[Copyright © 1989 Baylor Law Review. Originally published as 41 Baylor L. Rev. 629-688 (1989). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. Dr. Halbrook is the author of Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 which may be obtained from www.amazon.com.]
Stephen P. Halbrook[*]
"The right to bear arms is essential to freedom. For it is the policy of governments to disarm the people, that they may have the opportunity to oppress them."
--Robert Emmett Bledsoe Baylor, 1845
I. Introduction
II. Every Citizen Shall Have the Right: From the Revolution to Secession
III. Arms, Freedmen, and Reconstruction
IV. The Power to Regulate But Not Prohibit: The Right To Bear Arms After Reconstruction
V. The Federal and State Courts Construe Texas Firearms Prohibitions
VI. Conclusion
As Texas ends the sesquicentennial celebration of its first bill of rights and as the nation observes the bicentennial of the federal Bill of Rights, "the right of the people to keep and bear arms" still guaranteed in each is perhaps the most controversial and least understood enumerated right. Indeed, bearing arms is probably the only "right" that is often treated as a criminal offense.
In its 1989 session, the Texas legislature rejected bills that would ban the mere possession of many conventional rifles and pistols, as well as a bill that would legalize carrying handguns by providing for a permit.[1] Bills to ban firearms recently have been introduced or enacted in other states, and the United States Congress is considering legislation to ban various rifles, pistols, and shotguns.
The public debate over the issue of firearms prohibition is incomplete without a thorough understanding of constitutional limitations. In the words of James P. Hart, "As the historic conditions that first inspired bills of rights recede further into the dim past, the danger increases that guarantees of personal liberties will not be fully appreciated .... No more serious responsibility rests upon the legal profession than the preservation of the bill of rights, which embodies the essence of free government."[2]
While the original language of article I, section 23 of the Texas Constitution provided for no legislative power to regulate the right, today's provision contains language almost identical to that enacted in 1836: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power by law to regulate the wearing of arms, with a view to (p.631)prevent crime." The federal second amendment provides somewhat different wording: "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."
The U.S. Supreme Court has never determined whether the fourteenth amendment incorporates the second amendment so as to limit the state or local prohibition of rifles, pistols, or shotguns.[3] In recent times, the Supreme Court has retreated from earlier stances which favored civil liberties over police action, while many state courts have protected such liberties by the rediscovery of and increased reliance on the state bills of rights.[4] Notwithstanding this recent trend, a Texas legal scholar prophetically stated thirty years ago:
It has become almost a fixed attitude of mind to look only to the United States Constitution and ultimately to the Supreme Court of the United States, for protection against unreasonable state statutes affecting the citizens of that state. For those who would halt, or at least slow down, the expansion of federal power and who would revitalize state governments, the careful drafting of a state bill of rights to include all liberties which should be guaranteed against state action (even if they may also be protected by the fourteenth amendment) offers a major challenge. If the states cannot protect their citizens' fundamental liberties, or are careless about such protection, then obviously the basic, fundamental vitality of state governments is immeasurably weakened.[5]
The arms guarantee was expressed in different versions of the Texas Constitutions of 1836, 1845, 1869, and 1876. The constitutions of these dates coincide with milestones in Texas legal and political history: the founding of the republic, statehood, Reconstruction, and the return to majority rule. The fate of the right to bear arms in that forty year period reflects the kind of epic that has made Texas famous.(p.632)
Tracing the constitutional development of the right to bear arms in the period 1836-1876 serves a useful purpose aside from constructing another colorful sesquicentennial tale to amuse Texans and other Americans alike. A fundamental method of constitutional interpretation is to rely on the intent of the framers and the common understanding of the people.[6] The arms guarantee in the current Texas Bill of Rights was adopted in 1876 and has remained unchanged to this day. Further, the intent of those who adopted the 1876 Constitution must be determined in the context of events which began when Santa Anna tried to disarm the Texans in 1835, sparking the Revolution.
Despite its stereotype of being a state where cowboys promiscuously tote six-shooters, Texas is one of the few states that absolutely prohibits the bearing of pistols by private individuals.[7] The only off-premises exception is for travelers, who may bear arms for self-defense, as the constitution allows, either openly or concealed.[8] The only other exception is for hunters and other sportsmen, who bear arms for recreation and not for self-protection.[9]
By contrast, most states either allow arms to be carried openly in public and/or require permits to carry concealed arms. The Southern and Western states generally allow arms to be borne openly but (p.633)require permits for carrying concealed arms off one's premises.[10] The Northern states generally require permits or licenses to bear arms either openly or concealed.[11] Vermont is unique in allowing weapons to be carried hidden from view without a permit.[12] Unlike Texas, even the reputedly most restrictive jurisdictions such as Massachusetts, New York City, and Washington, D.C. provide for the issuance of permits to carry a firearm for self-protection.[13]
The Texas courts have in several opinions sought to reconcile the general statutory prohibition of bearing arms for self-defense with the constitutional right to bear arms for defense of self and state. These courts, as well as the United States Supreme Court, have commented on the status of statutory prohibitions under the second amendment to the Federal Constitution. While this article concentrates on the meaning of the right to bear arms under the pertinent state constitutions adopted between 1836 and 1876, the central involvement of Texas in second and fourteenth amendment jurisprudence warrants analysis of the state prohibition on bearing arms under the Federal Constitution.
In 1827, Noah Smithwick left Kentucky for Texas "with all [his] ... worldly possessions, consisting of a few dollars in money, a change of clothes, and a gun, of course ...."[14] At one point in some Texas wilderness he lost his property and found himself "weak, unarmed, not even a pocket knife."[15] Meeting a wild animal, he "felt around for a good sized club.... Thus armed, I started on."[16]
Firearms, knives, and blunt implements have evolved technologically, but remain the primary types of arms possessed for self-protection. (p.634)Austin's colony was occasionally raided by Indians, but an early visitor noted that "traveling with arms is thought safe."[17] "We had left our guns at San Felipe, ... but we had our pistols with us, and our new companion went better armed with his rifle."[18] Besides protection, rifles and pistols were used for hunting and in shooting matches.[19]
The right to keep and bear arms was both a republican principle, brought by the Anglos from the United States, and a practical necessity for the early settlers. The independence of Texas became inevitable when Mexican authorities attempted to deprive the settlers of this right.
In 1835, the government of Santa Anna sought to make its rule absolute through the spread of military garrisons, declarations of martial law, and attempts to disarm the inhabitants of the Mexican states. Santa Anna's puppet congress passed a law providing for the replacement of the local militias by his standing army. Stephen F. Austin explained: "This 'reform' reduced the militia of the States to one militia-man for every five hundred inhabitants, and disarmed all the rest. The people of Zacatecas resisted this iniquitous law, but were unfortunate, and compelled, for the time being, to submit to the military power of the reformers."[20]
After smashing republicanism in Zacatecas, Santa Anna turned his attention to Texas. At a time when Texans were hoping that freedom would not be destroyed in Mexico, Samuel Houston (after becoming Commander-in-Chief of the Army of Texas) wrote:
[T]he Dictator required the surrender of the arms of the civic militia, that he might be enabled to establish, on the ruins of the Constitution, a system of policy which would forever enslave the people of Mexico. Zacatecas, unwilling to yield her sovereign rights to the demand, which struck at the root of all liberty, refused to disarm her citizens of their private arms. Ill-fated State! her power, as well as her wealth, aroused the ambition of Santa Anna, and excited his cupidity. Her citizens became the first victims of his cruelty, while her wealth was sacrificed in payment for the (p.635)butchery of her citizens. The success of the usurper determined him in exacting from the people of Texas submission to the Central form of Government; and, to enforce his plan of despotism, he despatched a military force to invade the Colonies, and exact the arms of the inhabitants. The citizens refused the demand, and the invading force was increased. The question then was, shall we resist oppression and live free, or violate our oaths, and wear a despot's stripes?[21]
Specifically, in September 1835 Santa Anna sent his brother-in-law, General Martin Perfecto de Cós, to Texas to confiscate the inhabitants' arms and to arrest Santa Anna's political opponents. Referring to the causes of the Texian Revolution, Rev. C. Newell observed:
The next and last of the leading causes alluded to, was an order received from Gen. Cós in the course of the month of September, requiring the citizens of Brazoria, Columbia, Velasco, and other places, to deliver up their arms to the Mexican authorities: thus attempting to carry out in Texas the plan adopted by Santa Anna, and put in execution in many parts of Mexico, of disarming those whom he suspected of being disaffected to his Government. This ... showed the people of Texas what sort of government they were to expect--that of the bayonet, and the entire sway of military.[22]
The Texians responded by preparing for armed resistance. One Mexican captain proclaimed to the citizens of Anahuae: "The General Congress have passed a law ordering every state to disband their militia and I here find that in defiance of the Government you are organizing and arming yourselves and have forcibly seized upon the arms of the Mexican nation."[23] The Brazoria Texas Republican urged its readers to make contributions for the purchase of arms.[24] (p.636)Stephen Austin called for "a great immigration from Kentucky, Tennessee, etc., each man with his rifle ...."[25]
The "Lexington" of the Texas Revolution was sparked at Gonzales, where the Mexicans tried to seize a small cannon the settlers used to scare away Indians.[26] "That one old bushed cannon was our only artillery, and our only arms were Bowie knives and long single-barreled, muzzle-loading flintlock rifles, the same that our forefathers won their independence with," recalled Smithwick.[27] A "few of us had pistols."[28] The Texians raised a flag which stated "Come and Take It," some shots were fired, and the Mexicans retreated.[29]
Elated by this victory, Texians were urged to collect at Gonzalez "armed and equipped for war even to the knife."[30] Meanwhile the Austin Telegraph warned that near the mouth of the Brazos Mexican troops were landing, "under the command of general Cós with the declared intention of 'disarming the people,' erecting a military government, and confiscating the property of the rebellious ...."[31] The newspapers began comparing Santa Anna to George III, and reprinted such documents as the Declaration of Causes of Taking up Arms of July 6, 1775, including the complaint that General Gage agreed to allow the people of besieged Boston to leave town only after they deposited their arms with their magistrates.
They accordingly delivered up their arms; but in open violation of honour, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the Governour ordered the arms deposited as aforesaid, that they might be preserved for their owners, to be seized by a body of soldiers; detained the greatest part of the inhabitants in the (p.637)town, and compelled the few who were permitted to retire, to leave their most valuable effects behind.[32]
Like the Americans in 1775 who demanded their English common-law rights, the Texians of 1835 demanded their rights under the liberal Mexican Constitution of 1824. These rights could be protected only by an armed populace. Sam Houston, commander of the Texan citizens army, urged the North Americans: "Let each man come with a good rifle and one hundred rounds of ammunition--and ... come soon. Our war cry is 'LIBERTY OR DEATH!!'"[33]
Many hoped that resistance by other Mexican states would overthrow Santa Anna. The Telegraph reported:
The state of Puebla, with the governor at its head, has refused to publish the law of centralism [decreed on Oct. 3, 1835]; and by last accounts, it appears that the citizens were arming en masse to defend their liberties and rights.
The state of Morelia ... has protested, in the strongest terms, against a change of system, were arming their "milicia civica," and had a respectable body of liberal troops in the southern part of the state, prepared for the field.[34]
While Santa Anna snuffed out these Mexican rebellions, the Texian volunteers captured General Cós and his army at San Antonio de Bexar on December 10, 1835. Despite lenient treatment and parole of the captives, including Cós, the Mexican military's response was that "all foreigners ... who enter [Mexico] armed and for the purpose of attacking our territory shall be treated and punished as pirates.... Foreigners who introduce arms and ammunition" into Texas would also be executed.[35] Soon Santa Anna included legal (p.638)settlers "in the sweeping decree of 'death to every man taken in arms.'"[36]
Like their ancestors of 1776, the Texians realized in 1836 that only independence would suffice. A convention met beginning March 1 at Washington-on-the-Brazos. Its delegates included former members of the United States Congress and framers of southern state constitutions.[37]
George C. Childress, a lawyer and former editor of the Nashville Banner who in the United States had raised funds and volunteers for the Texas army, was appointed chairman of a committee of five to draft a Declaration of Independence.[38] On March 2 Childress drafted and reported the Declaration, which the convention adopted the same day.[39] The Declaration charged of Santa Anna's government: "It has demanded us to deliver up our arms, which are essential to our defence--the rightful property of freemen--and formidable only to tyrannical government."[40]
On March 9, delegate Palmer, chairman of the committee to draft a constitution, reported a Declaration of Rights which the convention adopted the same day.[41] Article 14 declared: "Every citizen shall have the right to bear arms in defence of himself and the republic."[42] (p.639)The same convention had already required able-bodied males to provide their own arms for militia service.[43]
Unknown to the convention, the Alamo fell just before the Declaration of Rights was adopted. Jim Bowie with his famous knife, Davy Crockett with his long rifle "Old Betsy," William Travis with sword and pistols, and 180 other armed patriots withstood two weeks of seige by Santa Anna's forces only to be overrun and killed on March 6.
Rifles and shotguns with short barrels, large and small pistols, swords and knives, tomahawks, and similar arms used by the Texans at the Alamo[44] and declared as constitutionally protected arms in 1836 are currently illegal to bear in Texas. With the exception of long barrelled rifles and shotguns, it is today a crime to bear or, in some cases, even to keep these arms.[45] At some point in Texas' weapons-control history, "Remember Santa Anna" replaced "Remember the Alamo!"[46](p.640)
The type of knife named after James Bowie, a founding father of Texas who died at the Alamo, is today an "illegal knife."[47] Yet the Bowie knife was generally used as the main eating implement, to cut limbs from trees, and to skin and butcher game.[48] An early settler in Texas, Bowie led the Texas volunteers at the Battles of Concepcion, the Grass Fight, San Antonio, and the Alamo.[49] In their final victory at San Jacinto, the Texans "used rifles and rifle butts, pistols and finally their Bowie knives."[50]
The self-armed civilians who defeated Mexico's professional standing army used all kinds of weapons. Kentucky rifles, muskets, carbines, short barrelled shoulder firearms, large holster pistols, pocket pistols, shotgun fowling pieces, the blunderbuss, tomahawks, swords, and butcher knives were the commonly possessed arms which won Texan independence.[51] Like the United States sixty years before, the Republic of Texas was created by an armed citizenry unwilling to permit government to trammel their fundamental rights.
Just as Santa Anna's troops were storming the Alamo, Samuel Colt was granted a patent for his revolving pistol.[52] Before long, the Colt revolver became known as "the Texas Arm" as it was widely used first in Texas.[53](p.641)
Colts became standard arms in wars with the Indians and Mexicans.[54] Captain Samuel Walker of the Texas Rangers worked with Samuel Colt in improving the revolver's design.[55] According to an account of the Rangers written in the 1840s, "each man was armed with a rifle, a pistol, and a knife."[56]
Texas civilians probably acquired more Colt revolvers than the private citizens of any other antebellum state. The large Dragoon Colt, equipped with an attachable shoulder stock, was a popular revolver which converted into a short barrel rifle.[57] The Walker-Colt model "was used successfully for frontier defense against Indians and outlaws.... Standard side-arm for the Rangers, the six-shooter was also useful to mounted cattlemen .... The revolver is credited, along with the windmill and the barbed wire fence, as being a prime factor in the opening of the plains area to settlement."[58]
In 1845, a convention assembled at Austin to frame a new constitution in anticipation of the admission of the Republic of Texas into the United States. The convention considered several bill of rights proposals recognizing the right to keep and bear arms, and ended by adopting the strongest version proposed for this right.
Judge William B. Ochiltree[59] began the debate by proposing "that the free citizens of this state shall have a right to keep and bear arms for their common defense, provided that the Legislature shall have the right to pass laws prohibiting the carrying of deadly weapons secretly."[60] The following discussion ensued:
Mr. Evans objected that this would give the right to carry bowie knives.(p.642)
Mr. Hogg inquired whether it would secure the right of taking deadly weapons about the person?
Mr. Ochiltree said: He was as much opposed to that as any body. How shall it be remedied? The legislature has the right to say, they shall not be carried secretly. But certainly he was not to be prevented from carrying them if he thought it necessary. If this is not inserted, there is no telling how far the legislature, in their extreme philanthropy may go. They may go the extent of saying, that a man shall not wear them under any circumstances. He might be compelled to allow himself to be assassinated, or his property to be invaded, by being denied the use of necessary weapons. We might be placed in the condition of the people of Ireland, and a large portion of England, who are denied the right of having firearms about their houses. One of the first principles of freedom, is the right to bear arms. It is true, it may have been prostituted to the worst of purposes; but it is too great a right to deny on that account. Such cases always attend the settlement of new countries; and public opinion will reform the abuse after a while. Under a similar provision, precisely, the legislature of Alabama has proscribed the carrying of weapons secretly, and the supreme tribunals have decided that it is not an infraction of the Constitution."[61]
The case referred to was State v. Reid,[62] in which the Alabama Supreme Court found a prohibition on carrying concealed weapons compatible with the right to bear arms. That court added: "A statute which, under the pretence of regulating, amounts to a destruction of the right, or requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional."[63]
Mention of the Alabama precedent by Judge Ochiltree, who had studied law in that state, prompted the following response:
Mr. Baylor fully agreed with the gentleman, that the right to bear arms is essential to freedom. For it is the policy of governments to disarm the people, that they may have the opportunity to oppress them. This great right (p.643)ought to be guaranteed; but it is subject to great abuse. The gentleman has correctly stated the decision of the Supreme Court of Alabama. But there is a conflict upon this subject. The Supreme Court of Kentucky decided, in a similar case, that the legislature could not pass any law upon the subject. For if it had the right to proscribe one mode of wearing arms, it had the right to proscribe another, and thus it might finally defeat the great end and object.[64]
In Bliss v. Commonwealth,[65] Kentucky's highest court declared a prohibition on carrying a concealed sword cane or other weapon to be violative of the right to bear arms for defense of self and state.
The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution, and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear when the constitution was adopted.[66]
As delegate Robert E.B. Baylor pointed out in the Texas convention, the Kentucky court reasoned that if concealed arms could be banned, so could openly carried weapons, a result inconsistent with the right to bear arms.[67] Baylor had been admitted to the Kentucky bar, and served in the Kentucky and Alabama legislatures and the U.S. Congress before coming to Texas, where he became a Justice of the Texas Supreme Court and was one of the founders of Baylor University.[68]
After Baylor's remarks, John Hemphill stated: The object of inserting a declaration that the people shall have a right to bear arms is, that they may be well armed for the public defence; it is in order that the law regulating the militia should be kept up. It is not a supposition which can arise in a country where the common law prevails, that it is necessary to bear arms for protection against a citizen.[69](p.644)
Hemphill then offered a substitute for Ochiltree's amendment worded after the federal second amendment: "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."[70]
The Hemphill substitute, which the convention then adopted, was understood to guarantee an individual right to bear arms in order to support militia readiness. War with Mexico was known to be imminent due to the expected annexation of Texas by the United States. Mr. Mayfield, a supporter of the Hemphill substitute,[71] had stated just before debate on the arms guarantee began: "We may individually and collectively be called upon, perhaps in a short time, to burnish our arms, and march to the defence of our country from an invading foe."[72]
The Convention was cognizant that, consistent with the ruling of Kentucky's highest court explained by Mr. Baylor, the language of the federal second amendment proposed by Hemphill contained no authorization for the legislature to prohibit individuals from carrying weapons concealed. Accordingly, Joseph L. Hogg moved for, and the convention adopted, the following amendment: "Provided, that the Legislature may pass laws to suppress the practice of bearing arms concealed, in the private walks of life."[73]
In what must have been further intense debate which went unrecorded, the convention took a sharp turn in favor of the right to bear arms for individual self-protection and against a legislative power to prohibit the bearing of concealed arms. Mr. Armstrong offered a substitute for the Hemphill-Hogg language which had passed:
"Every citizen shall have a right to bear arms in the lawful defence of himself and the state." Adopted.
Mr. Hemphill moved to amend the additional section, by inserting before the word "bear," "keep and." Adopted.
Mr. Everts offered the following amendment:
"Provided the Legislature shall have power to prevent the carrying of concealed weapons, under such restrictions as may be prescribed." Rejected.[74](p.645)
Thus, in its final form, article I, section 13 of the Texas Constitution of 1845 provided: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself and the State." The vote was 33 in favor and 18 opposed.[75] Delegates voting favorably included the proponent Armstrong, who had voted against any restriction on carrying concealed arms; Baylor, who had informed the convention of the Kentucky precedent holding that concealed weapons could not be prohibited; and Ochiltree, proponent of the original provision, who said that without an arms guarantee, the legislature "may go to the extent of saying, that a man shall not wear them under any circumstances."[76]
Those voting against the arms guarantee included Evans, who "objected that this would give the right to carry bowie knives"; Hemphill, who did not think it necessary to bear arms for protection against other citizens, but who still supported the individual right to keep and bear arms; and Hogg, author of an ultimately defeated concealed carrying prohibition.[77]
Thus, the constitutional convention of 1845 established that in Texas, the right to keep and bear arms was considered to be absolute. Bowie knives and Colt pistols could be worn, openly or concealed, without legislative infringement.
Antebellum Texas was remarkably unlike most other Southern states, but resembled the Northeastern states, in its lack of infringement of the right to keep and bear arms.[78] No one in Texas, regardless of race, was denied the right to possess or carry arms in any manner. At a time when slaves in most states were legally disarmed, there was no such law in Texas, and whites, Mexicans, and blacks could wear concealed arms.
The Texas code as of 1859 shows that only the misuse of weapons was punishable. Apparently the legislature recognized that it had no power to regulate even concealed weapons since the constitutional convention of 1845 defeated proposals to authorize such a (p.646)power. Duelling was prohibited.[79] The slave code contains no arms regulations, but the homicide provisions provided that it was permissible to kill a slave only "[w]hen a slave uses weapons calculated to produce death, in any case other than those in which he may lawfully resist with arms."[80]
An act passed in 1856 doubled the punishment for assault with intent to murder if a "bowie-knife or dagger" was used,[81] and also provided:
Article 610. If any person be killed with a bowie-knife or dagger, under circumstances which would otherwise render the homicide a case of manslaughter, the killing shall nevertheless be deemed murder, and punished accordingly.
Article 611. A "bowie-knife" or "dagger," as the terms are here and elsewhere used, means any knife intended to be worn on the person, which is capable of inflicting death, and not commonly known as a pocket knife.[82]
The above definitions were far broader than the terms normally signify, and would include sheath knives such as those used for hunting and fishing.[83] The clear legislative intent was to discourage unlawful stabbings with large knives.
The enactment was challenged in Cockrum v. State as violative of the arms guarantees in the federal second amendment and Section 13 of the Texas Bill of Rights.[84] In an opinion by Justice Oran M. Roberts, the Supreme Court defined the purpose of the two constitutional provisions as follows:
The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly (p.647)from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power.[85]
Of course, the right to bear arms implied no right to misuse them, and Cockrum had been convicted of murdering someone who accused him of horse theft.[86] The statute provided that manslaughter, if committed with a bowie knife or dagger, would be considered murder. Cockrum's attorney argued that this law was unconstitutional under both the federal and state constitutions as overbroad and in violation of equal rights. By banning cheap, ordinary weapons such as large knives, the legislature had effectively denied the right to bear arms to persons too poor to afford firearms.[87]
The Texas Supreme Court did not dispute that the poor had as much a right to bear arms as the rich. However, it held that a homicide committed with a deadly weapon could be punished more harshly to deter abuse of the right to bear arms:
The right to carry a bowie-knife for lawful defense is secured, and must be admitted. It is an exceeding destructive weapon. It is difficult to defend against it, by any degree of bravery, or any amount of skill. The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least. The sword may be parried. With these weapons men fight for the sake of the combat, to satisfy the laws of honor, not necessarily with the intention to kill, or with a certainty of killing when the (p.648)intention exists. The bowie-knife differs from these in its device and design; it is the instrument of almost certain death. He who carries such a weapon, for lawful defense, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon .... May the state not say, through its law, to the citizen, 'this right which you exercise, is very liable to be dangerous to the rights of others, you must school your mind to forbear the abuse of your right, by yielding to sudden passion; to secure this necessary schooling of your mind, an increased penalty must be affixed to the abuse of this right, so dangerous to others.'[88]
The status of the bowie knife as a constitutionally protected arm, which Cockrum noted was in common use,[89] could hardly be denied. Its originator, James Bowie, had died at the Alamo defending Texas liberty with his famous knife. Yet murder was hardly encompassed in the "absolute right" to keep and bear arms.
Two years after he authored the Cockrum decision, Justice Roberts found himself elected president of the convention that passed Texas' Ordinance of Secession in early 1861.[90] The convention delegates included Joseph L. Hogg and Judge William B. Ochiltree,[91] who had debated the arms guarantee at the constitutional convention of 1845. All of the above persons became high Confederate officers, although Oran M. Roberts shortly returned to the bench to become Chief Justice of Texas. As they had done against Mexico, Texans now prepared to bear arms against the Northern foe.
The Texas forces were composed of largely self-armed citizens. As Oran Roberts noted of their first battle: "The Texans fought for the most part with shotguns and rifles that they had brought from their homes, but they fought with the old Texas spirit during four or five hours, when a glorious victory was achieved by the Confederate forces."[92] General Hogg's brigade "embraced some of the flower of the youth of Texas and Arkansas who, filled with enthusiastic devotion, hastened to arm themselves for the defense of their respective (p.649)States."[93] The Texans were known for their double-barreled shotguns and Colt six shooters.[94]
Governor Edward Clark reported to the Texas legislature in November 1861 that it was necessary to calculate the number of private arms in Texas, in light of the chance of invasion and the lack of state arms.[95] The citizens reported only 40,000 largely obsolete arms, most arms not being disclosed because the people feared confiscation.[96] Texans were willing to bear their own arms in defense of the state, but not to surrender these arms to the state. The legislature purchased and eventually contracted for the manufacture of rifles and pistols after the Colt patterns.[97]
Despite laws in most Southern states against them carrying arms, armed blacks and slaves served in the Confederate forces.[98] No such laws existed in Texas, although in October 1864 a bill to prevent slaves from carrying arms was referred to committee in the Texas Senate.[99] At that time Confederates who favored independence over slavery were advocating the arming and emancipation of slaves, at least one state (Virginia) was about to repeal its prohibition on slaves carrying arms, and troops from Texas and other states met and adopted resolutions in favor of the official use of blacks as soldiers.[100]
Through the end of the War Between the States, the right to bear arms in Texas remained, as Justice Roberts had stated, "absolute." In the chaos that followed, Texas' first gun control laws were born.(p.650)
The constitutional convention which met at Austin in March-April of 1866 reenacted the arms provision of 1845 verbatim: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State."[101] A key issue was whether the freed slaves would be entitled to all of the rights of citizenship, at a time when the federal fourteenth amendment was working its way through Congress.
Republicans held that blacks were already entitled to all rights of citizenship, including an individual right under the second amendment to keep and bear arms for self-defense. The fourteenth amendment was promoted by Republicans to end any dispute about the matter.[102] A report of the Republican minority in the Texas legislature in support of black suffrage states:
These fundamental principles of American liberty constitute the basis of the Bill of Rights, which, under various modifications, pervade all our constitutional charters.... [T]he framers of the Federal Constitution were careful to confide all power to the people, and to provide for the protection of the whole people. To illustrate this, it is only necessary to refer to the constitution itself...
"ART. 2. A well regulated militia being necessary to the success [sic] of a free state, the right of the people to keep and bear arms shall not be infringed." ...[103]
Those who were lately slaves ... are now freemen, entitled to the rights and privileges of American citizens.[104]
Congress adopted the fourteenth amendment in 1866 and issued its Report of the Joint Committee on Reconstruction. The widely published report influenced the state ratification process and figured in the 1866 election campaign.[105] It emphasized the need to adopt the fourteenth amendment to ensure freedmen the liberties included in the federal Bill of Rights.
Testimony reprinted in the report detailed "tyrannical provisions to prevent the negroes from leaving the plantation without a written pass from the proprietor; forbidding them... to have firearms in (p.651)their possession, even for proper purposes."[106] General Rufus Saxon informed the committee that in the South whites were "seizing all fire-arms found in the hands of the freedmen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.'"[107]
Influenced by the partisan feeling of war's aftermath, witnesses who testified in March and April 1866 described in vivid terms the arms culture of Texas and the extent to which freedmen participated in it. Brigadier General W. E. Strong surveyed the condition of freedmen by visiting portions of Texas with cavalry troops armed with Spencer repeating carbines. He noted that "nearly every man we met with in travelling was armed with a knife, seven-shooter, and double-barrelled shot-gun."[108]
Major General David S. Stanley led Northern troops to Texas at the end of the war and described conditions after the surrender:
Question. State what you know as to returned rebels having arms.
Answer. I can say ... that every one of them has either a six-shooter or a musket. They keep the muskets hid, but every man down there travelling through the country has a six-shooter. They never turned in their arms, they concealed them.[109]
No one suggested that ex-Confederates be disarmed, but strong sentiments were expressed over abuses committed by state agents who were disarming freedmen. Lieutenant Colonel H. S. Hall, an official with the Freedmen's Bureau, told how Governor Hamilton authorized armed patrols to suppress an alleged negro insurrection.
Under pretense of the authority given them, they passed about through the settlements where negroes were living, disarmed them--took everything in the shape of arms from them--and frequently robbed them of money, household furniture, and anything that they could make of any use to themselves. Complaints of this kind were very often (p.652)brought to my notice by the negroes from counties too far away for me to reach.[110]
A contrasting view was presented by New York Times correspondent Benjamin C. Truman, who had just returned from the Texas constitutional convention of 1866 at Austin. Truman found Texas to be the most progressive and tolerant of freedman's rights of the several southern states he visited.[111] He noted that "[t]he convention passed an ordinance giving the negroes all the civil rights, and it passed by a very large majority."[112]
The above civil rights apparently included bearing arms, for unlike other Southern states, Texas did not pass a black code provision disarming freedmen. T. J. Mackay, an ex-Confederate who assisted in the surrender of arms to the Northern army,[113] stated that "a majority of [the freedmen] are armed, and entitled to bear arms under the existing laws of the southern States."[114]
The Texas legislature considered and rejected adoption of the fourteenth amendment in October 1866. The report of the Senate Committee on Federal Relations admitted that the Negro had no right of suffrage, but noted, "our Constitution guarantees to the negro every other right of citizenship."[115] This clearly included the right to keep and bear arms.
On the other hand, the House report suggested that section 1 of the fourteenth amendment would make negroes "entitled to all the privileges and immunities of white citizens; in these privileges would be embraced the exercise of suffrage at the polls, participation in jury duty in all cases, [and] bearing arms in the militia ...."[116] The militia laws in Texas at that time, according to a congressman, "authorize anybody and everybody ... to organize a militia hostile to the Government ...."[117] Thus, the Senate committee did not object to blacks keeping and bearing arms and exercising other rights of citizenship aside from voting. The House committee, however, rejected the fourteenth amendment because it was perceived as protecting (p.653)from state infringement privileges such as bearing arms and associating into militia companies.
On November 6, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen. The act declared that "it shall not be lawful for any person or persons to carry fire-arms on the enclosed premises or plantation of any citizen, without the consent of the owner or proprietor," subject to a fine of one to ten dollars and imprisonment of one to ten days.[118] This meant that sharecroppers who still lived on plantations could keep firearms in their homes but could not carry them outside for any purpose other than civil or military duties.
Southern Democrats were opposed to blacks bearing arms in militias which could be manipulated by radical Republicans to seize power.[119] In the period of fall 1866 through summer 1867, carpetbaggers descended upon the South. Following orders from Washington, D.C., General Phil Sheridan deposed Texas governor Throckmorton and installed E. M. Pease.[120] Sheridan, according to a partisan account, "under the inspiration of an incendiary press and the [Union] Leagues, was permitting the Texas negroes to run amuck with guns and knives."[121] In the wake of this military autocracy, a constitutional convention was called.[122]
The convention which met at Austin between June and December 1868 was called pursuant to reconstruction acts of Congress requiring Southern states to ratify the fourteenth amendment and to adopt new constitutions consistent with that amendment.[123] The convention proceedings reflected the Republican view that the fourteenth (p.654)amendment would protect the right of all, including freedmen, to keep and bear arms.
The Report of the Attorney General of Texas for 1867, appended to the convention journal, contains an analysis of what it called "Pretended Laws of 1866 against the Freedmen":
The main object kept in view by ... those who devised the pretended laws ... was the restoration of African slavery, in the modified form of peonage.
Ch. 80, p. 76--The so-called labor law.--It provides expressly for a system of peonage, without using that term.... It is directly opposed to the Thirteenth Amendment of the Constitution of the United States, and of the Civil Rights Act....
Ch. 92, p. 90--Makes the carrying of fire-arms on enclosed land, without consent of the land-owner, an offence. It was meant to operate against freedmen alone, and hence is subject to the same objections....
Joint Resolution No. 13, p. 166--The refusal to ratify the fourteenth proposed amendment to the constitution of the United States. As the first section of this amendment guarantees freedmen their civil rights as citizens of the United States and of the States in which they reside, the rejection of the amendment ... is subject to the further objection of being a rejection of a condition precedent since imposed by the military reconstruction act.[124]
A related opinion of the Attorney General circulated at the convention concerned the supremacy of the federal constitution and the state's obligations under the Military Reconstruction Act. It stated that the gun control and vagrancy laws amounted to a "cunningly devised system, planned to prevent equality before the law, and for the restoration of African slavery in a modified form, in fact, though not in name."[125]
Even though the freedmen were "generally as well armed as the whites,"[126] a convention committee reported, "bands of armed whites are traversing the country, forcibly robbing the freedmen of their arms, and committing other outrages upon them."[127] Radical ally Gen. J.J. Reynolds reported to Washington, D.C., that Ku Klux Klan organizations sought "to disarm, rob, and in many cases murder (p.655)Union men and negroes...."[128] A resolution predicted that the law-abiding "will be compelled, in the exercise of the sacred right of self defense, to organize for their own protection."[129]
Talk in the convention about adopting "every safeguard contemplated by the Fourteenth Amendment to the Constitution of the United States"[130] led to suggestions for amendments modeled after the federal Bill of Rights. Delegate Fayle proposed adoption of the following:
A well regulated militia being necessary to the safety of a free State, every citizen shall have the right to keep and bear arms for the common defence. Nevertheless this article shall not be construed as giving any countenance to the evil practice of carrying private or concealed weapons about the person; but the Legislative and municipal authorities within this State are fully authorized to make such laws and ordinances as shall tend to abolish a practice so prolific of strife and bloodshed.[131]
While not adopted, this version suggests that the convention meant to regulate the manner of bearing arms rather than to prohibit them per se. An enabling act was proposed to empower city councils to prevent the carrying of concealed weapons.[132]
Amusingly, the convention initiated such restrictions within its own walls by passing the following resolution:
WHEREAS, The custom of carrying concealed weapons is openly indulged by spectators and others who visit this Convention, in the lobbies and elsewhere; therefore be it
Resolved, That the Convention do order that no person shall hereafter be allowed in this hall, who carries belted on his person, revolvers or other deadly weapons.[133]
The Sergeant at Arms was ordered to enforce this ban on carrying "concealed" weapons which was "openly" indulged in.[134]
Adhering to the theme that the state constitution must be in accord with the fourteenth amendment, which in turn incorporated (p.656)the federal Bill of Rights, the Committee on General Provisions proposed:
The inhibitions of power enunciated in articles from one to eight inclusive, and thirteen, of the amendments to the Constitution of the United States, deny to the States, as well as to the General Government, the exercise of the powers therein reserved to the people, and shall never be exercised by the government of this State.[135]
Radical leader Morgan C. Hamilton, the committee chairman, explained this provision as follows:
It will be observed that section 3 embodies the substance of ten of the sections in the Bill of Rights in the Constitution of 1845, it being the opinion of your Committee that the inhibitions enumerated in the said ten sections are fully covered by the nine articles mentioned as amendments to the Constitution of the United States, thus dispensing with a long string of sections which are deemed useless.[136]
The committee's report is highly significant in several respects. First, it reaffirms the understanding that the federal second amendment protected individual rights, for it "embodies the substance" of the guarantee in the 1845 Texas Constitution that "every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State."[137] Secondly, the report clearly recognizes that the fourteenth amendment, which the proposed state bill of rights was precisely fashioned to emulate, made "articles from one to eight inclusive ... of the amendments to the Constitution of the United States" applicable to the states.[138] Thirdly, failure to adopt the proposed new bill of rights signified no rejection of its principles because the 1845 provisions guaranteed the same protection as the federal Bill of Rights.
Instead of adopting the committee's version, the convention adopted a modified version of the old Texas Bill of Rights. A clause was added to the arms guarantee so that it stated: "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."[139](p.657)
Under the new version, "person" replaced "citizen"--an expansion of the protected class which would include blacks in the event any lingering doubts existed about their citizenship. The granting of legislative power to regulate the bearing of arms meant that the right was no longer "absolute,"[140] but still its exercise could not be prohibited. The intent was to authorize the legislature to ban carrying concealed weapons, but not to ban the bearing of arms in any fashion.
Texas ratified the fourteenth amendment on February 18, 1870, and Congress determined that the new Texas Constitution was consistent with the fourteenth amendment. An act of March 30, 1870, readmitted Texas to the Union.
The elections of 1869 were characterized by massive fraud and force. Gen. Reynolds relinquished military authority to the new governor, E.J. Davis, who assumed extraordinary powers to make arrests, suspend the writ of habeas corpus, and declare martial law. Legislators who opposed his policies were arrested so that Radicals could obtain majorities to pass their bills.[141] A state police force was organized which promoted "official murder and legalized oppression."[142]
"An Act Regulating the Right to Keep and Bear Arms," approved on August 13, 1870, made it illegal for one to "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" at any church or religious assembly, school, ball room "or other social gathering composed of ladies and gentlemen," or election precinct.[143] The act was fairly limited, although its effect on cooks with butcher knives at social gatherings is unclear.
The far more draconian statute was passed on April 12, 1871, entitled "An Act to regulate the keeping and bearing of deadly weapons."[144] For the first time, Texas prohibited the bearing of all arms (p.658)other than rifles and shotguns at any place off of one's premises. Today's statute derives from the 1871 act passed by the Reconstruction legislature.
Section 1 of the act provided in part:
Any person carrying on or about his person, saddle, or in his saddle-bags, any pistol, dirk, dagger, sling-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 .... Provided, That this section shall not be so construed as to prohibit any person from keeping or having arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or revenue officers, and other civil officers, from keeping or having 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....[145]
Punishment for a first offense was a fine of not less than $25 nor more than $100 and forfeiture of the weapon. A subsequent offense was punishable by a maximum of sixty days in jail.
The act was one of a series of controversial measures passed by the Reconstruction legislature in 1871, a year in which Republicans were consolidating their political power over disenfranchised ex-Confederates. A taxpayers' convention in Austin undertook to investigate general grievances of the people. The Report of the Subcommittee on Violations of [the] Constitution and Laws, chaired by W.M. Walton, was submitted on September 25, 1871 to Senator A.J. Hamilton, Chairman of the General Committee. It complained that the arms act and other acts rendered the majority helpless in the grasp of a military dictatorship:(p.659)
17. The people have been disarmed throughout the State, notwithstanding their constitutional right "to keep and bear arms." (Constitution, section 13, article 1. Laws 1871, p. 75.)
The police and State guards are armed, and lord it over the land, while the citizen dare not, under heavy pain and penalties, bear arms to defend himself, unless he has reasonable grounds for fearing an unlawful attack on his person, and that such grounds of attack shall be immediate and pressing. The citizen is at the mercy of the policeman and the men of the State Guard, and that too, when these bodies of men embrace in them some of the most lawless and abandoned men in the State, many of whom are adventurers--strangers to the soil--discharged or pardoned criminals ....
18. The election order ... forbids the assembling of the people on the days of election; it prohibits free speech; it is the unlawful will of the executive, enforced by him through the power of an armed police upon an unarmed people; it is the will of a despot and the act of tyrant overriding the supreme law of the land....
19. By orders executed through his armed bodies of police, the executive has taken control of peaceable assemblies of the people ... and there suppressed free speech under threats of arrest and subjection to punishment as criminals.[146]
The grievances were reprinted in the minority report of the U.S. Congress' Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States. The report noted that Governor E.J. Davis placed armed police at all voting places for the Congressional election in October 1871, and observed, "[t]he effect of putting such a military force in possession of the ballot box, with the citizens disarmed, is easily seen...."[147]
Governor E.J. Davis appointed the members of the Texas Supreme Court, which in English v. State[148] sustained the validity of the prohibition on bearing arms. True to the Radical orthodoxy of the time, the court took an expansive view of the federal second (p.660)amendment and interpreted the state arms guarantee in light of the federal provision.
Consistent with the antebellum judicial view[149] and with the position of Republicans in both Texas and the United States Congress,[150] English held that the second amendment prohibited both state and federal infringement of the right to keep and bear arms. The opinion by Justice Walker relied on the following words from a well recognized criminal law treatise by Joel P. Bishop:
The constitution of the United States 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." This provision is found among the amendments; and, though most of the amendments are restrictions on the general government alone, not on the states, this one seems to be of a nature to bind both the state and national legislatures, and doubtless it does.[151]
Applying literally Bishop's statement that the second amendment "protects only the right to 'keep' such 'arms' as are used for purposes of war,"[152] the court explained:
The word "arms" in the connection we find it in the constitution of the United States, refers to the arms of a militiaman or soldier, and the word is used in its military sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine; of the artillery, the field piece, siege gun, and mortar, with side arms.
The terms dirks, daggers, slingshots, sword-canes, brass-knuckles and bowie knifes, belong to no military vocabulary. Were a soldier on duty found with any of these things about his person, he would be punished for an offense against discipline.[153]
The upholding of the statute under the above reasoning is somewhat contradictory, since "the deadly weapons spoken of in the statute are pistols,"[154] which the court recognized as militia arms. Moreover, dirks, daggers, and bowie knives were widely used by (p.661)Texas soldiers in the wars of 1835-1836 and 1861-1865, and these edged weapons have been routinely used in every American war.[155] It is interesting that by applying a literal military test, the court sanctioned the keeping by private persons of field pieces, siege guns, and mortars.
Quoting the Texas Bill of Rights provision, the court found the term "arms" to mean the same as used in the federal second amendment.[156] The court did not address whether militia arms would sometimes differ from arms used "in the lawful defense of himself" instead of the state. "Our constitution, however, confers upon the legislature the power to regulate the privilege. The legislature may regulate it without taking it away...."[157] Yet the fact remains that the act did not regulate how arms may be borne, but prohibited bearing them for self-defense and other lawful purposes.
The defendants in English were not sympathetic figures--one had carried a pistol while intoxicated, and another was armed with a butcher knife in a religious assembly.[158] Yet hunters were also prosecuted under the act.[159] Further, the court's references to "a class of our own people" and "the customs and habits of the people" as being in conflict with "intelligent and well-meaning legislators"[160] symbolizes the reconstruction's mission of civilizing purportedly backward Southerners, who were deemed unfit to vote or bear arms. A product of military occupation, the reconstruction court's decisions would not be considered binding precedents in later years.[161](p.662)
The 1871 disarming law and the other grievances expressed in the taxpayer convention proceedings became the basis for Democratic election campaigns. The report which outlined these grievances became one of the party platform documents.[162] When the newly enfranchised Democrats won the legislature in 1872, they repealed most of the obnoxious acts but for some reason retained the ban on bearing arms. In the 1873 elections, the Democrats defeated Governor Davis, although armed citizens had to take over the capitol when Davis tried to keep office by armed force.[163]
A new supreme court was formed with Oran M. Roberts, who in 1859 had considered the right to bear arms to be absolute, as its Chief Justice. Surprisingly, the new court upheld the validity of the disarming act passed by the reconstruction legislature in 1871. As a practical matter, those in power could selectively enforce this act against political opponents or selected ethnic groups.
In State v. Duke,[164] the Texas Supreme Court in an opinion by justice Gould, repudiated the English holding and concluded that the federal second amendment did not limit state action, but that the arms protected by the state guarantee were not restricted to militia arms. The decision reflects a Democratic rejection of federal interference, with increased tolerance for the kinds of arms recognized as protected under state law.
Duke's conclusion that the second amendment and other federal Bill of Rights provisions limited the United States but not the individual states was based on the United States Supreme Court's restrictive views in The Slaughterhouse Cases and similar precedents.[165] Ignoring the intent of the framers of the fourteenth amendment to incorporate the Bill of Rights, the Supreme Court took a narrow (p.663)view of the privileges and immunities of citizens in its post-Reconstruction opinions.[166] Of course, Duke did not consider whether the second amendment applied to the states through the fourteenth amendment.[167]
Duke remains the leading Texas authority on the arms right, even though it construed the no-longer-valid 1869 guarantee recognizing the right to bear arms "under such regulations as the Legislature may prescribe." After quoting this provision, Justice Gould stated that the court acquiesced in the English decision, but did "not adopt the opinion expressed that the word 'arms,' in the Bill of Rights, refers only to the arms of a militiaman or soldier. Similar clauses in the Constitutions of other States have generally been construed by the courts as using the word arms in a more comprehensive sense."[168] The court proceeded to cite cases holding a sword cane, a pistol, and a bowie knife to be constitutionally protected arms.[169]
The court went on to formulate a test which appears to combine common-law concepts with a nineteenth century southern gentleman's code:
There is no recital of the necessity of a well-regulated militia, as there is in the corresponding clause in the Constitution of the United States. The arms which every person is secured the right to keep and bear (in the defense of himself or the State, subject to legislative regulation), must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State. If this does not include the double-barreled shot-gun, the huntsman's rifle, and such pistols at least as are not adapted to being carried concealed, then the only arms which the great mass of the people of the State have, are not under constitutional protection. But, beyond question, the dragoon or holster pistol is part of the arms of a soldier in that branch of the service.[170](p.664)
The reference to "such arms as are commonly kept, according to the customs of the people" is clearly rooted in English common law.[171] The notion that the arms be "appropriate for open and manly use in self-defense" originated in the code of honor of the antebellum southern gentleman.[172] Like the code duello, this test does not anticipate womanly use of arms (such as smaller pistols) for self-defense.
Duke proceeded to uphold the constitutionality of the act because "[i]t undertakes to regulate the place where, and the circumstances under which, a pistol may be carried; and in doing so, it appears to have respected the right to carry a pistol openly when needed for self-defense or in the public service, and the right to have one at the home or place of business."[173] Actually, having a pistol at home or place of business would be protected by the right to "keep" arms. The right to "bear" arms was effectively taken away by the act.[174](p.665)
It is somewhat surprising that the new court would uphold the unpopular reconstruction measure. The chief justice of the Duke court was Oran M. Roberts, author of the 1859 Cockrum opinion which held the right to bear arms to be "absolute." Yet under the reconstruction constitution bearing arms was recognized to be a right only "under such regulations as the Legislature may proscribe."[175] It remained for the constitutional convention of 1875 drastically to curtail this legislative power.
In September of 1875 delegates assembled in Austin to formulate a new constitution. These delegates had participated in previous conventions, one even in the 1845 convention, but not one member had taken part in the 1868 convention.[176] Tired of corruption and military rule, "the delegates to the Constitutional Convention of 1875 determined to include in the state's basic instrument as many safeguards as possible to prevent the recurrence of such widespread and flagrant abuse of power."[177] The constitution they drafted greatly reduced the powers of the legislature and has been described as "an antigovernment instrument."[178]
According to Seth Shepard McKay's definitive study, in raising the demand for a convention, "the arguments most used were that the old constitution apparently had permitted the so-called 'obnoxious acts' of the Davis administration."[179] Governor Richard Coke stated in an early 1874 message: "It is admitted ... that the Constitution of Texas must be extensively and radically amended...."[180] As McKay further notes, "the experiences with the 'obnoxious acts' passed by the Twelfth Legislature caused restriction of the power of the legislative branch of government. More than one-half of the fifty-eight sections of the article finally agreed upon dealt with restrictions and limitations of the power of the legislature."[181](p.666)
The Bill of Rights Committee, chaired by W.L. Crawford,[182] reported an arms guarantee which would become Article I, Section 23 of the constitution of 1876: "Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power by law to regulate the wearing of arms, with a view to prevent crime."[183] The convention journal reflects the following attempt to amend this provision:
Mr. [W.P.] Ballinger offered the following amendment:
Section 23, line 105, next before the word "regulate" insert "prohibit and."
On motion of Mr. Nugent, laid on the table.[184]
T.L. Nugent, maker of the motion to kill the amendment, was a member of the Bill of Rights Committee,[185] which had crafted the language of the guarantee very carefully. The record of convention debates provides more detail concerning the above action:
Judge Ballinger moved to insert before the word "regulate," the words "prohibit and," in Section 23. It has reference to the bearing of arms.
Mr. [John Henry] Brown said that, after what he had seen in the last fifteen years, he would not prohibit the bearing of arms, but would leave it with the Legislature to regulate.
Mr. [Jacob] Waelder said he thought it led to more crime than any other cause did.
The amendment was tabled.[186]
The arms guarantee in its original form passed along with the rest of the Bill of Rights by a vote of 69 to 9.[187] A linguistic analysis comparing the new language with that of the 1869 Constitution demonstrates that the legislative power was drastically curtailed.
Initially, the sentence structure was changed. The 1869 provision asserted the right to keep and bear arms only "under such regulations as the legislature may prescribe." Keeping and bearing arms was contingent on legislative regulations. "The 1875 Convention changed this to the more specific and limited qualification in the present Section 23, which gives the legislature power to regulate (p.667)'the wearing of arms.'"[188] The new language asserted the right in an absolute form without making it contingent on legislative regulation, subject only to the power of the legislature to regulate how arms are worn.
Secondly, the new guarantee deleted any legislative power to regulate the keeping of arms. The possession, ownership, transportation, or other forms of "keeping" arms, particularly on one's premises or while travelling, were intended to be beyond the parameters of legislative control.
Thirdly, the "bearing" of arms could no longer be generally regulated but only the "wearing" of arms could. To "bear" arms means to carry or move while holding or wearing readily accessible arms on or about one's person. To "wear" means more narrowly to have attached to one's body or part of it or to one's clothing.[189] Thus, the bearing of arms would include both wearing them as well as carrying them in other manners, such as in the hand, in saddle bags, or on a vehicle seat. Thus, the convention did not give the legislature power to regulate the "bearing" of arms, but instead chose a different word so as to allow regulation only of the "wearing" of arms. By allowing regulation of how arms are worn, citizens could be required to carry them openly and not concealed.
Fourthly, the legislature could regulate, but not prohibit, the wearing of arms. The convention's rejection of a power to prohibit the wearing of arms again affirms that the legislature might prohibit carrying concealed weapons, but could not prohibit carrying them openly. Texans were long since aware of the rule that "a statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them useless for the purpose of defence, would be clearly unconstitutional."[190]
Finally, the power to regulate the wearing of arms was made contingent on the regulation being "with a view to prevent crime." The wearing of arms could not be regulated for purposes other than to prevent crime. Wearing arms concealed for necessary self-defense, (p.668)particularly in emergencies, or while hunting during inclement weather could be beyond legislative regulation because the conduct is manifestly not criminal. Moreover, a statute regulating the wearing of arms which demonstrably does not prevent crime could be beyond the legislative power to enact.[191]
Under the 1876 guarantee, the legislature (but not a locality) could regulate how arms were to be worn, i.e., openly or concealed, but could not bar the wearing of weapons per se. It was intended to repeal the broad legislative power in the 1869 Constitution and in particular the unpopular 1871 act which prohibited the bearing of arms anywhere but on one's premises.[192] The 1871 act was used to disarm and oppress the people and to set up a police state.[193]
The address of the convention to the people promised that the language of the new Bill of Rights protected the citizens' liberties "by every safeguard known to constitutional law."[194] The constitution was submitted to a popular vote and ratified in early 1876.[195] Those who thought that the new guarantee would restore the right to bear arms in Texas were in for a rude awakening.
When the Constitution of 1876 became effective, the courts began to render opinions on the 1871 Act which continued to rely on the Duke precedent and failed to mention what effect the new arms guarantee had on the act.[196] One such case, Lewis v. State (1877), contains the following seemingly contradictory sentences: "The statute prohibits all persons, except those exempted from its penalties therein, from carrying a pistol, or the other weapons named, either on or about his person, or saddle, or in his saddle-bags.... The (p.669)statute is not intended to prevent keeping and bearing arms, but merely to regulate the manner in which they are to be carried and used."[197] It is unclear how a walker or a horseman could bear a pistol any other way than the prohibited way.
Despite such contradictory analysis, the constitutional right to "keep" a pistol, even one carried in violation of the 1871 Act, was recognized as absolute and beyond the legislative power to regulate. Jennings v. State held:
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 defense and that of the State. This right is one of the surest safeguards of liberty and self-preservation.[198]
Since the ratification of the arms guarantee in the constitution of 1876, the 1871 act, which continues in effect, has never been successfully challenged in a published judicial opinion. The cases usually follow the Duke precedent and uphold the prohibition. None of these opinions mention the debates in the constitutional conventions which framed the guarantee of the right to keep and bear arms. Indeed, analysis of the intent of the framers of the successive arms guarantees appears to be printed here for the first time since the convention debates and journals were originally published in the nineteenth century.
The right to keep and bear arms is one of the federal Bill of Rights provisions which applied to the states, according to the English precedent. Coinciding with the U.S. Supreme Court's narrow (p.670)interpretation of the fourteenth amendment, the Duke court held that the second amendment does not limit state action.
Yet neither English nor Duke raised the issue of whether the second amendment applies to the states through the fourteenth amendment. These holdings were concerned only with whether the second amendment applied directly to the states.
Ironically, the only mention by the United States Supreme Court of the right to keep and bear arms before the fourteenth amendment was passed found the right to be protected from any infringement. In the Dred Scott decision, Chief Justice Taney wrote that citizenship "would give to persons of the negro race ... the full liberty of speech... and [the right] to keep and carry arms wherever they went."[199] The stated purpose of the fourteenth amendment was to nullify this decision denying citizenship to blacks and to guarantee them all the rights of citizenship.[200]
In United States v. Cruikshank,[201] the United States Supreme Court stated that the federally recognized rights of peaceable assembly and bearing arms did not limit state action. This was dictum, since the case involved the disruption of a meeting and the disarming and murder of freedmen by private persons.[202] Again, in Presser v. Illinois,[203] the Court repeated that the first and second amendments did not apply to the states and upheld a conviction for leading a march of four hundred armed workers in Chicago. This too was dictum, since the Court held that bans on armed parades in cities "do not infringe on the right of the people to keep and bear arms."[204]
Like the Texas high court in English and Duke, the United States Supreme Court has never considered whether the second amendment applies to the states through the fourteenth amendment. The Supreme Court confirmed that it had never addressed this issue in Miller v. Texas (1894),[205] which remains the last word on the subject from the Court.(p.671)
Convicted of murder and sentenced to death, defendant Miller attacked the 1871 Reconstruction Act prohibiting the bearing of pistols as violative of the second, fourth, and fourteenth amendments. However, he asserted these arguments for the first time in a motion for rehearing after his conviction had been affirmed by the Court of Criminal Appeals of Texas.[206] The defendant made no constitutional objections in his original assignment of error to the court of criminal appeals:
In his motion for a rehearing, however, defendant claimed that the law of the State of Texas forbidding the carrying of weapons, and authorizing the arrest without warrant of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the Second and Fourth Amendments to the Constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures. We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and even if he were, it is well settled that the restrictions of these amendments operate only upon the Federal power, and have no reference whatever to proceedings in state courts.[207]
The Supreme Court then turned to the claim that the Texas statute violated the above rights as incorporated in the fourteenth (p.672)amendment. The court would not hear objections not made in a timely fashion:
And if the Fourteenth Amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.... A privilege or immunity under the Constitution of the United States cannot be set up here ... when suggested for the first time in a petition for rehearing after judgment.[208]
Rather than reject incorporation of the second and fourth amendments into the fourteenth, the Supreme Court merely refused to decide the defendant's claim because its powers of adjudication were limited to the review of errors timely objected to in the trial court. The careful distinction drawn by the Miller Court between rights based solely on provisions in the Bill of Rights and those based on the fourteenth amendment, and the Court's reliance on Cruikshank, demonstrates that neither of these cases dealt with the issue of whether the fourteenth amendment prohibits the states from infringing on the right to keep and bear arms. The Court merely left open the possibility that the right to keep and bear arms and freedom from warrantless arrests or unreasonable seizures would apply to the states through the fourteenth amendment.
In 1897, just three years after Miller v. Texas was decided, the Supreme Court determined that the fourteenth amendment incorporated the right to compensation for property taken by the state as guaranteed in the fifth amendment.[209] Simultaneously, in Robertson v. Baldwin, the Court stated:
The law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding (p.673)the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons....[210]
While the above case concerned the thirteenth and not the fourteenth amendment, its language suggests that the right to bear arms would be infringed by a law absolutely prohibiting the carrying of weapons either openly or concealed. If so, the second amendment, if incorporated into the fourteenth amendment, may be inconsistent with the Texas prohibition on bearing open or concealed arms.
From the 1920s through the present, the Supreme Court has held the fourteenth amendment to protect free speech, freedom from unreasonable search and seizure, the right to counsel, freedom from self-incrimination, warnings before confession, speedy trial, compulsory process, jury trial, absence of double jeopardy, and so on.[211] In a case involving a ban on handguns in the home in 1983, the court declined to hear and decide whether the right to keep arms is incorporated in the fourteenth amendment.[212] Following the logic of previous cases, the Supreme Court could apply the second amendment to the states directly through the due process or the privileges and immunities clauses of the fourteenth amendment. It could also adopt a broader "penumbra" theory to guard the right to keep and bear arms from state infringement.[213] Under this theory, unenumerated rights protected by the ninth amendment could be defined, in part, by reference to the objectives of the other amendments--the first (privacy), the second (security and a free state), the third (protection of home), the fourth (protection of house and person), the fifth (protection of life, liberty, and property), and the tenth ("powers" reserved to the people).
The reluctance to incorporate the second amendment into the fourteenth may stem from the uncertainty of whether the right to bear arms is a private, individual right or a collective, militia power. (p.674)The framers of the second amendment held that it was both of those.[214] Presumably, at some point the Supreme Court will address whether the fourteenth amendment protects a personal right to keep and bear arms.
The reconstruction ban on carrying pistols and certain knives and blunt instruments has remained on the books to the present, and has been upheld by every court to consider the issue. The intent of the framers of the current constitutional guarantee as adopted in 1876 has never been alluded to in these opinions. Instead, the courts have relied mostly on precedents, particularly Duke, which was decided in 1875 and construed a much weaker arms guarantee than the current one.[215]
Felons have traditionally been subject to disabilities, including the forfeiture of the right to possess firearms or vote in many jurisdictions. Texas liberally prohibits only the carrying of concealable firearms off of the felon's premises. The right of a convicted burglar "to arm himself in self-defense, as secured to him by Art. 1, Section 23 ... is in no way infringed ... because appellant might have armed himself with any other weapon not prohibited in the article."[216]
The precedents uphold the constitutionality of prohibitions on carrying certain arms because article I, section 23 of the Texas Constitution allows the legislature "to regulate the wearing of arms." There appears to be only one case involving a prohibition on mere possession of an arm. A ban on possession of an unregistered machine gun was upheld under the Duke rule: "A machine gun is not a weapon commonly kept, according to the customs of the people (p.675)and appropriate for open and manly use in self-defense."[217] Article I, section 23 protects "those arms which by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of persons and property."[218] The court did not consider whether a machine gun may be protected if kept for defense of the state.
The prohibition on carrying pistols is so draconian that judicially carved exceptions were inevitable. The constitution provides no legislative power to regulate the keeping on one's premises of commonly possessed arms such as pistols. By implication, on obtaining a pistol, one may carry it home by the nearest practicable route.[219] One may carry a pistol to and from a shop to have it repaired,[220] but the carrying must be without unreasonable delay.[221]
The statute originally provided an imminent self-defense exception.[222] "If, at the time appellant armed himself, he was then apprehensive of an attack ..., and he had not time to appeal to the law for protection, there would be some excuse for him ...."[223] The explicit self-defense exception has been long since deleted from the statute, but the courts have continued to recognize the exception, and have actually expanded it to include situations where no specific attack is imminent. "There is no recognized exception permitting one to carry a handgun on the basis of self-protection; therefore, if appellant is to be successful, it must be on the legitimate business of protecting a large sum of money or carrying the pistol to his place of business along a practical route, such carrying being not habitual."[224] Nonhabitual carrying of a pistol between a home and one's place of business is lawful if "the purpose is a legitimate one."[225](p.676)
The statutory prohibition is so broad that the judicially created exceptions discussed above were inevitable. Ironically, none of these opinions even mentions the constitutional right to bear arms for self-defense. Except for the early invalidation of a forfeiture provision, the constitutional right to bear arms is perhaps the only Texas Bill of Rights provision that has never been relied on in any published opinion to invalidate a statute or to acquit a defendant.
The nature of the right to bear arms was addressed by a court of appeals in 1983 and the Court of Criminal Appeals in 1985. In Masters v. State, the defendant was convicted of unlawfully carrying a weapon and fined one dollar.[226] He had been arrested at a busy intersection in Austin carrying a pair of sai, described by the court as "swordlike" weapons used in Korean martial arts, after telling the police that "he might need them" and "wanted to be prepared."[227]
Masters' pro se appeals were based on the argument that the right to bear arms guaranteed in the Texas and United States Bills of Rights is absolute. The majority and concurring opinions in the appeals, which affirmed the conviction without analyzing the intent of the framers of these Bills of Rights, warrant scrutiny.
Writing for two justices, Chief Justice Phillips of the court of appeals opined that the federal second amendment did not grant the right to carry arms upon the person. The court's brief summary of three United States Supreme Court precedents does not, on close scrutiny, reflect what those cases literally stated.[228] While denying (p.677)that the second amendment recognizes an individual right, the court of appeals represents one of these precedents as stating "that the right to bear arms was contingent upon their being borne by the people for lawful purposes in lawful ways...."[229]
The following quotation from the United States Supreme Court, repeated in Masters, clearly implies that the second amendment recognizes an individual right which may be regulated but not prohibited: "The right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."[230]
Moreover, this implies that the right would be infringed if both the open and concealed bearing of arms is prohibited, which is the case under the Texas statute.
Turning to state law, the court of appeals conceded that "the Texas Constitution gives the right to keep and bear arms directly to the individual ...."[231] However, the court was unable to distinguish regulation of how arms are worn (e.g., openly or concealed) from a total prohibition on bearing arms. Article I, section 23 of the Texas Constitution provides that "the Legislature shall have the power, by law, to regulate the wearing of arms...." The Court was apparently unaware that the constitutional convention which framed (p.678)this provision rejected a proposal to allow the legislature also "to prohibit" the wearing of arms.[232]
Characterizing the statute's total prohibition as "reasonable regulations," the court stepped into the policy arena by repeatedly referring to the statute as "needed" and as one which the legislature had a "duty" to enact. The constitutional right to bear is reduced to "licentiousness cloaked under the name of natural and personal liberty...."[233]
Justice Powers' concurring opinion in Masters suggests that the issues were more complicated than the majority opinion would indicate. Noting that the legislative "power" to regulate the wearing of arms is not a "duty," Justice Powers found bearing arms to be both explicitly guaranteed and an enumerated right reserved to the people:
I disagree with the numerous statements in the majority opinion to the effect that a given constitutional provision "gives" or "grants" to individuals a "right," or that a "specific right" could have been "given" or "granted" by the constitution but was not. Such language suggests that without constitutional authorization, the right would not exist in an individual person. In other words, if the second amendment does not "give" or "grant" the right to keep and bear arms, individuals would not possess that right. The theory of the majority contravenes the basic constitutional principals that individuals possess immunities and prerogatives by the very fact that they are human beings, and they retain these rights save to the extent they have voluntarily ceded them to a sovereign power, as in the Federal and State constitutions, where they expressly reserved all rights not granted expressly or by implication, including those immunities and prerogatives listed in the Bill of Rights, upon which the government of the sovereign is forbidden to infringe.[234]
The reference to the federal ninth amendment as added protection for bearing arms is historically correct. In his constitutional law treatise published in 1832, Benjamin L. Oliver expressed the established view of the time that the second amendment guaranteed an (p.679)individual right to bear arms against state or federal deprivation.[235] Of the ninth amendment Oliver stated:
There are some other rights, which are reserved to the people, though not mentioned in the general constitution. Among these is the right of self-defence, in cases where the danger is so imminent, that the person in jeopardy, may suffer irreparable injury, if he waits for the protection of the laws.... [A]s the compact between him and society is mutual, if society is unable to protect him, natural right revives to protect himself.[236]
Oliver also wrote: "Of those rights which are usually retained in organized society ... the first and most important of these rights, is that of self-defense."[237]
Justice Powers pointed out that constitutional scholars have traditionally regarded the second amendment as recognizing individual rights. In the words of Judge Cooley, the second amendment originated in
the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the late dynasty in disarming the people, and as a pledge of the new rulers, that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation of arbitrary power by rulers, and as a necessary and efficient means of regaining rights temporarily overturned by usurpation.[238]
Moreover, the "collective theory" which holds that the second amendment only protects state militia powers, according to Justice Powers, is filled with "difficult internal inconsistencies."[239]
Nonetheless, Justice Powers concurred in the result because the defendant failed to attack the reasonableness of the statute "as applied to the weapon in question."[240] "Even if individuals do possess under the second amendment a fundamental right to keep and bear weapons, which the Constitution guarantees against State as well as (p.680)federal infringement, it plainly is not an absolute right...."[241] Missiles, grenades, flamethrowers, or howitzers would not be constitutionally protected arms.[242] Whether the sai, a primitive club which looks like a short sword, is such an arm was left unresolved.
In a per curiam opinion, the Court of Criminal Appeals affirmed the conviction.[243] The opinion contains no analysis of the right to bear arms under the Texas Bill of Rights, or the intent of its framers. The constitutional guarantee is written off by citation to precedents which similarly failed to take notice of the intent of the framers or the basic linguistic distinction between the terms "regulate" and "prohibit."[244]
Likewise, the second amendment argument was brushed aside by reciting precedents without analysis. "The second amendment simply does not apply to the states or their subdivisions,"[245] in the opinion of the court. Of course, neither do the first or fourth amendments, yet freedom from unreasonable searches and seizures and freedom of speech are protected from state and federal intrusion. The issue is whether the fourteenth amendment incorporates a right to bear arms as it does free speech or freedom from unreasonable search. None of the cases cited by the court, with one exception, contains any analysis of whether the second amendment might apply to the states through the fourteenth amendment. That exception was the controversial opinion of the United States Court of Appeals for the Seventh Circuit in 1983 upholding the first ban in American history on keeping handguns in the home.[246] Faced with evidence that the framers intended to protect the personal right to have arms from state infringement,[247] the federal court disregarded (p.681)established constitutional interpretative rules and found the framers' intent to be "irrelevant."[248]
Justice Clinton of the Texas Court of Criminal Appeals wrote a thoughtful concurring opinion in Masters. Texas judges have a duty to follow the United States Supreme Court's construction of the federal Constitution, including its holding that the second amendment restricts only the powers of the federal government.[249] "Still," he noted, "the Supreme Court did acknowledge that the second amendment 'recognizes' the 'rights' it mentioned."[250] While concluding that attacking state law on second amendment grounds is "utterly futile,"[251] neither Justice Clinton nor the United States Supreme Court considered whether the fourteenth amendment makes the second amendment binding on the states.
Even apart from the fourteenth amendment, Justice Clinton suggested that the right to keep and bear arms could be held to be an unenumerated right under the ninth amendment. "Not yet finally decided" by the Supreme Court is whether a federal right to keep and bear arms "is a preexisting 'right' under the Ninth Amendment [which] government may not 'deny or disparage.'"[252]
Moreover, the right to bear arms is clearly guaranteed by the Texas Bill of Rights. Justice Clinton continued:
On the other hand, on firm ground of experience recounted in the Texas Declaration of Independence, the citizen in Texas does have the right to keep and bear arms "in the lawful defense of himself or the State" subject, however, to the Legislature's regulating by law "the wearing of arms, with a view to prevent crime." Apparently because the Legislature has exercised its authority to enact laws regulating the carrying of weapons, appellant and others find our own constitutional guarantee unacceptable.[253]
Justice Clinton did not delve into "the firm ground of experience" which led to the adoption in 1876 of a limited power of the legislature (p.682)to regulate, but not prohibit, the wearing of arms.[254] In his concurring opinion in Brown v. State, joined by Justices Onion and Miller, Justice Clinton noted the origins of the right against unreasonable searches guaranteed by the Texas Bill of Rights: "While its origin may indeed be traced back to incidents in English and American colonial history, surely local experiences at the hands of 'military commandants,' alluded to in the Declaration of Independence of the Republic, made constitutional protections even more imperative and that the safeguards they provided be enforced."[255]
Reaction to reconstruction's "military commandants," who disarmed the Texas populace on a wider scale than had those of Santa Anna, led to the rejection of a fairly unlimited legislative power to regulate the bearing of arms in favor of a narrow power to regulate how arms are worn.[256] No dispute exists in the court of criminal appeals that the Texas guarantee protects individual rights from state infringement.[257] It remains to be seen whether the right to bear arms, with regulations on how arms can be worn (as opposed to an outright prohibition), will be recognized in Texas.
A prohibitive $500 tax for selling "the illustrated Police News, Police Gazette, and other illustrations of like character" was upheld by (p.683)the Texas Court of Appeals in 1884.[258] Affirming the conviction of a newsdealer who had not paid the tax, the court found that "these publications were of an indecent, immoral and pernicious character."[259]
In 1912, the right to keep and bear arms fared little better than free press in the above case. If a prohibitive tax could be imposed on the Police News and the Police Gazette, the court of civil appeals analogized in Caswell & Smith v. State, then all dealers in pistols and other firearms could be required to pay a tax of fifty percent of gross receipts of sales.[260] Rejecting challenges under the federal[261] and Texas Bills of Rights, the court found that the act:
does not infringe or attempt to infringe the right on the part of the citizen to keep or bear arms; nor does it prohibit a dealer in this state from selling them; and even if it did, we think the act in question would not be violative of this provision.[262]
Making a constitutional right too expensive to exercise infringes the right just as much as criminal prohibition.[263] The above opinions were long forgotten until 1984, when the Illinois Supreme Court relied on the Texas pistol tax case to support its holding that pistols could be absolutely prohibited, even in the home.[264]
The strategy of banning pistols by making them too expensive to make or sell has recently been revived by product liability suits (p.684)against firearm manufacturers and dealers. Whenever a pistol is used in a crime, suicide, or accident, "[t]he focus is on the small concealable handgun as an unreasonably dangerous product when marketed to the general public."[265]
Suits alleging that a pistol is defective even though it performs as designed and seeking to hold the maker strictly liable have all been dismissed for failure to state a claim upon which relief may be granted with only two exceptions.[266] One of these suits was in Texas. In Clancy v. Zale Corp., the plaintiff alleged that a pistol maker and seller were liable for a negligent shooting.[267] The trial court never ruled on defendants' motion to dismiss, but the jury found both defendants not liable after being instructed to find whether the pistol was defectively designed "because of its overall design as a handgun, without regard to the absence of a hammer block or safety bar?"[268] The court of appeals found the following testimony as not being against the great weight and preponderance of the evidence:
One of Zale's experts testified that most people buy handguns for self-defense; that those who use guns or knives in self-defense are less likely to have crimes completed against them; and that an estimated 380,000 handgun owners are burglarized each year while at home and awake. He also stated that handguns inspire feelings of security and safety, adding that inexpensive handguns provide affordable protection to lower income individuals who are the most frequent victims of crime.
Another expert for Zale testified that handguns are purchased primarily for protection and that less than one percent of the handguns manufactured are involved in homicides, suicides, and accidents. He also testified that, because of the high incidence of violent crime among the poor, they have the greatest need for handguns as protection and that owning a handgun can create a sense of security.[269](p.685)
While Clancy is the only case in the country where the defectless firearms theory has been tested in a jury trial, motions to dismiss were granted in other Texas cases. In Robertson v. Gogan Investment Co, a suicide case, the court of appeals held that the allegation that "the sale of handguns ... to the general public is an abnormally dangerous and ultrahazardous activity" does not state a cause of action for strict liability,[270] noting "[t]he proposition that the manufacture or sale of a handgun is an ultrahazardous activity giving rise to strict liability has been rejected in every case in which it has been considered."[271]
Finally, in Patterson v. Gesellschaft, in which the mother of a murder victim alleged that the risk of death from pistols "greatly outweigh[s] any utility they have," the United States District Court held:
This claim is totally without merit and totally unsupported by legal precedent. It is a misuse of tort law, a baseless and tortured extension of products liability principles. And, it is an obvious attempt--unwise and unwarranted, even if understandable--to ban or restrict handguns through courts and juries, despite the repeated refusals of state legislatures and Congress to pass strong, comprehensive gun-control measures.[272]
None of the above decisions mention whether the existence of a constitutionally guaranteed right to keep and bear arms for defense of self and state would preclude strict liability for the implements necessary to exercise that right.[273] Indeed, in Clancy the trial court granted a motion in limine against defense counsel mentioning anything (p.686)about "the right to own a handgun."[274] Courts of other states have relied in part on the existence of right-to-have-arms guarantees in dismissing suits involving defectless firearms.[275]
The history of the right to keep and bear arms in Texas is a constitutional epic. More nineteenth century records concerning the infringement and recognition of this right exist with regard to Texas than any other single state.[276] From Santa Anna's attempts to disarm the "Texians" in 1835 to the restoration of majority rule and the limitation of the legislative power to regulate how arms are worn in 1876, the fate of the right to arms has been bound up with the dramatic political developments of the republic and state.
While never referring to the intent of the framers, the Texas courts have construed the constitutional guarantee as allowing a general prohibition on bearing all arms other than long-barreled rifles and shotguns. By contrast, without mentioning the guarantee, the judiciary has carved out exceptions for self-protection and carrying large sums of money which are inconsistent with the sweeping (p.687)terms of the prohibition. The courts have also held that a pistol which works is not a defective product, even though it is designed to be worn, thus inviting violation of the statute which prohibits the off premises carrying of a pistol on one's person.[277]
The need for legislative reform of the current version of the 1871 Reconstruction Act seems clear. The convention which framed the bill of rights of 1876 and the people who adopted it intended to limit the legislature to enacting regulations on how arms are worn, and not to prohibit the wearing of arms. That intent remains binding today since the guarantee has not been amended and since the clear terms of the guarantee are inconsistent with a general prohibition of the bearing of firearms. Moreover, an explicitly guaranteed constitutional right is deemed fundamental and must be interpreted broadly in favor of the individual.[278]
Unlike states which allow arms to be carried openly and provide for permits for concealed carriage, the Texas prohibition recognizes a right to bear arms for self-defense only on the part of travellers.[279] This exception encourages general disregard for the law. Persons against whom the law is enforced typically claim to be travelers.[280] (p.688)Selective enforcement against persons based on race or age is encouraged by the unrealistic prohibition.[281]
Had the defendant in the recent Masters case been practicing with his sai at a karate demonstration instead of carrying them on the street,[282] he would still have been in violation of the statute. Members of the Army of Texas and other reenactment groups are in technical violation of the statute when they wear bowie knives, swords, tomahawks, and replica antique pistols. Every person who participates in one of Texas'