In 1328, the English Statute of Northampton began a tradition of prohibiting armed travel through fairs, markets, and other populated areas.41 Others have explored the evolution of this prohibition in England.42 What is important for this Essay is that several early American states expressly incorporated versions of the Statute of Northampton into their laws.43 In those states, constables, magistrates, or justices of the peace had the authority to arrest anyone who traveled armed contrary to prohibitions derived from the Statute of Northampton. As a North Carolina jurist, James Davis, put it in 1774: Justices of the Peace, upon their own View, or upon Complaint, may apprehend any Person who shall go or ride armed with unusual and offensive weapons, in an Affray, or among any great Concourse of the People, or who shall appear, so armed, before the King’s Justices sitting in Court.44 These types of restrictions on the right to bear arms were widely considered permissible at the Founding.45 In other words, the act of traveling armed in a populated place was sufficient under common law to constitute the offense.
As historian Nicole Etcheson observes, “forty-four percent of Hoosiers” in 1850 were immigrants from the South.
Most regions, and parts of the South itself, were amenable to substantial restrictions on public carry rights in the interest of public safety, restrictions that were reflected in statutes, the press, grand jury charges, and Reconstruction-era opinions such as Duke. 2012) (striking down a total ban on public carry without ruling on the constitutionality of less restrictive “good cause” policies like San Diego’s).
In recent years, courts have been asked to strike down public carry restrictions on the basis of the original understanding of the Second Amendment.
If Nunn and similar cases were the product of a unique regional culture during a unique period in the nation’s development, quite removed from the Founding era (and the Reconstruction era),11 they do not provide a solid foundation for a contemporary interpretation of the Second Amendment.12 This Essay begins to address these questions.13 First, it draws on the broad body of historical research into the distinctive culture of slavery and honor in the antebellum South that contributed to both arms carrying and violence.14 This culture also influenced jurisprudence throughout the region, including the opinions of Chief Justice Joseph Henry Lumpkin, the author of Nunn.
Second, we contrast Nunn’s view of the right to bear arms outside the home with a separate historical tradition, dominant outside the South, which was less enthusiastic about public carry and more tolerant of broad regulation of the public bearing of arms.15 In fact, the vast majority of Americans lived under this alternative tradition, rather than under the Nunn regime.
Heller ,6 courts have incorporated historical evidence into their Second Amendment jurisprudence.7 This historical evidence includes Nunn and other antebellum state court opinions.8 As Justice Scalia put it in his majority opinion in Heller, “interpret[ations] of the Second Amendment in the century after its enactment,” including in state court opinions, are “a critical tool of constitutional interpretation,” since they can point to “the scope [constitutional rights] were understood to have when the people adopted them.”9 Indeed, as Clement noted, the Heller majority itself favorably cited Nunn’s interpretation of the Second Amendment.10 But when courts invoke Nunn and other antebellum opinions about the right to carry guns in public, they glance over a striking fact about the case law: it is drawn almost exclusively from the slaveholding South. First, why did this case law arise in the antebellum South, but not in other areas of the country?