SUPPORT FOR RIGHT TO CARRY WEAPONS IN PUBLIC IS RECENT
The recent movement towards “constitutional carry” rests under the assumption that the Second Amendment mandates that neither the federal government nor state governments can limit citizens carrying firearms. This would have been odd to Tennessee lawmakers and jurists of the late 19th and early 20th centuries, who interpreted the Second Amendment as a right against federal interference against state militias and not as an allencompassing individual right. In 19th-century jurisprudence, a state's constitution and laws, not the Second Amendment, governed how and when a state could regulate publicly carried firearms.
Tennessee has a long practice of firearms regulation and restriction. Like most other states, Tennessee law distinguished between arms for militia use and arms for other purposes, particularly those carried in public. In 1871, the Tennessee Supreme Court in Andrews v. State wrote that non-militia arms could be restricted in public because “The principle on which all right to regulate the use in public of [firearms], is, that no man can so use his own as to violate the rights of others, or of the community of which he is a member.” That decision also compared the right to carry a firearm to a church to claiming the right to take one's horse into a church. Subsequent state supreme court cases rejected constitutional claims for the right to carry concealed arms or firearms generally except for proper purposes.
The Tennessee Code Annotated of 1896 codified that it was illegal to carry publicly or privately a “belt or pocket pistol, revolver or any kind of pistol.” Tennessee law banned the sale or giving away of a pistol (except one for militia service), the sale of cap pistols and even of pistol cartridges. By 1896, state laws abolished the custom of carrying of arms while traveling.
In the early 1900s, the desire to suppress “pistol toters” led Tennessee legislators to introduce bills to increase penalties and prosecutions for carrying pistols, particularly concealed ones. Gov. Thomas Rye's first message to the General Assembly in 1915 called for enhanced enforcement of laws against pistols, and endorsed a federal ban on their manufacture except those that could be “lawfully carried,” as well as bans on mail-order pistols. In a 1931 case, the Supreme Court wrote that the legislature had intended to restrict the “normal” pistol since it was “usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for ‘the common defense.' ”
States like Tennessee were handsoff regarding weapons on one's own property in the name of a “natural right of self-defense.” Sometimes the line between ”natural right” and public carrying could be quite fine. In 1913, young Lafayette store owner Willie Vance was arrested for carrying a weapon within view of his patrons. A jury convicted Willie of carrying a dangerous weapon. He received a $50 fine and 10 days in the Macon County workhouse. Willie's connections saved him; dozens of influential local politicians included U.S. Rep. Cordell Hull, who pleaded a pardon from Rye. Petitioners argued that Willie had only “technically” violated the law and was otherwise law-abiding, not a “habitual carrier or a person who deliberately carries a pistol with the idea that at any time he may raise a personal difficulty or become involved in one and then have a pistol ready for use.”
As Vance's case shows, public order and the prevention of crime took precedence over the right to carry arms in public. The shift in public attitudes towards the right to carry weapons in public, particularly concealed weapons, represents not a return to Second Amendment originalism but more modern assumptions.
Dr. James V. Holton is a lecturer in history at Middle Tennessee State University.
The shift in public attitudes towards the right to carry weapons in public, particularly concealed weapons, represents not a return to Second Amendment originalism but more modern assumptions.