The Start of Restricted Gun Rights in America

Georgia Enacts Nation's First Gun Ban in 1837

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When Virginia was drafting its state constitution in 1776, American founding father Thomas Jefferson wrote that “no freeman shall ever be debarred the use of arms.” Yet Jefferson had been dead just 11 years before the first attempt was made to severely restrict gun ownership. It happened in Georgia in 1837, nearly 100 years before the first federal gun control laws would be passed.

The Nation’s First Gun Ban

Georgia’s state legislature passed a law in 1837 that banned the sale of knives “used for offensive or defensive purposes” and all pistols except flintlock “horseman’s pistols.” Possession of those weapons was also prohibited unless the weapons were worn in plain sight.

History did not well record the reasoning behind the legislature’s vote. What is known is that the legislation stood as the law of the land in Georgia for eight years before the state’s supreme court declared it unconstitutional and voided it from the books.

Applying Federal Rights to State Law

America’s founding fathers made sure to include a right to keep and bear arms in the Bill of Rights. But the right to keep and bear arms wasn’t limited to the Second Amendment; many states incorporated a right to bear arms into their constitutions as well.

Georgia was a rare exception. The state’s constitution included no right to bear arms. So when Georgia’s ban on small handguns was finally challenged in the state’s supreme court, in the 1845 case of Nunn v. the State of Georgia, the court found it had no precedent and no state constitutional mandate to apply. So, they looked to the U.S. Constitution and cited the Second Amendment heavily in their decision to strike down the gun ban as unconstitutional.

In its decision, the Nunn court held that while the Georgia legislature could ban citizens from carrying concealed weapons, it could not ban openly carried weapons. To do so, stated the court, would violate the Second Amendment right to carry weapons for purposes of self-defense.

Specifically the Nunn court wrote, “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; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.”

Perhaps even more significant to the current gun control debate, the Nunn court ruled that the Second Amendment guaranteed all people — not just members of the militia — the right to keep and bear arms, and that the type of arms carried was not restricted only to those borne by the militia but arms of any type and description.

The court wrote, “the right of the whole people, old and young, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state.”

The court went on to ask, since when does “any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defense of themselves and their country.”

The Aftermath

Georgia finally did amend its constitution to include a right to bear arms in 1877, adopting a version very similar to the Second Amendment.

Except for a handful of relatively minor and overturned state laws attempting to ban freed slaves from owning guns, efforts to restrict gun rights were largely over after the Georgia Supreme Court’s 1845 ruling. Not until 1911, when New York City enacted a law requiring gun owners to be licensed, would major laws restricting gun rights resurface in America.

Updated by Robert Longley