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The Rise and Fall of California's First Concealed-Carry Law

Tuesday, January 1, 2013

In the July 2011 America’s 1st Freedom feature “Rooted in Racism,” I mentioned that in 1863, California had banned the carry of “any dangerous or deadly weapon” concealed—with an exemption for police officers and travelers. This law was similar to those in a few other states, mostly in the South, that had adopted similar laws before the Civil War. I also mentioned that California did something those other states didn’t: It repealed the law. 

The exact reasons for the passage of the 1863 law, and its repeal in 1870, have remained obscure—until now, that is. I have spent a bit of time searching through newspapers from California’s first few decades and found fascinating statements as to why the law was passed, and why even supporters of the law later agreed that it needed to be repealed. 

In these statements I found lessons that remain relevant to this day.

Gold Rush California was a wild place, as what had been in 1846 a sleepy backwater of Mexico became a destination for not only Americans but also Europeans, Australians and Chinese, all desperate to “get rich or die tryin’.” California was briefly an independent republic (although run by American immigrants), then under U.S. military control after the Mexican-American War. The discovery of gold moved California from unorganized territory to American state without ever going through the intermediate steps. In the first couple of years of the California Gold Rush, there was no properly authorized legal authority in some parts of the state, and miners established vigilance committees that dispensed sometimes rough justice to deal with troublemakers.

As Roger D. McGrath’s “Gunfighters, Highwaymen, & Vigilantes” (1984) explains, the mining camps were heavily armed. While murder rates in the worst of these camps (Bodie, Calif., and Aurora, Nev.) were higher than in any American big city in the last two centuries, the rates for other crimes were often zero or close to it—because everyone was armed. Most of the murders involved young single men intent on proving their toughness and courage to other young single men. To the larger community, these deaths were mutual combat, and generally regarded as more of a gain to the community than a loss.

Not just mining camps, but even Gold Rush cities were pretty wild places, and the absence of an effective police force caused many Californians to regularly arm for self-defense. J.D. Borthwick’s “Three Years in California” [sic] (1857) described how San Francisco was awash in places of entertainment with signs that announced, “No weapons admitted.” While Borthwick thought little of the entertainments available, he did describe why it was nonetheless worth going:

… if only to watch the company arrive, and to see the practical enforcement of the weapon clause in the announcements. Several doorkeepers were in attendance, to whom each man as he entered delivered up his knife or his pistol, receiving a check for it, just as one does for his cane or umbrella at the door of a picture-gallery. Most men draw a pistol from behind their back, and very often a knife along with it; some carried their bowie-knife down the back of their neck, or in their breast; demure, pious-looking men, in white neckcloths, lifted up the bottom of their waistcoat, and revealed the butt of a revolver; others, after having already disgorged a pistol, pulled up the leg of their trousers, and abstracted a huge bowie-knife from their boot; and there were men, terrible fellows, no doubt, but who were more likely to frighten themselves than any one else, who produced a revolver from each trouser-pocket, and a bowie-knife from their belt. If any man declared that he had no weapon, the statement was so incredible that he had to submit to be searched; an operation which was performed by the doorkeepers, who, I observed, were occasionally rewarded for their diligence by the discovery of a pistol secreted in some unusual part of the dress.

A search of newspapers of the period does show a lot of murders, gunfights and knifings. I can see why California legislators felt that they had to do something. But what? The legislature debated a ban on concealed carry throughout the 1850s. Even those who supported such laws often had a narrow notion of who needed to be restricted. During debates in February 1856, the state senator who represented Nevada County (a derringer-shaped county in California’s foothills) indicated that he was in support of a bill to ban concealed carry if it was for the purpose of disarming Mexicans. However, the concealed carry ban did not pass the legislature that year.

In 1863, the California legislature did pass a ban on concealed carry. As the San Francisco newspaper The Daily Alta California explained it: 

During the thirteen years that California has been a State, there have been more deaths occasioned by sudden assaults with weapons previously concealed about the person of the assailant or assailed, than by all other acts of violence which figure on the criminal calendar…. Heretofore there has been no law passed which would remedy the evil. Public opinion, as expressed through the action of our legislators, seems to have sanctioned the custom, barbarous though it be. For many sessions prior to the last, ineffectual efforts were made to enact some statute which would effectually prohibit this practice of carrying concealed weapons. A radical change of public sentiment demanded it, but the desired law was not passed until the last Legislature, by a handsome majority, enacted the subjoined act, entitled “An Act to prohibit the carrying of concealed weapons.”

Not surprisingly, the law was not universally followed. Indeed, when I search for “concealed weapon” in California newspapers for the period 1863 to 1870, there are hundreds of references to criminal cases involving violation of this law, and doubtless more that did not make the newspapers. What is fascinating, however, is that some of the same newspapers that had supported passage of the law in 1863, by 1869 and 1870 had realized that all the good intentions were not enough—that the law was in some respects counterproductive and needed to be repealed.

Less than six years after that editorial from The Daily Alta California in support of the concealed weapons ban, the same newspaper ran an editorial arguing that the law was both impossible to enforce and unconstitutional because it violated the Second Amendment:

The Federal Constitution says, “the right of the people to keep and bear arms shall not be infringed.” The purpose of that provision, it is well known, was to prevent the practice common in Europe in the last century of seizing all the arms in the possession of the common people, especially in times of political disaffection. As the sovereignty resides in the people in America, they are to be permitted to keep firearms and other weapons and to carry them at their pleasure. Under the rules of general literary interpretation of the Constitutional provision, it is evident that the prohibition of carrying concealed weapons is an infringement of the right to bear arms.

Note that the editorial writer recognized that the Constitution was not “living, breathing, and constantly mutating,” as many editorial writers claim today. Instead, “the rules of legal interpretation, however, require us to find out first what ‘the right to keep and bear arms’ was in 1791 when this provision was adopted. … We have examined the question, and our opinion … is that in 1791 there was a right of keeping and bearing arms, that it was not limited in the matter of carrying concealed weapons, and that our statute is an infringement of the right.”

The editorial went on to argue that the statute criminalized the carrying of concealed weapons even when there was no criminal intent in carrying a weapon, arguing that putting a gun in your pocket is a convenience. “To put a thing in its customary and convenient receptacle is not concealment. Concealment is a matter of motive. An article dropped by accident in an out of the way place and lost irretrievably is not concealed.”

Finally, the editorial argued: 

… [The law] bothers the good and assists the bad. It disarms the orderly citizen and places no obstruction in the way of the robber. Homicides were very common some years ago in California, and their frequency was partly due to the general custom among the miners of carrying revolvers and large knives. They were mostly single men, who would occasionally drink freely, and under the influence of strong liquor they did not hesitate to take life in case of a quarrel. But of late years, families have increased, dissipation has decreased, and drunken affrays are more rare. At the same time, robbery on the highway, and especially in this city, is more frequent.

Instead, the editorial argued, repealing the law would only cause an increase in the “killing of robbers in self-defense, and that would be a benefit to the community.” 

The following year, The Sacramento Daily Union published an editorial along much the same lines, discussing the 1870 repeal of the concealed-carry ban:

There is reason to believe it was generally observed by the vast majority of good citizens. There is as good reason to believe it was not observed by the vast majority of roughs, fighting men, and predatory characters. In many cases of assault between quiet citizens and these last named characters, it was found that the good citizen had to defend himself unarmed against the predacious one with arms, the former suffering for his respect of the law. It was also found that the police were apt to arrest any quiet citizen on whom they discovered concealed weapons, while they paid little attention to the roughs who were known to carry arms habitually.

Some things never change in California, it seems. The editorial explained, “a law essentially good in theory, became an abomination in practice, in that it placed the peaceful citizen completely at the mercy of a class whose offenses against order it was intended to check, but did not, owing to the remissness in duty of the guardians of the law.” Sacramento’s experience was the immediate cause of the “repealing movement … where bands of armed roughs, scorning the law against carrying concealed weapons, were perpetrating highway robberies on quiet, unarmed citizens, who could not prepare for self-defense without danger of being arrested and fined every day.” The editorial acknowledged that one of the good things hoped for had happened in the intervening months: “It was reasoned with much plausibility that if the roughs once knew that quiet citizens might prepare to defend themselves without danger of being punished for misdemeanor, the bare suspicion that such a person had about him a weapon would disarm the roughs and prevent robberies. This has in fact been one of the results.” 

Now we know why California passed the 1863 concealed-carry ban—and why the legislature repealed it only seven years later. The argument for repeal was essentially the argument that has carried the day in most American states today: Concealed carry, at least if done by responsible, law-abiding adults, makes us safer and eliminates a serious conflict with the Second Amendment. In light of the evidence that the drafters of California’s first state constitution recognized that the Second Amendment protected an individual right to bear arms (discussed in “Rooted in Racism”), this provides additional evidence in support of overturning the current California law. 

Another reason the courts should overturn the current law is that it was part of a package openly stated by proponents as intended to disarm Chinese and Hispanics in 1923 (also discussed in “Rooted in Racism”) and signed into law by Gov. Friend W. Richardson. Why did Richardson sign a law with racist intentions? When Richardson ran for governor in 1922, he would not answer the question of whether he was a member of the Ku Klux Klan—but, according to David M. Chalmers in Hooded Americanism: The History of the Ku Klux Klan, the Klan endorsed Richardson enthusiastically.

There is another lesson in that 1870 Sacramento Daily Union editorial. The editorial writer, while explaining that his newspaper had supported the repeal, and still supported it, also complained that not everyone was behaving as responsibly as they should have. The writer hoped that social pressure would discourage some of the bravado that caused “young men and even mere boys” to be carrying deadly weapons on a regular basis.

There are people in our society who lose the right to keep and bear arms because of criminal behavior or mental illness. Most everyone agrees that this is a reasonable situation—individuals may lose a right because of their past misbehavior. Most people in our society still retain the right to keep and bear arms—but not everyone who has that right should exercise it. Those with short tempers, those who spend too much time intoxicated and those who are prone to depression might be better off not carrying firearms. This is not only for the benefit of others, but for the benefit of the individual, as well. 

Gun rights advocates need to consider carefully the message we send to our fellow citizens. Carrying a firearm is serious business. Along with our enthusiasm for the right to keep and bear arms, we must also emphasize the awesome responsibility that goes with it. 

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.