Paper on gun control, race, etc.
I actually found it good, on a quick skim, if you allow for what the author has to do to get it published. The core of it deals with how blacks were disarmed under the Slave Codes and then the Black Codes, how the 14th Amendment was meant to stop that, and didn't, how early in the 20th century blacks formed militias for defense against mobs, and how armed resistance was used in the civil rights movement. Oh, and how the California gun controls adopted in the 1960s were specifically aimed at the Black Panthers, and meant to give grounds to arrest and search them.
OK, now try finding a publisher for that in academia! So, to entice potential publishers, you:
1. Add a provocative title. Great job, BTW. I was always lousy at that.
2. Make it sound new by adding a bunch of buzzwords. "Mythology" is great. Everyone likes to be able to think were smart enough to see thru a myth that others believed in. "Community-protective autonomy," "Identity-protective Reform,"
3. Work in race whenever possible. "In a frightening shift, the phenomenon of blacks self-arming in the last two decades has been another instrument of oppression rather than liberty. As gun-related violence in America has increased, African Americans in urban communities disproportionately feel the devastation. Instead of African Americans looking down the barrel of white guns, the perpetrators of gun oppression are other African Americans.216 The racialized rhetoric and mythology of the Second
Amendment, however, have rendered white America complicit with respect to this crisis."
4. Throw in at least one passing claim that NRA is sorta racist. (If you check the fn. to that, it's a claim that NRA at some point showed images of the Los Angeles riots, and those featured Black rioters.).
But if you ignore what was inserted to attract publishers, rest is pretty good. The linked page has the abstract, and if go to the bottom you can download the paper itself in .pdf.
hat tip to Joe Olson..
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14th Amendment and the Colfax Massacre
Charles Lane continues to guest blog at Volokh Conspiracy, on the subject. His latest post, recounting the history of the US Atty who brought the Cruikshank prosecutions (and got fired over it) is here .
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Interesting discussion on Cruikshank and 14th Amendment
Over at the Volokh Conspiracy. It features guest blogging by Charles Lane, author of The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction. The Colfax Massacre is what gave rise to Cruikshank.
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Study of racist roots of gun control
From GeorgiaCarry.org comes "Disarm the Negro: the Racist Roots of Georgia Gun Control" (pdf file). Very interesting data on the 1906 Atlanta race riots, where mobs attacked black neighborhoods, the residents fought back (in an early form of straw man sales, light skinned residents bought guns for their neighbors), and police and the state militia responded with house to house searches for guns. The Atlanta Journal ran an editorial entitled "Disarm the Negroes," endorsing the searches with comments such as "Should a collision between the races occur, it would be too late to deplore the fact that the negroes had been permitted to arm themselves." The study also probes why GA law bans carrying at public assemblies, and notes the law was enacted after night riders attacked blacks who were travelling to a ... public assembly, and they fought back.
It also shows how newspapers cheered that fact that facially race-neutral handgun permit laws had been enacted, because they were being applied so as to selectively disarm black citizens.
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Anit-confiscation bill and its 14th Amendment implications
Dave Kopel has the scoop. (Via the the Bitchgirls).
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An interesting observation by Prof. Lund
I was reading Prof. Nelson Lund's piece, "Federalism and the Constitutional Right to Keep and Bear Arms," Publius 63 (Summer 2003): he observes that the 2nd Amendment is in a unique position vis-a-vis the 14th Amendment.
The Supreme Court early on held that the federal Bill of Rights did not bind State governments (and in fact the early State governments often penalized freedom of expression -- look at the Slave Codes -- and some had established churches for a time). Then came the 14th Amendment (1868) which forbade the States to deny the "privileges and immunities" of US citizenship, or to deprive citizens of life, liberty or property without "due process of law." Two different prohibitions.
The Supreme Court (as I note below) quickly eviscerated the "privileges and immunities" clause, but in the 20th century began binding States to follow specific Bill of Rights provisions by holding that laws restricting freedom of speech, jury trial in criminal cases, etc. involved deprivation of "due process of law."
Prof. Lund's observation is that the Court's only rulings on 2nd Amendment / 14th Amendment come in 19th century cases over "privileges and immunities." There simply is no Supreme Court ruling on whether a State deprivation of the right to arms denies "due process of law." This makes the 2nd Amendment quite unique. There are "due process" rulings on the other provisions of the Bill of Rights -- expressly holding that deprivation of jury trial in civil cases, and the right to grand jury indictment in criminal ones, do not deny "due process," and holding that deprivations of the remainder of the Bill of Rights does deny it. The 2nd Amendment stands alone in that the Supreme Court has never made a "due process" call one way or the other.
[Update] As the LegalEagle notes, the 3d Amendment (forbidding quartering of troops in private property) is a bit peculiar: it's generated little controversy, due to the invention of barracks.
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Apologies ... from the wrong party
The Senate is expected today to pass a resolution of apology for not having passed federal anti-lynching legislation when it was most needed. Apologies certainly are in order, but Congress isn't the party which needs to make them. It's the Supreme Court which owes the apology.
In 1870, Congress passed the Enforcement Act, to enforce the 14th Amendment's mandate that no state violate the privileges and immunities of US citizenship. The Act made it illegal, inter alia, 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..." The penalty was imprisonment for up to ten years.
In 1875, the Court ruled in U.S. v. Cruikshank that lynching a person (actually, a hundred people) did not deprive anyone of the privileges and immunities of national citizenship. (It's relevant to Second Amendment history in that the Court also ruled that disarming people and preventing their assembly were not violations of the 14th Amendment, either). Here's the language. Bear in mind that the Court was playing a word-game along these lines: (1) Privileges and immunities of State and of national citizenship must be different things (why?); (2) If a right existed beforethere was a national government, it must not be a P&I of national citizenship; therefore (3) the more fundamental, and the earlier a right can be seen as existing, the less likely it is to be a federal P&I protected by the 14th Amendment. Here's what the Court held as to the right to life:
"The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, 'of their respective several lives and liberty of person without due process of law.' This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself."
What makes Cruikshank particularly appalling was that it arose out of the worstracial violence in American history. Sheriff Cruikshank had been a leader of a mob that attacked a group of freedmen occupying a courthouse, burned the courthouse to force them out, disarmed them and murdered over a hundred of them. Here's an account by one of the mob: " the whites slaughtered many of the negroes as they rushed from the burning building, and many were ridden down in the open fields and shot without mercy. Those lying wounded on the court house square were pinned to the ground by bayonets. [About 48 were taken prisoner, and some of the mob were tasked with escorting them to jail.] .... When I got to the garden," continued Mr. Tanner, "I heard Luke Hadnot say, 'I can take five,' and five men stepped out. Luke lined them up and his old gun went off, and he killed all five of them with two shots. Then it was like popcorn in a skillet. They killed those forty-eight." Under the Supreme Court's ruling -- this was no violation of the 14th Amendment and could not be federally prosecuted.
Cruikshank has never, BTW, been overruled. The only way our Bill of Rights liberties (not to mention more fundamental rights such as that against being murdered by State functionaries) became applicable to the States was via the 14th Amendment's due process clause, which the Court only began vigorously to apply in the 1960s. So for virtually the entire period for which the Senate is apologizing, it would have done it no good to pass anti-lynching legislation, since Supreme Court caselaw had held that it exceeded Congressional powers.
Apologies are in order ... but they shouldn't come from the Capitol, but from a building across the street. I'm sure the All Writs Act would have something covering it.
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An interesting read
Robert F. Williams, "Negroes With Guns"
Williams was a local civil rights leader during the desperate and dangerous times of the early 60's. At one point the tiny NAACP chapter to which he belonged proposed to disband. He objected, so the others elected him president and then all but one resigned, leaving Williams head of a one-man chapter. A veteran himself, he focused on recruiting other black vets and soon rebuilt the chapter.
When the Klan came shooting, it soon found that its targets shot back. A Klan cavalcade (sort of a mass drive-by shooting) came to shoot up the home of the vice-president of the chapter, and found a number of members in sandbagged positions with rifles. After a gunfight, the Klan abandoned that approach (and the City Council, which had never done so before, required the Klan to get a permit for future appearances -- this was in 1957, remember). The book has pics of his group with their arms, of headlines ("CITIZENS FIRE BACK AT KLAN"). It's also worthwhile as a reminder of just how bad things really were back then -- a 7 year old sent to a reformatory for 12 years because a white girl had kissed him on the cheek, people murdered and raped with complete legal impunity, Williams himself forced to flee the country by a false kidnapping charge, government officials alternately trying to bribe him and threatening to murder him, etc. Anyway, here's a brief passage that is very interesting:
"Luther Hodges ... was the governor of South Carolina at the time. We appealed to him. He took sides with the Klan.... Then we appealed to President Eisenhower but we never received a reply to our telegrams. There was no response at all from Washington.So we started arming ourselves. I wrote to the National Rifle Association in Washington which encourages veterans to keep in shape to defend their native land and asked for a chapter, which I got. In a year we had sixty members. We had bought some guns, too, in stores, and later a church in the North raised money for us and we got better rifles. The Klan discovered we were arming and guarding our community. In the summer of 1957 they made one big attempt to stop us. An armed motorcade attacked Dr. Perry's house, which is situated on the outskirts of the colored community. We shot it out with the Klan and repelled their attack and the Klan didn't have any more stomach for this type of fight. They stopped raiding our community."
BTW, (1)that's by no means the only time Williams and his friends had to use firearms to defend themselves, and (2) there was no sense calling the police, since two police cars were in the Klan cavalcade!
The intro and forward go into the debates between Williams and Martin Luther King over self-defense in the late 1950s. They suggest that King's position actually agreed with Williams (self-defense was necessary to prevent terror from destroying the civil rights movement, was moral, and it was necessary to self-respect), and that he rather created a straw man by implying that Williams wanted to use force offensively (based on a slip of the tongue, when Williams was speaking angrily of a case where a white who had raped a black woman in front of many witnesses was still acquitted).
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Akhil Amar and the right to arms
In a symposium hosted by the American Enterprise Institute, Prof. Akhil Amar of Yale (probably the top 14th Amendment expert in the world) outlined his view of the right to arms. I've got video of the event, and will be posting a page on it soon.
Amar's thesis:
1. The right to arms starts out as an individual but rather "communitarian" right. The focus of the framers is on the citizenry as a whole being armed, and their ability to topple any possibly tyranny. The community acting as a body, probably under the guidance of state governments.
2. The 14th Amendment framers had a somewhat different viewpoint. The former Confederacy was disarming blacks and union veterans to make them vulnerable to Klan terror. "When guns are outlawed, only the Klan will have guns." They wanted citizens armed so as to be individually able to defend against violence, to defend their homes, even if the criminal violence came from State governments. Thus the 14th converted a communitarian sort of right into the quintessential individual right.
Ah--here's Amar's great book. Best right to arms discussion is around p. 264. "But a gun was far more than a badge [of freedom]. Even free blacks (to say nothing of slaves) had suffered unspeakable violence ... and in the wake of Emancipation, many southern governments forbade gun ownership among blacks but not whites. Blacks immediately sensed the grave threat posed by this aspect of the slave codes and took quick action....One of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances of this and other petitions, outlaw the infamous Black Codes, and affirm the full and equal right of every citizen to self-defense. Thus in introducing the Civil Rights Bill ... Lyman Trumbull explicitly took aim at a Mississsippi law that prohibited 'any black or mulatto from having firearms.'"
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14th Amendment: "privileges and immunities"
Section one of the 14th Amendment provides:
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.
For me, the meaning is straightforward. Background: the infamous Dred Scott case of 1857 had ruled that free blacks could never be US citizens. The opinion repeated uses "privileges and immunities" to describe citizen's rights. It begins,
"The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."
The opinion argues that the creators of the United States could not have intended blacks to be citizens, because that would give them the "privileges and immunities" of citizens. And in listng those P&I the opinion goes right down the bill of rights, including the Second Amendment:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; 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.
Sounds like a slam-dunk. The 14th Amendment had a clear target: Dred Scott. By providing that anyone born or naturalized in the US was a citizen, it eliminated that decision's racial barrier. It also changed in a more complex way the concept of citizenship: national citizenship became primary (Dred Scott had also said that a person could be a citizen of a state without being a citizen of the United States: no more would that be the case). And it forbade States to deny the "privileges and immunities" of US citizenship.
From where else but their target Dred Scott would the drafters of the 14th have taken "privileges and immunities?" Dred Scott says the P&I are the Bill of Rights and other similar liberties.
Of course, the Supreme Court had to have its say...
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Kopel: "The Klan's Favorite Law"
Dave Kopel's latest is an article in Reason entitled "The Klan's Favorite Law: Gun Control in the Postwar South." A few excerpts:
After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi's provision was typical: No freedman "shall keep or carry fire-arms of any kind, or any ammunition."
. . . .
The Special Report of the Anti-Slavery Conference of 1867 complained that freedmen were "forbidden to own or bear firearms and thus.rendered defenseless against assaults" by whites. Or as a letter printed in the Jan. 13, 1866 edition of Harper's Weekly observed: "The militia of this county have seized every gun found in the hands of so-called freedmen in 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."
. . . . .
Congress' "Report of the Joint Committee on Reconstruction" set forth the factual case for the need for a 14th Amendment to protect the liberties enumerated in the federal Bill of Rights. At the Committee's hearings, General Rufus Saxon testified that all over the South, whites were "seizing all fire-arms found in the hands of the freedmen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.'"