For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview

VI. "NO NEGRO. . . SHALL BE ALLOWED TO CARRY FIRE-ARMS"

After the Civil War, the modern understanding of the right to bear arms began to take shape, almost entirely in the former states of the Confederacy, and the border states where slavery had existed before the war--and this understanding accepted new, more restrictive laws on the open carry of arms. At least part of the impetus for these laws was related to the newly freed slaves.

At the end of the Civil War, the newly restored Southern legislatures adopted a series of laws known as the Black Codes; the purpose of these laws was to create restrictions on free blacks that would maintain the dominant position of Southern whites. Many of these restrictions were aimed at reducing the freedmen to a position of economic dependence; others seem designed to make them unable to defend themselves. (A case can be made that the two situations were connected.) An example is the Mississippi black code, which required "that no freedman, free Negro, or mulatto not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, dirk, or Bowie knife. . ." Similarly, St. Landry Parish, Louisiana, passed a series of "Police Regulations" that included: "No negro who is not in the military service shall be allowed to carry fire-arms, or any kind of weapons, within the parish, without the special written permission of his employers, approved and [e]ndorsed by the nearest and most convenient chief of patrol. . ."1Alabama's variant did not even include a process by which a "freedman, free negro or mulatto" might obtain a permit.2

Of course, white Southerners had a different perspective on why such laws were needed, with even respected Southern historians arguing, half a century later, "The restrictions in respect to bearing arms, testifying in court, and keeping labor contracts were justified by well-established traits and habits of the negroes. . . ."3 Before the Civil War, free blacks had not been allowed to possess arms in many (perhaps all) of the slave states, so it is difficult to see how there could be "wellestablished traits and habits" with respect to bearing arms immediately on the end

____________________
1
Mississippi Black Code, in Annals of America, ( Chicago: Encyclopedia Britannica, Inc., 1976), 9:634. Michael Les Benedict, The Fruits of Victory: Alternatives in Restoring the Union, 1865-1877, ( New York: J.B. Lippincott Co., 1975), 87. Cottrol and Diamond, 344, quote a very similar Louisiana statute adopted in 1865.
2
Cottrol and Diamond, 345.
3
William A. Dunning, Reconstruction, Political and Economic, ( New York: Harper, 1907), quoted in Francis L. Broderick, Reconstruction and the American Negro, 1865-1900, ( London: Macmillan Co., 1969), 21.

-97-

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For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • Preface xiii
  • Acknowledgment xvii
  • I. Definitions 1
  • II. European Origins 19
  • III. The Legislative History of the Second Amendment 31
  • IV. Problems of Judicial Interpretation 63
  • V. "To Keep and Carry Arms Wherever They Went" 69
  • VI. "No Negro. . . Shall Be Allowed to Carry Fire-Arms" 97
  • VII. "Carrying Concealed Weapons is a Grievous Evil" 141
  • VIII. "A Proper Reason for Carrying a Pistol" 165
  • IX. Civil Rights, Civil Disturbances 197
  • X. The Right Comes Out of Its Coma? 221
  • XI. At the Crossroads 269
  • Selected Bibliography 275
  • Index 281
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