When evaluating gun laws, early American judges applied the police power framework by asking two basic questions: first, was the law in question a legitimate exercise of the police power, and, second, was it a regulation or did it effectively negate the right protected by the amendment entirely?
The second question stemmed from the unique language of the Second Amendment. Unlike the First Amendment—which prohibits abridging the freedom of speech—the Second Amendment bans infringing upon the right to bear arms, a very different construction. This language meant that restrictions and limitations on the right to bear arms were constitutional under two conditions: they needed to promote public health and safety, and avoid destroying the essence of the right. Bearing arms could be restricted, but not so much as to eliminate the right altogether.
The application of this approach was made clear in a landmark 1840 case called State vs. Reid. The state of Alabama prosecuted a local sheriff for carrying a concealed weapon in violation of its strict prohibition on public carry of such arms. (Police officers did not routinely carry guns until decades after the Civil War.) In upholding this law, the state’s highest court concluded that there was no unfettered right to carry guns. “The terms in which this provision is phrased,” the court noted, “leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals.”
Banning concealed carry, in other words, was perfectly constitutional. Moreover, the alternative option—open carry—was a practice that could only be justified when an emergency was “pressing” or when an individual was traveling far from home, especially on the frontier.
Another common tool at the time for restricting when and how early Americans could carry firearms stemmed from the unique structure of law enforcement at the time. There were no police forces in early America. In most communities, law enforcement was handled by the Justices of the Peace who used a legal tool inherited from England, sureties, which were also known as peace or good-behavior bonds.
Any justice of the peace—or even a member of a community—could come forward and demand that people posing a danger post a financial bond to guarantee their good behavior. In the cash-poor environment of the Founding era, obtaining the money for these bonds often involved approaching a wealthy neighbor who then had a strong financial incentive to keep potentially unruly or dangerous people in line. That created enormous financial and social pressures, which would compel someone not to carry a weapon and risk losing the bond. Courts blessed this approach as well.