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.
Duke, the Texas Supreme Court upheld this statute as “a legitimate and highly proper regulation” that “appears to have respected the right to carry a pistol openly when needed for self-defense or in the public service, and the right to have one at the home or place of business.”66 Meanwhile, outside both the South and North, frontier towns adopted public carry regulations by the era of the Fourteenth Amendment that were far stricter than even those in Massachusetts and Texas.67 Desiring to reduce violence and attract businessmen who might not invest in places where they felt endangered, many frontier towns prohibited public carry altogether.68 Even famed “wild west” places like Tombstone and Dodge City banned carrying firearms within town limits.69 Thus, it appears that much of the country did not share Nunn’s view that broad regulation of public carry ran afoul of the right to bear arms.
At common law, sureties were similar to present-day guarantors in the bail context: members of the community who would pledge responsibility for the defendant and risk losing their bond if the defendant failed to “keep the peace.”55 In a rural society before the age of police forces or an administrative state, this citizen-complaint process was an efficient way to deal with the danger posed by public carrying, especially where that danger was limited because public carry was not “engrafted” on the regional culture.56 The same year Massachusetts revised its law, the respected jurist Peter Oxenbridge Thacher, whose judicial decisions and other writings “had made him known throughout the country,”57 issued a grand jury charge explaining the restrictions on public carry in Massachusetts. Our analysis builds on Amar’s important observation regarding regionalism, as well as the exposition of differing urban and rural firearm regulatory regimes in Joseph Blocher, Firearm Localism, 123 82 (2013). We take no position in this Essay regarding whether courts should use originalism as the sole means of constitutional interpretation, or which of several competing theories of originalism ought to be the preferred method.
He instructed that in the Commonwealth, “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.”58 Judge Thacher’s charge was praised in the contemporary press as “sensible,” “practical,” and “sage.”59 It lies of course in stark contrast to Chief Justice Lumpkin’s later pronouncements on the unconstitutionality of open carry regulations.60 Massachusetts was not alone in its broad regulation of public carry. Several other notable papers addressing historical firearms regulations that have been published recently by the Yale Law Journal include Darrell A. Miller, Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second, 122 Cf. On the current state of the debate regarding originalism, see Keith E.
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.
The selective use of Southern case law in Peruta represents just the type of analysis that Justice Scalia has warned against, in which courts “look over the heads of the crowd and pick out [their] friends.”18 Understanding this jurisprudence, to borrow again from Justice Scalia, “requires immersing oneself in the political and intellectual atmosphere of the time . Rather, they come from a time, place, and culture where slavery, honor, violence, and the public carrying of weapons were intertwined.20 Violence was a central element of slave and honor culture in the South. of slave vengeance” amongst the slaveholding class.22 Meanwhile, violence between white men “to preserve white manhood and personal status” was encouraged in Southern honor culture.23 According to Hildreth, duels “appear but once an age” in the North, but “are of frequent and almost daily occurrence at the [S]outh.”24 As a result of the distinct cultural phenomena of slavery and honor, Southern men carried weapons both “as a protection against the slaves” and also to be prepared for “quarrels between freemen.”25 Hildreth was not the only contemporary commentator to observe the prevalence of public carry in Southern society or to compare it with the norm in other parts of the country. that a very earnest and prolonged effort will be required to efface it.”31 He noted that in New England, however, carrying concealed weapons was uncommon because “[t]he laws forbid it, and public sentiment condemns it so strongly that were the laws silent the habit could not be engrafted upon society.”32 Public carry thus was popular in Southern society, but cultural norms were not silent regarding what manner of carrying was honorable.