Early America and Concealed Carry
To the chagrin of my fellow gun nuts, I’ve long stated, based on various readings, that the second amendment does not guarantee a right to concealed carry of weapons. To which my fellow gun nuts reply with something to the effect of what part of bear arms don’t you understand? Then I point out, due to various sources including state constitutions, that the wearing of arms was considered, at the time, to be separate from keeping and bearing.
Eugene Volokh offers an interesting bit on this subject.
Update: Greg says it must be Helmke’s great grand dad. Heh.
December 11th, 2008 at 10:07 am
Not for nothing, but I’m pretty sure Heller did discuss this, and the majority opinion was “well, what the hell else do you think “bear” means?”
I’ll read Volohk’s piece…and while the 2A doesn’t address concealment obviously, pretty clearly keep and bear does mean getting to keep your arms at the ready.
December 11th, 2008 at 10:13 am
I for one would happyily carry in an open manner. I would agree that the 2A does not address concealed carry, but the hide out gun did not come into being lately. You can find examples of flint lock derringers. For those times the miscreants take your unconcealed firearm from you.
Personally I use the philosphy that little guns are used to buy time to get to bigger guns.
December 11th, 2008 at 11:08 am
Based on my extensive research (sic) which includes being a fan of Jack Aubrey novels, Hornblower novels, and Richard Sharpe novels (with Flashman to be done eventually), the late 18th & early 19th century considered open carry to be a demonstration of good intent, and concealed carry (especially among the lower classes) a likely show of nefarious intent.
A Manton in the pocket of a gentleman was just good prudent protection. A cheaper flintlock under the jacket of a local farmer meant he was a highwayman. Go figure.
December 11th, 2008 at 12:17 pm
PGP, I would agree that “Keep and Bear” does mean that you can wear your gun. It doesn’t however address *how* you can wear that gun.
December 11th, 2008 at 12:28 pm
As previous commenters noted, this wasn’t about “bearing” vs “wearing”, this was about open vs concealed.
The statement never even questioned the right to bear arms, only whether concealing them was appropriate. Remember that back then they didn’t have comprehensive criminal and mental health records to consult in an effort to determine if someone was on the “up and up”. As has already been pointed out, hiding the fact that you had a weapon was considered prima facia evidence of nefarious intent.
To this day, Virginia does not require permits or permission to carry loaded firearms openly. Anyone who can legally own a gun can do so. Permits, background checks etc are only required if one wishes to carry a firearm “concealed from common observation”.
December 11th, 2008 at 12:55 pm
My gripe with the permitting system is two-fold.
One, it identifies you to LEO as someone carrying a weapon, which could mean that the LEO that you are interacting with either a)ignores your issued permit because he/she isn’t concerned about you being a criminal; b)checks your permit, takes your weapon to fondle it, possibly dropping it in the highway, and then gives both back after grumbling something about gun nuts; or c)decides that having the permit means that you are a freakish gun nut so he is duty bound to write you a fist full of tickets on the side of the highway while your four year old son is dying of an unknown illness in the backseat because you were on your way to the hospital. Overall I don’t think it’s anyone’s business, so I think the permit system is a terrible idea in that light.
Second gripe is that frequently there is no way to abide by the CHL/CCW/Permit laws, as concealing is often the only way to carry. How are you supposed to OC while wearing a suit with jacket? Are we supposed to put a shoulder over a heavy winter coat in order to ensure that the thing is not concealed? If my mother and I decide to spontaniously swing in to Applebees for lunch here in VA, what does she do with the little pistol in her purse in order to abide by the law? Carry it in her hand so everyone can see it? In VA you can’t conceal in an establishment that serves alcohol for consumption on premises. Would that be ‘causing a panic?’
I’m a fan of OC, but it’s not the best way to carry, and it often makes it impossible to carry at all. That, in my opinion, is an infringement.
December 11th, 2008 at 1:39 pm
I actually agree with you about permitting and the utility of carrying concealed. I don’t necessarily think they were right back then, only that I’m confident that that was their rationale.
I’ve had my CHP for about 7 years and was open carrying before I got it. I’ve gotten pulled over for speeding tickets, been involved in a couple of minor fender benders where the Police were involved, called the cops to report possible crimes in progress etc and I’ve never had one express a problem with me being armed, “fondle” my firearm or even ask me to disarm.
Perhaps I’ve just been lucky. I know that there are “problem cops” in Norfolk because VCDL members have been harassed and arrested for open carrying, but its never happened to me and if it ever does, lawsuits will be following shortly.
As far as the problems with open vs concealed carry, I agree with that as well, Most of the reason that I got a CHP was because open carry is impractical in the winter while wearing a coat. I think our ultimate goal should be Vermont style carry everywhere, but the attainment of that goal will be very difficult and attainment of it well in the future.
My only point in commenting was in reference to SayUncle’s implication that the Virgina Grand Jury quoted was somehow differentiating between the “bearing” of arms as protected by the constitution and “Wearing” arms in public. That was not the point of contention at all, The question involved the appropriateness of concealing the fact that one is “wearing” arms…the legitimacy of bearing (or wearing) arms in and of itself was never in question.
December 11th, 2008 at 2:04 pm
“I don’t necessarily think that they were right back then, only that I’m confident that that was their rational.”
Very true, and I don’t think that they would have had any problems with an individual wearing a heavy coat over their pistol, or held a citizen seeking medical attention because that person owned a firearm (the hospital story actually happend to family member of mine).
It’s too bad that the gun rights crowd today is in a constant fight with squeamish idiots that claim that they’re only looking for “common sense” solutions, but are really just clueless to the problem at hand.
December 11th, 2008 at 5:21 pm
Mikee’s right. Elite men and those who took their cues from the elite aspired to be exactly as they seemed; secrecy in actions, hiding debts, circulating anonymous letters that gossiped about their peers all were marks of dishonor. It was a black mark when the public appearance did not exactly correspond with the private reality and was labeled “counterfeiting” (which referred pretty broadly to pretending to be something you weren’t). When the elites wore arms, they wore them openly (think display swords and other display arms) as a mark of their social station. Early republican literature and letters are quite clear that only blackguards and cowards attempted to hide that they were carrying guns, knives, or other concealed weaponry and it was supposed that the intent behind doing so was to gain a murderous advantage or to commit highway robbery. So, the men who authored the Constitution did not, as a rule, approve of concealed carry as a social practice (especially among their social lessers, as Mikee points out). Now whether one can infer that the Founding generation would therefore think that free white adult male taxpaying landholders didn’t have a *right* to conceal carry…that I can’t say for sure, but I doubt that was the right they sought to enshrine.
December 11th, 2008 at 5:41 pm
It’s worth reiterating here that the contemporary 18th century understanding of “bear arms” is a matter of some debate. It’s not at all clear that the framers meant “carry your weapons around with you” as opposed to simply “fight,” which was the more common use of the term at the time.
Of course, this only matters if you’re an originalist, which I’m not. 🙂
December 11th, 2008 at 6:09 pm
Yes, also a good point. Soldiers had to bear (as in transport) their weapons on public thoroughfares and through cities, which under some local laws would have been illegal unless the right to do so for a public purpose had been enumerated. Also, under state constitutions, militiamen were responsible for privately maintaining their arms in good working order, although this might have been more of a financial expedient since the costs of maintaining a centralized armory were pretty high and the fed/state governments were broke. That pretty much covers the whole “keep and bear” part of it.
I was going to say that original intent is not the ground on which I’d interpret, but since so many here are wedded to “what did the 18th c crafters of the federal Constitution think about this” school, it’s good to separate what we know from reading primary sources versus what we hope was true because we saw it in a movie.
December 11th, 2008 at 9:08 pm
Agreed, I meant to clarify on that point. This gets back to the larger point antis like to ignore–we 2A types aren’t saying localities can’t have differing rules on this sort of thing. We’re just saying blanket bans on carry really isn’t in keeping with the whole “bearing” part.
Tgirsch, the Heller decision and the preceding lower court decision discussed the meaning of “bear” at length. At the very least, the militiaman would need to be ready to “bear” his weapon in a fight at a moment’s notice. Pretty hard to do if the locality was telling you you couldn’t keep it with you. It’s a bit of a stretch to think the 2A is only protecting the right to fight somebody.
December 11th, 2008 at 11:46 pm
That was certainly a use of the phrase, but does anyone seriously believe private individuals have (or were ever understood to have) a Second Amendment right to wage war?