It’s not every day you hear the words “ghosts, guns and Quakers” in the same breath. But those words are likely to be central themes in future legal challenges if the recent state House Bill 777 (H.B. 777), also known as the “Ghost Gun” law, is enacted.
Ghost guns are IKEA-style, do-it-yourself (“DIY”) weapons. The kits allow any person of age to build a firearm at home by following basic instructions that help piece together a couple frames and receivers. It’s essentially a self-manufactured weapon produced by plastic 3D printer technology. The guns are mostly unregulated. You can sell the makeshift weapon to just about anyone without a background check.
The weapons also do not have serial numbers, which makes it difficult for law enforcement to track. While these self-built items make exercising the individual right to bear arms more accessible, they can also land in the hands of children, domestic abusers, gun traffickers or garden-variety criminals.
H.B. 777, passed along party lines in March, seeks to make it more onerous on individuals to assemble, sell and transport these weapons by “prohibiting the purchase, sale, and production of untraceable gun parts.”
There is little, if any, doubt that the law, if enacted, will be challenged in state or federal courts on constitutional grounds.
Legal arguments
On one side of the debate is co-sponsor, State Rep. Morgan Cephas (D-Philadelphia), who argues that the law seeks to protect the public from “bad actors” who have illegally acquired ghost guns and used them for violent purposes.
Her argument is a familiar one to gun safety advocates and lawyers. It’s what we call the state police power. Lawmakers have, they say, an obligation to pass laws that protect the public’s health, safety and general welfare, and courts should defer to the judgment of the legislature when ascertaining the constitutionality of such laws. Ghost guns—and the untraceable parts necessary to build them—are dangerous if they wind up in the wrong hands, and therefore it is necessary for the state to regulate them.
On the other side of the debate is State Rep. Russ Diamond (R-Lebanon), who argues that the law infringes on individual freedoms and that the debate should be “about our forefathers” and “the principles [the right to bear arms] that we have lived with [in Pennsylvania] for hundreds of years.”
He’s also raising a familiar argument—what we call the “text, history and tradition” legal argument. The right to keep and bear arms, in other words, is explicitly stated in the text of the state and federal constitutions and, therefore, any regulation burdening that right will only stand if it is consistent with the nation’s history and tradition of firearm regulation.
This mode of analysis—embraced by the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen—effectively says that unless there are analogous examples of “relevantly similar” ghost gun regulations at the founding of the colony or, for that matter, the nation in the 18th century, then lawmakers are not permitted to regulate ghost guns in a manner that infringes on those deeply rooted traditions of gun possession for self-defense.
To survive this kind of historical scrutiny in court, the state would have to find a “relevantly similar” law from the 18th or even 19th century that satisfies an “historical analogue,” but not necessarily an “historical twin.” The idea is that if there is no historical evidence that self-made guns were regulated in the 1800s, then it is assumed that the unregulated practice of self-made firearms, or possession of guns generally, was understood as a constitutional right.
So, do laws that regulate the untraceable parts of self-made “ghost guns” violate the state and federal constitutions? Let’s start with text.
Rep. Diamond has a decent case, supported by prevailing Supreme Court precedent, that there is an individual right to keep and bear arms. The text of the state and federal constitutions expressly say so. By extension, possession of self-made handguns, including the parts required to build them, Rep. Diamond might argue, is constitutionally protected. Whether manufactured at home or at a warehouse, the final product (a gun) and the activity (possession) is essentially exercising the individual right to keep and bear arms.
However, a counter-argument that Rep. Cephas and the Democrats might offer, is that the plain text of “keeping and bearing arms” literally means a right to possess the firearm in and of itself, but not its separate, untraceable parts. Indeed, H.B. 777 seeks to prohibit the “purchase, sale, and production of untraceable gun parts,” which arguably has nothing to do with the textual right of keeping and bearing arms.
The law, proponents might argue, does not prohibit the possession of a gun, but instead simply regulates “untraceable gun parts” and those parts cannot be legally pieced together to mean possession of a firearm itself. In essence, advocates of the law would argue that nothing stops an individual from acquiring, possessing or building a self-made firearm, so long as they do so with kits that have traceable parts.
Quakers and guns
And what about history and tradition? The influence of Pennsylvania Quakers is relevant to this inquiry.
The Quakers were members of a Christian movement called the Religious Society of Friends, dating back to the mid-17th century in England. In the late 1600s, William Penn left England for North America to settle. The topography and terrain of what is today Pennsylvania was considered an ideal location for Quakers who were facing faith-based persecution in England.
Penn, like many Quakers, was a pacifist who did not believe in war. However, the expansionism of foreign nations, such as France, Spain and Britain, and conflict with Native Americans, increasingly posed serious threats to the newly settled Quakers. A variety of modes of protection proliferated, including the production and use of firearms, the growth of militia units, and individual self-defense techniques.
Prior to and during the Revolutionary period, Quakers were forced to seek personal and communal self-defense from the dangers of colonial life on the frontiers. Sometimes self-defense meant not carrying a weapon at all to signal peace to Native Americans, while some Quakers chose, reluctantly, to carry a firearm for self-defense, even though they espoused non-violent means to resistance.
At the same time, Quakers grew in social and political power. They ultimately dominated Pennsylvania colonial government for many years until the founding of the state government and state constitution of 1776. While anti-pacifists successfully defeated many elected Quakers at the ballot box across the state by the late 1700s and early 1800s, most of the colonial laws enacted prior to 1776 were the product of Quakers.
It’s no wonder Pennsylvania had one of the lowest rates of gun ownership in that era. The Quakers, even after losing electoral power in state government by the early and mid-1800s, clearly “exerted enough social and cultural influence to suppress gun ownership overall” and deplete the “distribution or retail sales of firearms.”
But, this is where the history and tradition analysis gets murky.
Did people self-build firearms, similar to today’s ghost guns, during Pennsylvania’s colonial era? Yes, some people did. Many firearm innovations “were inspired by self-made arms.” But, unlike the expansion of the powerful gun manufacturing industry during the Revolutionary movement, self-made guns were not a widespread practice or norm.
And while the Quakers were a resilient and innovative people, it’s unlikely they enjoyed anything akin to 3D plastic printing technology like today’s ghost guns. But this still doesn’t answer the burning question that lawyers and judges in Pennsylvania are likely to grapple with if, after passage, H.B. 777 is dragged into court.
The question is whether there is a history and tradition of regulating self-made guns and the parts to build them by the Quaker-dominated government, or similar regulations around the country at the time.
Besides the textual argument that the law does not directly abridge keeping and bearing arms, if Rep. Cephas and her Democratic colleagues can identify an historically analogous regulation, they might have a strong case that H.B. 777 is constitutional. But admittedly, that’s going to be a tough task, since there were very few firearm regulations before the late 18th Century in colonial America. Although, curiously, Penn and the Quaker dominated society found it necessary to forbid the sale of guns, powder, bullets and lead to Native Americans.
But, if the state cannot find an historical analogue to H.B. 777, then Rep. Diamond—and the plaintiffs who end up challenging the law—might prevail in having H.B. 777 struck down.
Gun debates are politically and ideologically controversial. However, the underlying legal arguments are what will likely determine whether gun regulations in Pennsylvania, like H.B. 777, ultimately survive.
Originally published at penncapital-star.com,by Jerry Dickinson
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