***** [Copyright © 1995 Chicago-Kent College of Law, Illinois Institute of Technology. Originally published as 70 Chi.-Kent L. Rev. 1307-1335 (1995). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from www.kentlaw.edu/cgi-bin/lawrev-order or Chicago-Kent Law Review, Chicago-Kent College of Law, Illinois Institute of Technology, 565 West Adams Street, Chicago, Illinois 60661, 312-906-5190.]
"NEVER INTENDED TO BE APPLIED TO THE WHITE POPULATION": FIREARMS REGULATION AND RACIAL DISPARITY -- THE REDEEMED SOUTH'S LEGACY TO A NATIONAL JURISPRUDENCE?[*]
Robert J. Cottrol[**] and Raymond T. Diamond[***]
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.... [T]he 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.... [I]t is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute.... [T]here 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.[1]
Introduction
This Paper is part of our ongoing effort[2] to explore the connections between racial conflict[3] in American history and the evolution of (p.1308 )the notion of the right to bear arms in American constitutionalism.[4] (p.1309) Although there has been a growing awareness on the part of historians and legal scholars of the connection between the attempt of Southern states to restrict the right to bear arms on the part of newly emancipated blacks immediately after the Civil War and the enactment of the Fourteenth Amendment and contemporaneous civil rights legislation,[5] the study of the connection between racial conflict and the jurisprudence of the right to bear arms has hardly begun.
This Paper hopes to begin that inquiry. It asks questions about the South during the eras of Reconstruction and Redemption. To what extent did the white South, which had historically attempted to prevent blacks from having access to firearms,[6] try to restrict black access to arms after the enactment of the Fourteenth Amendment?[7] (p.1310) Were various statutes in Southern states restricting either the carrying of concealed pistols or prohibiting the sale of certain types of firearms[8] enacted with racial motives in mind? And if the motives behind these statutes were racial, which of several possible racial motives played the predominate role in influencing this type of legislation? Were legislators primarily concerned with maintaining traditional patterns of racial control? Did they see provisions that would disarm blacks as measures that would deprive blacks of the means of resisting the extra-legal violence that played such a crucial role in Southern Redemption, the re-establishment of white rule in the South at the turn of the century?[9] Or were measures that would work to disarm blacks enacted in response to the growing stereotype of the Negro as brute, which began to expand in the white South's consciousness in the years when Jim Crow was being implemented?[10] To what extent were Southern firearm restrictions, like restrictions that were developing in other parts of the nation,[11] a response to the view that new dangerous classes were beginning to emerge--classes that posed a danger not only to the better elements of society, but indeed classes whose members needed to be protected from the more vicious in their ranks?
If the motive behind restrictive firearms legislation raises interesting questions, the questions of enforcement and the judicial response to such legislation raise even more questions. If, as Judge Buford's concurrence indicated, these measures were enforced and only deemed acceptable with a significant amount of racial discrimination,[12] (p.1311) the story of the judicial treatment of these measures provides another chapter in the history of the evisceration of the notion of equal protection in American constitutionalism during the Jim Crow era.[13] It also provides an important chapter in the development of the jurisprudence of the right to keep and bear arms.
This Paper explores some of the questions raised by restrictive firearms legislation and the response of state judiciaries to that legislation. It is especially concerned with whether the experience of trying to fashion judicial doctrine that would sustain such legislation helped to alter constitutional notions concerning the right to bear arms. Our research in this area is still in the preliminary stages. For the most part, our conclusions are not definitive. Instead we intend to outline what our findings suggest at this point in our research as an indication of future directions that our research and, we hope, the research of others might take in this area.
That having been said, this Paper is divided into four parts. The first discusses the importance and prevalence of arms in Southern history and how that importance early on was recognized in state court jurisprudence in the region. The second part examines the enactment of state statutes regulating the carrying and purchase of firearms during and after Reconstruction and examines possible discriminatory motivations behind their passage. The third section examines judicial efforts to reconcile the new postbellum restrictions on the right to bear arms with the South's robust cultural and legal tradition supporting that right. The Paper's concluding section discusses the difficulty of separating diverse racial and other motives behind the enactment of the statutes under consideration, the judicial response to such statutes, and the adoption of Southern precedents in this area in other jurisdictions.(p.1312)
I. Arms, Rights, and Race in Early Southern Law and Culture...
...B. Antebellum Constitutional and Statutory Enactments
As they entered the period of Reconstruction, it was clear that, like their Northern sisters, the Southern states had long recognized the right, even the duty, to keep and carry arms. This right and duty were occasioned in part by the utility of arms in providing for the common defense against threats both from without and within. In the (p.1314) antebellum period, the threat from without was shared by Northern and Southern states, for both were threatened by the existence and possible responses of the Native American population and by foreign powers with designs on and, indeed, footholds in North America.[31] The threat from within, however, was not shared, for the South's large population of slaves constituted a potential danger to the free white population, a danger that had to be controlled.[32] Thus, the Southern states had long experimented with measures designed to disarm their black population, both slave and free.[33]...
If the Southern states actively undertook firearms regulation before the Civil War, such legislation was not authorized explicitly by state constitutions. By negative inference, legislatures in Virginia, Delaware, Maryland, Georgia, and Louisiana had constitutional power in this area, for the antebellum constitutions of none of these states explicitly recognized a right to keep and bear arms.[34] Yet even the earliest constitutions of each of these states recognized the existence and importance of the militia in the scheme of constitutional liberty. Such recognition by implication spoke to and perhaps recognized a right to arms. A "well-regulated militia," stated the Virginia Bill of Rights, would be "composed of the body of the people, trained to arms."[35] The Delaware constitution made no such declaration, but recognized the militia's existence in authorizing its officers to hold seats in the legislature if elected[36] and recognized the militia's importance by forbidding standing armies "without the consent of the legislature."[37] Like the Virginia constitution, the Maryland constitution declared that the militia "is the proper and natural defence of a (p.1315) free government."[38] The Virginia Bill of Rights declared the militia a "safe"[39] defense as well, to be contrasted with that to be provided by a standing army. Such armies, at least in time of peace, were denominated both in Virginia and Maryland as "dangerous to liberty."[40] Louisiana is the sole exception among this group in that it maintained and gave constitutional recognition to, but did not constitutionally and explicitly recognize, the importance of a militia.[41] Thus, at least in these states that spoke to the importance of a militia, a right to bear arms might be inferred from this importance, and the regulation of firearms might be limited by the importance of the militia in the very maintenance of the state.
Yet if these states recognized a right to bear arms only by implication, other states would do so explicitly. The North Carolina Constitution of 1776 declared that "the people have a right to bear arms, for the defence of the State."[42] Kentucky's constitutions of 1792 and 1799 (p.1316) stated a right of "citizens to bear arms in defence of themselves and the State...."[43] Mississippi in 1817 and 1832,[44] Kentucky in 1850,[45] and Texas in 1836[46] declared the right to bear arms in similar language, and Missouri in 1820 declared this right to belong to "the people."[47]
An important distinction among these statutes is that only some of them explicitly spoke to a right to individual self-defense. This difference would take on significance as state courts encountered questions of the legitimacy of states controlling the use and carriage of firearms. A second distinction, between rights belonging to "the people" and those belonging to "citizens," arguably makes no difference,[48] but calls into question whether other distinctions might be made between the people or the citizens, on the one hand, and others.
Certainly, such distinctions were made. Setting aside the accuracy of Chief Justice Taney's dictum in the Dred Scott case, that persons of African descent were not, at the time of the Revolution and the framing of the Constitution, part of "the people" and thus not citizens of the United States as a nation,[49] it was increasingly apparent throughout the antebellum period that Southern states did not consider even free blacks to be citizens of the states themselves.(p.1317)
This was certainly the case in North Carolina, as State v. Newsom,[50] an 1844 case involving the right to bear arms, indicates. In Newsom, the North Carolina Supreme Court decided the constitutionality of a statute requiring a license for free blacks to keep or carry arms.[51] The North Carolina Constitution of 1776 provided in part "[t]hat the people have a right to bear arms, for the defense of the State ...."[52] Only a year previous, the court had determined that this right included an individual right.[53] In Newsom, however, the court determined that although this individual right to arms extended to "the people" and thus to all citizens, free blacks were not citizens and were thus excluded from exercising the right.
Other states, too, denied blacks the right to arms that was guaranteed all citizens. Newly constituted as a state and fresh with the egalitarian ideals of the Revolution, Tennessee in its original constitution declared in 1796 a right of all "freemen" to bear arms for the common defense.[54] Tennessee would be explicit in 1834 by limiting the right to "free white men."[55] This was the tack taken by Arkansas in 1836 and Florida in 1838, which in identical language declared "[t]hat the free white men of this State shall have a right to keep and to bear arms for their common defence."[56]
One way or another, then, either because states had been explicit about limiting the right to bear arms to free white men or because blacks were defined outside the class of citizen, the antebellum legislatures of the Southern states were free to control the access of their black population to firearms, and they exercised this freedom. At one end of the spectrum of controls was Mississippi, which forbade arms to both slaves and free blacks after 1852.[57] At the other end was Kentucky, which did not legislate the possession and carrying of arms by blacks, but instead provided that a slave or free black who "willfully (p.1318) and maliciously" shot at a white person would suffer the death penalty.[58] Between these two choices were a variety of alternatives. Slaves were generally governed under less restrictive measures, perhaps on the theory that they were already under the supervision of their masters.[59] Free blacks fared harshly under antebellum firearms controls,[60] as they did generally under Southern regimes,[61] in which they served as a threat to the system of racial oppression, both because they served as a bad example to slaves and because they might instigate or participate in a rebellion by their slave brethren.[62] Free blacks were subject to a variety of measures meant to limit black access to firearms through licensure or to eliminate such access through outright prohibitions on firearms ownership.[63]
C. Judicial Interpretation in a Region at Arms
It was in the South as a region that state courts first began the effort to reconcile the right to arms with restrictions designed to promote public safety....In many ways it was natural that the South would play this pioneering role. If guns and a right to arms have been a peculiar part of American culture,[65] they have been perhaps even more distinctively a part of the lawways and folkways of the South.[66] Almost from the beginning, the unique need to maintain white domination in the nation's first (p.1319) truly multi-racial society[67] led the South to a greater vigor with respect to the private possession of arms and to the universal depulization of the white population as a means of insuring racial control.[68] This pattern would begin long before the American evolution and the subsequent adoption of the Second Amendment.[69]
And it would continue and be strengthened well into the nineteenth century. After the War of 1812, at a time when national commentators came to decry the decreased willingness of the population as a whole to participate in militia training and to fear that neglect might erode either the right to arms or the effectiveness of private arms in resisting potential tyranny,[70] the practice of widespread active militia[71] participation would remain a vigorous part of Southern culture.(p.1320)
Southern culture would also come to sanction the use of arms in contexts that went far beyond either personal or communal defense. For white men, the use of arms to resolve personal disputes and the frequent preference for dueling instead of use of the courts to redress insults and other slights, real or perceived, helped lend a different flavor to the Southern experience with arms--a flavor that was remarkable even in a nation distinguished by widespread firearms ownership and use.[72]
It was in this Southern atmosphere that in so many ways encouraged the use of arms, that legislative bodies first came to consider, on a widespread level, limits on the right to arms. The first set of limits were widespread throughout the South and generally agreed upon, that blacks whether slave or free would have severely limited access to firearms.[73] This form of firearms control provoked little controversy in the white South, even amongst slave-owners who felt secure (p.1321) enough to allow their own slaves to possess firearms and hunt on their land.[74]
But it was the attempt of some Southern legislatures to regulate the behavior of whites, to set limits on the manner in which white people could carry arms, that brought about controversy and an attempt to develop a jurisprudence that balanced the right to arms with legislation done in the interest of public safety. Three cases construing legislation of this period bear enduring significance. Two, Aymette v. State[75] and Nunn v. State,[76] pioneered analytical constructs that face even today's state and federal courts. The third, Bliss v. Commonwealth,[77] represents the road not taken....
II. Postbellum Development of Restrictive Interpretations of the Right to Bear Arms
A. Accommodating Freedom in the Immediate Post-Civil War Era
By the end of the Civil War, the white South knew that slavery was doomed....It was important to white Southerners, however, to maintain as much of the status quo as possible. If freedom for the slaves was inevitably to come, in the form of the Thirteenth Amendment as it did or otherwise, Southern legislatures did their best to assure that such freedom at best would be nominal. With passage of the "Black Codes," Southern legislatures tried to guarantee that the freedmen would assume nearly their same positions as slaves.
The Black Codes included laws limiting the rights of blacks: restrictions on the right to testify against whites,[100] the allowance of onerous enforcement of labor contracts,[101] restrictions on the right to travel, to assemble, and to engage in certain businesses,[102] and the requirement that blacks work for and be responsible to whites.[103] Racial restrictions such as these found their way as well into state constitutions passed at the end of the Civil War[104] and, similar to like (p.1325)statutory law, were intended to achieve the effect of keeping blacks in their place.
Yet whatever their degree of discomfort with the arming of slaves or free blacks before emancipation and whatever racist provisions found their way into legislation or other provisions of constitutional law after emancipation, manipulation of their constitutions respecting the right to arms was not a universal device among the Southern States. Virginia effected no change in that article of its Bill of Rights recognizing the right to arms.[105] South Carolina broke with the example of previous, its constitutions of 1776, 1778, and 1790, to establish with the Constitution of 1868 the right to keep and bear arms for the common defense.[106] Mississippi and North Carolina essentially effected no change in the constitutional right to arms. What had been a right of "every citizen" to bear arms for self-defense and common defense under the Mississippi constitutions of 1817 and 1832[107] became a right of "all persons" to self-defense in the constitution of 1868.[108] North Carolina merely replaced the 1776 constitutional provision "[t]hat the people have a right to bear arms for the defense of the State"[109] with the language of the Second Amendment.[110]
Yet concerns about arms in the hands of blacks made their way into other constitutions promulgated in the years after the Civil War, when the confederate states were under occupation by union forces. Racial animus seems to have motivated two distinct patterns of constitutional changes in the right to arms. The first is demonstrated in Arkansas and Florida, where there was initial contraction of the right and later expansion on a non-racial basis. In 1864 Arkansas continued (p.1326) the restriction of the right to arms to free white men,[111] but in 1868 extended the right to the citizens of the state.[112] In 1865 Florida eliminated the right to bear arms altogether,[113] but in 1868 returned the right to bear arms to its constitution, extending the right from one in favor of the common defense to include the right to self-defense.[114]
The second and more prominent pattern of constitutional development respecting the right to arms was an initial expansion of the right on a non-racial basis, only later to provide for ostensibly nonracial restrictions of the right. Tennessee lies outside but approaches the pattern, for the state called but one constitutional convention in the early post-war years. As a result of that convention, the 1870 Constitution expanded the right to arms to all citizens from all free white men, but at the same time it provided that the legislature would "have the power, by law, to regulate the wearing of arms with a view to prevent crime."[115]
Other states, however, fit the pattern exactly. Georgia, for example, in 1865 explicitly instituted a constitutional right to arms,[116] a right previously recognized as fundamental in Nunn v. State[117] but which had not been enshrined in the state constitution. The new provision adopted the language of the Second Amendment[118] and in effect confirmed the reasoning of Nunn. Yet, in 1868 Georgia provided as well that the legislature had the authority to "prescribe by law the manner in which arms may be borne,"[119] thus rejecting the absolutist position of Nunn. Texas in 1866 reinstituted the right to bear arms for self-defense and common defense[120] and in 1868 added the proviso that the legislature might regulate the right.[121] Louisiana in 1864 declared (p.1327)that "[a]ll able-bodied men shall be armed and disciplined for its defence,"[122] liberalizing the rule of previous constitutions limiting the duty to be armed to free white men.[123] Yet the Louisiana Constitution of 1868 eliminated the duty of able-bodied males to be armed and provided instead that the legislature organize the militia of the state;[124] able men of requisite age would merely be "subject to military duty" at the discretion of the state.[125]...
...B. Constitutional Change and the Right to Arms
If white Southerners after the Civil War desired to maintain, as closely as possible, their former slaves' legal status, they realized too that obvious and direct measures to this end would be seen to violate the Fourteenth Amendment and so be ineffective. The constitutions adopted by the Southern states after the Fourteenth Amendment came into effect or in anticipation of its ratification were not explicit in any discrimination against blacks, and neither were the laws the Southern states adopted.
Before the Fourteenth Amendment, these states had been free to enact discriminatory weapons restrictions as an instrument of racial subjugation. Mississippi in 1865, for example, required blacks not in military service to obtain a license to carry firearms, ammunition, and certain other lethal weapons.[137] Louisiana in 1865 prohibited any (p.1329) black not in military service from carrying any kind of weapon without the approval of an employer and the local chief of patrol.[138] Alabama made it entirely unlawful for any black "to own fire-arms, or carry about his person a pistol or other deadly weapon."[139] Whites in no Southern state were restricted in like fashion. Such explicitly racial restrictions could not survive Fourteenth Amendment scrutiny, however. A new tack was needed if racial discrimination in the control of arms was to prevail.
Such a tack had been hinted at in Nunn v. State[140] and in Aymette v. State,[141] cases involving firearms control statutes in the antebellum era. These cases each involved statutes restricting the carrying of concealed weapons, and each had determined that the right to bear arms was not absolute. Aymette, construing the right to bear arms for the common defense of the state, had suggested that the right to bear arms was only the right to bear them publicly and that the only arms one had the right to bear were those useful in warfare.[142] Nunn posited a right to bear arms in favor of both self-defense and the common defense and agreed that the state might restrict the carrying of concealed weapons as a matter of police power.[143] Hence, a state might well restrict all weapons of certain character and might even restrict all weapons that were concealed.
III. Judicial Response to a Changing Right to Arms
The response of the Arkansas judiciary to legislative restrictions on the right to arms serves as a proxy for the response of the judiciary of the Southern states to such restrictions....
...In response to an appeal by a defendant who had been convicted of carrying such a weapon openly in a holster buckled around his waist, the Arkansas Supreme Court in an 1882 case, Haile v. State,[163] declared the restriction a reasonable one, within the limits of the Arkansas constitution. The legislature, the court found, had perceived a danger that armed citizens had the means to do violence to their fellows upon any offense. The court looked to the reasons that underlay the right to bear arms to evaluate the legislature's judgment that only military weapons might be carried and only openly and in the hand....
...Haile achieved two ends, perhaps both intended by the legislature, both an example for the future, but only one to arguably salutary effect and the other not. The first end was that Haile had achieved a clear formula, albeit one presaged by Aymette v. State[166] forty years earlier, for testing and validating firearms regulation. The restriction would be judged against the civic end to be accomplished by the constitutional provision, and the restriction would be valid if it did not deny entirely the right to use a protected weapon, perhaps even all protected weapons.(p.1333)
The second end carried a pernicious effect. The period of Reconstruction and later Redemption was marked by racial violence in a way that the period of slavery was not. Violence on the part of the Ku Klux Klan and other nightriding terrorists were instruments of the oppression of the former slaves and of the maintenance of the Southern way of life. The right to bear arms had been intended by the champions of the freedmen as a hedge against oppression by their former masters, and the right had in fact functioned to this end. White Southerners recognized this, and both the authorities and nightriders sought to confiscate arms from those blacks who had them and often to kill or otherwise cow those who would not give them up. The Arkansas legislature had made clear that restrictions on those weapons that were not useful in war were constitutionally valid. With Haile, they had combined to render safe the high quality, expensive, military issue handguns that many former Confederate soldiers still maintained but that were often out of financial reach for cash poor freedmen.[167]
IV. The Enduring Legacy?
The model of gun control that emerged from the redeemed South is a model of distrust for the South's untrustworthy and unredeemed class, a class deemed both different and inferior, the class of Americans of African descent. There are indications that this model was followed elsewhere in the nation. These indications may be found in the treatment of southern and eastern European immigrants to America in the early twentieth century in the state and city that had been both a point of entry and the point of settlement for many of them, New York.
If the white South saw blacks as a threat, the country as a whole saw southern and eastern Europeans in similar terms. For this reason, in part, the numbers of such immigrants were subject to significant limits.[168] Beyond this, these immigrants were associated with mental deficiency, with crime, and most dangerously, with the sort of anarchist inspired crime that was feared in Europe, such as political assassination and politically motivated robberies.[169](p.1334)
In New York, these fears found expression in the passage of the Sullivan Law in 1911.[170] Of statewide dimension, the Sullivan Law was aimed at New York City, where the large foreign born population was deemed susceptible to peculiarly susceptible and perhaps inclined to vice and crime. The statute went beyond the practice of many gun control statutes by not only prohibiting the carrying of concealed weapons, but also requiring a permit for ownership or purchase of weapons.[171] It is not without significance that the first person convicted under the statute was a member of one of the suspect classes, an Italian immigrant.[172]
If the story of New York's Sullivan Law suggests that a fear of and a desire to control suspect classes of undesirables bears likeness to the story of the white South's ventures into gun control in the Reconstruction and post-Reconstruction periods, it is true as well that the Sullivan Law, like the Southern statutory and constitutional provisions inaugurated in those periods, spoke to what on its surface was a legitimate societal goal in advancing the cause of public safety. Such goals would be argued in later years with the passage of the National Firearms Act of 1934[173] and in the 1960s and beyond, when concerns with "Saturday Night Specials"[174] and with "assault weapons"[175] would (p.1335)take center stage. If safety concerns must be conceded, it should be recognized as well that local governments have sought to ban firearms from what is frequently considered one of today's untrustworthy and suspect classes, the urban poor.[176]
The extent of these correspondences is a subject that should engender more research both of historical and legal scholars. The question for such scholars is whether the freedom to pursue individual rights should ever be regulated in accordance with whether the citizens are deemed worthy of exercising them....
[**] Visiting Professor of Law and Legal History, George Washington University Law School, 1995-96; Professor of Law, Rutgers School of Law (Camden). A.B., 1971, Ph.D., (American Studies) 1978, Yale University; J.D., 1984, Georgetown University Law Center. [***] Professor of Law, Tulane University School of Law. A.B. 1973, Yale University; J.D., 1977, Yale Law School.
[Footnotes omitted; the full article is available at <http://www.2ndlawlib.org/journals/cd-reg.html#fn**>.] *****
Yoshie