Amicus Curiae Brief — New York State Rifle & Pistol Association, Inc., et al., Petitioners v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al.

No. 20-843

In The

Supreme Court of the United States

___________

NEW YORK STATE RIFLE & PISTOL

ASSOCIATION, INC., et al.,

Petitioners,

v.

KEVIN P. BRUEN, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF NEW YORK STATE

POLICE, et al.,

Respondents.

___________

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

__________

BRIEF OF AMICI CURIAE FPC AMERICAN

VICTORY FUND, COALITION OF NEW JERSEY

FIREARMS OWNERS, SAN DIEGO COUNTY GUN

OWNERS, ORANGE COUNTY GUN OWNERS,

RIVERSIDE COUNTY GUN OWNERS,

CALIFORNIA COUNTY GUN OWNERS, AND

KNIFE RIGHTS FOUNDATION, INC.

IN SUPPORT OF PETITIONERS

__________

David T. Hardy

Counsel of Record

8987 E. Tanque Verde

No. 265

Tucson Arizona 85749

dthardy@mindspring.com

(520) 749-0241

i

TABLE OF CONTENTS

Page(s)

TABLE OF CONTENTS ...............................................i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF THE AMICI CURIAE ........................ 1

SUMMARY OF ARGUMENT ...................................... 2

ARGUMENT ............................................................... 3

I. Nineteenth-century state constitutions equated

“bear arms” with “carry arms for self-defense.” .... 3

II. Antebellum and post-Civil War case law confirm

the original public understanding of the Second

and Fourteenth Amendments. ............................. 10

A. Antebellum concealed weapons restrictions

and the right to arms. ...................................... 10

B. Post-Civil War cases treated “bear” and “carry”

as synonymous. ................................................ 13

III.Restrictions from the old west do not inform the

Second Amendment’s original meaning. .............. 15

A. Most pre-statehood restrictions violated the

later-enacted state constitutions and should

not overshadow those constitutions. ............... 17

B. Carry restrictions in the old west were rare

and narrow exceptions to the general rule that

carry was protected.......................................... 23

C. Annie Oakley and women’s rights in the old

west................................................................... 26

ii

IV. Carrying arms for self-defense was common and

known to the framing generations of 1791 and

1868. ....................................................................... 27

CONCLUSION ........................................................... 31

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrews v. State,

50 Tenn. (3 Heisk.) 165 (1871) ............................... 14

Aymette v. State,

21 Tenn. 152 (1840) .......................................... 12, 13

Barron v. Mayor and City Council of Baltimore,

32 U.S. 243 (1833) ................................................... 12

Bliss v. Commonwealth,

12 Ky. 90 (1822) ............................................ 7, 10, 11

City of Las Vegas v. Moberg,

1971-NMCA-074 ..................................................... 20

Dano v. Collins,

166 Ariz. 322 (Ariz. App. 1990) .............................. 18

District of Columbia v. Heller,

554 U.S. 570 (2008) ......................................... passim

English v. State,

35 Tex. 473 (1872) ................................................... 14

Fife v. State,

31 Ark. 455 (1876) ................................................... 15

Gamble v. United States,

139 S. Ct. 1960 (2019) ............................................. 16

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) .................................... 17

Grace v. District of Columbia,

187 F. Supp. 3d 124 (D.D.C. 2016) ......................... 24

In re Brickey,

8 Idaho 597 (1902) .................................................. 19

iv

Junction City v. Mevis,

226 Kan. 526 (1979) ................................................ 20

Nunn v. State,

1 Ga. 243 (1846) ................................................ 11, 12

Owen v. State,

31 Ala. 387 (1858) ................................................... 11

Salina v. Blaksley,

72 Kan. 230 (1905) .................................................. 20

State v. Buzzard,

4 Ark. 18 (1842) ................................................. 10, 11

State v. Chandler,

5 La. App. 489 (1850) .............................................. 11

State v. Mitchell,

3 Ind. 229 (1833) ..................................................... 10

State v. Reid,

1 Ala. 612 (1840) ............................................... 10, 11

Wilson v. State,

33 Ark. 557 (1878) ................................................... 15

Constitutional Provisions

Ariz. Const., Art.11, §26 (1912).................................. 18

Idaho Const., Article I, §11 (1889) ............................. 18

Kan. Const. B. of R. §4 ............................................... 20

New Mexico Const., Art. II, §6 (1912) ....................... 20

Tenn. Const. Art. I, §26 (1870)................................... 14

U.S. Const. amend. II ......................................... passim

U.S. Const. amend. V ................................................. 16

Wyo. Const. art. I, §24 (1889) .................................... 21

v

Statutes and Regulations

1869 N.M. Laws 312, ch. 32, §1 ................................. 17

1876 Wyo. Comp. Laws 352, ch. 52, §1 ...................... 17

1881 Kan. Sess. L. 80, ch. 37, §23 .............................. 20

1888 Id. Sess. Laws 23, §1 ......................................... 17

1889 Ariz. Sess. Laws 30, No. 13, §1 ......................... 17

1889 Idaho Sess. Laws 27 .......................................... 18

1890 Wyo. Terr. Laws, ch. 73, §96 ............................. 21

1903 Okla. Laws 643, ch. 25, art. 45, §584 ............... 17

906 Mass. Acts 150, ch. 172, §2 ................................. 25

Act of April 12, 1871, ch. 34, §1, 1871 Tex. Gen.

Laws 25 ................................................................... 14

Act of Feb. 16, 1875, §1, 1874–75 Ark. Laws 155 ..... 15

Act of June 11th, 1870, ch. 13 §1, 1870 Tenn. Pub.

Acts 28 ..................................................................... 14

Revised Statutes of Arizona Territory, Penal Code,

Title XI, §§381, 385, 390 (1901) ............................. 17

Wyo. Rev. Stat. §5051 (1899) ..................................... 21

Wyo. Unconsol. Law, ch. 52, §§1–3 (1876) ................ 21

Other Authorities

A Bill for Preservation of Deer (1785) ......................... 4

Applegate, Debby, THE MOST FAMOUS MAN IN

AMERICA: THE BIOGRAPHY OF HENRY WARD

BEECHER (2007) ....................................................... 29

Beecher, Henry Ward & Proctor, Edna, LIFE

THOUGHTS (1858) .................................................... 29

vi

Borthwick, J.D., THREE YEARS IN CALIFORNIA (1857)

................................................................................. 28

Burr, Aaron, THE TRIAL OF AARON BURR FOR HIGH

TREASON (1808) ....................................................... 28

Correa, Tom, Tombstone’s Ordinance No. 9 Was

Neither Fair Nor Equally Enforced, AM.

COWBOY CHRONICLES (Aug. 8, 2014) ...................... 18

Cramer, Clayton, LOCK, STOCK, AND BARREL (2018). 27

Dimsdale, Thomas, THE VIGILANTES OF MONTANA:

VIOLENCE AND JUSTICE ON THE FRONTIER (1920) ... 23

Ex-Congressman Chaffee Dead, SPRINGFIELD

REPUBLICAN, Aug. 10, 1896 .................................... 30

Features of Some Seasonable Sports, NEW YORK

TIMES, Jan. 7, 1900 ................................................. 30

Halbrook, Stephen P., THE RIGHT TO BEAR ARMS

(2021) ................................................................. 26, 30

Johnson, Nicholas J., et al., FIREARMS LAW AND THE

SECOND AMENDMENT: REGULATION, RIGHTS, AND

POLICY (3d ed. forthcoming 2021) .......................... 22

JOURNAL OF THE FIRST SENATE (1820) ....................... 13

Keith, Elmer, SIXGUNS (1961) .................................... 28

Kopel, David B., The Posse Comitatus and the Office

of Sheriff: Armed Citizens Summoned to the Aid of

Law Enforcement, 104 J. CRIM. L. & CRIMINOL. 671

(2015) ....................................................................... 23

Lamar, Howard Roberts, THE FAR SOUTHWEST, 1846–

1912: A TERRITORIAL HISTORY (1966, revised ed.

2000) .................................................................. 19, 24

McConnell, William J., IDAHO’S VIGILANTES (1984) .. 23

vii

Mocsary, George A. & Person, Debora A., A Brief

History of Public Carry in Wyoming, 21 WYO. L.

REV. 341 (2021) ....................................................... 21

Non-combatant’s Guide to the Gun Control Fight,

CHANGING TIMES: THE KIPLINGER REPORT, vol. 33

(Aug. 1979) .............................................................. 31

ORDINANCES OF THE MAYOR, ALDDERMEN AND

COMMONALTY OF THE CITY OF NEW YORK, IN FORCE

JANUARY 1, 1881 (1881)........................................... 25

PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION

OF THE PROPOSED STATE OF NEW MEXICO (1910) ... 22

Professor Mary Zeiss Strange Interview,

https://site.nhd.org/13476035/uploaded/Mary_Zeiss

_Stange_Interview.pdf ............................................ 26

Riley, Glenda, THE LIFE AND LEGACY OF ANNIE

OAKLEY, vol. 7 (1994) .............................................. 26

THE PAPERS OF THOMAS JEFFERSON, vol. 2 (J. Boyd

ed., 1950) ................................................................... 4

THE RECORDS OF THE ARIZONA CONSTITUTIONAL

CONVENTION OF 1910 (John S. Goff ed., 1991) ....... 21

THE WRITINGS OF CASSIUS MARCELLUS CLAY (1848) . 29

View and Reviews, NEW YORK WORLD, Aug. 18, 1895

................................................................................. 30

Volokh, Eugene, State Constitutional Rights to Keep

and Bear Arms, 11 TEX. REV. OF L. & POLICY 399

(2007) ......................................................................... 5

Walker, Henry P., Retire Peaceably to Your Homes:

Arizona Faces Martial Law, 1882, 10 J. OF Ariz.

HISTORY 1 (1969) ..................................................... 22

viii

Wallace, E. Gregory, Legal Corpus Linguistics and

the Meaning of “Bear Arms,” SECOND THOUGHTS

BLOG, July 16, 2021 .................................................. 3

Woods, Kyra Babcock, Corpus Linguistics and Gun

Control: Why Heller is Wrong, 2019 BYU L. REV.

1401 (2019) ................................................................ 3

1

INTEREST OF THE AMICI CURIAE1

The FPC American Victory Fund is a § 527 political

committee that works to defend and promote

fundamental rights, especially the right to keep and

bear arms.

The Coalition of New Jersey Firearms Owners

(“CNJFO”) is a nonprofit member organization based

in Sewell, New Jersey that was formed to educate the

public about the “need” standard, as well as to

advocate for lawful, safe, and responsible firearms

ownership in New Jersey. CNJFO strives to restore

the basic human right of self-defense for the people of

New Jersey—a right that, while guaranteed by the

Constitution to all citizens, all three branches of New

Jersey government have worked to effectively

obliterate.

San Diego County Gun Owners (“SDCGO”), Orange

County Gun Owners (“OCGO”), Riverside County Gun

Owners (“RCGO”), and California County Gun Owners

(“CCGO”) are political membership organizations

whose purposes are to protect and advance the Second

Amendment rights of residents of California. Their

memberships consist of Second Amendment

supporters who want to protect and restore the right

to keep and bear arms in California.

Knife Rights Foundation, Inc. is a non-profit

organization that serves its members and the public,

focused on protecting the rights of knife owners to keep

1 All parties consented to the filing of this brief. No counsel

for any party authored the brief in any part. Only amici funded

its preparation and submission.

2

and carry knives and edged arms, including for selfdefense. The purposes of the Knife Rights Foundation

include the promotion of education regarding state and

federal knife laws, and the defense and protection of

the civil rights of knife owners nationwide.

SUMMARY OF ARGUMENT

State constitutions from 1776 to 1868 demonstrate

unequivocally that “bear arms” was used to describe

carrying arms for individual self-defense. Whatever

the most common use of “bear arms” was in ordinary

speech, in constitutional enactments, “bear arms” was

universally understood as protecting defensive carry of

ordinary arms.

History and tradition confirm this. Nineteenthcentury carry restrictions, and the cases adjudicating

their constitutionality, reflect an understanding that

government must allow ordinary citizens to carry arms

for self-defense—bans on both open and concealed

carry were largely invalidated.

Most hostile to the right to bear arms were the

western territories, which were also the most hostile

to the rest of the Bill of Rights. But when the people—

who often came to resent their territorial

governments—ratified their state constitutions, these

arms restrictions were replaced by constitutional

provisions guaranteeing the right to carry arms. The

permanent safeguards enshrined in the state

constitutions, not the ad-hoc lawmaking of resented

governments in western territories, best reflect the

people’s understanding of their rights.

3

Indeed, nineteenth-century writings are replete

with examples of people carrying arms. Arms bearing

for hunting and self-defense was a universal American

habit that played a critical role in Americans’ daily life.

ARGUMENT

I. Nineteenth-century

state

constitutions

equated “bear arms” with “carry arms for

self-defense.”

This Court affirmatively rejected the assertion that

“bear arms” implies military use rather than civilian

self-defense in District of Columbia v. Heller, 554 U.S.

570, 588 (2008) (“that the phrase was commonly used

in a particular context does not show that it is limited

to that context, and, in any event, we have given many

sources where the phrase was used in nonmilitary

contexts); id. at 589 (“these purposive qualifying

phrases positively establish that ‘to bear arms’ is not

limited to military use”).

Proponents of the military-use-only view suggest

that their argument has been reinvigorated by postHeller databases reflecting common usage, such as

Corpus Linguistics. See Kyra Babcock Woods, Corpus

Linguistics and Gun Control: Why Heller is Wrong,

2019 BYU L. REV. 1401, 1419–20 (2019); but see E.

Gregory Wallace, Legal Corpus Linguistics and the

Meaning of “Bear Arms,” SECOND THOUGHTS BLOG,

July 16, 2021.2 But these arguments still fail to

account for the historical usages of “bear arms” outside

2 https://firearmslaw.duke.edu/2021/07/legal-corpuslinguistics-and-the-meaning-of-bear-arms/.

4

the military context. For example, anti-poaching

legislation drafted by Thomas Jefferson in 1779, and

introduced in the Virginia legislature by James

Madison in 1785, used “bear arms” to describe

hunting. Under the proposed law, anyone convicted of

killing deer out of season faced further punishment if,

in the following year, he “shall bear a gun out of his

inclosed ground, unless whilst performing military

duty.” A Bill for Preservation of Deer (1785), in 2 THE

PAPERS OF THOMAS JEFFERSON 444 (J. Boyd ed., 1950).

The illegal gun carrier would have to return to court

for “every such bearing of a gun” to post an additional

good-behavior bond. Id. According to the MadisonJefferson bill, “performing military duty” was but one

way to “bear a gun.”

But the conclusive refutation to the claim that

“bear arms” referred only to carry in a military sense

is found in state constitutions from American

Independence through the Fourteenth Amendment’s

ratification. These show unequivocally that “bear

arms” was used to describe civilian self-defensive use

as well as military employment. Whatever the most

common use of “bear arms” was in ordinary speech

over this period, when used in constitution drafting, it

was universally accepted as including carrying arms

for self-defense.

From 1776 to 1868, most states ratifying a

constitutional arms guarantee made it protect either

the keeping and bearing of arms or simply the bearing

5

of arms,3 and described the intent behind the arms

guarantee in terms of defending persons or entities.

The following state constitutions are listed in

chronological order, and abstracted from Professor

Eugene

Volokh’s

encyclopedic

work,

State

Constitutional Rights to Keep and Bear Arms, 11 TEX.

REV. OF L. & POLICY 399 (2007). Where a state

adopted a constitutional provision substantially

identical to an earlier provision, it is designated with

an asterisk; where it adopted a dissimilar new

provision, it is designated with a double asterisk. Some

states described the arms right as one of “the people,”

using the plural there and “themselves” in the purpose

clause, while others described it was one of “every

person” or “every citizen,” and used “himself” or its

equivalent for the same purpose.

Year State Arms Right

For the

Defense Of

1776

PA

“bear arms”

“themselves and

the state”

1776

NC

“keep and bear”

“the State”

1777

VT

“bear arms”

“themselves and

the State”

1780

MA

“keep and bear”

“common

defense”

3 This may reflect an understanding that, if the bearing of

arms for self-defense were protected, the right to keep them was

superfluous.

6

1790

PA*

“bear arms”

“themselves and

the State”

1796

TN

“keep and bear”

“common

defense”

1799

KY

“bear arms”

“themselves and

the State”

1802

OH

“bear arms”

“themselves and

the State”

1816

IN

“bear arms”

“themselves and

the State”

1817

MS

“bear arms”

“himself and the

state.”

1818

CT

“bear arms”

“himself and the

state”

1819

ME

“keep and bear”

“the common

defense.”

1819

AL

“bear arms”

“himself and the

state”

1820

MO

“bear arms”

“defense of

themselves and

of the state.”

1834

TN*

“keep and bear”

“their common

defense”

1835

MI

“bear arms”

“himself and the

state”

1836

TX

“bear arms”

“himself and the

republic”

7

1836

AR

“keep and bear”

“their common

defense”

1838

FL

“bear arms”

“their common

defense”

1845

TX**

“keep and bear”

“himself or the

State”

1850

MI*

“bear arms”

“himself and the

state”

1850

KY*

“bear arms”

“themselves and

the State”4

1851

OH*

“bear arms”

“their defense

and security”

1851

IN*

“bear arms”

“themselves and

the State”

1857

OR

“bear arms”

“themselves, and

the State”

1859

KS

“bear arms”

“their defense

and security”

1861

AR*

“keep and bear”

“their individual

or common

defense”

1865

MO*

“bear arms”

“themselves and

the lawful

4 Kentucky added, “but the General Assembly may pass laws

to prevent persons from carrying concealed arms,” underscoring

that “bear arms,” referred to an individual right to carry arms.

Kentucky’s concealed weapons law had been struck down in Bliss

v. Commonwealth, 12 Ky. 90 (1822).

8

authority of the

State”

1868

SC

“keep and bear”

“the common

defense”

1868

TX

“keep and bear”

“himself or the

State”5

1868

MS*

“keep and bear”

“their defense”

1868

FL

“bear arms”

“themselves and

of the lawful

authority of the

State”

1868

AR*

“keep and bear”

“common

defense”

From 1776 to 1868, the people of Alabama,

Connecticut,

Indiana,

Kentucky,

Michigan,

Mississippi, Missouri, Ohio, Oregon, Pennsylvania,

Texas, and Vermont—twelve states comprising nearly

half the Union6— twenty-one times guaranteed a right

to “bear arms” in isolation, without reference to “keep,”

and always for purposes that expressly and uniformly

included individual self-defense.

The alternate formulation of the right—not just

“bear” but “keep and bear”—likewise demonstrates

that those drafters understood “bear” to mean “carry.”

5 The 1868 provision added, “under such regulations as the

Legislature may prescribe.”

6 In 1776 there were 13 states, in 1822, there were 24, and in

1868, 37.

9

Over the course of the nineteenth century, some states

attached addenda that added legislative power to

regulate the right. All but one of these addenda

focused upon carrying, and most focused upon

concealed carrying. These would have been necessary

only if the drafters understood “bear” to include

civilian carry.

In 1868 Georgia adopted a guarantee paralleling

that of the federal Second Amendment, adding “but

the general assembly shall have power to prescribe by

law the manner in which arms may be borne.” That

same year, Texas guaranteed a right to keep and bear

arms, adding “under such regulations as the

legislature may prescribe.”

Two years later (i.e., after ratification of the 14th

Amendment), Tennessee, which guaranteed a right to

keep and bear arms “for the common defense,” added

“but the Legislature shall have power, by law, to

regulate the wearing of arms with a view to prevent

crime.” In 1875, Missouri guaranteed a citizen’s

keeping and bearing of arms “in defense of his home,

person and property,” adding “but nothing herein

contained is intended to justify the practice of wearing

concealed weapons.”

Three states followed this pattern in 1876. The new

state of Colorado adopted a guarantee patterned after

that of Missouri, and similarly ending with “but

nothing herein contained is intended to justify the

practice of carrying concealed weapons.” Texas revised

its guarantee to end with, “but the Legislature shall

have power, by law, to regulate the wearing of arms,

with a view to prevent crime.” Finally, North Carolina

added, “Nothing herein contained shall justify the

10

practice of carrying concealed weapons, or prevent the

legislature from enacting penal statutes against said

practice.” None of these additions would have made

sense if “bear arms” excluded civilian carry.

The argument that the framing generation,

whether of 1791 or 1868, did not understand “bear

arms” to mean “carry arms for self-defense,” is

untenable. Whatever these generations’ word usage in

everyday conversation, when the words were used in

constitutions, “bear arms” meant “carrying for a

particular purpose—confrontation,” Heller, 554 U.S. at

584, which included self-defense as well as organized

resistance. Heller, therefore, is not only binding

precedent, but also historically accurate.

II. Antebellum and post-Civil War case law

confirm the original public understanding of

the Second and Fourteenth Amendments.

A. Antebellum concealed weapons restrictions

and the right to arms.

The earliest American arms restrictions were bans

on concealed carrying, mostly enacted in states on the

then-southwestern frontier. These were (to judge by

the descriptions of the courts that assessed their

constitutionality) motivated by the judgment that, in

a society that accepted being openly armed, carrying a

concealed arm was mischievous.

These laws were struck down in Bliss v.

Commonwealth, 12 Ky. 90 (1822), and upheld in State

v. Mitchell, 3 Ind. 229 (1833), State v. Reid, 1 Ala. 612

(1840), State v. Buzzard, 4 Ark. 18 (1842), and State v.

11

Chandler, 5 La. App. 489 (1850). Of these five courts,

only the Buzzard court had any doubt that “bear arms”

meant “carry weapons.” Bliss involved a divided court,

dealing with a constitution whose right to arms was

for “the common defense.” See also Owen v. State, 31

Ala. 387 (1858) (“The word ‘carries,’ in the [statutory]

section above cited, was used as the synonym of

‘bears’”).

Several of the decisions made clear their basis in

the fact that the legislature had only outlawed one

mode of carrying arms. The Louisiana court noted that

the law “interferes with no man’s right to carry arms

(to use its words) ‘in full open view,’ which places men

upon an equality.” Chandler, 5 La. App. at 490. The

Alabama court cautioned that “A statute which, under

the pretense of regulating, amounts to a destruction of

the right, or which requires arms to be so borne as to

render them wholly useless for the purpose of defense,

would be clearly unconstitutional.” Reid, 1 Ala. at 616.

This understanding was reinforced by Nunn v.

State, 1 Ga. 243 (1846), in which the Georgia Supreme

Court assessed the constitutionality of a poorly drafted

statute7 that, on its face, banned the carrying of all but

the largest handguns, “known as horsemen’s pistols.”

7 Among other apparent errors, the statute banned the sale

or carrying of certain classes of arms, then contained an

exemption for open carry. The exemption, however, only covered

four classes of arms, one of which was not banned in the first

place.

12

Applying the federal Second Amendment,8 the court

concluded:

We are of the opinion, then, that so far as

the act of 1837 seeks to suppress the

practice of carrying certain weapons

secretly, that it is valid, inasmuch as it does

not deprive the citizen of his natural right of

self-defence, or of his constitutional right to

keep and bear arms. But that so much of it,

as contains a prohibition against bearing

arms openly, is in conflict with the

Constitution, and void….

Id. at 25. A different approach was taken in Tennessee,

whose right to arms was limited to bearing arms “for

their common defense.” In 1834, its legislature made

concealed carry of “Bowie knives” and “Arkansas

toothpicks”9 a misdemeanor and six years later its

Supreme Court upheld the measure. Aymette v. State,

21 Tenn. 152 (1840). The court reasoned that the

Tennessee right to bear arms was for the “common

defense,” thus it was meant to “protect the public

liberty, to keep in awe those who are in power, and to

maintain the supremacy of the laws and the

constitution.” Id. at 158. The knives at issue, it found,

8 Which may seem anomalous, after Barron v. Mayor and City

Council of Baltimore, 32 U.S. 243 (1833). The court, like others of

the period, took seriously the concept that bills of rights do not

create rights, but rather guarantee pre-existing rights. Under

that approach, that other American constitutions recognized a

right was at least evidence that the right exists even where it has

not been set out in writing.

9 Arkansas Toothpicks were long, sharply pointed, doubleedged daggers.

13

were primarily suited for “private broils, and which

are efficient only in the hands of the robber and the

assassin.” Id. It added that “to bear arms in defense of

the State is to employ them in war, as arms are usually

employed by civilized nations.” Id. at 160.

The predominant understanding of the right to

arms over this period thus reflects: (1) “bear arms”

meant “carry arms,” and that accordingly (2) a

government could not ban both open and concealed

carry. The minority view, that “bear” meant “carry in

a military sense” came in two states, both of whose

constitutions limited their arms right to use in “the

common defense.”

It is noteworthy here that the First Congress did

consider adding “for the common defense” to the

Second Amendment—and voted it down. JOURNAL OF

THE FIRST SENATE 77 (1820) (“On motion to amend

article the fifth, by inserting the words ‘for the common

defense’ next to the words ‘bear arms:’ It passed in the

negative.”).

B. Post-Civil War cases treated “bear” and

“carry” as synonymous.

A second form of American arms limitations had a

slightly later point of origin than did bans on concealed

carry. In the chaos and violence of the post-Civil War

era, a few states enacted laws more broadly restricting

the carrying of arms.

The first of the challenged postbellum statutes was

enacted in Tennessee, whose constitution protected

the bearing of arms “for their common defense.” In

1870, this was amended to add “but the Legislature

shall have power, by law, to regulate the wearing of

14

arms with a view to prevent crime.” Tenn. Const. Art.

I, §26 (1870). Its legislature then prohibited the

carrying of “any belt or pocket pistol or revolver"

whether "publicly or privately.” Act of June 11th, 1870,

ch. 13 §1, 1870 Tenn. Pub. Acts 28.

The ban on carrying all pistols was voided. The

Tennessee Supreme Court distinguished between

arms that were “adapted to . . . the efficiency of the

citizen as a soldier” and arms that were not. The right

to the former class of arms, military-sized handguns,

was absolutely protected; the carry of small “pocket”

handguns could be restricted. Andrews v. State, 50

Tenn. (3 Heisk.) 165, 178–79, 182 (1871).

Texas followed a similar course. In 1868, it added

“under such regulations as the legislature may

prescribe” to its arms guarantee. Tex. Const. Art. I,

§13 (1868). Its legislature then prohibited the carrying

of “any pistol, dirk, dagger, slung-shot, sword-cane,

spear, brass-knuckles, bowie-knife” except for

“immediate and pressing” need of self-defense. Act of

April 12, 1871, ch. 34, §1, 1871 Tex. Gen. Laws 25.

In English v. State, 35 Tex. 473 (1872), the

defendants were charged with carrying a butcher knife

and a pistol. The Texas Supreme Court held that the

arms whose possession and carrying is protected by

the Second Amendment are “the arms of the militia

man or soldier.” The Court listed the weapons thus

protected: muskets, bayonets, “holster pistol and

carbine,” and others. Id. at 476. Turning to the Texas

constitutional guarantee, it added “[o]ur constitution,

however, confers upon the legislature the power to

regulate the privilege.” Id. at 479.

15

Four years later, Arkansas enacted a similar

statute banning the carrying of, inter alia, “any pistol

of any kind whatever.” Act of Feb. 16, 1875, §1, 1874–

75 Ark. Laws 155. The Arkansas Supreme Court

reviewed the law under its state constitution, whose

arms guarantee was for the “common defense.” Ark.

Const., art. II, §26. It held that the arms whose carry

was protected were rifles, shotguns, army and navy

revolvers, but not “the pocket pistol.” Fife v. State, 31

Ark. 455, 460–61 (1876); see also Wilson v. State, 33

Ark. 557 (1878).

It should be recognized that these three states were

“outliers” of the period. The cases were also presented

in an unusual constitutional context. Arkansas had

adopted a constitutional arms right limited to the

“common defense,” Texas had added a provision

expressly authorizing the legislature to regulate the

carrying of arms, and Tennessee had done both. Even

under these conditions, these courts saw that “bear”

meant “carry.” That “bear” might have a military

implication if linked to “the common defense” led them

to cabin what arms might be borne or carried, but not

to doubt that a civilian carrying an arm was “bearing”

it in a constitutional sense.

III. Restrictions from the old west do not inform

the Second Amendment’s original meaning.

Because “[c]onstitutional rights are enshrined with

the scope they were understood to have when the

people adopted them,” Heller “adopt[ed] . . . the

original understanding of the Second Amendment,”

16

554 U.S. at 625, 634–35, and focused overwhelmingly

on sources from or available in the founding era.

Post-Civil War material, by contrast, was useful

only in the sense that it informed the Second

Amendment’s original meaning. “Since those

discussions took place 75 years after the ratification of

the Second Amendment, they do not provide as much

insight into its original meaning as earlier sources.”

Id. at 614. Only to the extent nineteenth century

sources reflect “the origins and continuing significance

of the Amendment” are they “instructive.” Id.

Firearm restrictions from the old west—enacted

roughly a century after the ratification of the Second

Amendment and often before the western territories

became sates—have no meaningful bearing on the

Second Amendment’s original meaning. As this Court

recently noted in discounting the importance of

treatises “published after the Fifth Amendment was

adopted,” nineteenth-century sources were not used to

define the public understanding of the Second

Amendment in Heller, but instead “were treated as

mere confirmation of what the Court thought had

already been established.” Gamble v. United States,

139 S. Ct. 1960, 1975–76 (2019).

Indeed, it is self-evident that obscure, selectively

enforced (if enforced at all), one-off laws that

prohibited the bearing of arms in the old west do not

reflect the Founders’ intentions in ratifying the right

to “bear” arms. As Chief Justice Marshall explained,

“the enlightened patriots who framed our constitution,

and the people who adopted it, must be understood to

have employed words in their natural sense, and to

have intended what they have said.” Gibbons v. Ogden,

17

22 U.S. (9 Wheat.) 1, 188 (1824). The Founders said

that the people have the right to “bear Arms.” U.S.

Const. amend. II (emphasis added), regardless of the

practice in future frontier towns.

A. Most pre-statehood restrictions violated the

later-enacted state constitutions and should

not overshadow those constitutions.

Between 1869 and 1903, then-territories New

Mexico, Wyoming, Idaho, Arizona, and Oklahoma

enacted restrictions on carrying weapons in

incorporated cities and towns, or authorized

municipalities to adopt their own restrictions.10 Far

outside the national mainstream, these laws covered

few residents. For example, the 1880 census shows the

population density of Wyoming was 0.2 persons per

square mile, that of Arizona and Idaho 0.3, and that of

New Mexico 0.9. 1880 Census, table 1d.11

The pre-state territories in the old west were not

constrained by state constitutions, and thus

sometimes enacted ordinances that would violate the

constitutions they would later ratify upon statehood.

For example, the territory of Arizona’s 1901

ordinance forbidding carry, Revised Statutes of

Arizona Territory, Penal Code, Title XI, §§381, 385,

390 (1901), would have been in direct conflict with the

state of Arizona’s 1912 constitutional right to bear

10 1869 N.M. Laws 312, ch. 32, §1; 1876 Wyo. Comp. Laws

352, ch. 52, §1; 1888 Id. Sess. Laws 23, §1; 1889 Ariz. Sess. Laws

30, No. 13, §1; 1903 Okla. Laws 643, ch. 25, art. 45, §584.

11 The density of Oklahoma was not reported since it was not

organized as a territory until 1890.

18

arms that ensured that “The right of the individual

citizen to bear arms in defense of himself or the State

shall not be impaired, but nothing in this section shall

be construed as authorizing individuals or

corporations to organize, maintain, or employ an

armed body of men.” Ariz. Const., Art.11, §26 (1912).12

Thus, when the state of Arizona banned concealed

carry, it was later upheld only because “[t]he right to

bear arms in self-defense is not impaired by requiring

individuals to carry weapons openly. Appellants are

free to bear exposed weapons for their defense.” Dano

v. Collins, 166 Ariz. 322, 323–24 (Ariz. App. 1990).

Similarly, the Supreme Court of Idaho in 1902

reversed a conviction for violating a pre-statehood ban

on carrying a deadly weapon within city limits, 1889

Idaho Sess. Laws 27, because the territorial law

violated both the Second Amendment and the state of

Idaho’s constitutional right to bear arms—which

provided that “The people have the right to bear arms

for their security and defense, but the legislature shall

regulate the exercise of this right by law.” Idaho

Const., Article I, §11 (1889). The court held:

Under these constitutional provisions,

the legislature has no power to prohibit a

citizen from bearing arms in any portion

12 Tombstone, Arizona required a permit to carry in 1881,

Tombstone, Ariz., Ordinance 9 (Apr. 19, 1881), but rather than

justify modern-day restrictions, it demonstrates how unjust

selective permitting laws can be. See Tom Correa, Tombstone’s

Ordinance No. 9 Was Neither Fair Nor Equally Enforced, AM.

COWBOY CHRONICLES (Aug. 8, 2014),

http://www.americancowboychronicles.com/2014/08/tombstonesordinance-no9-was-neither.html.

19

of the state of Idaho whether within or

without the corporate limits of cities,

towns, and villages. The legislature may,

as expressly provided in our state

constitution, regulate the exercise of this

right, but may not prohibit it. A statute

prohibiting the carrying of concealed

deadly weapons would be a proper

exercise of the police power of the state. .

. . [T]he statute in question . . . prohibits

the carrying of them in any manner in

cities, towns, and villages. We are

compelled to hold this statute void.

In re Brickey, 8 Idaho 597, 599 (1902).

The New Mexico Court of Appeals held a similar

law unconstitutional.13 Reversing a city ordinance

making it “unlawful for any person to carry deadly

weapons, concealed or otherwise, on or about their

persons, within the corporate limits of the City of East

Las Vegas,” the court held that the law violated New

Mexico’s constitutional arms right, which provided:

“The people have the right to bear arms for their

13 New Mexico’s territorial government was not especially

concerned with respecting the people’s rights. For example, in

1852—when the military was “a stronger power than the civil

government”—the military commander of the territory, Colonel

Edwin Sumner, wrote in a report to Washington that “[t]he New

Mexicans are thoroughly debased and totally incapable of selfgovernment, and there is no latent quality about them that can

ever make them respectable.” Howard Roberts Lamar, THE FAR

SOUTHWEST, 1846–1912: A TERRITORIAL HISTORY 83, 84 (1966,

revised ed. 2000). “As of 1870, territorial judges were still

struggling to introduce the jury system and American procedures

into their courtrooms.” Id. at 114–15.

20

security and defense, but nothing herein shall be held

to permit the carrying of concealed weapons.” City of

Las Vegas v. Moberg, 1971-NMCA-074, ¶4 (quoting

New Mexico Const., Art. II, §6 (1912)). The court

concluded that “an ordinance may not deny the people

the constitutionally guaranteed right to bear arms, and

to that extent the ordinance under consideration is

void.” Id.

An 1881 Kansas statute allowed some

municipalities to “prohibit and punish the carrying of

firearms, or other dangerous or deadly weapons,

concealed or otherwise. . . .” 1881 Kan. Sess. L. 80, ch.

37, §23. Thereafter, the city of Salina in 1901 allowed

punishment for the “carrying of fire arms or other

deadly weapons, concealed or otherwise.” See Salina v.

Blaksley, 72 Kan. 230 (1905). The Kansas Supreme

Court upheld the law, but under a collective rights

interpretation of Kansas’s constitutional arms

provision, id. at 231, which Heller held cannot be

applied to the Second Amendment.

Later in the twentieth century, Kansas’s Supreme

Court distanced itself from Blaksley, without expressly

overruling it. In Junction City v. Mevis, the court held

that a law forbidding anyone “to carry or use, a

revolver or pistol, shotgun or rifle of any description”

without a license was “unconstitutionally overbroad

and an unlawful exercise of the city’s police power.” 226

Kan. 526, 533, 534 (1979). In 2010, the Kansas

legislature amended the state constitution to make the

arms provision clear: “A person has the right to keep

and bear arms for the defense of self, family, home and

state, for lawful hunting and recreational use, and for

any other lawful purpose. . . .” Kan. Const. B. of R. §4.

21

Upon entering statehood, Wyoming replaced its

severe carry restriction with one that limited the

manner in which arms could be carried. Compare Wyo.

Unconsol. Law, ch. 52, §§1–3 (1876) (“it shall be

unlawful for any resident of any city, town, or village,

or for any one not a resident of any city, town or village,

in said Territory, but a sojourner therein, to bear upon

his person, concealed or openly, any fire arm or other

deadly weapon, within the limits of any city, town or

village”), with Wyo. Const. art. I, §24 (1889) (“The right

of citizens to bear arms in defense of themselves and of

the state shall not he denied.”); and 1890 Wyo. Terr.

Laws, ch. 73, §96 (codified at Wyo. Rev. Stat. §5051

(1899)) (“Every person, not being a traveler, who shall

wear or carry any dirk, pistol, bowie knife, dagger,

sword-in-cane, or any other dangerous or deadly

weapon concealed, or who shall carry or wear any such

weapon openly, with the intent, or avowed purpose, of

injuring his fellow-man, shall be fined”) (emphasis

added). Outside of 1876 to 1889, Wyoming always

allowed open carry and has never required a permit.

See George A. Mocsary & Debora A. Person, A Brief

History of Public Carry in Wyoming, 21 WYO. L. REV.

341 (2021).

Both New Mexico and Arizona rejected proposed

changes to their new constitutional arms provisions

that would have allowed greater regulation of arms

carrying. See THE RECORDS OF THE ARIZONA

CONSTITUTIONAL CONVENTION OF 1910, at 678–79

(John S. Goff ed., 1991) (defeating proposal “to regulate

the wearing of weapons to prevent crime” and to

“regulate the exercise of this right by law”);

PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF

22

PROPOSED STATE OF NEW MEXICO 81 (1910)

(defeating proposal providing that “the legislature may

regulate the exercise of this right by law”).

THE

Because “[w]estern state constitutional conventions

often took place amidst high dissatisfaction with

territorial governments,” Nicholas J. Johnson, et al.,

FIREARMS LAW AND THE SECOND AMENDMENT:

REGULATION, RIGHTS, AND POLICY 518 (3d ed.

forthcoming 2021), restrictions enacted by territorial

governments that were extinguished upon statehood

have little value in interpreting the Second

Amendment. More relevant are the responses of the

people in each former territory, who organized a

constitutional convention upon entering the Union for

the purpose of securing an arms right in their new

state constitution. “State constitutional conventions

know that their proposed constitutions must win a

popular vote in a general election. The assent of the

people as a whole—not just a majority of legislators—

is necessary. The constitutional conventions often

create permanent safeguards against the recurrence of

old legislative mistakes.” Id. Thus, state constitutions

better reflect the people’s understanding of their rights

than territorial laws.

It is also important to recognize the importance of

bearing arms in the old west. Frontier territories

sometimes approached anarchy—in 1882, President

Chester A. Arthur formally threatened to put Arizona

Territory under martial law.14 Many territories and

14 See Henry P. Walker, Retire Peaceably to Your Homes:

Arizona Faces Martial Law, 1882, 10 J. OF ARIZ. HISTORY 1 (1969).

The proclamation included the finding that “it has become

23

states not only respected the right of the people to bear

arms, but depended on it for order and security. See

generally Thomas Dimsdale, THE VIGILANTES OF

MONTANA: VIOLENCE AND JUSTICE ON THE FRONTIER

(1920); William J. McConnell, IDAHO’S VIGILANTES

(1984); David B. Kopel, The Posse Comitatus and the

Office of Sheriff: Armed Citizens Summoned to the Aid

of Law Enforcement, 104 J. CRIM. L. & CRIMINOL. 671,

802 (2015).

The rare laws forbidding carry in the old west were

often superseded by state constitutions or held

unconstitutional, and should not overshadow the

common practice and need of carrying arms

throughout most of the west.

B. Carry restrictions in the old west were rare

and narrow exceptions to the general rule

that carry was protected.

The old west ordinances were responses to shortlived local conditions—namely the frequent mass

arrival of large numbers of transient cowboys eager for

excitement in town. The laws do not show that carry

bans are somehow justified in large urban areas, or

anywhere else. The governments that enacted them

were not designed for dispassionate adjudication of

constitutional issues.

More often than not, territorial appointees

after 1865 were political hacks, defeated

congressmen, or jobless relatives of

congressmen and cabinet members. These

impracticable to enforce by ordinary course of judicial proceedings

the laws of the United States within that Territory….”

24

appointees owed their loyalty neither to the

territory nor to the branch of government

they represented. Thus a territorial judge

whose appointment came through a

powerful senator could thumb his nose at

the Justice Department, which theoretically

had jurisdiction over his actions. An

unpopular

governor

with

strong

congressional backing could stay in office

despite a howl of protest from his territorial

constituents.

Lamar, THE FAR SOUTHWEST, at 10.

When presented with ordinances “almost

exclusively from the frontier and Wild West,” Judge

Richard J. Leon, Jr., wrote:

These laws . . . are needles in a legal

haystack and come nowhere close to

establishing a “universal and longestablished tradition,” of prohibiting the

carrying of firearms in populated

areas. They were in place in only an

infinitesimal fraction of American

jurisdictions, governed a minute portion

of the Nation’s population, and were

found almost entirely in a particular,

homogenous region.

Grace v. District of Columbia, 187 F. Supp. 3d 124, 139

n.14 (D.D.C. 2016) (citation omitted). The “particular,

homogenous region” in which these laws existed were

undeveloped, lawless frontiers that long ago

disappeared. Cf. Heller, 554 U.S. at 632 (“In any case,

we would not stake our interpretation of the Second

25

Amendment upon a single law . . . that contradicts the

overwhelming weight of other evidence.”).

Across the rest of the country, the practice in the

great majority of states was that ordinary citizens had

a right to bear arms. In 1881, New York City for the

first time restricted the carrying of concealed—but not

openly carried—weapons. ORDINANCES OF THE MAYOR,

ALDDERMEN AND COMMONALTY OF THE CITY OF NEW

YORK, IN FORCE JANUARY 1, 1881, at 214–15 (1881)

(“Every person . . . who shall have in his possession

within the city of New York a pistol of any description

concealed on his person, or not carried openly, shall be

deemed guilty of a misdemeanor.”). Massachusetts did

not require authorization to carry a loaded pistol or

revolver until 1906. 1906 Mass. Acts 150, ch. 172, §2.

New Jersey did not ban open carry until 1966. Thus,

the general rule throughout the nineteenth century

was that the carry of handguns by ordinary Americans

was allowed in some manner.

The old west is the last place one should look for

precedent on the historical scope of constitutional

rights. The era was notorious for violations of a whole

host of provisions of the Bill of Rights—not just the

Second Amendment. And the carry bans of the old

west were temporary expedients for towns dealing

with large groups of cowherds eager to drink, gamble,

and fight. When statehood replaced ad-hoc lawmaking

in the territories, the right to bear arms would adorn

the new constitutions, and many of the old laws would

be declared unconstitutional.

26

C. Annie Oakley and women’s rights in the old

west.

The anti-gun territorial laws showed little regard

for the rights and needs of women to defend

themselves in the old west. Annie Oakley answered

that by teaching “15,000 women how to shoot,” and

announcing that she “would like to see every woman

know how to handle [firearms] as naturally as they

know how to handle babies.” Stephen P. Halbrook, THE

RIGHT TO BEAR ARMS 295 (2021) (citations omitted).

“[I]n 1901, she declared: ‘Any woman who does not

thoroughly enjoy tramping across the country on a

clear, frosty morning with a good gun and a pair of

dogs does not know how to enjoy life.’” 7 Glenda Riley,

THE LIFE AND LEGACY OF ANNIE OAKLEY 7 (1994).

“When a woman was in the streets, Annie urged

during a 1904 visit to Cincinnati, she should not carry

her revolver in her handbag but should have it ready

at all times by concealing it within the folds of a small

umbrella. Wearing a stylish, floor-length dress with

full sleeves and a high collar, Annie posed for

photographs showing women how to prepare

themselves and their umbrellas to fend off thieves or

‘murderous attack.’” Id. Indeed, “Annie Oakley felt a

handgun was the appropriate firearm for selfdefense—it could be neatly tucked away in a muff or

parasol. Given her own history of apparent sexual

abuse, she had good reason to take self-defense

seriously.” Professor Mary Zeiss Strange Interview,

https://site.nhd.org/13476035/uploaded/Mary_Zeiss_S

tange_Interview.pdf.

Annie Oakley, far better than the laws aimed at

extinguishing outlawry in the rough and violent

27

territories of the old west, represented the rights and

needs of women to defend themselves against the same

threats.

IV.Carrying arms for self-defense was common

and known to the framing generations of 1791

and 1868.

The protections afforded arms bearing in the 18th

and 19th centuries reflected a simple reality: arms

bearing for hunting and self-defense was a universal

American practice and had played a key role in

America’s western expansion.

In the 19th century, travelers’ accounts were a

popular form of literature, and historian Clayton

Cramer has extensively studied these with an eye to

assessing the frequency of gun ownership on the

American frontier. See, e.g., Clayton Cramer, LOCK,

STOCK, AND BARREL (2018). Cramer notes, inter alia,

an 1830 account that “the long rifle is familiar to every

hand,” an 1831 report that “there is not a farmer but

passes some of his time hunting and owns a good gun,”

and an 1836 account of wagons bearing immigrants to

Michigan: “Each emigrant generally had a wagon or

two. . . . The man walked by the side of his team with

his rifle over his shoulder.” Id. at 98, 99, 101. Cramer

notes that when Frederick Law Olmstead observed a

gentleman carrying a handgun, he asked his fellow

railroad passengers whether it was common to carry a

pistol in Kentucky. One answered “Yes, very

generally,” and the other said “commonly, but not

generally.” Id. at 118.

28

When Aaron Burr was tried for treason in 1807, the

prosecution cited an armed gathering of his followers,

as proof that he meant to levy war against the United

States. His attorney responded, “In the upper country

every man has a gun; a majority of the people have

guns everywhere, for peaceful purposes.” Aaron Burr,

THE TRIAL OF AARON BURR FOR HIGH TREASON 659

(1808).

In 1857, J. D. Borthwick travelled to California. He

and his companions prepared by purchasing arms, “for

a revolver and a bowie-knife were considered the first

items in a California outfit.” J.D. Borthwick, THREE

YEARS IN CALIFORNIA 7 (1857). In San Francisco, he

attended a masquerade where arms were forbidden.

“Several doorkeepers were in attendance, to whom

each man as he entered delivered up his knife or pistol,

receiving a check for it, just as one does for his cane or

umbrella at the door of a picture gallery.” Id, at 77-78.

Borthwick was amused to see that “If any man

declared that he had no weapon, the statement was so

incredible that he had to submit to being searched. . .

.” Id. at 78.

On the frontier, civilians were often better armed

than the military sent to protect them, At the 1866

Fetterman Massacre, the infantry carried muzzleloading muskets, while his two civilian scouts had

lever-action repeating rifles. The infantry managed to

fire two volleys; the scouts fired nearly a hundred

rounds. “Both were armed with .44 Henry [repeating]

rifles. Had all the command been equally well armed,

and had they fought as well, a different story might

have resulted.” Elmer Keith, SIXGUNS 16 (1961).

29

But the frontier was not the only part of America

where arms-bearing in public was common. In the

1850s, arms came to play a prominent role in

protecting the anti-slavery movement. Abolitionist

Henry Ward Beecher and his Brooklyn church shipped

so many Sharps rifles to anti-slavery settlers in

Kansas that the rifles became known as “Beecher’s

bibles” and his church the “Church of the Holy Rifle.”

Debby Applegate, THE MOST FAMOUS MAN IN AMERICA:

THE BIOGRAPHY OF HENRY WARD BEECHER 282

(2007).15 Abolitionist leader Cassius Marcellus Clay

preferred the Bowie knife, and twice used it to fight his

way out of a mob. As he saw it, “when society fails to

protect us, we authorized by the laws of God and

nature to defend ourselves; based upon the right, ‘the

pistol and the Bowie knife’ are to us as sacred as the

gown and the pulpit. . . .” THE WRITINGS OF CASSIUS

MARCELLUS CLAY 257 (1848).

Indeed, even Congressmen bore arms to work, for

self-defense. In 1856, Rep. Preston Brooks severely

beat Sen. Charles Sumner on the Senate floor, and

afterwards told Rep. Calvin Chaffee that “I thrashed

one Massachusetts man today, and I’d like to thrash

another.” Later, South Carolina Rep. Aiken observed

Chaffee putting a revolver into his desk. He asked if

Chaffee would use it, and Chaffee replied, “If any of

15 Beecher coauthored a manner of spiritual self-help book,

containing the suggestion that “True aiming, in life, is like true

aiming in marksmanship. We always look at the fore-sight of a

rifle through the hind-sight.” Henry Ward Beecher & Edna

Proctor, LIFE THOUGHTS 188 (1858). That a New York City

clergyman could expect his readers to be familiar with the aiming

of a rifle suggests how broad gun ownership was at the time.

30

your chivalry irritate me, I shall certainly use this

revolver.” The newspaper account of the exchange

ended, “After that, Dr. Chaffee’s southern friends were

not only civil but cordial.” Ex-Congressman Chaffee

Dead, SPRINGFIELD REPUBLICAN, Aug. 10, 1896, at 10.

Defense arms-bearing in the East remained

common throughout the 19th century. In 1895, the

New York World asked “Should a woman carry

firearms to protect herself?”, a question raised by a

Yonkers lady’s writing in “to show how necessary it is

for her to carry a revolver when she goes out for a

stroll, there being tramps in the neighborhood.” View

and Reviews, NEW YORK WORLD, Aug. 18, 1895, at 17.

Five years later, the New York Times carried advice on

how to make a do-it-yourself shoulder holster for

concealed carry. Features of Some Seasonable Sports,

NEW YORK TIMES, Jan. 7, 1900, at 28. Throughout the

19th century, Massachusetts had no restrictions on

carrying arms, concealed or open; its first restrictions

came in 1906. Halbrook, THE RIGHT TO BEAR ARMS, at

233. As for New York,

The law New York State enacted against

concealed weapons in 1866 included brass

knuckles but not pistols. Yet in the same

year New York City made it a

misdemeanor to fire a gun within the city

limits and in 1877 passed an ordinance

requiring a permit to carry a concealed

pistol. Apparently, almost anyone who

asked for a permit got one, and some didn’t

bother to ask. “Let a mad dog take a turn

around Times Square,” the Tribune

remarked in 1892, “and the spectator is

31

astonished to see the number of men who

will produce firearms.”

33 Non-combatant’s Guide to the Gun Control Fight,

CHANGING TIMES: THE KIPLINGER REPORT 32, 34 (Aug.

1979).

CONCLUSION

Throughout the nineteenth century, the right to

carry arms for individual self-defense was common,

necessary, and largely recognized by state

governments and constitutions. The relatively few

restrictions that banned arms carrying were shortlived outliers, almost always from pre-statehood

territories that corrected themselves upon joining the

Union.

The decision below should be reversed.

Respectfully submitted,

David T. Hardy

Counsel of Record

8987 E. Tanque Verde

No. 265

Tucson Arizona 85749

dthardy@mindspring.com

(520) 749-0241