The History of North Carolina’s 1879 Concealed Carry Ban: Part I

  • Date:
  • May 24, 2023

Contemporary debates over gun policy often occur in the shadow of history.  As we previously described, the recent debate in the North Carolina legislature over whether to repeal the state’s 1919 law requiring a state-issued permit to purchase a handgun was framed by competing claims about why that law was originally enacted.  Those who supported the repeal effort often invoked the law’s purportedly racist origins.  The idea that the law was enacted to disarm the state’s Black population finds some support in Wilmington newspapers from that time period but is mostly absent in other contemporary accounts that focused on potential public safety benefits.  Newspaper tallies of those applicants who were initially granted permits after the law was enacted are also mixed.  Supporters of the repeal effort successfully overrode Governor Roy Cooper’s veto in late March, and North Carolina no longer requires a permit to purchase a handgun in the state.

But questions about whether historical gun laws were racially motivated or enforced in a racially discriminatory manner—and, if so, what the modern consequence of those facts should be—are almost certainly here to stay.  Mainstream media outlets have reported recently about the government’s reliance on facially discriminatory historical laws to defend modern gun regulations under Bruen’s historical-analogical test.  Justice Amy Coney Barrett (at the time, a judge on the Seventh Circuit Court of Appeals) wrote in a 2018 dissent that historical laws disarming slaves and Native Americans showed a historical tradition of disarming groups “judged to be a threat to the public safety,” even though “[i]t should go without saying that such race-based exclusions would be unconstitutional today.”  However, after Bruen, some judges have opined that “‘rejecting’ the discriminatory application of those unconstitutional laws historically—while still arguing those laws should be a basis for [upholding modern gun regulations]—walks too fine a line.”

Laws that were not facially discriminatory, but may have been enforced disparately by race at certain points in time, raise similar questions.  In multiple places, the Bruen majority suggests a prominent role within constitutional law for arguments that certain historical regulations—such as concealed carry bans and surety statutes—may have been enforced in a discriminatory way (with authorities pretextually targeting Black citizens and/or choosing not to enforce the laws against white citizens).  Bruen observes, for example, that “Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny” and that, in some states, “local enforcement of concealed-carry laws discriminated against blacks.”  These same concerns surface in policy debates as well, where they often constrain discussion in unfortunate ways.  For example, the broad claim that “racism underlies gun control laws”—full stop—fails to appreciate that historical debates over gun regulation were often animated by similarly varied concerns as modern debates—and that those concerns often did not divide neatly along racial lines.  To examine the relationship between gun regulation and race in North Carolina specifically, the Duke Center for Firearms Law embarked on a project to study the passage and enforcement of the state’s 1879 concealed carry ban.

Legislative Voting Patterns and Contemporary News Coverage

North Carolina was among the southern states to prohibit the concealed carry of certain weapons during the post-Civil War era.  An 1879 law, An Act to Make the Carrying of Concealed Weapons a Misdemeanor, made it a crime to “carry concealed about [the] person any pistol, bowie-knife, dirk, dagger, slungshot, loaded cane, brass, iron or metallic knuckles or other deadly weapon.”[1]  The statute also provided that any individual found with such a weapon outside of his or her home would, in the eyes of the law, have presumptively concealed that weapon. 

From the end of the Civil War until 1894, the North Carolina state legislature consistently included a small minority of Black senators and representatives, mostly from counties in the eastern part of the state.  This number ranged from 22 Black state legislators in 1868 to 17 legislators in 1886.  “[U]nlike the patterns followed in other southern states after Reconstruction, North Carolina still continued to elect black legislators throughout the 1880s,” notwithstanding the abrupt end of federal Reconstruction in 1876.  Black legislators continued to serve in state politics until 1900, when a newly enacted literacy-test requirement—together with wanton white supremacist violence including the overthrow of Wilmington’s fusionist government in 1898 and the massacre of hundreds of Black citizens[2]—effectively disenfranchised the state’s entire Black population.  Not one Black citizen served in the state legislature from 1900 to 1968.

North Carolina’s 1879 concealed carry law received broad legislative support, passing by a vote of 80-27 in the state house of representatives.  The 1879 state legislature included either 8 or 9 Black representatives (the official biographical compendium of state legislators lists 8, while another source says 9) and two Black senators (Henry Eppes and Franklin Dancey).  Of the 8 Black representatives listed in the compendium, 5 voted in favor of the concealed carry ban and 3 voted against.  Those voting in favor included Stewart Ellison of Wake County, while William Henry Waddell of New Hanover County voted against.  Both Black state senators voted against advancing earlier versions of the bill, although there is no record of the Senate’s final roll-call vote at the end of February. 

The legislative history of the 1879 concealed carry ban is sparse.  For the most part, only formal proposals to amend the legislation, and whether those proposals succeeded or failed, were recorded—there is no record of substantive debates about the law and its intended impact.  Among the failed amendments were motions to specify criminal punishments rather than leaving the sentence to judicial discretion, a motion to remove the word “concealed” from the bill, a proposal to change the offense from a misdemeanor to a felony, and proposals to exempt certain North Carolina counties from the law.  Contemporary newspaper reports about the law were mixed, with some newspapers voicing support on public safety grounds and others suggesting that the law would not actually stem violence because those who wanted to carry concealed weapons would simply violate the law.  For example, newspapers including The Charlotte Democrat, The Roanoke News, and The Torchlight expressed enthusiasm for the new law because of public safety concerns with the practice of carrying concealed weapons.  Other newspaper editors, however, argued against the concealed carry ban because they felt it would not deter those “swaggering desperados” who would carry concealed weapons even if the practice was outlawed.

Racial undertones were present during debates over the law and in contemporary and subsequent newspaper coverage.  Some legislators and newspaper editors emphasized the danger of concealed razors—often described as the preferred weapon of Black citizens at the time—and an unsuccessful motion was made in the state legislature to add razors to the list of banned weapons. (Although arguably encompassed by the phrase “or other deadly weapon,” the concealed carry of razors would later be specifically prohibited by amending the 1879 law.)  In June 1879, The Daily Review in Wilmington reminded its readers of the new law and mentioned razors specifically as the preferred weapon of Black citizens.  The editor expressed hope that Black citizens who carried razors would be swiftly dealt with by the courts.  Other newspapers, such as The Wilmington Morning Star, took to reporting individual convictions under the law and mentioning race only if the offender was Black.  From the late 1860s up until the 1898 coup, Wilmington newspapers also consistently fanned fears that Black citizens were heavily armed with modern weapons.

There are many reasons why even contemporary newspaper accounts might not provide a complete picture of the motivations behind legislation such as North Carolina’s 1879 concealed carry law.  For example, legislators and newspaper editors who were actually motivated to support the law because of racial animus may have given pretextual reasons for endorsing the legislation.  And it is always perilous to attempt to reconstruct the driving forces behind any action by a legislative body consisting of numerous members motivated by different considerations. The voices that come through most clearly in these historical accounts may not be representative, and there is a constant temptation to “look[] over a crowd and pick[] out your friends” rather than appreciating the nuance of the full historical record.

That said, there are remarkable similarities between the debates over North Carolina’s gun laws in 1879, 1919, and today.  Many North Carolinians invoked public safety as a primary reason for supporting these measures initially, some voiced concerns that the laws would merely make law-abiding citizens vulnerable because criminals would not be deterred by state regulation, and still others were focused on potential racialized impacts. The debate over whether to repeal the state’s handgun permit law similarly pitted those who emphasized the law’s potential impact on public safety against those who emphasized the potential diminishment of law-abiding citizens’ rights to armed self-defense (with an ancillary focus on the possible racialized origins of the permit law).

And these same areas of disagreement surfaced prominently in last June’s decision in Bruen.  Justice Breyer’s dissent observed that “firearms in public present a number of dangers. . . and are responsible for many deaths and injuries in the United States”—a pure public safety argument similar to those levied against concealed carry in the late 1800s.  Justice Alito emphasized that, in his view, “there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law”—the “swaggering desperadoes” who would persist in carrying concealed weapons despite a legal prohibition.  The majority opinion, concurrences, and dissent all alluded to the ever-present debate over whether stricter gun regulation disproportionately disarms, or protects, minority groups. 

[1] The law was ultimately repealed and replaced by a shall-issue permitting system in 1995, which remains in place today.

[2] For more background on the 1898 Wilmington coup, see David Zucchino’s Pulitzer-Prize-winning 2020 book Wilmington’s Lie.