The Racist Roots of Gun Control
http://www.law.ukans.edu/jrnl/cramer.htm
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Clayton E. Cramer
*17* The historical record provides compelling evidence that racism underlies gun control laws -- and not in any subtle way. Throughout much of American history, governments openly stated that gun control laws were useful for keeping blacks and Hispanics "in their place" and for quieting the racial fears of whites.
Racist arms laws predate the establishment of the United States. This is not surprising. Blacks in the New World were often slaves, and 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 blacks could actually handle freedom often led New World governments to disarm allblacks, both slave and free.
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."(1) If a black refused to stop on demand and was on horseback, the colonist was authorized to "shoot to kill."(2) In Louisiana, the fear of Indian attack and the importance of hunting to the colonial economy necessitated that slaves sometimes possess firearms. The colonists had to balance their fear of the Indians against their fear of their slaves. As a result, French Louisiana passed laws that allowed slaves and free blacks to possess firearms only under very controlled conditions.(3) Similarly, in the sixteenth century the colony of New Spain, terrified of black slave revolts, prohibited all blacks, free and slave, from carrying arms.(4)
Often the relationship between racism and gun control was direct and obvious. On other occasions the connection was more complex. One example of a complex relationship between economic struggle, slavery, and possession of arms can be found in seventeenth-century Virginia. The aristocratic power structure of colonial Virginia confronted a political 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, but the threat of both Indian and pirate attack made this impractical; all white men "were armed and had to be armed."(5) Instead of empowering poor whites, blacks, who had occupied a poorly defined status between indentured servant and slave, were reduced to hereditary chattel slavery. In this way poor whites could be economically advantaged without the upper class having to give up its privileges.(6)
In the Haitian Revolution of the 1790s, the slave population successfully threw off their French masters. As the Revolution degenerated into a race war, existing fears increased in the French *18* Louisiana colony and among whites in the American slave states.(7) When the first U.S. official arrived in New Orleans in 1803 to take charge of the 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." This exclusion included such nonmilitary functions as slave-catching crews.(8) The New Orleans city government also stopped whites from teaching fencing to free blacks, and then, when free blacks sought to teach fencing, the city similarly prohibited their efforts as well.(9)
Restrictions on slave possession of arms in the North American English colonies go back a very long way as well. Arms restrictions on free blacks in slave states, while present, at least allowed free blacks to obtain a license to possess a gun in their homes, or with good reason, to even carry a gun. Whites were not similarly restricted.
Arms restrictions on free blacks increased dramatically after Nat Turner's Rebellion in 1831 caused the South to become increasingly irrational in its fears.(10) In response to Turners Rebellion, the Virginia Legislature made it illegal for free blacks "to keep or carry any firelock of any kind, any military weapon, or any powder or lead."(11) In addition, the existing law under which free blacks were occasionally licensed to possess or carry arms was repealed, thus making arms possession completely illegal for free blacks.(12) 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, but did not have powder or a weapon in which to fire it, was considered sufficient reason for a frenzied mob to discuss summary execution of the owner.(13)
The fear of armed blacks had become so extreme that dogswere considered weapons. Maryland prohibited free blacks from owning dogs without a license and authorized any white to kill an unlicensed dog owned by a free black.(14) Mississippi went further and prohibited any ownership of a dog by a black person, without even a provision for licensed ownership.(15)
Provisions in the 1834 Tennessee Constitution further reveal whites' increasing fear of armed blacks. Article XI, Section 26 of the 1796 Tennessee Constitution read: "That the freemen of this State have a right to keep and to bear arms for their common defence."(16) The 1834 constitution was revised to: "That the free white men of this State have a right to keep and to bear arms for their common defence."(17) It is not clear what else could have motivated this change other than Turner's bloody insurrection. The year before the new constitution was adopted, the Tennessee Supreme Court had recognized the right to bear arms as an individual guarantee, but there is no evidence that this decision caused the change.(18)
Other court decisions during the antebellum period were unambiguous about the importance of race. In State v. Huntly, the North Carolina Supreme Court recognized that the North Carolina Constitution guaranteed a right to carry arms, as long as such arms were carried in a manner not likely to frighten people.(19) The following year the North Carolina Supreme Court decided State v. Newsom. The full significance of the Newsomdecision would not be apparent 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 thereof, he or she shall be guilty of a misdemeanor, and may be indicted therefor.(20)
Elijah Newsom, "a free person of color," was indicted under the Statute 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.(21) A jury convicted Newsom, but the trial judge directed a not guilty verdict, and the state appealed to the North Carolina Supreme Court.(22) Newsom's attorney argued that the Statute, which required free blacks to obtain a license to "keep and bear arms," violated both the Second Amendment to the U.S. Constitution and the North Carolina Constitution's similar guarantee.(23) The North Carolina Supreme Court refused to accept that the Second Amendment was a limitation on state laws. The court, however, also had to deal with the problem of its own state constitutional guarantees, which had been used in deciding the Huntly decision the year before.
Article seventeen 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.(24)
The Newsom 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."(25) But in Huntly, the court had acknowledged that the seemingly restrictive language "for the defence of the State" included an individual right.(26) The Newsomcourt then attempted to justify the necessity of this law:
*19* 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.(27)
The North Carolina Supreme Court also sought to repudiate the idea that North Carolina's Bill of Rights protected free blacks by pointing out that it excluded free blacks from voting. Therefore, the court reasoned, free blacks were not citizens. But unlike a number of other state constitutions that limit the right to keep and bear arms to citizens,(28) Article seventeen of the North Carolina Bill of Rights guaranteed this right to the people(29) -- 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 close of the decade. The Georgia Supreme Court found in Nunn v. State 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 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!(30)
Finally, after this paean to liberty -- in a state where much of the population remained enslaved and 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. . . .(31)
"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 narrow right of a "citizen." The motivation for this sudden narrowing of the right -- that blacks were not citizens -- appeared two years later.
Cooper and Worsham v. Mayor of Savannah 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 one hundred dollar 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.(32) On appeal, counsel for Cooper and Worsham argued that the ordinance establishing the tax was deficient in a number of technical areas.(33) Of most interest to us is counsel's assertion that "
n Georgia, free persons of color have constitutional rights. . . ."(34) Cooper and Worsham's counsel argued that these included the right to writ of habeas corpus, the right to own real estate, the right to be "subject to taxation," and the right to "sue and be sued." Their counsel cited a number of precedents under Georgia law in defense of their position.(35)
Justice Warner delivered the court's opinion. One portion of the opinion 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."(36) The Georgia Supreme Court did agree that the ordinance jailing Cooper and Worsham for nonpayment was illegal and ordered their release,(37) but the comments of the court make it clear that their brave words in Nunn v. State about "the right of the people" really only meant white people.(38)
Finally, in the infamous Dred Scott decision, the U.S. Supreme Court showed that it shared this understanding that citizenship excluded blacks and explained the relationship between citizenship and the carrying of arms:
*20* It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.(39)
While settled parts of the South were in great fear of armed blacks, concerns about Indian attack often forced relaxation of these rules on the frontier. 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."(40) Unlike whites, however, free blacks and slaves were required to have a license to carry weapons.(41)
Blacks needed to carry arms for self-defense not only against criminal attacks that any person, white or black, might worry about, but they also needed arms for protection against the additional hazard of being kidnapped and sold into slavery.(42) A number of states, including Ohio, Indiana, Illinois, Michigan, and Wisconsin, passed laws specifically to prohibit kidnapping of free blacks. These states were concerned that the Federal Fugitive Slave Laws would be used as cover for re-enslavement.(43)
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 Codes are sufficiently well-known that any reasonably complete history of the Reconstruction period mentions them. These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.(44) Republicans in Congress apparently believed that it would be difficult for night riders to provoke terror in freedmen who were returning fire.
It appears that the Fourteenth Amendments 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 in 1866, the same year the arms control laws were adopted, were intended to be used against blacks, even though the language was race-neutral.(45)
The former states of the Confederacy, many of which had recognized the right to carry arms openly before the Civil War, developed a greater willingness to qualify that right after the passage of the Fourteenth Amendment. One especially absurd example of how far a state was willing to go to qualify the right to bear arms, and one that includes strong evidence of the racist intentions behind gun control laws, is a decision made in Texas. In 1859 in Cockrum v. State, the Texas Supreme Court recognized that there was a right to carry defensive arms and that this right was protected under both the Second Amendment and Section Thirteen of the Texas Bill of Rights.(46) 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, but could not prohibit their being carried.(47) Yet, by 1872 in English v. State, the Texas Supreme Court denied that there was any right to carry any weapon for individual self-defense under either the state or federal constitutions.(48) Rather than explaining or justifying why the Cockrum decision was no longer valid, the court merely explained that the issue of the right to bear arms "was not fairly before the court" in Cockrum.(49)
What caused the dramatic change? The following excerpt from the English decision reveals how racism permeated legal thinking:
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 *21* 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.(50)
Throughout the South during the post-war period, the existing precedents that recognized a right to openly carry arms under state constitutional provisions and the Second Amendment were being narrowly construed or simply ignored.(51) The apparent goal of the gun control and vagrancy laws was to intimidate the freedmen into an economically subservient position. By making the freedmen defenseless, employers could be more confident that intimidation would keep their hired hands "in line."
Nor was the intent that led to these laws lost on judges in the North. In 1920, the Ohio Supreme Court upheld the conviction of a Mexican for carrying a concealed handgun -- while he was asleep in his own bed.(52) Justice Wanamaker's scathing dissent criticized the precedents cited by the majority in defense of this absurdity:
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