The Racist Roots of Gun Control |
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. |
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. |
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). |