Can Economics Help Us Understand Historical Public Carry Laws?

This post is based on a paper that was presented at the 2024 Firearms Law Works-In-Progress Conference. The Conference is held each year on a home-and-away basis with the University of Wyoming Firearms Research Center. This post also appears on the FRC’s Forum.

Yes.  The test from New York State Rifle & Pistol Association v. Bruen calls for a history-and-tradition approach to evaluating the constitutionality of firearm regulations.  Applying the test means locating and analogizing to historical laws along the dimensions of “how” and “why” a particular historical law burdened the right to armed self-defense.  The “why” refers to whether the contemporaneous justification for the historical law is sufficiently analogous to the justification for the challenged, modern law.  Scholars and commentators who generally support greater restrictions on firearms ownership and carry describe the history and tradition of public carry laws as a broadly acceptable and plenary power to restrict public carry of most weapons, at most locations, and at most times.  These scholars usually suggest that the “why” was invariably a generalized interest in safety or prevention of crime or violence.  Commentators disposed to fewer restrictions on firearms describe the same history as generally permissive of public carry, with only narrow exceptions for clearly-delineated circumstances. 

At times, scholars sympathetic to both sides have pointed to racially charged motivations for certain restrictions as reasons to question the value of historical laws.  In the end, courts have usually accepted, without much fanfare, a general purpose of public safety or prevention of violence as an acceptable “why” justification for laws modern and ancient.  Even before Bruen, and certainly since, this leads to a morass where the vagaries in the historical record and conflicting inferences drawn from that record lead to a coinflip-level prediction about how courts will decide the constitutionality of modern firearms restrictions.  But, there’s more to the “why” question than a free-floating interest in public safety or violence prevention.

My goal is to look deeper into the why question, using the lens of a branch of economics called “Public Choice.”  The key theses of Public Choice are, at minimum: (1) the “public interest” is doubtful to be a significant motivation or purpose for any given law, (2) the creation and drafting of laws is more akin to the economics of drafting a contract to allocate collective property rights than the development of optimal policy, and (3) actors in their public roles are incentivized to promulgate and enforce laws in their own interests, rather than any public interest.  In my working paper that I presented at the Firearms Law Works-in-Progress Conference in May, Public Choice and Public Carry, I evaluate a number of historical public carry restrictions for their contribution to the maintenance of economic organizations that benefitted those most likely to be lawmakers or close to them, often at the expense of the public interest as we might describe it. 

Critically, Public Choice can help harmonize some of the more common academic disagreements about interpreting historical firearms laws.  One of the most hotly-debated questions is how to interpret antebellum carry restrictions in slaveholding Southern states – the “Southern Model” of carry restrictions.  This is especially salient now that applying the Bruen test likely means analogizing from these laws.  Scholars on all sides of the debate tend to recognize the following contours of the Southern Model: carrying weapons was a common social activity in the South, and legal restrictions on concealed carry were thought constitutional, at least as long as open carry was permitted.  Both recognize that race and slavery played a role in the laws’ promulgation and enforcement.  Gun-control scholars maintain that whatever permissiveness for open carrying existed was unique to a violent culture owing to the slavery-based social order, while gun-rights scholars note that restrictions were often about disarming disfavored persons, including free Blacks. This leads gun-control scholars to claim any permissiveness in the system is an outlier compared to the rest of the US, and gun-rights scholars to conclude that restrictions are not analogous to modern public carry restrictions because they were enforced in a manner that would today be wholly unacceptable.

I propose another explanation, and one that might even harmonize these accounts: Carry restrictions, among numerous other criminal laws and their enforcement, were deployed to preserve economic rents.  Economic rents are returns to productive activity that exceed the value the producer contributes to the economy’s overall production.  Public Choice focuses on when institutions for collective action, such as governments, become sources of economic rents.  The Public Choice account of slavery and the plantation economy illustrates that slaveholding planters deployed nominally public institutions, such as the criminal justice system, in service of privatizing profits from the plantation economy and socializing the (extreme human) costs of the system.  Indeed, much historical research recounts just how preoccupied antebellum planters were with preserving the rents flowing from the plantation system.  Such is consistent with both gun-control and gun-rights accounts of the Southern Model, and illustrates the peculiarity of looking for a free-floating “public interest” in safety or prevention of gun violence in the way we understand it today.  For the purpose of the Bruen test, it is perhaps enough to say that concealed carry laws were not clearly just about public safety, but about maintaining control of economic rents. 

The Southern Model is not the only set of historical carry restrictions.  Another is found in the mid-to-late nineteenth century in many towns throughout the American West.  Famous narratives of the Old West suggest a violent frontier, where restrictions on public carry of firearms in populated areas were a sign of progress.  Gun-control historians tend to suggest the violence was overstated, but in any case that carry restrictions were simply part of civilizing the frontier.  Perhaps this is because they intended to respond to what they view as ahistorical preoccupation with lionizing or valorizing firearms in the West.  Nonetheless, Public Choice economists have illustrated that the public order, public safety, and civilized society preceded the thick formal legal system the gun-control scholars suggest was the civilizing force.  Once again, the different interpretations need not be repugnant.  Undoubtedly, there was probably a higher social tolerance for everyday violence when towns were occupied primarily by miners or cowboys than when farming-focused settlers and related commercial interests appeared.    Moreover, population growth tends to expand to a level of complexity where formal law emerges to fill gaps in custom across lengthier social relationships.  In any case, public and social order reigned before the rush to incorporate towns, vest a constabulary with formal authority, and commit it to regulating public carry.  In fact, according to The Trampling Herd, more homicide occurred in Abilene, Kansas, after the establishment of formal law and appointment of a sheriff.  The suggestion that nominally restrictive and formally-developed firearms laws emerged in the West to provide order and from a general desire for public safety appears to be an incomplete account. 

Instead, it appears that most order-keeping, criminal-justice, and law-enforcement activities in the west were privately run and operated long before the allegedly civilizing effect of formal law and its bans on carrying weapons.  Further still, the new formal law brought with it many of the same rent-seeking pathologies observable elsewhere.  Indeed, appointments to the positions of formal authority for law enforcement were often made as part of a pretext for protecting economic interests, which resulted in bloody disputes such as the Lincoln County War, which resulted from a challenge to a town leader’s general store monopoly and cattle interests, as well as the Johnson County War in Wyoming, a dispute between economic interests of large and small cattle operations.  Once again, Public Choice reveals the limits of suggesting that “public safety” is a comparable justification for restrictions on public carry for individual self-defense as it is practiced today. 

New York’s Sullivan Law met its end in Bruen for want of an analogue sufficiently comparable to save it.  In light of this, and its Twentieth Century provenance, the Sullivan Law itself is not likely to be presented as an analogue for later cases.  Even so, gun-control scholars have pointed to the Sullivan Law as the endpoint of an evolutionary process that began in earnest with surety statutes.  Surety statues themselves trace back to the Statute of Northampton, the subject of another historical stalemate.  Gun-control historians argued before Bruen that the surety statutes, plus their predecessors and progeny, reflect a distinct, and perhaps even more representative, historical tradition of firearms regulation.  These historians have accurately described the enforcement of social and economic order using, in part, peace bonds for carrying firearms.  But, they once again briskly conclude that surety statutes and their progeny, good-cause licensing schemes, were simply about prevention of gun violence, broadly understood. Yet again, the Public Choice lens adds some depth to this account.  The Sullivan Law bears the name of Timothy Sullivan, known as “Big Tim.”  Big Tim is broadly known as one of the most feared and effective bosses in the political machine, Tammany Hall.  Machine politics is a fascinating part of American history, and, as an aside, an interesting way to think about the nature of stable government.  Every regulation or law is usually put forth with a “public interest” purpose, only to largely exist as another source of rents for politicians to distribute.  To be sure, Big Tim’s eloquent speech about his motivations, not to mention the gripping narrative of an emergency physician, suggest a motivation for safety.  Nonetheless, evidence from the life and times of the Sullivan Law suggests favorable treatment for favored interest groups and selective enforcement against disfavored groups, up until the law’s last breath.  Celebrities and the wealthy, plus retired and present law enforcement officers, were usually granted licenses, while ordinary citizens were not.  Of course, one could argue that celebrities and the wealthy had reasonable cause to fear predation due to their wealth or to protect themselves from potentially dangerous fans, or one could argue that law enforcement officers on the whole are more likely to be well-trained and judicious in their use of force.  Such arguments seem somewhat thin in the face of historical and present practices of civilized concealed carry throughout the United States.  Indeed, even the Sullivan Law, along with its predecessors and progeny, was connected to economic rents and the ability of politicians to dole them out. 

In the end, it may be that the Bruen test is simply too restrictive for a Public Choice analysis to fit.  Both Heller and Bruen have faced criticism for leaving open questions about how to calibrate the strength of historical evidence, which time periods are relevant and which are outliers, and how to contend with late-comer developments that are now commonly-accepted, such as “longstanding” bans on possession by felons which date only to the Twentieth Century.  Even so, I propose that understanding historical analogues is limited if one only uses the lenses of academic history, legal reasoning, or public law social contract theory.  Economics can help, too, in understanding public carry laws.