But no similar record of court cases exists for the pre-Civil War North. New research produced in response to Heller has revealed a history of gun regulation outside the South that has gone largely unexplored by judges and legal scholars writing about the Second Amendment during the last 30 years. This history reveals strong support for strict regulation of carrying arms in public.
In the North, publicly carrying concealable weapons was much less popular than in the South. In 1845, New York jurist William Jay contrasted “those portions of our country where it is supposed essential to personal safety to go armed with pistols and bowie-knives” with the “north and east, where we are unprovided with such facilities for taking life.” Indeed, public-carry restrictions were embraced across the region. In 1836, the respected Massachusetts jurist Peter Oxenbridge Thacher instructed a jury that in Massachusetts “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.” Judge Thacher’s charge was celebrated in the contemporary press as “sensible,” “practical,” and “sage.” Massachusetts was not unusual in broadly restricting public carry. Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and Pennsylvania passed laws modeled on the public-carry restriction in Massachusetts.
This legal scheme of restricting public carry, it turns out, was not new. Rather, it was rooted in a longstanding tradition of regulating armed travel that dated back to 14th-century England. The English Statute of Northampton prohibited traveling armed “by night [or] by day, in [f]airs, [m]arkets, ... the presence of the [j]ustices or other [m]inisters” or any “part elsewhere.” Early legal commentators in America noted that this English restriction was incorporated into colonial law. As early as 1682, for example, New Jersey constables pledged to arrest any person who “shall ride or go arm’d offensively.” To be sure, there were circumstances where traveling armed was permitted, such as going to muster as part of one’s militia service or hunting in select areas, but the right of states and localities to regulate the public carrying of firearms, particularly in populated places, was undeniable.
Today, Americans disagree about the best way to enhance public safety and reduce crime, and that disagreement is voiced in legislatures across the nation. Throughout most of the country and over most of its history, the Second Amendment has not determined the outcome of this debate nor stood in the way of popular public-carry regulations. Then, as now, such regulations were evaluated based on the impact they would have on crime and public safety. At the end of this deadly summer, the debate rages on over how best to balance public safety against the interests of people who wish to “pack heat.” If elected officials decide to restrict the right to carry to those persons who can demonstrate a clear need for a gun, present-day judges should not intervene on the basis of opinions about the right to bear arms from the slave South and its unique culture of violence.