History of Concealed Carry in North Carolina, Part 2: Anti-Concealed Carry Constitutional Amendment (1875)

As discussed in my previous post, North Carolina’s 1868 convention modified the state’s constitutional language concerning the right to bear arms by incorporating language concerning a “well-regulated militia” from the 2nd Amendment to the Constitution of the United States.

In 1875, however, North Carolina Democrats (Conservatives) conspired to call another convention to roll back some of the progressive changes in the 1868 State Constitution. Among the 30 adopted and presented for popular ratification were amendments prohibiting interracial marriages, denying the right to vote to certain criminals, requiring segregated public schools, and organizational changes that solidified Democratic control over state and local politics.

The 1875 Constitutional Convention also added language to the section of the Bill of Rights on the right to bear arms. On the 11th day of the convention (Friday, September 17), Republican delegate Rufus Barringer of Mecklenburg County introduced Ordinance No. 198 to amend Article I, § 24. It was referred to the Committee on a Preamble and Bill of Rights which on the 18th day of the convention recommended no passage of the ordinance.

When Ordinance No. 198 was read a second time on the 20th day, Barringer moved to recommit the ordinance to committee. When the committee reported again on the 26th day (October 5), it offered a substitute version. On the 30th day of the convention, Saturday October 9, the substitute Ordinance No. 198 was adopted and two days later enrolled ordinance was ratified. Unfortunately, no roll call vote was recorded in the Journal of the Constitution Convention.

Also unfortunately, the Journal does not provide the original text of Ordinance No. 198. Given some of the wording the in journal, however, it may be that the original language proposed by Barringer more strongly prohibited concealed carry, as opposed to the substitute language which read more open-endedly:

“Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice.”

This language is similar in spirit to language added to the Constitution of the Commonwealth of Kentucky in 1850: “That the rights of the citizens to bear arms in defense of themselves and the State shall not be questioned; but the General Assembly may pass laws to prevent persons from carrying concealed arms” (Art. XIII, § 25). Recall that in 1813 Kentucky became the first state to ban the carrying of concealed weapons; this language became necessary when the Kentucky Supreme Court found the ban unconstitutional in 1822.

After Kentucky, the next state to modify their constitution was Georgia, which in 1868 added the following to its right to bear arms language: “but the General Assembly shall have power to prescribe the manner in which arms may be borne.” Georgia was the first of a number of states during the Reconstruction Era to add language giving the state power to regulate wearing or concealing weapons, including not just North Carolina but also Tennessee (1870), Missouri (1875), Texas (1876), and Louisiana (1879).

Moreover, several states included language allowing the possibility of regulating the carrying of (concealed) weapons in their founding constitutions: Colorado (1876), Montana (1889), Idaho (1889), Utah (1896), Oklahoma (1907), and New Mexico (1912). During this same time period, Florida (1885) and Mississippi (1890) also amended their constitutions similarly. (See my post here drawing on Eugene Volokh, “State Constitutional Rights to Keep and Bear Arms,” Texas Review of Law & Politics 11 (2006):191-217.)

This language remains in the North Carolina State Constitution, changed to Article 1, Section 30 in the 1971 revision:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed, and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military should be kept under strict subordination to and governed by the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.”