who seek to purchase handguns. The provision prevents young adults, who are members of “the people” to whom the Second Amendment applies, from owning “arms” in common use for self-defense. This places the burden on the government to show that the restrictions are consistent with the  Nation’s tradition of firearm regulation, which it cannot do. 

They cite me at pp. 43-44:

Pistols, though less common than other firearms, existed at the Founding and were a familiar article of early American commerce. See Clayton E. Cramer & Joseph Edward Olson, Pistols, Crime, and Public: Safety in Early America, 44 Willamette L. Rev. 699, 706–11 (2008) (outlining the prevalence of pistols at the time of the Founding).  

How important are such opinions? Apparently, pretty important. To quote from an Obama-era memo "MEMORANDUM FOR ATTORNEYS OF THE OFFICE Re: Best Practices for OLC Legal Advice and Written Opinions "

As noted above, OLC's central function is to provide, pursuant to the Attorney General's delegation, controlling legal advice to Executive Branch officials in furtherance of the President's constitutional duties to preserve, protect, and defend the Constitution, and to "take Care that the Laws be faithfully executed." 

More Progress on Gun Rights

 Elite Precision Customs v. BATF (5th Cir. 2026):

Plaintiffs unsuccessfully sought a permanent injunction against several provisions of 18 U.S.C. § 922 that collectively prohibit the buying and selling of handguns across state lines.  The only issue is whether those provisions are constitutional under the Second Amendment.  They are not:  Under Bruen, they implicate the Second Amendment’s plain text, making them presumptively unconstitutional, and the government has failed to meet its burden to justify the provisions as consistent with the nation’s tradition of firearms regulation.  We reverse and render judgment for plaintiffs. 

The GCA68 provision that prohibited sale of handguns to persons not a resident of state of sale had a certain logic: in 1968, there was no national database (what's a database?) that allowed for a nationwide check to see if you were a prohibited person in some state. Some states had provisions for this, or at least pretended that they did. Even quite recently, some states considered mental hospital records as so private that they could not check for involuntary commitments. 

We now have the NICS database that allows dealers to check if a buyer is disqualified from purchase. This may well expand sales at gun shows of handguns.

Another Consequence of Bruen

 Rigby v. Jennings (D.Del. 2026). Delaware banned ghost manufacture, assembly, possession, sale, and digital instructions for making them. Digital instruction ban constitutional although I notice the ban seems pretty narrowly focused:

And that may very well be because § 1463(c)(2) is framed in functional terms, i.e., it is limited to computer files or code “that may be used to program a 3 dimensional printer to manufacture or produce a firearm, firearm receiver or major component of a firearm.”

That seems to not prohibit gCode for operating a CNC mill.

With that, the Possession Ban concerns “Arms,” and because it prohibits keeping arms and applies to all members of the political community, it is presumptively unconstitutional at Bruen’s first step.  Wolford, 146 S. Ct. 2043-44.

Distribution ban:

The problem there is that the Distribution Ban does not regulate self manufacturing firearms and Plaintiffs have offered no evidence that any of these regulations limit their access to the items and materials necessary to self-manufacture firearms; all they provided was attorney argument.  See Rigby, 630 F. Supp. 3d at 614 (“Attorney argument is not evidence.”).  The Distribution Ban passes under Bruen’s first step.  

Manufacturing and Assembly ban:

But prohibiting possession of firearms that are currently lawfully owned or future manufacturing and assembly of the same does place restrictions on keeping and bearing firearms.  So the Possession and Manufacturing and Assembly Bans fail at Bruen’s first step.  

Disarming Victims Again

 9/4/26 Reason:

Houses of worship are often targeted by people with murder on their minds. That's especially true of synagogues, which were disproportionately attacked even before October 7 and have since been on the receiving end of the "antizionist" reframing of hatred of Jews. But in Montgomery County, Maryland, officials recently renewed efforts to forbid the carrying of firearms within 100 yards of "places of public assembly," including churches and synagogues. Now, some security volunteers are defying the intrusive law as they await the outcome of courtroom pushback against the restrictions.

Of course,  we have a long tradition of not only allowing but actively requiring people be armed at church to protect against attacks, such as these extracted from here:

Georgia

1770: "An act for the better security of the inhabitants by obliging the male white persons to carry fire arms to places of public worship."  From Allen D. Candler, comp., The Colonial Records of the State of Georgia (Atlanta, Ga.: Chas. P. Byrd, 1910), 19(part 1):137-140, this law required all white male inhabitants to carry either a long gun or a pair of pistols to church (p. 138), and required "That the church warden or church wardens of each respective parish, and the deacons, elders or select men... to examine all such male persons" to make sure that they were armed. (pp. 138-39)

Massachusetts Bay

1636/7: At Nathaniel B. Shurtleff, Records of the Governor and Company of the Massachusetts Bay in New England (Boston: William White, 1853) 1:190, Because of the danger of Indian attack, and because much of the population was neglecting to carry guns, every person above eighteen years of age (except magistrates and elders of the churches) were ordered to "come to the publike assemblies with their muskets, or other peeces fit for servise, furnished with match, powder, & bullets, upon paine of 12d. for every default".  And no person shall travel above one mile from his dwelling house, except in places wheare other houses are neare together, without some armes, upon paine of 12d. for every default"."

New Haven

1646: From Charles J. Hoadly, ed., Records Of The Colony And Plantation Of New Haven, From 1638 To 1649 (Hartford, Conn.: Case, Tiffany, 1857), 201-202.  This statute requiring "every male from 16 to 60 yeares of age" to have a gun, provided by either himself or his master, was also enforced.  At pages 486-487 we have records of fines imposed in 1649 on several men "for not bringing ther armes to the meeting [church] on day when it was their turne" and failure to bring slowmatch (for matchlock guns), bullets, flints, and other accessories.  That same year (on page 501) we have the legislature hearing a request from a William Paine "that he might be freed from bringing his armes [on] the Lord's day and lecture dayes, because he lives farr of and hath three small children, and his wife is lame and cannot help to bring the children."

Plymouth

1658: On William Brigham, ed., The Compact with the Charter and Laws of the Colony of New Plymouth" (Boston: Dutton and Wentworth, 1836) 115, is an order that 1/4 of the militia "carry theire armes" to church every Sunday, defined as "some serviceable peece and sword and three charges of powder and bullets" or be fined "2 shillings and six pence...."

1675: On page 176 is an order by the legislature, "That during the time of publicke danger every one that comes to the meeting on the Lords day bring his Armes with him and furnished with att least six charges of powder and shott untill further order shall be given" with a two shilling fine for failure to do so.

1681: On pages 192 and 193 is an order, "That every souldieer in this Jurisdiction that beares armes be with all convenient speed furnished with a compleat sword or cutlas."  Also, the statute of 1658 requiring 1/4 of the militia to bring their guns to church every Sunday was updated to require "six charges of powder same shott" from "beginning of Aprill to the end of October yearly...."  It would appear that Plymouth did not fear Indian attack in winter.

Rhode Island

1639: from John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations, in New England (Providence, R.I.: A. Crawford Greene and Brother, 1856), 1:94: "It is ordered, that noe man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that none shall come to any public Meeting without his weapon."  There was a fine of five shillings for failing to be armed in either circumstance.****  This is a city ordinance, not a colony statute.

1643: from Bartlett, Records of the Colony of Rhode Island and Providence Plantations, in New England 1:79-80, reiterated an earlier order "for every man to have so much powder, and so many bullets, and so the forwarning is to stand still in force; and also that every man do come armed unto the meeting upon every sixth day" with orders for militia officers to go to "to every inhabitant [in Portsmouth and] see whether every one of them has powder" and bullets.

South Carolina

 1743: from David J. McCord, ed., The Statutes at Large of South Carolina: Edited Under Authority of the Legislature(Columbia, S.C.: A. S. Johnston, 1840), 7:417, 418, 419;  7:417-419 require everyone to bring their guns to church.

Virginia

1619: Lyon G. Tyler,  ed., Narratives of Early Virginia, 1606-1625 (New York, 1907), 273 required everyone to attend church on the Sabbath, "and all suche as beare armes shall bring their pieces, swords, pouder and shotte."  Those failing to bring their guns were subject to a three shilling fine.

Fresh Scalps!

 U.S. v. Aleman-Lozanociting Vazquez-Ramirez, 163 F.4th at 719 (Bumatay, J., concurring) (quoting Clayton E. Cramer, Colonial Firearm Regulation, 16 J. on Firearms & Pub. Pol'y 1, 23 (2004) upholding bans on illegal aliens possessing arms.

U.S. v. Vasquez-Ramirez, 163 F.4th 706, 720, 721 (9th Cir. 2026)(Bumtay, J., concurring) upholding bans on illegal aliens possessing arms.

I am still thrilled to get my work cited. There are few pleasures in life; I take 'em where I can get them.

Many of Us Have Been Expecting This

 Jensen v. ATF challenges registration requirement for suppressor and short-barrelled rifles because that registration was imposed as part of a taxing scheme. When the OBBB emfed those taxes, what was the legal justification for requiring registration.  A federal judge says that the registration is therefore not constitutional. Count on this being appealed. Having read through the National Firearms Act hearings from 1934, I have confidence the Court will eventually uphold this decision. 

New Jersey Assault Weapon & >10 Round Magazine Ban Overturned by 3rd Circuit

3rd Circuit heard an appeal by New Jersey to a district court ruling that the Second Amendment protects AR-15s but not LCMs (magazines greater than ten rounds). To my shock and pleasure they broadened the ruling to protect all the militia appropriate firearms as well as the LCMs. And yes, this is a case on which i worked. 

Bizarre Reasoning Screaming for Cert

 Barnett v. Raoul Nos. 24-3060, 24-3061, 24-3062 & 24-3063.(6th Cir. 2026). Curiously:

Contrary to the dissenting opinion's efforts (often without citation) to conclusively link Bowie knives to criminality, however, Bowie knives were both widespread and used for lawful purposes. One expert in the history of arms in America, for example, explained that in the nineteenth century, "European visitors who ventured beyond the Appalachians found [the Bowie knife] such an integral part of the American way of life that they felt compelled to comment on it at length in accounts of their adventures.... In many communities, no man, whether hunter, gambler, tradesman or political leader felt himself fully clothed without one." Peterson, supra, at 25. Similarly, the historian who (literally) wrote the book on Bowie knives noted they were "widely carried by Americans of all stripes"; "served everyone equally, upstanding citizens and villains" alike; were "wide[ly] popular[], in the North and South" during the Civil War; and were "common[]"—"a weapon carried by men of all walks of life." Norm Flayderman, The Bowie Knife: Unsheathing an American Legend 20, 125, 130 (2004). Other scholars agree. See David B. Kopel, Clayton E. Cramer & Joseph Edward Olson, Knives and the Second Amendment, 47 U. Mich. J.L. Reform 167, 184 (2013) ("During the nineteenth century, Bowie knives were commonly present in many areas of the United States. Contemporary sources leave no question that Bowie knives, Arkansas Toothpicks, and similar knives were a common part of American life until well after the Civil War....").

The test that Heller imposed recognized that arms in common use are protected. Their dangerousness did not matter; their commonness did matter.

Carrying on Public Transit

Certain governments seek to maximize terror and murders. One strategy is to prohibit concealed carry licensees from carrying on public transit systems.  Angelo v. District of Columbia challenged this ban. The district court denied that these licensees had standing to challenge the district's law. The D.C. Court of Appeals reversed that decision:

Otherwise, because the pistol owners have alleged a pocketbook injury that is caused by their compliance with an allegedly unconstitutional criminal statute, we reverse and remand the case for additional proceedings.

Most of this decision is about decisions concerning whether the economic injuries suffered by the ban qualify them to sue. At district court, the plaintiffs also need to raise a Second Amendment challenge. In the Framing Era "sensitive places" did not include either public transit (there was none) or private transit. In various cases in which I have worked, their side has attempted to argue that post-Civil War railroads prohibited private possession of firearms. Their evidence has been either weak or non-existent. Railroads often required long guns to be checked. (People were going west to hunt.)

Court Grants Cert on Assault Weapons Cases

6/30/26 Guardian:

The US supreme court will consider whether bans on AR-15 rifles and similar semiautomatic firearms are constitutional.

The justices said on Tuesday they will hear appeals challenging bans in Connecticut and the Chicago area in the next term.

There have been enough statements by both pro- and anti-gun justices to expect these laws to collapse.

A Major Victory on LCMs

 Benson v. U.S. (D.C.App. 2026) involved a probable ne'er-do-well charged with:

Benson was:

indicted for (1) possession of a “large capacity ammunition feeding device,” D.C. Code § 7-2506.01(b); (2) possession of an unregistered firearm, id. § 7-2502.01(a); (3) carrying a pistol without a license, id. § 22-4504(a); and (4) unlawful possession of ammunition, id. § 7-2506.01(a)(3).

Their summary conclusion:

To preview our answers to those  central questions, they are that 11+ magazines are unquestionably arms, they are in not only common but ubiquitous use for lawful purposes, and there is no history or tradition of blanket bans on arms in such common use, so that the District’s magazine capacity ban violates the Second Amendment. Third, we reject the District’s argument that Benson’s facial challenge to the District’s ban on 11+ magazines should nonetheless fail because he in fact possessed a magazine holding 30 rounds....

Magazines capable of holding more than 10 rounds of ammunition are ubiquitous in our country, numbering in the hundreds of millions, accounting for about half of the magazines in the hands of our citizenry, and they come standard with the most popular firearms sold in America today. Because these magazines are arms in common and ubiquitous use by law-abiding citizens across this country, we agree with Benson and the United States that the District’s outright ban on them violates the Second Amendment. See generally District of Columbia v. Heller, 554 U.S. 570 (2008); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

In more detail deeper in the decision:

The District next counters on the merits that 11+ magazines, by themselves, are “practically harmless” and of “no use” without ammunition and a receiver (the firearm’s core component), so that magazines themselves are not arms. That is not a defensible approach to identifying what constitutes an arm—a gun is also practically harmless and of no use without ammunition, but it is still obviously an arm. The District’s position that magazines are not arms has a couple of glaring flaws. First, it ignores Bruen’s clear explanation that arms include “instruments that facilitate armed self-defense,” which magazines clearly do by reloading the gun and enabling semi-automatic firing. 597 U.S. at 28. Second, the District’s view reduces to the absurd proposition that legislatures can prohibit all of the core components of firearms—the trigger, the hammer, the slide, the firing pin, the sights, etc.—because none of them do much good without the others, and none of them is strictly necessary to a functioning firearm. See Duncan v. Bonta, 133 F.4th 852, 897 (9th Cir. 2025) (en banc) (Bumatay, J., dissenting), cert. pending, No. 25-198 (U.S. filed Aug. 15, 2025) (“[T]he Second Amendment’s protection of ‘Arms’ must extend to their functional components,” or “the Second Amendment would be a shallow right—easily infringed by indirect regulation.”); id. at 917 (Vandyke, J., dissenting) (“[U]nder that logic, basically every part of a firearm is an ‘optional component’” and thus “not protected under the Second Amendment.”).

Really encouraging reminder the changes President Trump brought to this:

The United States, which prosecuted Benson in the underlying case and defended the ban’s constitutionality in the initial round of appellate briefing, now concedes that this ban violates the Second Amendment.

One other point" this creates a circuit split with the federal courts of appeals  over this question. The Court now should hear the appeal of Duncan v. Bonta on this question.

Here is the Money Quote

3/3/26 The Hill article about rising Cuban support for American liberation. Interviewing a Cuban independent journalist:

She frames it simply: an abusive husband who beats his wife while she begs the neighbors to intervene. “We can’t do it alone,” she said. “The Cuban people are unarmed.”

When Their Lawyers Show They Do Not Know the Law Very Well

 I mentioned a few days ago, that California is suing a Florida company for distributing 3D printer files for firearms.  They filed the suit in San Francisco Superior Court. But they are suing citizens of Florida. U.S. Const., Art. III, sec. 2 provides that federal courts have jurisdiction in cases "between a State and Citizens of another State," because of Amendment 12 (1795). This matters why? Where are the defendants more likely to get a friendly judge and jury. They are moving the suit to Middle District of Florida federal court.

Are Molotov Cocktails Arms Protected by the Second Amendment?

 Over at Instapundit, Sarah Hoyt links to a news story  New Jersey man arrested for having Molotov cocktail outside DC church during high profile mass, and asks DOES THE 2ND AMENDMENT COVER THOSE?

Arguable. The Court has largely focused on self-defense on its decisions, and emphatically so with respect to bearing in Bruen.. Molotov cocktails are only such weapons under the most extreme conditions (large mobs coming to burn out the black section of town as happened in East St. Louis in 1916). Even this would likely not require the right to bear them off your own property.

The Court has never dealt with the primary motivation for the Second Amendment: the insurrectionary theory, that a tyrannical government might need some kinetic conversation to prevent misuse of its powers. This does not require a right to carry any category of arms.  Revolutionaries have bigger problems than violating carry laws.  To be ready to persuade the government to stop or relinquish the levers of power, you only need to possess such arms at home in preparation for such revolt. In practice, laws prohibiting possession of the required components for Molotov cocktails (flammable liquid, glass bottle, rag) are unenforceable.

Florida Open Carry Ban Struck Down

McDaniels v. Florida (Fla.App. 2025) overturned Florida's ban on open carry as contrary to the Second Amendment.  Nicely written opinion going from Heller through McDonald then Bruen demolishing state arguments with skill.

Victory in Tennessee

 Hughes v. Lee (Tenn.Ch. 2025).  (Since I expect to move there next year, this is slightly more interesting._  This is a bit odd.  Chancery courts are an odd medieval leftover.  Most states no longer have chancery courts, having merged them with their regular courts of law.  I am unclear why this is before a chancery court, which normally deals with probate questions.  The question in this case was whether Tennessee law prohibiting carry in parks and another ban on "going armed" in public places violated the Second Amendment.  Do parks qualify as "sensitive places"?

Accordingly, this Court holds that the Going Armed Statute violates the Second Amendment to the United States Constitution and therefore also violates Article I, Section 26 of the Tennessee Constitution. With respect to the Going Armed Statute, Plaintiffs’ Motion for Summary Judgment is hereby GRANTED, and Defendants’ Motion for Summary Judgment is hereby DENIED....

Accordingly, we conclude the Parks Statute violates the Second Amendment to the United States Constitution and therefore also violates Article I, Section 26 of the Tennessee Constitution. Plaintiffs’ Motion for Summary Judgment is hereby GRANTED with respect to the Parks Statute, and Defendants’ Motion for Summary Judgment is consequently DENIED.

I cannot find this decision online yet. Chancery court makes me wonder if some clerk is trying to figure out how to translate it from Norman French. /sarc

 

Even Obama Appointees Know How to Read

 Higbe v. James (N.Y.N.D. 2025):

Guided by the Supreme Court's holding in Bruen, the Court grants Plaintiffs' motion for summary judgment and concludes that the New York firearm statute is unconstitutional under the Second Amendment as applied to Plaintiffs Votruba and Harris. As noted by the district court in California, "the State cannot point to a single law from the Founding or framing tradition that wholesale blocked nonresidents from participating in a general firearms licensing scheme." Hoffman, 2025 WL 1811853, at *5. The Court agrees that "[o]pening the application process to nonresidents does not limit [New York's] ability to regulate who receives a [] license based on other measured parameters. Nonresidents are simply afforded the same chance guaranteed to residents to exercise their Second Amendment rights." 

The judge did not require New York to recognize licenses from other states but requiring them to process non-resident license applications is a big win for anyone who regularly travels there.  

If this seems minor: remember that Florida originally was shall issue for everyone.  Over time, I would not discount New York facing reality.

She was appointed by Obama.

U S. v. Ayala (11th Cir. 2025)

I worked on this case.  At trial, the judge ruled that the pistol office prohibition on carrying in a post office violated the Second Amendment.   Unsurprisingly, Biden DOJ appealed.  

Trump DOJ just withdrew the sppeal.

Not Tired of Winning Yet

 Rhode v. Bonta (9th Cir. 2025)

By subjecting Californians to background checks for all ammunition purchases, California’s ammunition background check regime infringes on the fundamental right to keep and bear arms.  Because California’s ammunition background check regime violates the Second Amendment, the district court did not abuse its discretion in granting a permanent injunction.

I worked on this case.  While I was not cited, I see my fingerprints.  On p. 32, in n. 24:

As a preliminary matter, California argues that during Reconstruction, Tennessee “restrict[ed] . . . gun-access generally to those who took” a prescribed form of loyalty oath.  This statement is taken from the declaration of Michael Vorenberg, an expert witness on the history of the U.S. Civil War and Reconstruction (“Vorenberg Declaration”).  The declaration based its statement about loyalty oaths in Tennessee on a single secondary source, Ben H. Severance, Tennessee’s Radical Army: The State Guard and Its Role in Reconstruction, 1867-1869, 35–36 (2005).  The cited pages in this secondary source discuss how loyalty oaths were required as a condition of joining a militia, but do not assert that loyalty oaths were generally used to determine who could keep and bear arms.  Id.  Therefore, the Vorenberg Declaration’s assertion about Tennessee’s loyalty oaths is not supported by a citation to any secondary or primary source. 

My rebuttal of Vorenberg's claims:

  I reviewed all four sources in Vorenberg’s footnote for this claim. On the alleged loss of civil rights including firearm possession Vorenberg cites Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (Lawrence: University Press of Kansas, 2023), 111-30; Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson: The Restoration of the Confederates to Their Rights and Privileges, 1861-1898 (Chapel Hill: University of North Carolina Press, 1953), 319-25. On firearms possession as a civil right included in the Fourteenth Amendment, he cites Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace, and Donald Kilmer, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (3rd ed., New York: Wolters Kluwer, 2022), 465-71.  None of these sources support even slightly, “the congressional debates on the clause reveal that rights beyond office-holding were to be restricted. The disloyal were to be denied civil rights (which would necessarily include rights of firearms possession)…”  The discussion in Dorris’ book discusses civil rights in the same paragraph as holding public office.  There is no discussion of firearms possession; this is a surprising error considering Vorenberg’s supposed expertise in this period.  Vorenberg’s parenthetical reference appears to be his interpolation of firearms possession as a civil right. 

If this victory for ammunition purchase seems small, remember what it says to California: you restrict firearms purchases for decades and you still need to restrict ammunition because the criminals are still getting guns in which to fire that ammunition. Like gangs cannot drive out of state to buy ammunition.  "But they are breaking the ammunition background check law!"  Yes, along with laws against murder, rape, robbery, etc.  Prior restraint does not work on criminals, only honest people.  You could search every car crossing the state line.  You already do agricultural inspections.  Just broaden it to vehicle and cavity searches.

Another Victory

 California Rifle & Pistol Association v. Los Angeles County Sheriff's Department (C.D.Cal. 2025)   This is mostly an opening battle, requiring LASD pay damages for long delays in processing CCW applications

While my work was not cited, I did submit an expert declaration rebutting three of their experts.  Some of their claims were just laughably bad:

1.               Spitzer at ¶66 claims:

In 1636, Rhode Island enacted a measure to punish any who would engage in “shooting out any gun . . . drinking in any tavern alehouse . . . on the first day of the week more than neccesity requireth.” Any who did so would find themselves in the stocks or fined five shilling.

2.               What the law actually says:

And bee it further enacted by the authority aforesaid, That any person or persons shall presume to sport, game or play at any manner of game or games, or shooting on the first day of the weeke as aforesaid, or shall sit tippling and drinking in any tavern, ale-house, ordinary or victualling house on the first day of the weeke, more than necessity requireth;[1] [emphasis added]

3.               This was a Sabbath-keeping law that prohibited sport of all sorts and drinking on Sundays.  It did not prohibit being armed while drunk or even drinking.  If Spitzer looked up this statute, he has falsely represented it.

4.               Spitzer at ¶66 claims:

In 1663, Massachusetts criminalized any on board of ships docked at any colonial harbor where those on board would “be drunk within their vessels by day or night” and “shoot off any gun after the daylight is past, or on the sabbath day.” The fine was a substantial twenty shillings for every gun so fired.

5.               The actual statute:

Sect. 4. Be it also enacted by the authority of this court,  that no masters of ships, or seamen, having their vessels riding  within any of our harbours in this jurisdiction, shall presume to drink healths, or suffer any healths to be drunk within their vessels by day or night, or to shoot off any gun after the daylight is past, or on the sabbath day, on penalty for every health twenty shillings, and for every gun so shot twenty shillings.[2] [emphasis added]

6.               As the full statute demonstrates, this law banned drinking not being drunk.  A separate offense was shooting “after the daylight is past, or on the sabbath day…”  The term “gun” in this period often means cannon, not small arms.  Georgia in 1759 made it unlawful to fire “any great gun or shall arm in the town or harbour of Savannah after Sun Set without leave or permission. from the Governor.”  The “shall arm” appears to be a typo for “small arm”; the marginal description is “person firing any great Guns or small arms…”[3]  A similar statute limiting such firing can be found in Pennsylvania, and again it seems limited to cannon: “And that no master or commander of any merchant ship or vessel shall fire, or suffer to be fired, on board his vessel, any ordnance or other gun after eight o'clock in the evening, nor before daylight in the morning….”[4]

7.               At ¶66: “In 1750 Pennsylvania enacted a law “For Suppressing Idleness, Drunkenness, And Other Debaucheries” that punished with “penalties and forfeitures” any who fired guns or set off fireworks without a special license to do so.”  He cites this as “1750 Pa. Laws 208, An Act For The More Effectual Preventing Accidents Which May Happen By Fire, And For Suppressing Idleness, Drunkenness, And Other Debaucheries.”  As both the marginal note and the last paragraph clearly state, this was a 1751 law.  More importantly, Spitzer misrepresents the law whose text is:

To the end the provisions already made by our laws, for preventing accidents which may happen by fire in the city of Philadelphia, and several other boroughs and towns, within this province, may be made more generally useful, and to prevent, as much as in us lies, the growing sins of idleness, drunkenness, and other debaucheries, too frequent among us, Be it enacted, that if any person or persons whatsoever, within any county town, or within any other town or borough, in this province, already built and settled, or hereafter to be built and settled, not hitherto restricted nor provided for by our laws, shall set on fire their chimnies to cleanse them, or shall suffer them or any of them to take fire, and blaze out at the top, or shall fire any gun or other fire-arm, or shall make, or cause to be made, or sell or utter, or offer to expose to sale, any squibs, rockets or other fire-works, or shall cast, throw or fire any squibs, rockets or other fire-works, within any of the said towns or boroughs, without the governor's special license for the same, every such person, or persons, so offending, shall be subject to the like penalties and forfeitures, and to be recovered in like manner, as in and by an act, passed in the eighth year of the reign of king George the first, entitled, An act for preventing accidents that may happen by fire, are directed to be levied and recovered.

If any person or persons whatsoever, shall give or sell any rum, wine, or other strong liquors, at the time of any vendue, to any person or persons attending the same, he, she, or they, so selling or giving any liquors, shall forfeit and pay for the first offence, the sum of four pounds, and for the second and every other offence, the sum of five pounds.  [emphasis added]

Provided, that every such conviction be made within one month after such offence or offences committed. Passed 9th February, 1751.-1 Sm. L. p. 208. [emphases added]

8.               Shooting firearms in the towns was prohibited.  In addition, this law prohibited selling “any rum, wine, or other strong liquors….”  There was no prohibition on being armed while drunk. 

---

[1] 3 Records of the Colony of Rhode Island, and Providence Plantations, in New England 31 (1858).

[2] Charter and General Laws of the Colony and Province of Massachusetts Bay Ch. 91 at 190 (1814).

[3] Chandler, 18 The State Records of the Colony of Georgia 294-5 (1759)..

[4] Mitchell and Flanders, 2 Statutes at Large of Pennsylvania from 1682 to 1801 420 (1896).