The title of Saul Cornell’s recent blog post—The Myth of Non-enforcement of Gun Laws in Nineteenth Century America—leaves the impression that I will argue that nineteenth-century gun restrictions went unenforced. I will make no such argument. In some places, laws regulating the carrying of weapons were enforced strictly. In others, they were ignored. Some authorities enforced the laws against blacks but not against whites. My argument is targeted against a specific set of surety laws that Professor Cornell claims largely prohibited public carry outside the South during the nineteenth century. These laws, I will argue, neither broadly restricted public carry nor were widely enforced.
Professor Cornell has posited that the antebellum United States had two regulatory traditions governing the carrying of weapons. The South’s regulatory environment was permissive, he claims, because Southern laws prohibiting the carrying of concealed weapons did not prohibit people from bearing arms openly. Yet “[o]utside of the slave south,” he argues, “a more restrictive approach to gun regulation emerged, taking root in Massachusetts and spreading to other states.” Under this approach, which he dubs the Massachusetts Model, “no person may go armed . . . without reasonable cause to apprehend an assault or violence to his person, family, or property.”
There are two problems with this claim. First, Professor Cornell’s assertions are based on selectively quoting from the law. The full version of the provision contained a standing requirement that severely limited the law’s actual scope. Second, the historical evidence refutes the claim that Northern states prohibited public carry, either using this surety provision or the common law crime of going armed to the terror of the people. To the contrary, the “Massachusetts Model” did not serve as a model of prohibiting public carry anywhere, including in Massachusetts.
[For the full post, see the Second Thoughts blog at the Duke Center for Firearms Law.]