Editor’s note: In his concurring statement in ‘McDonald v. Chicago’ — the Supreme Court case affirming that the Second Amendment ensures an individual right to own firearms — Justice Clarence Thomas discussed the history of gun-control laws, whose purpose was to stifle the rights of minorities and to prevent African-Americans from defending themselves against the likes of the Ku Klux Klan. Excerpts from Thomas’ opinion appear within.
In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery found that to do so, it was necessary to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders “could not hold [slaves] safely where dissent was permitted,” so they decided that “all dissent must be suppressed by the strong hand of power.”
The measures they used were ruthless, repressed virtually every right recognized in the Constitution, and demonstrated that preventing only discriminatory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point. The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion.
Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50 percent of the population in Mississippi and South Carolina.
The Southern fear of slave rebellion was not unfounded. Although there were others, two particularly notable slave uprisings heavily influenced slaveholders in the South. In 1822, a group of free blacks and slaves led by Denmark Vesey planned a rebellion in which they would slay their masters and flee to Haiti. The plan was foiled, leading to the swift arrest of 130 blacks, and the execution of 37, including Vesey.
Still, slaveowners took notice — it was reportedly feared that as many as 6,600 to 9,000 slaves and free blacks were involved in the plot. A few years later, the fear of rebellion was realized. An uprising led by Nat Turner took the lives of at least 57 whites before it was suppressed.
The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (even the Bible) was a criminal offense punished severely in some States. Virginia made it a crime for a member of an “abolition” society to enter the State and argue “that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery.”
Other States prohibited the circulation of literature denying a master’s right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material. Many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well.
Florida made it the “duty” of white citizen “patrol[s] to search negro houses or other suspected places, for firearms.” If they found any firearms, the patrols were to take the offending slave or free black “to the nearest justice of the peace,” whereupon he would be “severely punished” by “whipping on the bare back, not exceeding 39 lashes,” unless he could give a “plain and satisfactory” explanation of how he came to possess the gun.
Southern blacks were not alone in facing threats to their personal liberty and security during the antebellum era. Mob violence in many Northern cities presented dangers as well . . .
After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “[W]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.”
As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. Some States formally prohibited blacks from possessing firearms. Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. Additionally, “[T]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.”
As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African-Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.”
In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.”
Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem.
One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation . . . .The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial:
“We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms . . . .All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.
“We are glad to learn that [the] Commissioner for this State . . . has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present.”
The same month, The Loyal Georgian carried a letter to the editor asking “Have colored persons a right to own and carry fire arms? — A Colored Citizen.” The editors responded as follows:
“Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States . . . .”
These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States’ efforts to retain it, violated the constitutional rights of individuals — rights the abolitionists described as among the privileges and immunities of citizenship. The problem abolitionists sought to remedy was that, under Dred Scott, blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks . . . .
Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.
Take, for example, the Hamburg Massacre of 1876.There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.”
Organized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of federal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the ’76 Association spread terror among blacks and white Republicans by breaking up Republican meetings, threatening political leaders, and whipping black militiamen. These groups raped, murdered, lynched, and robbed as a means of intimidating, and instilling pervasive fear in, those whom they despised.
Although Congress enacted legislation to suppress these activities, Klan tactics remained a constant presence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least 3,446 reported lynchings of blacks in the South. They were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in 1955 for allegedly whistling at a white woman. The fates of other targets of mob violence were equally depraved.
The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “[T]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.”
Sometimes, as in Cooper’s case, self defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. The experience left him with a sense, “not of powerlessness,” but of the “possibilities of salvation” that came from standing up to intimidation
In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood –just as the Framers of the Second Amendment did — that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.
July 18, 2010
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