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Public Carry, History, and Enforcing Gun Laws

By on October 29, 2021 Categories: , , , ,

In their reply brief before the Supreme Court, the challengers in Bruen claimed that “neither the state nor any of its amici has been able to identify a single instance before the twentieth century of someone being successfully prosecuted for the bare act of carrying a common firearm for self-defense.” This is a surprising, and surprisingly inaccurate, claim.

Just to name one example, in State v. Reid, a case decided by the Alabama Supreme Court in 1840, a sheriff (!) was successfully prosecuted for carrying a pistol concealed, in violation of a state law barring that conduct. The state supreme court rejected his claim that the statute violated his right to keep and bear arms. As to his need to carry the gun for self-defense, the court noted that the trial had established that the sheriff had “been attacked by an individual of a dangerous and desperate character, who afterwards threatened his person,” that the threatening person “came to his office several times to look for him” and that the sheriff’s friend brought him a pistol because the friend “conceived his life was in danger.” Yet, in spite of his carrying of a common weapon for self-defense, not only did the court uphold the statute as constitutional, it also affirmed the trial court’s refusal to give a self-defense jury instruction. The sheriff sought to have the court charge the jurors that “if they believed from the evidence, that the defendant carried the weapon concealed for the purpose of defending his person, and that it was necessary to carry the weapon concealed for that purpose, then, they should acquit the defendant.” In the court’s view, there was no evidence the sheriff needed to carry the weapon concealed: “If the emergency is pressing, there can be no necessity for concealing the weapon, and if the threatened violence will allow of it, the individual may be arrested and constrained to find sureties to keep the peace, or committed to jail.” Many amici in Bruen did in fact cite Reid.

But Reid—and the many other cases from before the 20th century upholding convictions like it—are not the only evidence of successful prosecutions. To be sure, there has to date been little historical work done on the enforcement history of the many gun regulations throughout the Founding and Reconstruction era that Heller made newly relevant. Fortunately, a remarkable recent article from historian Brennan Rivas sheds light on just how rich this uncovered history might be.

In a forthcoming U.C. Davis Law Review article, “Enforcement of Public Carry Restrictions: Texas as a Case Study,” Rivas chronicles a significant number of public carry prosecutions in Texas between 1870 and 1950, such those for violating its 1871 deadly weapons law that “was a sweeping prohibition against the open or concealed carrying of deadly weapons,” including pistols. Rivas sampled four Texas counties and surveyed the surviving records. Among just these four counties in this time period, Rivas found 3,256 separate cases. Of those, “1,885 left a record of the final adjudication. Among those, 1,684 resulted in guilty judgments or appeals (89% of those with known outcomes; 52% of the total); 200 resulted in not guilty judgments (11% of those with known outcomes; 6% of the total).” 406 cases were dismissed or had indictments quashed. In other words, she found thousands of enforcement records in just four of Texas’s 254 counties. More than 1,500 people in this time period, in these four counties, were found guilty of violating the laws restricting public carry.

Rivas also found that the enforcement of these laws was not always racist or racially motived. Instead, “[t]he graphs of long-term enforcement within my sample show that racially biased enforcement of the deadly weapon law evolved over time and manifested itself during the 1890s. I believe this turning point is directly related to the collapse of Black voting rights in Texas during that decade, and the resulting erosion of Black political power locally.”

Rivas’s work helps to shed light on gun law enforcement in American history—an increasingly important topic deserving significant attention going forward.