THE SECOND AMENDMENT:
TOWARD AN AFRO‑AMERICANIST RECONSIDERATION
Robert J. Cottrol and
Raymond T. Diamond
It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, . . . and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African‑American history. With the exception of Native Americans, no people in American history have been more influenced by violence than blacks. Private and public violence maintained slavery. The nation's most destructive conflict ended the “peculiar institution.” That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence and abetted by Supreme Court sanction Jim Crow was sustained by private violence, often with public assistance.
If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black‑on‑black violence, making life all too precarious for poor blacks in inner city neighborhoods. Questions raised by the Second Amendment, particularly those concerning self‑defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro‑ American experience.
ARMED CITIZENS, FREEMEN, AND WELL‑REGULATED MILITIAS: THE BEGINNINGS OF AN AFRO‑AMERICAN EXPERIENCE WITH AN ANGLO‑AMERICAN RIGHT
Any discussion of the Second Amendment should begin with the commonplace observation that the framers of the Bill of Rights did not believe they were creating new rights Instead, they believed that they were simply recognizing rights already part of their English constitutional heritage and implicit in natural law. In fact, many of the framers cautioned against a bill of rights, arguing that the suggested rights were inherent to a free people, and that a specific detailing of rights would suggest that the new constitution empowered the federal government to violate other traditional rights not enumerated.
Thus, an analysis of the framers' intentions with respect to the Second Amendment should begin with an examination of their perception of the right to bear arms as one of the traditional rights of Englishmen, a right necessary to perform the duty of militia service. Such an analysis is in part an exercise in examining the history of arms regulation and militia service in English legal history. But a simple examination of the right to own weapons at English law combined with an analysis of the history of the militia in English society is inadequate to a full understanding of the framers' understanding of what they meant by “the right to keep and bear arms.” By the time the Bill of Rights was adopted, nearly two centuries of settlement in North America had given Americans constitutional sensibilities similar to, but nonetheless distinguishable from, those of their English counterparts. American settlement had created its own history with respect to the right to bear arms, a history based on English tradition, modified by the American experience, and a history that was sharply influenced by the racial climate in the American colonies.
ENGLISH LAW AND TRADITION
The English settlers who populated North America in the seventeenth century were heirs to a tradition over five centuries old governing both the right and duty to be armed. At English law, the idea of an armed citizenry responsible for the security of the community had long coexisted, perhaps somewhat uneasily, with regulation of the ownership of arms, particularly along class lines. The Assize of Arms of 118 required the arming of all free men, and required free men to possess armor suitable to their condition. By the thirteenth century, villains possessing sufficient property were also expected to be armed and contribute to the security of the community. Lacking both professional police forces and a standing army, English law and custom dictated that the citizenry as a whole, privately equipped, assist in both law enforcement and in military matters. By law, all men between sixteen and sixty were liable to be summoned into the sheriff's posse comitatus. All subjects were expected to participate in the hot pursuit of criminal suspects, supplying their own arms for the occasion. There were legal penalties for failure to participate.
Moreover, able‑bodied men were considered part of the militia, although by the sixteenth century the general practice was to rely on select groups intensively trained for militia duty rather than to rely generally on the armed male population. This move toward a selectively trained militia was an attempt to remedy the often indifferent proficiency and motivation that occurred when relying on the population as a whole.
Although English law recognized a duty to be armed, it was a duty and a right highly circumscribed by English class structure. The law often regarded the common people as a dangerous class, useful perhaps in defending shire and realm, but also capable of mischief with their weapons, mischief toward each other, toward their betters, and toward their betters' game. Restrictions on the type of arms deemed suitable for common people had long been part of English law and custom. A sixteenth‑century statute designed as a crime control measure prohibited the carrying of handguns and crossbows by those with incomes of less than one hundred pounds a year. Catholics were also often subject to being disarmed as potential subversives after the English reformation.
It took the religious and political turmoil of seventeenth‑century England to bring about large scale attempts to disarm the English public and to bring the right to keep arms under English constitutional protection. Post‑Restoration attempts by Charles II to disarm large portions of the population known or believed to be political opponents, and James II's efforts to disarm his Protestant opponents led, in 1689, to the adoption of the Seventh provision of the English Bill of Rights: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law.”
By the eighteenth century, the right to
possess arms, both for personal protection and as a counterbalance against
state power, had come to be viewed as part of the rights of Englishmen by many
on both sides of the
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law, which is also declared by the same statute 1 W. & M. st. 2 c. 2 and is indeed a public allowance, under due restrictions, of the natural right of resistance and self‑ preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
ARMS AND RACE IN COLONIAL
the English tradition involved a right and duty to bear arms qualified by class
and later religion, both the right and the duty were strengthened in the
earliest American settlements. From the beginning, English settlement in
There was another reason for the renewed
emphasis on the right and duty to be armed in
This need for racial control helped
transform the traditional English right into a much broader American one. If
English law had qualified the right to possess arms by class and religion,
American law was much less concerned with such distinctions. Initially all
Englishmen, and later all white men, were expected to possess and bear arms to
defend their commonwealths, both from external threats and from the internal
ones posed by blacks and Indians. The statutes of many colonies specified that
white men be armed at public expense. In most
colonies, all white men between the ages of sixteen and sixty, usually with the
exception of clergy and religious objectors, were considered part of the
militia and required to be armed.
Not only were white men required to perform traditional militia and posse
duties, they were also required to serve as patrollers, a specialized posse
dedicated to keeping order among the slave population, in those colonies with
large slave populations.
This broadening of the right to keep and bear arms reflected a more
general lessening of class, religious, and ethnic distinctions among whites in
If there were virtually universal
agreement concerning the need to arm the white population, the
law was much more ambivalent with respect to blacks. The progress of slavery in
These differences were reflected in
statutes concerned with the right to possess arms and the duty to perform
militia service. One colony --
These concerns were mirrored in the
legislation of other colonies.
Overall, these laws reflected the desire
to maintain white supremacy and control. With respect to the right to possess
arms, the colonial experience had largely eliminated class, religious, and
ethnic distinctions among the white population. Those who had been part of the
suspect classes in England‑‑ the poor, religious dissenters, and
others who had traditionally only enjoyed a qualified right to possess arms --
found the right to be considerably more robust in the American context. But
blacks had come to occupy the social and legal space of the suspect classes in
Ironically, while the black presence in
C. THE RIGHT OF WHICH PEOPLE?
1. Revolutionary Ideals
The colonial experience helped strengthen the appreciation of early Americans for the merits of an armed citizenry. That appreciation was strengthened yet further by the American Revolution. If necessity forced the early colonists to arm, the Revolution and the friction with Britain's standing army that preceded it -- and in many ways precipitated it -- served to revitalize Whiggish notions that standing armies were dangerous to liberty, and that militias, composed of the whole of the people, best protected both liberty and security. 
These notions soon found their way into the debates over the new constitution, debates which help place the language and meaning of the Second Amendment in context. Like other provisions of the proposed constitution, the clause that gave Congress the power to provide for the organizing, arming, and disciplining of the militia excited fears among those who believed that the new constitution could be used to destroy both state power and individual rights. 
Indeed, it was the very universality of the militia that was the source of some of the objections. A number of critics of the proposed constitution feared that the proposed congressional power could subject the whole population to military discipline and a clear threat to individual liberty. Others complained that the Militia Clause provided no exemptions for those with religious scruples against bearing arms. 
But others feared that the Militia Clause
could be used to disarm the population as well as do away with the states'
control of the militia. Some critics expressed fear that Congress would use its
power to establish a select militia, a group of men specially trained and armed
for militia duty, similar to the earlier English experience. Richard Henry Lee
In their efforts to defend the proposed
constitution, Alexander Hamilton and James Madison addressed these charges.
It is against this background that the meaning of the Second Amendment must be considered. For the revolutionary generation, the idea of the militia and an armed population were related. The principal reason for preferring a militia of the whole over either a standing army or a select militia was rooted in the idea that, whatever the inefficiency of the militia of the whole, the institution would better protect the newly won freedoms than a reliance on security provided by some more select body.
2. Racial Limitations
One year after the ratification of the Second Amendment and the Bill of Rights, Congress passed legislation that reaffirmed the notion of the militia of the whole and explicitly introduced a racial component into the national deliberations on the subject of the militia. The Uniform Militia Act called for the enrollment of every free, able‑bodied white male citizen between the ages of eighteen and forty‑five into the militia. The act further specified that every militia member was to provide himself with a musket or firelock, a bayonet, and ammunition.
This specification of a racial qualification for militia membership was somewhat at odds with general practice in the late eighteenth century. Despite its recognition and sanctioning of slavery, the Constitution had no racial definition of citizenship. [FN90] Free Negroes voted in a majority of states. A number of states had militia provisions that allowed free Negroes to Participate. Particularly in the northern states, many were well aware that free Negroes and former slaves had served with their state forces during the Revolution. Despite the prejudices of the day, lawmakers in late eighteenth‑century America were significantly less willing to write racial restrictions into constitutions and other laws guaranteeing fundamental rights than were their counterparts a generation or so later in the nineteenth century. The 1972 statute restricting militia enrollment to white men was one of the earliest federal statutes to make a racial distinction.
The significance of this restriction is not altogether clear. For the South, there was a clear desire to have a militia that was reliable and could be used to suppress potential slave insurrections. But despite the fear that free Negroes might make common cause with slaves, and despite federal law, some southern states in the ante-bellum period enrolled free blacks as militia members. Northern states at various times also enrolled free Negroes in the militia despite federal law and often strident prejudice. States North and South employed free Negroes in state forces during times of invasion. While southern states often prohibited slaves from carrying weapons and strictly regulated access to firearms by free Negroes, northern states generally made no racial distinction with respect to the right to own firearms, and federal law was silent on the subject.
The racial restriction in the 1792 statute indicates the unrest the revolutionary generation felt toward arming blacks and perhaps the recognition that one of the functions of the militia would indeed be to put down slave revolts. Yet, the widespread use of blacks as soldiers in time of crisis and the absence of restrictions concerning the arming of blacks in the northern states may provide another clue concerning how to read the Second Amendment. The 1792 act specified militia enrollment for white men between the ages of eighteen and forty‑five. Yet, while it specifically included only this limited portion of the population, the statute excluded no one from militia service.
The authors of the statute had experience, in the Revolution, with a militia and Continental Army considerably broad in membership. Older and younger men had served with the Revolutionary forces. Blacks had served, though their service had been an object of considerable controversy. Even women had served, though, given the attitudes of the day, this was far more controversial than black service. Given this experience and the fact that the constitutional debates over the militia had constantly assumed an enrollment of the male population between sixteen and sixty, it is likely that the framers of the 1792 statute envisioned a militia even broader than the one they specified. This suggests to us how broad the term “people” in the Second Amendment was meant to be.
The 1792 statute also suggests to us also how crucial race has been in our history. If the racial distinction made in that statute was somewhat anomalous in the late eighteenth century, it was the kind of distinction that would become more common in the nineteenth. The story of blacks and arms would continue in the nineteenth century as racial distinctions became sharper and the defense of slavery more militant.
II. ARMS AND THE ANTEBELLUM EXPERIENCE
as presaged by the Uniform Militia Act of 1792, racial distinctions became
sharper in the nineteenth century, that development was at odds with the rhetoric
of the Revolution and with developments of the immediate post‑revolutionary
era. Flush with the precepts of egalitarian democracy,
The right to vote, perhaps the most
fundamental of rights, was limited in almost all instances to men who met
property restrictions, but in most states was not limited according to race.
Ironically, only in the nineteenth‑century would black voting rights be
curtailed, as Jacksonian democracy expanded voting rights for whites. In its
constitution of 1821,
This curtailment of black voting rights was part and parcel of a certain hostility toward free blacks, a hostility that ran throughout the union of states. In northern states, where slavery had been abandoned or was not a serious factor in social or economic relations, such hostility was the result of simple racism. In southern states, where slavery was an integral part of the social and economic framework, this hostility was occasioned by the threat that free blacks posed to the system of Negro slavery.
A. THE SOUTHERN ANTEBELLUM EXPERIENCE: CONTROL OF ARMS AS A MEANS OF RACIAL OPPRESSION
The threat that free blacks posed to southern slavery was twofold. First, free blacks were a bad example to slaves. For a slave to see free blacks enjoy the trappings of white persons -- freedom of movement, expression, and association, relative freedom from fear for one's person and one's family, and freedom to own the fruits of one's labor -- was to offer hope and raise desire for that which the system could not produce. A slave with horizons limited only to a continued existence in slavery was a slave who did not threaten the system, whereas a slave with visions of freedom threatened rebellion.
This threat of rebellion is intimately related to the second threat that free blacks posed to the system of Negro slavery, the threat that free blacks might instigate or participate in a rebellion by their slave brethren. To forestall this threat of rebellion, southern legislatures undertook to limit the freedom of movement and decision of free blacks. States limited the number of free blacks who might congregate at one time; they curtailed the ability of free blacks to choose their own employment, and to trade and socialize with slaves. Free blacks were subject to question, to search, and to summary punishment by patrols established to keep the black population, slave and free, in order. To forestall the possibility that free blacks would rebel either on their own or with slaves, the southern states limited not only the right of slaves, but also the right of free blacks, to bear arms. 
The idea was to restrict the availability
of arms to blacks, both slave and free, to the extent consistent with local
conceptions of safety. At one extreme was
More often than not, slave state statutes
restricting black access to firearms were aimed primarily at free blacks, as
opposed to slaves, perhaps because the vigilant master was presumed capable of
denying arms to all but the most trustworthy slaves, and would give proper
supervision to the latter. Thus,
By contrast, free blacks, not under the
close scrutiny of whites, were generally subject to tight regulation with
respect to firearms. The State of
Perhaps as a response to the Nat Turner
rebellion, Florida in 1833 enacted another statute authorizing 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. In
1846 and 1861, the
B. THE NORTHERN ANTEBELLUM EXPERIENCE: USE OF
FIREARMS TO COMBAT RACIALLY MOTIVATED DEPRIVATIONS OF
Even as northern racism defined itself in part by the curtailment of black voting rights, it cumulatively amounted to what some have called a widespread “Negrophobia.” With notable exceptions, public schooling, if available to blacks at all, was segregated. Statutory and constitutional limitations on the freedom of blacks to emigrate into northern states were a further measure of northern racism. While the level of enforcement and the ultimate effect of these constitutional and statutory provisions may not have been great, the very existence of these laws speaks to the level of hostility northern whites had for blacks during this period. It is against this background -- if not poisonous, racist and hostile -- that the black antebellum experience with the right to bear arms must be measured.
Perhaps nothing makes this point better than the race riots and mob violence against blacks that occurred in many northern cities in the antebellum period. These episodes also illustrate the uses to which firearms might be put in pursuit of self‑defense and individual liberty.
A good deal of racial tension was generated by economic competition between whites and blacks during this period, and this tension accounts in part for violent attacks against blacks. Moreover, whites were able to focus their attacks because blacks were segregated into distinct neighborhoods in northern states, rendering it easy for white mobs to find the objects of their hostility.
Quite often, racial violence made for bloody, destructive confrontations. Awareness of racial hostility generally, and of particular violent incidents made blacks desirous of forming militia units.
Though the Uniform Militia Act of 1792 had
not specifically barred blacks from participation in the state organized
northern states had treated the act as such, and so the state organized militia
was not an option.
Blacks could nonetheless form private militia groups that might serve to
protect against racial violence, and did so. Free blacks in
It is not clear whether private black
militia groups ever marched on a white mob. But that they may never have been
called on to do so may be a measure of their success. The story of the July
Undoubtedly, the most striking examples of
the salutary use of firearms by blacks in defense of their liberty, and
concurrently the disastrous results from the denial of the right to carry
firearms in self‑defense, lie in the same incident. In
This history shows that if racism in the antebellum period was not limited to the southern states, neither was racial violence. Competition with and hostility toward blacks accounted for this violence in northern states, whereas the need to maintain slavery and maintain security for the white population accounted for racial violence in southern states. Another difference between the two regions is that in the southern states blacks did not have the means to protect themselves, while in northern states, blacks by and large had access to firearms and were willing to use them.
The 1841 Cincinnati riot represents the tragic, misguided irony of the city's authorities who, concerned with the safety of the black population, chose to disarm and imprison them -- chose, in effect, to leave the black population of Cincinnati as southern authorities left the black population in slave states, naked to whatever indignities private parties might heap upon them, and dependent on a government either unable or unwilling to protect their rights. As a symbol for the experience of northern blacks protecting themselves against deprivations of liberty, the 1841 riot holds a vital lesson for those who would shape the content and meaning of the Fourteenth Amendment.
III. ARMS AND THE POSTBELLUM SOUTHERN ORDER
The end of the Civil War did more than simply bring about the end of slavery; it brought about a sharpened conflict between two contrasting constitutional visions. One vision, largely held by northern Republicans, saw the former slaves as citizens entitled to those rights long deemed as natural rights in Anglo‑American society. Theirs was a vision of national citizenship and national rights, rights that the federal government had the responsibility to secure for the freedmen and, indeed, for all citizens. This vision, developed during the antislavery struggle and heightened by the Civil War, caused Republicans of the Civil War and postwar generation to view the question of federalism and individual rights in a way that was significantly different from that of the original framers of the Constitution and Bill of Rights. If many who debated the original Constitution feared that the newly created national government could violate long established rights, those who changed the Constitution in the aftermath of war and slavery had firsthand experience with states violating fundamental rights. The history of the right to bear arms is, thus, inextricably linked with the efforts to reconstruct the nation and bring about a new racial order.
If the northern Republican vision was to bring the former slaves into the ranks of citizens, the concern of the defeated white South was to preserve as much of the antebellum social order as could survive northern victory and national law. The Emancipation Proclamation and the Thirteenth Amendment abolished slavery; chattel slavery as it existed before the war could not survive these developments. Still, in the immediate aftermath of the war, the South was not prepared to accord the general liberties to the newly emancipated black population that northern states had allowed their free black populations. Instead, while recognizing emancipation, southern states imposed on the freedmen the legal disabilities of the antebellum free Negro population.
In 1865 and 1866, southern states passed a series of statutes known as the black codes. These statutes, which one historian described as “a twilight zone between slavery and freedom,” were an expression of the South's determination to maintain control over the former slaves. Designed in part to ensure that traditional southern labor arrangements would be preserved, these codes were attempts “to put the state much in the place of the former master.” The codes often required blacks to sign labor contracts that bound black agricultural workers to their employers for a year. Blacks were forbidden from serving on juries, and could not testify or act as parties against whites. Vagrancy laws were used to force blacks into labor contracts and to limit freedom of movement.
As further indication that the former
slaves had not yet joined the ranks of free citizens, southern states passed
legislation prohibiting blacks from carrying firearms without licenses, a
requirement to which whites were not subjected. The
The restrictions in the black codes caused
strong concerns among northern Republicans. The charge that the South was
trying to reinstitute slavery was frequently made, both in and out of Congress. The
news that the freedmen were being deprived of the right to bear arms was of
particular concern to the champions of Negro citizenship. For them, the right
of the black population to possess weapons was not merely of symbolic and
theoretical importance; it was vital both as a means of maintaining the
The efforts to disarm the freedmen were in the background when the 39th Congress debated the Fourteenth Amendment, and played an important part in convincing the 39th Congress that traditional notions concerning federalism and individual rights needed to change. While a full exploration of the incorporation controversy is beyond the scope of this chapter, it should be noted that Jonathan Bingham, author of the Fourteenth Amendment's Privileges or Immunities Clause, clearly stated that it applied the Bill of Rights to the states. Others shared that same understanding.
Although the history of the black codes persuaded the 39th Congress that Congress and the federal courts must be given the authority to protect citizens against state deprivations of the Bill of Rights, the Supreme Court in its earliest decisions on the Fourteenth Amendment moved to maintain much of the structure of prewar federalism. A good deal of the Court's decision‑ making that weakened the effectiveness of the Second Amendment was part of the Court's overall process of eviscerating the Fourteenth Amendment soon after its enactment.
That process began with the Slaughterhouse
which dealt a severe blow to the Fourteenth Amendment's Privileges or
Immunities Clause, a blow from which it has yet to recover. It was also within
its early examination of the Fourteenth Amendment that the Court first heard a
claim directly based on the Second Amendment. Ironically, the party first
bringing an allegation before the Court concerning a Second Amendment violation
was the federal government. In
The Cruikshank decision, which dealt a serious blow to Congress' ability to enforce the Fourteenth Amendment, was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth Amendment -- to bring about a revolution in federalism, as well as race relations. While the Court in the late 1870s and 1880s was reasonably willing to strike down instances of state sponsored racial discrimination, it also showed a strong concern for maintaining state prerogative and a disinclination to carry out the intent of the framers of the Fourteenth Amendment to make states respect national rights.
This trend was demonstrated in Presser v.
The rest of the story is all too well known. The Court's denial of an expanded roll for the federal government in enforcing civil rights played a crucial role in redeeming white rule. The doctrine in Cruikshank, that blacks would have to look to state government for protection against criminal conspiracies, gave the green light to private forces, often with the assistance of state and local governments, that sought to subjugate the former slaves and their descendants. Private violence was instrumental in driving blacks from the ranks of voters. It helped force many blacks into peonage, a virtual return to slavery, and was used to force many blacks into a state of ritualized subservience. With the protective arm of the federal government withdrawn, protection of black lives and property was left to largely hostile state governments. In the Jim Crow era that would follow, the right to posses arms would take on critical importance for many blacks. This right, seen in the eighteenth century as a mechanism that enabled a majority to check the excesses of a potentially tyrannical national government, would for many blacks in the twentieth century become a means of survival in the face of private violence and state indifference.
IV. ARMS AND AFRO‑AMERICAN SELF‑DEFENSE IN THE TWENTIETH CENTURY: A HISTORY IGNORED
For much of the twentieth century, the black experience in this country has been one of repression. This repression has not been limited to the southern part of the country, nor is it a development divorced from the past. Born perhaps of cultural predisposition against blacks, and nurtured by economic competition between blacks and whites, particularly immigrant groups and those whites at the lower rungs of the economic scale, racism in the North continued after the Civil War, abated but not eliminated in its effects. In the South, defeat in the Civil War and the loss of slaves as property confirmed white Southerners in their determination to degrade and dominate their black brethren.
Immediately after the Civil War and the
emancipation it brought, white Southerners adopted measures to keep the black
population in its place.
Southerners saw how Northerners had utilized segregation as a means to avoid
the black presence in their lives, and
they already had experience with segregation in southern cities before the war.
Southerners extended this experience of segregation to the whole of southern
life through the mechanism of “Jim Crow.” Jim Crow was established both by the
operation of law, including the black codes and other legislation, and by an
elaborate etiquette of racially restrictive social practices. The Civil Rights
and Plessy v.
This is not to say that blacks went
quietly or tearfully to their deaths. Oftentimes they were able to use firearms
to defend themselves, though usually not with success: Jim McIlherron was
When blacks used firearms to protect their
rights, they were often partially successful but were ultimately doomed. In
1920, two black men in
Although individual efforts of blacks to
halt violence to their persons or property were largely unsuccessful, there
were times that blacks succeeded through concerted or group activity in halting
lynchings. In her autobiography, Ida Wells‑Barnett reported an incident
A. Philip Randolph, the longtime head of the Brotherhood of Sleeping Car Porters, and Walter White, onetime executive secretary of the National Association for the Advancement of Colored People, vividly recalled incidents in which their fathers had participated in collective efforts to use firearms to successfully forestall lynchings and other mob violence. As a thirteen‑ year‑old, White participated in his father's experiences, which, he reported, left him “gripped by the knowledge of my own identity, and in the depths of my soul, I was vaguely aware that I was glad of it.” After his father stood armed at a jail all night to ward off lynchers, Randolph was left with a vision, not “of powerlessness, but of the ‘possibilities of salvation,’ which resided in unity and organization.”
The willingness of blacks to use firearms to protect their rights, their lives, and their property, alongside their ability to do so successfully when acting collectively, renders many gun control statutes, particularly of Southern origin, all the more worthy of condemnation. This is especially so in view of the purpose of these statutes, which, like that of the gun control statutes of the black codes, was to disarm blacks.
That the Southern states did not prohibit firearms ownership outright is fortuitous. During the 1960s, while many blacks and white civil rights workers were threatened and even murdered by whites with guns, firearms in the hands of blacks served a useful purpose, to protect civil rights workers and blacks from white mob and terrorist activity.
It struck many, then, as the height of blindness, confidence, courage, or moral certainty for the civil rights movement to adopt nonviolence as its credo, and to thus leave its adherents open to attack by terrorist elements within the white South. Yet, while nonviolence had its adherents among the mainstream civil rights organizations, many ordinary black people in the South believed in resistance and believed in the necessity of maintaining firearms for personal protection, and these people lent their assistance and their protection to the civil rights movement.
Daisy Bates, the leader of the Little Rock
NAACP during the desegregation crisis, wrote in her memoirs that armed
volunteers stood guard over her home.
Moreover, there are oral histories of such assistance. David Dennis, the black
Congress of Racial Equality (CORE) worker who had been targeted for the fate
that actually befell Goodman, Schwerner, and Chaney during the Freedom Summer,
has told of black
Ad hoc efforts were not the sole means by
which black Southern adherents of firearms protected workers in the civil
rights movement. The Deacons for Defense and Justice were organized first in
A prime example of how the Deacons accomplished their task lies in the experience of James Farmer, then head of (CORE), a frontline, mainstream civil rights group. Before Farmer left on a trip for Bogalousa, the Federal Bureau of Investigation informed him that he had received a death threat from the Klan. The FBI apparently also informed the state police, who met Farmer at the airport. But at the airport also were representatives of the Bogalousa chapter of the Deacons, who escorted Farmer to the town. Farmer stayed with the local head of the Deacons, and the Deacons provided close security throughout the rest of this stay and Farmer's next. Farmer later wrote in his autobiography that he was secure with the Deacons, “in the knowledge that unless a bomb were tossed . . . the Klan could only reach me if they were prepared to swap their lives for mine.”
Blacks in the South found the Deacons helpful because they were unable to rely upon police or other legal entities for racial justice. This provided a practical reason for a right to bear arms: In a world in which the legal system was not to be trusted, perhaps the ability of the system's victims to resist might convince the system to restrain itself.
CONCLUSION: SELF‑DEFENSE AND THE GUN CONTROL QUESTION TODAY
Throughout American history, black and white Americans have had radically different experiences with respect to violence and state protection. Perhaps one reason the Second Amendment has not been taken very seriously by the courts and the academy is that for many of those who shape or critique constitutional policy, the state's power and inclination to protect them is a given. But for all too many black Americans, that protection historically has not been available. Nor, for many, is it readily available today. If in the past the state refused to protect black people from the horrors of white lynch mobs, today the state seems powerless in the face of the tragic black‑on‑black violence that plagues the mean streets of our inner cities, and at times seems blind to instances of unnecessary police brutality visited upon minority populations.
The history of blacks, firearms regulations, and the right to bear arms should cause us to ask new questions regarding the Second Amendment. These questions will pose problems both for advocates of stricter gun controls and for those who argue against them. Much of the contemporary crime that concerns Americans is in poor black neighborhoods and a case can be made that greater firearms restrictions might alleviate this tragedy. But another, perhaps stronger case can be made that a society with a dismal record of protecting a people has a dubious claim on the right to disarm them. Perhaps a re‑examination of this history can lead us to a modern realization of what the framers of the Second Amendment understood: that it is unwise to place the means of protection totally in the hands of the state, and that self‑defense is also a civil right.
. See KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY IN THE ANTEBELLUM SOUTH 141‑91 (1956).
. The Civil War
. See generally
ERIC FONER, RECONSTRUCTION:
. Ibid. Especially pertinent is John Philip Reid's reminder: "There are other dimensions that the standing‑army controversy, when studied from the perspective of law, adds to our knowledge of the American Revolution. One is the degree to which eighteenth‑century Americans thought seventeenth‑century English thoughts." JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING‑ ARMY CONTROVERSY, THE TWO CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION 4 (1981) (emphasis added).
. See, e.g., THE FEDERALIST NO. 84 (Alexander Hamilton).
. This can be
seen with reference to the right of trial by jury. A number of scholars have
noted that Americans in the late 18th century regarded the right of trial by
jury as including the right to have the jury decide issues of law as well as
fact. This was, of course, a departure from traditional English practice. See
MORTON J. HOROWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780‑ 1860, at 28‑29
(1977); WILLIAM EDWARD NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF
LEGAL CHANGE ON
Joyce Lee Malcolm notes that
. ALAN HARDING, A SOCIAL HISTORY OF ENGLISH LAW 59 (1966); Malcolm, supra note 9, at 391.
. Malcolm, supra note 9, at 391‑92.
. Ibid. at 393.
. Ibid. at 393‑94.
. Ibid. at 408.
. 1 WILLIAM
BLACKSTONE, COMMENTARIES *143‑45. Blackstone listed three primary rights‑‑the
right of personal security, the right of personal liberty, and the right of
private property‑‑all of which he regarded as natural rights
recognized and protected by the common law and statutes of
Some commentators have argued that
Blackstone's remarks and other evidence of English common‑law and
statutory rights to possess arms should be viewed in the light of the extensive
regulation of firearms that traditionally existed in
Blackstone's importance to this discussion
is twofold. His writings on the right to possess arms can be taken as partial
evidence of what the framers of the Second Amendment regarded as among the
rights of Englishmen that they sought to preserve. Blackstone's views greatly
influenced late 18th‑century American legal thought. But Blackstone's
importance in this regard does not cease with the Second Amendment. Blackstone
also greatly influenced 19th‑ century American legal thinking. One
influential antebellum American jurist, Justice Joseph Story, was significantly
influenced by his readings of Blackstone. See R. KENT NEWMYER, SUPREME COURT
JUSTICE JOSEPH STORY: STATESMAN OF THE
The right of the citizens to keep, and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if they are successful in the first instance, enable the people to resist, and triumph over them.
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 708 (Carolina Academic Press 1987) (1833).
While it would be inaccurate to attribute Story's Second Amendment views solely to his reading of Blackstone, Blackstone doubtless helped influence Story and other early 19th‑century lawyers and jurists to regard the right to keep and bear arms as an important prerogative of free citizens. All of this is important for our discussion, not only with regard to antebellum opinion concerning the Second Amendment, but also in considering the cultural and legal climate that informed the framers of the Fourteenth Amendment who intended to extend what were commonly regarded as the rights of free men to the freedmen, and who also intended to extend the Bill of Rights to the states. See infra Part III.
. 1 BLACKSTONE, supra note 46, at *143‑44.
. ABBOTT E.
SMITH, COLONISTS IN BONDAGE: WHITE SERVITUDE AND CONVICT LABOR IN
. BOORSTIN, supra note 18, at 355‑56.
. See A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 32 (1978).
It should also be added that the abundant
game found in North America during the colonial period eliminated the need for
the kind of game laws that had traditionally disarmed the lower classes in
. See, e.g., 2 LAWS OF THE ROYAL COLONY OF NEW JERSEY 15‑21, 49, 96, 133, 289 (Bernard Bush ed., 1977).
. HIGGINBOTHAM, supra note 51, at 260‑262.
. For a good discussion of the elevation of the rights of white indentured servants as a means of maintaining social control over the black population, see generally EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA (1975)
Halbrook notes that
. See Raymond T.
Diamond, No Call to Glory: Thurgood
. HIGGINBOTHAM, supra note 51, at 21‑22.
. See HERBERT APTHEKER, AMERICAN NEGRO SLAVE REVOLTS (5th ed. 1983); Diamond, supra note 56, at 101‑102, 104; Robert J. Cottrol & Raymond T. Diamond, Book Review, 56 TUL. Law Review 1107, 1110‑1112 (1982) (reviewing A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD (1978)).
. 1 WILLIAM W. HENING, STATUTES AT LARGE OF VIRGINIA 226 (New York, R. & W. & G. Bartow 1823); see HIGGINBOTHAM, supra note 51, at 32.
. 1 HENING, supra note 59, at 226; see HIGGINBOTHAM, supra note 51, at 32.
. HIGGINBOTHAM, supra note 51, at 39.
. Ibid. at 58.
. Ibid. at 38‑40.
informs us that the
. See LORENZO J.
GREENE, THE NEGRO IN COLONIAL
. See 2 LAWS OF THE ROYAL COLONY OF NEW JERSEY, supra note 52, at 49, 96, 289.
. See HIGGINBOTHAM, supra note 51, at 201‑15.
. See generally REID, supra note 34.
. Elbridge Gerry
It is interesting, in light of the current
debate, that both advocates and opponents of this increase in federal power
assumed that the militia they were discussing would be one that enrolled almost
all of the white male population between the ages of 16 and 60, and that that
population would supply their own arms.
George Mason of
. THE ANTIFEDERALISTS, supra note 74, at 57. This concern was the reason for the original language of the Second Amendment. See supra note 4.
That the people have a right to keep and bear arms; that a well‑regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence for a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.
3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787 TOGETHER WITH THE JOURNAL OF THE FEDERAL CONVENTION 657‑59 (Jonathan Elliot ed., Ayer Co. 1987) (1907) [hereinafter ELLIOT'S DEBATES].
. THE FEDERALIST
NO. 25, at 161 (Alexander Hamilton) (The Heritage Press 1945). For a modern
study that supports
. 5 ELLIOT'S DEBATES, supra note 80, at 464‑65.
. THE FEDERALIST
NO. 46, at 319 (James Madison) (The Heritage Press 1945). The census of 1790
listed the white male population over age 16 as 813,298. See BUREAU OF THE
. 1 Stat. 271.
. U.S. CONST. art I, s 2, cl. 3 (specifying congressional representation) is often cited for the proposition that blacks were not citizens because of the three‑fifths clause. It should be noted that, under this clause, free Negroes were counted as whole persons for purposes of representation. The original wording of this provision specifically mentioned "white and other citizens," but that language was deleted by the committee on style as redundant. See 5 ELLIOT'S DEBATES, supra note 78, at 451.
. Robert J.
Cottrol, The Thirteenth Amendment and the North's Overlooked Egalitarian
Heritage, 11 NAT'L BLACK LawJ. 198, 202‑03 (1989) (discussing racism in
Finkelman, Prelude to the Fourteenth Amendment: Black Legal Rights in the
Antebellum North, 17
. See, e.g., GA. CONST. of 1779, art. IV, s 1, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 386; MD. CONST. OF 1776, art. II, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 821; MASS. CONST. of 1776, pt. I, declaration of rights, art. IX, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 958; N.H. CONST. OF 1784, pt. I, bill of rights, art. XI, 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1281; N.J. CONST. of 1776, art. IV, 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1311; N.C. CONST. of 1776, constitution or frame of government, art. IX, 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1411‑12; PA. CONST. of 1776, declaration of rights, art. VII, 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1541; VT. CONST. of 1777, ch. 1, declaration of rights, art. VIII, 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1859.
. See GA. CONST. of 1776, art. LVI, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 283; GA. CONST. of 1789, art. IV, s 5, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 386; MD. CONST. of 1776, art. XXXIII, 1 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 819‑20 (freedom of religion for "all persons"); N.C. CONST. of 1776, art. VIII (rights in criminal proceedings to be informed of charges, to confront witnesses, and to remain silent for "every man," and freedom of religion for "all men"), 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1409; N.Y. CONST. of 1777, art. XIII (due process to be denied "no member of this state"), art. XXXVIII (freedom of religion "to all mankind"); PA.CONST. of 1776, art. II (freedom of religion for "all men"), art. VIII (due process for "every member of society"), 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1541; PA. CONST. of 1790, art. XI, s 3 (freedom of religion to be denied to "no person"), art. XI, s 7 (freedom of the press for "every person" and freedom of speech for "every citizen"), art. XI, s 10 (due process to be denied to "no person"), 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1554‑55; S.C. CONST. of 1778, art. XXXVIII (freedom of religion), 2 FEDERAL AND STATE CONSTITUTIONS, supra note 104, at 1626‑27; S.C. CONST. of 1790, art. VIII (freedom of religion "to all mankind"), 2 FEDERAL AND STATE CONSTITUTIONS, s supra note 104, at 1632.
. LEON F.
LITWACK, NORTH OF SLAVERY: THE NEGRO IN THE
. See STAMPP, supra note 27, at 215‑17.
. STAMPP, supra note 27, at 214‑16.
. See infra text accompanying notes 126‑46.
. Chapter 448, s
1, of the Kentucky Acts of 1818 was limited solely to slave offenders. Act of Feb. 10, 1819, ch. 448, s 1, 1819 Acts
. An Act
Concerning Slaves, s 11, Acts of
. 1825 Acts of
. Ibid. s 9.
. Act of Jan 31,
supra note 58, at 298. For a full account of the revolt, the bloodiest in
. See HERBERT APTHEKER, NAT TURNER'S SLAVE REBELLION 74‑94 (1966).
. Ibid. at 74‑75.
. Ibid. at 75.
. Ibid. at 81.
. Act of Dec 23,
1833, s 7, 1833
. Act of Feb.
17, 1833, ch. 671, ss 15, 17, 1833
. Act of Jan. 6,
1847, ch. 87, s 11, 1846
. STAMPP, supra note 27, at 214‑15.
. See supra text accompanying notes 112‑16.
. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 10 (1977).
. After Roberts
. From 1807 to
. From 1833 to
. See LITWACK, supra note 116, at 159, 165 (in fields where blacks were allowed to compete with whites, who were often the new Irish immigrants, violence often erupted).
. Ibid. at 153; see also LEONARD P. CURRY, THE FREE BLACK IN URBAN AMERICA 1800‑1850: THE SHADOW OF THE DREAM 96‑111 (1981).
. See supra Part I.c.2.
. JACK D. FONER, BLACKS AND THE MILITARY IN AMERICAN HISTORY: A NEW PERSPECTIVE 20‑21 (1974).
. See COTTROL, supra note 97, at 63.
. OSCAR HANDLIN,
. CURRY, supra note 153, at 100; VICTOR ULLMAN, MARTIN R. DELANY: THE BEGINNINGS OF BLACK NATIONALISM 29‑31 (1971).
. CURRY, supra note 153, at 105‑06.
. Ibid. at 107‑08; WENDELL P. DABNEY,
. Even during
the Civil War, the
. 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
Section 2. Congress shall have power to enforce this article by appropriate legislation.
U.S. CONST. amend. XIII.
. See generally Finkelman, supra note 99.
. KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865‑1877, at 80 (1965).
. FONER, supra note 29, at 198 (1988) (quoting letter from William H. Trescot to James Law Orr, Dec. 13, 1865, South Carolina's Governor's Papers).
. FONER, supra note 29, at 200.
. STAMPP, supra note 171, at 80
. 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 permission of his employers, approved and endorsed by the nearest and most convenient chief of patrol. Any one violating the provisions of this section shall forfeit his weapons and pay a fine of five dollars, or in default of the payment of said fine, shall be forced to work five days on the public road, or suffer corporal punishment as hereinafter provided.
Louisiana Statute of 1865, reprinted in DOCUMENTARY HISTORY OF RECONSTRUCTION, supra note 170, at 280
. [N]o 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 fire‑arms of any kind, or any ammunition, dirk or bowie knife, and on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars, and pay the cost of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed to trial in default of bail.
Mississippi Statute of 1865, reprinted in DOCUMENTARY HISTORY OF RECONSTRUCTION, supra note 170, at 290.
. 1. That it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own fire‑arms, or carry about his person a pistol or other deadly weapon.
2. That after the 20th day of January, 1866, any person thus offending may be arrested upon the warrant of any acting justice of the peace, and upon conviction fined any sum not exceeding $100 or imprisoned in the county jail, or put to labor on the public works of any county, incorporated town, city, or village, for any term not exceeding three months.
3. That if any gun, pistol or other deadly weapon be found in the possession of any freedman, mulatto or free person of color, the same may by any justice of the peace, sheriff, or constable be taken from such freedman, mulatto, or free person of color; and if such person is proved to be the owner thereof, the same shall, upon an order of any justice of the peace, be sold, and the proceeds thereof paid over to such freedman, mulatto, or person of color owning the same.
4. That it shall not be lawful for any person to sell, give, or lend fire‑ arms or ammunition of any description whatever, to any freedman, free negro or mulatto; and any person so violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined in the sum of not less than fifty nor more than one hundred dollars, at the discretion of the jury trying the case.
See THE RECONSTRUCTION AMENDMENTS' DEBATES 209 (Alfred Avins ed., 1967).
. See FONER, supra note 29, at 225‑227; STAMPP, supra note 171, at 80‑81.
. The Ku Klux Klan was formed in 1866 and immediately launched its campaign of terror against blacks and southern white unionists. See FONER, supra note 29, at 342; infra text at notes 217‑223.
. During the debates
over the Civil Rights Act of 1866, Republican Representative Sidney Clarke of
Who, sir, were those men? Not the present
militia; but the brave black soldiers of the
THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 178, at 209.
Roswell Hart, Republican from
The Constitution clearly describes that to be a republican form of government for which it was expressly framed. A government which shall "establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty"; a government whose "citizens shall be entitled to all privileges and immunities of other citizens"; where "no law shall be made prohibiting the free exercise of religion"; where "the right of the people to keep and bear arms shall not be infringed"; where "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated," and where "no person shall be deprived of life, liberty, or property without due process of law."
Have these rebellious States such a form
of government? If they have not, it is the duty of the
THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 178, at 193.
. For a good general discussion of the incorporation question, see MICHAEL K. CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986). For a good discussion of the 39th Congress's views concerning the Second Amendment and its incorporation via the Fourteenth, see HALBROOK, supra note 6, at 107‑23.
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the
. THE RECONSTRUCTION AMENDMENTS' DEBATES, supra note 178, at 156‑60, 217‑ 18.
. Ibid. at 219
(remarks by Republican Sen. Jacob Howard of
Benevolent Ass'n v. Crescent City Live‑Stock Landing & Slaughter‑House
. 16 Stat. 140 (1870) (codified as amended at 18 U.S.C. ss 241‑ 42 (1988)). The relevant passage reads:
That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States or because of his having exercised the same, such persons shall be held guilty of a felony . . . .
Ibid. at 141
. This can also
be seen in the Court's reaction to the federal government's first public
accommodations statute, the Civil Rights Act of 1875. With much the same
reasoning, the Court held that Congress had no power to prohibit discrimination
in public accommodations within states. See The Civil Rights Cases, 109
. See, e.g.,
Yick Wo v.
. Ibid. at 253.
. Ibid. at 265.
. RABLE, supra note 29, at 88‑90; STAMPP, supra note 171, at 199‑204.
. Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases, 82 COLUM. Law Review 646, 653‑55 (1982).
. GEORGE M. FREDRICKSON, WHITE SUPREMACY: A COMPARATIVE STUDY IN AMERICAN AND SOUTH AFRICAN HISTORY 251‑52 (1981); CHARLES E. SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 32 (1978); JOEL WILLIAMSON, A RAGE FOR ORDER: BLACK/WHITE RELATIONS IN THE AMERICAN SOUTH SINCE EMANCIPATION 124 (1986).
. See generally
. LITWACK, supra note 116, at 153‑86.
. Cottrol, supra note 91, at 1007‑19.
. C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 22‑23 (3d ed. 1974).
. See infra text accompanying notes 169‑178. See generally WOODWARD, supra note 203, at 22‑29.
. See Ibid. at 18‑21 (the Jim Crow system was born in the North where systematic segregation, with the backing of legal and extralegal codes, permeated black life in the free states by 1860); see also LITWACK, supra note 116, at 97‑99 (in addition to statutes and customs that limited the political and judicial rights of blacks, extralegal codes enforced by public opinion perpetuated the North's systematic segregation of blacks from whites).
. See RICHARD C. WADE, SLAVERY IN THE CITIES: THE SOUTH 1820‑1860, at 180‑ 208 (1964) (although more contact between blacks and whites occurred in urban areas of the South, both social standards and a legal blueprint continued the subjugation of blacks to whites).
. Ibid. at 551.
. Jim Crow was
not exclusively a southern experience after the Civil War. For example, at one
point or another, antimiscegenation laws have been enacted by forty‑one
of the fifty states. Harvey M.
Applebaum, Miscegenation Statutes: A
Constitutional and Social Problem, 53 GEO. L.J. 49, 50‑51 & 50 n.9
(1964). The Adams case, in which the
federal government challenged separate university facilities throughout the
union, involved the State of
Lynching Witnessed by 2,000 Persons,
. IDA B. WELLS‑BARNETT, CRUSADE FOR JUSTICE: THE AUTOBIOGRAPHY OF IDA
B. WELLS 62 (Alfreda M. Duster ed., 1970). Wells‑Barnett's fears for her
safety, fortunately, were never realized. Born a slave in 1862, she died of
natural causes in 1931. Ibid. at xxx‑xxxi, 7. Eli Cooper of
. Letter from Texas Reveals Lynching's Ironic Facts, N.Y. NEGRO WORLD, Aug. 22, 1920, reprinted in GINZBURG, supra note 231, at 139‑40.
. Lone Survivor of Atrocity Recounts Events of Lynching, N.Y. AMSTERDAM NEWS, June 1, 1927, reprinted in GINZBURG, supra note 231, at 175‑78.
supra note 240, at 50. To forestall the occurrence of future incidents of the
same nature, a
. WALTER WHITE, A MAN CALLED WHITE 4‑12 (1948), reprinted in THE NEGRO AND THE CITY, supra note 219, at 121‑26.
. Ibid. at 126.
. JERVIS ANDERSON, A. PHILLIP RANDOLPH: A BIOGRAPHICAL PORTRAIT 41‑42 (1973).
. Ibid. at 42.
. See, e.g., John R. Salter, Jr. & Donald B. Kates, Jr., The Necessity of Access to Firearms by Dissenters and Minorities Whom Government is Unwilling or Unable to Protect, in RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT, 185, 189‑93 (Donald B. Kates, Jr. ed., 1979).
. Donald B. Kates, Jr., recalls that:
As a civil rights worker in a Southern State during the early 1960's, I found that the possession of firearms for self‑defense was almost universally endorsed by the black community, for it could not depend on police protection from the KKK. The leading civil rights lawyer in the state (then and now a nationally prominent figure) went nowhere without a revolver on his person or in his briefcase. The black lawyer for whom I worked principally did not carry a gun all the time, but he attributed the relative quiescence of the Klan to the fact that the black community was so heavily armed. Everyone remembered an incident several years before, in which the state's Klansmen attempted to break up a civil rights meeting and were routed by return gunfire. When one of our clients (a school‑teacher who had been fired for her leadership in the Movement) was threatened by the Klan, I joined the group that stood armed vigil outside her house nightly. No attack ever came‑‑though the Klan certainly knew that the police would have done nothing to hinder or punish them.
RESTRICTING HANDGUNS: THE LIBERAL SKEPTICS SPEAK OUT, supra note 256, at 186.
. DAISY BATES, THE LONG SHADOW OF LITTLE ROCK, A MEMOIR 94 (1982).
. HOWELL RAINES, MY SOUL IS RESTED: MOVEMENT DAYS IN THE DEEP SOUTH REMEMBERED 275‑76 (1977).
. Telephone interview with David Dennis (Oct. 30, 1991).
. Hamilton Bims, Deacons for Defense, EBONY, Sept. 1965, at 25, 26; see also Roy Reed, The Deacons, Too, Ride by Night, N.Y. TIMES, Aug. 15, 1965, Magazine, at 10.
. Bims, supra note 271, at 25‑26.
. Ibid. at 26. Like the Deacons for Defense and Justice was the Monroe, North Carolina chapter of the NAACP, which acquired firearms and used them to deal with the Ku Klux Klan. ROBERT F. WILLIAMS, NEGROES WITH GUNS 42‑49, 54‑ 57 (1962). The Deacons for Defense and Justice are to be contrasted with the Black Panther Party for Self Defense. The Black Panther Program included the following statement:
We believe we can end police brutality in
our black community by organizing black self‑defense groups that are
dedicated to defending our black community from racist police oppression and
brutality. The Second Amendment to the Constitution of the
Black Panther Party‑‑Platform and Program, reprinted in REGINALD MAJOR, A PANTHER IS A BLACK CAT 286 (1971). Yet, the Black Panthers deteriorated into an ineffective group of revolutionaries, at times using arguably criminal means of effectuating their agenda. See generally GENE MARINE, THE BLACK PANTHERS (1969); BOBBY SEALE, SEIZE THE TIME: THE STORY OF THE BLACK PANTHER PARTY AND HUEY P. NEWTON (1968).
. JAMES FARMER, LAY BARE THE HEART: AN AUTOBIOGRAPHY OF THE CIVIL RIGHTS MOVEMENT 287 (1985).
. See Bims, supra note 271, at 26; see also Reed, supra note 268, at 10.
. See Reed, supra note 271, at 10; see also Bims, supra note 268, at 26.
. RAINES, supra note 269, at 417 (interview with Charles R. Sims, leader of the Bogalousa Deacons); see Bims, supra note 271, at 26; Reed, supra note 271, at 10‑11.
. FARMER, supra note 274, at 288.
. The beating
of Rodney King on March 3, 1991, by members of the Los Angeles Police
Department, captured on tape by a serendipitous amateur photographer, has
focused attention recently on the problem of police brutality, though the
problem predates and presumably continues beyond the incident. See Tracey Wood
& Faye Fiore, Beating Victim Says He Obeyed Police,