By Dave Kopel
America's 1st Freedom, March 2011. More articles by Kopel on civil rights and gun control are available here.
Jim Crow is alive and well.
School children today are taught that "Jim Crow" was the name for a legal system of racial oppression, which began after Reconstruction, particularly in the South, and reached its nadir in the early 20th century. Children are also taught that Jim Crow was banished by legal reforms such as the Civil Rights Act of 1964 and the 1954 Supreme Court decision Brown v. Board of Education.
Yet in one important part of American life, Jim Crow continues to thrive—the legal foundation of restrictive and oppressive gun control that was built by Jim Crow. The Jim Crow cases continue to hobble the Right to Keep and Bear Arms.
Shockingly, the Jim Crow laws and legacy are lauded by some persons who consider themselves liberal and tolerant. In the 2010 Supreme Court case McDonald v. Chicago, Justice Stephen Breyer wrote a dissent that asserted that District of Columbia v. Heller should be overturned, and that state and local governments should be allowed to ban guns. Justices Sonia Sotomayor and Ruth Bader Ginsburg joined the dissent. That dissent included a litany of restrictive American gun control statutes and court cases, many of them the products of Jim Crow.
Previous issues of America's 1st Freedom have told the story of how the defeated Confederate states enacted the Black Codes, which explicitly restricted gun possession and carrying by the freedmen. Sometimes these laws facilitated the activities of the terrorist organization Ku Klux Klan, America's first gun control organization. The top item on the Klan's agenda was confiscating arms from the freedmen, the better to terrorize them afterward.
Outraged, the Reconstruction Congress responded with the Freedmen's Bureau Bill, the Civil Rights Act of 1866, the 14th Amendment and the Civil Rights Act of 1870—every one of them aimed at racial subordination in general and racist gun control laws in particular.
President Ulysses S. Grant (1869-77), who would later serve as president of the National Rifle Association, vigorously prosecuted Klansmen, and even declared martial law when necessary to suppress KKK violence.
Reconstruction formally ended in 1877 with the inauguration of President Rutherford B. Hayes and the withdrawal of federal troops from the South. Even before that, white supremacist "redeemer" governments had taken over one Southern state after another.
Because the new 14th Amendment forbade any state to deny "the equal protection of the laws," gun control statutes aimed at blacks could no longer be written in overtly racial terms. Instead, the South created racially neutral laws designed to disarm freedmen. Some laws prohibited inexpensive firearms while protecting more expensive military guns owned by former Confederate soldiers. Meanwhile, other laws imposed licensing systems or carry restrictions. As a Florida Supreme Court justice later acknowledged, these laws were "never intended to be applied to the white population" (Watson v. Stone, 1941).
Southern courts generally upheld these laws. In the 19th and 20th centuries, these court precedents played a substantial role in maintaining white supremacy by facilitating unofficial—but government-tolerated—violence against blacks and civil rights advocates. Today, these racist laws are the foundation of continuing infringements of the Right to Keep and Bear Arms.
Let's take a state-by-state look at how the system worked—and continues to work.
Setting a pattern that was typical in the South, Tennessee courts initially protected the right to arms, but then abandoned the field as Jim Crow took over. In 1870, the Tennessee Legislature prohibited the carrying of "a dirk, sword-cane, Spanish stiletto, belt or pocket pistol or revolver," either openly or concealed. The Tennessee Supreme Court addressed the ban in the well-known and still-influential 1871 case, Andrews v. State.
The Andrews court stated that people had a right to arms, including the right to buy guns and ammunition, to take guns to gunsmiths and to carry guns and ammunition for purposes of sale and repair.
The court rejected the notion that the right to arms was a "political right," like voting or jury service, which belonged to only a subset of the people. Rather, the right to arms was a civil right to be enjoyed by all citizens.
The right to carry in public could be regulated, but not prohibited: "The power to regulate does not fairly mean the power to prohibit; on the contrary, to regulate necessarily involves the existence of the thing or act to be regulated."
In this particular case, Andrews had been carrying a repeating pistol (what we would today call a large revolver). The legislature could not ban the carrying of this type of arm, which was particularly useful for militia service: "The pistol known as the repeater is a soldier's weapon—skill in the use of which will add to the efficiency of the soldier. If such is the character of the weapon here designated, then the prohibition of the statute is too broad to be allowed to stand. …"
The legislature, however, was determined to stamp out the right to carry. So it promptly passed a new law banning the carrying of any handgun "other than an army pistol, or such as are commonly carried and used in the United States Army, and in no case shall it be lawful for any person to carry such army pistol publicly or privately about his person in any other manner than openly in his hands."
The new statute contradicted Andrews' affirmation of the right to buy any type of handgun in a store and carry it home. The law still allowed any model of handgun to be taken home, but the buyer would have to put the gun in a cart or wagon, rather than carry it. While the law allowed the carrying—for any purpose, and in public—of army model handguns, the requirement that the gun be carried "in his hands" was likely to provoke fear and almost certain to cause accidents. In effect, the law went as far as possible to outlaw all handgun possession while maintaining a pretense of honoring the right to bear arms.
Unfortunately, the Tennessee Supreme Court upheld the ban without even discussing whether the law violated the Andrews standard (State v. Wilburn, 1872).
Then in 1879, the legislature banned the sale of all handguns "except army or navy pistols." The obvious effect was to prevent freedmen from owning handguns. Almost all were poor and could not afford the expensive Army and Navy models. Meanwhile, the ex-confederate soldiers already had plenty of Army and Navy models that they had been allowed to take home under the surrender terms for the Confederate army.
Like Tennessee, Arkansas had an unusual constitutional right to arms, which guaranteed the right only for the "common defense"—this was the basis for limiting the right only to militia-type arms. Notably, when the U.S. Senate was considering the Second Amendment, it had rejected Sen. Roger Sherman's proposal to impose a similar limit on the federal right to arms.
As Reconstruction was ending, the Arkansas Supreme Court upheld broad gun controls while still respecting core rights. But as Jim Crow spread its tentacles, Arkansas degenerated into near-nullification of the right.
The 1876 decision Fife v. state held that a ban on open or concealed carry of pistols was too broad. Citing the Tennessee case Andrews v. State, the Arkansas Supreme Court held that only militia-type arms were protected and that the right to carry militia arms belonged to all people, not just militiamen. The court held that "the rifle, of all descriptions, the shot gun, the musket and repeater, are such arms, and … under the Constitution, the right to keep such arms cannot be infringed or forbidden by the legislature."
While large handguns ("repeaters") were protected, the "pocket revolver" was not, because the pocket revolver was not "effective as a weapon of war." The court overlooked the point that the "common defense" is enhanced by personal self-defense, because responsible gun ownership and self-defense against criminals deter crime in general, aid the police and make the public at large safer.
Consistent with the Fife case, the Arkansas court later struck down convictions for carrying concealed army pistols. (Wilson v. State and Holland v. state, both in 1878.) Wilson held that carrying handguns in the course of one's daily activities in ordinary public places (but not in churches or polling places) was a constitutional right.
The remedy to abuse of the right was not prohibition against the innocent but punishment of the guilty: "If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege."
But the Arkansas Legislature would not quit. The carrying of most handguns was already outlawed. Then in 1881 the legislature copied the Tennessee law and banned "the carrying of army pistols except uncovered and in the hand."
The next year, the Arkansas Supreme Court upheld the "in the hand" requirement in Haile v. State. Ignoring the court's own precedents, and relying on the "common defense" language in the state constitution, the court said that the right to arms was not for personal defense, but solely for the resistance of tyranny.
The court acknowledged that the purpose of the "in the hand" law was to discourage gun carrying. Such discouragement was for the benefit of "timid citizens." (Some today call a person with an extreme fear of guns, such that the fear interferes with normal daily activities, a "hoplophobe.")
In essence, the court had now agreed with the legislature that the right to bear arms was a bad idea. Rather than force the legislature to seek a constitutional amendment to repeal the right, the court accepted the legislature's practical nullification of the right to bear arms by requiring that bearing be done in the most inconvenient and dangerous manner possible.
Another 1881 statute prohibited the sale of any pistol other than those "used in the army or navy of the United States and known as the navy pistol." The Arkansas court upheld the ban in Dabbs v. State(1882).
At the 1907 Oklahoma constitutional convention, the delegates rejected a proposal to include "common defense" language in the constitutional protection of firearm possession. Instead, the delegates copied nearly verbatim from the Missouri and Colorado constitutions, explicitly protecting "defense of home, person and property" in the right to arms.
The following year, however, the Oklahoma Supreme Court in Ex parte Thomas declared that the right was only for militia-type arms, and that a "pistol" was not within the right to arms. Despite what the Thomas court claimed, there was not a single precedent for the proposition that all handguns could be banned. The Thomas court ignored the Missouri Supreme Court's precedent that revolvers in general (not just the Army and Navy models) were protected by the state right to arms (State v. Shelby, 1886).
The Oklahoma Supreme Court strangled the state constitution's right to arms shortly after birth. The outrageous Thomas opinion remains the leading precedent in Oklahoma, and thus for more than a century has deprived the people of Oklahoma of the protection of the strong Right to Keep and Bear Arms that they wrote into their constitution. Fortunately, as of 2011, the Oklahoma Legislature has reformed most of the bad gun laws from the Jim Crow era, but the people of Oklahoma suffered decades of deprivations of their rights—including the Right to Carry—before the legislature finally acted.
Most people would be surprised to learn that Arkansas and Tennessee were the gun-ban capitals of the United States during Jim Crow, and that Oklahoma was not far behind. People would likewise be surprised that, by the early 20th century, Texas had joined the trend.
The Texas Legislature imposed a 50 percent gross receipts tax on the sale of handguns. An intermediate court of appeals upheld the punitive tax (Caswell & Smith v. State, Tex. Civil App., 1912). The court reasoned that handguns, like alcohol, are socially harmful and therefore may be taxed severely. The court added in dicta that prohibiting the sale of handguns would not violate the state constitution.
In 1910, the Georgia Legislature enacted a licensing requirement for the open carry of handguns. The 1910 law was not like the licensing laws in effect today in Georgia and most other states—the modern laws use objective criteria to grant carry permits to adults who meet certain specific standards, such as passing a fingerprint-based background check and a safety course. In contrast, the 1910 Georgia statute provided almost limitless discretion to the licensing authority so that, in effect, political cronies could get licenses and others (especially blacks) could not. Because the legislature had previously outlawed concealed carry, obtaining an open carry license became the only way for a person to lawfully exercise the Right to Carry a handgun.
In Strickland v. State(1911) the Georgia Supreme Court upheld the licensing statute. Admitting that the Georgia right was not limited to "common defense," the court said that the carry ban was authorized by the general "police power" of the state—that is, the power to make laws for health, safety, welfare and morals. Yet the very purpose of enumerating rights in a constitution is to limit the police power of the state on certain subjects.
Throughout the 20th century, many courts in other states used Georgia's "police power" rationale to uphold a wide range of anti-gun laws, thus turning those states' constitutional right to arms into a practical nullity.
In 1893 the Florida Legislature adopted a gun control law—that it revised in 1901 and 1906—that prohibited the carrying of handguns and repeating rifles, openly or concealed, with exceptions for peace officers and persons licensed by a county commissioner.
A 1941 opinion by Florida Supreme Court Justice Rivers Buford provided a frank explanation of why the carry ban was enacted and how it had actually been enforced:
"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. We have no statistics available, but it is a safe guess that more than 80 percent of the white men living in rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5 percent of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested" (Watson v. State, concurring opinion).
Justice Buford pulls back the curtain on the racist gun control statutes and cases discussed here. The statutes never used the word "negro" and the cases upholding those statutes scrupulously avoided any racial language. Yet the purpose and application of those laws was well known.
By the turn of the century, Jim Crow was spreading beyond its Southern roots. An 1897 New York statute outlawed the possession of a "slungshot, billy, sand club or metal knuckles"—even if nefarious intent was absent. The New York Court of Appeals upheld the ban in 1912 (People v. Persce). The court ignored the fact that the first three of the banned items, at least, have legitimate protective uses, as shown by the fact that police officers often carried them.
The next year, New York's intermediate court of appeals, in a 3-2 vote, upheld the infamous 1911 Sullivan Act. That law required a license to possess a handgun in the home, and made the licensing process difficult and highly arbitrary. The act was upheld in spite of the existence of the New York Civil Rights Law, which includes a verbatim copy of the Second Amendment (People ex rel. Darling v. Warden of City Prison). Though unstated, the Sullivan Act targeted blacks as well as Italian and Jewish immigrants.
Similarly, in 1920 the Ohio Supreme Court brushed aside the Ohio Constitution in State v. Nieto to uphold the conviction of a Mexican employee of an Ohio railroad who possessed a concealed handgun in violation of an absolute ban (with no licensing provision) on concealed carry.
In dissent, Justice J. Wanamaker's dissent discussed the racial issue that underlies much of gun control history in the United States. He wrote:
"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."
The majority decisions in Nieto, Darling, Thomas and many of the other cases discussed above provided the foundation for state courts nullifying the right to arms in state constitutions. These cases are still cited extensively by the gun prohibition lobbies and their judicial allies.
These cases are the product of one of the most shameful periods in American judicial history, when judges put aside the constitutions they had sworn to uphold and instead made themselves into tools of white supremacy and Jim Crow.
The battle against Jim Crow has been going on for well over a century, and it will not be completed until the Jim Crow gun control cases are recognized for the constitutional abominations that they are, and are placed on the ash heap of history, along with Plessey v. Ferguson and the rest of their ilk.
This article is based on Dave Kopel's and Clayton Cramer's"State Court Standards of Review for the Right to Arms," Santa Clara Law Review (Vol. 50, 2010), available at http://ssrn.com/abstract=1542544.