In recent years, following the Supreme Court’s landmark originalist opinion in District of Columbia v. Heller, courts have been asked to strike down restrictions on the public carrying of handguns on the basis of the original understanding of the Second Amendment. One of the key sources used to justify this outcome is a family of opinions from the antebellum South asserting an expansive right to carry weapons in public. In this essay we explore whether that body of case law reflected a national consensus on the meaning of the right to bear arms or, in the alternative, a narrower regional conception of this right. We discuss how the South’s distinctive culture of slavery and honor influenced both public carry and regional jurisprudence, and how the case law originating from that culture cannot be extended to the rest of the country without explanation. We then draw on new post-Heller research to discuss an alternative American tradition — predominant outside the South — that was less enthusiastic about public carry and more accepting of public carry regulation. This analysis suggests that the view of the right to bear arms expressed in the nineteenth-century Southern opinions falls woefully short of reflecting a national consensus. Moreover, judges seeking historical guidance in public carry cases today should look to the alternative tradition that presumed the constitutional soundness of broad public carry restrictions.
Yale Law Journal Forum
Eric M. Ruben and Saul Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L.J. F. 121 (2015-2016)