Slavery and the Right to Bear Arms

A recent Federal Appeals Court decision rejecting the District of Columbia’s efforts to restrict carrying handguns in public was based on a narrow view of precedents created by pro-slavery judges in the antebellum South, says Fordham University legal historian Saul Cornell.

In an apparent gain for Second Amendment activists, the District of Columbia Federal Appeals court last week rejected the District government’s efforts to restrict the right to carry a firearm, ruling that handgun-carry licenses must be issued to D.C. residents under the same regulations for carry permits issued in other states.

But according to one legal historian, the decision rested on a distorted view of both U.S. legal tradition and common law.

In a report for the legal blog Take Care, historian Saul Cornell of Fordham University writes that the court’s decision in Wrenn v. District of Columbia is “riddled with errors,” and was justified by a “highly selective culling of historical evidence”– notably, a series of cases from the antebellum south, where the “permissive vision of a broad right to carry” was reified over time by pro-slavery judges.

In fact, the only non-southern case cited in Wren was Thompkins v. Johnson, and it pertains to fugitive slave law. In that case, the court decided in favor of the right to travel armed because “the law of the land recognizes the right of one man to hold another in bondage, and that right must be protected.”

Saul Cornell. Photo courtesy Wikipedia

According to Cornell, U.S. courts have historically favored limitations on the public right to travel armed, and the idea that any restrictions on that right are incompatible with the Second Amendment is a “modern invention.”

“The permissive Southern view that Wrenn takes as normative was always a minority tradition in America, at least until recently,” Cornell writes.

“Outside of the South, with a few exceptions, Anglo-American law favored a narrowly tailored right to carry firearms that was limited to a range of long standing exceptions to the general prohibition on traveling armed in public.”

This summary was prepared by Victoria Mckenzie, deputy editor of The Crime Report. Readers’ comments are welcome.