From bowie knives to muskets and machine guns, historians testify in Measure 114 trial about America’s gun history, regulations

Jan 26, 2024

Historians testified that guns capable of firing more than 10 shots were rare when the Second Amendment was ratified in 1791. Most gun owners during the 1700s used single-shot, muzzle-loading firearms, they said.(Photo by MPI/Getty Images)Getty Images

Lawyers defending Oregon's gun control Measure 114 have called several historians to the stand who testified on the rarity of guns capable of firing more than one round without reloading at the time the Second Amendment was ratified in 1791.

The analysis of the earliest firearms will play a factor in U.S. District Judge Karin J. Immergut's ruling on whether Oregon's restrictions under Measure 114 are constitutional in light of a U.S. Supreme Court decision last summer.

Oregon's voter-approved measure, which has been stalled by a state judge, would ban the sale, transfer and manufacture of magazines holding more than 10 rounds, require a permit to buy a gun and require a completed criminal background check before any sale or transfer of a gun. A slate of opponents including gun rights groups have challenged the measure in federal court.

Taking direction from the Supreme Court's decision in New York State Rifle & Pistol Association Inc. v. Bruen, Immergut signaled that she will consider if the measure's ban on such large-capacity magazines is "consistent with the historical tradition of firearm regulation" in the U.S. and if the magazines or something similar existed at the time of the country's founding or during the Reconstruction Era from 1865 to 1877.

Large-capacity magazines are an example of "dramatic technological changes," lawyers for the state have argued. They called Brian DeLay, who holds an endowed chair in U.S. history at University of California, Berkeley, and Kevin Sweeney, a history professor emeritus at Amherst College, to take the judge back 200-plus years to the nation's earliest firearms.

Each testified that guns capable of firing more than 10 shots were rare when the Second Amendment was ratified in 1791. Most gun owners during the 1700s used single-shot, muzzle-loading firearms, they said.

So-called repeater firearms that could fire more than 10 rounds weren't on the market in the United States until the 1860s, and even then, accounted for less than .002% of guns in the United States, they said.

The repeater guns were "extremely uncommon, vanishingly rare, perhaps non-existent" during the nation's Founding Era up to and including the ratification of the Second Amendment, said DeLay, who has studied the international arms trade in the 18th and 19th centuries.

DeLay and Sweeney, a militia expert, described firearms that relied on powder charges stacked on top of one another in a barrel akin to a Roman candle, a multi-shot air gun that explorers Lewis and Clark carried on their expedition in the early 1800s and the introduction of multi-firing revolvers in the 1830s.

They both said they consider the Henry rifle as the first commercially reliable large-capacity firearm. It was developed in 1860 by Oliver Winchester's New Haven Arms company and could fire 16 rounds of jacketed ammunition from an attached, tubular magazine without reloading.

Their testimony was drawn from their yearslong examination of written correspondence to and among members of the Continental Congress, hundreds of historical newspapers predating 1800 and probate records during colonial America.

While the testimony seemed like a college-level course condensed over several hours, there were moments of levity.

Sweeney detailed and sometimes demonstrated how the earliest guns worked. On the witness stand, he gestured with both his arms how someone would load an early musket.

Holding his imaginary musket in the air, he described how the operator would pull back the hammer-like cock, aim and fire.

Suddenly, Sweeney realized he had his imaginary musket pointed directly at the face of Judge Immergut.

"I’m sorry, your honor," he said, and quickly turned his aim toward the center of the courtroom.

REPEATING GUNS

DeLay said Englishman John Cookson made the earliest gun capable of firing more than one round without reloading. A former apprentice to a master gunmaker in London, Cookson moved to Boston in the early 18th century and advertised a gun that fired nine shots for sale near the end of his life in the Boston Gazette in 1756.

DeLay said it was "likely the only one he had in America."

In 1775, a Philadelphia gunmaker named Joseph Belton pitched an idea to the Continental Congress to make a submersible with cannons that he claimed would sink British ships. Benjamin Franklin had recommended Belton and his submersible idea to George Washington, but the proposal went nowhere, according to DeLay.

Two years later, Belton told the Continental Congress that he had "discover’d an improvement, in the use of Small Armes," DeLay said. Surviving records suggest Belton pitched a different firearm loading design called "superposed," or superimposed, he said.

The proposed design called for a stacked-charge system turning the gun "into a kind of Roman candle" as it was loaded with a series of powder charges and balls, DeLay said. A single lock would light a fused chain of charges stacked in a barrel, he said.

"It could produce catastrophic bursting of the barrel," DeLay said.

"You might blow yourself up," he added. "That was the stubborn remaining disadvantage of this type of firearm."

Ashley Hlebinsky, a firearms curator testifying on behalf of Measure 114 challengers, contended in a sworn declaration to the court that Belton may have sold his guns to the public after the Continental Army canceled the order as too expensive.

DeLay said that account doesn't make sense because "there was no obvious civilian application" for a gun that fired a burst of 10 or more rounds.

Belton's written correspondence to the Continental Congress "makes it clear that he did not sell these hundred guns to the public, and indeed could not have, for he never manufactured them in the first place," according to DeLay.

"Given the technical challenges afflicting repeat-fire gunpowder weapons … it is little wonder that one of the only large-capacity weapons from the period that enjoyed even limited, experimental military use in a European army wasn't a true firearm, but rather an air-gun," Delay wrote in his own declaration.

LEWIS AND CLARK’S AIR GUN

Meriweather Lewis and William Clark had a multi-shot air gun on their expedition from 1803 to 1804, DeLay said. It required about 1,500 manual strikes to pump a reservoir of compressed air through it to achieve a full charge, he said.

DeLay found the first reference to the air gun in Lewis and Clark's journals, which described how they were greeted by white settlers on their travels who wanted to learn how to use the unusual weapon. Lewis obliged, demonstrating the use of the gun with seven shots, DeLay said.

An observer who then took hold of the gun accidentally fired an eighth shot, striking a woman in the head about 40 yards away. Much to Lewis & Clark's relief, the wound wasn't serious, DeLay said.

The air gun likely was made by the Italian gunmaker Bartolomeo Girardoni in the early 19th century, he said.

During the 1860s and early 1870s, the Henry rifle and a similar Winchester 1866 lever-action firearm both had tubular magazines with the capacity to fire more than 10 rounds. Yet both remained extremely rare in the nation at the time, DeLay and Sweeney testified. Further, the lever-action firearm required the operator to maneuver a lever in a back and forth action between each shot.

Bringing DeLay back to modern times, Senior Assistant Attorney General Brian Marshall asked him about the shooter in the 2007 Virginia Tech massacre, who fired 174 rounds in nine or 10 minutes.

Would any of the early firearms including the Henry or a Winchester have been able to do that, he asked DeLay. No, Delay replied. The gunman in the Virginia Tech shooting killed 32 people and wounded 17 others .

Brennan Rivas, who has a doctorate degree in history from Texas Christian University and has studied historical weapons regulations, and Robert Spitzer, who has a doctorate degree in government from Cornell University and is a political science professor emeritus at State University of New York at Cortland, testified about early gun regulations.

"Gun ownership is as old as America, but so are gun laws," Spitzer wrote to the court.

Rivas testified about early regulations in the 1800s that prohibited bowie knives (long blades that curved and became double-edged near the tip); multiple states that regulated firearm transfers by taxing their sales, restricted gunpowder or the concealed carry of weapons, and some places, such as Philadelphia, in 1713, that prohibited firing a gun "without a license."

The regulations were adopted, Rivas said, to reduce crime and discourage the circulation of deadly weapons. Both Rivas and Spitzer testified that they considered these early restrictions part of the nation's historic traditions of regulating firearms.

From 1917 to 1934, 23 states, including Oregon and Washington, adopted restrictions on ammunition--feeding devices, after finding such guns were used in increased crime and violence, Spitzer testified.

In 1932, the District of Columbia barred any firearm that could shoot automatically or semi-automatically more than 12 shots without reloading, under a law passed by Congress, Spitzer testified.

On cross-exam, Attorney Matthew Rowen, for the challengers of Measure 114, asked if any state law prohibited a member of the public from acquiring an ammunition-feeding device alone, such as a magazine.

Spitzer said he knew of no law that prohibited someone from acquiring an ammunition-feeding device of rounds by itself.

GUN LANGUAGE

Dennis Baron, a linguistics and English professor emeritus at the University of Illinois at Urbana-Champaign, testified that the equivalent of today's magazines during the nation's Founding and Reconstruction eras weren't called "arms" but "accouterments."

He examined journals of the Continental Congress and military orders from George Washington as well as newspaper stories and ads from the 1860s.

He said the modern-day magazine was often referred to in the 18th and 19th centuries as a "cartridge box" or "cartouche box or pouch" that contained cartridges. They also were typically listed separately from "arms" in such written material, he testified.

In a 1780 order from Washington, for example, the general wrote of "arms, ammunition, accouterments, drums and fifes in possession of the respective regiments," according to a citation from Baron.

"What it suggests to me is they’re two different things," he said as a witness for the Oregon Alliance for Gun Safety, which intervened in the case to defend Measure 114.

Lawyers for the alliance and state argue that large-capacity magazines are not "arms" protected under the Second Amendment.

In the material reviewed from the nation's Founding and Reconstruction eras, ammunition containers "tend overwhelmingly" to be classified as accouterments, Baron said.

Under cross-examination, a lawyer for the Measure 114 challengers asked Baron about a friend-of-court brief he wrote in a case that was before the U.S. Supreme Court that examined the meaning of the Second Amendment's 27-word sentence and its clauses: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Baron had argued that the right to "keep and bear arms" protected a collective right to own guns tied directly to the need for a "well-regulated militia." But the nation's high court in 2008 disagreed in District of Columbia v. Heller, finding the amendment protects an individual right to own a gun, regardless of whether the person serves in the military.

Attorney Nicholas Gallagher representing gun rights supporters pointed out that the U.S. Supreme Court rejected Baron's view.

Baron replied that the ruling was split, 5-4. "The majority did," he said.

The trial is expected to last through Friday. Immergut will then issue a written opinion.

-- Maxine Bernstein

Email [email protected]; 503-221-8212

Follow on Twitter @maxoregonian

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