Our state constitution’s surprising right-to-bear-arms language

Washington’s 1889 Constitution includes very special language that establishes a strong right to bear arms coupled with strong language reinforcing the Legislature’s power to control or even ban private militia groups.

This language is crucial today, given the armed mob riot in Washington D.C., the recent invasion of the governor’s mansion grounds in Olympia and Gov. Jay Inslee’s order activating the National Guard to protect the state Capitol as the Legislature meets.

Article 1, Section 24 of Washington’s Constitution states: “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

This language contrasts with the U.S. Constitution’s Second Amendment, which recites the necessity of “a well regulated militia” and then confirms “the right of the people to keep and bear arms.” 

Both versions trace their lineage back to the 1215 Magna Carta and to 17^th century English demands to preserve local public militias to counterbalance the king’s use of a professional army against individual liberties. Until very recently, legal scholars and American courts viewed the Second Amendment as only protecting states’ rights to retain their national guards. But state constitutional language like ours expressly mentions an individual’s right to bear arms in defense of himself as well as the community. Why does our state have different wording?

Most 19^th century Washingtonians lived on farms and needed shotguns to safeguard their crops from crows and deer as well as rifles to defend against more dangerous mammals. For a very short time in Washington Territory’s history, tensions with Native Americans led some settlers to feel they needed to have weapons available.

But both the territorial Legislature and the first Legislature after statehood passed statutes tightly regulating the use of firearms in specific ways. Concealed weapons were banned for everyone except police and railroad detectives, and pistols had to be carried on the hip in plain view. The popular view was that only card sharks and other low-lifers would hide their handguns. Statutes prohibited any form of guns in bars and taverns, or brandishing firearms in public.

In other words, Washington’s founders simultaneously entrenched a strong personal right to own guns along with the concept that reasonable regulation of firearms made sense. But what’s that language about our right-to-bear-arms not authorizing “individuals or corporations to organize, maintain or employ an armed body of men”?

In 1886, three years before statehood, Puget Sound cities were wracked by organized anti-Chinese riots in which citizen militias tried to round up Chinese workers and ship them to San Francisco. In Seattle, the mayor and governor had to call in student cadets from the University of Washington to supplement local police and put down an armed anti-Chinese insurrection. In the ensuing melee, the uniformed UW students lost their cool and opened fire, killing four rioters.

In 1889, there was labor unrest and rioting in Coeur d’Alene, Idaho, and many people there were victims of private detectives engaged by mining companies to help break strikes. Closer to home, in 1888-89 strikes in Newcastle and Roslyn were busted up by armed private thugs hired by corporations.

Consequently, the people who drafted Washington’s Constitution wanted to make it crystal clear that a strong right to bear arms would be tied to equally strong language affirming the Legislature’s right to regulate weapons and, more importantly, to control or prohibit armed groups including private “militias.” Early in our statehood, the Washington State Supreme Court in 1907 declared that “armed bodies of men are a menace to the public, their mere presence is fraught with danger,” and the state had wisely reserved to itself control over organized groups with weapons.

The bottom line is that notwithstanding our strong individual rights to own firearms, the use of those weapons is subject to regulation. Further, under our state constitution the Legislature can take firm action if necessary to constrain or outlaw so-called citizen militias and other armed groups that endanger public safety, and the public institutions and officials we elect to serve us.