Slavery and the Right to Bear Arms

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Photo by Peretz Partensky via Flickr

In an apparent gain for Second Amendment activists, the District of Columbia Federal Appeals court last week rejected the District government’s efforts to restrict the right to carry a firearm, ruling that handgun-carry licenses must be issued to D.C. residents under the same regulations for carry permits issued in other states.

But according to one legal historian, the decision rested on a distorted view of both U.S. legal tradition and common law.

In a column for the legal blog Take Care, historian Saul Cornell of Fordham University writes that the court’s decision in Wrenn v. District of Columbia is “riddled with errors,” and was justified by a “highly selective culling of historical evidence”– notably, a series of cases from the antebellum south, where the “permissive vision of a broad right to carry” was reified over time by pro-slavery judges.

In fact, the only non-southern case cited in Wren was Thompkins v. Johnson, and it pertains to fugitive slave law. In that case, the court decided in favor of the right to travel armed because “the law of the land recognizes the right of one man to hold another in bondage, and that right must be protected.”

Saul Cornell. Photo courtesy Wikipedia

According to Cornell, U.S. courts have historically favored limitations on the public right to travel armed, and the idea that any restrictions on that right are incompatible with the Second Amendment is a “modern invention.”

“The permissive Southern view that Wrenn takes as normative was always a minority tradition in America, at least until recently,” Cornell writes.

“Outside of the South, with a few exceptions, Anglo-American law favored a narrowly tailored right to carry firearms that was limited to a range of long standing exceptions to the general prohibition on traveling armed in public.”

This summary was prepared by Victoria Mckenzie, deputy editor of The Crime Report. Readers’ comments are welcome.

6 thoughts on “Slavery and the Right to Bear Arms

  1. The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”

  2. In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

  3. The author of this essay skips over a significant legal event occurring in the last quarter of the 18th century; i.e., the American Revolution. At that point, Americans took hold of their legal traditions and reconceived them to suit their contemporary circumstances. “. . . Americans were better armed than their English brethren and the number of contextual exceptions to the general ban on armed travel would have been greater in the New World because circumstances were different . . . ” The author seems to be aware of these facts.

    The English Parliament had the power to regulate “by law” the keeping and bearing of arms by the king’s subjects. Conversely, liberty as conceived of by Americans, was vested in the people who could delegate certain powers to Congress; such powers so delegated did not disparage unalienable rights. In the 2A, the citizens made clear that “the right” to “keep and bear arms” was not to be “infringed”. We can – and should – debate what – precisely – that “right” might be; and, to what extent it might be regulated without “infringing”.

    The author concedes that “. . . the number of contextual exceptions to the general ban on armed travel would have been greater in the New World . . . ” Possibly, that number might be incredibly large.

    In any case, the entire matter was taken-up afresh during the period of Reconstruction. The Republicans, in power at the time, saw fit to propose the 14’th Amendment in significant part to guarantee that freedmen’s right to keep and bear arms (to defend themselves from the KKK) would not be infringed by the several States. “[C]ircumstances were different” during Reconstruction.

    By 1970, “circumstances were different” again, due to the Civil Rights movement. By 1990, circumstances were different again due to the crack epidemic (among other influences). Today, a law-abiding Black has far more to fear from a delinquent Black than from a Klansman.

    The more things change, the more they stay the same. Consider the plight of a vulnerable (adult) returning to her home at dusk in the 18’th, 19’th, 20’th or 21’st centuries. Does she have a “right” to “bear arms” in defense of her life from dangerous fauna or highwaymen? We need not consider a suitcase nuke here. Does she have the right to carry a pistol capable of holding 1 or 2 rounds at a time? Or, did we the People Constitutionally deprive her of that unalienable right when ratifying the 14th or 2nd Amendments? How does a careful parsing of 16th century Parliamentary or English common law illuminate the solemn act of we the American people at the dawn of the 18th century and again some 75 or so years later?

  4. In the north you didn’t see those decisions because laws hadn’t been passed to prohibit going about armed in most places until the 20th century. (In Vermont it was almost immediately overturned on Constitutional grounds — they’ve had permit-free “Constitutional Carry” for about a century.)

    Where there were restrictions on concealed carry they were typically upheld by citing the fact that open-carry remained legal — and thus the restriction limited only the means by which the right could be exercised but didn’t infringe the right itself.

  5. Repeating the lie doesn’t make it true.

    The documentation of the public understanding of the right to go armed is abundant, and one must torture history to “refute” it.

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