Bliss, Nunn and the antebellum judges who first read the right to bear arms

Critics of the Supreme Court's gun decisions like to say that the individual right to bear arms was invented in 2008, by five justices and a very good brief. It makes a tidy story, and it falls apart as soon as you pull a volume of nineteenth-century state reports off the shelf. In Kentucky in 1822, the state's highest court was already holding void a law against carrying a concealed sword in a cane. In Georgia in 1846, the state's supreme court was already holding that a law forbidding the open carrying of pistols could not stand. Neither man had heard of Heller.

These early cases are not famous outside law schools, and they should be. They show how the first generation of American judges, who lived much closer to the founding than we do, read the right to keep and bear arms. They found an individual right. They found that the legislature could regulate how it was exercised. And they drew a line, in different places and with different results, between regulating and destroying. That line is the one the Supreme Court tried to draw in District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association v. Bruen (2022).

Bliss v. Commonwealth (Kentucky, 1822)

Kentucky's constitution of 1799 contained a provision on arms: "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned." In 1813 the legislature passed a law making it an offense to carry certain weapons concealed, including a sword in a cane. A man named Bliss was indicted for wearing such a sword concealed. He challenged the statute under the constitution.

In Bliss v. Commonwealth (1822), the Kentucky Court of Appeals, which was then the state's highest court, held that the statute was unconstitutional. The opinion stressed that the right existed at the adoption of the constitution, that it "had then no limits short of the moral power of the citizens to exercise it," and that it consisted in the liberty of the citizens to bear arms. Diminish that liberty, the court reasoned, and you necessarily restrain the right. The court held the act unconstitutional and void and reversed Bliss's conviction, with one judge dissenting. The provision's own words were that the right "shall not be questioned."

What Bliss decided, and what it did not

The decision has three features worth noting.

1. It treated the right as individual. The language of the clause is about "the citizens" and "themselves," and the court read it that way.
2. It measured the right by what existed when the constitution was adopted. The test was not what a legislature thought wise, but what the right was when the constitution was written. That is close to the historical method Bruen would adopt nearly two centuries later.
3. It struck down a concealed-carry ban. This is the part later courts would qualify. Most nineteenth-century courts, as we will see, upheld concealed-carry bans. Bliss was the exception.

The people of Kentucky had a response. In 1850, the state adopted a new constitution that kept the arms right but, as I understand the record, added a clause subjecting it to the power of the General Assembly "to enact laws to prevent persons from carrying concealed weapons." (Kentucky's current text, with that proviso, is in the Bill of Rights, Section 1.) That is why the Kentucky provision in the table in why your state constitution may guard gun rights better than the federal one has its proviso. The episode is an instructive one. The court read the right broadly. The people, through their constitution, said the legislature could regulate concealed carry. The sequence is a good picture of how constitutional government is supposed to work: judges read the text, and if the people dislike the result, they amend the text through the proper channel.

Nunn v. State (Georgia, 1846)

The most famous antebellum arms case came from Georgia. In 1837 the legislature passed a statute aimed at a list of weapons that included pistols other than the larger "horseman's" pistols, along with certain knives, sword-canes and spears. A man named Hawkins Nunn was convicted for carrying a pistol openly. He appealed to the Georgia Supreme Court, and the case was decided in 1846.

Justice Joseph Henry Lumpkin wrote the opinion. He held that the act was valid in part and void in part. In the court's own summary, so far as the act sought to suppress the practice of carrying certain weapons secretly, it was valid. But so much of it as contained a prohibition against bearing arms openly was, the court said, in conflict with the Constitution, and void.

Then Lumpkin wrote the sentence that has been quoted ever since:

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.

Read it slowly, because it answers three of the standard objections to the individual-right reading in a single sentence. Not militia only: the right is not limited to enrolled militiamen. Of every description: the right is not confined to the arms the militia happens to carry. And the important end to be attained: the militia clause is the reason the right matters, not a limit on who holds it. That is close to the reading Heller adopted a hundred and sixty-two years later, and the grammar behind it is laid out in The right of the people means the same thing in the First, Second and Fourth.

The odd fact about Nunn

There is a legal curiosity about Nunn that should be mentioned. Georgia's own constitution had no arms clause, so the court applied the federal Second Amendment directly, holding that its language is broad enough to embrace both federal and state governments and that any law, state or federal, that contravenes the right is void. That was not the view the Supreme Court took of the Bill of Rights in the era (it held in Barron v. Baltimore that the Bill of Rights did not bind the states), and the point is a reminder that the Georgia judges thought of the right as a natural one that the written texts declared. Heller later described Nunn as construing the amendment to protect the "natural right of self-defence."

State v. Chandler (Louisiana, 1850)

Four years after Nunn, the Louisiana Supreme Court took up a concealed-carry statute in State v. Chandler (1850). The court upheld it. The law, it said, was needed to counteract a vicious state of society growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. The statute, the court said, "interfered with no man's right to carry arms" in "full open view," which places men upon an equality.

Notice the logic, which is the other side of Nunn. Open carry is a means of defense that everyone can see. The concealed weapon creates a risk of ambush and an unequal footing. If the law preserves open carry, the right is intact, and the legislature may regulate the hidden form. The Louisiana court was drawing the same line as the Georgia court, from the opposite direction.

The concealed-versus-open distinction

Put the three cases in a row and you have a map of how the early courts thought.

The rule that emerges is that a legislature could regulate the manner of carrying, but it could not eliminate the right. If it forbade concealed carry, open carry had to remain. If it forbade open carry, the right was violated. In State v. Reid (Alabama, 1840), the court had already said that a statute which, under the pretence of regulating, amounts to a destruction of the right would clearly be unconstitutional, a line Heller quotes. Heller itself noted that the majority of the nineteenth-century courts that considered the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

The counter-example

Fairness requires the best case on the other side. In Aymette v. State (Tennessee, 1840), the court held that the state's right to bear arms did not bar a ban on carrying concealed weapons, and it read the arms clause as connected to the common defence, in a military sense, rather than to personal self-defense. A defender of the collective-right theory can point to Aymette and say that at least some early judges read the right narrowly.

That is a fair citation, and I will not hide it. Here is the answer, in three points.

1. Aymette read a different clause. The Tennessee provision was framed around the common defence, and the court read it in that light. Other cases, Bliss, Nunn and Reid among them, treated the right as an individual one that protected self-defense.
2. The Court in Heller considered Aymette and was not persuaded. Heller called Aymette's reading of the right "odd" and noted that it was not the petitioners' reading either.
3. The weight of the antebellum cases points the other way, as I read them, though readers should weigh the cases themselves.

How did Heller and Bruen use these cases?

The Supreme Court did not treat these decisions as binding precedent. They are state-court opinions from the 1820s to the 1850s. It used them as evidence of what Americans understood the right to mean in the decades after ratification.

In Heller, the cases supported two propositions. First, the right is individual, not collective, and it protects self-defense. Second, the right is not unlimited: concealed-carry bans were widely upheld, and the Court separately said that nothing in its opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. The fuller account of the dissent that disagreed is in Justice Stevens's Heller dissent, stated fairly and answered point by point.

In Bruen, the cases carried the weight of the argument about carrying in public. New York had defended its rule on the ground that public carry could be restricted broadly. The Court examined the nineteenth-century cases, among them Reid, Chandler, Bliss and Nunn, and read them as showing that states could ban concealed carry only where open carry stayed available, and that they could not entirely prohibit public carry. On that reading, a state that banned all carrying, or that allowed carrying only for those who could show a special need, found no support in the antebellum record. The path that led to this reading starts with The Sullivan Act of 1911 and the century New York spent rationing carry permits, and it ends where the first-generation judges had already stopped: with a right that may be regulated but not rationed.

A candid note about the era

An honest account has to say something about the period. These decisions came from the antebellum South as well as the border states, and the same legal systems that protected the arms of "the citizens" restricted the arms of free Black people and denied them citizenship. In Dred Scott v. Sandford (1857), Chief Justice Taney, arguing against Black citizenship, listed among the rights citizenship would confer the right "to keep and carry arms wherever they went." The remark reveals that the right was understood as a right of citizenship, and that the denial of the right to some was part of a wider injustice. Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms tells the Reconstruction side of that story, which is why the Fourteenth Amendment mattered. The lesson is not to discount the cases, but to remember that a right that is available to some and not others is the beginning of tyranny, not its opposite.

There is a smaller and lighter lesson too. The Kentucky court told the legislature that "shall not be questioned" meant "shall not be questioned." Legislators have been reading that phrase as "may be questioned politely" ever since. The courts of 1822 were less patient.

The case in brief

1. State judges recognized an individual right to bear arms decades before Heller, and they treated it as a right that predated the written constitutions.
2. Bliss (Kentucky, 1822) struck down a concealed-carry ban and measured the right by what existed at the adoption of the constitution; Kentucky's voters later amended their constitution to allow such bans.
3. Nunn (Georgia, 1846) upheld a ban on secret carry but voided a ban on open carry, and declared the right to belong to the whole people, "and not militia only."
4. Chandler (Louisiana, 1850) upheld a concealed-carry ban because open carry remained free, which together with Nunn shows the rule that a legislature may regulate the manner but not abolish the right.
5. Heller and Bruen relied on these cases as evidence of the original understanding, and the best contrary case, Aymette, read a different clause and was not persuasive to the Heller Court.

What you can do: look up the arms clause of your state constitution on your legislature's website, then search your state supreme court's site for the earliest decision that applied it.