The Civil Rights and
Freedmen’s Bureau Acts and the
Proposal of the
CARRY FIREARMS: THE BLACK CODES
AS BADGES OF SLAVERY
Numerous antebellum commentators interpreted the Second Amendment as guaranteeing an individual right to keep and bear arms free from both state and federal infringement.1 In his famous criminal law commentaries, Joel P. Bishop wrote in 1865: “The constitution of the United States provides, that, ‘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.’ This provision is found among the amendments; and, though most of the amendments are restrictions on the General Government alone, not on the States, this one seems to be of a nature to bind both the State and National legislatures.”2
Bishop’s references to state “statutes relating to the carrying of arms by negroes and slaves“3 and an “act to prevent free people of color from carrying firearms“4 exemplified the need for a constitutional guarantee to protect the rights of all persons, regardless of race, to keep and carry firearms. After the Civil War these slave codes, which limited the access of blacks to land, firearms, and the courts, began to reappear as “black codes.”5 Congress quickly turned its attention to these efforts to reenslave the freedmen.