Category: Allies

Why the Second Amendment Applies Especially to Travelers

U.S.A. –-(AmmoLand.com)-– The United States Supreme Court has defended and restored the bear half of the right to keep and bear arms, in the recent Bruen decision.

Much work remains to be done. It is clear that the people have a right to bear arms outside the home. One of the major purposes is for the defense of self and others.

An area left undefined in Bruen is the right to bear arms in defense of self and others while traveling, particularly while traveling across state lines.

There was no prohibition on carrying arms at the time of ratification in 1791. Carrying arms for defense, while traveling, was common and accepted. Even the strictest colonial restrictions on the bearing of arms, the East New Jersey law, enacted in 1686, had an exception for people who were traveling. The colonial law, which was in effect for about six years, was cited by both sides in the Bruen decision: From  P. 6 of amicus curiae briefs on Bruen. 

In 1686, East New Jersey enacted a law providing that no person “shall presume privately to wear any pocket pistol, skeines, stilettoes, daggers or dirks, or other unusual or unlawful weapons,”  and that “no planter shall ride or go armed with sword, pistol or dagger” except certain officials and “strangers, travelling upon their lawful occasions through this Province, behaving themselves peaceably.”3

An exception noted in the earliest and most extreme of the colonial “bear arms” laws should be given some weight.

As noted by an English traveler in the early Republic, traveling armed was common. From  Isaac Weld, TRAVELS THROUGH THE STATES OF NORTH AMERICA 233-34 (2d ed. 1799) (1796, on the roads from Kentucky/Tennessee to and from Philadelphia/ Baltimore:

“the people all travel on horseback, with pistols and swords.”

There were, effectively, no other attempts to infringe on the right to bear arms until Kentucky enacted a law in 1813. The law was challenged in court, as a man was charged with carrying a sword cane. The law against carrying concealed weapons was struck down as unconstitutional under the Kentucky state constitution in 1822. Again, even this extreme, early law, relatively close to the ratification of the Bill of Rights in 1791, contained an exception for people who were traveling.

In the first Kentucky case outlawing concealed carry, there was an exception for carrying concealed while traveling. P. 25:

The first such law appears to have been enacted in Kentucky in 1813; it imposed a fine on anyone “who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless  when travelling on a journey.” Similar laws were en-acted in seven additional States or territories by 1860.

England was more restrictive than the United States, but even in England it was clear carrying weapons for self-defense while traveling, was common and accepted as a part of the right to keep and bear arms. From an 1870 English case from Kopel  p. 15-16

(“A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business” but not to carry arms in a manner “calculated to produce terror and alarm.”); Gun License Act, Act 33 & 34 Vict. c. 57 (1870) (10-shilling annual license from the post office to carry a firearm; postal clerks had no discretion to refuse a fee-paying applicant).

There was an upheaval in the law after the Civil War. Justice Thomas, in Bruen, says we should take into consideration what was considered to be the right to keep and bear arms in 1868 when the Fourteenth Amendment was ratified.

When the amendment was ratified, Texas had a reconstruction government that had imposed a new Constitution on the state. The new constitution had gutted the protection of the right to keep and bear arms which existed throughout Texas history to that point. The Fourteenth Amendment was clearly meant to insure freed slaves had the right to keep and bear arms.

In 1871,  the Reconstruction government felt compelled to keep the right to bear arms while traveling:

..provided, that this section shall not be so contrued as to prohibit any person from keeping or bearing arms on his or her own premises, or at his or her own place of business, nor to prohibit sheriffs or other revenue officers, and other civil officers, from keeping or bearing arms while engaged in the discharge of their official duties, nor to prohibit persons traveling in the State from keeping or carrying arms with their baggage…

After the Fourteenth Amendment was passed, numerous other states passed restrictions on the carry of weapons. These restrictions primarily had the effect of disarming freed slaves and other disfavored groups. But even these laws made exceptions for the right to bear arms while traveling.

A Tennessee law made clear an exemption for traveling, in 1878, in State v. Callicutt, 1878.  p. 579

The law at issue had made it “a misdemeanor to sell, give, or loan a minor a pistol, or other dangerous weapon, except a gun for hunting, or weapon for defense in traveling.”10

Missouri enacted a law on carrying concealed weapons in 1879. Even that late restriction on bearing arms had an exemption for people who were traveling:

 Prior to 1909, the statutory exemption applied “to persons moving or traveling peaceably through this state.” § 1275, RSMo 1879.

The traveling exemption in Missouri was made more restrictive in 1909 to change the traveling exception to:

“is traveling in a continuous journey peaceably through this state”

1909 is much later in the game. It is clear carrying weapons, even concealed, was common and considered a right, before the statute in 1879 was enacted.

Arkansas law also made an exception for travelers, in 1881:

Provided, further, That nothing in this act be so construed as to prohibit any person from carrying any weapon when upon a journey, or upon his own premises. 

Mississippi law had an exemption while traveling, Section 1027 as of 1888, although the exemption appears to be in place by 1880:

Prohibition on possession of concealed and prohibited weapons does not apply while traveling, or setting out on a journey:

(b) That he was traveling and was not a tramp, or was setting out on a journey and was not a tramp;

Thus, even in a period when legislatures were moving to restrict the right to keep and bear arms, they recognized the right to bear arms while traveling.

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About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

July 8, 2022- Last Friday Governor Newsom signed AB 2571 into law under an emergency order to have the law go into effect immediately. The law is will cripple youth shooting in California as it prevents the promotion of firearms and firearm-related products and events to youth.

This new law impacts Associations, Camps, Clubs, FFLs, Hunter Education, Instructors, Firearms Trainers, Youth Organizations, ranges, and those who work in association with any youth shooting program — including firearm safety training. Any promotion of firearms to those under 18 years of age may lead to hefty fines of $25,000 per incident.

Today CRPA, Second Amendment Foundation, Gun Owners of California, and others are standing up to Newsom and his propaganda. These groups filed a lawsuit to stop the further implementation of this unconstitutional law and are seeking an immediate injunction to block the law from taking effect.

“This law is a clear First Amendment violation of speech and assembly. It’s really an attempt to wipe out the next generation of hunters and shooters,” said CRPA President and General Counsel Chuck Michel. “Politicians in Sacramento are not even trying to hide their disdain for the “gun culture,” which they neither understand nor support. They want to wipe it out.”

Newsom not only does not support Second Amendment rights; he has been working to make it practically impossible to acquire, own or use a gun for sport or self-defense. With this bill, designed to keep youth out of the shooting sports, Newsom hopes that the current generation of freedom-loving gun owners will be the last.

“We must fight for the the next generation of gun owners so they can learn about firearms and their safe use, train, experience the joy of sport shooting and hunting, have fun, learn discipline, and understand their Second Amendment rights,” said Michel.

To receive updates on this and other 2A cases, SIGN UP to receive CRPA communications and follow up on social media. Knowledge is the first step to political power.

With the Supreme Court affirming that the Second Amendment has teeth and prohibits government infringement, now is the time for a long overdue SECOND AMENDMENT RECKONING. Gun owners must support litigation efforts and groups like CRPA, GOC, and SAF that fight for your rights, and have been for decades. There are LOTS of lawsuits to be filed as we fight back against the BLUE RESISTANCE to the Second Amendment.

On June 23, the U.S. Supreme Court struck down New York’s discretionary carry licensing regime as a violation of the Second Amendment right to bear arms in the NRA-backed case NYSRPA v. Bruen. The law at issue was the modern version New York’s Sullivan Law, which was enacted in 1911.

Named for notorious Tammany Hall political boss “Big” Tim Sullivan, the law imbued bribery and favoritism into the licensing process and empowered those with racial, ethnic, or other prejudice to prevent those they disfavor from exercising their Second Amendment rights.

Gun owners should understand that this victory was the culmination of more than a century of opposition to the Sullivan Law. In that spirit, NRA-ILA would like to share materials from its archive chronicling some of the early gun owner resistance to the measure.

As evidenced by the pages of American Rifleman precursor Arms and the Man magazine, gun owners were skeptical of the New York pistol licensing regime from the start. In 1911, Arms and the Man operated as the unofficial journal of the NRA. The magazine would be purchased by NRA in 1916 for one dollar and was renamed the American Rifleman in 1923.

The publication took New York’s politicians to task in the June 8, 1911 edition of the magazine with an article titled “An Obnoxious Arms Law.” Describing the Sullivan Law, the publication explained,

Ostensibly directed towards the use of concealed weapons by unworthy persons, it actually will accomplish an infringement of the guarantees of liberty contained in the Constitution of the United States.

The Constitution says in the 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.”

In the meaning of those who wrote the Constitution the word “militia” embraced every able-bodied citizen.

The piece went on to note,

The law may be expected to operate in a prohibitive manner against good citizens, who, if they had weapons, would do no harm with them, and to be inoperative against bad men whose disregard for the laws relative to killing may be expected to extend to other laws.

This was followed by an article in the September 28, 1911 Arms and the Man titled, “The New York Pistol Problem.” The item stated,

Considerable agitation and much uncertainty exists in New York and vicinity at the present time with regard to the so-called “Sullivan Pistol Law.” As far as can be ascertained the only “good” the law, which went into effect September 1, has done, has been to… cause a great deal of inconvenience to numerous members of the rifle and revolver associations of New York and vicinity, and make the Attorney General and the District Attorney, judges and police officials sit up nights and try to place an interpretation on this law…

[W]hat has really been accomplished has been to take away from peaceful and law-abiding citizens the opportunity to shoot.

NRA members and other gun owners didn’t warm up to the law once they saw it in practice. In 1931 and 1932, a serious effort was made to amend the law to make it easier for law-abiding New Yorkers to exercise their rights.

In May 1932, the American Rifleman published a piece titled, “Governor Roosevelt Upholds Sullivan Law.” The piece explained how then-New York Governor Franklin D. Roosevelt rejected legislation passed by the New York State Assembly to repeal and replace the Sullivan Law and challenged a Roosevelt statement that accompanied the veto. Describing the legislation, the magazine noted,

[the bill] would have repealed the Sullivan Law in New York State, and would have substituted a sensible law, which, the Governor of New York State admits, a great many sportsmen had urged him to approve.

The piece went on to excoriate Roosevelt for defending the Sullivan Law, stating that,

[NRA] is grinding no political axe when it takes exception to the shallow, fallacious and uninformed views of the present Governor of New York in regard to the needs of the public welfare in matters pertaining to firearms.

In his veto message, Roosevelt specifically downplayed the use of handguns for self-defense, to which the American Rifleman responded,

Readers of THE AMERICAN RIFLEMAN who have been following the monthly listing of cases called to our attention in which private citizens armed with the pistol have successfully protected their lives and property and assisted in the apprehension of criminals, and who have probably been making mental notes of many additional cases of a similar type published in their local newspapers, will have small patience with the theoretical self-protection argument used by Governor Roosevelt in his veto message. These readers of THE AMERICAN RIFLEMAN may seriously question just how much alive to important public-welfare problems involving the citizens of his own state Governor Roosevelt has been, in failing to investigate how much theory there is in the self-protection afforded by a good gun in the hands of a man who knows how to use it.

Taking up the fight for target shooters, the piece expressed disgust that law-abiding New Yorkers were,

subjected to the inconvenience of a czarist-type police supervision, discrimination and political byplay in order to enjoy a sport which provides not only recreation, but meets an obligation of good sportsmanship both in preservation of local order and the protection of national rights.

Alongside the re-publication of a news article about the U.S. Senate examining the efficacy of the Sullivan Law, in May 1936 the American Rifleman published a letter from an NRA member in Brooklyn, New York in the magazine’s Guns vs. Bandits section (precursor to the Armed Citizen). Titled, “How the Sullivan Law Works,” the member explained,

I put in an application with the Police Department for a pistol permit and I have been refused. It took them two months to make up their minds to disapprove my application…

Gentlemen, I am calling for your aid. I am a legitimate business man in the finance business, I am a sportsman and have an inherent love for guns, I have won medals, been a member of the C.M.T.C. for two years, and I can handle a gun. I am treasurer of this company and it is my duty to handle large sums of money and deposit them at the end of the day. I have never been arrested in my life. I can submit an unlimited number of character witnesses as well as business references. My bank will vouch for my responsibility and personal and business integrity.

It is a ridiculous system of society which allows thieves to get all the pistols, gas bombs, machine guns, etc., with very little difficulty but stops an honest citizen from getting a pistol to protect himself and his interests from our modern highly organized crime.

You would almost think that criminal lords have such powers that they have issued instructions to the New York Police Department to refuse permits for pistols to all legitimate citizens, so that robbing will not be such a hazardous occupation.

A quarter-century later, the American Rifleman revisited the history of the Sullivan Law in an April 1962 article titled, “The Sullivan Law: The origin and complexity of New York State’s concealable weapons law.” As the title implied, the author surveyed the then-half-century history of the Sullivan Law using a variety of sources.

Despite his scholarly effort, the author did not come away with a complete understanding the unconstitutional measure. The item noted,

After considerable study, I find that there isn’t really one Sullivan Law, nor does it relate to pistols alone, nor is it forthright, nor was it understood by most of the legislators who passed it. The law itself, together with its more than 50 amendments, is so complicated that judges, prosecutors, police chiefs, and defense attorneys have widely divergent opinions as to what it all means.

Identifying the chief constitutional defect in the law, the piece explained,

The license-issuing authority (police commissioner in New York City and Nassau County; elsewhere, judge or justice of a court of record in the county of residence) has almost unlimited discretionary power in passing upon a licensing application. Thus, he may, and frequently does, deny an applicant fully qualified in every respect on the arbitrary ground that he does not choose to issue a license. Moreover, the licensing official may and does issue rules and regulations which not only spell out procedural requirements but also impose, in effect, additional substantive restrictions having little or no support in the law.

Another portion of article laments, “Once a bad law is on the books, it’s terribly difficult to get it off.” Well, it took another 60 years, the tireless efforts of NRA members and other gun rights supporters, and three U.S. Supreme Court cases affirming the Second Amendment right to keep and bear arms, but gun owners can finally celebrate that this century-old bad law is officially off the books.