History of Georgia's Constitutional Right to Bear Arms

Discussion in 'GA Laws and Politics' started by Malum Prohibitum, Oct 20, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member


    1846 – Georgia had no state constitutional right to keep and bear arms, but the State Supreme Court declared that the open carry of a horse pistol was protected by the Second Amendment to the United States Constitution. The scope of the right protected by the Second Amendment was described as follows.

    Nunn v. State, 1 Ga. 243, 250-51 (1846)

    1848 - The Supreme Court declared that this right, and all others, applied only to white citizens. “Free persons of color have never been recognized here as citizens; they are not entitled to bear arms . . .†Cooper and Worsham v. Savannah, 4 Ga. 68 (1848)

    1861 - The General Assembly adopted a state constitutional provision protecting the right to keep and bear arms. It was again incorporated in the Constitution of 1865 and that of 1868. In the latter the same language was used as in the Constitution of 1877, except that it contained the preamble: "A well regulated militia being necessary to the security of a free people." In the Constitution of 1877, these words were deleted from this provision. They were moved to article 10, § 1, par. 1, treating of the militia.

    The provision reads:

    The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

    This provision has remained untouched in Georgia’s Constitution since 1877. The debate surrounding its adoption squarely addressed whether the General Assembly may prescribe not only “the manner in which arms may be borne,†but the places where they may be borne. The original intent of the men who adopted this provision is important in the present day, when Georgia has more places “off limits†to people bearing arms than any other state in the nation.

    The following is from the dissent in Strickland v. State, 137 Ga. 1 (1911), examining the debates surrounding the adoption of the constitutional amendment:

    Clearly, the framers rejected the very notion that the General Assembly could declare places off limits by rejecting an amendment that would have clearly said, “but the General Assembly shall have the power to prescribe the manner and place in which such arms shall be borne.†It is also clear that the members of the General Assembly were not speaking only about militia arms, such as military rifles, but were describing small arms that may be carried in a concealed manner, i.e., handguns. Finally, it is clear that the General Assembly, in adopting the phrase “may prescribe the manner in which such arms shall be borne,†was referring to the ability of the General Assembly to regulate concealed carry but not open carry. The General Assembly his proceeded to regulate concealed carry, first by banning it, and, later, by licensing it.

    1865 - Following the end of the Civil War, there were efforts throughout the South to disarm the newly freed slaves. Georgia was no exception.

    Today - The Georgia standard for constitutionality has fallen considerably from the lofty position it held in 1846. The standard is " . . . whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts to a deprivation of the constitutional right." Moreover, the General Assembly has adopted draconian restrictions on the place where one may bear arms, exercising exactly the power that was proposed as an exception to the right to keep and bear arms in 1877 but rejected.

    Please see our Places Off Limits Page under firearms laws for a list of places where carry is prohibited by a General Assembly exercising the “power to prescribe the place in which ars may be borne.â€
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

    Keep in mind the quoted language relating to the adoption of the constitutional amendment and the rejection of the power to regulate the place in which such arms shall be borne was quoted in the dissent to the case referenced, which means that the court ruled against that line of reasoning.

    I just did not want anybody to misunderstand the fact that just because the people who made that constitutional provision intended the place of carry not to be regulated - that somehow the General Assembly cannot regulate the place.

    The court sided with the "Surely they could not have meant people could carry in church" argument.

    And that has been the scope of the state constitutional right ever since . . .

  3. Gunstar1

    Gunstar1 Administrator

  4. jimbo

    jimbo New Member

    Ah the old 'Jim Crow' laws. They changed the outlook on the bearing of arms in many states after the civil war, mainly because of the fear of freed slaves packing heat. Isn't it time to grow up and restore constitutional carry?