88 Pages Posted: 16 Apr 2017 Last revised: 7 Aug 2017
Date Written: August 6, 2017
This Article examines the Colorado right to keep and bear arms, in the nineteenth century. Part I describes one the arms of early Coloradans, including Indians, mountain men, and gold rush immigrants. Part I also covers the dramatic improvements in firearms technology that took place in the quarter-century before 1876.
Part I then explains some of the conditions that made Colorado’s arms culture different from neighboring territories. Because settlers were remote from any functioning government, they initially had to make their own governments. They created a Colorado tradition of popular self-government that still thrives today. Collectively, the settlers used their arms to defend Colorado from Confederate aggression during the Civil War. Soon after, war with the Arapaho and Cheyenne tribes wiped out trade routes from the states, leaving Coloradans near starvation. The settlers survived because they had the arms to fight for survival. The pre-statehood period is one reason the 1876 Colorado Constitution affirms the importance of the individual right to arms for personal defense and for collective defense.
Finally, Part I surveys some of the leading firearms businesses of early Colorado — businesses that helped make Denver the “emporium” of the Rocky Mountains.
Part II examines the structure of the Colorado Constitution. It begins with the 1875-76 Colorado Convention. It then examines structure of the Colorado Constitution that relate to the right to arms, including the principles of government at the beginning of the Constitution: that inherent rights precede government; that the people have the right to alter the government; and that fundamental human rights, including self-defense, are inalienable.
Part III analyzes the arms rights language chosen by the Convention and then adopted by the people. Each phrase in Colorado provision is examined, showing how Colorado sometimes followed or differed from other states.
Coloradans chose the strongest language available to secure the right to arms. Immigrant-friendly, Colorado specified that the right belongs to every “person,” not solely to the “citizen.” Personal defense and collective defense were both of fundamental importance, and each was expressly included in the constitutional right. The most important means of collective self-defense are the state militia (article XVII) and the posse comitatus of able-bodied males, who may be summoned by elected County Sheriffs or other appropriate officials (article XIV).
Notwithstanding the broad general language, Coloradans did favor one type of gun control — restricting the concealed carrying of arms. That was the only gun control expressly authorized by the constitutional text, which removed concealed carry from the right to bear arms.
Part IV examines several interpretive issues. First, what types of arms are implicated by the text of the Colorado guarantee? Second, should this understanding by modified by an idea in the personal notes of Territorial Justice E.T. Wells, a distinguished Colorado Founder? Third, how did arms change in the years following the 1876 Colorado Constitution, and did the changes affect Coloradans’ views of what types of arms laws were permissible? Finally, what types of gun control laws were enacted in Colorado in the nineteenth century?
Keywords: Colorado Constitution, right to keep and bear arms, nineteenth century
JEL Classification: H11, K14, K42
Suggested Citation: Suggested Citation
Kopel, David B., The Right to Arms in Nineteenth Century Colorado (August 6, 2017). Denver University Law Review, Forthcoming; U Denver Legal Studies Research Paper No. 17-14. Available at SSRN: https://ssrn.com/abstract=2952704