Manos: The Hans of Fate
Banned
This came up in another thread and I figured it warranted it's own separate discussion. Now this is a pretty long journal article and I'll have to split it up into two posts (along with another article) to discuss racism in gun control in the United States. The full journal article discusses (at the time of the writing) the legacy of racism in gun control and how gun prohibitions lead to an increase in the violation of the civil rights, especially of minorities. I think some may want to deny, but proof is in the historical evidence.
GUN CONTROL AND RACISM
George Mason University Civil Rights Law Journal
Vol. 2 (1991): 67.
An Excerpt. The full article is available at the link and talks about (at the time it was written) current measures. This excerpt is merely for the historical context.
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GUN CONTROL AND RACISM
George Mason University Civil Rights Law Journal
Vol. 2 (1991): 67.
An Excerpt. The full article is available at the link and talks about (at the time it was written) current measures. This excerpt is merely for the historical context.
I. GUN CONTROL MEASURES HAVE BEEN AND ARE USED TO DISARM AND OPPRESS BLACKS AND OTHER MINORITIES
The historical purpose of gun control laws in America has been one of discrimination and disenfranchisement of blacks, immigrants, and other minorities. American gun control laws have been enacted to disarm and facilitate repressive actions against union organizers, [Page 69] workers, the foreign-born and racial minorities.[2] Bans on particular types of firearms and firearms registration schemes have been enacted in many American jurisdictions for the alleged purpose of controlling crime. Often, however, the purpose or actual effect of such laws or regulations was to disarm and exert better control over the above-noted groups.[3] As Justice Buford of the Florida Supreme Court noted in his concurring opinion narrowly construing a Florida gun control statute:
I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers . . . . The statute was never intended to be applied to the white population and in practice has never been so applied. . . .[T]here has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested.[4]
Implicit in the message of such a law was the perceived threat that armed Negroes would pose to the white community. As applied, therefore, the statute sent a clear message: only whites could be trusted with guns, while Negroes could not.
A. Gun Control in the South
The development of racially based slavery in the seventeenth century American colonies was accompanied by the creation of laws meting out separate treatment and granting separate rights on the basis of race. An early sign of such emerging restrictions and one of the most important legal distinctions was the passing of laws denying free blacks the right to keep arms. "In 1640, the first recorded restrictive legislation passed concerning blacks in Virginia excluded them from owning a gun."[5]
Virginia law set Negroes apart from all other groups . . . by denying them the important right and obligation to bear arms. Few restraints could indicate [Page 70] more clearly the denial to Negroes of membership in the White community. This first foreshadowing of the slave codes came in 1640, at just the time when other indications first appeared that Negroes were subject to special treatment.[6]
In the later part of the 17th Century fear of slave uprisings in the South accelerated the passage of laws dealing with firearms possessions by blacks. In 1712, for instance, South Carolina passed "An act for the better ordering and governing of Negroes and Slaves" which included two articles particularly relating to firearms ownership and blacks.[7] Virginia passed a similar act entitled "An Act for Preventing Negroes Insurrections."[8]
Thus, in many of the ante-bellum states, free and/or slave blacks were legally forbidden to possess arms. State legislation which prohibited the bearing of arms by blacks was held to be constitutional due to the lack of citizen status of the Afro-American slaves. Legislators simply ignored the fact that the United States Constitution and most state constitutions referred to the right to keep and bear arms as a right of the "people" rather than of the "citizen".[9]
The Supreme Court of North Carolina upheld a law prohibiting free blacks from carrying firearms on the grounds that they were not citizens.[10] In the Georgia case of Cooper v. Mayor of Savannah, a similar provision passed constitutional muster on the grounds that "free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office."[11] Chief Justice Taney argued, in the infamous Dred Scott case, that the Constitution could not have intended that free blacks be citizens:
For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operations of the special laws and from the police regulations which they [the states] considered to be necessary for their own safety. It would give to persons of the Negro race, who [Page 71] were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, . . . [A]nd 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.[12]
After the conclusion of the American Civil War, several southern legislatures adopted comprehensive regulations, Black Codes, by which the new freed men were denied many of the rights that white citizens enjoyed. The Special Report of the Antislavery Conference of 1867 noted with particular emphasis that under these Black Codes blacks were "forbidden to own or bear firearms, and thus were rendered defenseless against assaults."[13] Mississippi's Black Code included the following provision:
Be it enacted . . . [t]hat no freedman, free Negro or mulatto, not in the military . . . and not licensed so to do by the board of police of his or her county, shall keep or carry firearms of any kind, or any ammunition, . . . and all such arms or ammunition shall be forfeited to the informer . . . ."[14]
The firearms confiscated would often be turned over to the Klan, the local (white) militia or law enforcement authorities which would then, safe in their monopoly of arms and under color of the Black Codes, further oppress and violate the civil rights of the disarmed freedmen.
The United States Congress overrode these Black Codes with the Civil Rights Act and the fourteenth amendment. The legislative histories of both the Civil Rights Act and the fourteenth amendment are replete with denunciations of those statutes denying blacks equal access to firearms for personal self-defense.[15]
In support of Senate Bill No. 9, which declared as void all laws in the former rebel states which recognized inequality of rights based on race, Senator Henry Wilson (R., Mass.) explained that: "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them . . . ."[16] [Page 72]
The framers of the Civil Rights Act of 1866 argued that the issue of the right to keep and bear arms by the newly freed slaves was of vital importance, since, as Senator Trimball noted from a report from Vicksburg, Mississippi, "[n]early all the dissatisfaction that now exists among the freedmen is caused by the abusive conduct of this militia," meaning the white state militia. He continued, stating that rather than to restore order, the state militia would typically "hang some freedmen or search Negro houses for arms."[17] Representative Henry J. Raymond (R., N.Y.) explained that the rights of citizenship entitled the freedmen to all the rights of United States citizens: "He has a defined status: he has a country and a home; a right to defend himself and his wife and children; a right to bear arms ...."[18] Senator William Salisbury (D., Del.) added that " n most of the southern States, there has existed a law of the State based upon and founded in its police power, which declares that free Negroes shall not have the possession of firearms or ammunition. This bill proposes to take away from the States this police power."[19]
Within three years of the adoption of the fourteenth amendment in 1868, Congress was considering legislation to suppress the Ku Klux Klan. In a report on violence in the South, Representative Benjamin F. Butler (R., Mass.) stated that the right to keep arms was necessary for protection not only against the state militia but also against local law enforcement agencies. He noted instances of "armed confederates" terrorizing the Negro, and "in many counties they have preceded their outrages upon him by disarming him, in violation of his right as a citizen to 'keep and bear arms' which the Constitution expressly says shall never be infringed."[20]
The anti-KKK bill, introduced as "an act to protect loyal and peaceful citizens in the South," was originally introduced to the House Judiciary Committee with the following provision:
That whoever shall, without due process of law, by violence, intimidation, or threats, take away or deprive any citizen of the United States of any arms or weapons he may have in his house or possession for the defense of his person, family, or property, shall be deemed guilty of a larceny thereof, and be punished as provided in this act for a felony.[21] [Page 73]
Representative Butler explained the purpose of this provision:
Section 8 is intended to enforce the well-known constitutional provision guaranteeing the right in the citizen to 'keep and bear arms,' . . . .This provision seemed to your committee to be necessary, because they had observed that, before these midnight marauders made attacks upon peaceful citizens, there were very many instances in the South where the sheriff of the county had preceded them and taken away the arms of their victims. This was especially noticeable in Union County, where all the Negro population were disarmed by the sheriff only a few months ago under the order of the judge . . . ; and then, the sheriff having disarmed the citizens, the five hundred masked men rode at night and murdered and otherwise maltreated the ten persons who were there in jail in that county.[22]
When the Judiciary Committee later reported this bill as H.R. No. 320, the above section was deleted, apparently because the proscription extended to simple individual larceny over which Congress was perceived at that time to have no constitutional authority and because the conspiratorial action involved in the disarming of blacks would be covered by more general provisions of the bill.[23]
However, concern remained over the disarming of blacks in the South. Senator John Sherman (R., Ohio) stated that "[w]herever the Negro population preponderates, there they [the KKK] hold their sway, for a few determined men ... can carry terror among ignorant Negroes . . . without arms, equipment, or discipline."[24] Senator Adelbert Ames (R., Miss.) noted that the right to keep and bear arms was a necessary condition for the right of free speech, stating that " n some counties it was impossible to advocate Republican principles, those attempting it being hunted like wild beasts; in others, the speakers had to be armed and supported by not a few friends."[25]
Even after the passage of the Civil Rights Act and the fourteenth amendment, Southern states continued in their effort to disarm blacks. Some Southern states reacted to the federal acts by conceiving a means to the same end: banning a particular class of firearms, in this case cheap handguns, which were the only firearms the poverty-stricken freedmen could afford. [Page 74]
Small pistols selling for as little as 50 or 60 cents became available in the 1870's and '80's, and since they could be afforded by recently emancipated blacks and poor whites (whom agrarian agitators of the time were encouraging to ally for economic and political purposes), these guns constituted a significant threat to a southern establishment interested in maintaining the traditional class structure.[26]
In the very first legislative session after white supremacists regained control of the Tennessee legislature in 1870, that state set the earliest Southern postwar pattern of legal restrictions by enacting a ban on the carrying, "publicly or privately," of, among other things, the "belt or pocket pistol or revolver."[27] In 1879, the General Assembly of Tennessee banned the sale of any pistols other than "army or navy" model revolvers.[28] This law effectively limited handgun ownership to whites, many of whom already possessed these Civil War service revolvers, or to those who could afford to purchase these more expensive firearms. These military firearms were among the best made and most expensive on the market, and were beyond the means of most blacks and laboring white people. The Ku Klux Klan was not inconvenienced since its organization in Tennessee had long since acquired its guns, many of which were such surplus army/navy model revolvers. Neither were company strongmen and professional strike breakers disarmed, whose weapons were supplied by their corporate employers.[29]
In 1881, Arkansas followed Tennessee's law by enacting a virtually identical "Saturday Night Special Law,"[30] which again was used to disarm blacks. Instead of formal legislation, Mississippi, Florida and other deep South states simply continued to enforce the pre-emancipation statutes forbidding blacks to possess arms, in violation of the fourteenth amendment.[31]
A different route was taken in Alabama, Texas, and Virginia: there, exorbitant business or transaction taxes were imposed in order [Page 75] to price handguns out of the reach of blacks and poor whites. An article in Virginia's official university law review called for a "prohibitive tax . . . on the privilege" of selling handguns as a way of disarming "the son of Ham", whose
cowardly practice of 'toting' guns has been one of the most fruitful sources of crime . . . . Let a Negro board a railroad train with a quart of mean whiskey and a pistol in his grip and the chances are that there will be a murder, or at least a row, before he alights.[32]
Often systems were emplaced where retailers would report to local authorities whenever blacks purchased firearms or ammunition. The sheriff would then arrest the purchaser and confiscate the firearm, which would either be destroyed or turned over to the local Klan or a white militia.[33] Mississippi legislated this system by enacting the first registration law for retailers in 1906, requiring retailers to maintain records of all pistol and pistol ammunition sales, and to make such available for inspection on demand.[34]
In United States v. Cruikshank,[35] a case often cited as controlling law by Handgun Control, Incorporated and other anti-gun organizations,[36] the United States Supreme Court upheld the Klan's repressive actions against blacks in the South. The case involved two men "of African descent and persons of color" who had their weapons confiscated by more than 100 Klansmen in Louisiana. The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the right of assembly and the right to keep and bear arms for lawful purposes. The Court held that because such rights, including free speech and the right to keep and bear arms, existed independently of the Constitution, and the first and second amendments guaranteed only that such rights shall not be infringed by the federal government, the federal government had no power to punish a violation of such rights by private individuals or the states. The fourteenth amendment offered no relief, the Court held, because the case involved a private conspiracy and not state action. The Court stated that the aggrieved citizens could seek [Page 76] protection and redress only from the state government of Louisiana and not from the federal government.[37]
The Cruikshank decision signaled the end of reconstruction. "Firearms in the Reconstruction South provided a means of political power for many. They were the symbols of the new freedom for blacks . . . In the end, white southerners triumphed and the blacks were effectually disarmed."[38]
It was not just the newly freed blacks in the South who were disarmed through discriminatory legislation which denied them the ability to defend their life and property, and kept them in a servile position, but also other "undesirable" white elements which were targeted by gun control laws.
At the end of the 19th century, Southern states began formalizing firearms restrictions in response to an increased concern about firearms ownership by certain whites, such as agrarian agitators and labor organizers. In 1893, Alabama, and in 1907, Texas, began imposing extremely heavy business and/or transaction taxes on handgun sales in order to resurrect economic barriers to ownership. South Carolina, in 1902, banned all pistol sales except to sheriffs and their special deputies, which included company strongmen and the KKK.[39]
The Supreme Court of North Carolina, in striking down a local statute which prohibited the open carrying of firearms without a permit in Forsyth County, stated:
To exclude all pistols, however, is not a regulation, but a prohibition, of arms which come under the designation of arms which the people are entitled to bear. This is not an idle or an obsolete guaranty, for there are still localities, not necessary to mention, where great corporations, under the guise of detective agents or private police, terrorize their employees by armed force. If the people are forbidden to carry the only arms within their means, among them pistols, they will be completely at the mercy of these great plutocratic organizations.[40]
B. Gun Control in the North
In the Northeast, the period from the 1870's to the mid-1930's was characterized by strong xenophobic reactions to Eastern and [Page 77] Southern European immigrants. Armed robbery in particular was associated with the racial stereotype in the public mind of the East and South European immigrant as lazy and inclined to violence. Furthermore, these immigrants were associated with the concept of the foreign-born anarchist. The fear and suspicion of these "undesirable" immigrants, together with a desire to disarm labor organizers, led to a concerted campaign by local and national business associations and organizations such as the Immigration Restriction League and the American Protective Association, for the enactment of a flat ban on the ownership of firearms, or at least handguns, by aliens.[41] In 1911, New York enacted the Sullivan law.[42] "Of proven success in dealing with political dissidents in Central European countries, this system made handgun ownership illegal for anyone without a police permit."[43] The New York City Police Department thereby acquired the official and wholly arbitrary authority to deny or permit the possession of handguns; which the department used in its effort to disarm the city's Italian population. The Sullivan law was designed to
strike hardest at the foreign-born element . . . . As early as 1903 the authorities had begun to cancel pistol permits in the Italian sections of the city. This was followed by a state law of 1905 which made it illegal for aliens to possess firearms 'in any public place'. This provision was retained in the Sullivan law.[44]
Conservative business associations, through a nationwide handgun prohibition campaign endorsing the Sullivan-type law concept, were responsible for enacting police permit requirements in Arkansas, Hawaii, Michigan, Missouri, New Jersey, North Carolina and Oregon, between 1911 and 1934. The then conservative institutions of the New York Times and the American Bar Association supported this campaign. By fueling a spreading fear of armed robbery, these business interests were able to push for restrictive gun laws that were really aimed at the disarmament of labor organizations and agrarian agitators. (Of course, in the Northeast, it was commonly supposed that such groups were, in any event, largely composed of, or led by foreigners of alien political persuasions.)[45] [Page 78]
Canada also adopted a handgun permit law in 1919, partly in response to a recently crushed general strike which was erroneously believed to have been engineered and led by foreigners. Legislators remarked about the absurdity of allowing firearms ownership to those who "bring their bad habits, notions, and vicious practices into this country."[46]
Most of the American handgun ownership restrictions adopted between 1901 and 1934 followed on the heels of highly publicized incidents involving the incipient black civil rights movement, foreign-born radicals or labor agitators. In 1934, Hawaii, and in 1930 Oregon, passed gun control statutes in response to labor organizing efforts in the Port of Honolulu and the Oregon lumber mills. Michigan's version of the Sullivan law was enacted in the aftermath of the trial of Dr. Ossian Sweet, a black civil rights leader. Dr. Sweet, had moved into an all white neighborhood and had been indicted for murder for shooting one of a white mob that had attacked his house while Detroit police looked on. A Missouri permit law was enacted in the aftermath of a highly publicized St. Louis race riot.[47]
After World War I, a generation of young blacks, often led by veterans familiar with firearms and willing to fight for the equal treatment that they had received in other lands, began to assert their civil rights. In reaction, the Klan again became a major force in the South in the 1910's and 1920's. Often public authorities stood by while murders, beatings and lynchings were openly perpetrated upon helpless black citizens. And once again, firearms legislation in Alabama, Arkansas, Mississippi, Missouri, Tennessee and Texas made sure that the victims of the Klan's violence were unarmed and did not possess the ability to defend themselves, while at the same time cloaking the specially deputized Klansmen in the safety of their monopoly of arms.
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(2), has been admitted to the United States under a non-immigrant visa.