For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview

X. THE RIGHT COMES OUT OF ITS COMA?

By the early 1970s, the Civil Rights Movement had largely eliminated the legally imposed forms of racial discrimination, though socially customary racism and the effects of decades of legally imposed racism remained. Reduced U.S. participation in the Vietnam War caused a dramatic subsidence in the antiwar movement. The counterculture was largely absorbed or co-opted by the mainstream culture. The sexual and pornographic revolutions no longer shocked most Americans, and increasingly, a generation that had abhorred the sexual promiscuity of their children got divorced and hit the discos.

One cultural change had not fizzled out: the dramatic increase of crime rates. Murder rates continued to rise dramatically in the mid-1970s. After a small reduction in the late 1970s, murder rates again rose to a heretofore unknown level, exceeding 10 murders per 100,000 population. Then, as the economy entered the severe recession of the early 1980s, murder rates began to decline, dropping below 8 per 100,000 for the first time since the 1960s.1 The trend was short-lived, and murder rates began to rise, slowly and tentatively, in 1987.2

Yet during this period the right to keep and bear arms was coming out of its coma. It didn't happen in every state, but in enough that those state courts that recognized or reaffirmed the right cannot be called idiosyncratic. The first decision representing this new trend, City of Las Vegas v. Moberg ( 1971), took place in New Mexico. Leland James Moberg had entered a police station in Las Vegas, New Mexico, wearing a holstered pistol, to report a theft from his automobile. A Las Vegas ordinance prohibited the carrying of any deadly weapon, openly or concealed, including, "guns, pistols, knives with blades longer than two and half inches, slingshots, sandbags, metallic metal knuckles, concealed rocks, and all other weapons, by whatever name known, with which dangerous wounds can be inflicted."

Moberg appealed his conviction based on article II, §6 of the New Mexico Constitution: "The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons." The New Mexico Court of Appeals agreed that: "Ordinances prohibiting the carrying of concealed weapons have generally been held to be a proper exercise of police power. . ." and cited State v. Hart ( 1945) and Davis v. State ( 1962) as precedents, but agreed that:

____________________
1
Bureau of Justice Statistics, 15.
2
Crime in the United States 1988, ( Washington: Government Printing Office, 1989), 8.

-221-

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For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • Preface xiii
  • Acknowledgment xvii
  • I. Definitions 1
  • II. European Origins 19
  • III. The Legislative History of the Second Amendment 31
  • IV. Problems of Judicial Interpretation 63
  • V. "To Keep and Carry Arms Wherever They Went" 69
  • VI. "No Negro. . . Shall Be Allowed to Carry Fire-Arms" 97
  • VII. "Carrying Concealed Weapons is a Grievous Evil" 141
  • VIII. "A Proper Reason for Carrying a Pistol" 165
  • IX. Civil Rights, Civil Disturbances 197
  • X. The Right Comes Out of Its Coma? 221
  • XI. At the Crossroads 269
  • Selected Bibliography 275
  • Index 281
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