[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possess or carry arms was also repealed, making arms possession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]
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]
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.
*** Clayton E.
Cramer is a software engineer with a telecommunications manufacturer in
Northern California. His first book, ...By The Dim And Flaring Lamps:
The Civil War Diary of Samuel McIlvaine..., was published in 1990.
...For The Defense of Themselves And The State: The Original Intent
& Judicial Interpretation of the Right To Keep And Bear Arms... will
be published by Greenwood/Praeger Press in 1994.
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.
6. Stanley Elkins, _Slavery_, (Chicago, University of Chicago Press: 1968), 220.
7. Eric Foner, ed., _Nat Turner_, (Englewood Cliffs, N.J., Prentice-Hall: 1971), 115.
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.
10. Thorpe, 6:3428.
11. Simpson v. State, 5 Yerg. 356 (Tenn. 1833).
12. State v. Huntly, 3 Iredell 418, 422, 423 (N.C. 1843).
13. State v. Newsom, 5 Iredell 181, 27 N.C. 250 (1844).
14. State v. Newsom, 5 Iredell 181, 27 N.C. 250, 251 (1844).
15. Thorpe, 5:2788.
16. State v. Newsom, 5 Iredell 181, 27 N.C. 250, 254 (1844).
17. State v. Huntly, 3 Iredell 418, 422 (N.C. 1843).
18. State v. Newsom, 5 Iredell 181, 27 N.C. 250, 254 (1844).
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).
20. Nunn v. State, 1 Ga. 243, 250, 251 (1846).
21. Nunn v. State, 1 Ga. 243, 250, 251 (1846).
22. Cooper and Worsham v. Savannah, 4 Ga. 68, 69 (1848).
23. Cooper and Worsham v. Savannah, 4 Ga. 68, 70, 71 (1848).
24. Cooper and Worsham v. Savannah, 4 Ga. 68, 72 (1848).
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.
26. Walker, 73.
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.
29. Foner, _Reconstruction_, 200-201.
30. Cockrum v. State, 24 Tex. 394, 401, 402, 403 (1859).
31. English v. State, 35 Tex. 473, 475 (1872).
32. English v. State, 35 Tex. 473, 479, 480 (1872).
33. State v. Nieto, 101 Ohio St. 409, 430, 130 N.E. 663 (1920).
34. State v. Nieto, 101 Ohio St. 409, 436, 130 N.E. 663 (1920).
35. Watson v. Stone, 4 So.2d 700, 703 (Fla. 1941).
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.
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.
ORIGINALLY PUBLISHED
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The historical record provides compelling evidence that racism underlies gun control laws -- and not in any subtle way. 
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