The Slave-State Origins of Modern Gun Rights

http://www.theatlantic.com/politics/archive/2015/09/the-origins-of-public-carry-jurisprudence-in-the-slave-south/407809/?utm_source=SFTwitter

Pull quote:
Southern men thus carried weapons both “as a protection against the slaves” and also to be prepared for “quarrels between freemen.”


Gun-rights advocates have waged a relentless battle to gut what remains of America’s lax and inadequate gun regulations. In the name of the Second Amendment, they are challenging the constitutionality of state and municipal “may issue” regulations that restrict the right to carry weapons in public to persons who can show a compelling need to be armed. A few courts are starting to take these challenges seriously. But what the advocates do not acknowledge—and some courts seem not to understand—is that their arguments are grounded in precedent unique to the violent world of the slaveholding South.

Claims that “may issue” regulations are unconstitutional have been rejected by most federal appellate courts—that is, until last year, when a court in California broke ranks and struck down San Diego’s public-carry regulation. This year, a court did the same with the District of Columbia’s rewritten handgun ordinance. Both decisions face further review from appellate courts, and perhaps also by the Supreme Court. If the justices buy this expansive view of the Second Amendment, laws in states such as New York, New Jersey, Rhode Island, Massachusetts, and Hawaii with the strictest public carry regulations—and some of the lowest rates of gun homicide—will be voided as unconstitutional.

Public-carry advocates like to cite historical court opinions to support their constitutional vision, but those opinions are, to put it mildly, highly problematic. The supportive precedent they rely on comes from the antebellum South and represented less a national consensus than a regional exception rooted in the unique culture of slavery and honor. By focusing only on sympathetic precedent, and ignoring the national picture, gun-rights advocates find themselves venerating a moment at which slavery, honor, violence, and the public carrying of weapons were intertwined.

The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.

more at link

?1443528709