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Gun Control Reveals Its Racist Roots
[A Division of the National Rifle Association]Laws Designed To Disarm Slaves, Freedmen, And African-AmericansOVERVIEWBefore the Civil War ended, State "Slave Codes" prohibited slaves from owning guns. After President Lincoln issued the Emancipation Proclamation in 1863, and after the Thirteenth Amendment to the U.S. Constitution abolishing slavery was adopted and the Civil War ended in 1865, States persisted in prohibiting blacks, now freemen, from owning guns under laws renamed "Black Codes." They did so on the basis that blacks were not citizens, and thus did not have the same rights, including the right to keep and bear arms protected in the Second Amendment to the U.S. Constitution, as whites. This view was specifically articulated by the U.S. Supreme Court in its infamous 1857 decision in Dred Scott v. Sandford to uphold slavery. The United States Congress overrode most portions of the Black Codes by passing the Civil Rights Act of 1866. The legislative histories of both the Civil Rights Act and the Fourteenth Amendment, as well as The Special Report of the Anti-Slavery Conference of 1867, are replete with denunciations of those particular statutes that denied blacks equal access to firearms. [Kates, "Handgun Prohibition and the Original Meaning of the Second Amendment," 82 Mich. L. Rev. 204, 256 (1983)] However, facially neutral disarming through economic means laws remain in effect. After the adoption of the Fourteenth Amendment to the U.S. Constitution in 1878, most States turned to "facially neutral" business or transaction taxes on handgun purchases. However, the intention of these laws was not neutral. An article in Virginia's official university law review called for a "prohibitive tax...on the privilege" of selling handguns as a way of disarming "the son of Ham," whose "cowardly practice of 'toting' guns has been one of the most fruitful sources of crime.... Let a negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights." [Comment, Carrying Concealed Weapons, 15 Va L. Reg. 391, 391-92 (1909); George Mason University Civil Rights Law Journal (GMU CR LJ), Vol. 2, No. 1, "Gun Control and Racism," Stefan Tahmassebi, 1991, p. 75] Thus, many Southern States imposed high taxes or banned inexpensive guns so as to price blacks and poor whites out of the gun market. In the 1990s, "gun control" laws continue to be enacted so as to have a racist effect if not intent: a] Police-issued license and permit laws, unless drafted to require issuance to those not prohibited by law from owning guns, are routinely used to prevent lawful gun ownership among "unpopular" populations. b] Public housing residents, approximately 3 million Americans, are singled out for gun bans. c] "Gun sweeps" by police in "high crime neighborhoods" whereby vehicles and "pedestrians who meet a specific profile that might indicate they are carrying a weapon" are searched are becoming popular, and are being studied by the U.S. Department of Justice as "Operation Ceasefire." Sample Slave Codes, Black Codes, Economic-Based Gun Bans Used To Prevent The Arming Of African Americans, 1640-19951640 Virginia Race-based total gun and self-defense ban. "Prohibiting negroes, slave and free, from carrying weapons including clubs." (The Los Angeles Times, "To Fight Crime, Some Blacks Attack Gun Control," January 19, 1992) 1640 Virginia Race-based total gun ban. "That all such free Mulattoes, Negroes and Indians...shall appear without arms." [7 The Statues at Large; Being a Collection of all the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, p. 95 (W.W. Henning ed. 1823).] (GMU CR LJ, p. 67) 1712 Virginia Race-based total gun ban. "An Act for Preventing Negroes Insurrections." (Henning, p. 481) (GMU CR LJ, p. 70) 1712 South Carolina Race-based total gun ban. "An act for the better ordering and governing of Negroes and slaves." [7 Statutes at Large of South Carolina, p. 353-54 (D.J. McCord ed. 1836-1873).] (GMU CR LJ, p. 70) 1791 United States 2nd Amendment to the U.S. Constitution ratified. Reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." 1792 United States Blacks excluded from the militia, i.e. law-abiding males thus instilled with the right to own guns. Uniform Militia Act of 1792 "called for the enrollment of every free, able-bodied white male citizen between the ages of eighteen and forty-five" to be in the militia, and specified that every militia member was to "provide himself with a musket or firelock, a bayonet, and ammunition." [1 Stat. 271 (Georgetown Law Journal, Vol. 80, No. 2, "The Second Amendment: Toward an Afro-Americanist Reconsideration," Robert Cottrol and Raymond Diamond, 1991, p. 331)] 1806 Louisiana Complete gun and self-defense ban for slaves. Black Code, ch. 33, Sec. 19, Laws of La. 150, 160 (1806) provided that a slave was denied the use of firearms and all other offensive weapons. (GLJ, p. 337) 1811 Louisiana Complete gun ban for slaves. Act of April 8, 1811, ch. 14, 1811 Laws of La. 50, 53-54, forbade sale or delivery of firearms to slaves. (Id.) 1819 South Carolina Master's permission required for gun possession by slave. Act of Dec. 18, 1819, 1819 Acts of S.C. 28, 31, prohibited slaves outside the company of whites or without written permission from their master from using or carrying firearms unless they were hunting or guarding the master's plantation. (Id.) 1825 Florida Slave and free black homes searched for guns for confiscation. "An Act to Govern Patrols," 1825 Acts of Fla. 52, 55 - Section 8 provided that white citizen patrols "shall enter into all negro houses and suspected places, and search for arms and other offensive or improper weapons, and may lawfully seize and take away all such arms, weapons, and ammunition...." Section 9 provided that a slave might carry a firearm under this statute either by means of the weekly renewable license or if "in the presence of some white person." (Id.) 1828 Florida Free blacks permitted to carry guns if court approval. Act of Nov. 17, 1828 Sec. 9, 1828 Fla. Laws 174, 177; Act of Jan. 12, 1828, Sec. 9, 1827 Fla. Laws 97, 100 - Florida went back and forth on the question of licenses for free blacks; twice in 1828, Florida enacted provisions providing for free blacks to carry and use firearms upon obtaining a license from a justice of the peace. (Id.) 1831 Florida Race-based total gun ban. Act of Jan. 1831, 1831 Fla. Laws 30 - Florida repealed all provision for firearm licenses for free blacks. (Id. p. 337-38) 1831 Delaware Free blacks permitted to carry guns if court approval. In the December 1831 legislative session, Delaware required free blacks desiring to carry firearms to obtain a license from a justice of the peace. [(Herbert Aptheker, Nat Turner's Slave Rebellion, p. 74-75 (1966).] (GLJ, p. 338) 1831 Maryland Race-based total gun ban. In the December 1831 legislative session, Maryland entirely prohibited free blacks from carrying arms. (Aptheker, p. 75) (Id., p. 338) 1831 Virginia Race-based total gun ban. In the December 1831 legislative session, Virginia entirely prohibited free blacks from carrying arms. (Aptheker, p. 81) (Id., p. 338) 1833 Florida Slave and free black homes searched for guns for confiscation. Act of Feb. 17, 1833, ch. 671, Sec. 15, 17, 1833 Fla. Laws 26, 29 authorized white citizen patrols to seize arms found in the homes of slaves and free blacks, and provided that blacks without a proper explanation for the presence of the firearms be summarily punished, without benefit of a judicial tribunal. (Id. p. 338) 1833 Georgia Race-based total gun ban. Act of Dec. 23, 1833, Sec. 7, 1833 Ga. Laws 226, 228 declared that "it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever." (Id.) 1840 Florida Complete gun ban for slaves. Act of Feb. 25, 1840, no. 20, Sec. 1, 1840 Acts of Fla. 22-23 made sale or delivery of firearms to slaves forbidden. (Id. p. 337) 1840 Texas Complete gun ban for slaves. "An Act Concerning Slaves," Sec. 6, 1840 Laws of Tex. 171, 172, ch. 58 of the Texas Acts of 1850 prohibited slaves from using firearms altogether from 1842-1850. (Journal of Criminal Law and Criminology, Northwestern University, Vol. 85, No. 3, "Gun Control and Economic Discrimination: The Melting-Point Case-In-Point," T. Markus Funk, 1995, p. 797) 1844 North Carolina Race-based gun ban upheld because free blacks "not citizens." In State v. Newsom, 27 N.C. 250 (1844), the Supreme Court of North Carolina upheld a Slave Code law prohibiting free blacks from carrying firearms on the grounds that they were not citizens. (GMU CR LJ, p. 70) 1845 North Carolina Complete gun ban for slaves. Act of Jan. 1, 1845, ch. 87, Sec. 1, 2, 1845 Acts of N.C. 124 made sale or delivery of firearms to slaves forbidden. (GLJ, p. 337) 1847 Florida Slave and free black homes searched for guns for confiscation. Act of Jan. 6, 1847, ch. 87 Sec. 11, 1846 Fla. Laws 42, 44 provided that white citizen patrols might search the homes of blacks, both free and slave and confiscate arms held therein. (Id. p. 338) 1848 Georgia Race-based gun ban upheld because free blacks "not citizens." In Cooper v. Savannah, 4 Ga. 68, 72 (1848), the Georgia Supreme Court ruled "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." (GMU CR LJ, p. 70) 1852 Mississippi Race-based complete gun ban. Act of Mar. 15, 1852, ch. 206, 1852 Laws of Miss. 328 forbade ownership of firearms by both free blacks and slaves. (JCLC NWU, p. 797) 1857 United States High Court upholds slavery since blacks "not citizens." In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Chief Justice Taney argued if members of the African race were "citizens" they would be exempt from the special "police regulations" applicable to them. "It would give to persons of the negro race...full liberty of speech...to hold public meetings upon political affairs, and to keep and carry arms wherever they went." (Id. p. 417) U.S. Supreme Court held that descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word "citizens" in the Constitution, whether emancipated or not, and remained without rights or privileges except such as those which the government might grant them, thereby upholding slavery. Also held that a slave did not become free when taken into a free state; that Congress cannot bar slavery in any territory; and that blacks could not be citizens. 1860 Georgia Complete gun ban for slaves. Act of Dec. 19, 1860, no. 64, Sec. 1, 1860 Acts of Ga. 561 forbade sale or delivery of firearms to slaves. (GLJ, p. 337) 1861 United States Civil War begins. 1861 Florida Slave and free black homes searched for guns for confiscation. Act of Dec. 17, 1861, ch. 1291, Sec. 11, 1861 Fla. Laws 38, 40 provided once again that white citizen patrols might search the homes of blacks, both free and slave, and confiscate arms held therein. (Id. p. 338) 1863 United States Emancipation Proclamation -- President Lincoln issued proclamation "freeing all slaves in areas still in rebellion." 1865 Mississippi Blacks require police approval to own guns, unless in military. Mississippi Statute of 1865 prohibited blacks, not in the military "and not licensed so to do by the board of police of his or her county" from keeping or carrying "fire-arms of any kind, or any ammunition, dirk or bowie knife." [reprinted in 1 Documentary History of Reconstruction: Political, Military, Social, Religious, Educational and Industrial, 1865 to the Present Time, p. 291, (Walter L. Fleming, ed., 1960.)] (GLJ, p. 344) 1865 Louisiana Blacks require police and employer approval to own guns, unless serving in military. Louisiana Statute of 1865 prohibited blacks, not in the military service, from carrying firearms or any kind of weapons...without the special permission of his employers, approved and indorsed by the nearest and most convenient chief of patrol." (Fleming, p. 280)(GLJ, p. 344) 1865 United States Civil War ends May 26. 1865 United States Slavery abolished as of Dec. 18, 1865. 13th Amendment abolishing slavery was ratified. Reads: "Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation." 1866 Alabama Race-based total gun ban. Black Code of Alabama in January 1866 prohibited blacks to own or carry firearms or other deadly weapons and prohibited "any person to sell, give, or lend fire-arms or ammunition of any description whatever" to any black. [The Reconstruction Amendments' Debates, p. 209, (Alfred Avins ed., 1967)] (GLJ, p. 345) 1866 North Carolina Rights of blacks can be changed by legislature. North Carolina Black Code, ch. 40, 1866 N.C. Sess. Laws 99 stated "All persons of color who are now inhabitants of this state shall be entitled to the same privileges, and are subject to the same burdens and disabilities, as by the laws of the state were conferred on, or were attached to, free persons of color, prior to the ordinance of emancipation, except as the same may be changed by law." (Avins, p. 291.) GLJ, p. 344) 1866 United States Civil Rights Act of 1866 enacted. CRA of 1866 did away with badges of slavery embodied in the "Black Codes," including those provisions which "prohibit any negro or mulatto from having fire-arms." [CONG. GLOBE, 39th Congress, 1st Session, pt. 1, 474 (29 Jan. 1866)] Senator William Saulsbury (D- Del) added "In my State for many years...there has existed a law...which declares that free negroes shall not have the possession of firearms or ammunition. This bill proposes to take away from the States this police power..." and thus voted against the bill. CRA of 1866 was a precursor to today's 42 USC Sec.1982, a portion of which still reads: "All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." 1866 United States Proposed 14th Amendment to U.S. Constitution debated. Opponents of the 14th Amendment objected to its adoption because they opposed federal enforcement of the freedoms in the bill of rights. Sen. Thomas A. Hendricks (D-Ind.) said "if this amendment be adopted we will then carry the title [of citizenship] and enjoy its advantages in common with the negroes, the coolies, and the Indians." [CONG. GLOBE, 39th Congress, 1st Session, pt. 3, 2939 (4 June 1866)]. Sen. Reverdy Johnson, counsel for the slave owner in Dred Scott, opposed the amendment because "it is quite objectionable to provide that 'no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States'." Thus, the 14th Amendment was viewed as necessary to buttress the Civil Rights Act of 1866, especially since the act "is pronounced void by the jurists and courts of the South," e.g. Florida has as "a misdemeanor for colored men to carry weapons...and the punishment...is whipping..." [CONG GLOBE, 39th Con., 1st Session, 504, pt. 4, 3210 (16 June 1866)]. 1866 United States Klu Klux Klan formed. Purpose was to terrorize blacks who voted; temporarily disbanded in 1871; reestablished in 1915. In debating what would become 42 USC Sec. 1983, today's federal civil rights statute, Representative Butler explained "This provision seemed to your committee to be necessary, because they had observed that, before these midnight marauders [the KKK] made attacks upon peaceful citizens, there were very many instances in the South where the sheriff of the county had preceded them and taken away the arms of their victims. This was especially noticeable in Union County, where all the negro population were disarmed by the sheriff only a few months ago under the order of the judge...; and then, the sheriff having disarmed the citizens, the five hundred masked men rode at nights and murdered and otherwise maltreated the ten persons who were in jail in that county." [1464 H.R. REP. No. 37, 41st Cong., 3rd Sess. p. 7-8 (20 Feb. 1871)] 1867 United States The Special Report of the Anti-Slavery Conference of 1867. Report noted with particular emphasis that under the Black Codes, blacks were "forbidden to own or bear firearms, and thus were rendered defenseless against assaults." (Reprinted in H. Hyman, The Radical Republicans and Reconstruction, p. 219, 1967.) (GMU CR LJ, p. 71) 1868 United States 14th Amendment to the U.S. Constitution adopted, conveying citizenship to blacks. Reads, in part: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." 1870 Tennessee First "Saturday Night Special" economic handgun ban passed. In the first legislative session in which they gained control, white supremacists passed "An Act to Preserve the Peace and Prevent Homicide," which banned the sale of all handguns except the expensive "Army and Navy model handgun" which whites already owned or could afford to buy, and blacks could not. ("Gun Control: White Man's Law," William R. Tonso, Reason, December 1985) Upheld in Andrews v. State, 50 Tenn. (3 Heisk.) 165, 172 (1871) (GMU CR LJ, p. 74) "The cheap revolvers of the late 19th and early 20th centuries were referred to as 'Suicide Specials,' the 'Saturday Night Special' label not becoming widespread until reformers and politicians took up the gun control cause during the 1960s. The source of this recent concern about cheap revolvers, as their new label suggest, has much in common with the concerns of the gun-law initiators of the post-Civil War South. As B. Bruce-Briggs has written in the Public Interest, `It is difficult to escape the conclusion that the 'Saturday Night Special' is emphasized because it is cheap and being sold to a particular class of people. The name is sufficient evidence -- the reference is to 'niggertown Saturday night.'" ("Gun Control: White Man's Law," William R. Tonso, Reason, December 1985) 1871 United States Anti-KKK Bill debated in response to race-motivated violence in South. A report on violence in the South resulted in an anti-KKK bill that stated "That whoever shall, without due process of law, by violence, intimidation, or threats, take away or deprive any citizen of the United States of any arms or weapons he may have in his house or possession for the defense of his person, family, or property, shall be deemed guilty of a larceny thereof, and be punished as provided in this act for a felony." [1464 H.R. REP. No. 37, 41st Cong., 3rd Sess. p. 7-8 (20 Feb. 1871)]. Since Congress doesn't have jurisdiction over simple larceny, the language was removed from the anti-KKK bill, but this section survives today as 42 USC Sec. 1983: "That any person who, under color of any law,...of any State, shall subject, or cause to be subjected, any person... to the deprivation of any rights, privileges, or immunities to which...he is entitled under the Constitution...shall be liable...in any action at law...for redress...". 1875 United States High Court rules has no power to stop KKK members from disarming blacks. In United States v. Cruikshank, 92 U.S. at 548-59 (1875) A member of the KKK, Cruikshank had been charged with violating the rights of two black men to peaceably assemble and to bear arms. The U.S. Supreme Court held that the federal government had no power to protect citizens against private action (not committed by federal or state government authorities) that deprived them of their constitutional rights under the 14th Amendment. The Court held that for protection against private criminal action, individuals are required to look to state governments. "The doctrine in Cruikshank, that blacks would have to look to state government for protection against criminal conspiracies gave the green light to private forces, often with the assistance of state and local governments, that sought to subjugate the former slaves and their descendants... With the protective arm of the federal government withdrawn, protection of black lives and property was left to largely hostile state governments." (GLJ, p. 348.) 1879 Tennessee Second "Saturday Night Special" economic handgun ban passed. Tennessee revamped its economic handgun ban nine years later, passing "An Act to Prevent the Sale of Pistols," which was upheld in State v. Burgoyne, 75 Tenn. 173, 174 (1881). (GMU CR LJ, p. 74) 1882 Arkansas Third "Saturday Night Special" economic handgun ban passed. Arkansas followed Tennessee's lead by enacting a virtually identical "Saturday Night Special" law banning the sale of any pistols other than expensive "army or navy" model revolvers, which most whites had or could afford, thereby disarming blacks. Statute was upheld in Dabbs v. State, 39 Ark. 353 (1882) (GMU CR LJ, p. 74) 1893 Alabama First all-gun economic ban passed. Alabama placed "'extremely heavy business and/or transactional taxes'" on the sale of handguns in an attempt "to put handguns out of the reach of blacks and poor whites." ("Gun Control: White Man's Law," William R. Tonso, Reason, December 1985) 1902 South Carolina First total civilian handgun ban. The state banned all pistol sales except to sheriffs and their special deputies, which included the KKK and company strongmen. (Kates, "Toward a History of Handgun Prohibition in the United States" in Restricting Handguns: The Liberal Skeptics Speak Out, p. 15, 1979.) (GMU CR LJ, p. 76) 1906 Mississippi Race-based confiscation through record-keeping. Mississippi enacted the first registration law for retailers in 1906, requiring them to maintain records of all pistol and pistol ammunition sales, and to make such records available for inspection on demand. (Kates, p. 14) (GMU CR LJ, p. 75) 1907 Texas Fourth "Saturday Night Special" economic handgun ban. Placed "'extremely heavy business and/or transactional taxes'" on the sale of handguns in an attempt "to put handguns out of the reach of blacks and poor whites." ("Gun Control: White Man's Law," William R. Tonso, Reason, December 1985) 1911 New York Police choose who can own guns lawfully. "Sullivan Law" enacted, requiring police permission, via a permit issued at their discretion, to own a handgun. Unpopular minorities were and are routinely denied permits. ("Gun Control: White Man's Law," William R. Tonso, Reason, December 1985) There are only about 4,898 permits in New York City, down from 7,473 in 1997 and 29,000 in 1981. "If you're a street-corner grocer in Manhattan, good luck getting a gun permit. But among those who have been able to wrangle a precious carry permit out of the city's bureaucracy are Donald Trump, Arthur Ochs Sulzburger, William Buckley, Jr., and David, John, Lawrence and Winthrop Rockefeller. Surprise." (Terrance Moran, "Racism and the Firearms Firestorm," Legal Times) 1934 United States Gun Control Act of 1934 (National Firearms Act) passed. 1941 Florida Judge admits gun law passed to disarm black laborers. In concurring opinion narrowly construing a Florida gun control law passed in 1893, Justice Buford stated the 1893 law "was passed when there was a great influx of negro laborers in this State....The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers....The statute was never intended to be applied to the white population and in practice has never been so applied...". Watson v. Stone, 148 Fla. 516, 524, 4 So.2d 700, 703 (1941) (GMU CR LJ, p. 69) --------------------------------------------------------------------------------
The Following Historical Events Are Included as Context
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