Sniper gun questions and the right to bear arms
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cjh
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Ishmael said:
do you know what dicta is? maybe you should look it up. then you might have the sense not to post a quote that includes this: "Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265 ... Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia ... Whether the 'right to bear arms' for militia purposes is [Page 24] 'individual' or 'collective' in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Id. at 1020."
What that means is that the hale court considered the very argument that you are trying to make, and declared it bullshit because the citation of the 2nd amendment is of no consequence outside of the context of the national guard. The hale court held that your argument was bullshit, and that it was inadequate to render unconstitutional a law prohibiting the ownership of machine guns. here's what that appellate court said about your argument:
BUZZZZZZZZ
next.
Cade Is Here
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should be able to carry guns
look at all the homies that carry them
look at all the homies that carry them
Evil Attorney
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from:
http://www.virginiainstitute.org/publications/primer_on_const.php#c8
THE MILITIA PREFACE
It should come as no surprise that there are so many obvious problems with reading the operative clause of the Second Amendment to protect any sort of right belonging to state governments. If the Constitution had simply provided that "the right of the people to keep and bear arms shall not be infringed," nobody could maintain with a straight face that the provision could mean anything other than that individuals have that right. Doubts about the plain and obvious meaning of that clause have been raised only because of the prefatory phrase "A well regulated Militia, being necessary to the security of a free State . . . . "
Before looking at these words more closely, we should pause to focus on a few things that the Second Amendment does not say:
It emphatically does not say that it protects the right of the militia to keep and bear arms.
Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well regulated militia, or that a well regulated militia is sufficient for the security of a free state.
Nor does the Second Amendment say that the right of the people to keep and bears arms is protected only to the extent that such a right fosters a well regulated militia or the security of a free state.
As these observations suggest, the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.13
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
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and:
THE SECOND AMENDMENT TODAY23
The Second Amendment was not the least bit controversial when it was adopted, except among some Anti-Federalists who complained that it was too weak. This may seem quite odd to the modern reader, for it is self-evident to almost all of us that some forms of gun control are indispensable in a civilized society. Even the most ardent libertarians recognize that private citizens should not possess nuclear weapons or shoulder-fired antiaircraft rockets, and very few people think that everyone should be able to buy a machinegun or a flamethrower at the hardware store. But don't the laws restricting access to these weapons infringe the right of the people to keep and bear arms?
Two principal factors explain the relative insouciance of the founding generation. First, the "arms" referred to in the Second Amendment probably included only those that a single person could carry and operate (not artillery), and these so-called small arms were fairly primitive in the late eighteenth century. No Stinger missiles. Not even revolvers or other rapid-fire devices, let alone machineguns. Furthermore, the weapons carried by soldiers were no more lethal or subject to abuse than those typically kept by civilians for hunting and self defense.
Second, and much more important, the Second Amendment (and the rest of the Bill of Rights as well) originally restricted only the federal government, not the state governments. There was little need for the Framers to be concerned about the details of the inevitable tradeoffs between individual freedom and public safety because the Constitution left the states free to balance those competing goals in whatever ways they thought fit. Every state was left free by the federal Bill of Rights to establish an official religion, to require a government license in order to publish a newspaper, or to abolish the right of trial by jury. Similarly, the states were left free to regulate the private possession of weapons in whatever way seemed appropriate to them. The Framers could therefore have reasonably expected that new issues, like those raised by technological developments in weaponry, could and would be addressed by the state governments as they arose.
Beginning in the late nineteenth century, the Supreme Court began making some (though not all) provisions of the Bill of Rights operate as restrictions on the states as well as on the federal government. The story underlying this legal development is too complex to summarize here,24 but the important point is this: The Supreme Court has never decided whether the Second Amendment will be applied against state laws, and it is impossible to predict what answer the Court will give if it ever chooses to decide the question. This uncertainty has considerable practical significance because almost all of the most severe gun control laws on the books today are state (and local) laws rather than federal laws.
Whether the Second Amendment is applied to the federal government alone, or to state and local governments as well, we have to ask whether it has become outmoded. If one focuses on the concern that primarily animated the founding generation-preventing tyranny-it is quite plain that an armed citizenry is much less important today than it was when the Second Amendment was adopted. Two hundred years of relative political stability have assured us that we have less reason to fear political coups than we might have had when the nation was young. And the great leaps forward in military technology have created a situation in which armed civilians would be less effective in resisting a tyrannical government than their eighteenth century counterparts.
This does not mean, however, that an armed citizenry is completely useless as a deterrent to government oppression. The mere existence of a large stock of arms in private hands inevitably raises the expected costs of governmental repression, and thereby makes it less likely to occur. This insight emphatically does not depend on the assumption that the federal government must be kept militarily inferior to the unorganized militia. On the contrary, it requires only a recognition of the simple fact that decisions about the use of military force are rationally determined, not by the feasibility or even the probability of ultimate success but rather by the ratio of an operation's expected benefits to its expected costs (with the magnitude of the prospective costs and benefits discounted by the probability of their being incurred and attained respectively). Anyone who doubts that proposition should spend a moment trying to figure out why the United States lost the Vietnam War and why the Soviets failed to subdue Afghanistan.
Anyone who thinks the anti-tyranny function of the Second Amendment is completely irrelevant today should also spend some time considering the historical experience of black Americans. At least until quite recently, one of the chief purposes of many gun control laws was to help secure the political subordination of the black population.25 That goal was successfully achieved for a long time, but it might not have been so easy if blacks had enjoyed the same right of access to firearms that the white population reserved for itself.
Apart from the Second Amendment's role in deterring government oppression, the right to arms has another purpose that is every bit as important and urgent today as it was in the eighteenth century. That purpose is to enable American citizens to defend themselves, not against direct oppression by the government, but against oppression from which the government fails to protect them. The principal source of such oppression today is violent criminals.
Those responsible for the adoption of the Second Amendment accepted the individual right of self-defense as the natural basis for the right to arms. Like William Blackstone, and no doubt heavily influenced by him and other natural rights theorists, the people who gave us the Second Amendment drew no fundamental distinction between an individual's right to defend himself against a robber or a marauding Indian and that same individual's right to band together with others in a state-regulated militia. The inseparability of these concepts was reflected in two early state constitutions, which provided: "That the people have a right to bear arms for the defence of themselves and the state . . . ."26 The breadth of the purpose of the right to arms was also apparent in the very first proposal for a bill of rights, which came from an Anti-Federalist minority at the Pennsylvania ratifying convention. The right to arms provision in this proposal reads:
That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.27
The Pennsylvania minority report became an influential Anti-Federalist document, and it appears to have reflected typical republican concerns. Virtually every proposal for a bill of rights included a right to arms (which appeared with twice the frequency of demands for protecting the freedom of speech). Additional language praising the militia was added only in three states that acted late in the ratification process.28
The individual right of self-defense, moreover, was also tied up with the institution of the militia. The eighteenth century militia did not serve merely as a military force in the modern sense. One of the militia's functions in eighteenth century America was to serve as an informal police force in a society that did not have organized government agencies designed to apprehend criminals. Indeed, the Constitution itself recognizes this by authorizing use of the militia "to execute the Laws of the union." More fundamentally, the armed defense of oneself and one's family against criminals was regarded as a legitimate and necessary defense of the community itself, in much the same way that private prosecutors were expected to help enforce the criminal laws.29
The development of modern police forces has not eliminated this function. Although we seldom call out the traditional militia to keep the peace any more, this practice has in fact survived into modern times. More important, the police do not and cannot protect law-abiding citizens from criminal violence. The impotence of our governments in the face of criminal violence is so obvious that it is simply preposterous to maintain that those individuals with the means and the will to arm themselves are not thereby enhancing their ability to exercise their natural right of self-defense. This thought may not occur to wealthy people who can shelter themselves in low-crime enclaves and who care not at all about their less fortunate neighbors. But no one knows it better than the police, who vigorously defend their own right to carry firearms when they are not on duty (and often after they retire as well), even while some of them advocate disarming those whom the police cannot protect.
Contrary to a widespread misconception, moreover, violent crime is not reduced by disarmament laws aimed at the general population. The founder of modern criminology, Cesare Beccaria, offered the essential insight that explains this phenomenon over two centuries ago:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes . . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.30
Thousands of experiments with firearms restrictions in American states and localities over a long period of time have now provided a rich source of empirical evidence against which Beccaria's conclusion can be tested. When evaluated using the standard tools of quantitative social science, this evidence does not indicate that American gun control laws restricting the availability of firearms to the general population reduce violent crime.
This fact deserves the utmost emphasis, although it is not practicable to attempt a detailed summary of the empirical studies here. The conclusions of these studies should not be surprising, for they can only seem counterintuitive to those who fall into the fallacy identified by Beccaria, of wishing to "take fire from men because it burns, and water because one may drown in it." Firearms can be used for both illegitimate purposes and for legitimate purposes. Restrictions on civilian access to firearms cannot even claim to make any sense unless they can plausibly be expected to reduce illegitimate violence more than they reduce legitimate acts of self- defense and law enforcement. Illegitimate violence occurs in three main ways: (1) an individual procures a gun in order to use it in crime; (2) an individual procures a gun for legitimate purposes, but ends up misusing it spontaneously; and (3) a gun obtained for legitimate purposes kills or injures someone through an accident.
The problem associated with the first category is extremely unlikely to be ameliorated by firearms restrictions that apply to the general population, essentially for the reason identified by Beccaria. The demand for guns by criminals is highly inelastic, while the supply is very elastic indeed. Criminals simply are going to obtain firearms so long as the cost of obtaining them does not exceed the benefits the criminal expects them to bring. How could gun control laws change this cost-benefit ratio? If the penalties for possessing firearms were raised to a very high level, many potential victims would certainly be disarmed. A significant fraction of criminals, however, would continue to arm themselves in the expectation of violent encounters with other criminals (as in the drug trade) or with the police.
At the same time, we would expect to see guns used less frequently in some crimes that involve preying on civilians, such as burglary and robbery, because the potential victims would themselves be less likely to be armed. That, however, does not mean that these crimes would themselves decrease. On the contrary, substitution effects would occur. Other weapons, such as knives and clubs, would be used instead of guns to commit the same crimes. There might, in addition, be some substitution of burglaries for robberies. Similarly, stringent gun control laws might well cause the criminals who commit crimes like robbery to be more careful to seek physically weaker victims like women and the elderly. No one has ever explained why such substitution effects should count as a gain in social welfare, especially when potential victims would also be more vulnerable to those criminals who would continue to use firearms. The judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse.
In theory, general restrictions on the possession of firearms by civilians could reduce the incidence of violence arising from the other two categories. Accidents, however, are a trivially small cause of firearms deaths. That leaves the so-called "crimes of passion"-unplanned murders that would not occur if the perpetrator did not happen to have ready access to a firearm. The effect of gun control laws on this category of crime is extremely difficult to isolate, for a variety of reasons. First, the criminal justice system's statistical records do not distinguish systematically between planned and unplanned crimes. Second, many apparently spontaneous murders in which a gun was used, especially those resulting from domestic disputes, might have been committed with other weapons if a gun had been unavailable. Third, the number of spontaneous murders prevented by gun control laws would be partially offset, or more than offset, by murders (including some spontaneous murders) that took place only because the gun control laws themselves caused the victims to be unarmed when they were attacked.
The virtual inevitability of substitution effects and offsetting effects suggest that there is no particularly good reason to expect that general restrictions on firearms would reduce the overall incidence of gun violence. In fact, the empirical evidence has not shown any such effect, while it has shown that crime victims are quite successful in using firearms to defend themselves.31 It may be possible to devise regulations that would reduce the incidence of spontaneous murders and negligent shootings without significant negative offsetting effects, but such regulations might also be distinguished for constitutional purposes from the usual restrictions that apply indiscriminately to the general population.
This does not imply that a well armed populace is a panacea for the problem of violent crime. The same merciless realities that prevent the usual forms of gun control from accomplishing their stated purposes also ensure that civilian access to firearms can continue to co-exist quite easily with a high rate of crime. It does imply, however, that the government is on very weak ground when it offers vague and speculative social welfare goals to justify depriving a complaining individual of the right to have tools that are manifestly helpful in serving that individual's interest in defending himself (and especially herself, since women are generally more physically vulnerable to violent attacks than men and much more likely to be the victims of certain violent crimes).
In any event, the judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse. In terms suggestively reminiscent of Beccaria's critique of gun control laws, Justice William Brennan eloquently explained why it is a mistake to think that freedom should be abolished merely because some people are bound to misuse it:
The constitutional protection [provided by the First Amendment] does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press."…[T]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.32
Someone who strongly disapproved of our raucous and often degrading marketplace of ideas could easily believe that the freedoms of speech and press protected by the Court's First Amendment jurisprudence do not have enough social utility (even "in the long view") to outweigh the excesses and abuses to which they frequently lead. The constitutional test, however, cannot depend on its acceptability to people who take that position, even if they are very numerous or politically influential. As the quotation above suggests, and as hundreds of decisions over the course of many decades confirm, the courts do not demand that First Amendment rights be held to such a standard. Doing so would obviously amount to repealing the First Amendment by judicial fiat. Instead, the Court has declared that the Constitution creates a strong presumption in favor of individual freedom, and has imposed a heavy burden of justification on governments that impose restrictions on speech or the press.
The differences between the First and Second Amendments are obvious enough, but the similarities are more important. In both cases, the Constitution establishes a rule that protects a human activity that its Framers regarded as a natural right: thought and self-governance in the one case and self-defense in the other. In both cases, the Constitution reflects a determination that the social benefits of giving legal protection to the instruments needed for the pursuit of those goals will outweigh the inconveniences arising from their misuse. In both cases, the erection of this barrier against the state governments will necessarily involve the courts in the business of balancing the public welfare against the interests of those individuals whose liberty the government wants to restrict. In neither case, however, does the accretion of this power to the courts justify them in striking the balance differently than an honest reading of the Constitution suggests.
Supreme Court Justices, it is true, are drawn from a class of people who are among the least vulnerable to violent criminals. The reputations of individual Justices, moreover, are highly dependent on the good will of the journalists and academics who depend on the freedom of speech for their livelihoods and social ascendancy. This may make it easier for members of the Court to appreciate the value of the First Amendment than to see why the Second Amendment still matters. If they gave the matter the disinterested attention that we have a right to expect from our judicial magistrates, however, the Justices should acquire serious doubts about the constitutionality of many currently popular restrictions on firearms. I will conclude with brief discussions of three examples, not in an effort to carry out the impossible task of offering a comprehensive exposition of an undeveloped jurisprudence, but to illustrate that serious legal questions need to be raised about statutes whose constitutionality is too often taken for granted.
First, consider the federal ban on certain so-called "semiautomatic assault weapons." This law applies to nineteen guns specifically identified by make and model, and to any other rifle (except some that are specifically exempted) that both accepts a detachable magazine and possesses any two of the following characteristics: a folding or telescoping stock, a bayonet lug, a flash suppressor, a pistol grip, or a grenade launcher.33
This statute is fundamentally irrational because it restricts access to certain weapons on the basis of essentially cosmetic features, leaving functionally identical arms unaffected. There is no general principle related to public safety that one can use to distinguish two otherwise identical carbines, one of which has a pistol grip and folding stock and the other of which has a grenade launcher but none of the other four suspect attachments. Nor can one rationally explain why a carbine that has a flash suppressor should become illegal when a bayonet lug is added, but should then become legally innocuous when either the lug or the flash suppressor is removed.
Ironically, this "assault weapon" statute is so deeply arbitrary that it cannot itself actually undermine the purposes of the Second Amendment in any appreciable way. It bans only a limited class of weapons configured with certain random accouterments, leaving essentially identical arms unrestricted and leaving citizens free to keep any of the accouterments ready to be attached to the weapon if need be.
This does not imply, however, that courts should uphold the regulation. As the Supreme Court has recognized in the analogous area of the First Amendment, leaving legislatures free to engage in whimsical infringements on fundamental rights prepares the way for more serious assaults on individual liberty. Just as no court would interpret the First Amendment to allow Congress to ban the use of words that contain diphthongs, even if perfectly adequate synonyms for all such words remained available, so the courts should decline to authorize equally trivial but irrational infringements on the right to arms.
A Court that takes its constitutional responsibilities seriously would also be likely to invalidate laws that affect less bizarrely defined classes of weaponry. Consider, for example, the law in Washington, D.C., where virtually all civilians are forbidden to possess any handgun that was not registered prior to September 24, 1976.34 Because citizens are permitted to possess rifles and shotguns, though only if they comply with onerous registration requirements and only if they keep them unloaded and disassembled,35 the infringement on the right to keep and bear arms is not absolutely complete. The infringement is nonetheless very substantial, for handguns have important functional advantages in self-defense, primarily arising from their concealability, portability, and maneuverability in confined spaces like those in which many city residents live. Moreover, to the extent that handguns can be and are replaced by rifles and shotguns, the likely effect of the law is to increase the number of deaths from gunfire because shoulder-fired weapons are generally much more lethal than handguns.36
It is unlikely that the government could present any plausible argument for concluding that the handgun ban serves a genuine public purpose in a way that justifies the infringement of constitutional rights. To see how problematic the constitutionality of this law is, imagine that the government banned cable television from Washington, D.C. on the theory that the corrupting nature of television programming was contributing to the city's notoriously high rate of violent crime. This would not be an irrational statute. The government has an obvious and legitimate interest in reducing such crime, and there is research indicating that television programming may be a contributing factor to high crime rates.37 Indeed, the evidence to support this conclusion may be significantly stronger than any evidence suggesting that Washington's gun ban could have an ameliorative effect on the rate of violent crime.38 It is inconceivable that any court would uphold such a ban on cable television, and it is not the least bit obvious that the Supreme Court would have any greater justification for upholding the existing gun control law.
Finally, consider the restrictions that our governments commonly place on carrying weapons in public. If the courts took the right of self-defense as seriously as they should, and thought through its implications with respect to the tools needed to exercise that right when it matters, they would have to confront the fact that the Second Amendment protects both the right to keep arms and the right to bear them. That does not mean that the government can put no restrictions on the people's right to carry weapons about in public, any more than the First Amendment forbids government from imposing certain kinds of restrictions on the exercise of free speech. It does mean, however, that the government should face a heavy burden when called upon to justify such restrictions, which often operate to deprive the people of access to weapons in just those circumstances when they are most needed.39
This burden might be quite difficult to meet. An important body of evidence began to develop after the state of Florida dramatically loosened its restrictions on the carrying of concealed weapons in 1987. Although it has long been true that American jurisdictions with the most restrictive gun controls have also tended to have the highest crime rates, it has also been plausible to suppose that the restrictive laws were a result rather than a cause of the high crime rates. Like many states with high crime rates, Florida had traditionally left considerable discretion to issue concealed-carry permits in local government officials, and most urban areas issued very few permits. In 1987, the state adopted a new system, in which an applicant who passed a background check and took a training class was automatically issued a permit upon payment of a small fee. Infinitesimal numbers of concealed-carry permit holders used their guns for criminal purposes, and criminal violence overall may well have dropped because of the new law.40 In fact, there is apparently direct evidence that Florida criminals began to target tourists specifically because they knew that tourists are less likely than residents to be armed.41 This direct evidence tended to confirm the results of a careful study of the attitudes of imprisoned felons, who reported both considerable sensitivity to the odds of their victims being armed and numerous occasions on which they had refrained from committing a crime because of the prospect that the chosen victim might be armed.42
Florida's well-publicized success with liberalized carry laws encouraged other states-including Virginia-to adopt similar reforms, and it has now become possible to make meaningful statistical estimates of the effect that concealed-carry laws have on crime rates. A very sophisticated study by John R. Lott, Jr. used cross-sectional time-series data at the county level to confirm a strong connection between giving law-abiding citizens the right to carry a concealed weapon and a large deterrent effect on violent crime.43 The Lott study, which is far more successful in controlling for relevant variables than previous gun control studies, dramatically confirms Beccaria's theoretical insight and refutes long-standing conventional wisdom. When the chances of encountering an armed victim go up, violent crime goes down, and this effect is particularly pronounced in urban areas with high crime rates. While it may be true that high rates of violent crime provoke stricter gun control laws, those laws in turn drive the rates even higher. If the entire nation had adopted concealed carry laws like Florida's in 1992, Lott's evidence indicates, many thousands of murders and rapes would have been prevented. In the face of such evidence, it is hard to see why courts should allow governments to rely on slogans and prejudices as a reason for stripping potential victims of their right to protect themselves from violent predators.
This is not to say, of course, that empirical social science can offer meaningful assistance with every question that will arise concerning the costs and benefits of gun control laws. If the Second Amendment were treated like the First Amendment, cases involving restrictions on the right to carry weapons in public would present the courts with some difficult questions, and they would surely make some mistakes. That, however, is simply one more way in which the Second Amendment resembles the First Amendment.
http://www.virginiainstitute.org/publications/primer_on_const.php#c8
THE MILITIA PREFACE
It should come as no surprise that there are so many obvious problems with reading the operative clause of the Second Amendment to protect any sort of right belonging to state governments. If the Constitution had simply provided that "the right of the people to keep and bear arms shall not be infringed," nobody could maintain with a straight face that the provision could mean anything other than that individuals have that right. Doubts about the plain and obvious meaning of that clause have been raised only because of the prefatory phrase "A well regulated Militia, being necessary to the security of a free State . . . . "
Before looking at these words more closely, we should pause to focus on a few things that the Second Amendment does not say:
It emphatically does not say that it protects the right of the militia to keep and bear arms.
Nor does the Second Amendment say that the people's right to arms is sufficient to establish a well regulated militia, or that a well regulated militia is sufficient for the security of a free state.
Nor does the Second Amendment say that the right of the people to keep and bears arms is protected only to the extent that such a right fosters a well regulated militia or the security of a free state.
As these observations suggest, the grammar of the Second Amendment emphasizes the indefiniteness of the relation between the introductory participial phrase and the main clause. If you parse the Amendment, it quickly becomes obvious that the first half of the sentence is an absolute phrase (or ablative absolute) that does not modify or limit any word in the main clause. The usual function of absolute phrases is to convey information about the circumstances surrounding the statement in the main clause, such as its cause. For example: "The teacher being ill, class was cancelled."
The importance of this can be illustrated with a simple example. Suppose the Constitution provided:
A well educated Electorate, being necessary to self-governance in a free State, the right of the people to keep and read Books, shall not be infringed.13
This provision, which is grammatically identical to the Second Amendment, obviously means the following: because a well educated electorate is necessary to the health of a free state, the right of the people to keep and read books shall not be infringed. The sentence does not say, imply, or even suggest that only registered voters have a right to books. Nor does the sentence say, imply, or even suggest that the right to books may be exercised only by state employees. Nor does the lack of identity between the electorate and the people create some kind of grammatical or linguistic tension within the sentence. It is perfectly reasonable for a constitution to give everyone a right to books as a means of fostering a well educated electorate. The goal might or might not be reached, and it could have been pursued by numerous other means. The creation of a general individual right, moreover, would certainly have other effects besides its impact on the electorate's educational level. And lots of legitimate questions could be raised about the scope of the right to books. But none of this offers the slightest reason to be mystified by the basic meaning of the sentence.
The Second Amendment is no different. Modern readers may have difficulty in seeing how a general right of individuals to keep and bear arms could contribute to a well regulated militia and to the security of a free state, and we shall explore that question in more detail below. But the text of the Second Amendment offers not the slightest warrant for presupposing that the answer to the question is that its framers were semi-literate fools who meant to say something like "The states shall have the right to maintain independent military forces for use against the federal government."
__
and:
THE SECOND AMENDMENT TODAY23
The Second Amendment was not the least bit controversial when it was adopted, except among some Anti-Federalists who complained that it was too weak. This may seem quite odd to the modern reader, for it is self-evident to almost all of us that some forms of gun control are indispensable in a civilized society. Even the most ardent libertarians recognize that private citizens should not possess nuclear weapons or shoulder-fired antiaircraft rockets, and very few people think that everyone should be able to buy a machinegun or a flamethrower at the hardware store. But don't the laws restricting access to these weapons infringe the right of the people to keep and bear arms?
Two principal factors explain the relative insouciance of the founding generation. First, the "arms" referred to in the Second Amendment probably included only those that a single person could carry and operate (not artillery), and these so-called small arms were fairly primitive in the late eighteenth century. No Stinger missiles. Not even revolvers or other rapid-fire devices, let alone machineguns. Furthermore, the weapons carried by soldiers were no more lethal or subject to abuse than those typically kept by civilians for hunting and self defense.
Second, and much more important, the Second Amendment (and the rest of the Bill of Rights as well) originally restricted only the federal government, not the state governments. There was little need for the Framers to be concerned about the details of the inevitable tradeoffs between individual freedom and public safety because the Constitution left the states free to balance those competing goals in whatever ways they thought fit. Every state was left free by the federal Bill of Rights to establish an official religion, to require a government license in order to publish a newspaper, or to abolish the right of trial by jury. Similarly, the states were left free to regulate the private possession of weapons in whatever way seemed appropriate to them. The Framers could therefore have reasonably expected that new issues, like those raised by technological developments in weaponry, could and would be addressed by the state governments as they arose.
Beginning in the late nineteenth century, the Supreme Court began making some (though not all) provisions of the Bill of Rights operate as restrictions on the states as well as on the federal government. The story underlying this legal development is too complex to summarize here,24 but the important point is this: The Supreme Court has never decided whether the Second Amendment will be applied against state laws, and it is impossible to predict what answer the Court will give if it ever chooses to decide the question. This uncertainty has considerable practical significance because almost all of the most severe gun control laws on the books today are state (and local) laws rather than federal laws.
Whether the Second Amendment is applied to the federal government alone, or to state and local governments as well, we have to ask whether it has become outmoded. If one focuses on the concern that primarily animated the founding generation-preventing tyranny-it is quite plain that an armed citizenry is much less important today than it was when the Second Amendment was adopted. Two hundred years of relative political stability have assured us that we have less reason to fear political coups than we might have had when the nation was young. And the great leaps forward in military technology have created a situation in which armed civilians would be less effective in resisting a tyrannical government than their eighteenth century counterparts.
This does not mean, however, that an armed citizenry is completely useless as a deterrent to government oppression. The mere existence of a large stock of arms in private hands inevitably raises the expected costs of governmental repression, and thereby makes it less likely to occur. This insight emphatically does not depend on the assumption that the federal government must be kept militarily inferior to the unorganized militia. On the contrary, it requires only a recognition of the simple fact that decisions about the use of military force are rationally determined, not by the feasibility or even the probability of ultimate success but rather by the ratio of an operation's expected benefits to its expected costs (with the magnitude of the prospective costs and benefits discounted by the probability of their being incurred and attained respectively). Anyone who doubts that proposition should spend a moment trying to figure out why the United States lost the Vietnam War and why the Soviets failed to subdue Afghanistan.
Anyone who thinks the anti-tyranny function of the Second Amendment is completely irrelevant today should also spend some time considering the historical experience of black Americans. At least until quite recently, one of the chief purposes of many gun control laws was to help secure the political subordination of the black population.25 That goal was successfully achieved for a long time, but it might not have been so easy if blacks had enjoyed the same right of access to firearms that the white population reserved for itself.
Apart from the Second Amendment's role in deterring government oppression, the right to arms has another purpose that is every bit as important and urgent today as it was in the eighteenth century. That purpose is to enable American citizens to defend themselves, not against direct oppression by the government, but against oppression from which the government fails to protect them. The principal source of such oppression today is violent criminals.
Those responsible for the adoption of the Second Amendment accepted the individual right of self-defense as the natural basis for the right to arms. Like William Blackstone, and no doubt heavily influenced by him and other natural rights theorists, the people who gave us the Second Amendment drew no fundamental distinction between an individual's right to defend himself against a robber or a marauding Indian and that same individual's right to band together with others in a state-regulated militia. The inseparability of these concepts was reflected in two early state constitutions, which provided: "That the people have a right to bear arms for the defence of themselves and the state . . . ."26 The breadth of the purpose of the right to arms was also apparent in the very first proposal for a bill of rights, which came from an Anti-Federalist minority at the Pennsylvania ratifying convention. The right to arms provision in this proposal reads:
That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.27
The Pennsylvania minority report became an influential Anti-Federalist document, and it appears to have reflected typical republican concerns. Virtually every proposal for a bill of rights included a right to arms (which appeared with twice the frequency of demands for protecting the freedom of speech). Additional language praising the militia was added only in three states that acted late in the ratification process.28
The individual right of self-defense, moreover, was also tied up with the institution of the militia. The eighteenth century militia did not serve merely as a military force in the modern sense. One of the militia's functions in eighteenth century America was to serve as an informal police force in a society that did not have organized government agencies designed to apprehend criminals. Indeed, the Constitution itself recognizes this by authorizing use of the militia "to execute the Laws of the union." More fundamentally, the armed defense of oneself and one's family against criminals was regarded as a legitimate and necessary defense of the community itself, in much the same way that private prosecutors were expected to help enforce the criminal laws.29
The development of modern police forces has not eliminated this function. Although we seldom call out the traditional militia to keep the peace any more, this practice has in fact survived into modern times. More important, the police do not and cannot protect law-abiding citizens from criminal violence. The impotence of our governments in the face of criminal violence is so obvious that it is simply preposterous to maintain that those individuals with the means and the will to arm themselves are not thereby enhancing their ability to exercise their natural right of self-defense. This thought may not occur to wealthy people who can shelter themselves in low-crime enclaves and who care not at all about their less fortunate neighbors. But no one knows it better than the police, who vigorously defend their own right to carry firearms when they are not on duty (and often after they retire as well), even while some of them advocate disarming those whom the police cannot protect.
Contrary to a widespread misconception, moreover, violent crime is not reduced by disarmament laws aimed at the general population. The founder of modern criminology, Cesare Beccaria, offered the essential insight that explains this phenomenon over two centuries ago:
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes . . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.30
Thousands of experiments with firearms restrictions in American states and localities over a long period of time have now provided a rich source of empirical evidence against which Beccaria's conclusion can be tested. When evaluated using the standard tools of quantitative social science, this evidence does not indicate that American gun control laws restricting the availability of firearms to the general population reduce violent crime.
This fact deserves the utmost emphasis, although it is not practicable to attempt a detailed summary of the empirical studies here. The conclusions of these studies should not be surprising, for they can only seem counterintuitive to those who fall into the fallacy identified by Beccaria, of wishing to "take fire from men because it burns, and water because one may drown in it." Firearms can be used for both illegitimate purposes and for legitimate purposes. Restrictions on civilian access to firearms cannot even claim to make any sense unless they can plausibly be expected to reduce illegitimate violence more than they reduce legitimate acts of self- defense and law enforcement. Illegitimate violence occurs in three main ways: (1) an individual procures a gun in order to use it in crime; (2) an individual procures a gun for legitimate purposes, but ends up misusing it spontaneously; and (3) a gun obtained for legitimate purposes kills or injures someone through an accident.
The problem associated with the first category is extremely unlikely to be ameliorated by firearms restrictions that apply to the general population, essentially for the reason identified by Beccaria. The demand for guns by criminals is highly inelastic, while the supply is very elastic indeed. Criminals simply are going to obtain firearms so long as the cost of obtaining them does not exceed the benefits the criminal expects them to bring. How could gun control laws change this cost-benefit ratio? If the penalties for possessing firearms were raised to a very high level, many potential victims would certainly be disarmed. A significant fraction of criminals, however, would continue to arm themselves in the expectation of violent encounters with other criminals (as in the drug trade) or with the police.
At the same time, we would expect to see guns used less frequently in some crimes that involve preying on civilians, such as burglary and robbery, because the potential victims would themselves be less likely to be armed. That, however, does not mean that these crimes would themselves decrease. On the contrary, substitution effects would occur. Other weapons, such as knives and clubs, would be used instead of guns to commit the same crimes. There might, in addition, be some substitution of burglaries for robberies. Similarly, stringent gun control laws might well cause the criminals who commit crimes like robbery to be more careful to seek physically weaker victims like women and the elderly. No one has ever explained why such substitution effects should count as a gain in social welfare, especially when potential victims would also be more vulnerable to those criminals who would continue to use firearms. The judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse.
In theory, general restrictions on the possession of firearms by civilians could reduce the incidence of violence arising from the other two categories. Accidents, however, are a trivially small cause of firearms deaths. That leaves the so-called "crimes of passion"-unplanned murders that would not occur if the perpetrator did not happen to have ready access to a firearm. The effect of gun control laws on this category of crime is extremely difficult to isolate, for a variety of reasons. First, the criminal justice system's statistical records do not distinguish systematically between planned and unplanned crimes. Second, many apparently spontaneous murders in which a gun was used, especially those resulting from domestic disputes, might have been committed with other weapons if a gun had been unavailable. Third, the number of spontaneous murders prevented by gun control laws would be partially offset, or more than offset, by murders (including some spontaneous murders) that took place only because the gun control laws themselves caused the victims to be unarmed when they were attacked.
The virtual inevitability of substitution effects and offsetting effects suggest that there is no particularly good reason to expect that general restrictions on firearms would reduce the overall incidence of gun violence. In fact, the empirical evidence has not shown any such effect, while it has shown that crime victims are quite successful in using firearms to defend themselves.31 It may be possible to devise regulations that would reduce the incidence of spontaneous murders and negligent shootings without significant negative offsetting effects, but such regulations might also be distinguished for constitutional purposes from the usual restrictions that apply indiscriminately to the general population.
This does not imply that a well armed populace is a panacea for the problem of violent crime. The same merciless realities that prevent the usual forms of gun control from accomplishing their stated purposes also ensure that civilian access to firearms can continue to co-exist quite easily with a high rate of crime. It does imply, however, that the government is on very weak ground when it offers vague and speculative social welfare goals to justify depriving a complaining individual of the right to have tools that are manifestly helpful in serving that individual's interest in defending himself (and especially herself, since women are generally more physically vulnerable to violent attacks than men and much more likely to be the victims of certain violent crimes).
In any event, the judicial obligation to enforce the Second Amendment is not contingent on someone's proving that an armed citizenry is a cure-all for crime, any more than the obligation to enforce the First Amendment depends on its ability to eliminate lies and corruption from the public discourse. In terms suggestively reminiscent of Beccaria's critique of gun control laws, Justice William Brennan eloquently explained why it is a mistake to think that freedom should be abolished merely because some people are bound to misuse it:
The constitutional protection [provided by the First Amendment] does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press."…[T]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.32
Someone who strongly disapproved of our raucous and often degrading marketplace of ideas could easily believe that the freedoms of speech and press protected by the Court's First Amendment jurisprudence do not have enough social utility (even "in the long view") to outweigh the excesses and abuses to which they frequently lead. The constitutional test, however, cannot depend on its acceptability to people who take that position, even if they are very numerous or politically influential. As the quotation above suggests, and as hundreds of decisions over the course of many decades confirm, the courts do not demand that First Amendment rights be held to such a standard. Doing so would obviously amount to repealing the First Amendment by judicial fiat. Instead, the Court has declared that the Constitution creates a strong presumption in favor of individual freedom, and has imposed a heavy burden of justification on governments that impose restrictions on speech or the press.
The differences between the First and Second Amendments are obvious enough, but the similarities are more important. In both cases, the Constitution establishes a rule that protects a human activity that its Framers regarded as a natural right: thought and self-governance in the one case and self-defense in the other. In both cases, the Constitution reflects a determination that the social benefits of giving legal protection to the instruments needed for the pursuit of those goals will outweigh the inconveniences arising from their misuse. In both cases, the erection of this barrier against the state governments will necessarily involve the courts in the business of balancing the public welfare against the interests of those individuals whose liberty the government wants to restrict. In neither case, however, does the accretion of this power to the courts justify them in striking the balance differently than an honest reading of the Constitution suggests.
Supreme Court Justices, it is true, are drawn from a class of people who are among the least vulnerable to violent criminals. The reputations of individual Justices, moreover, are highly dependent on the good will of the journalists and academics who depend on the freedom of speech for their livelihoods and social ascendancy. This may make it easier for members of the Court to appreciate the value of the First Amendment than to see why the Second Amendment still matters. If they gave the matter the disinterested attention that we have a right to expect from our judicial magistrates, however, the Justices should acquire serious doubts about the constitutionality of many currently popular restrictions on firearms. I will conclude with brief discussions of three examples, not in an effort to carry out the impossible task of offering a comprehensive exposition of an undeveloped jurisprudence, but to illustrate that serious legal questions need to be raised about statutes whose constitutionality is too often taken for granted.
First, consider the federal ban on certain so-called "semiautomatic assault weapons." This law applies to nineteen guns specifically identified by make and model, and to any other rifle (except some that are specifically exempted) that both accepts a detachable magazine and possesses any two of the following characteristics: a folding or telescoping stock, a bayonet lug, a flash suppressor, a pistol grip, or a grenade launcher.33
This statute is fundamentally irrational because it restricts access to certain weapons on the basis of essentially cosmetic features, leaving functionally identical arms unaffected. There is no general principle related to public safety that one can use to distinguish two otherwise identical carbines, one of which has a pistol grip and folding stock and the other of which has a grenade launcher but none of the other four suspect attachments. Nor can one rationally explain why a carbine that has a flash suppressor should become illegal when a bayonet lug is added, but should then become legally innocuous when either the lug or the flash suppressor is removed.
Ironically, this "assault weapon" statute is so deeply arbitrary that it cannot itself actually undermine the purposes of the Second Amendment in any appreciable way. It bans only a limited class of weapons configured with certain random accouterments, leaving essentially identical arms unrestricted and leaving citizens free to keep any of the accouterments ready to be attached to the weapon if need be.
This does not imply, however, that courts should uphold the regulation. As the Supreme Court has recognized in the analogous area of the First Amendment, leaving legislatures free to engage in whimsical infringements on fundamental rights prepares the way for more serious assaults on individual liberty. Just as no court would interpret the First Amendment to allow Congress to ban the use of words that contain diphthongs, even if perfectly adequate synonyms for all such words remained available, so the courts should decline to authorize equally trivial but irrational infringements on the right to arms.
A Court that takes its constitutional responsibilities seriously would also be likely to invalidate laws that affect less bizarrely defined classes of weaponry. Consider, for example, the law in Washington, D.C., where virtually all civilians are forbidden to possess any handgun that was not registered prior to September 24, 1976.34 Because citizens are permitted to possess rifles and shotguns, though only if they comply with onerous registration requirements and only if they keep them unloaded and disassembled,35 the infringement on the right to keep and bear arms is not absolutely complete. The infringement is nonetheless very substantial, for handguns have important functional advantages in self-defense, primarily arising from their concealability, portability, and maneuverability in confined spaces like those in which many city residents live. Moreover, to the extent that handguns can be and are replaced by rifles and shotguns, the likely effect of the law is to increase the number of deaths from gunfire because shoulder-fired weapons are generally much more lethal than handguns.36
It is unlikely that the government could present any plausible argument for concluding that the handgun ban serves a genuine public purpose in a way that justifies the infringement of constitutional rights. To see how problematic the constitutionality of this law is, imagine that the government banned cable television from Washington, D.C. on the theory that the corrupting nature of television programming was contributing to the city's notoriously high rate of violent crime. This would not be an irrational statute. The government has an obvious and legitimate interest in reducing such crime, and there is research indicating that television programming may be a contributing factor to high crime rates.37 Indeed, the evidence to support this conclusion may be significantly stronger than any evidence suggesting that Washington's gun ban could have an ameliorative effect on the rate of violent crime.38 It is inconceivable that any court would uphold such a ban on cable television, and it is not the least bit obvious that the Supreme Court would have any greater justification for upholding the existing gun control law.
Finally, consider the restrictions that our governments commonly place on carrying weapons in public. If the courts took the right of self-defense as seriously as they should, and thought through its implications with respect to the tools needed to exercise that right when it matters, they would have to confront the fact that the Second Amendment protects both the right to keep arms and the right to bear them. That does not mean that the government can put no restrictions on the people's right to carry weapons about in public, any more than the First Amendment forbids government from imposing certain kinds of restrictions on the exercise of free speech. It does mean, however, that the government should face a heavy burden when called upon to justify such restrictions, which often operate to deprive the people of access to weapons in just those circumstances when they are most needed.39
This burden might be quite difficult to meet. An important body of evidence began to develop after the state of Florida dramatically loosened its restrictions on the carrying of concealed weapons in 1987. Although it has long been true that American jurisdictions with the most restrictive gun controls have also tended to have the highest crime rates, it has also been plausible to suppose that the restrictive laws were a result rather than a cause of the high crime rates. Like many states with high crime rates, Florida had traditionally left considerable discretion to issue concealed-carry permits in local government officials, and most urban areas issued very few permits. In 1987, the state adopted a new system, in which an applicant who passed a background check and took a training class was automatically issued a permit upon payment of a small fee. Infinitesimal numbers of concealed-carry permit holders used their guns for criminal purposes, and criminal violence overall may well have dropped because of the new law.40 In fact, there is apparently direct evidence that Florida criminals began to target tourists specifically because they knew that tourists are less likely than residents to be armed.41 This direct evidence tended to confirm the results of a careful study of the attitudes of imprisoned felons, who reported both considerable sensitivity to the odds of their victims being armed and numerous occasions on which they had refrained from committing a crime because of the prospect that the chosen victim might be armed.42
Florida's well-publicized success with liberalized carry laws encouraged other states-including Virginia-to adopt similar reforms, and it has now become possible to make meaningful statistical estimates of the effect that concealed-carry laws have on crime rates. A very sophisticated study by John R. Lott, Jr. used cross-sectional time-series data at the county level to confirm a strong connection between giving law-abiding citizens the right to carry a concealed weapon and a large deterrent effect on violent crime.43 The Lott study, which is far more successful in controlling for relevant variables than previous gun control studies, dramatically confirms Beccaria's theoretical insight and refutes long-standing conventional wisdom. When the chances of encountering an armed victim go up, violent crime goes down, and this effect is particularly pronounced in urban areas with high crime rates. While it may be true that high rates of violent crime provoke stricter gun control laws, those laws in turn drive the rates even higher. If the entire nation had adopted concealed carry laws like Florida's in 1992, Lott's evidence indicates, many thousands of murders and rapes would have been prevented. In the face of such evidence, it is hard to see why courts should allow governments to rely on slogans and prejudices as a reason for stripping potential victims of their right to protect themselves from violent predators.
This is not to say, of course, that empirical social science can offer meaningful assistance with every question that will arise concerning the costs and benefits of gun control laws. If the Second Amendment were treated like the First Amendment, cases involving restrictions on the right to carry weapons in public would present the courts with some difficult questions, and they would surely make some mistakes. That, however, is simply one more way in which the Second Amendment resembles the First Amendment.
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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.
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The Racist Roots of Gun Control
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.
The decision Cooper and Worsham v. Savannah (1848) 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 $100 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. [22] On appeal, counsel for Cooper and Worsham argued that the ordinance establishing the tax was deficient in a number of technical areas; the assertion of most interest to us is, "In Georgia, free persons of color have constitutional rights..." Cooper and Worsham's counsel argued that these rights included writ of habeas corpus, right to own real estate, to be "subject to taxation," "[t]hey may sue and be sued," and cited a number of precedents under Georgia law in defense of their position. [23]
Justice Warner delivered the Court's opinion, most of which is irrelevant to the right to keep and bear arms, but one portion 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." [24] The Georgia Supreme Court did agree that the ordinance jailing Cooper and Worsham for non-payment was illegal, and ordered their release, but the comments of the Court made it clear that their brave words in Nunn v. State (1846) about "the right of the people," really only meant white people.
While settled parts of the South were in great fear of armed blacks, on the frontier, the concerns about Indian attack often forced relaxation of these rules. 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." Unlike whites, however, a license was required for free blacks or slaves to carry weapons. [25]
The need for blacks to carry arms for self-defense included not only the problem of Indian attack, and the normal criminal attacks that anyone might worry about, but he additional hazard that free blacks were in danger of being kidnapped and sold into slavery. [26] A number of states, including Ohio, Indiana, Illinois, Michigan, and Wisconsin, passed laws specifically to prohibit kidnapping of free blacks, out of concern that the federal Fugitive Slave Laws would be used as cover for re-enslavement. [27]
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 are sufficiently well-known that any reasonably complete history of the Reconstruction period mentions them. These restrictive gun laws played a part in the efforts of the Republicans to get the Fourteenth Amendment ratified, because it was difficult for night riders to generate the correct level of terror in a victim who was returning fire. [28] It does appear, however, that the 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 at roughly the same time, in 1866, were intended to be used against blacks, even though the language was race-neutral. [29]
The former states of the Confederacy, many of which had recognized the right to carry arms openly before the Civil War, developed a very sudden willingness to qualify that right. One especially absurd example, and one that includes strong evidence of the racist intentions behind gun control laws, is Texas.
In Cockrum v. State (1859), the Texas Supreme Court had recognized that there was a right to carry defensive arms, and that this right was protected under both the Second Amendment, and section 13 of the Texas Bill of Rights. 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. [30] Yet, by 1872, the Texas Supreme Court denied that there was any right to carry any weapon for self-defense under either the state or federal constitutions -- and made no attempt to explain or justify why the Cockrum decision was no longer valid. [31]
What caused the dramatic change? The following excerpt from that same decision -- so offensive that no one would dare make such an argument today -- sheds some light on the racism that apparently caused the sudden perspective change:
The law under consideration has been attacked upon the ground that it was contrary to public policy, and deprived the people of the necessary means of self- defense; that it was an innovation upon the customs and habits of the people, to which they would not peaceably submit... 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 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. [32] [emphasis added]
This particular decision is more open than most as to its motivations, but throughout the South during this period, the existing precedents that recognized a right to open carry under state constitutional provisions were being narrowed, or simply ignored. Nor was the reasoning that led to these changes lost on judges in the North. In 1920, the Ohio Supreme Court upheld the conviction of a Mexican for concealed carry of a handgun--while asleep in his own bed. Justice Wanamaker's scathing dissent criticized the precedents cited by the majority in defense of this absurdity:
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. [33]
While not relevant to the issue of racism, Justice Wanamaker's closing paragraphs capture well the biting wit and intelligence of this jurist, who was unfortunately, outnumbered on the bench:
I hold that the laws of the state of Ohio should be so applied and so interpreted as to favor the law-abiding rather than the law-violating people. If this decision shall stand as the law of Ohio, a very large percentage of the good people of Ohio to-day are criminals, because they are daily committing criminal acts by having these weapons in their own homes for their own defense. The only safe course for them to pursue, instead of having the weapon concealed on or about their person, or under their pillow at night, is to hang the revolver on the wall and put below it a large placard with these words inscribed:
"The Ohio supreme court having decided that it is a crime to carry a concealed weapon on one's person in one's home, even in one's bed or bunk, this weapon is hung upon the wall that you may see it, and before you commit any burglary or assault, please, Mr. Burglar, hand me my gun." [34]
There are other examples of remarkable honesty from the state supreme courts on this subject, of which the finest is probably Florida Supreme Court Justice Buford's concurring opinion in Watson v. Stone (1941), in which a conviction for carrying a handgun without a permit was overturned, because the handgun was in the glove compartment of a car:
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. [35]
Today is not 1893, and when proponents of restrictive gun control insist that their motivations are color-blind, there is a possibility that they are telling the truth. Nonetheless, there are some rather interesting questions that should be asked today. The most obvious question is, "Why should a police chief or sheriff have any discretion in issuing a concealed handgun permit?" Here in California, even the state legislature's research arm--hardly a nest of pro-gunners--has admitted that the vast majority of permits to carry concealed handguns in California are issued to white males. [36] Even if overt racism is not an issue, an official may simply have more empathy with an applicant of a similar cultural background, and consequently be more able to relate to the applicant's concerns. As my wife pointedly reminded a police official when we applied for concealed weapon permits, "If more police chiefs were women, a lot more women would get permits, and be able to defend themselves from rapists."
Gun control advocates today are not so foolish as to openly promote racist laws, and so the question might be asked what relevance the racist past of gun control laws has. One concern is that the motivations for disarming blacks in the past are really not so different from the motivations for disarming law-abiding citizens today. In the last century, the official rhetoric in support of such laws was that "they" were too violent, too untrustworthy, to be allowed weapons. Today, the same elitist rhetoric regards law-abiding Americans in the same way, as child-like creatures in need of guidance from the government. In the last century, while never openly admitted, one of the goals of disarming blacks was to make them more willing to accept various forms of economic oppression, including the sharecropping system, in which free blacks were reduced to an economic state not dramatically superior to the conditions of slavery.
In the seventeenth century, the aristocratic power structure of colonial Virginia found itself confronting a similar 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 if they could, but the threat of both Indian and pirate attack made this impractical; for all white men "were armed and had to be armed..." Instead, blacks, who had occupied a poorly defined status between indentured servant and slave, were reduced to hereditary chattel slavery, so that poor whites could be economically advantaged, without the upper class having to give up its privileges. [37]
Today, the forces that push for gun control seem to be heavily (though not exclusively) allied with political factions that are committed to dramatic increases in taxation on the middle class. While it would be hyperbole to compare higher taxes on the middle class to the suffering and deprivation of sharecropping or slavery, the analogy of disarming those whom you wish to economically disadvantage, has a certain worrisome validity to it.
Another point to consider is that in the American legal system, certain classifications of governmental discrimination are considered constitutionally suspect, and these "suspect classifications" (usually considered to be race and religion) come to a court hearing under a strong presumption of invalidity. The reason for these "suspect classifications" is because of the long history of governmental discrimination based on these classifications, and because these classifications often impinge on fundamental rights. [38]
In much the same way, gun control has historically been a tool of racism, and associated with racist attitudes about black violence. Similarly, many gun control laws impinge on that most fundamental of rights: self-defense. Racism is so intimately tied to the history of gun control in America that we should regard gun control aimed at law-abiding people as a "suspect idea," and require that the courts use the same demanding standards when reviewing the constitutionality of a gun control law, that they would use with respect to a law that discriminated based on race.
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Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, ...By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine..., was published in 1990. ...For The Defense of Themselves And The State: The Original Intent & Judicial Interpretation of the Right To Keep And Bear Arms... will be published by Greenwood/Praeger Press in 1994.
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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).
22. Cooper and Worsham v. Savannah, 4 Ga. 68, 69 (1848).
23. Cooper and Worsham v. Savannah, 4 Ga. 68, 70, 71 (1848).
24. Cooper and Worsham v. Savannah, 4 Ga. 68, 72 (1848).
25. Juliet E. K. Walker, _Free Frank: A Black Pioneer on the Antebellum Frontier_, (Lexington, KY, University Press of Kentucky: 1983), 21. This is an inspiring biography of a slave who, through hard work moonlighting in the production of saltpeter (a basic ingredient of black powder) and land surveying, saved enough money to buy his wife, himself, and eventually all of his children and grandchildren out of slavery -- while fighting against oppressive laws and vigorous racism. Most impressive of all, is that he did it without ever learning to read or write.
26. Walker, 73.
27. Stephen Middleton, _The Black Laws in the Old Northwest: A Documentary History_, (Westport, Conn., Greenwood Press: 1993), 27-32, 227-240, 309-314, 353-357, 403-404.
28. Michael Les Benedict, _The Fruits of Victory: Alternatives to Restoring the Union_, 1865-1877, (New York, J.B. Lippincott Co.: 1975), 87. Francis L. Broderick, _Reconstruction and the American Negro, 1865-1900_, (London, Macmillan Co.: 1969), 21. Dan T. Carter, _When The War Was Over: The Failure of Self-Reconstruction in the South, 1865- 1867_, (Baton Rouge, Louisiana State University Press: 1985), 219-221. Eric Foner, _Reconstruction_, (New York, Harper & Row: 1988), 258-259.
29. Foner, _Reconstruction_, 200-201.
30. Cockrum v. State, 24 Tex. 394, 401, 402, 403 (1859).
31. English v. State, 35 Tex. 473, 475 (1872).
32. English v. State, 35 Tex. 473, 479, 480 (1872).
33. State v. Nieto, 101 Ohio St. 409, 430, 130 N.E. 663 (1920).
34. State v. Nieto, 101 Ohio St. 409, 436, 130 N.E. 663 (1920).
35. Watson v. Stone, 4 So.2d 700, 703 (Fla. 1941).
36. Assembly Office of Research, _Smoking Gun: The Case For Concealed Weapon Permit Reform_, (Sacramento, State of California: 1986), 5.
37. Edmund S. Morgan, "Slavery and Freedom: The American Paradox," in Stanley N. Katz, John M. Murrin, and Douglas Greenberg, ed., _Colonial America: Essays in Politics and Social Development_, 4th ed., (New York: McGraw-Hill, Inc, 1993), 280.
38. Thomas G. Walker, "Suspect Classifications", _Oxford Companion to the Supreme Court of the United States_, (New York, Oxford University Press: 1992), 848.
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The Racist Roots of Gun Control
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.
The decision Cooper and Worsham v. Savannah (1848) 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 $100 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. [22] On appeal, counsel for Cooper and Worsham argued that the ordinance establishing the tax was deficient in a number of technical areas; the assertion of most interest to us is, "In Georgia, free persons of color have constitutional rights..." Cooper and Worsham's counsel argued that these rights included writ of habeas corpus, right to own real estate, to be "subject to taxation," "[t]hey may sue and be sued," and cited a number of precedents under Georgia law in defense of their position. [23]
Justice Warner delivered the Court's opinion, most of which is irrelevant to the right to keep and bear arms, but one portion 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." [24] The Georgia Supreme Court did agree that the ordinance jailing Cooper and Worsham for non-payment was illegal, and ordered their release, but the comments of the Court made it clear that their brave words in Nunn v. State (1846) about "the right of the people," really only meant white people.
While settled parts of the South were in great fear of armed blacks, on the frontier, the concerns about Indian attack often forced relaxation of these rules. 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." Unlike whites, however, a license was required for free blacks or slaves to carry weapons. [25]
The need for blacks to carry arms for self-defense included not only the problem of Indian attack, and the normal criminal attacks that anyone might worry about, but he additional hazard that free blacks were in danger of being kidnapped and sold into slavery. [26] A number of states, including Ohio, Indiana, Illinois, Michigan, and Wisconsin, passed laws specifically to prohibit kidnapping of free blacks, out of concern that the federal Fugitive Slave Laws would be used as cover for re-enslavement. [27]
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 are sufficiently well-known that any reasonably complete history of the Reconstruction period mentions them. These restrictive gun laws played a part in the efforts of the Republicans to get the Fourteenth Amendment ratified, because it was difficult for night riders to generate the correct level of terror in a victim who was returning fire. [28] It does appear, however, that the 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 at roughly the same time, in 1866, were intended to be used against blacks, even though the language was race-neutral. [29]
The former states of the Confederacy, many of which had recognized the right to carry arms openly before the Civil War, developed a very sudden willingness to qualify that right. One especially absurd example, and one that includes strong evidence of the racist intentions behind gun control laws, is Texas.
In Cockrum v. State (1859), the Texas Supreme Court had recognized that there was a right to carry defensive arms, and that this right was protected under both the Second Amendment, and section 13 of the Texas Bill of Rights. 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. [30] Yet, by 1872, the Texas Supreme Court denied that there was any right to carry any weapon for self-defense under either the state or federal constitutions -- and made no attempt to explain or justify why the Cockrum decision was no longer valid. [31]
What caused the dramatic change? The following excerpt from that same decision -- so offensive that no one would dare make such an argument today -- sheds some light on the racism that apparently caused the sudden perspective change:
The law under consideration has been attacked upon the ground that it was contrary to public policy, and deprived the people of the necessary means of self- defense; that it was an innovation upon the customs and habits of the people, to which they would not peaceably submit... 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 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. [32] [emphasis added]
This particular decision is more open than most as to its motivations, but throughout the South during this period, the existing precedents that recognized a right to open carry under state constitutional provisions were being narrowed, or simply ignored. Nor was the reasoning that led to these changes lost on judges in the North. In 1920, the Ohio Supreme Court upheld the conviction of a Mexican for concealed carry of a handgun--while asleep in his own bed. Justice Wanamaker's scathing dissent criticized the precedents cited by the majority in defense of this absurdity:
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. [33]
While not relevant to the issue of racism, Justice Wanamaker's closing paragraphs capture well the biting wit and intelligence of this jurist, who was unfortunately, outnumbered on the bench:
I hold that the laws of the state of Ohio should be so applied and so interpreted as to favor the law-abiding rather than the law-violating people. If this decision shall stand as the law of Ohio, a very large percentage of the good people of Ohio to-day are criminals, because they are daily committing criminal acts by having these weapons in their own homes for their own defense. The only safe course for them to pursue, instead of having the weapon concealed on or about their person, or under their pillow at night, is to hang the revolver on the wall and put below it a large placard with these words inscribed:
"The Ohio supreme court having decided that it is a crime to carry a concealed weapon on one's person in one's home, even in one's bed or bunk, this weapon is hung upon the wall that you may see it, and before you commit any burglary or assault, please, Mr. Burglar, hand me my gun." [34]
There are other examples of remarkable honesty from the state supreme courts on this subject, of which the finest is probably Florida Supreme Court Justice Buford's concurring opinion in Watson v. Stone (1941), in which a conviction for carrying a handgun without a permit was overturned, because the handgun was in the glove compartment of a car:
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. [35]
Today is not 1893, and when proponents of restrictive gun control insist that their motivations are color-blind, there is a possibility that they are telling the truth. Nonetheless, there are some rather interesting questions that should be asked today. The most obvious question is, "Why should a police chief or sheriff have any discretion in issuing a concealed handgun permit?" Here in California, even the state legislature's research arm--hardly a nest of pro-gunners--has admitted that the vast majority of permits to carry concealed handguns in California are issued to white males. [36] Even if overt racism is not an issue, an official may simply have more empathy with an applicant of a similar cultural background, and consequently be more able to relate to the applicant's concerns. As my wife pointedly reminded a police official when we applied for concealed weapon permits, "If more police chiefs were women, a lot more women would get permits, and be able to defend themselves from rapists."
Gun control advocates today are not so foolish as to openly promote racist laws, and so the question might be asked what relevance the racist past of gun control laws has. One concern is that the motivations for disarming blacks in the past are really not so different from the motivations for disarming law-abiding citizens today. In the last century, the official rhetoric in support of such laws was that "they" were too violent, too untrustworthy, to be allowed weapons. Today, the same elitist rhetoric regards law-abiding Americans in the same way, as child-like creatures in need of guidance from the government. In the last century, while never openly admitted, one of the goals of disarming blacks was to make them more willing to accept various forms of economic oppression, including the sharecropping system, in which free blacks were reduced to an economic state not dramatically superior to the conditions of slavery.
In the seventeenth century, the aristocratic power structure of colonial Virginia found itself confronting a similar 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 if they could, but the threat of both Indian and pirate attack made this impractical; for all white men "were armed and had to be armed..." Instead, blacks, who had occupied a poorly defined status between indentured servant and slave, were reduced to hereditary chattel slavery, so that poor whites could be economically advantaged, without the upper class having to give up its privileges. [37]
Today, the forces that push for gun control seem to be heavily (though not exclusively) allied with political factions that are committed to dramatic increases in taxation on the middle class. While it would be hyperbole to compare higher taxes on the middle class to the suffering and deprivation of sharecropping or slavery, the analogy of disarming those whom you wish to economically disadvantage, has a certain worrisome validity to it.
Another point to consider is that in the American legal system, certain classifications of governmental discrimination are considered constitutionally suspect, and these "suspect classifications" (usually considered to be race and religion) come to a court hearing under a strong presumption of invalidity. The reason for these "suspect classifications" is because of the long history of governmental discrimination based on these classifications, and because these classifications often impinge on fundamental rights. [38]
In much the same way, gun control has historically been a tool of racism, and associated with racist attitudes about black violence. Similarly, many gun control laws impinge on that most fundamental of rights: self-defense. Racism is so intimately tied to the history of gun control in America that we should regard gun control aimed at law-abiding people as a "suspect idea," and require that the courts use the same demanding standards when reviewing the constitutionality of a gun control law, that they would use with respect to a law that discriminated based on race.
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Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, ...By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine..., was published in 1990. ...For The Defense of Themselves And The State: The Original Intent & Judicial Interpretation of the Right To Keep And Bear Arms... will be published by Greenwood/Praeger Press in 1994.
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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).
22. Cooper and Worsham v. Savannah, 4 Ga. 68, 69 (1848).
23. Cooper and Worsham v. Savannah, 4 Ga. 68, 70, 71 (1848).
24. Cooper and Worsham v. Savannah, 4 Ga. 68, 72 (1848).
25. Juliet E. K. Walker, _Free Frank: A Black Pioneer on the Antebellum Frontier_, (Lexington, KY, University Press of Kentucky: 1983), 21. This is an inspiring biography of a slave who, through hard work moonlighting in the production of saltpeter (a basic ingredient of black powder) and land surveying, saved enough money to buy his wife, himself, and eventually all of his children and grandchildren out of slavery -- while fighting against oppressive laws and vigorous racism. Most impressive of all, is that he did it without ever learning to read or write.
26. Walker, 73.
27. Stephen Middleton, _The Black Laws in the Old Northwest: A Documentary History_, (Westport, Conn., Greenwood Press: 1993), 27-32, 227-240, 309-314, 353-357, 403-404.
28. Michael Les Benedict, _The Fruits of Victory: Alternatives to Restoring the Union_, 1865-1877, (New York, J.B. Lippincott Co.: 1975), 87. Francis L. Broderick, _Reconstruction and the American Negro, 1865-1900_, (London, Macmillan Co.: 1969), 21. Dan T. Carter, _When The War Was Over: The Failure of Self-Reconstruction in the South, 1865- 1867_, (Baton Rouge, Louisiana State University Press: 1985), 219-221. Eric Foner, _Reconstruction_, (New York, Harper & Row: 1988), 258-259.
29. Foner, _Reconstruction_, 200-201.
30. Cockrum v. State, 24 Tex. 394, 401, 402, 403 (1859).
31. English v. State, 35 Tex. 473, 475 (1872).
32. English v. State, 35 Tex. 473, 479, 480 (1872).
33. State v. Nieto, 101 Ohio St. 409, 430, 130 N.E. 663 (1920).
34. State v. Nieto, 101 Ohio St. 409, 436, 130 N.E. 663 (1920).
35. Watson v. Stone, 4 So.2d 700, 703 (Fla. 1941).
36. Assembly Office of Research, _Smoking Gun: The Case For Concealed Weapon Permit Reform_, (Sacramento, State of California: 1986), 5.
37. Edmund S. Morgan, "Slavery and Freedom: The American Paradox," in Stanley N. Katz, John M. Murrin, and Douglas Greenberg, ed., _Colonial America: Essays in Politics and Social Development_, 4th ed., (New York: McGraw-Hill, Inc, 1993), 280.
38. Thomas G. Walker, "Suspect Classifications", _Oxford Companion to the Supreme Court of the United States_, (New York, Oxford University Press: 1992), 848.
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Elmer Keith
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Well said.
Last edited:
Evil Attorney
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Ishmael said:
Most don't care.
Nothing is shorter than a politician's memory for uncomfortable facts.
Elmer Keith
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Ishmael said:
No kidding.
Elmer Keith
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Ishmael said:
Around this joint? I reckon you and me, both.
Pyro Paul
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The world would be a much safer place if every one had a fire arm. also a whole hellva lot smarter.
just think of it. Who would commit a crime or rob a bank when you know, the guy beside you, has a gun. the woman infront of you... has a gun. those 20 people behind you... all have guns.
and besides it would be perfect to thin out the imperfections in humanity. Say some one IS stupid enough to pull a gun out in that situation. 20 people pull out their guns and either he surrenders or gets shot to death. either way thats 1 less stupid person in the world.
its a Win win Situation!!
just think of it. Who would commit a crime or rob a bank when you know, the guy beside you, has a gun. the woman infront of you... has a gun. those 20 people behind you... all have guns.
and besides it would be perfect to thin out the imperfections in humanity. Say some one IS stupid enough to pull a gun out in that situation. 20 people pull out their guns and either he surrenders or gets shot to death. either way thats 1 less stupid person in the world.
its a Win win Situation!!
The Heretic
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I don't know about that - it isn't just guns that make a society polite, it is values. Look at Somalia.Pyro Paul said:
dmonty
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well this didn't age well....
NY State created an illegal Ballistics Fingerprint database, just like you suggested in your comment... and not a single crime was ever solved or helped any investigation - in fact it turns out it created so much noise that entire criminology forensics concept of ballistics fingerprinting industry was nearly dismantled once NY State Troopers realized that the ballistics fingerprints weren't unique and could be matched to multiple guns. They quickly and quietly the every gun sold in NY must be presented for a ballistics fingerprint, and have since stopped updating the database as well.
https://www.nbcnews.com/id/wbna26931172
rockcasbah
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2005… if only he’d listened!
darkmind222
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You know this is nut's right? there is no reason to carry a gun around loaded and ready to go. Even in a house, gun's should be in a locked gun safe. I saw a guy from the gun lobby explaining that you need an AR15 assault rifle to shoot raccoons before they get to the hen house or some shit. They used to shoot them with muskets and did a pretty good job at the time. No one outside the military needs this kind of gun and no one who is sane needs to have a gun the same day as they want to purchase it. Waiting a few weeks would be fine for anyone who doesn't want to kill nineteen kids at a school. The laws changed in Australia after a mass shooting years ago and I still have my bolt-action rifles, I just have to wait thirty days to pick them up after I buy them, no big deal because I'm not a criminal or want to kill kids with them. You guys driving around the streets with handguns in your cars are causing the police to treat every pullover like it's a potential shootout and have their guns drawn and fingers on the trigger. after that, anything could happen and often does in your country. But you can't take the guns off people sitting in their apartments inside US cities that have never seen a raccoon in their lives, No they have the right to bear arms. You never know when you might need that gun. Or when your kids might find and blow their own heads off.
You are a strange bunch in the US.
You are a strange bunch in the US.
