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Wednesday, February 21, 2007

Early History of Maryland's Laws Concerning Carrying of Guns

This might not be of interest to most of you--but here's a skeleton of data upon which Maryland gun rights activists might be able to add some research.

I spent some time trying to figure out the early history of Maryland's gun carrying laws--and it seems a bit more complex than most. I'm providing the information below in case someone has the time and energy to read through newspapers of the period for some evidence of legislative intent. Unfortunately, I don't have access to 19th century Maryland newspapers out here. If you have the energy and interest to pursue such research, it would be useful to read some of the black newspapers of the immediate post-war period; they may have some things to say that the mainstream newspapers would have found inconvenient.

The earliest Maryland gun carrying restriction (as opposed to requirement to carry guns) seems to be the 1715 statute at Archives of Maryland, 75:268:

XXXIII. And be it Enacted, by the Authority, Advice and Consent aforesaid, That no ***** or other Slave, within this Province, shall be permitted to carry any Gun or any other offensive Weapon, from off their Master's Land, without Licence from their said Master: And if any ***** or other Slave shall presume so to do, he shall be liable to be carried before a Justice of Peace, and be whipped; and his Gun or other offensive Weapon, shall be forfeited to him that shall seize the same, and carry such ***** so offending, before a Justice of Peace.
The language can be read as applying to free blacks, but I am pretty sure that "***** or other Slave" means "black or Indian slave." (A big fraction of slaves at the time were Indians captured as POWs.)

The next law seems to be the 1809 ch. 138 which applies statewide to all non-peace officers, and prohibits any carry “with intent feloniously to assault any person.†This is part of a statute that also prohibits carrying various burglary tools with intent to commit burglary, and is not a ban on carry. You can find this at Archives of Maryland, 570:94.

There's an 1831 statute, ch. 323 sec. 6, which is a statewide law that requires free blacks to obtain a license from a local court for possession or carry of "a firelock of any kind, any military weapon, or any powder or lead..." See Archives of Maryland, 213:448. This is part of a collection of statutes adopted in the aftermath of Turner's Rebellion in Virginia that threw the entire South into a tizzy (understandably enough), and that starts many of the Southern states on prohibiting teaching blacks to read, and increasingly strict weapons regulations. Maryland's licensing of free blacks possessing or carrying weapons isn't surprising; North Carolina did so during this period as well, and actually issued thousands of permits over a period of many years.

I'm not finding other laws in Maryland in this period, but there does seem to be some discussion of a need for some regulation. At the height of the 1837 "Bowie knife panic" in the Old Southwest, people are talking up the subject in Baltimore. An excerpt from my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (that's just a teaser to get you to buy the book!) (Praeger, 1999):

The Tuscumbia North Alabamian reprinted a Baltimore grand jury report that asserted, “The wearing of deadly weapons . . . is an intolerable nuisance, unnecessary in the present state of any civilized community, dangerous in its tendencies, pernicious in its consequences, and destructive alike of good morals and the public peace.†The grand jury then pointed to the example of Governor Tacon in Cuba, who ordered suppression of gambling, then of carrying concealed weapons:

[quote:no1maf2y]Gov. Tacon does not spend much time in talking or passing resolutionsâ€"-but like Bonaparte, he issues his orders, and the thing is done. . . . Persons are now as safe in Havana at all times of night as they are in New York. Why cannot our magistrates administer our good wholesome laws with some of Gov. Tacon’s decisions.
[/quote:no1maf2y][“Wearing deadly Weapons,†(Tuscumbia) North Alabamian, June 23, 1837, 2.]

In 1860, the 1831 law licensing carry by free blacks is still on the books, along with a prohibition on dog ownership (also pretty common in the South after Turner's Rebellion--dogs are weapons). I found this in a summary of laws then on the books at Archives of Maryland, 145:464, and if there were any amendments to the 1831 statute, they aren't obvious to me.

After the Civil War--and more importantly, after Maryland abolished slavery at the 1864 Constitutional Convention--it would appear that the 1831 race-based law silently vanishes. Instead, we get a series of rather odd statutes--odd in what is prohibited, and where they apply. Perhaps because the Civil Rights Act of 1866 was passed to deal with the disarming of free blacks?

In 1866, ch. 375, there is a statewide law that applies to all non-peace officers that bans (does not license) concealed carry of "any pistol, dirk-knife, bowie-knife, slung-shot, billy, sand-club, metal knuckles, razor, or any other dangerous or deadly weapon of any kind whatsoever,
(penknives excepted,)" and also criminalizes "every person who shall carry or wear any such weapon openly, with the intent or purpose of injuring any person...." The fine is up to $500 (equivalent to perhaps 20 times that today) and six months in jail. See Archives of Maryland, 389:468-9.

Now we take a rather odd little twist. In 1870, ch. 473, the legislature passes a law that applies only to Baltimore, and makes it a criminal offense for non-peace officers to be carrying "pistol, dirk knife, bowie knife, slingshot, billy, brass, iron or any other metal knuckles, razor, or any other deadly weapon whatsoever" if you are arrested and charged with a crime. It isn't unlawful to be armed, unless you are arrested and charged with some other crime. However, the fine is only $3 to $10--with no jail time. See Archives of Maryland, 188:3430-1.

Yet the 1866 ch. 375 statute would seem to be a far more serious punishment for concealed carry, and as a punishment for open carry, it requires the police to arrest you for some other crime. Is it possible that the courts struck down the 1866 statute for some reason? I can't find any evidence that the legislature repealed it. It is conceivable (although I have no evidence for it) that the courts might have struck it down for violating one of several Congressional statutes of the period designed to protect freedmen from being disarmed by the Klan.

In 1872, ch. 42, the legislature passes a ban on concealed carry by non-peace officers of the same weapons list that appears in the 1866 and 1870 statutes, but this applies only in Annapolis, and again, the penalty is only $3 to $10. See Archives of Maryland, 190:2635-6. Because this applies only to concealed carry, it suggests that either the 1866 statewide statute had been repealed or struck down.

In 1874, ch. 178, the legislature again passes a Baltimore specific measure. This is a very minor revision of the 1870 ch. 473 statute, requiring "it shall be the duty of all officers, to take all persons arrested in the day time under this act, immediately before the justice of the peace, nearest the place of arrest, for examination, except for drunk and disorderly conduct or theft, and any officer failing so to do shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than five nor more than ten dollars." See Archives of Maryland, 211:3102-3.

Very interesting: it would appear that Baltimore police were not consistently enforcing this law. Why? As my paper "The Racist Roots of Gun Control" has pointed out, many of the gun control laws passed in the South after the Fourteenth Amendment were facially race-neutral, but in practice, were disproportionately enforced against blacks (until the 1960s).

In 1884, the legislature revised the 1874 ch. 178 statute to clarify the offenses that make it unlawful to be carrying a deadly weapon--but now, only concealed carry when arrested and charged is made unlawful. They also increase the fine to cover the range $5 to $25. See Archives of Maryland, 390:522-3.

In 1904, ch. 114 is a statewide law that prohibits non-peace officers from carrying concealed or "openly with the intent or purpose of injuring any person in any unlawful manner, and not for any proper purpose of self-protection...." There is an exemption for "carrying such weapon as a reasonable precaution against apprehended danger" and for railroad police. See Archives of Maryland, 209:4025-6.

In 1914, ch. 146 revises this, largely, it seems, to clarify that a judge as the full authority to decide whether the defendant's claim that he was carrying as a "reasonable precaution against apprehended danger" was valid or not. See Archives of Maryland, 533:190-2.

In 1922, ch. 96 sec. 49 makes it unlawful to carry concealed in Cumberland. Again, I'm not quite sure why, since the penalty for violating this statute (a $25 to $50 fine, and confiscation of the weapon) is trivial compared to the penalty available under the 1914 ch. 146 statute. See Archives of Maryland, 377:292.
Labels: gun history, gun rights, history

posted by Clayton at 2:19 PM permalink
(I could not get the permalink to work, so I linked to the "gun" page, and the date is at the top of this post).
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