A  WELL  REGULATED  MILITIA

The  Founding  Fathers  and  the  Origins  of  Gun  Control  in  America

CHAPTER 6

INDIVIDUAL OR COLLECTIVE RIGHT

THE FOURTEENTH AMENDMENT'AND THE ORIGINS OF THE MODERN GUN DEBATE

On April 12, 1861, soldiers from the Palmetto Guard, an elite volunteer unit of South Carolina's militia, fired on the Union forces garrisoned in Fort Sumter. The Confederacy's attack on the fort plunged the nation into the bloodiest conflict in American history. The Civil War proved to be a watershed moment in the contentious history of the Second Amendment. The actions of the South Carolina militia took the antebellum states' rights interpretation of the Second Amendment to its logical conclusion. The idea that a state might use its militia against the federal government, an idea vaguely theorized during the original debate over the Constitution in 1788 and that had been elaborated by Jeffersonians in the decade after ratification, was finally put into practice with tragic results. The Union's triumph over the South discredited this insurrectionary theory of states' rights, much as John Brown's prewar raid on Harpers Ferry had discredited the radical abolitionist idea that individuals might take up arms against their government. After the defeat of the Confederacy the notion that a state or an individual might exercise such a right was simply no longer tenable.

While the Civil War drained the Second Amendment of its most radical revolutionary potential, it left a host of other questions about the meaning of the right to bear arms unsettled. For Republicans and their Democratic opponents, the Second Amendment would become a valuable tool for asserting their radically different constitutional agendas. Democrats recast the states' rights reading of the amendment, stripping it of its revolutionary character and harnessing it as an engine to challenge their Republican opponents' effort to expand federal power. Republicans hoped to use the amendment as a means of testing their new theory of incorporation, giving the federal government the power to force states to respect, the rights enumerated in the Bill of Rights, particularly the rights of newly freed slaves in the South.

The difficult question for Republicans was not whether to defend the Second Amendment rights of all citizens, but how these rights would be construed. Would the Second Amendment become an individual right of self-defense or would it remain wed to participation in a well-regulated militia, one that was now firmly under the control of the federal government?1

THE  RIGHT  TO  BEAR  ARMS  IN  THE  RECONSTRUCTION  SOUTH

The Thirteenth Amendment (1865) abolished slavery but did nothing to settle the nettlesome question of former slaves' legal status. While Northern Republicans insisted that basic rights be extended to the African-American population, many Southerners resisted this effort. In late 1865, Mississippi and South Carolina became the first states in the postwar South to adopt "black codes," laws designed to severely limit freedmen s rights. The codes limited Freedmen s access to the courts, prevented blacks from entering many trades, and forced blacks to sign labor contracts to avoid being charged with vagrancy. Among the many restrictions placed on blacks were limits on the ownership and use of firearms and other weapons. Mississippi's law forbade any "freedmen, free negro, or mulatto, not in the military service of the United States Government, and not licensed to do so by the board of police of his or her county" from keeping or carrying firearms, dirks, or bowie knives. The law also prohibited whites from selling arms to blacks. Interestingly, the code acknowledged that blacks in military service enjoyed special protection, an implicit acknowledgment of the civic conception of bearing arms. South Carolina's black codes took a different approach, deliberately excluding blacks from the militia and prohibiting them from keeping firearms, swords, and other military weapons. In contrast to Mississippi, which sought wholesale disarmament of freedmen. South Carolina's law acknowledged a right to keep nonmilitary weapons in one's home. The law made an exception for "owners of a farm," who were allowed to "keep a shot gun or rifle such as ordinarily used in hunting," but not weapons "appropriate for purposes of war." In South Carolina blacks were excluded from the militia and prevented from owning military weapons.2

Outrage over the Southern black codes spread throughout Northern Republican circles. In early January 1866, Harper's Weekly reported that the militia in Mississippi, controlled by ex-Confederates, "have seized every gun and pistol found in the hands of the (so called) freedmen of this section of the county. They claim that the statute laws of Mississippi do not recognize the negro as having any right to carry arms." The effort to disarm blacks prompted a swift response from American military forces charged with keeping order in the Reconstruction South. General Daniel E. Sickles was so outraged by South Carolina's exclusion of blacks from the militia and general disarmament that he issued a military order suspending the statute. Sickles decreed "all laws shall be applicable alike to all the inhabitants" and proclaimed "the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." Sickles's response focused on the law's racism, stating unequivocally that the state might regulate firearms use in a non-discriminatory fashion, including prohibitions on carrying concealed weapons. Sickles conceded that the state might be justified in excluding a variety of dangerous persons from owning firearms, including vagrants, disturbers of the peace, and the disorderly. Sickles's response to the black code reflected orthodox antebellum ideas about the scope of state firearms regulation. Although Sickles's order prohibited race-based disarmament, he acknowledged that the state might legitimately exclude certain categories of persons from owning guns and impose time, place, and manner restrictions on the use of firearms. As long as these prohibitions were not based on invidious racial categories, had a rational basis, and were intended to promote public safety, they were entirely legal.3

Congress responded to the Southern black codes by expanding the authority of the Freedmen's Bureau and passing the Civil Rights Act of 1866. President Andrew Johnson, an opponent of congressional Republicans' more radical vision of Reconstruction, vetoed the two bills, but the Republican-dominated Congress overrode the veto. The Civil Rights Act affirmed that "all persons in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States" and were entitled to "equal benefit of all laws and proceedings for the security of person and property."4

In the congressional debate over the new Civil Rights Act, Republican Senator Lyman Trumbull of Illinois pointed to the discriminatory character of the Mississippi black codes, singling out their effort to disarm blacks as one particularly odious practice. He approached the issue in much the same way abolitionists had before the war. Others in Congress offered a different interpretation of the Civil Rights Act, viewing it as articulating nothing more than a general principle of equality. For these Republicans the primary focus was protecting freedmen s economic rights such as the right to make and enforce contracts, sue, inherit, sell, lease, and hold property5

The Freedmen's Bureau was an important institution created within the War Department to help African-Americans cope with the transition to freedom. Congress expanded the scope of the bureau and explicitly noted the need to protect the rights of "personal liberty" and "personal security," including "the constitutional right to bear arms," which was to be "enjoyed by all the citizens of such State or district without respect to race or color." Some in Congress clearly thought that bearing arms encompassed both the use of firearms for personal self-defense and the more traditional civic notion that tied arms bearing to participation in the militia.6

Several speakers in the debate over the extension of the Freedmen's Bill and the Civil Rights Act referred to reports of the outrages being committed in the South. Representative Sidney Clarke, a Republican from Kansas, referenced the many letters that poured into Congress detailing a campaign of violence against freedmen. To buttress bis argument, Clarke quoted extensively from the Alabama black codes, which prohibited "any freedmen, mulatto, or free person of color in this State, to own fire-arms, or carry about his person a pistol, or other deadly weapon." Clarke found it particularly galling that in Mississippi the militia had adopted Confederate uniforms and confiscated weapons owned by black veterans of the Union Army.7

THE  FOURTEENTH  AMENDMENT

The most important protection of freedmen s rights passed by the 39th Congress was the Fourteenth Amendment. Section 1, focusing on federal protection for the privileges and immunities of citizenship asserted that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

While there was widespread enthusiasm for the amendment among Republicans, there were some important disagreements among supporters over key terms such as "privileges and immunities." Some within Congress viewed the amendment as specifically protecting the rights affirmed in the first eight amendments to the Constitution while others viewed it as guaranteeing a narrow range of economic rights, most notably the right to own property, make contracts, and sue in court. Others viewed the amendment as doing little more than forcing states to apply their own laws equally.8

Republican Senator Jacob Howard of Michigan argued explicitly that the Fourteenth Amendment would incorporate the first eight amendments under federal protection and thus apply them against the states. Republican Senator Samuel Pomeroy of Kansas affirmed that among these inestimable rights were the right to "bear arms for the defense of himself and family and his homestead." A different view was articulated by Senator Luke Poland, a Vermont Republican, who suggested that the language of the amendment merely extended a principle articulated in the comity clause of the Constitution, which asserted, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Poland's model of the privileges and immunities clause was less sweeping than either Pomeroy's or Howard's and appeared to point toward a principle of legal equality, rather than full incorporation of the Bill of Rights. Although it stopped short of fully incorporating the Second Amendment, the application of this equality principle would have prevented southern states from enacting discriminatory legislation aimed at disarming blacks.9

The chief architect of Section 1 of the Fourteenth Amendment was Republican Congressman John A. Bingham of Ohio, an abolitionist lawyer who had been won over to the antislavery crusade at an early age. To understand Bingham's views of the Fourteenth Amendment, one must root his thinking within the context of abolitionist theory and antebellum constitutional law. Schooled in an abolitionist interpretation of the Constitution, he believed that the states had no right to violate any provision of the Bill of Rights. The problem Bingham and abolitionists of a legalistic cast of mind encountered was that the original understanding of federalism placed state violations of individual rights in the purview of state constitutional law, not federal law In practice this meant blacks and abolitionists had no real remedy in southern courts or legislatures prior to the Civil War. The structure of federalism had created a refuge for opponents of liberty and equality. Even if one believed that state violations of the federal Bill of Rights were unconstitutional, the Constitution provided no basis for appeals to the federal courts, and Congress lacked any direct authority to alleviate these injustices. Indeed, Bingham had argued that the abolitionist-inspired Civil Rights Act enacted by Congress was unconstitutional precisely because the Constitution had not bestowed this type of sweeping authority on Congress or the courts. The Fourteenth Amendment solved this problem by giving Congress the legal mandate to deal with state deprivations of basic rights.10

While the debates in Congress provide solid evidence of what many of the Fourteenth Amendment's framers thought about the meaning of Section 1, sorting out what the state legislatures and the vast majority of Americans thought about the meaning of the Fourteenth Amendment is more difficult. The debates in the press provide some scattered evidence of how the Fourteenth Amendment was presented to the public. There was some discussion of the amendment during the bitter election of 1866, and a few of the stump speeches made by candidates during that campaign have survived. Once debate shifted from the halls of Congress to the nation s rostrums and town squares, Republican supporters of the Fourteenth Amendment, including Bingham, were forced to confront a determined Democratic opposition who conjured up a host of horrors that would follow from the principle of racial equality including black suffrage and miscegenation. To counter these savage racist arguments, Republicans had to reframe their support for the Fourteenth Amendment in terms better calculated to win popular support. Republicans, even those sympathetic to the plight of African-Americans, had to play down the issues of empowering African-Americans and highlight the innocuous nature of the Fourteenth Amendment. Republicans fell back on the argument that the Fourteenth Amendment did nothing more than require the states to treat their citizens equally. While inspirational appeals invoking the struggles of heroic freedmen defending their homesteads with rifle in hand might resonate in the halls of Congress, the image of armed African-Americans was more likely to have frightened many voters. The dynamic of the public debate meant that Republicans, even those most sympathetic to the individual rights conception of arms bearing, were forced to downplay this principle in order to sell the amendment to the American people.11

The problems Republicans faced in trying to persuade Americans to embrace the Fourteenth Amendment are evident in Bingham's appeals to the citizens of his own state. Rather than highlight ideas drawn from antebellum abolitionist rhetoric and defend gun-toting freedmen as some in Congress had chosen to do, Bingham stressed the much less threatening notion that the amendment simply forced the states to abide by the principle of equality before the law In an August 1866 speech reported in the Cincinnati Commercial, Bingham explained that Section 1 of the Fourteenth Amendment did little more than embody in the Constitution the golden rule, learned at the mother's knee, 'to do as we would be done by.' A couple of days later he offered another summary of the import of Section 1: "It is a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of this Union." He dismissed the charge that the amendment would destroy the federal system, effectively reducing individual states and their laws to mere ciphers in an all-powerful centralized system of government. "It takes from no State any right which hitherto pertained to the several States of the United States."12

Whether Bingham was consciously responding to the vicious black-baiting tactics of his opponents is unclear. Bingham may have believed that these subtle shifts in emphasis and tone were entirely consistent with his earlier congressional speeches. His listeners, however, likely took a very different message away from these speeches. For the average man or woman on the street listening to one of Bingham s addresses, the Fourteenth Amendment probably seemed to do little more than require states to treat citizens equally.

THE  RISE  AND  FALL  OF  THE  NEGRO  MILITIAS

The problem of southern violence, particularly the activities of state militias dominated by former Confederate soldiers, prompted congressional Republicans to propose temporarily disbanding all militias in the South. The measure was introduced by Senator Henry Wilson from Massachusetts, who also admitted into the Congressional record detailed reports of the horrors being committed by these rebel-dominated militias. He cited evidence provided by the head of the Freedmen s Bureau, General Oliver O. Howard, who reported that "officers and agents of the bureau as well as military authorities and the newspapers" confirmed that militias were "engaged in disarming the negroes." Howard suggested abolishing the militias and temporarily replacing them with a federal police force. Congressional Democrats protested that the proposal to disband Southern militias clearly violated the Second Amendment. Senator Willard Saulsbury from Delaware declared emphatically that Congress could not "disarm the militia of a State, or [to] destroy the militia of a State." He explicitly evoked the Second Amendment and then quoted its text verbatim. Wilson responded to Saulsbury's critique by reiterating that these so-called militias were little more than roving bands of Confederate bandits terrorizing southern citizens. Others in the debate sought middle ground, conceding that Congress might regulate the militia, effectively disarming rebel units without abolishing the institution itself. Despite efforts to find a middle ground, Republican voices prevailed, and the bill disbanding the militia passed.13

Eliminating the neo-Confederate state militias did little to lessen the chaos and violence in the South. Republicans soon realized that some type of military force was necessary to restore order, and they turned to a newly constituted militia as the best solution. Democrats charged them with playing politics with the Constitution. Pennsylvania Senator Charles Buckalew observed that Republicans had done away with the militia "in order to weaken the then existing political governments in the South/' Now, he added, they wish to reconstitute them "because the political power which now exists is politically friendly to them." Buckalew believed that the Republicans clearly aimed to use the militia as a political tool.14

The formation of a new militia, one that included African-Americans, became a high priority for southern Republicans. The decision to allow blacks to serve alongside whites meant that most southerners refused to join the new militia. Dubbed the "Negro militia" by contemporaries, it became an indispensable political and military institution, providing a means of protecting and organizing
freedmen. Blacks eagerly joined these units, which were outfitted with the latest weaponry. The social role of the militias within the African-American community was at least as important as its military function. Drilling and parading served an important symbolic function, inspiring and rallying the African-American community. For Republicans, participation in the new militia became one of the most important privileges and immunities of citizenship, a foundation for the exercise of other rights such as voting or participation injuries.15

The arming of the Negro militias met with especially fierce resistance in South Carolina. Violent clashes between the Ku Klux Klan (KKK) and the Negro militia in 1869 prompted congressional investigation. Democrats denounced the militia as a tool of Republican tyranny. Republicans argued that the militia was the only means to protect the black population from Klan terror.16

Republican South Carolina Governor Robert Scott, a former Union officer from Ohio, was denounced by his enemies as a carpetbagger. Scott believed that arming the militia was essential to fighting Klan violence. His actions clearly struck a sensitive nerve in his opponents, who viewed Scott's decision to arm the Negro militia as the greatest' Republican outrage perpetrated on the state of South Carolina. The sight of organized, armed freedmen incensed opponents of Reconstruction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen. The destruction of the Negro militia became a top priority for the Klan and its supporters.17

Congressional investigation of Klan violence was so intensely partisan that the hearings became little more than an exchange of accusations. Democrats and Republicans blamed each others' policies for the escalation of violence. Not surprisingly, the committee could not agree on a report, and a minority account emerged from the hearings. The minority Democratic report was highly critical of the Negro militias for provoking violence. The majority Republican report blamed violence on Klan provocations.18

Democrats charged that Governor Scott had deliberately politicized the militia by arming freedmen. Adopting a highly inflammatory tone, the Democrats investigating Klan activity charged that Scott had "corruptly and secretly sent his emissaries through the State to enrol and organize the negro population." The governor's policy of arming "the negro militia, in the summer of 1870, and during the progress of the political campaign, was done for the purpose, and for none other than to carry the election by force and intimidation." Democrats echoed charges Klan members had made to justify their terrorist actions. Scott, they maintained, had refused to allow whites to enrol in the militia and had even confiscated arms from white militia units and redistributed them to blacks. In his memoir of Reconstruction, South Carolina Democrat Henry T. Thompson reported that Scott had boasted that "the only law for these people [South Carolinians] was the Winchester Rifle." Democrats introduced into evidence the records of the state adjutant general, which showed that South Carolina had purchased and distributed more than seven thousand weapons and issued ninety thousand rounds of ammunition to the Negro militias. Finally, with characteristic racist derision, the Democrats remarked, "Even the miserable testimony of the negroes themselves shows that the principle object of the visitation of their disguised assailants was the search for the very guns distributed among them by the governor." The Klan's chief objective according to contemporary testimony was the disarmament of the Negro militia.19

Republicans painted a different picture. Klan violence, not the arming of the Negro militias, had produced civil unrest in South Carolina. "Whatever other causes were assigned for disorders in the late insurrectionary States, the execution of the laws and the security of life and property" were "seriously threatened by" the Klan, who acted as "organized bands of armed and disguised men." Republicans did not dispute that there may have been isolated examples of corruption and that individual militiamen may have acted inappropriately on occasion, but they resolutely-denied that the militia was functioning as an extension of the state Republican Party. Republicans also disputed the charge that arming state militias had spurred Klan violence, which they argued had long preceded this decision.20

U.S. Attorney Daniel Corbin, a Republican sympathetic to the plight of freedmen, admitted that "although a friend of the administration," he nevertheless "disapproved entirely of the matter of organizing the colored people and arming them, without doing it generally in regard to all people." Neither Democrats nor Republicans on the committee disputed the fact that arming of the militias intensified the violence in South Carolina.21

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TO  BE  CONTINUED