It’s not every day that you hear the words “ghosts, guns and Quakers” in the same breath. But these words will likely be the focus of future legal challenges when it comes to the recent state House Bill 777 (HB 777), also known as the “Ghost Gun” Act.
Ghost guns are DIY guns with an IKEA feel. The kits allow any adult person to build a firearm at home by following basic instructions to aid assemble several frames and receivers. Basically, it is a self-made weapon, produced using 3D printer technology from plastic. The weapons are mostly unregulated. You can sell a makeshift gun to almost anyone without a background check.
The weapons also do not have serial numbers, making them tough for law enforcement to track. While these home-built items facilitate the exercise of an individual’s right to bear arms, they can also end up in the hands of children, domestic abusers, gun dealers or common criminals.
HB 777, crossed party lines in March, seeks to make it more burdensome for individuals to assemble, sell and transport these weapons by “prohibiting the purchase, sale and production of untraceable weapon parts”
There is little doubt, if any, that the bill, if passed, 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 (Philadelphia), who argues that the law is intended to protect the public from “bad actors” who illegally obtained ghost weapons and used them for brutal purposes.
Her argument is familiar to gun safety advocates and lawyers. This is what we call state police power. They argue that lawmakers have a duty to enact laws that protect the health, safety, and general welfare of the public, and that courts should defer to the legislature’s judgment when determining the constitutionality of such laws. Ghost weapons – and the untraceable parts needed to build them – are hazardous if they end up in the wrong hands, so it is imperative that the state regulates them.
On the other side of the debate is state Rep. Russ Diamond (Lebanon), who argues that the law violates individual liberties and that the debate should be “about our ancestors“And”Rules [the right to bear arms] with whom we lived [in Pennsylvania] for hundreds of years”
He also raises a familiar argument – what we call “text, history and tradition“legal argument”. In other words, the right to keep and bear arms is clearly defined in the text of the law country AND federal constitutions, and therefore any regulations burdening this right will only apply if they are consistent with the country’s history and tradition of firearms regulations.
This method of analysis – adopted by the Supreme Court of the United States in New York State Rifle and Pistol Association v. Bruen— actually says it, unless there are analogous examples “appropriately similar“spectral weapons laws in place at the dawn of a colony or, for that matter, a nation in the 18th century, then lawmakers cannot regulate phantom weapons in a way that violates deeply held traditions of gun ownership for self-defense.
To survive this kind of historical analysis in court, the state would have to find a “reasonably similar” 18th- or even 19th-century law that would meet “historical analogy“, but not necessarily “historic semi-detached house” The idea is that if there is no historical evidence that home-made firearms were regulated in the 19th century, then it is assumed that the unregulated practice of owning home-made firearms, or owning guns in general, was understood to be a constitutional right.
So do laws regulating untraceable parts of home-made “ghost guns” violate the state and federal constitutions? Let’s start with the text.
Rep. Diamond has a decent case, backed by applicable precedent of the Supreme Courtthat there is an individual right to keep and bear arms. Text above country AND federal the constitutions clearly say so. Consequently, possession of a self-made handgun, including the parts needed to build it, as Rep. Diamond might argue, is constitutionally protected. Regardless of whether the end product (gun) and activity (possession) were produced at home or in a warehouse, they fundamentally involve the exercise of an individual’s right to keep and bear arms.
However, the counter-argument that Republican Cefas and the Democrats could offer is that the plain language of “keeping and bearing arms” literally means the right to possess firearms as such, not separate, untraceable parts of firearms. Indeed, HB 777 seeks to prohibit the “purchase, sale and manufacture of unidentified weapon parts” which it probably has has nothing to do with the textual right to keep and bear arms.
Supporters may argue that the law does not prohibit gun ownership and instead simply regulates “undetectable gun parts” and these parts cannot legally be assembled together to possess the firearm itself. In fact, supporters of the law would argue that there is nothing to prevent someone from purchasing, possessing, or building a handmade firearm, as long as they do so using kits that have traceable Parts.
Quakers and weapons
What about history and tradition? The influence of the Pennsylvania Quakers is relevant to this investigation.
Quakers were members of a Christian movement called the Religious Society of Friends, which dates back to the mid-17th century in England. In the slow 17th century, William Penn left England and went to North America to settle. The topography and terrain of present-day Pennsylvania was considered an ideal location for Quakers, who faced persecution for their faith in England.
Penn, like many Quakers, was pacifist who didn’t believe in war. However, the expansionism of foreign nations such as France, Spain and Great Britain and the conflict with Native Americans, increasingly posed a grave threat to the newly settled Quakers. Various means of protection have proliferated, including the production and exploit of firearms, the development of militia units, and individual self-defense techniques.
Before and during the period of revolution, Quakers were forced to seek personal and collective self-defense against the dangers of colonial life on the frontiers. Sometimes self-defense meant not carrying a gun at all peace signal Native Americans, while some Quakers chose reluctantlyto carry firearms in self-defense, even though they advocated peaceful means of resistance.
At the same time, Quakers were growing in social and political power. They eventually dominated the colonial government of Pennsylvania for many years until the formation of the state government and the state constitution of 1776. Although anti-pacifists successfully defeated many elected Quakers at the statewide ballot in the slow 18th and early 19th centuries, most of the colonial laws passed before 1776 were the product of Quakers.
Not surprisingly, Pennsylvania had one of the lowest gun ownership rates of its time. Quakers, even after losing electoral power in state government in the early and mid-19th century, clearly “it has had enough social and cultural influence to restrict gun ownership overall” and exhaust “distribution or retail sale of firearms“
But this is where the analysis of history and tradition becomes unclear.
Did people in Pennsylvania colonial times build their own firearms, similar to today’s ghost guns? Yes, some people did. Many firearms innovations”were inspired by handmade weapons” However, unlike the expansion of the massive weapons industry during the revolutionary movement, home-made weapons were not common practice or the norm.
And while the Quakers were a resilient and inventive people, it’s unlikely they enjoyed anything like 3D plastic printing technology like today’s ghost guns. But that still doesn’t answer the burning question that lawmakers and judges in Pennsylvania will likely grapple with if HB 777 is dragged to court after its approval.
The question is whether there is a history and tradition of regulating home-made weapons and their parts by a Quaker-dominated government, or similar laws in effect across the country at the time.
Beyond the textual argument that the law does not directly restrict gun ownership and bearing, if Rep. Cephas and her Democratic colleagues can identify historically analogous regulations, they could have a mighty case that HB 777 is constitutional. Admittedly, this will be a tough task, as there were few firearms laws in colonial America before the slow 18th century. Although, interestingly, a society dominated by Penn and the Quakers found it necessary prohibit the sale of guns, gunpowder, bullets and lead to Native Americans.
However, if the state is unable to find a historical equivalent to HB 777, then Rep. Diamond – and the plaintiffs who challenge the law as a result – could prevail in having HB 777 overturned.
Gun debates are politically and ideologically controversial. But the underlying legal arguments will likely determine whether Pennsylvania gun laws like HB 777 ultimately survive.
