Monday, July 11, 2022

Why the Second Amendment Applies Especially to Travelers

This Mural in the American Capitol was painted in 1862.  The mural has at least ten firearms in it. Three are carried by men on horseback, one is in a wagon. At the time, the right to bear arms while traveling was accepted and unremarkable.

The United States Supreme Court has defended and restored the other half of the right to keep and bear arms, the "bear" half, in the recent Bruen decision

Much work remains to be done. It is clear the people have a right to bear arms outside the home. One of the major purposes is for the defense of self and others.

An area left undefined in Bruen is the right to bear arms in defense of self and others while traveling, particularly while traveling across state lines.

There was no prohibition on carrying arms at the time of ratification in 1791. Carrying arms for defense, while traveling, was common and accepted. Even the strictest colonial restrictions on the bearing of arms, the East New Jersey law, enacted in 1686, had an exception for people who were traveling. The colonial law, which was in effect for about six years, was cited by both sides in the Bruen decision: From  P. 6 of  amicus curiae breif on Bruen. 

In 1686, East New Jersey enacted a law providing that no person “shall presume privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,” and that “no planter shall ride or go armed with sword, pistol or dagger” except certain officials and “strangers, travel-ling upon their lawful occasions through this Province, behaving themselves peaceably.”3

An exception noted in the earliest and most extreme of the colonial "bear arms" laws should be given some weight.  

As noted by an English traveler in the early Republic, traveling armed was common. From  Isaac Weld, TRAVELS THROUGH THE STATES OF NORTH AMERICA 233-34 (2d ed. 1799) (1796, on the roads from Kentucky/Tennessee to and from Philadelphia/ Baltimore: 

“the people all travel on horseback, with pistols and swords.”

There were, effectively, no other attempts to infringe on the right to bear arms until Kentucky enacted a law in 1813. The law was challenged in court, as a man was charged with carrying a sword cane. The law against carrying concealed weapons was struck down as unconstitutional under the Kentucky state constitution in 1822. Again, even this extreme, early law, relatively close to the ratification of the Bill of Rights in 1791, contained an exception for people who were traveling.

In the first Kentucky case outlawing concealed carry, there was an exception for carrying concealed while traveling. P. 25:
The first such law appears to have been enacted in Kentucky in 1813; it imposed a fine on anyone “who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless 26 when travelling on a journey.”37 Similar laws were en-acted in seven additional States or territories by 1860.38

England was more restrictive than the United States, but even in England it was clear carrying weapons for self defense while traveling, was common and accepted as a part of the right to keep and bear arms. From an 1870 English case from Kopel  p. 15-16

(“A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business” but not to carry arms in a manner “calculated to produce terror and alarm.”); Gun License Act, Act 33 & 34 Vict. c. 57 (1870) (10-shilling annual license from the post office to carry a firearm; postal clerks had no discretion to refuse a fee-paying applicant).

There was an upheaval in the law after the Civil War. Justice Thomas, in Bruen, says we should take into consideration what was considered to be the right to keep and bear arms in 1868, when the Fourteenth Amendment was ratified. 

When the amendment was ratified, Texas had reconstruction government which had imposed a new Constitution on the state. The new constitution had gutted the protection of the right to keep and bear arms which existed throughout Texas history to that point. The Fourteenth Amendment was clearly meant to insure freed slaves had the right to keep and bear arms. 

In 1871,  the Reconstruction government felt compelled to keep the right to bear arms while traveling

provided, that this section shall not be so contrued as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage...

After the Fourteenth Amendment was passed, numerous other states passed restrictions on the carry of weapons. These restrictions primarily had the effect of disarming freed slaves and other disfavored groups. But even these laws made exceptions for the right to bear arms while traveling.

A Tennessee law made clear an exemption for traveling, in 1878, in
State v. Callicutt, 1878.  p. 579

The law at issue had made it “a misdemeanor to sell, give, or loan a minor a pistol, or other dangerous weapon, except a gun for hunting, or weapon for defense in traveling.”10

Missouri enacted a law on carrying concealed weapons in 1879. Even that late restriction on bearing arms had an exemption for people who were traveling:

 Prior to 1909, the statutory exemption applied "to persons moving or traveling peaceably through this state." § 1275, RSMo 1879.

The traveling exemption in Missouri was made more restrictive in 1909 to change the traveling exception to: 

"is traveling in a continuous journey peaceably through this state"

1909 is much later in the game. It is clear carrying weapons, even concealed, was common and considered a right, before the statute in 1879 was enacted.

Arkansas law also made an exception for travelers, in 1881

Provided, further, That nothing in this act be so construed as to prohibit any person from carrying any weapon when upon a journey, or upon his own premises. 

Mississippi law had an exemption while traveling,Section 1027 as of 1888, although the exemption appears to be in place by 1880:

Prohibition on possession of concealed and prohibited weapons does not apply while traveling, or setting out on a journey: 

(b) That he was traveling and was not a tramp, or was setting out on a journey and was not a tramp;

Thus, even in a period when legislatures were moving to restrict the right to keep and bear arms, they recognized the right to bear arms while traveling.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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