The Dark Secret of Jim Crow and the Racist Roots of Gun Control
By
Dave Kopel
America's
1st Freedom, March 2011. More articles by Kopel on civil rights and
gun control are available here.
Jim
Crow is alive and well.
School
children today are taught that “Jim Crow” was the name for a legal system of
racial oppression, which began after Reconstruction, particularly in the South,
and reached its nadir in the early 20th century. Children are also taught that
Jim Crow was banished by legal reforms such as the Civil Rights Act of 1964 and
the 1954 Supreme Court decision Brown v. Board of Education.
Yet
in one important part of American life, Jim Crow continues to thrive—the legal
foundation of restrictive and oppressive gun control that was built by Jim
Crow. The Jim Crow cases continue to hobble the Right to Keep and Bear Arms.
Shockingly,
the Jim Crow laws and legacy are lauded by some persons who consider themselves
liberal and tolerant. In the 2010 Supreme Court case McDonald v. Chicago,
Justice Stephen Breyer wrote a dissent that asserted that District of
Columbia v. Heller should be overturned, and that state and local
governments should be allowed to ban guns. Justices Sonia Sotomayor and Ruth
Bader Ginsburg joined the dissent. That dissent included a litany of
restrictive American gun control statutes and court cases, many of them the
products of Jim Crow.
Previous
issues of America’s 1st Freedom have told the story of how the defeated
Confederate states enacted the Black Codes, which explicitly restricted gun
possession and carrying by the freedmen. Sometimes these laws facilitated the
activities of the terrorist organization Ku Klux Klan, America’s first gun
control organization. The top item on the Klan’s agenda was confiscating arms from the
freedmen, the better to terrorize them afterward.
Outraged,
the Reconstruction Congress responded with the Freedmen’s Bureau Bill, the
Civil Rights Act of 1866, the 14th Amendment and the Civil Rights Act of
1870—every one of them aimed at racial subordination in general and racist gun
control laws in particular.
President
Ulysses S. Grant (1869-77), who would later serve as president of the National
Rifle Association, vigorously prosecuted Klansmen, and even declared martial
law when necessary to suppress KKK violence.
Reconstruction
formally ended in 1877 with the inauguration of President Rutherford B. Hayes
and the withdrawal of federal troops from the South. Even before that, white
supremacist “redeemer” governments had taken over one Southern state after
another.
Because
the new 14th Amendment forbade any state to deny “the equal protection of the
laws,” gun control statutes aimed at blacks could no longer be written in
overtly racial terms. Instead, the South created racially neutral laws designed
to disarm freedmen. Some laws prohibited inexpensive firearms while protecting
more expensive military guns owned by former Confederate soldiers. Meanwhile,
other laws imposed licensing systems or carry restrictions. As a Florida
Supreme Court justice later acknowledged, these laws were “never intended to be
applied to the white population” (Watson v. Stone, 1941).
Southern
courts generally upheld these laws. In the 19th and 20th centuries, these court
precedents played a substantial role in maintaining white supremacy by
facilitating unofficial—but government-tolerated—violence against blacks and
civil rights advocates. Today, these racist laws are the foundation of
continuing infringements of the Right to Keep and Bear Arms.
Let’s
take a state-by-state look at how the system worked—and continues to work.
Tennessee
Setting
a pattern that was typical in the South, Tennessee courts initially protected
the right to arms, but then abandoned the field as Jim Crow took over. In 1870,
the Tennessee Legislature prohibited the carrying of “a dirk, sword-cane,
Spanish stiletto, belt or pocket pistol or revolver,” either openly or
concealed. The Tennessee Supreme Court addressed the ban in the well-known and
still-influential 1871 case, Andrews v. State.
The Andrews
court stated that people had a right to arms, including the right to buy guns
and ammunition, to take guns to gunsmiths and to carry guns and ammunition for
purposes of sale and repair.
The
court rejected the notion that the right to arms was a “political right,” like
voting or jury service, which belonged to only a subset of the people. Rather,
the right to arms was a civil right to be enjoyed by all citizens.
The
right to carry in public could be regulated, but not prohibited: “The power to
regulate does not fairly mean the power to prohibit; on the contrary, to regulate
necessarily involves the existence of the thing or act to be regulated.”
In
this particular case, Andrews had been carrying a repeating pistol (what we
would today call a large revolver). The legislature could not ban the carrying
of this type of arm, which was particularly useful for militia service: “The
pistol known as the repeater is a soldier’s weapon—skill in the use of which
will add to the efficiency of the soldier. If such is the character of the
weapon here designated, then the prohibition of the statute is too broad to be
allowed to stand. …”
The
legislature, however, was determined to stamp out the right to carry. So it
promptly passed a new law banning the carrying of any handgun “other than an
army pistol, or such as are commonly carried and used in the United States
Army, and in no case shall it be lawful for any person to carry such army
pistol publicly or privately about his person in any other manner than openly
in his hands.”
The
new statute contradicted Andrews' affirmation of the right to buy any
type of handgun in a store and carry it home. The law still allowed any model
of handgun to be taken home, but the buyer would have to put the gun in a cart
or wagon, rather than carry it. While the law allowed the carrying—for any
purpose, and in public—of army model handguns, the requirement that the gun be
carried “in his hands” was likely to provoke fear and almost certain to cause
accidents. In effect, the law went as far as possible to outlaw all handgun
possession while maintaining a pretense of honoring the right to bear arms.
Unfortunately,
the Tennessee Supreme Court upheld the ban without even discussing whether the
law violated the Andrews standard (State v. Wilburn, 1872).
Then
in 1879, the legislature banned the sale of all handguns “except army or navy
pistols.” The obvious effect was to prevent freedmen from owning handguns.
Almost all were poor and could not afford the expensive Army and Navy models.
Meanwhile, the ex-confederate soldiers already had plenty of Army and Navy models
that they had been allowed to take home under the surrender terms for the
Confederate army.
Arkansas
Like
Tennessee, Arkansas had an unusual constitutional right to arms, which
guaranteed the right only for the “common defense”—this was the basis for limiting
the right only to militia-type arms. Notably, when the U.S. Senate was
considering the Second Amendment, it had rejected Sen. Roger Sherman’s proposal
to impose a similar limit on the federal right to arms.
As Reconstruction
was ending, the Arkansas Supreme Court upheld broad gun controls while still
respecting core rights. But as Jim Crow spread its tentacles, Arkansas
degenerated into near-nullification of the right.
The
1876 decision Fife v. state held that a ban on open or concealed carry
of pistols was too broad. Citing the Tennessee case Andrews v. State,
the Arkansas Supreme Court held that only militia-type arms were protected and
that the right to carry militia arms belonged to all people, not just militiamen.
The court held that “the rifle, of all descriptions, the shot gun, the musket
and repeater, are such arms, and … under the Constitution, the right to keep
such arms cannot be infringed or forbidden by the legislature.”
While
large handguns (“repeaters”) were protected, the “pocket revolver” was not,
because the pocket revolver was not “effective as a weapon of war.” The court
overlooked the point that the “common defense” is enhanced by personal
self-defense, because responsible gun ownership and self-defense against
criminals deter crime in general, aid the police and make the public at large
safer.
Consistent
with the Fife case, the Arkansas court later struck down convictions for
carrying concealed army pistols. (Wilson v. State and Holland v. state,
both in 1878.) Wilson held that carrying handguns in the course of one’s
daily activities in ordinary public places (but not in churches or polling
places) was a constitutional right.
The
remedy to abuse of the right was not prohibition against the innocent but
punishment of the guilty: “If cowardly and dishonorable men sometimes shoot
unarmed men with army pistols or guns, the evil must be prevented by the
penitentiary and gallows, and not by a general deprivation of a constitutional
privilege.”
But
the Arkansas Legislature would not quit. The carrying of most handguns was
already outlawed. Then in 1881 the legislature copied the Tennessee law and
banned “the carrying of army pistols except uncovered and in the hand.”
The
next year, the Arkansas Supreme Court upheld the “in the hand” requirement in Haile
v. State. Ignoring the court’s own precedents, and relying on the “common
defense” language in the state constitution, the court said that the right to
arms was not for personal defense, but solely for the resistance of tyranny.
The
court acknowledged that the purpose of the “in the hand” law was to discourage
gun carrying. Such discouragement was for the benefit of “timid citizens.”
(Some today call a person with an extreme fear of guns, such that the fear
interferes with normal daily activities, a “hoplophobe.”)
In
essence, the court had now agreed with the legislature that the right to bear
arms was a bad idea. Rather than force the legislature to seek a constitutional
amendment to repeal the right, the court accepted the legislature’s practical
nullification of the right to bear arms by requiring that bearing be done in
the most inconvenient and dangerous manner possible.
Another
1881 statute prohibited the sale of any pistol other than those “used in the
army or navy of the United States and known as the navy pistol.” The Arkansas
court upheld the ban in Dabbs v. State(1882).
Oklahoma
At
the 1907 Oklahoma constitutional convention, the delegates rejected a proposal
to include “common defense” language in the constitutional protection of
firearm possession. Instead, the delegates copied nearly verbatim from the
Missouri and Colorado constitutions, explicitly protecting “defense of home,
person and property” in the right to arms.
The
following year, however, the Oklahoma Supreme Court in Ex parte Thomas declared
that the right was only for militia-type arms, and that a “pistol” was not
within the right to arms. Despite what the Thomas court claimed, there
was not a single precedent for the proposition that all handguns could be
banned. The Thomas court ignored the Missouri Supreme Court’s precedent
that revolvers in general (not just the Army and Navy models) were protected by
the state right to arms (State v. Shelby, 1886).
The
Oklahoma Supreme Court strangled the state constitution’s right to arms shortly
after birth. The outrageous Thomas opinion remains the leading precedent
in Oklahoma, and thus for more than a century has deprived the people of
Oklahoma of the protection of the strong Right to Keep and Bear Arms that they
wrote into their constitution. Fortunately, as of 2011, the Oklahoma
Legislature has reformed most of the bad gun laws from the Jim Crow era, but
the people of Oklahoma suffered decades of deprivations of their
rights—including the Right to Carry—before the legislature finally acted.
Texas
Most
people would be surprised to learn that Arkansas and Tennessee were the gun-ban
capitals of the United States during Jim Crow, and that Oklahoma was not far
behind. People would likewise be surprised that, by the early 20th century,
Texas had joined the trend.
The
Texas Legislature imposed a 50 percent gross receipts tax on the sale of
handguns. An intermediate court of appeals upheld the punitive tax (Caswell
& Smith v. State, Tex. Civil App., 1912). The court reasoned that
handguns, like alcohol, are socially harmful and therefore may be taxed
severely. The court added in dicta that prohibiting the sale of handguns
would not violate the state constitution.
Georgia
In
1910, the Georgia Legislature enacted a licensing requirement for the open
carry of handguns. The 1910 law was not like the licensing laws in effect today
in Georgia and most other states—the modern laws use objective criteria to
grant carry permits to adults who meet certain specific standards, such as
passing a fingerprint-based background check and a safety course. In contrast,
the 1910 Georgia statute provided almost limitless discretion to the licensing
authority so that, in effect, political cronies could get licenses and others (especially
blacks) could not. Because the legislature had previously outlawed concealed
carry, obtaining an open carry license became the only way for a person to
lawfully exercise the Right to Carry a handgun.
In Strickland
v. State(1911) the Georgia Supreme Court upheld the licensing statute.
Admitting that the Georgia right was not limited to “common defense,” the court
said that the carry ban was authorized by the general “police power” of the
state—that is, the power to make laws for health, safety, welfare and morals.
Yet the very purpose of enumerating rights in a constitution is to limit the
police power of the state on certain subjects.
Throughout
the 20th century, many courts in other states used Georgia’s “police power”
rationale to uphold a wide range of anti-gun laws, thus turning those states’
constitutional right to arms into a practical nullity.
Florida
In
1893 the Florida Legislature adopted a gun control law—that it revised in 1901
and 1906—that prohibited the carrying of handguns and repeating rifles, openly
or concealed, with exceptions for peace officers and persons licensed by a
county commissioner.
A
1941 opinion by Florida Supreme Court Justice Rivers Buford provided a frank
explanation of why the carry ban was enacted and how it had actually been
enforced:
“I
know something of the history of this legislation. The original Act of 1893 was
passed when there was a great influx of Negro laborers in this state drawn here
for the purpose of working in turpentine and lumber camps. The same condition
existed when the act was amended in 1901 and the act was passed for the purpose
of disarming the negro laborers and to thereby reduce the unlawful homicides
that were prevalent in turpentine and saw-mill camps and to give the white
citizens in sparsely settled areas a better feeling of security. The statute
was never intended to be applied to the white population and in practice has
never been so applied. We have no statistics available, but it is a safe guess
that more than 80 percent of the white men living in rural sections of Florida
have violated this statute. It is also a safe guess to say that not more than 5
percent of the men in Florida who own pistols and repeating rifles have ever
applied to the Board of County Commissioners for a permit to have the same in
their possession and there has never been, within my knowledge, any effort to
enforce the provisions of this statute as to white people, because it has been
generally conceded to be in contravention of the Constitution and non-enforceable
if contested” (Watson v. State, concurring opinion).
Justice
Buford pulls back the curtain on the racist gun control statutes and cases
discussed here. The statutes never used the word “negro” and the cases
upholding those statutes scrupulously avoided any racial language. Yet the
purpose and application of those laws was well known.
New
York
By
the turn of the century, Jim Crow was spreading beyond its Southern roots. An
1897 New York statute outlawed the possession of a “slungshot, billy, sand club
or metal knuckles”—even if nefarious intent was absent. The New York Court of
Appeals upheld the ban in 1912 (People v. Persce). The court ignored the
fact that the first three of the banned items, at least, have legitimate
protective uses, as shown by the fact that police officers often carried them.
The
next year, New York’s intermediate court of appeals, in a 3-2 vote, upheld the
infamous 1911 Sullivan Act. That law required a license to possess a handgun in
the home, and made the licensing process difficult and highly arbitrary. The
act was upheld in spite of the existence of the New York Civil Rights Law,
which includes a verbatim copy of the Second Amendment (People ex rel.
Darling v. Warden of City Prison). Though unstated, the Sullivan Act
targeted blacks as well as Italian and Jewish immigrants.
Ohio
Similarly,
in 1920 the Ohio Supreme Court brushed aside the Ohio Constitution in State
v. Nieto to uphold the conviction of a Mexican employee of an Ohio railroad
who possessed a concealed handgun in violation of an absolute ban (with no
licensing provision) on concealed carry.
In
dissent, Justice J. Wanamaker’s dissent discussed the racial issue that
underlies much of gun control history in the United States. He wrote:
“I
desire to give some special attention to some of the authorities cited, supreme
court decisions from Alabama, Georgia, Arkansas, Kentucky and one or two
inferior court decisions from New York, which are given in support of the
doctrines upheld by this court. The Southern states have very largely furnished
the precedents. It is only necessary to observe that the race issue there has
extremely intensified a decisive purpose to entirely disarm the Negro, and this
policy is evident upon reading the opinions.”
The
majority decisions in Nieto, Darling, Thomas and many of
the other cases discussed above provided the foundation for state courts
nullifying the right to arms in state constitutions. These cases are still
cited extensively by the gun prohibition lobbies and their judicial allies.
These
cases are the product of one of the most shameful periods in American judicial
history, when judges put aside the constitutions they had sworn to uphold and
instead made themselves into tools of white supremacy and Jim Crow.
The
battle against Jim Crow has been going on for well over a century, and it will
not be completed until the Jim Crow gun control cases are recognized for the
constitutional abominations that they are, and are placed on the ash heap of history,
along with Plessey v. Ferguson and the rest of their ilk.
This
article is based on Dave Kopel’s and Clayton Cramer’s“State Court Standards of Review
for the Right to Arms,” Santa Clara Law Review (Vol. 50, 2010), available at http://ssrn.com/abstract=1542544.
_______________________________________
Copyright 1993 Clayton E. Cramer All Rights Reserved. Electronic redistribution is permitted as long as no alterations are made to the text and this notice appears at the beginning. Print reproduction or for profit use is not authorized without permission from the author.
By
Clayton E. Cramer
The historical
record provides compelling evidence that racism underlies gun control laws --
and not in any subtle way. Throughout much of American history, gun control was
openly stated as a method for keeping blacks and Hispanics "in their
place," and to quiet the racial fears of whites. This paper is intended to
provide a brief summary of this unholy alliance of gun control and racism, and
to suggest that gun control laws should be regarded as "suspect
ideas," analogous to the "suspect classifications" theory of
discrimination already part of the American legal system.
Racist arms laws
predate the establishment of the United States. Starting in 1751, the French
Black Code required Louisiana colonists to stop any blacks, and if necessary,
beat "any black carrying any potential weapon, such as a cane." If a
black refused to stop on demand, and was on horseback, the colonist was
authorized to "shoot to kill." [1] Slave
possession of firearms was a necessity at times in a frontier society, yet laws
continued to be passed in an attempt to prohibit slaves or free blacks from
possessing firearms, except under very restrictively controlled conditions. [2]
Similarly, in the sixteenth century the colony of New Spain, terrified of black
slave revolts, prohibited all blacks, free and slave, from carrying arms. [3]
In the Haitian
Revolution of the 1790s, the slave population successfully threw off their
French masters, but the Revolution degenerated into a race war, aggravating
existing fears in the French Louisiana colony, and among whites in the slave
states of the United States. When the first U. S. official arrived in New
Orleans in 1803 to take charge of this new American possession, the planters
sought to have the existing free black militia disarmed, and otherwise exclude
"free blacks from positions in which they were required to bear
arms," including such non-military functions as slave-catching crews. The
New Orleans city government also stopped whites from teaching fencing to free
blacks, and then, when free blacks sought to teach fencing, similarly
prohibited their efforts as well. [4]
It is not
surprising that the first North American English colonies, then the states of
the new republic, remained in dread fear of armed blacks, for slave revolts
against slave owners often degenerated into less selective forms of racial
warfare. The perception that free blacks were sympathetic to the plight of
their enslaved brothers, and the dangerous example that "a Negro could be
free" also caused the slave states to pass laws designed to disarm all
blacks, both slave and free. Unlike the gun control laws passed after the Civil
War, these antebellum statutes were for blacks alone. In Maryland, these
prohibitions went so far as to prohibit free blacks from owning dogs without a
license, and authorizing any white to kill an unlicensed dog owned by a free
black, for fear that blacks would use dogs as weapons. Mississippi went
further, and prohibited any ownership of a dog by a black person. [5]
Understandably,
restrictions on slave possession of arms go back a very long way. While arms
restrictions on free blacks predate it, these restrictions increased
dramatically after Nat Turner's Rebellion in 1831, a revolt that caused the
South to become increasingly irrational in its fears. [6]
Virginia's response to Turner's Rebellion prohibited free blacks "to keep
or carry any firelock of any kind, any military weapon, or any powder or
lead..." The existing laws under which free blacks were occasionally
licensed to possess or carry arms was also repealed, making arms possession
completely illegal for free blacks. [7] But even
before this action by the Virginia Legislature, in the aftermath of Turner's
Rebellion, the discovery that a free black family possessed lead shot for use
as scale weights, without powder or weapon in which to fire it, was considered
sufficient reason for a frenzied mob to discuss summary execution of the owner.
[8]
The analogy to the current hysteria where mere possession of ammunition in some
states without a firearms license may lead to jail time, should be obvious.
One example of
the increasing fear of armed blacks is the 1834 change to the Tennessee
Constitution, where Article XI, 26 of the 1796 Tennessee Constitution was revised
from: "That the freemen of this State have a right to keep and to bear
arms for their common defence," [9] to:
"That the free white men of this State have a right to keep and to
bear arms for their common defence." [10]
[emphasis added] It is not clear what motivated this change, other than
Turner's bloody insurrection. The year before, the Tennessee Supreme Court had
recognized the right to bear arms as an individual guarantee, but there is
nothing in that decision that touches on the subject of race. [11]
Other decisions
during the antebellum period were unambiguous about the importance of race. In
State v. Huntly (1843), the North Carolina Supreme Court had recognized that
there was a right to carry arms guaranteed under the North Carolina
Constitution, as long as such arms were carried in a manner not likely to
frighten people. [12] The
following year, the North Carolina Supreme Court made one of those decisions
whose full significance would not appear until after the Civil War and passage
of the Fourteenth Amendment. An 1840 statute provided:
That if any free negro, mulatto, or free
person of color, shall wear or carry about his or her person, or keep in his or
her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife,
unless he or she shall have obtained a licence therefor from the Court of Pleas
and Quarter Sessions of his or her county, within one year preceding the
wearing, keeping or carrying therefor, he or she shall be guilty of a
misdemeanor, and may be indicted therefor. [13]
Elijah Newsom,
"a free person of color," was indicted in Cumberland County in June of
1843 for carrying a shotgun without a license -- at the very time the North
Carolina Supreme Court was deciding Huntly. Newsom was convicted by a jury; but
the trial judge directed a not guilty verdict, and the state appealed to the
North Carolina Supreme Court. Newsom's attorney argued that the statute
requiring free blacks to obtain a license to "keep and bear arms" was
in violation of both the Second Amendment to the U. S. Constitution, and the
North Carolina Constitution's similar guarantee of a right to keep and bear
arms. [14] The
North Carolina Supreme Court refused to accept that the Second Amendment was a
limitation on state laws, but had to deal with the problem of the state
constitutional guarantees, which had been used in the Huntly decision, the year
before.
The 17th article
of the 1776 North Carolina Constitution declared:
That the people have a right to bear
arms, for the defence of the State; and, as standing armies, in time of peace,
are dangerous to liberty, they ought not to be kept up; and that the military
should be kept under strict subordination to, and governed by, the civil power.
[15]
The Court
asserted that: "We cannot see that the act of 1840 is in conflict with
it... The defendant is not indicted for carrying arms in defence of the State,
nor does the act of 1840 prohibit him from so doing." [16] But in
Huntly, the Court had acknowledged that the restrictive language "for the
defence of the State" did not preclude an individual right. [17] The
Court then attempted to justify the necessity of this law:
Its only object is to preserve the peace
and safety of the community from being disturbed by an indiscriminate use, on ordinary
occasions, by free men of color, of fire arms or other arms of an offensive
character. Self preservation is the first law of nations, as it is of
individuals. [18]
The North
Carolina Supreme Court also sought to repudiate the idea that free blacks were
protected by the North Carolina Constitution's Bill of Rights by pointing out
that the Constitution excluded free blacks from voting, and therefore free
blacks were not citizens. Unlike a number of other state constitutions with
right to keep and bear arms provisions that limited this right only to
citizens, [19]
Article 17 guaranteed this right to the people -- and try as hard as they
might, it was difficult to argue that a "free person of color," in
the words of the Court, was not one of "the people."
It is one of the
great ironies that, in much the same way that the North Carolina Supreme Court
recognized a right to bear arms in 1843 -- then a year later declared that free
blacks were not included -- the Georgia Supreme Court did likewise before the
1840s were out. The Georgia Supreme Court found in Nunn v. State (1846) that a
statute prohibiting the sale of concealable handguns, sword-canes, and daggers
violated the Second Amendment:
The right of the whole people, old and
young, men, women and boys, and not militia only, to keep and bear arms of
every description, and not such merely as are used by the militia, shall not be
infringed, curtailed, or broken in upon, in the smallest degree; and all of
this for the important end to be attained: the rearing up and qualifying a
well-regulated militia, so vitally necessary to the security of a free State.
Our opinion is, that any law, State or Federal, is repugnant to the
Constitution, and void, which contravenes this right, originally belonging to
our forefathers, trampled under foot by Charles I. and his two wicked sons and
successors, reestablished by the revolution of 1688, conveyed to this land of
liberty by the colonists, and finally incorporated conspicuously in our own
Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the
laurel-crowned field of New Orleans, plead eloquently for this interpretation! [20]
Finally, after
this paean to liberty -- in a state where much of the population remained
enslaved, forbidden by law to possess arms of any sort -- the Court defined the
valid limits of laws restricting the bearing of arms:
We are of the opinion, then, that so far
as the act of 1837 seeks to suppress the practice of carrying certain weapons
secretly, that it is valid, inasmuch as it does not deprive the citizen of his
natural right of self- defence, or of his constitutional right to keep and bear
arms. But that so much of it, as contains a prohibition against bearing arms
openly, is in conflict with the Constitution, and void... [21]
"Citizen"?
Within a single page, the Court had gone from "right of the whole people,
old and young, men, women and boys" to the much more narrowly restrictive
right of a "citizen." The motivation for this sudden narrowing of the
right appeared two years later.
The decision
Cooper and Worsham v. Savannah (1848) was not, principally, a right to keep and
bear arms case. In 1839, the city of Savannah, Georgia, in an admitted effort
"to prevent the increase of free persons of color in our city," had
established a $100 per year tax on free blacks moving into Savannah from other
parts of Georgia. Samuel Cooper and Hamilton Worsham, two "free persons of
color," were convicted of failing to pay the tax, and were jailed. [22]
On appeal, counsel for Cooper and Worsham argued that the ordinance
establishing the tax was deficient in a number of technical areas; the
assertion of most interest to us is, "In Georgia, free persons of color
have constitutional rights..." Cooper and Worsham's counsel argued that
these rights included writ of habeas corpus, right to own real estate, to be
"subject to taxation," "[t]hey may sue and be sued," and
cited a number of precedents under Georgia law in defense of their position. [23]
Justice Warner
delivered the Court's opinion, most of which is irrelevant to the right to keep
and bear arms, but one portion shows the fundamental relationship between
citizenship, arms, and elections, and why gun control laws were an essential
part of defining blacks as "non-citizens": "Free persons of
color have never been recognized here as citizens; they are not entitled to
bear arms, vote for members of the legislature, or to hold any civil
office." [24] The
Georgia Supreme Court did agree that the ordinance jailing Cooper and Worsham
for non-payment was illegal, and ordered their release, but the comments of the
Court made it clear that their brave words in Nunn v. State (1846) about
"the right of the people," really only meant white people.
While settled
parts of the South were in great fear of armed blacks, on the frontier, the
concerns about Indian attack often forced relaxation of these rules. The 1798
Kentucky Comprehensive Act allowed slaves and free blacks on frontier
plantations "to keep and use guns, powder, shot, and weapons, offensive
and defensive." Unlike whites, however, a license was required for free
blacks or slaves to carry weapons. [25]
The need for
blacks to carry arms for self-defense included not only the problem of Indian
attack, and the normal criminal attacks that anyone might worry about, but he
additional hazard that free blacks were in danger of being kidnapped and sold
into slavery. [26] A
number of states, including Ohio, Indiana, Illinois, Michigan, and Wisconsin,
passed laws specifically to prohibit kidnapping of free blacks, out of concern
that the federal Fugitive Slave Laws would be used as cover for re-enslavement.
[27]
The end of
slavery in 1865 did not eliminate the problems of racist gun control laws; the
various Black Codes adopted after the Civil War required blacks to obtain a
license before carrying or possessing firearms or Bowie knives; these are
sufficiently well-known that any reasonably complete history of the
Reconstruction period mentions them. These restrictive gun laws played a part in
the efforts of the Republicans to get the Fourteenth Amendment ratified,
because it was difficult for night riders to generate the correct level of
terror in a victim who was returning fire. [28] It
does appear, however, that the requirement to treat blacks and whites equally
before the law led to the adoption of restrictive firearms laws in the South
that were equal in the letter of the law, but unequally enforced. It is clear
that the vagrancy statutes adopted at roughly the same time, in 1866, were
intended to be used against blacks, even though the language was race-neutral. [29]
The former
states of the Confederacy, many of which had recognized the right to carry arms
openly before the Civil War, developed a very sudden willingness to qualify
that right. One especially absurd example, and one that includes strong
evidence of the racist intentions behind gun control laws, is Texas.
In Cockrum v.
State (1859), the Texas Supreme Court had recognized that there was a right to
carry defensive arms, and that this right was protected under both the Second
Amendment, and section 13 of the Texas Bill of Rights. The outer limit of the
state's authority (in this case, attempting to discourage the carrying of Bowie
knives), was that it could provide an enhanced penalty for manslaughters
committed with Bowie knives. [30] Yet,
by 1872, the Texas Supreme Court denied that there was any right to carry any
weapon for self-defense under either the state or federal constitutions -- and
made no attempt to explain or justify why the Cockrum decision was no longer
valid. [31]
What caused the
dramatic change? The following excerpt from that same decision -- so offensive
that no one would dare make such an argument today -- sheds some light on the
racism that apparently caused the sudden perspective change:
The law under consideration has been
attacked upon the ground that it was contrary to public policy, and deprived
the people of the necessary means of self- defense; that it was an innovation
upon the customs and habits of the people, to which they would not peaceably
submit... We will not say to what extent the early customs and habits of the
people of this state should be respected and accommodated, where they may come
in conflict with the ideas of intelligent and well-meaning legislators. A
portion of our system of laws, as well as our public morality, is derived from
a people the most peculiar perhaps of any other in the history and derivation
of its own system. Spain, at different periods of the world, was dominated over
by the Carthagenians, the Romans, the Vandals, the Snovi, the Allani, the
Visigoths, and Arabs; and to this day there are found in the Spanish codes
traces of the laws and customs of each of these nations blended together in a
system by no means to be compared with the sound philosophy and pure morality
of the common law. [32]
[emphasis added]
This particular
decision is more open than most as to its motivations, but throughout the South
during this period, the existing precedents that recognized a right to open
carry under state constitutional provisions were being narrowed, or simply
ignored. Nor was the reasoning that led to these changes lost on judges in the
North. In 1920, the Ohio Supreme Court upheld the conviction of a Mexican for
concealed carry of a handgun--while asleep in his own bed. Justice Wanamaker's
scathing dissent criticized the precedents cited by the majority in defense of
this absurdity:
I desire to give some special attention
to some of the authorities cited, supreme court decisions from Alabama,
Georgia, Arkansas, Kentucky, and one or two inferior court decisions from New
York, which are given in support of the doctrines upheld by this court. The
southern states have very largely furnished the precedents. It is only
necessary to observe that the race issue there has extremely intensified a
decisive purpose to entirely disarm the negro, and this policy is evident upon
reading the opinions. [33]
While not
relevant to the issue of racism, Justice Wanamaker's closing paragraphs capture
well the biting wit and intelligence of this jurist, who was unfortunately,
outnumbered on the bench:
I hold that the laws of the state of
Ohio should be so applied and so interpreted as to favor the law-abiding rather
than the law-violating people. If this decision shall stand as the law of Ohio,
a very large percentage of the good people of Ohio to-day are criminals,
because they are daily committing criminal acts by having these weapons in
their own homes for their own defense. The only safe course for them to pursue,
instead of having the weapon concealed on or about their person, or under their
pillow at night, is to hang the revolver on the wall and put below it a large
placard with these words inscribed:
"The
Ohio supreme court having decided that it is a crime to carry a concealed
weapon on one's person in one's home, even in one's bed or bunk, this weapon is
hung upon the wall that you may see it, and before you commit any burglary or
assault, please, Mr. Burglar, hand me my gun." [34]
There are other
examples of remarkable honesty from the state supreme courts on this subject,
of which the finest is probably Florida Supreme Court Justice Buford's concurring
opinion in Watson v. Stone (1941), in which a conviction for carrying a handgun
without a permit was overturned, because the handgun was in the glove
compartment of a car:
I know something of the history of this
legislation. The original Act of 1893 was passed when there was a great influx
of negro laborers in this State drawn here for the purpose of working in
turpentine and lumber camps. The same condition existed when the Act was
amended in 1901 and the Act was passed for the purpose of disarming the negro
laborers and to thereby reduce the unlawful homicides that were prevalent in
turpentine and saw-mill camps and to give the white citizens in sparsely
settled areas a better feeling of security. The statute was never intended to
be applied to the white population and in practice has never been so applied. [35]
Today is not
1893, and when proponents of restrictive gun control insist that their
motivations are color-blind, there is a possibility that they are telling the
truth. Nonetheless, there are some rather interesting questions that should be
asked today. The most obvious question is, "Why should a police chief or
sheriff have any discretion in issuing a concealed handgun permit?" Here
in California, even the state legislature's research arm--hardly a nest of
pro-gunners--has admitted that the vast majority of permits to carry concealed
handguns in California are issued to white males. [36] Even
if overt racism is not an issue, an official may simply have more empathy with
an applicant of a similar cultural background, and consequently be more able to
relate to the applicant's concerns. As my wife pointedly reminded a police
official when we applied for concealed weapon permits, "If more police
chiefs were women, a lot more women would get permits, and be able to defend
themselves from rapists."
Gun control
advocates today are not so foolish as to openly promote racist laws, and so the
question might be asked what relevance the racist past of gun control laws has.
One concern is that the motivations for disarming blacks in the past are really
not so different from the motivations for disarming law-abiding citizens today.
In the last century, the official rhetoric in support of such laws was that
"they" were too violent, too untrustworthy, to be allowed weapons.
Today, the same elitist rhetoric regards law-abiding Americans in the same way,
as child-like creatures in need of guidance from the government. In the last
century, while never openly admitted, one of the goals of disarming blacks was
to make them more willing to accept various forms of economic oppression,
including the sharecropping system, in which free blacks were reduced to an
economic state not dramatically superior to the conditions of slavery.
In the
seventeenth century, the aristocratic power structure of colonial Virginia
found itself confronting a similar challenge from lower class whites. These
poor whites resented how the men who controlled the government used that power
to concentrate wealth into a small number of hands. These wealthy feeders at
the government trough would have disarmed poor whites if they could, but the
threat of both Indian and pirate attack made this impractical; for all white
men "were armed and had to be armed..." Instead, blacks, who had
occupied a poorly defined status between indentured servant and slave, were
reduced to hereditary chattel slavery, so that poor whites could be
economically advantaged, without the upper class having to give up its
privileges. [37]
Today, the
forces that push for gun control seem to be heavily (though not exclusively)
allied with political factions that are committed to dramatic increases in
taxation on the middle class. While it would be hyperbole to compare higher
taxes on the middle class to the suffering and deprivation of sharecropping or
slavery, the analogy of disarming those whom you wish to economically
disadvantage, has a certain worrisome validity to it.
Another point to
consider is that in the American legal system, certain classifications of
governmental discrimination are considered constitutionally suspect, and these
"suspect classifications" (usually considered to be race and
religion) come to a court hearing under a strong presumption of invalidity. The
reason for these "suspect classifications" is because of the long
history of governmental discrimination based on these classifications, and
because these classifications often impinge on fundamental rights. [38]
In much the same
way, gun control has historically been a tool of racism, and associated with
racist attitudes about black violence. Similarly, many gun control laws impinge
on that most fundamental of rights: self-defense. Racism is so intimately tied
to the history of gun control in America that we should regard gun control
aimed at law-abiding people as a "suspect idea," and require that the
courts use the same demanding standards when reviewing the constitutionality of
a gun control law, that they would use with respect to a law that discriminated
based on race.
____________________________________
NOTES:
1. Thomas N.
Ingersoll, "Free Blacks in a Slave Society: New Orleans, 1718-1812",
_William and Marry Quarterly_, 48:2 [April, 1991], 178-79.
2. Daniel H. Usner,
Jr., _Indians, Settlers, & Slaves in a Frontier Exchange Economy: The Lower
Mississippi Valley Before 1783_, (Chapel Hill, N.C.: University of North
Carolina Press, 1992), 139, 165, 187.
3. Michael C. Meyer
and William L. Sherman, _The Course of Mexican History_, 4th ed., (New York,
Oxford University Press: 1991), 216.
4. Ingersoll,
192-200. Benjamin Quarles, _The Negro in the Making of America_, 3rd ed., (New
York, Macmillan Publishing: 1987), 81.
5. Theodore
Brantner Wilson, _The Black Codes of the South_ (University of Alabama Press:
1965), 26-30.
8. Harriet Jacobs
[Linda Brant], _Incidents in the Life of a Slave Girl_, (Boston: 1861), in Henry
Louis Gates, Jr., ed., _The Classic Slave Narratives_, (New York, Penguin
Books: 1987), 395-396.
9. Francis Newton
Thorpe, _The Federal and State Constitutions, Colonial Charters, and Other
Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming
The United States of America_, (Washington, Government Printing Office: 1909),
reprinted (Grosse Pointe, Mich., Scholarly Press: n.d.), 6:3424.
19. Early state
constitutions limiting the right to bear arms to citizens: Connecticut (1818),
Kentucky (1792 & 1799), Maine (1819), Mississippi (1817), Pennsylvania
(1790 -- but not the 1776 constitution), Republic of Texas (1838), State of
Texas (1845).
25. Juliet E. K.
Walker, _Free Frank: A Black Pioneer on the Antebellum Frontier_, (Lexington,
KY, University Press of Kentucky: 1983), 21. This is an inspiring biography of
a slave who, through hard work moonlighting in the production of saltpeter (a
basic ingredient of black powder) and land surveying, saved enough money to buy
his wife, himself, and eventually all of his children and grandchildren out of
slavery -- while fighting against oppressive laws and vigorous racism. Most
impressive of all, is that he did it without ever learning to read or write.
27. Stephen
Middleton, _The Black Laws in the Old Northwest: A Documentary History_,
(Westport, Conn., Greenwood Press: 1993), 27-32, 227-240, 309-314, 353-357,
403-404.
28. Michael Les
Benedict, _The Fruits of Victory: Alternatives to Restoring the Union_,
1865-1877, (New York, J.B. Lippincott Co.: 1975), 87. Francis L. Broderick,
_Reconstruction and the American Negro, 1865-1900_, (London, Macmillan Co.:
1969), 21. Dan T. Carter, _When The War Was Over: The Failure of
Self-Reconstruction in the South, 1865- 1867_, (Baton Rouge, Louisiana State
University Press: 1985), 219-221. Eric Foner, _Reconstruction_, (New York,
Harper & Row: 1988), 258-259.
36. Assembly Office
of Research, _Smoking Gun: The Case For Concealed Weapon Permit Reform_,
(Sacramento, State of California: 1986), 5.
37. Edmund S.
Morgan, "Slavery and Freedom: The American Paradox," in Stanley N.
Katz, John M. Murrin, and Douglas Greenberg, ed., _Colonial America: Essays in
Politics and Social Development_, 4th ed., (New York: McGraw-Hill, Inc, 1993),
280.
38. Thomas G.
Walker, "Suspect Classifications", _Oxford Companion to the Supreme
Court of the United States_, (New York, Oxford University Press: 1992), 848.
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