Library of Congress photo Under intense pressure to do something about lawlessness — and especially Jesse James — Missouri in 1875 inserted language in its constitution to regulate concealed weapons.

JEFFERSON CITY — The year 1875 brought grasshoppers, a crackdown on Jesse James and a new constitution to the state of Missouri.

The 68 delegates to the constitutional convention assembled in May in Jefferson City for what would be four months of forging a new governing document for the frontier state.

On the 13th day of that month, the Committee on the Preamble and the Bill of Rights submitted to the convention language that would lay the foundation for the state's laws on carrying concealed weapons.

Until last week, the prevailing interpretation was that the constitution allowed lawmakers to regulate carrying concealed weapons.

But a group that includes Kansas City Mayor Pro Tem Alvin Brooks has a different interpretation, and the group sued to keep the state's new concealed-weapons law from taking effect Oct. 11.

St. Louis Circuit Judge Steven Ohmer granted the preliminary injunction, and last week the state Supreme Court refused to lift it. A hearing on a permanent injunction is set for Thursday before Ohmer.

At issue is the constitution adopted in 1945, which included a slight revision of the 1875 entry on concealed weapons. The document reads:

“That the right of every person to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.”

The language change in 1945 provoked no debate and was adopted without discussion.

The only official record of any debate that exists from the 1875 amendment is a speech by Thomas Gantt, a St. Louis appeals court judge who was chairman of the committee that worked on the language.

In his May 13, 1875, speech before delegates, Gantt first discussed the general right to bear arms.

“There will be no difference of opinion, I think, upon that subject,” Gantt said. “But then the declaration is distinctly made, Mr. President, that nothing contained in this provision shall be construed to sanction or justify the wearing of concealed weapons.”

He further said of concealed weapons: “It is a practice which cannot be too severely condemned. It is a practice fraught with the most incalculable evil.”

Gantt said members of the committee wanted him to say that they did not believe the right to bear arms included “the right to carry a pistol in the pocket or a bowie knife under the belt.”

Burton Newman, a St. Louis attorney who is representing the group challenging the new concealed-weapons law, thinks the 1875 delegates clearly were trying to ban concealed weapons. He said Gantt's speech reinforces that interpretation.

“What Gantt said constitutes the only statements made on the debate,” Newman said. “There was no other debate as far as we know.”

The General Assembly only the year before had passed a law clearly banning concealed weapons in churches, schools, courts, polling stations and other public places, Newman said.

“The drafters of the constitution did not want the legislature to change what had been done the year before,” Newman said.

Kevin Jamison, a Gladstone lawyer and president of the Western Missouri Shooters Alliance, noted that the 1874 law did not ban carrying concealed weapons in saloons, gambling halls, banks or hotels, or on trains.

“It was only violence as it related to political venues,” Jamison said, noting the instances of factional violence during the Reconstruction Era in Missouri.

Like Jamison, Attorney General Jay Nixon's office has argued that the law neither expressly allows nor prohibits concealed weapons. It is the legislature's call to ban or permit the practice, the state argues.

Jamison and other gun-rights advocates contend the real history of concealed weapons laws in Missouri — and in other former slave states — is one of racism.

After pro-Confederate Democrats regained control of the legislature in 1872, the first order of business was to disenfranchise black people, Jamison said. In Missouri, as throughout the South, that meant keeping guns out of the hands of former slaves.

Jamison points to a succession of laws in Missouri before the Civil War that prevented or limited slaves and free blacks from possessing weapons. An 1855 law called for 30 lashes for any slave caught with a weapon.

Because of the 14th Amendment added to the U.S. Constitution after the Civil War, Southern states no longer were free to write laws explicitly banning blacks and mulattos from owning guns.

Thus, Missouri and other former slave states added many Jim Crow laws to the books, including ones restricting concealed weapons, Jamison said. These laws were not enforced against whites in any equal sense, he said.

Gary Kremer has heard the Jim Crow theory about the concealed-weapons language, but discounts it.

“I've never seen any evidence of that,” said Kremer, a history professor at William Woods University who has written about the late 1800s in Missouri and the state's black heritage.

“I think the issue was an overwhelming fear, especially on the part of business interests. They feared the reputation that Missouri was gaining as the outlaw state.”

Democrats were under intense pressure to do something about lawlessness and especially Jesse James, Kremer said.

The Jefferson City Daily State Journal, a Republican newspaper, on May 14, 1875, reported what had happened at the convention the previous day, including the adoption of the concealed-weapons language. The paper also carried news of the grasshopper plague sweeping western Missouri and of the “reign of terror” by Jesse James and his gang in Kearney.

On May 13, The Daily State Journal had run an editorial item on the fatal shooting of Col. D.R. Anthony, a newspaper editor in Leavenworth who purportedly had been killed by an editor from another newspaper. The shooting took place in an opera house, and the assailant allegedly pulled out a pistol to shoot the unarmed Anthony after being punched in an argument.

The shooting “is another instance of the evil of carrying weapons,” the newspaper said. “It is a cowardly practice, and whoever is found with a murderous weapon upon his person is prima facie guilty of a murderous intent.”

Another pro-Union, anti-slavery Republican newspaper, the St. Louis Globe, commented on the shooting, calling it “cowardly.”

“But it is to be hoped that the people of Leavenworth have not yet to learn that even a blow upon the mouth does not justify a resort to the ready revolver,” the Globe said. “It is also to be hoped that they are not prepared to justify the carrying of deadly weapons, and their deadly use upon slight provocation.”

Kris Kobach, a professor of constitutional law and legal history at the University of Missouri-Kansas City, said 12 states adopted concealed-weapons language similar to Missouri's during the late 1800s to early 1900s.

“In my opinion, all of these clauses are written with the same intent — that the legislature may regulate the carrying of concealed weapons without infringing on the general right to bear arms,” said Kobach, who also is a Republican candidate for Congress in Kansas.

None of the Supreme Courts in any of these states has found this clause to be a prohibition on the carrying of concealed firearms, he said.

Kobach said he did not think Jim Crow sentiments were the driving force behind the amendments.

“While that may have been a possible motivation for some, it certainly appears not to be the primary motivation, because some of these states had very little history of segregation and very few African-Americans,” Kobach said.

Colorado, Idaho, Montana and New Mexico were among the western states that adopted similar language, he said.

“Clearly, states and towns were worried about the possibility of conceal-carry being a law enforcement problem,” he said. “This was the era of the wild West.”

To bolster the argument that these states were leaving the issue to the legislature, Kobach points to Mississippi's amendment, added in 1890: “The right of every citizen to keep and bear arms in defense of his home, person or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”

If the framers of Missouri's 1875 constitution wanted to ban weapons, they would have done so, he said. But the language does not say “carrying concealed weapons shall be prohibited.”

Newman, who will have to argue his case in court before Ohmer, disagreed.

“The Second Amendment of the U.S. Constitution could be more clear, too,” he said. [Ed. What could be clearer than "shall not be infringed"?]