Law Archive of Wyoming Scholarship
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Machine Gun History and Bibliography
No full textThis Article provides an introductory history of machine guns and books about them. First, the Article describes federal machine gun laws and regulations, and related legal resources. Then the Article presents the historical development of machine guns from 1862 to the present, covering the various types of machine guns: heavy, medium, light, general purpose, submachine gun, machine pistol, and assault rifle. The first machine gun to achieve broad commercial success was the Gatling gun, invented during the American Civil War. Although the Gatling had little effect on that war, shortly thereafter the Gatling gun and other manual machine guns started to change warfare. Later, heavy machine guns such as the automatic Maxim gun, and its successor, the Vickers gun, dominated battlefields. Towards the end of World War I, the heavy machine gun was dethroned from its supremacy by the widespread adoption of new, portable light machine guns, which could be used to suppress an enemy machine gun nest while other troops advanced. In the subsequent two decades, especially during World War II, machine guns that were easily portable by a single soldier became much more common, such as the Thompson submachine gun widely used by American and British forces. During the Cold War, the assault rifle, no bigger than an ordinary rifle, became increasingly important. Most influential, almost always for ill, was the Soviet Union’s AK-47 and its progeny. The American counterpart, the M16, proved much less effective in battle, at first due to technical problems, and everlastingly because of its puny bullet. Improvements in metallurgy, manufacturing, and design have improved the quality of infantry machine guns. But a soldier with a machine gun on a battlefield in the third decade of the twenty-first century will likely be using a machine gun of a broad type that was already in widespread use by the 1950s
The National Firearms Act is an Unconstitutional Tax
No full textThe National Firearms Act (NFA) regulates certain firearms (most importantly, short-barreled rifles and suppressors) under the taxing power. The Supreme Court upheld it as such in the 1930s. But those precedents are subject to attack under Heller and Bruen, since the NFA taxes the exercise of constitutional rights the earlier precedents did not recognize—and does so without any historical precedent. Moreover, consideration of rarely considered limitations on the taxing power that the Supreme Court reaffirmed in Sebelius leads to the conclusion that several provisions of the NFA violate the taxing power, independent of any Second Amendment concerns. In sum, the NFA violates the Constitution, in total or in parts
Bruen: The Court\u27s Announcement of the Historical Analogy Test and the Aftermath Thereof
No full textThe United States Supreme Court’s history of analyzing firearms restrictions has seemingly always led to ambiguities and confusion in lower courts. This was especially true after 2008, when the Court decided District of Columbia v. Heller, 554 U.S. 570 (2008). In the years following Heller, lower courts across the country applied different standards to determine the constitutionality of firearms restrictions. The Court granted certiorari in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) to establish the proper test for determining whether a firearm regulation is constitutional. This test is based on U.S. history and tradition rather than varying levels of judicial scrutiny. In the years following Bruen, courts across the country appear to be complying with the rule announced. The rule is not a “regulatory straightjacket,” and jurisdictions are still able to pass a multitude of firearms regulations under the Bruen rule
The Political Question of Public Lands
No full textThe Property Clause of Article IV of the United States Constitution provides: “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Thus, among other things, the Constitution assigns the disposal of federally owned lands to Congress alone. That means the other branches of the federal government, including the courts, have no jurisdiction to exercise this power or to compel Congress to use it. Put another way, when Congress does not dispose of public lands through sale or transfer, that inaction is not subject to executive override or judicial review. The only remedy for Congress’s decision to retain public lands rather than sell them is at the ballot box. In August 2024, Utah attempted to sue the federal government in the Supreme Court of the United States to compel Congress to sell or transfer millions of acres of public lands. While Utah’s quixotic effort failed, this Article treats Utah’s lawsuit as a case study in how states and others will try to circumvent Congress to compel the federal government to divest itself of public lands. It concludes any effort to achieve the forced divestment of public lands outside the law-making process in Congress is unconstitutional
Sunshine Laws Cast a Dark Shadow on Democracy
No full textA group of people keenly aware of government corruption and the consequences of concentrated power created the United States Constitution. Flowing from the Founders’ fear of another King, the U.S. Constitution designed public institutions to be accountable to the people through the separation of powers. While the separation of powers remains the bedrock of American democracy, laws like the Wyoming Public Records Act (Wyoming Sunshine Law) allow for harmful overlaps in government powers. This Article begins by assessing federal legal frameworks for open records requests incorporated in the Freedom of Information Act (FOIA). Next, the Article compares and contrasts Wyoming’s and Colorado’s transparency laws. Finally, the Article argues Wyoming’s Sunshine Law, which allows public officials to set “reasonable” procurement fees, undermines the separation of powers and reduces transparency
The North American Gap Ungulates Must Migrate Physically and Legally: Elk as a Case Study
No full textHumans have tracked elk hoof prints in North America since ancient times, recognizing the significance of these migratory ungulates in culture, mythology, dietary value, and utility. As migratory ungulates, elk respond to changes in their environment by migrating to and from their summer and winter ranges. Today, elk migrations continue across the jurisdictional boundary of the northern United States and southern Canada, spreading ecological and economic benefits with each track they make. Unfortunately, ungulate migration is an “endangered phenomenon” due to loss of connectivity and loss of habitat. While the United States and Canada have acknowledged the importance of, and entered into agreements governing, transboundary issues, there is not an international legal framework for migratory ungulates like elk. Moreover, both the United States and Canada recognize the principle of Free, Prior, and Informed Consent, as reflected in U.S. federal agency policies, and in Canadian constitutional provisions, statutes, and agreements with First Nations. Furthermore, both countries are integrating Indigenous Peoples and their knowledge into transboundary water management contexts, but have yet to fully realize the value of this inclusive approach in transboundary wildlife management. To address this regulatory gap, the United States, Canada, Native American Tribes, and First Nations should establish a governing body for wildlife management. The uniquely positioned Tribes and First Nations along the border should be included because of their historical connection to elk and the knowledge they have acquired over thousands of years. The inclusion of Indigenous Peoples in transboundary water agreements has proven successful. Building on those principles, ungulates—like water—move across borders, and Indigenous Peoples possess unique knowledge that should be incorporated into any agreements concerning these animals as well. This proposed structure will help ensure the lasting conservation of elk for future generations
The Tradition of Short-Barreled Rifle Use and Regulation in America
No full textShort-barreled rifles are strictly regulated under the federal National Firearms Act of 1934 (NFA) and banned by five states. These regulations, however, cannot survive the Supreme Court’s test for Second Amendment challenges set forth in New York State Rifle & Pistol Ass’n v. Bruen. Under Bruen, modern firearm regulations are constitutional only if they are consistent with America’s historical tradition of firearm regulation. This Article explains that neither the NFA’s tax and registration requirements nor states’ prohibitions on short-barreled rifles are historically justified. Rifles with short barrels and pistols with shoulder stocks were considered ordinary arms throughout American history and never singled out for regulation until the 20th century. No one argued when the NFA was enacted that short-barreled rifles were exceptionally dangerous weapons or disproportionately used in crime. Rather, Congress initially intended to include handguns in the NFA and added short-barreled rifles to prevent citizens from circumventing the handgun restriction by carrying short-barreled rifles instead. The state bans on short-barreled rifles were enacted only after they had been singled out by the NFA. But the historical tradition of short-barreled rifle use and regulation examined in this Article make clear that these restrictions are unconstitutional under Bruen
Legislating Morality: The Historical Consequences of The Mann Act on the American Public
No full textThe Mann Act, officially titled the “White Slave Traffic Act of June 25 1910,” was a product of a time of immense social, ethnic, and political change. The Mann Act was presented as the solution to “white slavery”— an imagined crisis where white-American girls were forced into prostitution. This crisis was attributed to the influx of traditionally “othered” ethnic groups, which shocked the nation and prompted sweeping action by politicians to protect white-American values and culture in the name of stopping forced prostitution. In addition to perceived threats to American values, fears of immigrant power as a voting block and the importation of their cultures was a major driving force behind the Mann Act’s passage. Nativist groups propelled Federal legislators to craft the Mann Act in the broadest possible language to prosecute all ethnic “others.” The Mann Act’s early success in pursuit of that objective stemmed from its careful drafting, which strategically relied on Commerce Clause arguments and language tailored to withstand judicial scrutiny, addressing concerns raised by prior challenges to immigration law. The result of such profound backlash against ethnic others and claimed “immoral acts” culminated in the most successful nationally implemented anti-immigration and anti-immorality act of the period. Immigrants and ethnic minorities faced a crusade against their very existence and the livelihoods they made on the periphery of society for the sake of protecting the exceptional yet delicate American culture. This Comment will present several topics through which the forces behind the Mann Act may be investigated. The goal of this Comment is to understand patterns of legal history observable today through a lens of law and morality enacted over 100 years ago
The Counter-Militia Second Amendment
No full textDespite their many disagreements about how to interpret it, courts and commentators agree the Second Amendment of the United States Constitution favors the militia. Some think the Second Amendment protects an individual right to keep and bear arms so citizens can better defend themselves and their country. Others think the right pertains only to active service in a militia that has been called into public service. But what if they all got it backwards? What if the Second Amendment, instead of empowering the militia, aims to check and balance it? On this countermilitia reading, the Second Amendment begins by apologizing for, “a well regulated Militia being, necessary to the security of a free State,” and concludes by promising, as a remedy for the dangers of wayward militias, “the right of the people to keep and bear Arms, shall not be infringed.” Though a mirror image of the usual approach, the counter-militia interpretation hews to a straightforward reading of the text and better accords with the Constitution’s structure. The counter-militia interpretation finds support in originalism, too, because it comports with the view, popular among those who ratified the Bill of Rights, that disciplined bodies of armed men cannot be trusted to respect individual liberties. It likewise agrees with the widespread belief, founded on the bitter experience of ex-slaves and inspiring ratification of the 14th Amendment, that badly regulated militias imperil fundamental human rights. Precedent, however, says nothing about the counter-militia Second Amendment. No courts and almost no commentators have considered this alternative to the usual interpretation, much less put it to use. Embracing the counter-militia Second Amendment might have a bracing effect on firearms law in the United States, requiring the right to keep and bear arms reach far enough to ensure a capable defense against militias gone wrong. Application of the counter-militia Second Amendment against state governments, via incorporation, would have a similar effect. Whether that would represent sage public policy or reflect contemporary public opinion goes unanswered here. This Article offers the counter-militia Second Amendment as the best interpretation of the constitutional text, not as the most familiar or comforting one
From Bitcoin to Courtrooms: The Evolution of Blockchain Technology and its Applications
No full textBlockchain’s tamper-proof, distributed, and decentralized design has gained popularity during a period of rising cybercrime and data vulnerability. People revere blockchain for its potential to revolutionize various industries and criticize it for its association with unethical and illicit activities. Despite challenges and misconceptions surrounding its prior uses, blockchain technology has continued progressing—offering promising solutions for enhancing data security, transparency, and accountability. This Comment examines the evolution of blockchain technology, its applications, and how it can improve efficiency and enhance public trust in the judicial system. After outlining blockchain technology’s modest beginnings, this Comment theorizes several applications for blockchain in the legal system and identifies several potential obstacles to their implementation. This Comment also discusses the ways Wyoming is leading the way in blockchain legislation. While challenges remain, the continued development of blockchain offers a transformative opportunity to foster improved trust, security, and efficiency in judicial processes