The Supreme Court’s overturning of New York’s law regulating gun possession in New York State Rifle and Pistol Association v. Bruen would have attracted more attention had it not come during the same week that Roe v. Wade was overturned. I though it might be useful to look at the Reconstruction Era roots of modern gun regulation.
The New York State law that fell was not a new innovation, it was passed in 1906 and amended over the years. Justice Clarence Thomas, writing for the majority, said that the law had violated the First and Fourteenth amendments for 116 years. New York’s regulation allowing the public carry of guns only to people demonstrating a “special need” was the fatal flaw in the statute, according to Thomas. The court ruled that the:
government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” [p.8]
Thomas wrote that the Court examined the way states dealt with gun regulation both immediately before and after the adoption of the Second Amendment, and throughout the 19th Century, to see if New York’s law followed what Thomas called the “history and tradition” of gun restrictions. In a friend of the court brief, historian Patrick Charles submitted a list of examples of mid- to late-19th Century gun control laws which seemed to show a long history of gun regulation. I want to look at some of those laws.
Many of the laws were passed in the South during Reconstruction when political and racist violence was prevalent. Other laws were passed in the Western states in an attempt to reduce the violence of the Wild West. Here is a municipal ordinance from Arkansas City, Kansas:
[City Ordinances], undated, reprinted in ARKANSAS
VALLEY DEMOCRAT, Aug. 8, 1879, at 3 (Arkansas City,
Kansas).
Article 2, Section 2: No person shall in this City,
wear on or about his person any pistol, revolver or any
other dangerous or deadly weapon, except by special
permission from the Mayor, and whoever shall violate
this section shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be fined not less than
five nor more than ten dollars. Provided however that
this section shall not be construed as to prevent any
United States, State, County or City officer from carrying such weapons as may be necessary in the proper discharge of his duties.
The next is from Nashville, Tennessee:
Ordinance No. 29: Concerning the Carrying of Concealed Weapons, Mar. 24, 1880, reprinted in THE NASHVILLE JOURNAL, Mar. 26, 1880, at 4 (Nashville, Illinois).
Section 1: That it shall be unlawful for any person to wear[ ] or carry under his clothes, or concealed
about his person, or in a threatening manner display
any pistol, slung-shot, cross knuckles of lead, brass or
other metal, bowie knife, dirk or dagger, or any knife
resembling a bowie knife, or any other dangerous, or
deadly weapon, instrument or thing within the limits
of the city of Nashville.
Any one violating the provision of this section
shall forf[e]it and pay to the city of Nashville a sum
not less than 20.00 nor more than $200 and costs of
suit for each offence.
Section 2: Provided that nothing in the proceeding section shall be construed so as to prohibit any
United States, State, County or City Officer from carrying and wearing such weapons as may be necessary
in the proper discharge of his duty, or any person aiding in the apprehension of supposed criminals. Provided however that such person have a written permit,
signed by the Mayor and City Clerk, and provided, also
that the Mayor may issue written permits to such
App. 21
persons as in his judgement he may think necessary
for safety and protection to carry such arms revocable
at the pleasure of the Mayor. The same however to be
signed by the Mayor and City Clerk, for which permit
the person applying for the same shall pay to the City
Clerk the sum of fifty cents for his own use. Permits to
be good one year from the date unless sooner revoked
by the Mayor.
Here is a Texas law from the Reconstruction period:
An Act Regulating the Right to Keep and Bear Arms,
Aug. 12, 1870, reprinted in 2 GEORGE W. PASCHAL, A
DIGEST OF THE LAWS OF TEXAS: CONTAINING THE LAWS
IN FORCE, AND THE REPEALED LAWS ON WHICH RIGHTS
REST FROM 1864 TO 1872, at 1322 (1873) (Texas).
Section 1: If any person shall go into any church
or religious assembly, any school-room or other place
where persons assembled for educational, literary, or
scientific purposes, or into a ball room, social party, or
other social gathering, composed of ladies and gentlemen, or to any election precinct on the day or days of
any election, where any portion of the people of this
state are collected to vote at any election, or to any
other place where people may be assembled to muster
or to perform any other public duty, or any other public
assembly, and shall have about his person a bowieknife, dirk, or butcher-knife, or firearms, whether known
as a six-shooter, gun, or pistol of any kind, such persons
so offending shall be deemed guilty of a misdemeanor,
and on conviction thereof shall be fined in a sum not
less than fifty or more than five hundred dollars, at the
discretion of the court or jury trying the same: Provided, That nothing contained in this section shall apply to locations subject to Indian depredations: And
provided further, That this act shall not apply to any
person or persons whose duty it is to bear arms on such
occasions in discharge of duties imposed by law.
This one is from Lebanon, Tennessee:
Chapter XX: Misdemeanors, undated, reprinted in A
COMPILATION OF THE LAWS AND ORDINANCES OF THE CORPORATION OF LEBANON 52, 56-57 (R.E. Thompson ed.,
1871) (Lebanon, Tennessee).
Section 23: Whoever shall carry concealed upon
or about his person any pistol, Bowie knife, dirk, sword
cane or other dangerous weapon, within the limits of
the Corporation, unless on a journey or permitted by
law to carry weapons, shall be deemed guilty of a misdemeanor, and fined not less than three dollars nor
more than fifty dollars for each offence.
This one is from Nashville, Tennessee:
Chapter 108: Carrying Pistols, Bowie-Knives, Etc.,
Dec. 26, 1873, reprinted in ORDINANCES OF THE CITY OF
NASHVILLE 340-41 (William K. McAlister, Jr. ed., 1881)
(Nashville, Tennessee).
Section 1: That every person found carrying a
pistol, bowie-knife, dirk-knife, slung-shot, brass knucks
or other deadly weapon, shall be deemed guilty of a
misdemeanor, and, upon conviction of such first offense, shall be fined from ten to fifty dollars, at the discretion of the court, but upon conviction of every such
subsequent offense, shall be fined fifty dollars;
St. Louis, Missouri’s 1881 law:
Article II: Offenses Against Public Morals and Decency, undated, reprinted in THE REVISED ORDINANCE
OF THE CITY OF ST. LOUIS 608, 611-12 (M.J. Sullivan ed.,
1881) (St. Louis, Missouri).
Section 8: Hereafter it shall not be lawful for any
person to wear under his clothes, or concealed about
his person, any pistol or revolver, colt, billy, slung shot,
cross knuckles, or knuckles of lead, brass or other
metal, bowie knife, razor, dirk knife, dirk, dagger, or
any knife resembling a bowie knife, or any other dangerous or deadly weapon, within the city of St. Louis,
without written permission from the mayor; and any
person who shall violate this section shall be deemed
guilty of a misdemeanor, and upon conviction thereof,
be fined not less than ten nor more than five hundred
dollars for each and every offense.
Section 9: Nothing in the preceding section shall
be so construed as to prevent any United States, State,
county or city officer, or any member of the city government, from carrying or wearing such weapons as may
be necessary in the proper discharge of his duties.
Wheeling, West Virginia adopted this ordinance
Offenses, Apr. 12, 1881, reprinted in LAWS AND ORDINANCES FOR THE GOVERNMENT OF THE CITY OF WHEELING, WEST VIRGINIA 204, 206 (1891) (Wheeling, West
Virginia).
Section 14: It shall be unlawful for any person to
carry any slung shot, colt, or knucklers of lead, brass
or other metal or material, or to carry about his person,
hid from common observation, any pistol, dirk, bowie
knife, or weapon of the like kind, without a permit in
writing from the mayor so to do. It shall also be unlawful for any person or persons to sell or give away to a
person not of age, any slung shot, colt, or knuckler or
knucklers of lead, brass or other metal or material, or
any pistol, dirk, bowie knife or weapon of the like kind
The South and West were not the only places that gun regulation took place. Brooklyn, New York, then a separate city from New York City, passed this law:
Pistols—Carrying Of: Ordinance to Regulate the Carrying of Pistols, Oct. 25, 1880, reprinted in THE BROOKLYN DAILY EAGLE, Oct. 26, 1880, at 1 (Brooklyn, New
York).
Section 1: Every person, except those authorized
by law to make arrests, and persons to whom permits
shall have been issued, as hereinafter provided, who
shall have in his possession, within the City of Brooklyn a pistol of any description, concealed on his person,
shall be punished, on conviction, by a fine not exceeding ten dollars, or, in default of payment of such fine,
by imprisonment not exceeding ten days.
Section 2: Any person twenty one years of age
and over, except as provided in Section 1 of this ordinance, who has occasion to carry a pistol for his protection, may apply to the officer in command of the station
house of the precinct where he resides, and such officer,
if satisfied that the applicant is a proper and law abiding person, shall give said person a recommendation to
the Superintendent of Police, or, in the absence of the
superintendent, to the inspector in command at the
App. 22
central office, who may issue a permit, if approved by
the Commissioners of Police and Excise, to the said
person, allowing him to carry a pistol of any description.
Section 3: Any non-resident, who does business
in the City of Brooklyn, and has occasion to carry a pistol while in said city, must make application for permission to do so to the officer in command of the station
house of the precinct in which he does business, in the
same manner as is required by residents of said city,
and shall be subject to the same conditions and restriction.
Section 4: The Commissioner of Police and Excise is hereby authorized and empowered, for reasons
appearing to be satisfactory to him, to annul or revoke
any permit given under this ordinance. All persons to
whom such permission shall be given are hereby declared to be individually responsible for their own acts
or the consequences that may arise from the use of pistols carried under the permission to be obtained, as
provided in this ordinance.
Section 5: If, at the time of the arrest of any person, a pistol of any description shall be found concealed
on the person so arrested, without the necessary permit to carry the same, the officer making the arrest
shall state such fact to the police magistrate before
whom the prisoner is brought, and shall make a separate complaint (in addition to the complaint under
which the arrest is made) against such prisoner for violation of this ordinance.
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This article takes a deep dive into the topic of gun regulation, with focus drawn to the historical context of these laws. For example, many of these regulations were implemented during the Reconstruction period in the South and in the Wild West to control rampant violence.
It’s curious to think that the Supreme Court’s ruling against New York’s gun possession law is not an isolated event, but rather part of a larger, ongoing narrative of constitutionality and public safety. In this case, New York’s law was deemed to have violated the First and Fourteenth amendments.
Interestingly, the laws quoted from mid to late 19th century highlight a common blueprint: prohibiting the public carry of deadly weapons, with exceptions for those in law enforcement and those with special permits. It seems this pattern has been present for over a century, hinting at a long-standing tradition of gun regulation.
In the end, the Supreme Court’s decision has the potential to significantly impact the landscape of gun control moving forward. As we engage in conversations about these regulations, it’s pivotal to take into account their deep-seated historical context. Only then can we hope to navigate this complex issue with an understanding of both its past and implications for the future. – Julius