A Surety Was Never a Gun Seizure

After Rahimi, prosecutors wave the surety laws around like a confiscation warrant. Read the American statutes the Supreme Court actually relies on. A complaint. A hearing. A bond. A self-defense exception. Not one of them took the gun.

The right to bear arms was the default. A surety was a narrow exception, aimed at one man, after a hearing. It did not license disarmament.

The Tradition Is American

Start where the Court starts. Massachusetts Revised Statutes chapter 134, section 16 (1836). A man who went armed "without reasonable cause to fear an assualt [sic] or other injury, or violence to his person, or to his family or property" could, "on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months."[1]

Bruen counted the copies: "Between 1838 and 1871, nine other jurisdictions adopted variants of the Massachusetts law." Footnote 23 names them: the Wisconsin Territory, Maine, Michigan, Virginia, the Minnesota Territory, the Oregon Territory, the District of Columbia, Pennsylvania, and West Virginia.[2] (The text says 1871. The latest law it lists is from 1868.)

That makes ten American jurisdictions, 1836 to 1868. Every one of the ten texts, checked against page scans, has the same core:[3]

A bond to keep the peace. You pledged money. You kept your arms.
A self-defense exception. If you had reasonable cause to fear an assault, the law did not reach you.
No seizure of arms. None of the ten takes or forfeits a gun.

And the process came first. The Supreme Court describes it: "The magistrate would take evidence, and—if he determined that cause existed for the charge—summon the accused, who could respond to the allegations."[4]

That is the tradition. A specific accusation, a hearing, a bond, and the man walks out armed.

Not an Outlier. The Court Said So.

Bruen reserves "outlier" for other laws: an 1860 New Mexico statute, the Texas statute and cases, and "a handful of temporary territorial laws."[5] It never calls the surety statutes outliers. It discounts them because their burden was "likely too insignificant" to justify New York's law, and because "respondents offer little evidence that authorities ever enforced surety laws."[6]

Rahimi calls the surety laws "[w]ell entrenched in the common law," and says of the Massachusetts going-armed provision: "[a]t least nine other jurisdictions did the same."[7]

So when a prosecutor says the surety tradition is real, agree. Then make him read it.

We Were Not a Country in 1692

The government likes to reach back further, to a Province law passed under William and Mary. The 1692 act let a justice jail a man who went armed offensively until he found sureties, and also "seize and take away his Armour or Weapons," forfeited to the Crown.[8]

That is a colonial power. The new country threw it out.

In 1795 the Commonwealth of Massachusetts repealed the 1692 act, declaring it "wholly null and void," and re-enacted the going-armed arrest without the power to seize a man's arms and forfeit them to the King. The justice could still demand sureties.[9]

Anyone citing 1692 as what America allows is citing a law this country repealed.

The 1787 act after Shays' Rebellion, a pardon condition for men who had been in arms against the state, still provided that surrendered arms be held so they could be returned after three years, and only if the man had complied with the act's conditions and the Governor ordered them returned.[10]

Six Months Was Massachusetts, Not America

Now the correction our own side needs.

The 1795 act states no term. A man who could not find sureties could be held until he did. The six-month cap first appears in 1836, in section 16.[1][9] It is not founding-era.

It is not the national rule either. Rahimi says "[b]onds could not be required for more than six months at a time," citing section 16.[11] That accurately describes Massachusetts. It does not describe all ten:

Six months: Massachusetts, Wisconsin Territory, Michigan, Minnesota Territory, Oregon Territory, D.C.
One year: Maine ("not exceeding one year").
Twelve months: Virginia.
Until the next court sessions: Pennsylvania.
No term stated: West Virginia's section 8.[3]

Six of ten. Virginia and West Virginia also dropped the requirement that a fearful neighbor complain first.[12]

Say "every one of the ten was a bond with a self-defense exception and no seizure." Do not say "the tradition capped it at six months." The other side will check. It is the difference between a defender and a slogan.

Check the scan. The Duke Repository of Historical Gun Laws is a useful index, and its transcription of Maine's 1840 surety law says "six months."[13] Two separate scans of the original statute, Me. Rev. Stat. ch. 169, § 16, p. 709, read "not exceeding one year."[14] Any database can carry a typo. Before a term, a date, or a quotation goes in a brief, open the page image.

Both Truths, Straight

Justice Thomas is right about what these laws did: "After providing sureties, a person kept possession of all his firearms." They "preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right."[15]

The majority still used these laws to uphold a temporary disarmament. "[T]he surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed."[16] And it leaned on time: "like surety bonds of limited duration," the restriction "was temporary as applied to Rahimi."[17]

Justice Gorsuch marked the line: "We do not resolve whether the government may disarm an individual permanently."[18]

Now watch the misuse. That reasoning gets cited for restrictions with no hearing, no finding about the man, no end date, and no self-defense exception. That is not this tradition. That is the government hoping nobody reads the statute.

How to Argue It

Concede the tradition. Fight on its terms.

Measure the restriction against section 16: complaint, hearing, bond, limited term, self-defense exception, no seizure. Where one is missing, say so. Cite the term of the statute you rely on, not "six months" across the board. Cite the scan, not the transcription.

Hold the courts to their own words. Massachusetts calls it a "license to carry." You can't license a right. And even the Massachusetts Supreme Judicial Court, which used these laws to uphold that license requirement for nonresidents against a facial challenge in Commonwealth v. Marquis, admitted the analogy rests on "individualized evidence of risk," and that "[s]ubjective, impressionistic judgments of 'unsuitability' are thereby proscribed."[19]

Laws that disarmed whole groups of people are a separate, open-ended line of history, not this one. If the government raises them, make it own that line by name.

Hamilton said it in Federalist No. 78: "No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm . . . that the servant is above his master."[20] You can't license a right, and the servant doesn't get to license his master.

From 1795 on, the American answer to a man who frightened his neighbors was a hearing and a bond. It was never an open-ended order taking his gun.

This article is general commentary on legal history. It is not legal advice and does not create an attorney-client relationship. If you face a charge or a firearm restriction, talk to a licensed attorney in your jurisdiction.

Notes

Mass. Rev. Stat. ch. 134, § 16, p. 750 (1836) ("assualt [sic]" in the original), archive.org scan.
N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), slip op. at 47–48 & n.23, supremecourt.gov.
The ten statutes: Mass. Rev. Stat. ch. 134, § 16 (1836); Stat. of the Terr. of Wis. p. 381, § 16 (1838–39); Me. Rev. Stat. ch. 169, § 16, p. 709 (1840) (see note 14); Mich. Rev. Stat. ch. 162, § 16, p. 692 (1846); 1847 Va. Acts ch. 14, § 16, p. 129; Terr. of Minn. Rev. Stat. ch. 112, § 18, p. 528 (1851); Stat. of Oregon ch. 16, § 17, p. 220 (1853–54); D.C. Rev. Code ch. 141, § 16, p. 570 (1857); Act of Mar. 31, 1860, § 6, 1860 Pa. Laws 432 (text checked in Purdon's Digest 250 (1862)); W. Va. Code ch. 153, § 8, p. 703 (1868) (text checked in the 1870 printing). Statutes without a public scan linked here were checked on page scans filed as exhibits in Koons v. Platkin, No. 1:22-cv-07464 (D.N.J.), ECF Nos. 90-3, 90-4, 90-15, 90-18, 90-19, 90-20.
United States v. Rahimi, 602 U.S. 680 (2024), slip op. at 12 (citing Mass. Rev. Stat. ch. 134, §§ 3–4), supremecourt.gov.
Bruen, slip op. at 46 n.22 (New Mexico 1860 "an outlier statute"); id. at 57 (Texas "outliers"); id. at 59 (territorial laws); id. at 62 ("a few late-19th-century outlier jurisdictions").
Bruen, slip op. at 49–50 & n.25.
Rahimi, slip op. at 10–12 (citing Bruen and n.23).
Province Laws 1692–93, ch. 18, § 6, in 1 Acts and Resolves of the Province of the Massachusetts Bay 52–53 (1869), archive.org scan.
Mass. Acts 1794, ch. 26 (passed Jan. 29, 1795), in Acts and Resolves of Massachusetts 1794–95, at 66–67 (1896 reprint), archive.org scan. The act repeals the 1692 act, contains no seizure clause, and states no term for the sureties.
Mass. Acts 1786, ch. 56 (Jan. Sess. ch. 6), in Acts and Resolves of Massachusetts 1786–87, at 176–78, archive.org scan, p. 178. Return was conditioned on compliance with the act and a re-delivery order from the Governor.
Rahimi, slip op. at 12.
Bruen, slip op. at 48 n.24 (citing 1847 Va. Acts ch. 14, § 16, and W. Va. Code ch. 153, § 8 (1868)).
Duke Repository of Historical Gun Laws, 1841 Me. Laws 709, ch. 169, § 16.
Me. Rev. Stat. ch. 169, § 16, p. 709 (1840) (published 1841), archive.org scan; see also Koons v. Platkin, No. 1:22-cv-07464 (D.N.J.), ECF No. 90-14 (second scan).
Rahimi, slip op. at 18, 20 (Thomas, J., dissenting).
Rahimi, slip op. at 13.
Rahimi, slip op. at 14.
Rahimi, slip op. at 6 (Gorsuch, J., concurring).
Commonwealth v. Marquis, 495 Mass. 434 (2025), slip op. at 3 n.1, 39–40 (SJC-13562, Mar. 11, 2025). The Mass. Reports pin page has not been checked; slip-opinion pins are given.
The Federalist No. 78 (Alexander Hamilton), Avalon Project, Yale Law School.