*17* The historical record provides compelling evidence that
racism underlies gun control laws -- and not in any subtle way. Throughout much
of American history, governments openly stated that gun control laws were useful
for keeping blacks and Hispanics "in their place" and for quieting the racial
fears of whites.
Racist arms laws predate the establishment of the United States. This is not
surprising. Blacks in the New World were often slaves, and 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 blacks could actually handle freedom
often led New World governments to disarm allblacks, both slave and
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."(1) If a
black refused to stop on demand and was on horseback, the colonist was
authorized to "shoot to kill."(2) In
Louisiana, the fear of Indian attack and the importance of hunting to the
colonial economy necessitated that slaves sometimes possess firearms. The
colonists had to balance their fear of the Indians against their fear of their
slaves. As a result, French Louisiana passed laws that allowed slaves and free
blacks to possess firearms only under very controlled conditions.(3)
Similarly, in the sixteenth century the colony of New Spain, terrified of black
slave revolts, prohibited all blacks, free and slave, from carrying
Often the relationship between racism and gun control was direct and obvious.
On other occasions the connection was more complex. One example of a complex
relationship between economic struggle, slavery, and possession of arms can be
found in seventeenth-century Virginia. The aristocratic power structure of
colonial Virginia confronted a political 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, but the threat of both
Indian and pirate attack made this impractical; all white men "were armed and
had to be armed."(5) Instead
of empowering poor whites, blacks, who had occupied a poorly defined status
between indentured servant and slave, were reduced to hereditary chattel
slavery. In this way poor whites could be economically advantaged without the
upper class having to give up its privileges.(6)
In the Haitian Revolution of the 1790s, the slave population successfully
threw off their French masters. As the Revolution degenerated into a race war,
existing fears increased in the French *18* Louisiana colony
and among whites in the American slave states.(7) When the
first U.S. official arrived in New Orleans in 1803 to take charge of the 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." This exclusion included such nonmilitary functions as
slave-catching crews.(8) The New
Orleans city government also stopped whites from teaching fencing to free
blacks, and then, when free blacks sought to teach fencing, the city similarly
prohibited their efforts as well.(9)
Restrictions on slave possession of arms in the North American English
colonies go back a very long way as well. Arms restrictions on free blacks in
slave states, while present, at least allowed free blacks to obtain a license to
possess a gun in their homes, or with good reason, to even carry a gun. Whites
were not similarly restricted.
Arms restrictions on free blacks increased dramatically after Nat Turner's
Rebellion in 1831 caused the South to become increasingly irrational in its
response to Turners Rebellion, the Virginia Legislature made it illegal for free
blacks "to keep or carry any firelock of any kind, any military weapon, or any
powder or lead."(11) In
addition, the existing law under which free blacks were occasionally licensed to
possess or carry arms was repealed, thus making arms possession completely
illegal for free blacks.(12) 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, but did not have powder or a weapon in which to fire
it, was considered sufficient reason for a frenzied mob to discuss summary
execution of the owner.(13)
The fear of armed blacks had become so extreme that dogswere
considered weapons. Maryland prohibited free blacks from owning dogs without a
license and authorized any white to kill an unlicensed dog owned by a free
Mississippi went further and prohibited any ownership of a dog by a
black person, without even a provision for licensed ownership.(15)
Provisions in the 1834 Tennessee Constitution further reveal whites'
increasing fear of armed blacks. Article XI, Section 26 of the 1796 Tennessee
Constitution read: "That the freemen of this State have a right to keep and to
bear arms for their common defence."(16) The
1834 constitution was revised to: "That the free white men of this
State have a right to keep and to bear arms for their common defence."(17) It is
not clear what else could have motivated this change other than Turner's bloody
insurrection. The year before the new constitution was adopted, the Tennessee
Supreme Court had recognized the right to bear arms as an individual guarantee,
but there is no evidence that this decision caused the change.(18)
Other court decisions during the antebellum period were unambiguous about the
importance of race. In State v. Huntly, the North Carolina Supreme Court
recognized that the North Carolina Constitution guaranteed a right to carry
arms, as long as such arms were carried in a manner not likely to frighten
following year the North Carolina Supreme Court decided State v. Newsom. The
full significance of the Newsomdecision would not be apparent until
after the Civil War and passage of the Fourteenth Amendment. An 1840 statute
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 thereof, he or she shall be guilty of a misdemeanor, and may be
Elijah Newsom, "a free person of color," was indicted under the Statute 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.(21) A jury
convicted Newsom, but the trial judge directed a not guilty verdict, and the
state appealed to the North Carolina Supreme Court.(22)
Newsom's attorney argued that the Statute, which required free blacks to obtain
a license to "keep and bear arms," violated both the Second Amendment to the
U.S. Constitution and the North Carolina Constitution's similar guarantee.(23) The
North Carolina Supreme Court refused to accept that the Second Amendment was a
limitation on state laws. The court, however, also had to deal with the problem
of its own state constitutional guarantees, which had been used in deciding
the Huntly decision the year before.
Article seventeen 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.(24)
The Newsom 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."(25) But in
Huntly, the court had acknowledged that the seemingly restrictive
language "for the defence of the State" included an individual right.(26) The
Newsomcourt then attempted to justify the necessity of this law:
*19* 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
The North Carolina Supreme Court also sought to repudiate the idea that North
Carolina's Bill of Rights protected free blacks by pointing out that it excluded
free blacks from voting. Therefore, the court reasoned, free blacks were not
citizens. But unlike a number of other state constitutions that limit the right
to keep and bear arms to citizens,(28)
Article seventeen of the North Carolina Bill of Rights guaranteed this right to
the people(29) -- 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 close of the decade. The Georgia Supreme Court found in
Nunn v. State 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 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!(30)
Finally, after this paean to liberty -- in a state where much of the
population remained enslaved and 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. . . .(31)
"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 narrow right of a
"citizen." The motivation for this sudden narrowing of the right -- that blacks
were not citizens -- appeared two years later.
Cooper and Worsham v. Mayor of Savannah 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 one hundred dollar 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
appeal, counsel for Cooper and Worsham argued that the ordinance establishing
the tax was deficient in a number of technical areas.(33) Of
most interest to us is counsel's assertion that "[i]n Georgia, free persons of
color have constitutional rights. . . ."(34) Cooper
and Worsham's counsel argued that these included the right to writ of habeas
corpus, the right to own real estate, the right to be "subject to taxation," and
the right to "sue and be sued." Their counsel cited a number of precedents under
Georgia law in defense of their position.(35)
Justice Warner delivered the court's opinion. One portion of the opinion
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."(36) The
Georgia Supreme Court did agree that the ordinance jailing Cooper and Worsham
for nonpayment was illegal and ordered their release,(37) but
the comments of the court make it clear that their brave words in Nunn v. State
about "the right of the people" really only meant white people.(38)
Finally, in the infamous Dred Scott decision, the U.S. Supreme Court
showed that it shared this understanding that citizenship excluded blacks and
explained the relationship between citizenship and the carrying of arms:
*20* It would give to persons of the negro race,
who were recognized as citizens in any one State of the Union, the right to
enter every other State whenever they pleased, singly or in companies, without
pass or passport, and without obstruction, to sojourn there as long as they
pleased, to go where they pleased at every hour of the day or night without
molestation, unless they committed some violation of law for which a white man
would be punished; and it would give them the full liberty of speech in public
and in private upon all subjects upon which its own citizens might speak; to
hold public meetings upon political affairs, and to keep and carry arms
wherever they went. And all of this would be done in the face of the
subject race of the same color, both free and slaves, inevitably producing
discontent and insubordination among them, and endangering the peace and
safety of the State.(39)
While settled parts of the South were in great fear of armed blacks, concerns
about Indian attack often forced relaxation of these rules on the frontier. The
1798 Kentucky Comprehensive Act allowed slaves and free blacks on frontier
plantations "to keep and use guns, powder, shot, and weapons, offensive and
whites, however, free blacks and slaves were required to have a license to carry
Blacks needed to carry arms for self-defense not only against criminal
attacks that any person, white or black, might worry about, but they also needed
arms for protection against the additional hazard of being kidnapped and sold
into slavery.(42) A
number of states, including Ohio, Indiana, Illinois, Michigan, and Wisconsin,
passed laws specifically to prohibit kidnapping of free blacks. These states
were concerned that the Federal Fugitive Slave Laws would be used as cover for
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 Codes are sufficiently well-known that any reasonably complete
history of the Reconstruction period mentions them. These restrictive gun laws
played a part in provoking Republican efforts to get the Fourteenth Amendment
Republicans in Congress apparently believed that it would be difficult for night
riders to provoke terror in freedmen who were returning fire.
It appears that the Fourteenth Amendments 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 in 1866, the same year the arms
control laws were adopted, were intended to be used against blacks, even though
the language was race-neutral.(45)
The former states of the Confederacy, many of which had recognized the right
to carry arms openly before the Civil War, developed a greater willingness to
qualify that right after the passage of the Fourteenth Amendment. One especially
absurd example of how far a state was willing to go to qualify the right to bear
arms, and one that includes strong evidence of the racist intentions behind gun
control laws, is a decision made in Texas. In 1859 in Cockrum v. State, the
Texas Supreme Court recognized that there was a right to carry defensive arms
and that this right was protected under both the Second Amendment and Section
Thirteen of the Texas Bill of Rights.(46) 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, but could not prohibit their being
by 1872 in English v. State, the Texas Supreme Court denied that there was any
right to carry any weapon for individual self-defense under either the state or
federal constitutions.(48) Rather
than explaining or justifying why the Cockrum decision was no longer
valid, the court merely explained that the issue of the right to bear arms "was
not fairly before the court" in Cockrum.(49)
What caused the dramatic change? The following excerpt from the
English decision reveals how racism permeated legal thinking:
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 *21* 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.(50)
Throughout the South during the post-war period, the existing precedents that
recognized a right to openly carry arms under state constitutional provisions
and the Second Amendment were being narrowly construed or simply ignored.(51) The
apparent goal of the gun control and vagrancy laws was to intimidate the
freedmen into an economically subservient position. By making the freedmen
defenseless, employers could be more confident that intimidation would keep
their hired hands "in line."
Nor was the intent that led to these laws lost on judges in the North. In
1920, the Ohio Supreme Court upheld the conviction of a Mexican for carrying a
concealed handgun -- while he was asleep in his own bed.(52)
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.(53)
There are other examples of remarkable honesty from the state supreme courts
on this subject. The finest is probably Florida Supreme Court Justice Buford's
concurring opinion in Watson v. Stone. In Watson, a conviction for
carrying a handgun without a permit was overturned because the handgun was in
the glove compartment of a car.(54)
Justice Buford wrote:
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.(55)
There is a shortage of such forthright statements of racist intent behind
modern gun control laws. But has the racist intent disappeared, or simply been
recast into a more acceptable form? Robert Sherrill, at one time a correspondent
for The Nation and a supporter of restrictive gun control laws, argued
in his book The Saturday Night Special that fear of armed blacks was
the major provocation of the Gun Control Act of 1968. He argues:
The Gun Control Act of 1968 was passed not to control guns to but
control blacks, and inasmuch as a majority of Congress did not want to do the
former but were ashamed to show that their goal was the latter, the result was
that they did neither. Indeed, this law, the first gun-control law passed by
Congress in thirty years, was one of the grand jokes of our time.(56)
Sherrill failed to provide "smoking gun" evidence for his claim, but there is
no shortage of evidence of the level of fear that gripped white America in the
late 1960s. The California Legislature adopted a major new arms law in 1967, for
the first time prohibiting the open carrying of firearms in cities.(57) This
law easily passed after the Black Panthers demonstrated against it -- by walking
into the Assembly Chamber carrying "pistols, rifles, [and] at least one
sawed-off shotgun."(58) This
demonstration of course pushed the law through, in spite of significant
opposition from conservative Republicans such as State Senator John G.
Another piece of evidence that corroborates Sherrills belief that both
liberals and conservatives intended the Gun Control Act of 1968 as race control
more than gun control has recently been found. There are strong similarities
between the Gun Control Act of 1968 and the 1938 weapons law adopted by Nazi
similarity is no coincidence; one of the principal authors of the Gun Control
Act of 1968 was Senator Thomas Dodd of Connecticut. After World War II, Dodd was
assistant to the chief prosecutor at the Nuremberg war crime trials.(61)
Shortly before the Gun Control Act of 1968 was written, Dodd asked the Library
of Congress to translate the 1938 German weapons law into English.
*22* Dodd supplied the German text.(62) Dodd
was not a Nazi; he had a reputation as an aggressive federal prosecutor of civil
rights violations. Furthermore, it seems unlikely that any sort of American
Holocaust was intended. Nonetheless, it would not be surprising if Dodd found it
convenient to adapt a law that had already proven its efficacy at disarming a
Today is not 1968. 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 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.(63) 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 more closely
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 would be able to defend
themselves from rapists."
The warrantless searches of private residences for guns in Chicago housing
projects in early 1994 is another reminder of how racism and gun control remain
intertwined. (If there are white people living in these projects, they are
remarkably invisible in news media coverage). While these warrantless searches
were finally blocked by a judge, the popular press was remarkably neutral in its
coverage of the Clinton administrations advocacy of such an obvious violation of
the Fourth Amendments protections against unreasonable searches. President
Clinton, after his warrantless search policy was struck down, explained his
Finally, we're going to work with residents in high-crime areas to
permit the full range of searches that the Constitution does allow in common
areas, in vacant apartments, and in circumstances where residents are in
immediate danger. We'll encourage more weapons frisks of suspicious persons,
and we'll ask tenant associations to put clauses in their leases allowing
searches when crime conditions make it necessary.(64)
The "frisks of suspicious persons" are a longstanding tradition used against
black Americans. Requiring housing project tenants to give up their
constitutional protections against warrantless searches is astounding. Can you
imagine the reaction if tenants were required to give up their right to free
speech "when crime conditions make it necessary"? It is hard to imagine the
government attempting something similar in a white suburb -- at least until the
courts first find it constitutional in a black ghetto.
The case might be made that the government attempted to make the tenants safe
by unconstitutional means -- that the intentions were good even if the methods
were wrong. But even for the "special case" of housing projects, there are
profound inconsistencies in the policy. Secretary of Housing and Urban
Development Henry Cisneros in a press conference on February 4, 1994, attempted
to justify the warrantless searches as protecting the tenants of these
crime-ridden projects. Cisneros, however, admitted that "[c]rime statistics . .
. show that public housing residents are not to blame for the reign of
large majority of those arrested in housing projects were nonresidents.(66) It is
therefore all the more amazing that the residents, who would presumably
have much to fear from these armed nonresident criminals, are the ones that the
Clinton administration seeks to disarm.
If we examine these Clinton administration policies as a pragmatic response
to crime, we must ask: why disarm the likely victims of the criminals?
But if we consider these inexplicable policies as the latest symptom of racist
attitudes about violence, then these policies make much more sense.
Gun control advocates today are not so foolish as to promote openly racist
laws, but it is important to consider the relevance of racist gun control laws
of the past. My concern is that past motivations for disarming blacks are really
not so different from the motivations behind disarming law-abiding citizens
today. In the last century, the rhetoric in support of such laws was that "they"
(i.e., blacks) were too violent and too untrustworthy to be allowed weapons.
Today, the same elitist rhetoric regards law-abiding Americans the same way, as
children in need of guidance from the government. While never openly admitted,
one of the goals of disarming blacks was to make them more willing to accept
various forms of economic oppression, such as the sharecropping system, in which
free blacks were kept in an economic state not dramatically superior to slavery.
Even today, with open racism unacceptable in the mainstream of American
politics, gun control still looks suspiciously concerned with issues of race.
The Crime Bill of 1994, passed after a bruising fight in Congress, was opposed
by an unlikely coalition in the House: most Republicans, some conservative
Democrats, and many black Democrats. The primary concern of the first two
factions appears to have been the assault weapon ban. Black Democrats were
concerned that the death penalty provisions would disproportionately affect
The assault weapon ban provisions of the Crime Bill certainly reflected a
widespread fear of armed inner-city blacks. Much of its rhetoric was devoted to
the dangers of these guns in the *23* hands of "gang members"
and other code phrases for poor blacks. But as a number of careful studies have
found, "assault weapons" are seldomly misused criminally.(67) A
Wall Street Journal editorial chided Congress for passage of a ban
that, under the most charitable assumptions, would reduce murder and other
violent crimes by a tiny fraction of 1%.(68) The
Trenton, New Jersey assistant chief of police testified before Congress that his
officers were more likely to confront an escaped tiger than a criminal with an
assault weapon.(69) Crime
control was not the motivation for the assault weapon ban.
Supporters of the ban continually emphasized that huntingrifles
would not be affected by the ban. Was this a subtle way of saying that the sort
of guns owned by white Americans would not be affected? Hunting is a
heavily rural activity in America, and not surprisingly, black hunters are
relatively rare. Similarly, an argument advanced by some pro-ban members of the
Congress (notably Senator Campbell of Colorado) was that the law would only
affect new manufacturing -- existing owners could keep their guns. If the effect
of a similar 1986 ban on new machine gun manufacturing is any indication, the
net effect of such an assault weapon ban will be to dramatically increase the
price of existing weapons. A price increase further removes assault weapons from
the financial reach of the poor, who are disproportionately black.
What are the policy implications of restrictive gun control today?
Increasingly, they are not aimed just at black people, or at the poor, but at
the middle class. The forces that push for gun control are 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 under the American legal system certain
classifications of governmental discrimination are considered constitutionally
suspect, and these "suspect classifications" are subject to a strong presumption
of invalidity (e.g., a law that made distinctions based on race, even
if the distinction was nominally race-neutral in its effect).(70) These
classifications are suspect because there is a long history of governmental
discrimination based on them, and because laws based on these classifications
often impinge on fundamental rights.(71)
In much the same way, gun control historically has 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 use with respect to a law that
discriminates based on race.
Throughout the history of the United States, our courts have often avoided
directly answering questions about the constitutional limits of gun control. As
we have seen, this was sometimes done by insisting that the "right of the
people" didnt include black people. Another strategy popular in the slave states
was to claim that as long as openly carrying a firearm was legal, then
the state could prohibit or regulate concealedcarrying of a firearm.
Yet another strategy was to dispute what "arms" were protected. The New York
courts upheld the Sullivan Act, which licensed the possession of handguns at
home, on the basis that handguns were not a constitutionally protected arm --
unlike a rifle or a shotgun. Such decisions have usually insisted that only
"arms of the soldier" are protected by the Second Amendment, or the state
constitutions equivalent provision.
In United States v. Cruikshank (a decision that emasculated the Ku Klux Klan
Act), the U.S. Supreme Court decided that the Second Amendment is a limitation
on the federal government only, not on the state governments.(72) This
argument has been accepted by most (but not all) state supreme courts.(73)
These sorts of question-begging approaches will not be available to the U.S.
Supreme Court in the cases that will come before it shortly. The assault weapon
ban in the 1994 Crime Bill prohibits new manufacture of a category of weapons
that is more clearly protected by original intent and existing precedents than
any other category of common privately owned arm: arms with a primarily military
function and appearance. Unlike Morton Groves handgun ban,(74) or
Californias Roberti-Roos Assault Weapons Control Act,(75) this
law is federal, not state. Fourteenth *24* Amendment
incorporation is not necessary for the Crime Bills ban to be contrary to the
Similarly, the Administrations gun control policies with respect to public
housing will create differential treatment between whites and blacks, simply
because blacks are so overwhelmingly the residents of urban public housing
projects. Will the Supreme Court apply the same reasoning to the Second
Amendment that they have with the First Amendment? Or will they continue a
tradition of winking at the Second Amendment because the underlying policy of
gun control is based on racist assumptions?
1. Thomas N. Ingersoll, Free Blacks in a Slave Society: New Orleans,
1718-1812, 48 Wm. & Mary Q. 173, 178-79 (1991).
3. Daniel H. Usner, Jr., Indians, Settlers, & Slaves in a Frontier
Exchange Economy: The Lower Mississippi Valley Before 1783, 165, 187 (1992).
4. Michael C. Meyer & William L. Sherman, The Course of Mexican History
216 (4th ed. 1991).
5. Edmund S. Morgan, Slavery and Freedom: The American Paradox,
in Colonial America: Essays in Politics and Social Development 280
(Stanley N. Katz et al. eds., 4th ed. 1993)
7. Benjamin Quarles, The Negro in the Making of America 81 (3rd ed. 1987).
8. Ingersoll, supra note 1, at 198-200.
9. Id. at 199-200.
10. Stanley Elkins, Slavery 220 (3rd ed. 1976).
11. Nat Turner 115 (Eric Foner ed., 1971).
13. Harriet Jacobs [Linda Brant], Incidents in the Life of a Slave
Girl (1861), in The Classic Slave Narratives 333, 395-96 (Henry
Louis Gates, Jr. ed., 1987).
14. Theodore Brantner Wilson, The Black Codes of the South 30 (1965).
16. 6 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, 3424 (Francis Newton Thorpe, ed., 1909)
[hereinafter The Federal and State Constitutions].
19. State v. Huntly, 25 N.C. 311, 314 (3 Ired.) (1843).
20. State v. Newsom, 27 N.C. 203, 203 note (5 Ired.) (1844).
21. Id. at 204.
24. 5 The Federal and State Constitutions, supra note 16, at 2788.
25. State v. Newsom, 27 N.C. 203, 206 (5 Ired.) (1844).
26. State v. Huntly, 25 N.C. 311, 314 (3 Ired.) (1843).
27. Newsom, 27 N.C. at 206.
28. 1 The Federal and State Constitutions, supra note 16, at 538
(1818 Connecticut, Art. I, Sec. 17); 3 Id. at 1275 (1792 Kentucky, Art.
XII, Sec. 23) and at 1290 (1799, Art. IX, Sec. 23); 3 Id. at 1648 (1819
Maine, Art. I, Sec. 16); 4 Id. at 2034 (1817 Mississippi, Art. I, Sec.
23); 5 Id. at 3101 (1790 Pennsylvania, Art. IX, Sec. 21, but
see 5 Id. at 3083, 1776 Constitution, "That the people have a
right to bear arms. . . ."); 6 Id. at 3543 (1836 Republic of Texas
Declaration of Rights, Sec. 14) and at 3548 (1845 Texas Constitution, Art. I,
29. 5 Id. at 2788.
30. Nunn v. State, 1 Ga. 243, 251 (1846).
32. Cooper v. Mayor of Savannah, 4 Ga. 68, 68 (1848).
33. Id. at 70.
34. Id. at 71.
36. Id. at 72.
37. Id. at 73, 74, 75.
38. 1 Ga. 243, 251 (1846) (upholding the right to bear arms).
39. Dred Scott v. Sandford, 60 U.S. 393, 417 (19 How.) (1857) (emphasis
40. Juliet E. K. Walker, Free Frank: A Black Pioneer on the Antebellum
Frontier 21 (1983) (quoting the statute). This is an inspiring biography of a
slave who, through hard work moonlighting in the production of saltpeter 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.
42. See id. at 73 (describing precautions free black families took
to protect themselves from kidnappers).
43. Stephen Middleton, The Black Laws in the Old Northwest: A Documentary
History, 27-32, 227-40, 309-14, 353-7, 403-4 (1993) (quoting statutes from
Illinois, Indiana, Michigan, Ohio and Wisconsin).
44. Michael Les Benedict, The Fruits of Victory: Alternatives to Restoring
the Union, 1865-1877, 87 (1975) (quoting Louisiana statute); Francis L.
Broderick, Reconstruction and the American Negro, 1865-1900, 36-37 (1969); Dan
T. Carter, When The War Was Over: The Failure of Self-Reconstruction in the
South, 1865-1867, 219-21 (1985) (describing confiscation of arms from blacks
after the Civil War); Eric Foner, Reconstruction 258-9 (1988).
*25* 45. See Foner, supra note 44, at
46. 24 Tex. 394, 401-02 (1859).
47. Id. at 401, 403-04.
48. 35 Tex. 473, 476-77, 478 (1872).
49. Id. at 476 (citing "Cochrane [sic.] v. The State, 24 Tex. 394.")
50. Id. at 479-80 (emphasis added).
51. See, e.g., id. at 475.
52. State v. Nieto, 130 N.E. 663, 663, 665 (1920).
53. Id. at 669 (emphasis added).
54. 4 So. 2d 700, 702-03 (1941).
55. Id. at 703.
56. Robert Sherrill, The Saturday Night Special 280 (1973).
57. Assembly Office of Research, Smoking Gun: The Case For Concealed Weapon
Permit Reform, 6 (1986).
58. Capitol Is Invaded, Sacramento Bee, May 2, 1967, A1, A10.
59. Bill Barring Loaded Weapons In Public Clears Senate 29-7,
Sacramento Bee, July 27, 1967, A6.
60. Jim Simkin & Aaron Zelman, "Gun Control": Gateway to Tyranny 83
(1992) (providing the full text in German and English of the various weapons
laws and regulations adopted by the Weimar Republic and the Nazis from 1928 to
1938 and comparing them to the Gun Control Act of 1968).
61. Sherrill, supra note 56, at 67.
62. Jews for the Preservation of Firearms Ownership, The War on Gun
Ownership Still Goes On!, Guns & Ammo, May 1993, at 30-31.
63. Assembly Office of Research, supra note 57, at 5.
64. The President's Radio Address of Apr. 16, 1994, 30 Weekly Comp. Pres.
Doc. 823 (Apr. 16, 1994).
65. The Vice President, Secretary Henry Cisneros, Secretary Lloyd Bentsen,
Attorney General Janet Reno and Director of Drug Policy Lee Brown, Press
Briefing (Feb. 4, 1994) (transcript available from the White House Office of the
67. Gary Kleck, Point Blank: Guns and Violence in America75 (1991).
68.What Is an Assault Weapon?, Wall St. J., Aug. 25, 1994, at A12.
70. Thomas G. Walker, Suspect Classifications, in Oxford
Companion to the Supreme Court of the United States 848 (Kermit L. Hall et al.
72. 92 U.S. 542, 553 (1875).
73. See generally Clayton E. Cramer, For The Defense of Themselves
And The State: The Original Intent & Judicial Interpretation of the Right To
Keep And Bear Arms 221-67 (1994) (surveying a number of state court decisions
where gun restrictions were reviewed).
74. Morton Grove, Ill., Ordinance 81-11 (June 8, 1981).