Common-Law Limits on Firearms Purchases by Minors: The Original Understanding

Prohibitions on the purchase and use of firearms by individuals between the ages of eighteen and twenty-one have emerged as one of the most divisive issues in recent Second Amendment jurisprudence.¹ At the time of the Second Amendment’s ratification, the American law of domestic relations and contract law were shaped by common law.² But courts have been struggling with how to interpret and apply the common law context in which early firearms regulation occurred.³

Under the prevailing common-law view of minors at the time of the Founding, those below the legal age of majority (twenty-one) would not have been able to make contracts for anything but a narrow range of necessities—a category also defined by the common law.⁴ Firearms were not included among those necessities. This evidence has profound implications for the future of Second Amendment jurisprudence. It demonstrates that courts have erred in looking for Founding-era statutes regulating minors’ access to weapons. Such laws would have been unnecessary given widely shared common-law ideas about the status of minors as dependents incapable of contracting for goods or services, apart from the narrow list of items acknowledged by the common law.⁵

Following the text, history, and tradition framework announced in New York State Rifle & Pistol Association v. Bruen—an approach refined in United States v. Rahimi⁶ —courts have struggled to interpret the meaning of common-law restrictions on guns.⁷ Understanding the complexity of the common law—particularly its evolution after the American Revolution—poses significant challenges to modern jurists and lawyers. Founding-era lawyers and judges were steeped in common law modes of thought and analysis. By contrast, most modern lawyers have limited exposure to this body of law and approach to legal analysis.⁸ This brief essay summarizes the relevant common law principles necessary to understand how limits on minors’ ability to contract effectively barred them from purchasing guns without the consent of parents and guardians. This disability extended over the long arc of the nineteenth century, persisting into the era of the Fourteenth Amendment.⁹

A few basic historical facts about Founding-era America are essential to making sense of this legal issue. First, in contrast to modern America, which faces a serious gun violence problem, early America faced no comparable social ill.¹⁰ Muzzle-loading black-powder weapons were ill-suited to impulsive acts of gun violence.¹¹ Although Americans in 1791 were better armed than their European ancestors, most households only had one firearm and only a tiny fraction of these had handguns.¹² Today, there are more guns than people in America.¹³ In contrast to the weapons familiar to the Founding generation, modern firearms technology has advanced to the point where a single individual, including a minor, can inflict damage and produce carnage at a scale almost unimaginable to the generation that wrote the Second Amendment.¹⁴ Thus, any inquiry into the regulation of minors and firearms must apply Bruen’s more “nuanced approach.”¹⁵ In Rahimi, the Court finally acknowledged that Founding-era Americans were not confronting a similar gun violence problems to those of modern Americans.¹⁶ In the case of minors and guns, recognizing this fact is vital given that society did not confront a gun violence problem specifically focused on minors until later in the nineteenth century.

Finally, one additional piece of this historical puzzle is essential to understanding the issue. Early America was a cash-poor economy in which most economic transactions involved credit of some form. The agrarian economy of early America depended largely on “book credit,” not an exchange of actual goods. Barter also typically did not involve a physical trade of goods, but rather an exchange of notes for future payment.¹⁷ Legal historian Bruce Mann’s summary of the system captures the essential role credit played, even when individuals were bartering:

Book debts were, in effect, running accounts receivable, without the monthly billings. They had center stage in an economy that had little hard currency and where income was tied to the uncertainties of harvests and the sea. Given the chronic scarcity of cash, people used agricultural produce as money, referring to it as “commodity money.” Book accounts facilitated such transactions by allowing debtors to purchase goods or services on credit, with payment postponed until they could harvest their crops or otherwise acquire commodity money items.¹⁸

William Blackstone’s discussion about the legal disabilities that encumbered minors’ ability to contract under the common law offers a useful summary of the law in this area. “It is generally true,” Blackstone wrote, “that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him.”¹⁹ In the eyes of the law all individuals under the age of majority—twenty-one—were “infants” who labored under a long list of legal disabilities.²⁰ There was no concept of “young adulthood” at the time of the Second Amendment’s ratification. Then as now, minors were not considered full members of the polity entitled to the full range of rights enjoyed by adults.²¹ Additionally, shocking as it may seem to modern Americans, minors in 1791 had few economic rights, the vindication of which typically required the involvement of parents or guardians to press any legal claim in court.²² But the common law recognized an exception to the general prohibition on minors contracting for a narrow range of necessities. Blackstone identified those items as follows: “meat, drink, apparel, physic [medicine], and such other necessaries . . . .”²³ This circumscribed view was echoed by Nathan Dane in his influential study of American law published in the early nineteenth century: “The articles for which a minor is bound, and usually his parent where the credit is proper, are alone necessaries; as food[,] drink, clothing, washing, physic, education[,] or instruction, fire-wood, and lodging.”²⁴ Dane went further and added to this an explicit warning to merchants who might transact business with minors: A merchant extending credit to a minor “supplies the articles at his peril.”²⁵ Thus, according to Dane, anyone who supplied goods to a minor did so at considerable risk because contracts with minors were not enforceable apart from the narrow list of exceptions acknowledged by the common law.

Given the standard rules of statutory construction familiar to the Founding generation, Blackstone and Dane’s enumerated list clearly excludes firearms by implication.²⁶ But one need not depend entirely on the application of this common-law rule of statutory interpretation to reach this conclusion. Multiple courts across the span of the nineteenth century expressly excluded guns from the list of items that qualified as necessities.²⁷

Despite the evolution of the common law over the course of the nineteenth century, this principle endured.²⁸ Nor did Reconstruction unsettle this well-established precedent.²⁹ A Fourteenth Amendment-era Indiana court made this point clearly when it wrote:

“Necessaries,” in the technical sense, mean such things as are necessary to the support, use or comfort of the person of the minor, as food, raiment, lodging, medical attendance, and such personal comforts as comport with his condition and circumstances in life, including a common school education; but it has been pithily and happily said, that necessaries do not include “horses, saddles, bridles liquors, pistols, powder, whips and fiddles.”³⁰

Illinois jurists writing in the same era came to the same conclusion.³¹ In short, minors were prohibited from contracting for the purchase of firearms.

The absorption of the common law in America after the American Revolution proceeded in an uneven manner.³² Each state adapted those aspects of the common law necessary to address the legal situation its citizens faced. Despite some divergences among the individual states, the dominant legal view of American courts on the scope of minors’ ability to contract for arms was well established and uncontroversial. The consensus on this issue of law emerges clearly from both the case law and relevant legal treatises summarizing the law.³³

Not only have courts “generally excluded from the term ‘necessaries’ horses, saddles, bridles, [and] pistols,” the law has often gone further, excluding “matters which pertain only to the preservation, protection, or security of the infant’s property.”³⁴ This exclusion existed irrespective of how “beneficial they may be.”³⁵ In short, limits on minors’ ability to contract for arms were severely circumscribed by common law, a fact that would have made purchasing firearms difficult for much of the nineteenth century.

Courts have been grappling with many arcane aspects of the common law in their efforts to apply Bruen’s method. In multiple cases, courts have misconstrued the relevant aspects of the common law, including the limits on minors’ ability to contract.³⁶ The notion that minors might purchase arms without the consent of their parents or guardians is a modern invention based on a profound misreading of the common law and the realities of early American economic life.³⁷

Under the common law, minors’ ability to contract was narrowly circumscribed to a small set of well established necessities. Guns have played a prominent role in American history, but the representation of firearms in American popular culture has distorted modern understanding of the utilitarian nature of early American gun cultures.³⁸ For much of American history guns were treated as tools, not icons of freedom or masculinity.³⁹ Thus, the idea that easy access to guns was a necessity for minors owes more to a potent set of modern myths about the American past than to careful analysis of the relevant history.⁴⁰ This basic fact about American history was reflected in the legal treatment of firearms. As a matter of law, guns were not among the necessities that were included in the exceptions recognized by the common law for goods deemed to be necessities for minors. In the case of militia weapons, many states expressly recognized that the legal obligation to provide such weapons rested squarely with parents, guardians, and the state.⁴¹

Ironically, some courts have concluded that Bruen’s first step requires reading the Second Amendment against modern legal norms about age-based restrictions on minors’ rights.⁴² There is some scholarly disagreement over how Bruen’s text, history and tradition methodology relates to the originalism of District of Columbia v. Heller.⁴³ Bruen and Rahimi expressly affirmed Heller’s originalism: Neither case suggested that living constitutionalism was a plausible alternative to resolve issues about the constitutionality of firearms regulations.⁴⁴ Updating the Second Amendment’s text to reflect changed views of the status of minors under modern law is indisputably a form of living constitutionalism and is therefore hard to reconcile with originalism’s claims about fixation and constraint as defining features of the theory’s approach to constitutional interpretation.⁴⁵ To be sure, if Heller were overruled and replaced by a different constitutional methodology for the Second Amendment, including living constitutionalism, a plausible argument could be made that the status of minors under the Second Amendment ought to be swept up in the Warren Court’s rights revolution and updated to reflect modern values.⁴⁶ Heller clearly rejects this approach and requires interpreting the Second Amendment against the set of legal assumptions in place at the Founding, including the common-law view of infants familiar to the Founding generation.

Courts have also struggled with the fact that minors were not the only group laboring under legal disabilities in the Founding era.⁴⁷ In most instances these disfavored groups were victims of impermissible forms of legal animus that are now prohibited under modern law. In essence, these courts have asked a reasonable question: Given the fact that the Founding era also took a narrow view of the rights of married women and non-white Americans—positions no longer constitutionally permissible—why would courts continue to apply the Founding era’s crimped view of the rights of minors?

The problem with this analogy is that in contrast to married women and racial minorities, minors’ disabilities were not driven by animus, but by the common law’s recognition that infants were not capable of the discernment and rationality necessary for full inclusion in the polity. The same principle guides modern law’s treatment of minors. As a matter of current legal doctrine, limits associated with age have not been treated in a similar fashion to gender- or race-based classifications.⁴⁸ Thus, while it is certainly true that some limits on arms bearing in the Founding era were based on forms of animus that are now appropriately prohibited by American law—especially those based on race and gender—the same is not the case for minors. Racial, religious, and gender-based forms of discrimination are part of a legal tradition that has been expressly repudiated by American law in the centuries following ratification.⁴⁹ By contrast, limits on minors’ autonomy have existed across the entire span of American legal history and continue to be widely accepted under modern American law. Given this fact, limits on the ability of minors to acquire and use firearms is consistent with the original public understanding of the Second Amendment right and are not analogous to Founding-era laws targeting racial minorities and other “constitutional outsiders.”⁵⁰ One final point is worth stressing, particularly given the Court’s refinement of Bruen’s methodology in Rahimi. The continuity between common-law views of the limited ability of minors to act responsibly and modern cognitive science’s understanding of brain development is striking. Consider the characterization of minors’ limited capacity in this regard from a popular legal guide from the Founding era. Drawing on the revered English common-law authority Henry de Bracton, an early American justice-of-the-peace manual made this comment:

From the observations made on the daily actions of infants, as to their arriving to discretion, the laws and customs of every country have fixed upon particular periods on which are presumed capable of acting with reason and discretion; hence in our law the full age of man or woman is twenty-one years.⁵¹

Although some of the disabilities attaching to minors’ unique status under law have been removed in the two centuries since the adoption of the Second Amendment, including suffrage requirements, American law has and continues to treat minors differently than adults. As then-Judge Barrett noted in another Second Amendment context: “History is consistent with common sense.”⁵² In this instance, the common sense embodied in the common law and modern science are in complete accord.⁵³

The common-law context of the original Second Amendment establishes clearly that infants would not have had the ability to make contracts for the purchase of arms. Minors were prohibited from making binding contracts in most situations apart from a narrow list of necessities, and guns were not among those necessary items.⁵⁴ This indisputable fact has profound implications for recent litigation concerning modern statutes that prohibit those under twenty-one years of age from acquiring and using guns.⁵⁵ If one reads the Second Amendment against the prevailing common law assumptions in place at the time of its enactment, it is clear that minors would have enormous difficulty acquiring guns without parental permission.⁵⁶

The argument that the Second Amendment precludes age-based restrictions on firearms acquisition and use has no foundation in text, history, or tradition. If courts are serious about applying Bruen’smethod they will need to recognize the pervasive influence of the common law on Founding-era ideas about law and regulation. The question before the courts is simple: Did infants have Second Amendment rights at the Founding? The answer is equally clear: no.

1. For an overview of the issues in this contentious area of Second Amendment jurisprudence, see generally Megan Walsh & Saul Cornell, Age Restrictions and the Right to Keep and Bear Arms, 1791–1868, 108 Minn. L. Rev. 3049 (2024). This issue is also likely to make its way to the Supreme Court soon. See Petition for Writ of Certiorari, Nat’l Rife Ass’n of Am., Inc. v. Glass, No. 24-1185 (U.S. May 20, 2025) (requesting the Court answer “[w]hether Florida’s law banning 18-to-20-year-olds from purchasing firearms violates the Second Amendment”). ↩︎
2. See Vivian E. Hamilton, Adulthood in Law and Culture, 91 Tul. L. Rev. 55, 64 (2016) (explaining that the American colonies adopted twenty-one as the legal age of majority, consistent with centuries-old English common law tradition). ↩︎
3. T.E. James, The Age of Majority, 4 Am. J. Legal Hist. 22, 22 (1960) (“In the eyes of the common law, all persons were esteemed infants until they attained [twenty-one years of age] . . . .”); Toby L. Ditz, Ownership and Obligation: Inheritance and Patriarchal Households in Connecticut, 1750–1820, 47 Wm. & Mary Q. 235, 236 (1990) (describing how, in the eighteenth century, “[p]atriarchal household heads [spoke] for their dependents in dealings with the larger world,” and that the “civic status of household dependents [was] an indirect or secondary one” where “the community reaches them primarily through the actions and voices of the heads”). ↩︎
4. For a sampling of recent cases in which courts have either ignored or misconstrued the relevant common law rules governing minors and the purchase of firearms, see generally Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 127 F.4th 583 (5th Cir. 2025); Lara v. Comm’r Pa. State Police, 125 F.4th 428 (3d Cir. 2025); Worth v. Jacobson, 108 F.4th 677 (8th Cir. 2025). ↩︎
5. 1 William Blackstone, Commentaries *454; see Walsh & Cornell, supra note 1, at 3065 (noting under the common law minors could only for “necessaries, such as food, clothes, lodging, and occasionally education”). For a good discussion of Blackstone’s significance to early American law, see Davison M. Douglas, Foreword: The Legacy of St. George Tucker, 47 Wm. Mary L. Rev. 1111, 1112-13 (2006) (“First published in America in 1771, with subsequent republication in 1790 and 1799, Blackstone’s Commentaries soon became the most widely read legal text in late-eighteenth-century America—essential reading for any aspiring lawyer.”). ↩︎
6. See 144 S. Ct. 1889, 1897-98 (2024) (clarifying that precedents like Bruen “were not meant to suggest a law trapped in amber”). ↩︎
7. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022). ↩︎
8. Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 556 (2006); Kunal Parker, Law and Regime Change: The Common Law, Knowledge Regimes, and Democracy Between the Nineteenth and Twentieth Centuries, 3 Critical Analysis L. 362, 383 (2016); Kunal M. Parker, Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism of Cambridge Historical Studies in American Law and Society 15-16, 18-21 (2011); Stuart Banner, The Decline Of Natural Law: How American Lawyers Once Used Natural Law And Why They Stopped 167-87 (2021). ↩︎
9. For a general discussion of the legal status of minors under Anglo-American law, see generally Holly Brewer, By Birth or Consent: Children, Law, and The Anglo-American Revolution in Authority 230-87 (2005) (discussing the formation of legal rights for children between the sixteenth and nineteenth centuries). For the status of these disabilities after the Civil War, see infra notes 29–31. ↩︎
10.  See Randolph Roth, Why Guns Are and Are Not the Problem: The Relationship Between Guns and Homicide in American History, in A Right to Bear Arms? 113, 116 (Jennifer Tucker, Barton C. Hacker & Margaret Vining eds., 2019) (“[B]efore the mid-nineteenth century, when Americans owned muzzle-loading weapons, the impact of guns on the homicide rate was modest, even though household ownership of firearms was widespread.”). ↩︎
11. Id. at 117. ↩︎
12. Kevin M. Sweeney, Firearms Ownership and Militias in Seventeenth- and Eighteenth-Century England and America, in A Right to Bear Arms, supra note 10, at 54, 62-63. ↩︎
13. John Berrigan, Deborah Azrael & Matthew Miller, The Number and Type of Private Firearms in the United States, 704 Annals Am. Acad. Pol. & Soc. Sci. 70, 71, 89 (2023). ↩︎
14. Walsh & Cornell, supra note 1, at 3108-09; Darrell A.H. Miller & Jennifer Tucker, Common Use, Lineage, and Lethality, 55 U.C. Davis L. Rev. 2495, 2507-08 (2022). ↩︎
15. See supra notes 6–7 and accompanying text. ↩︎
16. See United States v. Rahimi, 144 S. Ct. 1889, 1897-98 (2024); id. at 1906 (Sotomayor, J., concurring). ↩︎
17. See David T. Flynn, Credit in the Colonial American Economy, Econ. Hist. Ass’n (Mar. 16, 2008), https://eh.net/encyclopedia/credit-in-the-colonial-american-economy/ [https://perma.cc/‌EE3K-NL35]; Tom Kelleher, The Debit Economy of 1830s New England, Teach U.S. History, https://www.teachushistory.org/detocqueville-visit-united-states/articles/debit-economy-1830s-new-england [https://perma.cc/H6Q7-Q26E] (last accessed Apr. 26, 2025) (“[A]s a matter of necessity, relatives, neighbors, regular and occasional trading partners usually conducted business on ‘book credit.’”). ↩︎
18. Bruce H. Mann, Law, Economy, and Society in Early New England, 111 Yale L.J. 1869, 1874 (2002). ↩︎
19. Blackstone, supra note 5, at *453. ↩︎
20. Saul Cornell, “Infants” and Arms Bearing in the Era of the Second Amendment: Making Sense of the Historical Record, Yale L. & Pol’y Rev. Inter Alia (2021), https://yalelawandpolicy.org/‌inter_alia/infants-and-arms-bearing-era-second-amendment-making-sense-historical-record [https://perma.cc/K2RL-7AM9]. ↩︎
21. Walsh & Cornell, supra note 1, at 3063-64. Restrictions on minors have never been held to be inconsistent with the Fourteenth Amendment. Id. at 3099. Gun rights advocates have erroneously argued that a category of “young adults” existed at the Founding and that such individuals enjoyed the full range of rights that adults possessed. See David B. Kopel & Joseph G.S. Greenlee, The Second Amendment Rights of Young Adults, 43 S. Ill. U. L.J. 495, 497 (2019). ↩︎
22. Walsh & Cornell, supra note 1, at 3064. Ironically, this is precisely how Justice Thomas viewed the free speech rights of minors in schools, a fact that has not received nearly enough attention by courts applying his Bruen methodology. See Morse v. Frederick, 551 U.S. 393, 418-19 (2007) (Thomas, J., concurring) (“As originally understood, the Constitution does not afford students a right to free speech in public schools.”). ↩︎
23. Blackstone, supra note 5, at *454. ↩︎
24. 2 Nathan Dane, A General Abridgement and Digest of American Law 363 (1824). ↩︎
25. Id. ↩︎
26. 1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 11 (1822) (discussing the importance of common law rules and definitions in reading statutes). The relevant statutory canon would be Ejusdem Generis. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199 (2012) (explaining the Ejusdem Generis canon as the principle “[w]here general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind of class specifically mentioned”). ↩︎
27. See, e.g., Saunders Glover & Co. v. Ott’s Adm’r, 12 S.C.L. (1 McCord) 572, 572 (1822). ↩︎
28. See, e.g., Bowling v. Sperry, 184 N.E.2d 901, 903-04 (Ind. App. 1962); McKanna v. Merry, 61 Ill. 177, 179 (1871). ↩︎
29. McKanna, 61 Ill. at 179. ↩︎
30. Bowling, 184 N.E.2d at 903-04 (quoting Price v. Sanders, 60 Ind. 310, 314 (1878)). Heller overruled United States v. Miller,307 U.S. 174 (1939)which drew a distinction between militia weapons owned and used in activities consistent with a well regulated militia and those with no utility for this purpose. See District of Columbia v. Heller, 554 U.S. 570, 621-25 (2008). Under that standard, the fact that earlier courts excluded pistols might suggest that muskets owned for militia service might be protected, but that conclusion seems hard to reconcile with Heller’s claim that pistols are the quintessential weapon protected by the Second Amendment. Given Heller’s holding, the common law prohibition on minors contracting for pistols must be read more broadly, as a total prohibition on acquiring arms without the consent of parents or guardians. ↩︎
31. McKanna, 61 Ill. at 179. ↩︎
32. Holly Brewer, By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority 230-87 (2005). ↩︎
33. Ransom H. Tyler, Commentaries on the Law of Infancy 113 (2d ed. 1882); Hugh M. Spalding, A Practical Encyclopædia of Law and Forms 547 (1877) (defining necessaries in long-established and common legal usage); 2 The Universal Cyclopædia of Law 896 (W.W. Thornton ed., 1885) (defining necessaries and excluding from that definition “saddles, bridles, liquors, pistols, powder, whips and fiddles”); J.G. Woerner, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind 12 (1897) (same). ↩︎
34. Woerner, supra note 33, at 11-12. ↩︎
35. Id. at 11. ↩︎
36. See cases cited in supra note 4. On the problem of ahistorical treatments of the common law in post-Bruen scholarship, see generally Saul Cornell, The Founders’ Common Law and Bruen’s Text, History, and Tradition Test: From History ‘Lite’ to History Right, 73 BUFF. L. REV (forthcoming 2025). ↩︎
37. See Blackstone, supra note 5, at *453. ↩︎
38. For a general discussion of the mythical history of guns in America, see Richard Slotkin, Gunfighter Nation: The Myth of the Frontier in Twentieth-Century America (1993). ↩︎
39. See generally Caroline E. Light, Stand Your Ground: A History of America’s Love Affair with Lethal Self-Defense (2017) (tracing the history self-defense in America and the shift from a duty to retreat to the idea of stand your ground). ↩︎
40. See Pamela Haag, The Gunning of America: Business and the Making of American Gun Culture 355 (2016). On the marketing of arms to children, see id. at 325-26. ↩︎
41. For examples, see 14 The Statutes at Large of Pennsylvania from 1682 to 1801 456 (James T. Mitchell & Henry Flanders eds., 1909) (citing a 1793 statute that states “[Y]oung men under the age of twenty-one . . . shall be exempted from furnishing the necessary arms, ammunition and accoutrements . . . .”); 2 Laws of the State of Delaware 1135 (Samuel Adams & John Adams eds., 1797) (same). For additional evidence, see generally Expert Report and Declaration of Professor Robert J. Spitzer, Chavez v. Bonta, No. 3:19-cv-01226-L-AHG, 2024 WL 3842662 (S.D. Cal. Mar. 15, 2024); Declaration of Holly Brewer in Support of Defendant’s Opposition to Plaintiffs’ Motion for Preliminary Injunction, May v. Bonta, Nos. 8:23-cv-01696 CJC (ADSx), 8:23-cv-01798 CJC (ADSx), 2023 WL 9196770 (C.D. Cal. Nov. 3, 2023). ↩︎
42. See, e.g., supra note 4 and accompanying cases. Federal courts post-Bruen split on who constitutes “the people” under the Second Amendment because minors at the time of the Founding “occupied a status somewhere between full members of the polity and those categorically excluded from the full benefits of citizenship.” See Walsh & Cornell, supra note 1, at 3054-57. On the idea of “constitutional outsiders,” see Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s 60-71 (2019). For a thoughtful discussion of the interpretive problem posed by Founding era laws motivated by impermissible forms of animus now constitutionally prohibited, see generally Jacob D. Charles, On Sordid Sources in Second Amendment Litigation, 76 Stan. L. Rev. Online 30 (2023). Cf. Joseph Blocher & Caitlan Carberry, Historical Gun Laws Targeting “Dangerous” Groups and Outsiders, in New Histories of Gun Rights and Regulation: Essays on the Place of Guns in American Law and Society 131, 131-44 (Joseph Blocher, Jacob D. Charles & Darrell A.H. Miller eds., 2023) (explaining that historical gun laws disarming “dangerous” individuals focused on groups such as Native Americans and individuals “disaffected to the cause of America”). ↩︎
43. 554 U.S. 570 (2008). ↩︎
44. For a thoughtful effort to understand Bruen’s relationship to originalism, see generally Joseph Blocher & Eric Ruben, Originalism-by-Analogy and Second Amendment Adjudication,133 Yale L.J. 99 (2023) and Christina Mulligan, Diverse Originalism, History & Tradition, 99 Notre Dame L. Rev. 1515 (2024). A number of critics of the Roberts court’s embrace of history have argued that it is not rooted in the actual history of the Founding era, but is a modern and highly selective account of the past, for example see Reva B. Siegel, Memory Games, 101 Tex. L. Rev. 1127, 1180-93 (2023). ↩︎
45. On the core ideas of originalism, see generally Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375 (2013). ↩︎
46. Such an approach would vindicate minors’ rights in the type of analysis adopted in the landmark case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). But it is important to note that Justice Thomas singled out Tinker as an example of living constitutionalism inconsistent with originalism. See Morse v. Frederick, 551 U.S. 393, 418-19 (2007) (Thomas, J., dissenting) (“As originally understood, the Constitution does not afford students a right to free speech in public schools.”). ↩︎
47. See, e.g., Lara v. Comm’r Pa. State Police, 125 F.4th 428, 437 (3d Cir. 2025) (“If, at [Bruen] step one, we were rigidly limited by eighteenth-century conceptual boundaries, ‘the people’ would consist of white, landed men, and that is obviously not the state of the law.”). This observation ignores the mechanisms of legal and constitutional change that transformed the rights of married women and racial minorities. These developments were largely done by statute and amendment, not judicial determinations. ↩︎
48. See Walsh & Cornell, supra note 1, at 3099-100. ↩︎
49. Charles, supra note 42, at 34-36. ↩︎
50. For further elaboration and discussion of the concept of constitutional outsiders and Founding-era law, see Leonard & Cornell, supra note 42, at 60-71 . ↩︎
51. A New Conductor Generalis 237 (1803). ↩︎
52. Kanter v. Barr, 919 F.3d 437, 451, 464-65 (7th Cir. 2019) (Barrett, J., dissenting). ↩︎
53. For a discussion of the way modern cognitive science and psychology have vindicated the Founders view of minors’ lack of discretion and impulse control, see Walsh & Cornell, supra note 1, at 3113. ↩︎
54. Blackstone, supra note 5, at *454. ↩︎
55. See supra note 4 and accompanying cases. ↩︎
56. See supra note 36 and accompanying text. ↩︎