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Gun Control, 1881

Friday, March 2, 2018

Gun Control, 1881

An article for Smithsonian magazine (Matt Jancer, Gun Control Is as Old as the Old West), reviews the ordinances of Tombstone, Arizona, and other frontier towns in the 1880s, observing that the gun control laws of the time were imposed at the local level, and that bearing arms was a “heavily regulated business.” The notorious Gunfight at the O.K Corral arose, it seems, because “Marshall Virgil Earp, having deputized his brothers Wyatt and Morgan and his pal Doc Holliday, [was] having a gun control problem.”

Tombstone (with a population that hovered around 3,500) had enacted Ordinance No. 9, effective April 1881, to prohibit carrying any deadly weapon within city limits “without first obtaining a permit in writing.” Later that year, lawman Earp’s brothers had charged one Isaac (“Ike”) Clanton with violating the ordinance in the context of escalating animosity between Clanton, the Earps, and Holliday. Clanton’s rifle was seized, and a judge fined him $25 and another $2.50 in court costs. The sheriff later intervened to disarm Clanton’s associates, but after several demands failed to convince them to surrender their firearms. Soon after, the Earp-Holliday group converged on the Clanton-McLaurys, with Wyatt Earp allegedly declaring, “I want your guns.” A contemporary newspaper called what followed “one of the crimson days in the annals of Tombstone, a day when blood flowed as water, and human life was held as a shuttlecock.”

Tombstone of the 1880s is a peculiar model for those who today agitate for greater local authority to restrict or ban firearms.

Ike Clanton survived to file first-degree murder charges against the Earps and Holliday, claiming they had acted with criminal haste in precipitating the confrontation to kill their personal enemies. The court ruling in the preliminary hearing dismissed the charges but determined that Virgil Earp, “as chief of police” who relied on the assistance of his brother and Holliday to arrest and disarm the Clantons and McLaurys, “committed an injudicious and censurable act… and … acted incautiously and without due circumspection;” however, this was not criminally culpable given the state of affairs “incident to a frontier country,” “the supposed prevalence of bad, desperate and reckless men,” and the specific threats that had been made against the Earps.

The ordinance, in this case at least, proved to be almost entirely ineffective. As recounted in the court decision, Sheriff Behan had “demanded of the Clantons and McLaurys that they give up their arms, and … they ‘demurred,’ as he said, and did not do it.”  

More significantly, modern jurisprudence on the Second Amendment confirms that, subject to limited exceptions, the right of responsible citizens to carry common firearms beyond the home, “even in populated areas, even without special need, falls within the Amendment’s coverage, indeed within its core.” The ruling, Wrenn v. District of Columbia (2017),  arose out of a challenge to the District of Columbia’s concealed carry law, which restricted licenses to applicants who could satisfy a “good reason” requirement, as defined in the law (living or working in a high-crime area, for example, did not qualify). The District justified this scheme by claiming that the Second Amendment did not protect carrying in densely-populated or urban areas like Washington, D.C. 

As outlined in briefs filed by the gun control group Everytown for Gun Safety, numerous local governments, like Tombstone, had historically imposed similar bans and restrictions on public carrying in urban areas (“Even in Tombstone, Arizona, people ‘could not lawfully bring their firearms past city limits. In fact, the famed shootout at Tombstone’s O.K. Corral was sparked in part by Wyatt Earp pistol-whipping Tom McLaury for violating Tombstone’s gun control laws’…”).  Allegedly, these laws “unmistakably show that large swaths of the American public considered public-carry prohibitions to be permissible in populated areas and consonant with the right to bear arms.”

This reliance is misplaced. A brief filed by historians and legal scholars explains that nineteenth-century prohibitions like the one in Tombstone were “unusual” and imposed “in response to transitory conditions.” Any “supposed distinction between populated and unpopulated areas, offered to justify heavy restrictions on carrying in the District, is not supported by the existence of handgun carry bans in a handful of mostly small towns in the Wild West, when nearly all major cities had no such laws.”

The United States Supreme Court, in District of Columbia v. Heller and McDonald v. City of Chicago, had previously discounted arguments that local government handgun bans could be sustained due to violent crime rates in some cities and because the scope of the laws was limited to an urban area. Such local experimentation with firearm regulations could not come at the cost of inroads on fundamental constitutional rights.  

Faced with yet another attempt to impose what was essentially a local ban, the court in Wrenn condemned the District’s “good reason” law as incompatible with Second Amendment protections. The Amendment is “not hemmed in by longstanding bans on carrying in densely populated areas. Its protections today don’t give out inside the Beltway.”

Much has changed since Tombstone’s heyday as a saloon-intensive, gambling boomtown and that “crimson day” at the O.K. Corral. Virgil Earp’s successors in law enforcement, the sheriffs, and lawmen of the western states, now agree that restrictive gun carry laws do nothing to stem criminal violence while depriving law-abiding citizens of their rights to self-defense. “[I]nstead of leading to a ‘Wild West’ atmosphere or blood running in the streets, licensed concealed carry by law-abiding citizens helps reduce crime, and assists police officers.”

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