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The Myth of Non-enforcement of Gun Laws in Nineteenth Century America: Evidence vs Ideology in Second Amendment Scholarship

By on June 1, 2022 Categories: , , ,

In his Bruen oral argument, former solicitor general Paul Clement erroneously claimed that there was no evidence of enforcement of restrictive gun laws before the Civil War. The non-enforcement thesis is the latest example of ideology distorting Second Amendment scholarship. Indeed, during the oral argument in Bruen, Justice Breyer took the unusual step of characterizing much of Clement’s argument as little more than law office history. Justice Sotomayor went even further suggesting that much of Clement’s argument was unsubstantiated and pulled out of thin air.

Outside of the slave south a more restrictive approach to gun regulation emerged, taking root in Massachusetts and spreading to other states. Gun rights advocates have questioned if these surety laws were ever enforced. First, it is important to recognize that records of the activities of local justices of the peace, particularly in rural areas of New England, are difficult to locate, if they survive at all. Although the records of justices of the peace in rural New England are rare, there is ample evidence from Boston, the area’s most populous city, that shows that armed travel in public was a rare event, but nonetheless was a crime that was enforced by the Boston police and courts. 

The rules and ordinances governing the Boston police expressly empowered officers to arrest any who traveled armed in violation of state law. The Boston Police Department’s procedures offered clear guidance on this point: “He may also arrest, without a warrant . . .  any person reasonably suspected of having committed a felony, or seen committing a breach of the peace, or being unduly armed; with a dangerous weapon, and also nightwalkers; but in every case of arrest without a warrant, complaints must be made at the next session of the police court.”

Arrest statistics compiled by the city’s Chief of Police further undermines the non-enforcement thesis. As the data in Table One shows, only a tiny fraction of assaults in the city involved a weapon of any kind.  Moreover, there were arrests for unlawfully carrying weapons in public, but the number was miniscule. Contrary to the claims of modern gun rights advocates, including Paul Clement and Robert Leider, the evidence from Boston does not support the non-enforcement thesis, but rather suggests that citizens generally obeyed their state’s prohibition on armed travel and few individuals carried weapons in public in the period leading up to the Civil War.  In short, Bostonians, in contrast to their southern brethren, did not habitually arm themselves. The fact that there were arrests and that these did not elicit constitutional challenges further undercuts the claims of gun right advocates that habitual public carry was the norm in antebellum America.

Table One: Boston Police Enforcement Data 1864

Year

Assault and Battery

Assault With Weapons

Carrying Weapons Unlawfully

1864

1016

100

8

 

The most obvious explanation for why there were no challenges to the Massachusetts prohibition on armed carry is that few individuals traveled armed in populace areas of the state without good cause. American police forces, including the Boston police, did not routinely carry firearms until after the Civil War period: the standard weapon issued to police in the antebellum era was a club, not a firearm. If Bostonians were habitually traveling armed and gun toting posed a serious threat to public safety, it seems highly unlikely that the nation’s police forces, including the Boston police, would have continued to issue officers clubs rather than firearms.

Rather than support non-enforcement the evidence suggests broad compliance with the law which leading jurists of period uniformly interpreted as banning armed carry, absent a specified threat. This was how the state’s most distinguished interpreter of criminal law, Peter Oxenbridge Thacher, understood the Massachusetts statutes limiting armed travel. Lawyers and judges in antebellum America were familiar with a legal maxim drawn from Lord Coke that “great regard, in the exposition of statutes ought to be paid to, the construction that sages of the law, who lived about the time.” Few jurists in Massachusetts, better fit the category of “sage of the law” than Peter Oxenbridge Thacher. Indeed, Judge Thacher’s reputation extended well beyond Massachusetts; he was recognized by members of the antebellum legal community to be one of the nation’s leading experts on criminal law. Contemporaries praised him for his “thorough knowledge of the criminal law and its practical application.”

Thacher explained the meaning of his state’s prohibition on armed travel in an influential grand jury charge that was reprinted as a pamphlet and was deemed sufficiently important to be published separately in the press. The American Review, an influential Whig magazine, singled out the publication of a collection of Judge Thacher’s cases and grand jury charges as a major contribution to American law. Praising the judge’s “high character as a magistrate,” the review remarked that Thacher “was not only known to the profession in New England, but his published charges to grand juries, and occasional reports of important cases tried before him, had made him known throughout the country.” Gun rights advocates have either ignored or dismissed the relevance of Thacher’s commentary on his state’s law, casting his authoritative explication of the text as little more than empty verbiage uttered on a largely meaningless ceremonial occasion. In fact, grand jury charges were important civic occasions in antebellum America because they gave the “sages of the law” an opportunity to expound and elucidate important legal concepts to the public. Jury charges offer one of the clearest illustrations of the way judges in the antebellum era would have interpreted the Massachusetts statute prohibiting armed travel absent a good cause.

Thacher’s reading of his own state’s laws on public carry left no room for interpretive confusion: “In our own Commonwealth [of Massachusetts],” he reminded members of the grand jury, “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.”

When the Supreme Court evaluates the historical evidence presented in Bruen they will have to decide between historical fact and gun rights fiction.

Note: This material is adapted from Saul Cornell, The Long Arc of Arms Regulation in Public: From Surety to Permitting, 1328–1928, 55 U.C. Davis L. Rev. 2545 (2022).

[Ed note: A response to Prof. Cornell’s post from Prof. Leider has been published here.]