Gun Control in the Old West

Professor Adam Winkler is one of the true moderates on our issue, and though I think comes at this more from the other side, at least takes pro-gun arguments seriously, and makes serious arguments in favor of his position. Such is the case with his observation that some towns in the old west had some fairly serious gun control laws. The professor concludes with:

Even in the Wild West, Americans balanced these two and enacted laws restrictin­g guns in order to promote public safety. Why should it be so hard to do the same today?

Who is to say we haven’t? I don’t think there are too many serious arguments that the prohibitions on felons or the mentally ill possessing firearms are unconstitu­tonal, nor is anyone advancing similar arguments in regards to the instant background check. This is despite the fact that both types of prohibitions are relatively recent practices. Heller pretty much left open the option to ban guns in “sensitive” places, even though the Court poorly defined what those could be.

I don’t find the argument to be that remarkably compelling that because some towns in the Wild West enacted prohibitions on carrying firearms that such prohibitions must therefore be constituti­onal. All manner of rights were likely flagrantly violated in frontier towns in ways that would not meet with constitutional approval under modern standards. I seem to recall hanging horse thieves was a fairly common practice on the frontier, but I would still question whether the practice should inform us as to whether imposing the death penalty for car thieves amounts to a violation of the 8th Amendment. 

24 thoughts on “Gun Control in the Old West”

  1. Arizona didn’t become a state until 1912. Since it was not in the USA at the time, I don’t think that using Tombstone’s gun control laws is a valid argument.

  2. Who on the gun control side would be content with people “checking” their guns to go into sensitive places as the only restriction?

  3. Not car thieves, Sebastian, horse thieves. Since you can get a horse pretty cheaply, I propose we hang anyone who steals a horse, or the equivalent amount of money. What’s a horse go for at slaughter? Couple hundred bucks? Fine, anyone who commits grand theft as defined by their state law gets hung. Also, anyone who commits a crime defined by their state laws as being equal to or more serious than grand theft gets hung.

    I’m willing to discuss Tombstone’s gun laws as soon as they are willing to discuss Tombstone’s hanging offenses.

  4. The premise that because some old west towns had onerous and restrictive gun control laws means that we as a society today have to put up with said restrictive and onerous gun control laws is absurd.

    As early as 1803, laws have been invalidated as unconstitutional. That small podunk towns in the middle of no where never had to sustain a judicial review of their policies is not validation of those policies. It is solely a reality of frontier living that society as a whole was out of reach of the inhabitants in many ways.

  5. Back in “wild west” days, many states also found it convenient to disarm blacks and other despised minority groups. Of course the states could get away with such laws back then because the U.S. Supreme Court had effectively nullified the 14th Amendment to the U.S. Constitution.

    So is Winkler also nostalgic for those other older forms of gun control which are today unconstitutional because of the 14th Amendment?

  6. Have to chime in about hanging horse thieves. There isn’t really a corollary between stealing a horse back then and stealing a car now. Reason being, a horse was the way a man had of providing a living for himself and his family, and could even be the only thing of any value that he owned. Stealing a man’s horse was essentially the same as condemning him to starve to death, in many cases. Remember, there was no horse insurance, and well-broken, trained horses cost the equivalent of two to three months worth of wages or more to your average cowhand. Try thinking “A man just came and took all my tools, my vehicle, my way of making a living, my way of getting to work, and all my possessions of any value” and then determine if you think it would fall under terms that would justify a lynching.

  7. “Professor Adam Winkler is one of the true moderates on our issue, and though I think comes at this more from the other side, at least takes pro-gun arguments seriously, and makes serious arguments in favor of his position”

    Really? I was underwhelmed by Winkler’s piece at the huffingtonpost.

    As this opening statement leaped to my attention,

    After a decision by the Supreme Court affirming the right of individuals to own guns, then-Chicago Mayor Richard Daley sarcastically said, “Then why don’t we do away with the court system and go back to the Old West, you have a gun and I have a gun and we’ll settle it in the streets?” This is a common refrain heard in the gun debate. Gun control advocates fear — and gun rights proponents sometimes hope — the Second Amendment will transform our cities into modern-day versions of Dodge.

    Get that? He claims the we hope shootouts will replace the rule of law. My reaction? Screw him. Just another typical anti-gun accusation that our side is ‘extremist’.

    The entire slant of the Winkler article, other than promoting his new book, seems like an attempt to head off constitutional carry before the success of the policy causes it to spread to other states. I found his claims about frontier towns gun-control laws disingenuous because of his artful excision of context. It’s easy for us to pick apart his claims because we are familiar with the evolving constellation of gun control laws, but Winkler no doubt knows his likely audience is more easily fooled because they are more ignorant.

    Is that what passes for moderation on the gun-control side these days?

  8. Even in the old west there were good folks gunned down in no-gun, victim zones established by local ordinances… because the bad guys don’t follow the law… nothing’s changed since the beginning of time…

    Dann in Ohio

  9. Have to chime in about hanging horse thieves. There isn’t really a corollary between stealing a horse back then and stealing a car now.

    I know, but it actually helps make my point. It’s difficult to make cultural comparisons between Tombstone of the late 19th century, and, say, Phoenix today. It’s worth noting that when Tombstone was disarming people coming into town, you could still carry a revolver in your coat pocket in London and New York City.

  10. Your argument is spot on. The very reason why gun prohibition relies on emotional rhetoric. When logic is brought into play, gun control loses every time. Most RKBA proponents are not asking for zero restrictions. We want our civil rights not to be infringed. Note that calls for “common sense” are mostly disingenuous on their face. Code word for gun prohibition.

  11. I think frontier gun control fits a pattern that would be worthwhile for further research. In the Kansas cowtowns, the drovers were former Confederates. The townsmen who enacted the ordinances were often northerners. I suspect the laws were not evenly applied.

    It is never about disarming everyone; it is about who gets to choose who gets disarmed.

  12. I think Winder is stretching gun laws in the “Old West,” like the salt water taffy stand at the county fair. Yes, Dodge had a “check your guns” ordinance. As did Caldwell, and quite a number of other towns. The reason was simple enough.

    Virtually all the drovers were ex-Confederate soldiers who had very little love for the ex-Union gamblers and pimps who ran the towns. And less after HIckock murdered Phil Coe. While actual incidents were few and far between, the potential was there. So the signs went up – and were studiously ignored. As the actual body count from the era clearly demonstrates.

    Even Hickock did not go much further than posting signs and “walking around like a big ol’ bull on the prod.” He was not about to take on a dozen of so ex-Rebs who wanted a bath, new clothes, some grub the cocinero had not rustled, a quart to take with them, and just maybe a drink before they headed back to stand night watch.


  13. “I don’t think there are too many serious arguments that the prohibitions on felons or the mentally ill possessing firearms are unconstitu­tonal, nor is anyone advancing similar arguments in regards to the instant background check. ”

    Think again.

    The categories of felons and mentally ill are very large and rapidly growing. Within a few decades the majority of citizens will fall into one of these two categories. Possibly sooner depending on how broad the DSM-V turns out to be.

    The “instant” background check can take years in some cases and serves no legitimate purpose. Citizens do not need permission to exercise their rights.

  14. Diagnostic according to DSM criteria doesn’t and has never amounted to an adjudication for gun possession purposes. You have to have been committed against your will, which involves a pretty reasonable degree of due process.

    The instant background check can take no more than three days by law. If the check doesn’t return, there’s the option of default proceed. In cases like that, there’s a process to get yourself fixed so that subsequent checks are, in fact, instant.

    I actually agree there may be some arguments for the background check system to be unconstitutional, but I think such arguments are very unlikely to prevail in court.

    I agree with you that the expansion of what is and what isn’t a felony is a problem. But it’s a separate problem. Again, you can make the argument that non-violent felons should not lose their gun rights, and I would, but again, I don’t see it as likely to prevail in court.

  15. Why do the mentally ill lose a constitutional right? Many people with severe situational depression have been committed against their will, have gone through successful treatment, and become functioning, completely stable normal adults. Yet they may not own a firearm.

    Why does someone who has served time for a felony committed as a 17 year old, then becomes a contributing, successful father and worker, lose his right to defense of himself and his loved ones forever?

    The mental illness/felony issue needs significant work, and I do have issues with those laws, strictly on Constitutional grounds.

  16. Many municipalities in the “Old West” outlawed hiring Chinese for work as miners. And several states, including California, banned interracial marriage.

  17. “There is a mechanism to get your rights restored if you’ve undergone successful treatment.”

    So you’re in favor of “may issue” gun laws. Because that’s what this is.

    Recall that after Arizona, the gun-grabbers were suggesting that being prescribed anti-depressants was good enough to take your rights away. Chantix to quit smoking? Gone. Prozac to lose weight? Gone. Doctor following the AMA line and you disagree? “The patient has anger issues.” Gone.

    Any time anyone other than yourself through your own actions determines when your rights can be taken away, that’s “may issue” by definition.

  18. I’m not suggesting the standards of anti-gun groups, which have no due-process protection.

    You can remove people’s rights with due process. That’s well established across the whole spectrum of rights. For instance someone can be tried and convicted and thrown into prison. Someone can be committed against their will to a mental institution. Commit a serious enough crime, it’s perfectly constitutional to deprive someone of their right to life. All these are much more extreme than being deprived of the right to bear arms.

    You need to separate what the anti-gun people suggest with how we treat other rights, and depriving people of the right to keep and bear arms after due process is not out of line with that tradition.

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