Abstract: Mass shootings and gun violence are inescapable facts of American life. America is the only developed country where mass shootings occur almost daily. Despite the widespread sentiment of hopelessness surrounding this problem, state and local governments have been enacting various gun restriction laws. However, in a series of recent cases, the U.S. Supreme Court established an originalist standard for evaluating Second Amendment claims that poses significant challenges to the constitutionality of state and local gun laws. To survive constitutional muster, gun laws today must share common regulatory purpose and mechanism with historical analogues from the period between the founding and the Fourteenth Amendment’s adoption.
This Comment analyzes three gun restriction measures recently enacted by Washington State—the large capacity magazine restriction, the assault weapons restriction, and the public nuisance liability statute. This Comment argues that historical firearm regulations from the eighteenth and nineteenth centuries provide sufficient analogues to the Washington statutes and establish their constitutionality. In addition to providing doctrinal support to the Washington laws, the historical firearm regulations expose the fundamental inconsistency in the originalist Second Amendment jurisprudence: not all gun laws were created equal. Some were enacted with invidious racist and colonialist intent to disempower Indigenous and African American communities. This Comment concludes that the Court compromised the ideological integrity and logical foundation for gun regulations in this nation by incentivizing states to model their laws on historical laws and selectively relying on some parts of history while ignoring others.
