Historical laws play a crucial role in shaping modern constitutional litigation.

Sasquatch: Hey, good evening. Welcome back. When I started writing the ⁓ the podcast about the Virginia gun laws, I had planned on it being a three part series when I initially started writing it. After I finished it, I realized that I needed to break it up into four parts. It was just too long. So I'm Todd Edwards and welcome back to Tick Bite NC. If you've listened to the first three episodes in this series, I've covered Virginia's new firearm laws. The Supreme Court decision in New York State Rifle and Pistol Association versus Bruin and the lawsuits that followed. If you have not watched the first three episodes of this series, pause this video, go back and watch them, and then come back and watch this one. Because tonight we're going to answer a question I've seen over and over again. People ask, why are judges talking about laws from the 1700s? And why does 1791 matter? Why does a blacksmith, a musket, and powdered lead have to do with an AR-15? And those are fair questions. And at first glance, it sounds ridiculous. After all, the founding fathers never saw a semiotic. After all, the founding fathers never saw a modern semi-automatic rifle. But they did see a repeating air rifle. And there were repeating air rifles on the Lewis and Clark expedition. Why don't you think about that? Think about when that was. But the Founding Fathers never saw a Glock. They never saw a detachable box magazine. So why would modern courts spend hundreds of pages discussing colonial laws? The answer is actually much simpler than most people realize, because the Constitution itself has not changed. Technology has. A simple way to think about it: imagine you hand a letter written by your great. Great grandfather to me and I read it. It says your family has a right to use a particular piece of farmland forever. 200 years later, someone asked what that letter means. Do you interpret it today? Do you interpret it based on today's politics? Or do you try and understand what your ancestor meant when he wrote it? Most people would choose the second. You'd ask, What did those words mean when they were written? And that's exactly what constitutional judges are trying to do. Whether you're talking about free speech. Unreasonable searches, jury trials, or the right to keep and bear arms, the question remains with the historical meaning. That doesn't answer every modern question. And that's where the analysis starts. Before there was an America, believe it or not, part of this story begins before the United States ever existed. In 1689, England adopted what became known as the English Bill of Rights. Among many reforms it recognized that Protestants could have arms suitable to their condition as allowed by law. Now notice something, that wasn't the same as the Second Amendment. It wasn't unlimited, it applied only to Protestants, and was subject to parliamentary authority. But it reflected an important idea. An armed population could serve as a safeguard against tyranny. And that concept crossed the Atlantic. The American colonists were familiar with English law. And many of the principles they inherited eventually influenced the rights after written into our Constitution. So life on the frontier. To understand our fathers, you have to forget modern America for a few minutes. There were no police departments, there was no highway patrol, there was not an FBI. You couldn't dial nine one. There were not emergency dispatchers. Many communities were isolated, and families often lived miles apart. Travel was slow, communication was slower. And if danger came, you were usually responsible for protecting yourself until neighbors could help. Firearms were not unusual. They were everyday tools. People hunted with them. People protected their livestock. People defended their homes with them, served in local militias with them. To many Americans of the 18th century, owning arms wasn't viewed as a luxury. It was ordinary part of life. The militia. Now here's something many people misunderstand. The word militia in the Second Amendment did not describe a professional standing army. They were not talking about the National Guard. In the founding era, the militias generally consisted of ordinary citizens who could be called upon for community defense. Many colonies and later states required eligible men to appear with their own arms and ammunition for militia service. In other words, the government often expected citizens who already possessed firearms and ammunition. That's the reason historians pay close attention to militia laws. They provide evidence of how Americans viewed the relationship between citizens and arms during the founding era. Were there gun laws in 1791? Yes, there were. And that's an important point. Sometimes people say there were no gun laws at the founding. That is not accurate. There were regulations. But they were generally different in scope and purpose from many modern laws. For example, some jurisdictions prohibited firing guns into crowded towns because of fire hazards. Some regulated the storage of large quantities of gunpowder inside cities. Some prohibited carrying firearms in a manner intended to terrorize others. There's a law in common law called going armed to the terror of the public. That's where it came from. Some restricted firearms in certain government controlled places, like courthouses, polling places, etc. And some laws disarm particular groups under circumstances that reflected the legal and political realities of the era. If they didn't like you, they disarm you. If you weren't of the right political party, they disarm you. If you were not the right, if you didn't have the right amount of pigment in your skin, they wanted to disarm you. Those historical regulations are exactly what modern courts are examining while applying Bruin. And the question is not whether any gun laws existed. The question is to whether those laws are sufficiently analogous. Let me read that again. The question is whether those laws apply to today's regulations. What's analog? You may have heard me use that word a few times. Analog, here's what it means. Suppose there were no automobiles in 1791. There weren't any, right? But there were horses and there were wagons and there were ferries. If the courts were trying to understand a constitutional question involving transportation, they wouldn't look for Model T Fords. They'd look for the closest historical comparison. That's what judges do under Bruin. They don't ask whether the founders regulated Article. They don't ask whether the founders regulated AR-15s. They ask whether they regulated something sufficiently similar in purpose and burden. That's a much harder historical question. And that's why historians now play such a significant role in modern constitutional litigation. History does not always give easy answers. Here's something I appreciate about honest legal scholarship. History rarely speaks with one voice. You often find examples supporting both sides of the argument. One historian may emphasize laws regulating dangerous weapons. Another may emphasize widespread civilian ownership. One scholar might point to English common law. Another may argue early American practice is more important. And that's why these cases are so difficult. They're not simply reading one old statute and saying, here it is, we got it. They're understanding an entire historical tradition that goes back a couple of hundred years. We're celebrating the 250th birthday of our country right now. That's 250 years of historical tradition. Reasonable historians sometimes disagree, and reasonable judges sometimes disagree. That's one reason the constitutional case work hard and work their way through multiple levels of appeal. Why are courts reading old laws again? Because when Bruin was decided, something remarkable happened. Lawyers suddenly began researching statutes that had been sitting quietly in archives for centuries. Colonial laws. Territorial laws, early state laws, court decisions from the eighteenth and nineteenth centuries, legislative journals, historical treaties. What had once been the work of academic historians suddenly became evidence in federal court. In many ways, Bruin turned constitutional litigation into historical research. And why does this matter beyond firearms? Even if somebody has no interest in guns, there's an important lesson here. Constitutions are designed to endure. The same document written in the eighteenth century now governs questions involving the internet. Think about that. It governs artificial intelligence, GPS tracking, cell phones, digital privacy, and the firearms that the founders never imagined. Courts face the difficult task of implying enduring constitutional principles to a changing technology. Now that's true under the First Amendment, the Fourth Amendment, the Second Amendment. And every constitutional right faces the same challenge. Technology evolves, and the Constitution did not rewrite itself. The debate will continue, and some people believe Bruin gives too much weight to history. Others believe it finally restored the proper constitutional standard. Reasonable people can disagree. What matters is understanding what the Supreme Court actually held and whether someone supports or opposes stronger firearms regulations today. Legal debates will be shaped by historical evidence in a way we haven't seen in generations. That's why Virginia matters. That's why Illinois matters. And that's why cases from across the country are working their way through courts. And that's why constitutional history has become front page news. If this four-part series has accomplished anything, I hope it's this. I hope we've replaced slogans with understanding. The Constitution deserves more than headlines. It deserves careful reading. History deserves more than sound bites. You can't get all the information in 30 seconds. Some of you gonna try. You're gonna watch a 30-second clip of this podcast and think you got it all. But trust me, there's a lot in there that I can't put in 30 seconds. And every citizen, whether they own a firearm or not, benefits from understanding how constitutional rights are interpreted. It deserves honest study. Here at Tick Byte NC, that's what we'll continue doing. We're going to keep asking questions. We're going to keep reading the source documents. And we'll keep following the facts wherever they lead. I'm Todd Edwards, and thank you for spending your evening with me. Until next time. Take someone hunting, take someone fishing, take a child into the woods to have a good time. Teach them not only how to appreciate the outdoors, but while liberty and responsibility have gone hand in hand. Also teach them to respect the outdoors and respect your neighbor. Good night, and this concludes the four part series. Together the episodes provide a progression that Virginia passed, and why Bruin changed the Second Amendment law, and how lawsuits are unfolding, and why finally history has become central to modern constitutional litigation. Good night.