Judge Bumb continued: And while the Supreme Court recognized that some modern-day regulations may have been unimaginable at the time of our Nation’s Founding, that still does not excuse the duty of this Court to engage in a historical inquiry that involves reasoning by analogy. Bruen, 142 S. Ct. at 2132 (“Much like we use history to determine which modern ‘arms’ are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge.”). A “proper analogue for a distinctly modern regulation requires a determination of whether the two regulations are ‘relevantly similar.’” Id.
Defendants concede that the fact that restrictions in motor vehicles “logically could not have existed prior to the popularization of automobiles is hardly a problem.” [State’s Br. at 33.] Moreover, the laws and the courts interpreting such laws that Defendants cite to as historical evidence of prohibition of concealed weapons in transportation do not stand for that proposition. Defendants’ citations to Reconstruction analogues for the proposition that states restricted carrying a concealed firearm in very narrow exceptions fail. First, the Arkansas legislation expressly permitted the conceal carry “upon a journey.” Ark. Rev. Stat. Art. I § 13, pg. 280 (1838) (“Every person who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty.”) [Docket No. 20, Ex. 18.] Moreover, the Alabama statute, 1839 Ala. Acts no. 77, says nothing about the restriction on the transportation of firearms, but rather was enacted solely “to suppress the evil practice of carrying weapons secretly,” an issue not relevant here. [Id., Ex. 19.]
The 1839 Alabama statute prohibited the concealed carry of firearms. Modern statutes tend to criminalize the brandishing of firearms.
