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The Right to Arms in Nineteenth Century Colorado

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The Right to Arms in Nineteenth Century Colorado THE RIGHT TO ARMS IN NINETEENTH CENTURY COLORADO DAVID B. KOPEL† ABSTRACT This Article details the legal, cultural, and political history of the right to arms in Colorado in the nineteenth century. The Article pays particular attention to the period between 1858, when mass white settlement began with the gold rush, and 1876, when Colorado achieved statehood. When Colorado became the thirty-eighth state, Coloradans chose to adopt a constitution whose right to arms guarantee was stronger than any other state. The choice stemmed in part from pre-statehood conditions, when the settlers had to rely on their own resources for defense against a myriad of dangers. Right from the start, Coloradans established a vigorous and enduring tradition of self-government and self-defense. In the Colorado view, the right to arms is an inherent, inalienable human right, which is protected by legitimate governments, but not created by government. Accordingly, the Article extensively describes the exercise of the right to arms by Colorado Indians. Not only were their rights guaranteed by the 1876 constitution, they had vigorously exercised their natural right to arms since long before the constitution was adopted. TABLE OF CONTENTS INTRODUCTION ...................................................................................... 330 I. THE EARLY INHABITANTS .................................................................. 334 A. Indians and Their Arms ............................................................... 334 1. Prehistory ................................................................................ 335 2. Territories................................................................................ 336 3. Trading Networks ................................................................... 337 4. Types of Arms ........................................................................ 341 B. Mountain Men and the Plains Rifle ............................................. 344 C. Firearms Improvements in Mid-Nineteenth Century................... 352 II. EARLY COLORADO: SURVIVAL AND SOVEREIGNTY ......................... 358 A. The Gold Rush ............................................................................. 358 † Adjunct Professor of Constitutional Law, University of Denver Sturm College of Law; Research Director, Independence Institute, Denver, Colorado; Associate Policy Analyst, Cato Institute, Washington, D.C. Prof. Kopel is author of seventeen books and over 100 published journal articles. Among his books is the first law school textbook on the right to arms. NICHOLAS J. JOHNSON, DAVID B. KOPEL, GEORGE A. MOCSARY & MICHAEL P. O’SHEA, FIREARMS LAW AND THE SECOND AMENDMENT: REGULATION, RIGHTS, AND POLICIES (2d ed. 2017). http://davekopel.org. The author would like to thank Cassie Morrow for research assistance. 329 330 DENVER LAW REVIEW [Vol. 95:2 B. Making New Governments ........................................................... 360 C. The Civil War ............................................................................... 367 D. Indian Wars ................................................................................. 375 1. Plains Indians .......................................................................... 375 2. The Utes .................................................................................. 392 E. Law and Order ............................................................................. 398 F. Early Colorado Arms Businesses ................................................ 408 III. THE COLORADO CONVENTION AND ITS SYSTEM OF GOVERNMENT ................................................................................... 413 A. The Colorado Convention............................................................ 413 B. Rights Come First ........................................................................ 417 C. Rights and Duties ......................................................................... 418 D. The Sovereign Right to Alter the Government ............................. 418 E. The Sole and Exclusive Right of Governing Themselves ............. 424 F. The Natural Right of Self-Defense ............................................... 426 G. The Militia ................................................................................... 428 H. The Office of Sheriff ..................................................................... 430 IV. THE RIGHT TO ARMS IN THE COLORADO CONSTITUTION ............... 431 A. “The Right of No Person” ........................................................... 432 B. “To Keep and Bear Arms in Defense of His Home, Person and Property,” ............................................................... 435 C. “Or in Aid of the Civil Power When Thereto Legally Summoned” ................................................................................ 435 D. “Shall be Called Into Question;” ................................................ 437 E. “But Nothing Herein Contained Shall be Construed to Justify the Practice of Carrying Concealed Weapons.” ............ 438 V. INTERPRETATION .............................................................................. 440 A. What Arms Does the Text Encompass? ....................................... 440 B. Justice Wells’s Note to Himself ................................................... 441 C. Practices of the Time ................................................................... 443 D. Law and Order After Statehood ................................................... 445 VI. ARMS LAWS AFTER RATIFICATION OF THE COLORADO CONSTITUTION .................................................................................. 448 A. Arms Carrying ............................................................................. 448 B. Loose Gunpowder Safe Storage................................................... 449 C. Firearms Discharge ..................................................................... 451 D. Indians ......................................................................................... 452 E. Posse Comitatus and Militia ........................................................ 454 CONCLUSION .......................................................................................... 455 INTRODUCTION Adopted in 1876 and unchanged ever since, the Colorado Constitution guarantees 2018] THE RIGHT TO ARMS 331 [t]hat the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.1 This Article examines the right to keep and bear arms in nineteenth-century Colorado. Part I describes the arms of early Coloradans: the Indians and the mountain men. Part I also covers the dramatic improvements in firearms technology that took place in the quarter century before 1876. Part II describes some of the conditions that made Colorado’s arms culture different from neighboring territories. Because the gold rush 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 Indians—including Colorado’s oldest continuous inhabitants, the Utes—were in their own view exercising their natural right of armed self-defense; the Article pays careful attention to the Indians as actors in their own right. Because government in pre-statehood days was often incapable of securing public safety, Coloradans provided for their own armed defense, generally successfully. Given the need for arms for multiple purposes, firearms businesses thrived in early Colorado. They helped make Denver the “emporium” of the Rocky Mountains. 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. Part III examines the creation and structure of the Colorado Constitution. It begins with the 1875–1876 Colorado Convention. It then examines the core principles of the Colorado Constitution: that inherent rights precede government; that the people have the right to alter the government; that Coloradans have “the sole and exclusive” right of governing themselves; and that fundamental human rights, including self-defense, are inalienable. Part III also discusses two leading means of collective self-defense in early Colorado: 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). Part IV closely examines the text and original meaning of Colorado’s right to keep and bear arms. Coloradans chose the strongest language available to secure the right to arms. Each phrase in Colorado provision is studied, showing how Colorado sometimes followed or differed from 1. COLO. CONST. art. II, § 13 (1876), http://www.colorado.gov/pacific/sites/default/files/Colorado%20Constitution.pdf. 332 DENVER LAW REVIEW [Vol. 95:2 other states. Immigrant-friendly Colorado specified that the right belongs to every “person,” not solely
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