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09/24/2021

Saul Cornell: The Right to Regulate Arms in the Era of the Fourteenth Amendment
Michael Ramsey

Recent published in the U.C. Davis Law Review Online: The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America (55 U.C. Davis L. Rev. Online 65 (2021)), by Saul Cornell (Fordham).  From the introduction: 

Scholarship on the history of firearms regulation during Reconstruction has lagged far behind studies of early American gun regulation. This essay collects and analyzes evidence about Reconstruction-era firearms regulation and summarizes these findings. Reconstruction ushered in one of the most intense periods of gun regulation in American history. The Republicans who framed and enacted the Fourteenth Amendment were eager to protect the Second Amendment rights of recently freed persons, including an individual right of self-defense. But Republicans were equally committed to enacting strong racially neutral gun regulations, aimed at reducing interpersonal violence and preserving the peace, a task vital to the success of Reconstruction. Scores of new regulations were enacted and one of the main goals of these laws was to limit the public carry of weapons. These laws were not driven by racial animus, as some gun rights advocates have erroneously claimed, but sought to protect vulnerable populations in the South, including former slaves and Republicans eager to further the aims of Reconstruction.

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Founding era fears about the federal government’s threat to state militias ... had largely abated by the time of the Civil War. One of the most important consequences of this shift was the adoption of state arms bearing provisions that were more self-consciously individualistic. What has not drawn much scholarly or judicial notice, though, is the profound change in the structure and language that accompanied the rise of a more individualistic formulation of the right to bear arms after the Civil War.

The inclusion of more individualistic language was only part of the change in the language of these texts. States also included provisions expressly affirming the right to regulate arms. In fact, state after state cast aside the eighteenth century’s dominant formulation of armsbearing, dropping references to the dangers of standing armies and the necessity of civilian control of the military. In place of these ancient fears of tyrannical Stuart monarchs and standing armies, a new fear permeated these texts: gun violence. To borrow a key concept from the common law: a new mischief had emerged, one that required a different remedy. The constitutional danger nineteenth century America faced, one that intensified after the Civil War, was not “lobster-back” redcoats facing off against minutemen, but interpersonal gun violence and the collective terrorist violence perpetuated by groups such as the Ku Klux Klan. In response to these new threats to the peace and safety of the republic, a novel formulation of the right to bear arms emerged in state constitutional law — a new model that forged an indissoluble bond between the right to regulate arms and the right to bear arms.

Powered by this new constitutional framework, uniting arms bearing and regulation into a single principle, states and localities took up the challenge of framing policies that both protected the right to bear arms and the public’s right to enjoy the peace by enacting dozens of new laws regulating nearly every aspect of the right to keep and bear arms.19 Laws regulating the sale of arms; prohibitions on possessing arms in churches, schools, and polling places; bans on concealed carry; general bans on public carry; and new discretionary permit schemes that limited the right of armed travel to situations in which citizens had a good cause to fear attack were among the most important laws adopted during this period.