The 1849 California Constitutional Convention & The Right To Keep and Bear Arms

The 1849 California Constitutional Convention & The Right To Keep and Bear Arms

Back when I was writing Black Demographic Data, 1790-1860, I spent a lot of time trying to find the 1849 California Constitutional Convention debates. (If that seems a leap--the same guy that got Oregon the add a "no free blacks" provision to the 1857 Oregon Constitution tried, and failed, to get one added to the 1850 California Constitution.) I never could find it--no matter how many dusty library shelves I tried. But now I see by reading the comments over at Arms and the Law that the debates are available online--and there was actually discussion of whether to add a right to keep and bear arms provision. From John Ross Browne, ed., Report of the Debates in the Convention of California on the Formation of the State Constitution... 47:

Mr. Ord offered the following :

Sec. 16. Every person has a right to bear arms for the defence of himself and the State.

Mr. McCarver moved to amend by saying, " provided they are not concealed arms." He did not think, however, that this was a proper subject for the Constitution. No attempt should be made to prevent the Legislature from regulating matters of this kind.

Mr. Sherwood was of the same opinion. To make a positive declaration that a man has not this right would be null and void, inasmuch as it would be in opposition to the Constitution of the United States, which provides that " a well regulated militia, being necessary to the security of a free State, the right oí the people to keep and bear arms, shall not be infringed."

Mr. Botts was surprised that the gentleman from New York (Mr. Sherwood) should object to any provision here, because it was contained in the Constitution of the United States. After taking half-a-dozen provisions from that Constitution, word for word, such an objection came with rather a bad grace. He (Mr. Bolts) would himself prefer having this provision under the legislative head. A bill of rights is a general declaration ; the Constitution is a specific declaration. It is an admitted rule of construction that the bill of rights, or preamble, is of inferior force, and succombs to the Constitution. If there be in the Constitution a clause which conflicts with the bill of rights, the latter falls to the ground. He (Mr. Bolts) desired to see all great principles involving the rights of citizens brought into direct operation in the body of the Constitution. He saw no necessity for mere declarations which could have no force or effect. For this reason he had voted against the subject of monopolies ; and for the same reason he would vote against this.

Mr. Sherwood was not aware of having voted in the bill of rights for any provision which was directly secured to the people of California by the Constitution of the United States. But ¡f he had done so, it was with the good example before him of the gentleman from Monterey, who had voted for a provision in regard to the law of attainder. That provision he would find in the Constitution under the limitation of the powers of Congress. It was introduced here to limit the powers of the Legislature. But Mr. Ord's proposition directly touches the rights of every citizen.

The question was then taken, and both the amendment, and amendment to the amendment, were rejected.

I had always thought that the reason California's Constitution had no right to keep and bear arms was because so many of the early settlers were Iowans--and Iowa's state constitution did not have (and still does not have) a right to keep and bear arms. But apparently it wasn't just an oversight.

It is rather interesting that some delegates argued that it was inappropriate, apparently because it was too broad (and needed to leave authority to the legislature to regulated concealed carry), and others thought that it was superfluous. But it would also appear that some delegates thought it was wrongly placed in a Bill of Rights, and perhaps some felt that the state legislature needed authority to regulate the bearing of arms.

This isn't going to be very useful for those arguing for a right to keep and bear arms under the California Constitution--especially because debates on the 1879 Constitution did not even get around to rejecting such a proposal--but still quite interesting, nonetheless. I suspect that the McDonald decision, when it comes down, is going to make the whole question about a right under the California Constitution moot.