The Racist Roots of Gun Control

[Too_Many_Tools]

(Kan. J.L. & Pub. Pol'y, Winter 1995, at 17)

The Racist Roots of Gun Control

Clayton E. Cramer

{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 all blacks,
both slave and free.

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 arms.(4)

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 fears.(10) In 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 dogs were
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 black.(14) 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
people.(19) The following year the North Carolina Supreme Court
decided State v. Newsom. The full significance of the Newsom
decision would not be apparent 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 thereof, he or she shall be guilty of a misdemeanor,
and may be indicted therefor.(20)
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
Newsom court 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 of individuals.(27)
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 jailed.(32) On 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
defensive."(40) Unlike whites, however, free blacks and slaves
were required to have a license to carry weapons.(41)

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 re-
enslavement.(43)

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 passed.(44) 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 carried.(47)
Yet, 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. Schmitz.(59)

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
Germany.(60) This 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 minority group.

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 goals:

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
terror."(65) A 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 blacks.

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 hunting rifles
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"
didn't 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
concealed carrying 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 California's 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 Second Amendment.

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?



Notes

1. Thomas N. Ingersoll, Free Blacks in a Slave Society: New
Orleans, 1718-1812, 48 Wm. & Mary Q. 173, 178-79 (1991).

2. Id.

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)

6. Id.

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).

12. Id.

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).

15. Id.

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].

17. Id. at 3428 (emphasis added).

18. Simpson v. State, 13 Tenn. 292, 295 (5 Yer.) (1833).

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.

22. Id.

23. Id.

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,
Sec. 13).

29. 5 Id. at 2788.

30. Nunn v. State, 1 Ga. 243, 251 (1846).

31. Id.

32. Cooper v. Mayor of Savannah, 4 Ga. 68, 68 (1848).

33. Id. at 70.

34. Id. at 71.

35. Id.

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 added).

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.

41. Id.

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 198-201.

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 Press Secretary).

66. Id.

67. Gary Kleck, Point Blank: Guns and Violence in America 75
(1991).

68.What Is an Assault Weapon?, Wall St. J., Aug. 25, 1994, at
A12.

69. Id.

70. Thomas G. Walker, Suspect Classifications, in Oxford
Companion to the Supreme Court of the United States 848 (Kermit
L. Hall et al. eds., 1992).

71. Id.

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).

75. Cal. Penal Code �� 12275-90 (West 1992 & Supp. 1994).

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