abstract. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court reaffirmed that laws prohibiting the carrying of firearms in sensitive places were presumptively constitutional. Since Bruen, several states and the District of Columbia have defended their sensitive-place laws by analogizing to historical statutes regulating firearms in other places, like schools and government buildings. Many judges, scholars, and litigants appear to have assumed that only statutes can count as evidence of the nation’s historical tradition of firearm regulation.

This Note is the first expansive account since Bruen to challenge this assumption. It argues that courts should consider sources of analogical precedent outside of statutory lawmaking when applying the Court’s Second Amendment jurisprudence. Taking public transportation as a case study, the Note surveys rules and regulations promulgated by railroad corporations in the nineteenth century and argues that these sources reveal a historical tradition of regulating firearm carriage on public transportation.

Bruen permits courts to engage in more nuanced analogical reasoning when dealing with unprecedented concerns or dramatic changes. One such change is the shift in state capacity that has placed sites that were privately or quasi-publicly operated before the twentieth century under public control in the twenty-first century. As in the case of schools, which the Court has already deemed sensitive, a substantial portion of the nation’s transportation infrastructure in the nineteenth century was not entirely publicly owned and operated. For this reason, courts should consider evidence of historical firearm regulations enacted not just by legislatures but by quasi-public or private corporations. This case study instructs that courts and litigants can best honor Bruen’s history-based test by considering all of the nation’s history of firearm regulation.

author. J.D. expected 2024, Yale Law School; B.A. 2018, Yale College. My deepest thanks to Reva Siegel, Joseph Blocher, and Justin Driver for their generous support. For helpful comments, discussion, and encouragement, gratitude to Graham Ambrose, Jeremy Feigenbaum, Josh Feinzig, Paul Gewirtz, Danny Li, Douglas NeJaime, Brennan Gardner Rivas, Ben Roebuck, David Schleicher, Josh Stanton, Andrew Willinger, and my family. Thank you as well to the archivists at the Beinecke Rare Book & Manuscript Library, as well as Manuscripts & Archives at Yale University. Finally, sincere thanks to the editors of the Yale Law Journal, especially Kyle Ranieri, Raquel Leslie, Dena Shata, Jordan Kei-Rahn, and Sara Méndez, for their invaluable feedback. All errors are my own.

Introduction

The specter of firearms on the subway was not far from the Justices’ minds when they convened for oral argument in New York State Rifle & Pistol Association v. Bruen.1 The case did not involve subterranean carry per se, but rather whether the Second Amendment protected the individual right to carry firearms in public. Yet the narrow question of whether there is a right to carry firearms on the New York City subway served as a Rorschach test for the question presented.

Justice Kagan asked Paul Clement, the oral advocate for the petitioners, whether New Yorkers could take firearms on the subway under a test tethered to history and tradition. Though Clement acknowledged he would “have to go through the analysis,” he supposed he could “give away the subway” for his individual clients because they did not reside in or seek to travel to Manhattan.2 Justice Alito raised a concern. What about the law-abiding New Yorkers who must “walk some distance through a high-crime area” late at night before entering or after departing a subway stop?3 “They do not get licenses,” he surmised, “is that right?”4 New York Solicitor General Barbara Underwood responded that “the idea of proliferating arms on the subway is precisely, I think, what terrifies a great many people.”5

Indeed, shootings in the months preceding and following Bruenonly underscore the urgency of clarifying states’ latitude to regulate firearms in public transportation. Two months before the Bruendecision, a gunman took a Glock 17 handgun and three ammunition magazines onto a New York City subway car and fired more than thirty shots, injuring ten.6 New York, of course, is not alone in suffering the lethal consequences of gun violence in the subway.7 And the threat of gun violence in public transportation is not unique to the twenty-first century; past incidents of gun violence in subways and trains are firmly lodged within the American public consciousness.8

When the Court first interpreted the Second Amendment to include an individual right to keep and bear arms in District of Columbia v. Heller, Justice Scalia provided reassurance that “nothing in our opinion should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”9 Trains and subways went unmentioned in this short list of sensitive places.

Then, in Bruen, the Court struck down New York’s century-old statute that required residents seeking concealed-carry permits for handguns to show “proper cause.”10 The Court announced a new test for regulations burdening the individual right to bear arms.11 At the same time, it affirmed its language about sensitive places in Heller and specified that among the sensitive places it recognized were “legislative assemblies, polling places, and courthouses.”12 This list was not necessarily exhaustive. Litigants and courts could draw analogies between listed places and new sites,13 or between historical firearm regulations in other places and regulations in relevantly similar contemporary sites.14

In the months after the decision, several jurisdictions enacted new sensitive-place restrictions15 while others faced legal challenges to existing laws.16 Weakened in their ability to restrict who could carry, these jurisdictions moved to limit where individuals could carry. Many of them designated sites of public transportation, including trains and subways, as sensitive places.17 Even recently following Bruen, when courts have decided the question of whether sites of public transportation can be considered sensitive places under Bruen,they have tended to consider only evidence from statutory lawmaking as probative.18 Finding no examples of state statutes regulating firearm carriage on public transportation in the eighteenth or nineteenth centuries, federal judges in New York and New Jersey, for example, have concluded that “firearms were generally permitted” in such places.19

This Note challenges that assertion. Using untapped archival materials, it retells the story of U.S. firearm regulation on public transportation.20 Throughout the nineteenth century, beginning at least in 1835, railroad corporations enacted rules and regulations that restricted the ability of passengers to carry firearms on board.21 The tradition that emerges from these regulations is one in which railroads barred passengers from carrying functional firearms or weapons that would render their owners ready for confrontation.22 At the same time, we can predict that a search for statutes regulating firearms in public transportation will come up empty. State-owned or state-operated public transportation as such did not generally exist before the turn of the twentieth century.23 Yet so far, only one court has cited a single source other than a statute or judicial opinion as evidence of the nation’s historical tradition of firearm regulation in public transportation.24

Scholars have made substantial contributions to clarify the role of history in Bruen’s test. Many have debated the permissible temporal bounds of history that judges can consider25 and whether the Court’s opinion can be properly described as originalist.26 Others have theorized about which characteristics render a place sensitive.27 Still others have contemplated to what extent the decision permits courts to analogize from the history of U.S. territories.28 An underappreciated and still unresolved dimension of the decision is the extent to which regulations other than statutes constitute evidence of the nation’s historical tradition of firearm regulation.

This debate arrived at the Supreme Court during oral argument in United States v. Rahimi.29 Solicitor General Elizabeth Prelogar argued that some lower courts, when adjudicating Second Amendment questions after Bruen,have erred in concluding that “the only thing that matters under Bruen is regulation.”30 General Prelogar contended that courts should not “plac[e] dispositive weight on the absence of regulation,” and she called on the Court to “make clear” that Bruen is “not a regulation-only test.”31 The Court has the opportunity in Rahimi to clarify that sources other than statutes constitute evidence of the nation’s historical traditions. But there is a strong possibility that the Court will issue a narrow ruling on the case’s central question,32 which might defer these questions for another day.

This Note embraces General Prelogar’s contention that courts should consider a broader set of sources to draw conclusions about the nation’s historical tradition of firearm regulation. Railroad rules and regulations from the nineteenth century are, in the case of public transportation, where the nation’s historical tradition of firearm regulation resides. Analogizing from the historical record derived from outside statutory lawmaking is consistent with Bruen’s test. For one, much of the historical evidence cited by the Court to establish schools as sensitive places comes not from legislatures but from school administrators.33 These regulations appear nonetheless to be among the Court’s evidence of a historical tradition of firearm regulation in
schools.34

In any event, Bruen acknowledged that “cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach,” since the “regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868.”35 In the case of public transportation, and perhaps other public spaces, a critical change between the relevant historical period and today is the twentieth-century revolution in state capacity that rendered sites which had previously been regulated by quasi-public or private actors36 as sites of purely public ownership and operation.37

This observation has important implications for the constitutionality of regulating public carry after Bruen. It clarifies the permissible bounds of history that litigants and courts can consider when sketching the nation’s historical tradition of firearm regulation. When a state seeks to regulate firearms in a place that is now publicly owned and operated, but which in the eighteenth or nineteenth century was not directly regulated by legislatures, it should consult historical sources other than statute books or local ordinances, which this Note refers to as statutory lawmaking, to search for the historical warrant for its regulation. If those regulations constitute the nation’s historical tradition of firearm regulation at that site, then courts should treat them as such.

Part I of this Note recounts the background legal regime for railroads in the nineteenth century and the manner in which these railroads enacted regulations governing firearm carriage. Part II contends that these regulations evince a historical tradition of firearm regulation, granting states the authority to enact comparable firearm regulations on relevantly similar forms of public transportation.38 Finally, Part III argues that the case study of public transportation provides broader lessons to litigants, judges, and scholars. It points towards a more expansive and historically faithful means of honoring Bruen’s command that judges reason from the nation’s historical tradition of firearm regulation when adjudicating the contours of the Second Amendment right to bear arms. And it may help courts and litigants add coherence to the nascent sensitive-places doctrine. In so doing, this Note is the first expansive scholarly account to argue that certain nonstatutory materials can inform courts’ understanding of the nation’s historical tradition of firearm regulation.39

Though this Note uses trains as a case study, it would be a mistake to view the argument as confined to the public-transportation setting. The Note’s core argument is methodological: it unearths previously overlooked materials and calls on litigants and scholars to incorporate them and similarly situated sources in Second Amendment jurisprudence. Though the Note argues that the historical precursors of present-day public transportation were quasi-public, the Note’s conclusions about methodology apply with equal force to sensitive places with purely private historical analogues. For example, this Note does not study in great depth historical firearm regulations at zoos or casinos, many of which were historically private in operation. But in Part III, it argues that the Note’s central methodological arguments still justify considering private establishments’ historical firearm regulations as part of the nation’s historical tradition of firearm regulation at those sites.

The purpose of this Note is to illuminate how overly circumscribed courts and litigants have been when inquiring into the nation’s historical tradition of firearm regulation. When courts focus only on statutes, they miss important aspects of the eighteenth- and nineteenth-century legal landscape. In the case of trains and perhaps other settings of Second Amendment jurisprudence, statutes are not the only game in town. A panoramic look at the relevant legal sources, which this Note prescribes, can help courts avoid crabbed understandings and focus their application of Second Amendment law on the entirety of this nation’s historical tradition of firearm regulation.