blog/show

The History of North Carolina's 1879 Concealed Carry Ban: Part II

  • Date:
  • May 26th, 2023

By: Andrew Willinger

[NOTE:  The data in this post have since changed, based on an extensive cross-referencing project using contemporary newspaper reports of concealed carry arrests and prosecutions.  For the updated results and further information, see this article that is forthcoming in the Notre Dame Law Review.]

This is Part Two in a two-part series on the history of North Carolina's 1879 concealed carry law.  Part One summarized the historical context and legislative record surrounding the law.  Part Two will address how the law was enforced in one North Carolina county in the decades after it was enacted.  

Enforcement of the 1879 Concealed Carry Ban in New Hanover County

Because of the inherent dangers of relying on legislative history and newspaper accounts, historical enforcement data is potentially quite valuable.  Contemporary court records can show how a law was actually enforced in the years after it was enacted, shedding at least some light on how the law was used in practice and whether it may have disproportionately impacted Black citizens.  Over the past several months, the Center has engaged in an archival research project to determine how North Carolina’s 1879 concealed carry law was enforced in New Hanover County (which includes the city of Wilmington) in the decades following its enactment.  A collection of New Hanover court records and minute books from this time period is preserved at the North Carolina State Archives in Raleigh.  We reviewed the following court records to identify prosecutions under the concealed carry ban:

  • New Hanover County Criminal Court Minutes, 1877-1884, 1888-1895
  • New Hanover County Superior Court Minutes, 1902-1910

In 1909, the state’s General Assembly passed a law establishing a “special criminal court” for New Hanover County—known as the Recorder’s Court—with exclusive jurisdiction over certain criminal offenses including “carrying concealed weapons.”  The post-1909 Recorder’s Court minutes have most likely been destroyed: the State Archives has no record of these minutes being transferred to Raleigh, and county officials do not believe the records were preserved locally.  The records we reviewed, then, are a representative snapshot of how the concealed carry law was enforced in a single North Carolina county from 1879 to 1909.  They are by no means comprehensive, as even the preserved minute books omit certain years, and they do not shed light on statewide enforcement of the law.

The minute books typically list the defendant’s name, the offense(s) charged, the case disposition, and the adjudication and sentence imposed (if any).  We reviewed all enforcement actions regardless of outcome—in other words, the set of records we reviewed includes instances where the defendant received a criminal sentence and instances where the defendant was acquitted, given a suspended sentence, or where the state ultimately did not pursue the case.  The court records do not list the race of the defendant.  Race was determined by cross-referencing the available information from these records with other historical materials, including contemporary newspapers (which occasionally reported on concealed-weapons prosecutions listing the race of the defendant) and public ancestry databases.

The racial makeup of New Hanover County changed dramatically during the period of our study.  While Black citizens were 62% of the county population in 1880, that percentage declined to 48% by 1910.  This decline was due in no small part to the 1898 white supremacist coup which overthrew Wilmington’s integrated Fusionist government, permanently banished many prominent Black leaders from the city, and resulted in the death of hundreds of Black citizens.  If one averages the decennial population percentages from 1880 to 1910, the county was 55% Black and 45% white.  Note that these numbers are taken from the federal census tables and that the 1890 census records were largely destroyed in a fire in the 1920s (which may mean that the 1890 numbers are estimates, but the general trends are still clear).

Table 1:  Population of New Hanover County by Race (1880-1910)

 

1880

1890

1900

1910

Average 

Black

62%

58%

51%

48%

55%

White

39%

42%

49%

52%

45%

We found 274 total unique prosecutions under the concealed carry law in the set of court records we reviewed.  We were unable to determine the race of the defendant with confidence for many of these prosecutions—either because the name was not listed in one of the databases we consulted or because the name was common and associated with both Black and white county residents at the time.  Of the 274 total unique prosecutions, we were able to identify the race of the defendant with a high level of certainty for 141 prosecutions.  We then determined the percentage of prosecutions of Black and white defendants, respectively. 

(I am happy to share the spreadsheets containing our underlying data by email with anyone who is interested, and welcome any feedback or suggestions.  We are currently in the process of updating those spreadsheets to link directly to the relevant images from the court minute books, and we are also coding the case outcomes to enable analysis of whether outcome was correlated meaningfully with the race of the defendant.)

As the table below illustrates, the racial makeup of concealed carry defendants for the prosecutions we reviewed from 1879-1909 aligns almost exactly with the average racial makeup of the county as a whole during that time period.  This does not necessarily indicate that the concealed carry law was enforced equally against Black and white citizens in New Hanover County at the time.  After all, Black citizens may have been less likely to carry weapons publicly in the first place—in which case maybe police were disproportionately targeting the few Black citizens who carried weapons, while allowing certain white citizens to violate the law.  It is difficult to draw conclusions one way or the other without a more detailed understanding of historical social norms and practices surrounding the carrying of weapons.  Table 2 does demonstrate, however, that the race of those prosecuted under the concealed carry ban in the county from 1879 to 1909 was consistent with the racial makeup of the county as a whole.

Table 2:  Prosecutions under Concealed Carry Law in New Hanover County (1879-1909)

 

Number of prosecutions

Percentage

Black

76

53.9%

White

65

46.0%

Total

141

 

These numbers also stayed relatively stable over time, even after the Fusionist government of Wilmington, by far the largest city in the county, was violently overthrown and replaced with a white supremacist Democratic administration in 1898. We reviewed a subset of 68 prosecutions in which we could confidently identify the defendant’s race and the exact date of the charge.[1]  This analysis showed that the racial enforcement percentages did not change substantially with the events of 1898.  In fact, the percentage of Black defendants prosecuted under the law actually decreased after 1898, which is consistent with the fact that the county was becoming increasingly white at that time (as shown in Table 1 above).

Table 3:  Sample of Concealed Carry Prosecutions by Date (Pre- and Post-1898)

 

1879-1898

1899-1909

Black prosecutions

22

15

White prosecutions

17

14

Total

39

29

Black percentage

56.4%

51.7%

White percentage

43.6%

48.3%

While the data does not show that the concealed carry law was not enforced in a discriminatory manner in New Hanover County in the three decades after it was enacted, it does show that police and prosecutors were not solely pursuing charges against Black citizens for violating the law.  However, it may well be that judges were sentencing defendants convicted for violating the law in a discriminatory manner.  Sentences, which were often listed in the minute books, varied widely.  As just one example, in June 1905 a Black man (Frank James), who was tried and found guilty of violating the concealed carry law, was sentenced to one year of labor on the county roads.  Eden Perry, a white man who was found guilty by a jury of violating the same law the very next month, was ordered to pay a $5 fine and the costs associated with his trial.  Further research is needed to determine the extent of any such sentencing disparities and explore a possible connection between race and the sentence imposed in concealed carry cases.

Conclusion

Our results show that, in the North Carolina county perhaps most notorious for racialized violence in the post-Civil War period, the race of those defendants prosecuted under the state’s concealed carry ban from 1879 to 1909 aligned with the racial makeup of the county as a whole.  The county was, on average, 55% Black and 45% white.  53.9% of concealed carry prosecutions were brought against Black defendants, and 46% were brought against white defendant.  As noted above, it may well be that Black citizens generally refrained from carrying weapons in public while white citizens did not—if so, the data may reflect biased enforcement.  Possible sentencing disparities also warrant further research, as that is likely one way in which the racial prejudice of white judges and juries may have found expression.[2]  While some areas of North Carolina appear to have used integrated juries in the immediate post-Civil War period, as early as 1887 the North Carolina Supreme Court rejected a challenge by a Black defendant to a sentence imposed by an all-white jury where qualified Blacks were entirely excluded from the venire.  And scholars generally agree that Blacks “virtually disappeared from the southern jury box by 1900, even in counties where they constituted an overwhelming majority of the local population.”

If Black citizens were potentially singled out for enforcement and sentenced more severely upon conviction, why does this data matter?  To me, the findings suggest that the mere exercise of state power to ban the concealed carry of certain weapons was not predominantly driven by racial considerations.  The state legislators (and members of the public who voted for them, who were largely white after the end of federal Reconstruction) likely thought it important to deter everyone from carrying concealed weapons.  If legislators and white citizens wanted to use the law only to disarm the Black population, then why arrest and prosecute white citizens at all?  Some level of discriminatory enforcement is possible, and even likely, but it was accompanied by the desire to broadly restrict concealed carry regardless of the race of the offender—consistent with concerns about public safety and concealed weapons expressed in contemporary newspapers.

More importantly, however, our results suggest that making broad claims about the interaction between any historical gun regulation and race is a risky endeavor—especially without careful analysis of relevant contemporary sources and enforcement data.  Our findings cast doubt on any claim that all Reconstruction-era gun regulation in the South (at a time when states in the South and West were most heavily involved in regulating the private possession and carrying of weapons) was irreparably infected with racism and should be disregarded for modern purposes.  But a small sample of prosecutions from a single North Carolina county certainly doesn’t settle this question.  Practices likely varied substantially by state, and even within a given state, based in part on the depth and nature of racial prejudice and how serious local police and prosecutors were about restricting concealed carry by all citizens.  More research of this type is urgently needed to better understand the background of the historical gun laws that are now often the focus of Second Amendment litigation.  Further research could easily suggest that New Hanover County is an outlier (after all, Wilmington remained a largely integrated city after the Civil War for longer than any other major urban area in the South), but it’s impossible to know until that research is conducted.  Broad and unsupported arguments that impugn a law based solely on surrounding context, however, ignore historical complexity and fail to grapple with the records of how that law was actually enforced—records which are often collecting dust in local libraries and archival collections.   

[1] Some records, by contrast, were associated only with a year, or span of years, based on the minute books in which they were found—we excluded those records from the survey of enforcement over time.

[2] Another potential project would be to explore enforcement in North Carolina counties with sizable Black populations at the time located in different parts of the state, including Mecklenburg and Wake counties.