Once upon a time, before the ascent of the National Rifle Association, when politics was not a full-time job and men sought election to public office so they could govern, a time before 24/7 news coverage — not to mention social media — changed the definition of newsworthy while altering the whole nature of civic and civil discourse, the state of Arkansas found itself at the center of a legal dispute over the right to bear arms. And though it’s hard for us to imagine today, 179 years ago, the state of Arkansas threw its efforts behind keeping guns off the streets.
State v. Buzzard came before the newly established Arkansas Supreme Court in 1842, and offers one of the earliest and most comprehensive analyses of the Second Amendment. The case arrived at Arkansas’s highest court on appeal from a Chicot Circuit Court trial, where judges ruled the Arkansas prohibition against the concealed carrying of weapons was unconstitutional. The state of Arkansas, admitted to the union only three years before, appealed, and by a 2-1 vote the state high court overturned the Chicot Circuit Court ruling. Arkansas’s Supreme Court upheld the law that prohibited people from carrying hidden guns in public.
Chief Justice Daniel Ringo wrote the majority opinion in what is a heady and philosophical examination of the nature of government itself. With the U.S. Constitution still barely 50 years old and Arkansas’s less than a decade old, the roles and responsibilities the government was to play were still being shaped. But Ringo concluded that the government was intended, among other things, to protect and defend the community in the aggregate, and to do that sometimes required the state to regulate individual actions. In the course of his examination, Ringo noted that all individual rights had at some point been subject to regulation in the best interests of the broader community.
Ringo’s opinion also considered the now often-forgotten provision of the Second Amendment relating to a well-regulated militia. The Chief Justice noted that the qualifier was a clear indicator that the right was not unfettered and “possesses no such immunity as exempts it from all legal regulation and control.” Associate Justice Townsend Dickinson concurred with Ringo’s opinion, and noted that the law’s focus on concealed weapons made it different from the realities of arms central to the operation of a well-regulated militia.
Meanwhile, Justice Thomas J. Lacy’s dissent sidestepped the militia question and raised the banner for personal liberty. Asserting that the right to bear arms was based upon an individual right to self defense, he wrote, “I cannot separate the political freedom of the State from the personal right of its citizens.” He added that “the privilege of the people to keep and bear their private arms for the necessary defense of their person … or for any useful or innocent purpose … has ever been regarded as sacred and inviolable.” The trio of opinions offered an impressive sampling of legal analysis from an era during which the nation’s jurisprudential foundation was being laid.
All of this came to mind earlier this spring when Arkansas legislators jumped on the bandwagon, joining other equally ill-informed state legislatures in seeking to pass a law that would limit state compliance with federal gun laws. These efforts raised serious questions about the judgement of the state’s elected representatives and added fuel to the fire for advocates of increasing civic education in American schools. So how did we get to this point?
America’s Founding Fathers are increasingly under fire these days. But whatever one might say about them, not even the harshest critic can deny their understanding of and respect for history, something that is sorely lacking in a 21st century America where history is likely to be bent, twisted and rewritten at will, often to serve partisan political purposes.
The Founders also recognized the power of words. From Thomas Paine and Common Sense to Thomas Jefferson’s Declaration of Independence to James Madison’s Constitution and Bill of Rights, the Founders made clear their intentions in precise and thoughtful ways. It was no more an accident that Bill of Rights author James Madison opened the Second Amendment with the words, “A well regulated militia…” then it was that Governor Morris, whose efforts as a member of the Style Committee had earned him the moniker “Penman of the Constitution,” began the Constitution with the iconic “We the People of the United States,” an opening that from the start ensured the preeminence of the national government.
Given the centrality of the well-regulated militia clause in its interpretation of the Second Amendment’s right to bear arms, Buzzard v. State continues to be a touchstone for gun safety advocates bent on overcoming the efforts of those who see the individual right as an absolute one with no limits.
The Arkansas Supreme Court justices of 1842 would almost surely take issue with the bill Arkansas lawmakers adopted in early 2021 declaring invalid all future federal laws, acts, etc. that infringe on the people’s Second Amendment right to bear arms. Republicans admitted that the bill was a preemptive move against feared future legislation as well as executive orders that Biden had proposed in response to the increased number of mass shootings that had plagued the United States over the last decade.
While the Arkansas Sovereignty Act of 2021 has a nice rhetorical ring, that does not change the fact that for all the state’s professed sovereignty, the basic lessons of a civics class, not to mention a thorough reading of the Constitution, would make clear that a state cannot refuse to enforce a federal law. The number of constitutional questions, not to mention common sense ones, that arise out of the passage of a law intended to protect against actions untaken and rights still debated, are many. But in its own unhappy way, this effort is all too representative of modern American politics.
Once upon a time, at least the judicial leaders of Arkansas were confronted with a problem which they then addressed in a way that, while not perfect, nevertheless showed a thoughtfulness and wisdom that helped further the developing American Constitutional experiment. Such historic episodes offer comfort, reminding us that the Natural State can be, and has been, a leader in that often challenging process. With another round of elections approaching and real problems waiting around every corner, let’s hope we can again draw upon their example in the best interests of all.
Contributor Bill Pruden is a historian and educator at the Ravenscroft School in Raleigh, North Carolina.