The Racist Origins of US Gun Control
Laws Designed To Disarm Slaves, Freedmen, And African-Americans
by Steve Ekwall
OVERVIEW
Before 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:
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Police-issued license and permit laws, unless drafted to require issuance to those not prohibited by law |
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from owning guns, are routinely used to prevent lawful gun ownership among "unpopular" populations. |
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Public housing residents, approximately 3 million Americans, are singled out for gun bans. |
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"Gun sweeps" by police in "high crime neighborhoods" whereby vehicles and "pedestrians who meet a s |
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pecific profile that might indicate they are carrying a weapon" are searched are becoming popular, and |
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are being studied by the U.S. Department of Justice as "Operation Ceasefire." |
YEAR JURISDICTION STATUTE
____ ____________ _______
1640 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 fire-arms, 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.)