History of Concealed Carry in North Carolina, Part 4: Challenging the 1879 Ban

In my previous post, I described the legislature’s 1879 ban on carrying concealed weapons in North Carolina. This law was subsequently challenged in court by L.R. Speller (State v. Speller 105 86 N.C. 697 [1882]).


Speller was having a conflict with one Jenkins who had attempted to cut him with a razor. Both Speller and Jenkins applied for state warrants against the other. While having the warrant served on him, Speller was found to have a pistol concealed in his pants pocket. He was indicted and convicted of a misdemeanor in violation of North Carolina Act 1879, Ch. 127.

At trial, Speller “testified that he was not the owner of the pistol, and that he had procured it after the assault upon him, and after he had been informed of the threats made by Jenkins to take his life. He got it to defend himself, and out of fear of Jenkins, from whom he lived only about one-half mile. He lived four miles from the nearest justice, and a mile and half from the nearest peace officer.” An early version of when seconds count, police are just minutes away.

In his appeal, Speller maintained that the statute banning carrying concealed weapons was unconstitutional and his right to bear arms in the face of a reasonable threat of great bodily harm could not be deprived by the legislature. The Supreme Court of North Carolina rejected these claims.

The court maintained, first, that the “distinction between the ‘right to keep and bear arms,’ and ‘the practice of carrying concealed weapons’ is plainly observed in the constitution of this state. The first, it is declared, shall not be infringed, while the latter may be prohibited.”

The court also held that “without any constitutional provision whatever on the subject, can it be doubted that the legislature might by law regulate this right to bear arms – as they do all other rights whether inherent or otherwise – and require it to be exercised in a manner conducive to the peace and safety of the public?”

This, of course, raises the question as to what the right to bear arms means if one can only bear them on one’s own property. Recall Sec. 4 of the 1879 Act which holds that carrying a deadly weapon off one’s premises is prima facie evidence of concealment, which is banned by the law.

The court’s response in the Speller case seemed to rule Sec. 4 out of bounds. The court decision reads, the statute “does not say that a citizen when beset with danger shall not provide for his security by wearing such arms as may be essential to that end; but simply that if he does do so, he must wear them openly, and so as to be seen by those with whom he may come into contact. The right to wear secret weapons is no more essential to the protection of one man than another, and surely it cannot be supposed that the law intends that an unwary advantage should be taken even of an enemy. Hence it takes no note whether the secret carrying be done in a spirit of foolish recklessness, or from a sense of apprehended danger, but in either case declares it to be unlawful. . . . And it would be a strange passage in the history of legislation to enact that it shall be unlawful for any person to carry concealed weapons about his person, except when it may be supposed he shall have occasion to use them.”

The SCONC reasoning here is in line with the view taken in the early southern states that passed concealed weapons bans: that cowards carry weapons concealed to take advantage of others, while honorable people carry their weapons openly.

Woman at the Open Carry "Restore the Constitution" rally in Greensboro, NC on August 14, 2010 from SilenceDogood2010's Blog
Woman at the Open Carry “Restore the Constitution” rally in Greensboro, NC on August 14, 2010 from SilenceDogood2010’s Blog

This argument seems to establish the right to open carry weapons in public, and was reinforced by the court’s decision in State v. Roten (86 N.C. 701 [1882]) during the same February 1882 term.

Hiram Roten was indicted in Ashe County for violating North Carolina’s concealed weapon ban when he “went to Horse Creek Store with two pistols buckled around him without scabbards and naked on a belt on the outside of his clothing, and off his own premises.” As the jury in the original case concluded, “If that is unlawful we find him guilty, if not, we find him not guilty.”

The Supreme Court of North Carolina’s decision held that the “evident intention of the legislature in passing this statute was to prohibit the pernicious practice of going secretly armed, and thereby prevent the dangerous use of deadly weapons in sudden personal conflicts, in which of ten times an undue advantage is taken of the unwary. We see nothing in the statute that prohibits the carrying of the prescribed weapons openly about the person.”

The decision then clarified the meaning of prima facie evidence. Prima facie evidence “is simply such evidence in judgment of law, as if sufficient to establish the fact, and if not rebutted remains sufficient for the purpose. Its effect is to shift the burden of proof from the state to the defendant, that is all.”

Because Roten was clearly making no attempt to conceal the pistols he was carrying, he met the burden of proof that he was not carrying concealed weapons in violation of the statute. That he was carrying the pistols “without scabbard and naked in a belt, on the outside of his clothing” therefore “repels the prima facie evidence of concealment, and it was equivalent to finding the fact, that there was no concealment, and the court upon such a finding could not do otherwise than hold that the state had failed to establish its charge against the defendant.”

The court concludes that the legislature only intended to forbid carrying weapons concealed and has not forbidden the open wearing of arms.

The open wearing of arms is regulated not by the statute but by common law. On this point the court cites the case of State v. Huntley (25 N.C. 418 [1843]): “The offence of riding or going armed with unusual and dangerous weapons to the terror of the people, is an offence at common law and is indictable in this state. A man may carry a gun for any lawful purpose of business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm, and in such manner as naturally will terrify and alarm a peaceful people. It is the wicked purpose, and the mischievous result, which essentially constitute the crime.”


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