The Right to Bear Arms Is Not a Relic of the Slave-Owning South

By Charles C. W. Cooke

Thursday, October 01, 2015

Another day, another attempt at guilt by association. This time the topic is guns, and the guilt is being wrung from that perennial favorite, slavery. The carrying of firearms, Saul Cornell and Eric M. Ruben argue over at The Atlantic, is not a constitutionally protected right derived from an Anglo-American understanding of Lockean self-defense prerogatives, but a quirk of the antebellum South that became part of mainstream American life by dint of an unfortunate historical accident. As a matter of fact, the pair suggest, the very notion that the Bill of Rights protects your capacity to “pack heat” is suspiciously close to something a slave-owner might say:

    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.

By framing their critique in this way, Cornell and Ruben are presumably hoping the more casual among their readers will conclude that carry-rights advocates are selectively reading history — or, worse, that they are siding with its “bad guys.” As always, I would recommend that those readers refuse to fall for the ruse and instead see this essay for what it is: An attempt to undermine the idea that the Constitution protects the “bearing” as well as the “keeping” of arms, and to cast those who contend that it does as heirs not to the Founders but to the treacherous architects of secession and white supremacy.

As should be obvious to anybody who understands the relevant legal history, these implications are false. Second Amendment advocates do not cite Nunn v. Georgia because it’s the case that best fits with our political preferences, because we endorse the subculture from which it came, or because we are violent or honor-driven or antediluvian of mind. We cite it because it is the only antebellum precedent available in this area, and because it is thus historically instructive. If one’s sole knowledge of this matter came from Cornell and Ruben’s piece, one could be forgiven for presuming that there are a host of contradictory precedents from which historians are able to choose, and that “gun nuts” have merely elected to pick the most favorable. This, I’m afraid, is simply not the case. As Cornell and Ruben concede themselves, “no similar record of court cases exists for the pre–Civil War North.” Of course defenders of the right to keep and bear arms point to the “Southern” example. It’s the only one that exists.

Hoping to find a way around this rather inconvenient fact, Cornell and Ruben imply repeatedly that if such a case had been heard in the North, it would probably have yielded a different outcome. To advance this proposition, the pair cites a legally irrelevant set of civil-jury instructions, a selectively chosen collection of unchallenged pre-revolutionary laws, and the unrelated personal opinions of one judge. They also insist that there was a notably different gun culture in the North, and that a number of Northern jurisdictions were happy to impose restrictions on the manner in which firearms may be carried. Notably, they do not point to any applicable legal precedents, nor do they discuss any of the pertinent jurisprudence. Instead, they assert without documentation that Nunn represented little more than an “[opinion] about the right to bear arms from the slave South and its unique culture of violence,” and they conclude that it can therefore be ignored.

This, I’m afraid, is simply not good enough. The relevant question here, remember, is not, “Was the North often different than the South?” (it was), but, “Does the modern claim that Americans enjoy a robust right to bear arms come from a uniquely “Southern” tradition?” If they want to make the case for the latter, Cornell and Ruben will have to demonstrate that Southerners possessed a different legal conception of the right to bear arms than did those in the North. Clearly they cannot do this by pointing to gun-ownership restrictions in the North. Why not? Well, because such restrictions were also passed in the South, which is exactly how the “highly problematic” Nunn case came about in the first place. By listing states that passed restrictions and then concluding that “the right of states and localities to regulate the public carrying of firearms, particularly in populated places, was undeniable,” Cornell and Ruben are establishing a double standard. Why, any sharp observer must reasonably ask, are infringements in the North taken as signs of implicit constitutional acceptance, but infringements in the South taken as violations of the law?

In and of itself, the constitutionality of gun control in the antebellum period is a tough one to parse. In Nunn, the court effectively ruled that the Second Amendment applied to the states. “Does it follow,” the majority opinion asked,

     . . . that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

Whether another court would have done the same is unknowable. Nowadays, the 14th Amendment necessitates the incorporation of the right to keep and bear arms against the states as well as against the federal government. But in 1846, when Nunn was decided, there was no incorporation doctrine to speak of. Had there been a host of cases on either side of the Mason-Dixon, it is likely that the outcomes would have been diverse, contradictory, and open to legitimate dispute. Some would have deemed the federal constitution to be binding; others wouldn’t have. The legal debate would, as always, have been complex.

Does this mean that Cornell and Ruben have a point? Was the court in Nunn overstepping what was expected of it and inventing a protection that was more cultural in nature than legal? In a limited sense, perhaps so. But — and this is the key, I’d venture — there is no evidence whatsoever to suggest that the same thing wouldn’t have happened in the North. Once again: In order for the duo’s thesis to stand up, we have to identify a different set of legal and constitutional principles in the North than in the South. Once again: There is no evidence that this difference obtained. It is not only that are there no equivalent cases whose holdings we can compare to Nunn’s, but that there is no evidence from the revolutionary period, the Constitutional convention, or the debate over the Bill of Rights that suggests there was a geographical or sectional split on this question.

Elsewhere, Cornell and Ruben propose that “violence was frequently employed in the South both to subordinate slaves and to intimidate abolitionists.” This, of course, is true. But if this violence was being committed with tools that Northerners generally thought were in need of tighter regulation, you would expect to see some indication within the reams of abolitionist literature. Unfortunately, it’s simply not there. What is there, by contrast, is a lot of talk of arming free blacks for their protection. Asked in 1854 how fugitives could best fight back against kidnapping, Frederick Douglass proposed “a good revolver, a steady hand, and a determination to shoot down any man attempting to kidnap.” It’s complex, that history thing.