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  • Writer's pictureBrian Latuga

Justice Breyer's historical misconception on Revolution-era weapons storage

Around the time of the Revolution, did Massachusetts require arms and ammunition be stored in a “central” location? Justice Breyer’s historical misconception.

On December 2, 2019 in New York State Pistol & Rifle Association, Et al. v. City of New York, New York, Et al., No. 18-280 (Dec. 2, 2019) the Supreme Court of the United States heard oral argument on a Second Amendment case which appealed New York City’s prohibition of transporting unloaded and locked firearms from a home in New York City to a shooting range or to a second home outside of New York City. The petitioners possessed a NYC “premises license” but not a “carry license.” The Court primarily focused on whether the case was still ripe for a decision because New York State law preempted the New York City law – so the 'problem' was fixed. Regardless of that decision, it is apparent that even Justice Breyer of the U.S. Supreme Court may need a refresher on his history.

Justice Breyer stated the following during the oral argument when considering whether there is any historical precedent to permit the same firearm to be used to protect two different homes:

JUSTICE BREYER: Suppose -- I mean, this is why these things are difficult for you. All right? I understand that. But in Massachusetts, historically, all the guns and ammunition were stored in a central place at night, I believe, at the time of the resolution -- revolution. Not in anybody's home. And this -- do we have a different law for Massachusetts? I guess not. What history do we look to?

(Tr. at 60, lines 16-25).

Perhaps Justice Breyer hasn’t researched the Revolution, maybe he never heard of the “powder alarm," or his clerks may have misinformed him. To me, this statement illuminates an obvious bias against firearms ownership – and therefore against the Second Amendment to the U.S. Constitution. So, did Massachusetts historically require that all the guns and ammunition be stored in a central place at night, and not in anybody’s home?

Early American Ammunition

Most “safety regulations” during the days of the Revolution were in fact requirements that men (and sometimes women) own guns. But more importantly, gunpowder in the 1800’s was an extremely volatile substance, and itself quite dangerous. “Black Powder” had to be stored in reinforced brick buildings for safety of the entire populace - called “Powder Houses.” If they could afford it, most individuals retained loaded rifles or muskets in their homes along with “sufficient” ammunition.” Sometimes there were central “Magazines” that contained arms and ammunition for the community to use – thus forming an instant “militia.” The communal Magazines were to provide weapons and ammunition for those that could not afford to keep their own. Howard Zinn writing A People’s History of the United States said that “[t]he American victory over the British army was made possible by the existence of an already-armed people. Just about every white male had a gun, and could shoot.”

A 1786 Boston law is often cited by gun-ban advocates* as historical support for the proposition that a locality may ban loaded weapons or types of weapons in a city. The law begins with “Whereas the depositing of loaded arms in the houses of the town of Boston, is dangerous to the lives of those who are disposed to exert themselves when a fire happens to break out in the said town....” And reading on, it details that one cannot take into a house/ building any canon, mortar, firearm, etc. that is loaded with, or having gun powder loaded in the weapon. The ones that enforced this law were the firewards of the town. Nothing in the statute prohibited owning, transporting, or carrying weapons (even cannons or mortars!). This law served to limit the injuries sustained by firefighters who fought the MANY fires occurring within towns and cities early in our nation’s history. There were no fire extinguishers – just buckets of water. Even disregarding the preamble of this statute, the law did not prohibit anything but “storing” or “leaving” a loaded weapon. A careful reading reveals that a firearm could be loaded so long as someone is present in the home.

In 1797 a Boston Massachusetts law required gunpowder to be stored in public magazines. Unclear is whether there was a certain weight limit on that requirement. Many cities and states in the 1800’s did have gunpowder storage laws, and many exempted anything under five (5) pounds from these storage regulations – exempting the home storage of a hefty 4.99 lbs or less of gunpowder.

Perhaps Justice Breyer misspoke or misinterpreted his research. These minute details in commentary and analysis are important to note when the Judiciary inevitably will be faced with far more important Second Amendment decisions soon; and Justice’s biases will certainly come to the forefront.

*I am pro-gun and pro- Second Amendment. We should all be against murder and senseless rampage. However, I do not believe there is such thing as “gun-violence.” There is violent crime, murder, assault, and the like – there are no guns committing crimes without the humans attached to them. Nearly every mass shooting that has occurred in recent history has been in a “gun free” zone; unarmed citizenry are simply better targets. One purpose of the Second Amendment is to fight government tyranny – but that is for another article.


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