On August 3, the day of the mass shooting in El Paso, I happened to be publishing my latest book, Liar For Jesus … And Guns: A Debunking of David Barton’s Book on the Second Amendment. As its title implies, the book debunks pseudo-historian David Barton’s book on the Second Amendment, but it’s more than that. The first half of the book debunks Barton’s book, but the second half is a history of all the gun control laws passed in the various states through the 1800s and the court cases challenging these laws. What I found in writing this book was that the overwhelming consensus among nineteenth century judges was that laws regulating the right to keep and bear arms were perfectly constitutional, both under the Second Amendment and the state constitutions.
A few days after the El Paso shooting I read an article about how new gun laws that are about to go into effect in Texas will make it even easier to carry guns in Texas churches, schools, and other places. What struck me was the stark contrast between the current and soon-to-take-effect Texas laws and the laws of Texas from the 1800s.
Most notably, In 1870, Texas, like quite a few other states, passed a law prohibiting the carrying of firearms or any other weapons into any church, school, or other place where people would be assembled – a law that today’s pro-gun crowd would vehemently decry as unconstitutional. But the nineteenth century Texas judges who heard the court challenges to the state’s arms regulation laws found the laws to be perfectly constitutional, with the only exception being the punishment in one of these laws, which was forfeiture of the weapon.
The following is the section from my book covering the nineteenth century laws of Texas and the court cases challenging them:
In its 1868 constitution, Texas changed its keeping and bearing arms provision to give the legislature the power to regulate this right:
Every person shall have the right to keep and bear arms, in the lawful defence of himself or the State, under such regulations as the legislature may prescribe.
Two years later, in 1870, the Texas legislature passed An Act Regulating the Right to Keep and Bear Arms, which prohibited carrying any kind of firearm or other dangerous weapon into any church, school, social gathering, or anywhere else where people would be assembled:
That if any person shall go into any church or religious assembly, any school room or other place where persons are assembled for educational, literary or scientific purposes, or into a ballroom, social party or other social gathering composed of ladies and gentlemen, or to any election precinct on the day or days of any election, where any portion of the people of this State are collected to vote at any election, or to any other place where people may be assembled to muster or to perform any other public duty, or any other public assembly, and shall have about his person a bowie-knife, dirk or butcher-knife, or fire-arms, whether known as a six shooter, gun or pistol of any kind, such person so offending shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than fifty or more than five hundred dollars, at the discretion of the court or jury trying the same; provided, that nothing contained in this section shall apply to locations subject to Indian depredations; and provided further, that this act shall not apply to any person or persons whose duty it is to bear arms on such occasions in discharge of duties imposed by law.(139)
Texas also made it illegal in 1870 to carry a weapon, either concealed or openly, within a half mile of any polling place during an election.
It shall be unlawful for any person to carry any gun, pistol, bowie knife, or other dangerous weapon, concealed or unconcealed, on any day of election, during the hours the polls are open, within a distance of one half mile of any place of election.(140)
The next year, in 1871, the Texas legislature passed An Act to Regulate the Keeping and Bearing of Deadly Weapons, which prohibited the carrying of pistols, bowie knives, and other dangerous weapons unless a person had reasons to fear an attack or was on their own property, with part of the punishment for violating the law being forfeiture of the weapon to the county:
Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purpose of offense or defense, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such ground of attack shall be immediate and pressing; or unless having or carrying the same on or about his person for the lawful defense of the state, as a militiaman in actual service, or as a peace officer or policeman, shall be guilty of a misdemeanor, and, on conviction thereof, shall, for the first offense, be punished by fine of not less than twenty-five nor more than one hundred dollars, and shall forfeit to the county the weapon or weapons so found on or about his person; and for every subsequent offense may, in addition to such fine and forfeiture, be imprisoned in the county jail for a term not exceeding sixty days; and in every case of fine under this section the fines imposed and collected shall go into the treasury of the county in which they may have been imposed: Provided, That this section shall not be so construed as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the state from keeping or carrying arms with their baggage: Provided further, that members of the legislature shall not be included under the term “civil officers” as used in this act.(141)
A section of this law did, however, exempt those in counties designated as frontier counties:
This act shall not apply to nor be enforced in any county of the state which may be designated in a proclamation of the governor as a frontier county, and be liable to incursions of hostile Indians.(142)
There were four cases between 1872 and 1880 challenging this law. Two of these cases challenged the law itself, and the other two challenged only the forfeiture of weapons as a punishment.
The first case was English v. The State, heard by the Supreme Court of Texas in 1872. This was actually three cases in one, William English v. The State, The State v. G.W. Carter, and The State v. William Daniel. English was convicted of carrying a pistol and doing so while intoxicated; Daniels was charged with going into a religious assembly carrying a butcher knife in his belt. The specific charge against Carter was not reported. But all were charged under Texas’s 1871 law regulate the keeping and bearing of deadly weapons. The court found that this law prohibiting the carrying of certain weapons did not violate either the Second Amendment or the constitution of Texas:
1. The act of April 12, 1871, regulating and in certain cases prohibiting the carrying of pistols, dirks, and certain other deadly weapons, is not repugnant to the second amendment to the constitution of the United States, which provides that “a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” nor is the act in violation of the thirteenth section of the first article of the constitution of this state, which provides that “every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the legislature may prescribe.”
2. The “arms” referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc., regulated by the legislature in the act of April 12, 1871.(143)
The other case to challenge the constitutionality of the law itself was Lewis v. The State, heard in the Court of Appeals of Texas in 1880. Like the Texas Supreme Court had in 1872, the Court of Appeals found that this law was not unconstitutional:
The Right to keep and bear Arms in defence of one’s self or of the State affords no defence against an indictment for carrying prohibited weapons.(144)
In Jennings v. The State, heard in the Court of Appeals of Texas in 1878, Jennings, who had been convicted of carrying a pistol, had had his pistol confiscated, a punishment which the court found unconstitutional under the Texas state constitution:
That part of the act which provides for the forfeiture of the pistol, in case of conviction, is unconstitutional.(145)
The court elaborated:
We believe that portion of the act which provides that, in case of conviction, the defendant shall forfeit to the county the weapon or weapons so found on or about his person is not within the scope of legislative authority. The Legislature has the power by law to regulate the wearing of arms, with a view to prevent crime, but it has not the power to enact a law the violation of which will work a forfeiture of defendant’s arms. While it has the power to regulate the wearing of arms, it has not the power by legislation to take a citizen’s arms away from him. One of his most sacred rights is that of having arms for his own defence and that of the State. This right is one of the surest safeguards of liberty and self-preservation.(146)
In the 1879 case of Leatherwood v. The State, also heard in the Texas Court of Appeals of Texas, the court reaffirmed that the punishment of forfeiting a weapon was unconstitutional:
The County Courts have concurrent jurisdiction with the justices’ courts to try persons charged with unlawfully carrying weapons. Forfeiture of the weapon, however, as part of the penalty prescribed by the act creating the offence (Pasc. Dig., art. 6512), is unconstitutional, and cannot be enforced.(147)
Texas’s 1887 dangerous weapons law was:
If any person in this state shall carry on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, slung shot, sword cane, spear, or knuckles made of any metal or any hard substance, bowie knife, or any other knife manufactured or sold for purposes of offence or defense, he shall be punished by fine of not less than twenty-five nor more than two hundred dollars, and shall be confined in the county jail not less than twenty nor more than sixty days.(148)
In 1897, Texas made it illegal to sell or give a dangerous weapon to a minor without the written consent of a parent or guardian:
That if any person in this State shall knowingly sell, give or barter, or cause to be sold, given or bartered to any minor, any pistol, dirk, dagger, slung shot, sword-cane, spear or knuckles made of any metal or hard substance, bowie knife or any other knife manufactured or sold for the purpose of offense or defense, without the written consent of the parent or guardian of such minor, or of someone standing in lieu thereof, he shall be punished by fine of not less then twenty-five nor more than two hundred dollars, or by imprisonment in the county jail not less than ten nor more than thirty days, or by both such fine and imprisonment. And during the time of such imprisonment such offender may be put to work upon any public work in the county in which such offense is committed.(149)
139. General Laws of the Twelfth Legislature, of the State of Texas, (Austin, TX: Tracy, Siemering & Co., 1870), 63.
140. A Digest of the Laws of Texas: Containing the Laws in Force, and the Repealed Laws on which Rights Rest, from 1754 to 1874, vol. 2, (Washington, D.C.: W.H. & O.H. Morrison, 1874), 1317.
141. Ibid., 1322.
142. Ibid., 1323.
143. English v. State, 35 Tex. 473, 14 Am. Rep. 374 (1872).
144. Lewis v. State, 7 Tex. App. 567 (1880).
145. Jennings v. State, 5 Tex. App. 298 (1878).
146. Ibid.
147. Leatherwood v. State, 6 Tex. App. 244 (1879).
148. Revised Penal Code and Code of Criminal Procedure, and Penal Laws, State of Texas, Part I - Penal Code, (St. Louis, MO: The Gilbert Book Co., 1991), 94.
149. General Laws of the State of Texas Passed at the Regular Session of the Twenty-Fifth Legislature Convened at the City of Austin, January, 12, 1897, and Adjourned May 21, 1897, (Austin, TX: Ben C. Jones & Co., 1897), 221-222.