Last month the US Supreme Court heard oral arguments in what promises to be a landmark Second Amendment case. NYSRPA v. Bruen looks like an opportunity for the court to provide some guidance on what types of state and local firearm regulations are permissible under the Second Amendment. The question of gun-law historicity has taken center stage over the past thirteen years because District of Columbia v. Heller (2008) greatly expanded the protection of the Second Amendment with the caveat that “longstanding prohibitions” should be considered “presumptively lawful.” The silence of the high court has prompted thirteen years of quibbling between Second Amendment scholars, and now a case initiated by a National Rifle Association affiliate (NYSRPA) threatens to eliminate discretionary handgun licensing programs nationwide.
With high stakes hinging upon critical questions about which laws are historical and whether their authors believed them compatible with the Second Amendment, you’d think that the conversation taking place between interested parties and the court would be one of painstaking scholarship. Sadly, such is not the case with some of NYSRPA’s friends. The amicus brief filed by Texas Governor Greg Abbott stands out as particularly egregious in the liberties which it takes with the historical record.
Abbott and his legal team purport to weigh in with some authority on two Texas gun-control cases from the 1870s which, because of judicial originalism, have moved to center stage in ongoing conversations about how state-level regulations can coexist with the expansive, post-Heller Second Amendment. Those two cases are English v. State (1871) and State v. Duke (1875). Each one upheld a Texas law from 1871 that all but prohibited publicly carrying pistols, bowie knives, brass knuckles, and a few other small, concealable weapons (the list was modified over its 120-plus year history). Abbott would have us and SCOTUS ignore those two old cases in favor of a yet-older one called Cockrum v. State (1859). He believes that English and Duke, decided as they were under the short-lived Constitution of 1869 are unworthy of precedential status, while Cockrum, decided under the 1845 Constitution, should be “the principle by which the state is governed today.”
In explaining why he prefers an antebellum view over the most revelatory and important cases on the subject, Abbott leans into assumptions about Texans and their guns by saying, “Some stereotypes are true.” In Abbott’s view, the true heritage of Texas, and the version of its history worth relaying to the justices of the nation’s high court, is the one of Alamo martyrs, courtroom knife-fights, and defiant citizen-soldiers who cherished their “absolute” right to bear arms. The fact that nineteenth-century Texans almost universally condemned the practice of going armed in public does not merit the good governor’s mention, nor does the reality that the state government all but prohibited public carry for more than a century. Quite the opposite—Abbott’s brief portrays Texas’s longstanding handgun regulations (rolled back in recent years) as an unconstitutional aberration produced by corrupt leaders during the post-Civil War era of Reconstruction.
Abbott’s characterization of the Texas judiciary during Reconstruction is problematic in its perpetuation of the Lost Cause version of Southern history—whereby good White people were subjected to a corrupt and degrading period of “Black Republican” rule before gallant White men overthrew these governments in a process called “redemption.” In multi-ethnic Texas, this Lost Cause view also took on an exaggerated, epic narrative of the Texas Revolution as a white-man’s war against backward Mexican people; by uncritically celebrating antebellum stereotypes of Texans and their guns, Abbott taps into this dangerous vein that was used to justify the subordination of Tejanos and Mexicans in Texas. These fixtures of Jim Crow and Juan Crow historiography are simply untrue, and so is Abbott’s interpretation of the Reconstruction-era cases in his brief.
The Abbott team rejects English (1871) as a decisive case for no other reason than because it was authored by the infamous Semicolon Court which existed during the “radical” part of Reconstruction when Republicans briefly controlled the state government. This is an unfair assertion, but even were we to accept it as valid, it does not undermine the precedent set by Duke (1875). Permit me a quick detour into the convoluted history of Reconstruction in Texas—The Republican-dominated state supreme court issued a ruling that nullified the election of 1873, in which Democrats won back control of the state government; unhappy that the case hinged on the placement of a semicolon in the election law’s text, Democrats refused to observe the decision and retook the government by force of arms. One of the first things they did was remove the justices of the so-called “semicolon court” whole cloth and replace them with appointees chosen by the newly inaugurated governor who was a Democrat. One of those appointees was the very man who authored the Cockrum opinion, promoted to position of chief justice. The important distinction is not, as Abbott argues, between the Constitution of 1869 and that of 1876; it is, instead, between the bench of Republicans who heard English versus the bench of Democrats who heard Duke—and wouldn’t you know it, they both affirmed its constitutionality.
If it seems odd that a century of relatively strict gun policy in Texas spawned only two constitutional challenges—both in the 1870s—that’s because it isn’t true. In fact, Abbott would not only have us prefer Cockrum over the other two cases, but over yet more which reached Texas appellate courts over the following century. Despite hundreds of amendments to our current constitution over the course of that time, state’s most eminent and qualified criminal judges consistently affirmed that public carry laws were constitutional.
The two most recent of these cases, from 1973 and 1983, are worth taking a closer look at. The unanimous Collins v. State (1973) opinion held that: “The prohibition against unlawfully carrying arms has been the law in Texas for over one hundred years during which time our Constitution and penal laws have been amended and revised. Its constitutionality has been attacked on other grounds without success in many cases.” Those successes were few and far between, and resulted from legislative technicalities rather any substantive constitutional claim. The latter case, Masters v. State (1983), affirmed the law’s constitutionality yet again. One of the judges in that case wrote a concurrence which today’s supporters of expansive gun rights might find appealing—at least for the first few paragraphs. But the concurrence crescendos in its conclusion that the right to bear arms “plainly is not an absolute right in the sense that it must prevail in all imaginable circumstances and in the sense that the scope of the protection [of the Second Amendment]…must be determined solely from a literal reading of the phrase ‘the right of the people to keep and bear arms shall not be infringed.’” The Abbott brief actually cites this concurring opinion, but for its dicta criticizing the Semicolon Court rather than for its main point—which is that the state’s public carry laws had always been permissible regulatory measures under both the Constitution of 1876 and the Second Amendment.
There are yet more inaccuracies woven into the Abbott brief, though their larger purpose of promoting an exaggerated Texan pride is less harmful than the misrepresentations reviewed here. In the end, Abbott presents a false narrative of Texas firearm and weapon regulation that would be laughable were it not so galling. He and his attorneys regurgitate a distorted, Anglo-centric perspective informed by wishful thinking and childhood games of “cowboys-and-Indians” rather than any genuine effort at legal or historical analysis. It would be a shame for federal appellate courts to take this myth-as-history seriously, and it is a sorry state of affairs when our own governor is so lacking in his basic understanding of Texas history, law, and culture. SCOTUS deserves to know that the Abbott brief is #NotTexas.
 Referring specifically to Spigener v. State, where the addition of “hand chain” to the prohibited weapon list introduced a phrase so vague that it was inoperative. The other cases all affirmed the constitutionality of the statute under the state constitution, Second Amendment, and even despite challenges regarding lack of definition for certain kinds of knives and questions about how the acts themselves were titled (procedural claims). The full list can be found in the opinion for Collins v. State: Castellano (1970), Brock (1968), Dawson (1961), Curson (1958), Duke (1875), and English (1871).
 The concurring opinion characterized the Semicolon Court as “a court established by a State constitution (that of 1869) which was the product of military occupation and the disfranchisement of most of the State’s inhabitants, circumstances which deprive that court’s decisions of stare decisis effect. See Norvell, Oran M. Roberts and the Semicolon Court, 37 Texas L. Rev. 279, 288 (1959); Ramsdell, Reconstruction in Texas 200–68 (1910).” These citations are badly outdated now, in light of revisionist history of Eric Foner and a generation of other scholars of Reconstruction. See also Abbott brief p.4.