Friday, October 2, 2015

The Origins of Modern Gun Rights and the Antebellum South

Over at The Atlantic, Saul Cornell and Eric Ruben argue: "the idea that citizens have an unfettered constitutional right to carry weapons in public originates in the antebellum South, and its culture of violence and horror."  Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.  Eric Ruben is a jurisprudence fellow at the Brennan Center for Justice at the New York University School of Law.

Here is a taste of their piece:

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Public-carry advocates like to cite historical court opinions to support their constitutional vision, but those opinions are, to put it mildly, highly problematic. The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor. By focusing only on sympathetic precedent, and ignoring the national picture, gun-rights advocates find themselves venerating a moment at which slavery, honor, violence, and the public carrying of weapons were intertwined.

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.  

Read the rest here.