Cross-posted on The Atlantic
Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.
Claims that “may issue” regulations are unconstitutional have been rejected by most federal appellate courts—that is, until last year, when a court in California broke ranks and struck down San Diego’s public-carry regulation. This year, a court did the same with the District of Columbia’s rewritten handgun ordinance. Both decisions face further review from appellate courts, and perhaps also by the Supreme Court. If the justices buy this expansive view of the Second Amendment, laws in states such as New York, New Jersey, Rhode Island, Massachusetts, and Hawaii with the strictest public carry regulations—and some of the lowest rates of gun homicide—will be voided as unconstitutional.
Public-carry advocates like to cite historical court opinions to support their constitutional vision, but those opinions are, to put it mildly, highly problematic. The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor. By focusing only on sympathetic precedent, and ignoring the national picture, gun-rights advocates find themselves venerating a moment at which slavery, honor, violence, and the public carrying of weapons were intertwined.
The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.
As early as 1840, antebellum historian Richard Hildreth observed that violence was frequently employed in the South both to subordinate slaves and to intimidate abolitionists. In the South, violence also was an approved way to avenge perceived insults to manhood and personal status. According to Hildreth, duels “appear but once an age” in the North, but “are of frequent and almost daily occurrence at the [S]outh.” Southern men thus carried weapons both “as a protection against the slaves” and also to be prepared for “quarrels between freemen.” Two of the most feared public-carry weapons in pre-Civil War America, the “Arkansas toothpick” and “Bowie knife,” were forged from this Southern heritage.
The slave South’s enthusiasm for public carry influenced its legal culture. During the antebellum years, many viewed carrying a concealed weapon as dastardly and dishonorable—a striking contrast with the values of the modern gun-rights movement. In an 1850 opinion, the Louisiana Supreme Court explained that carrying a concealed weapon gave men “secret advantages” and led to “unmanly assassinations,” while open carry “place[d] men upon an equality” and “incite[d] men to a manly and noble defence of themselves.” Some Southern legislatures, accordingly, passed laws permitting open carry but punishing concealment. Southern courts followed their lead, proclaiming a robust right to open carry, but opposing concealed carry, which they deemed unmanly and not constitutionally protected. It is this family of Southern cases that gun-rights advocates would like modern courts to rely on to strike down popularly enacted gun regulations today.
But no similar record of court cases exists for the pre-Civil War North. New research produced in response to Heller has revealed a history of gun regulation outside the South that has gone largely unexplored by judges and legal scholars writing about the Second Amendment during the last 30 years. This history reveals strong support for strict regulation of carrying arms in public.
In the North, publicly carrying concealable weapons was much less popular than in the South. In 1845, New York jurist William Jay contrasted “those portions of our country where it is supposed essential to personal safety to go armed with pistols and bowie-knives” with the “north and east, where we are unprovided with such facilities for taking life.” Indeed, public-carry restrictions were embraced across the region. In 1836, the respected Massachusetts jurist Peter Oxenbridge Thacher instructed a jury that in Massachusetts “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.” Judge Thacher’s charge was celebrated in the contemporary press as “sensible,” “practical,” and “sage.” Massachusetts was not unusual in broadly restricting public carry. Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and Pennsylvania passed laws modeled on the public-carry restriction in Massachusetts.
This legal scheme of restricting public carry, it turns out, was not new. Rather, it was rooted in a longstanding tradition of regulating armed travel that dated back to 14th-century England. The English Statute of Northampton prohibited traveling armed “by night [or] by day, in [f]airs, [m]arkets, … the presence of the [j]ustices or other [m]inisters” or any “part elsewhere.” Early legal commentators in America noted that this English restriction was incorporated into colonial law. As early as 1682, for example, New Jersey constables pledged to arrest any person who “shall ride or go arm’d offensively.” To be sure, there were circumstances where traveling armed was permitted, such as going to muster as part of one’s militia service or hunting in select areas, but the right of states and localities to regulate the public carrying of firearms, particularly in populated places, was undeniable.
Today, Americans disagree about the best way to enhance public safety and reduce crime, and that disagreement is voiced in legislatures across the nation. Throughout most of the country and over most of its history, the Second Amendment has not determined the outcome of this debate nor stood in the way of popular public-carry regulations. Then, as now, such regulations were evaluated based on the impact they would have on crime and public safety. At the end of this deadly summer, the debate rages on over how best to balance public safety against the interests of people who wish to “pack heat.” If elected officials decide to restrict the right to carry to those persons who can demonstrate a clear need for a gun, present-day judges should not intervene on the basis of opinions about the right to bear arms from the slave South and its unique culture of violence.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.