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

XI. AT THE CROSSROADS

The history of the right to keep and bear arms is disappointing. In spite of overwhelming evidence concerning original intent, much of the judicial interpretation of the Second Amendment and the state analogs has been repeated efforts to avoid the original intent and explicit language of these protections. In this century especially, original intent has increasingly been formally abandoned by the courts as a basis for constitutional interpretation.

While the right to bear arms has been primarily an issue of handguns, the right of private possession is a considerably more complicated matter. In general, the legislatures and courts have distinguished weapons into the following classes, for purposes of regulating private possession: long guns, handguns, machine guns, and other arms. The nineteenth century decisions were seldom concerned with long guns and never with machine guns; handguns, Bowie knives, daggers, sword-canes, billy clubs, blackjacks, slungshots, and a bewildering array of other non-firearms were the principal concerns. The twentieth century decisions have seldom involved long gun possession, with the exception of automatic weapons.

A recurring distinction has been made between the right to "military pistols"-- large handguns appropriate to warfare--and small, sometimes cheap pistols of the sort best suited to concealed carry. Attempting to draw a distinction between these two types of handguns is a nearly impossible task, since at one time or another, nearly every sort of handgun has been pressed into military service.

Before the Civil War, a consensus had developed, almost entirely in the slave states, that concealed carry of arms was not constitutionally protected, but that open carry of arms was protected (though this guarantee did not include blacks, either slave or free). In this period, only two decisions refused to recognize a right to open carry;1 only one of those suggested that there was no right to possess arms, and that was the State v. Buzzard ( 1842) decision. Three decisions narrowed the right of open carry to "citizens" (whites),2 and similarly narrowed the right to private possession of arms. All other decisions recognized that at a minimum, a right to private possession of rifles, shotguns, and large military pistols existed. Significant to today's debate about whether "assault weapons" may be constitutionally banned,

____________________
1
Aymette v. State, 2 Hump. (21 Tenn.) 154 ( 1840); State v. Buzzard, 4 Ark. 18 ( 1842).
2
State v. Newsom, 27 N.C. 250, 5 Iredell 181 ( 1844); Cooper and Worsham v. Mayor of Savannah, 4 Ga. 68 ( 1848); Dred Scou v. Sandford, 60 U.S. (19 How) 393 ( 1857).

-269-

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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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