Weapons and the Peace
[This is a guest post that is part of a mini-series on the history of firearms and gun regulation in early America.]
When reconstructing the legal order of the early republic, the inclination is to start where we are now and then move backward along a straight line. Because statutes and appellate decisions at the state and federal level are now such an important part of our legal order, we look to similar kinds of laws in the past for our legal antecedents. But that is to compare apples to oranges, because the institutional context in the post-Revolutionary period was so different than it is now. In this period, law-making bodies at the state and federal level shared space with local jurisdictions, which exercised considerable discretion over a wide range of issues involving the public order, including the regulation of firearms.
The devolution of authority to local jurisdictions was purposeful. The U.S. Constitution placed most matters involving the public order with states, which governed them through their police powers. States, in turn, left authority over many of these issues with local areas—counties, municipalities, and even more local jurisdictions, such as townships. In so doing, states affirmed longstanding practice, dating back to the colonial era, that allowed local authority over issues that were considered, by their very nature, to be local. The problems of cities were not those of rural areas. Places near the coast were different than those situated inland. The variety within states was endless, and people expected to address the issues facing their particular communities themselves.
Those issues involved anything and everything relating to the health, safety, and welfare of the public. Included were: the regulation of markets, including their location and days and hours of operation; the maintenance of basic infrastructure, such as roads and bridges; health measures, such as quarantines to stop the spread of disease and the oversight of businesses with known health hazards, such as butchering; and the provision of welfare for the orphaned, aged, and infirm. But the power of local jurisdictions extended even further than this already incomplete list suggests because the maintenance of the public order involved an open-ended charge to tend to the “peace,” which covered anything that undermined the collective wellbeing of the community.
While local jurisdictions issued ordinances and similar kinds of orders, they also addressed threats against the peace through legal actions in local courts. When dealing with such issues, officials used general charges: assault, riot, vagrancy, or simply disorderly conduct or disturbing the peace. Even as the charges obscure the actual nature of the threats, they underscore the underlying point: the specifics did not matter if the behavior threatened the peace.
What constituted a threat? There were the usual suspects: drunks, gamblers, brawlers, prostitutes, malingerers, and thieves. Many of the charges were directed at subordinate people—particularly the working poor, people of color, and the enslaved—for actions perceived as unruly. But local officials spent much of their time handling interpersonal conflicts among otherwise law-abiding community members: conflicts within families and among neighbors that had degenerated to violence or threats of violence. Many of these conflicts involved men who failed in their communal obligations: who drank away their earnings, beat their wives or children, or harassed their neighbors.
The peace of the community took precedence over individual rights. It was not that rights did not matter. Local officials upheld procedural rights. But the rights that now take center stage in our legal order—those in the federal and state bills of rights, for instance—remained subordinate to matters involving the peace. Even property rights had limited power. What people could do with their property depended on the implications for others and the public order more generally. In this area of law, authority came with obligations. When it was abused, local officials could and did intervene to uphold the community’s interests.
Offenses against the peace resulted in a significant loss of personal freedom. While the penalties depended on the nature of the charge, those convicted of general offenses against the peace generally had to post a peace bond or, if lacking funds, find others willing to do it. Bonds came with responsibility and risk: those entering into these agreements lost their money if the offender violated the peace in any way again. As such, bond holders acquired broad authority over the offender’s life. In many states, offenders who could not provide a bond were sold off to the highest bidder and forced to work off their fines.
Local officials assessed the threat level of specific peace-threatening behavior, based on what they knew of those involved. But weapons were, by definition, threatening to the public order. People with weapons were more dangerous than people without them. Brandishing or even just displaying weapons for no obvious reason was a threat. Bringing weapons to any kind of social interaction was a threat. The presence of weapons at an incident raised the seriousness of the offense when violence or even just threatening behavior was involved. Unknown people carrying weapons were most definitely threatening. At this time, weapons were more likely to be knives and clubs, which were more available and more reliable than guns. But the legal principles that regulated all threats to the public order could and did extend to guns, when they were present. In the legal logic of the peace, the right of any individual to own, carry, and use guns could never take priority over the peace of the community.