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The Dark Secret of Jim Crow and the Racist Roots of Gun Control
By Dave Kopel America's 1st Freedom, March 2011
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.
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. |
