July 8th, 2010 09:33 PM
Gun Rights Are Civil Rights...
Gun Rights Are Civil Rights - The majority opinion in McDonald v. Chicago shines a light on a...
NATIONAL REVIEW ONLINE ^ | July 7, 2010 | Robert VerBruggen
Posted on July 7, 2010 533 PM EDT by neverdem
Gun Rights Are Civil Rights
The majority opinion in McDonald v. Chicago shines a light on a dark period in American history.
Reading the opinions in McDonald v. Chicago, you might think it was as much a civil-rights case as a gun case.
In the ruling, the Supreme Court decided 5–4 that the Second Amendment applies to states and localities, not just the federal government, and struck down Chicago’s handgun ban. The four conservative justices, along with Justice Anthony Kennedy, formed the majority. One of the conservatives, Clarence Thomas, also filed a concurring opinion.
The main disagreement betwee the two opinions concerned whether the Fourteenth Amendment’s “privileges or immunities” clause or its “due process” clause is the best way for the Court to apply constitutional protections to state and local governments. But in the process of making their arguments, both opinions emphasize the racial history of the Fourteenth Amendment — the story of the post–Civil War South and the federal government’s crusade to ensure fair treatment for blacks therein.
The heart of the problem was that, in an effort to stave off rebellion and maintain the racial caste structure that had developed under slavery, state and local governments refused to respect freedmen’s constitutional rights. Crucial to the South’s efforts were gun-control laws that applied to blacks and blacks alone.
This does not show that modern gun controllers are racist, or even that the modern gun-control movement has “racist roots,” as some have suggested — the concerns that motivate Sarah Brady are neither the same as nor descended from the concerns that motivated racist southern governments. But this does show that when a government has the ability to forbid gun ownership, it has the ability to render groups it dislikes helpless to defend themselves. Regardless of whether modern gun control accomplishes its purpose of reducing crime — and for the record, there is no evidence it does — a free society should fear a government with such power.
The South’s campaign against black gun ownership, not surprisingly, began long before the Civil War. Two slave rebellions in the 1820s stoked whites’ fears, and in response, “many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well,” Thomas notes. Georgia forbade blacks to “own, use, or carry fire arms of any description whatever.” Florida empowered “patrol[s]” of white citizens to “search negro houses or other suspected places, for fire arms”; blacks caught with guns — whether slave or free — were brought to the “nearest justice of the peace” for “whipping on the bare back, not exceeding thirty-nine lashes.” (They could escape punishment by providing a “plain and satisfactory” explanation.)
It wasn’t just blacks, but also anti-slavery whites, whom governments tried to disarm. For example, during the “Bleeding Kansas” period — a series of violent skirmishes in the 1850s between pro- and anti-slavery elements in that future border state — there were attempts to take guns from the “free-soilers.” As the majority opinion in McDonald notes, the 1856 Republican-party platform described this as a violation of the right to keep and bear arms.
When the war ended, fear of rebellion peaked, and southern governments ramped up their efforts. Some states passed laws banning black gun ownership or gun carrying, and there was a “systematic effort” to disarm the freedmen who had served in the Union army and then returned to their homes in the South. Roving bands of ex–Confederate soldiers, many affiliated with the Ku Klux Klan, took arms from blacks by force while official law enforcement looked the other way. In South Carolina, a group of black citizens wrote the following to Congress: “We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed . . . that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.”
The problem wasn’t just that the laws were discriminatory, forbidding blacks but not whites to own guns — it was that the government had the right to ban gun ownership by the law-abiding at all. Even if the South had banned all gun ownership, disarmed blacks would have had to deal with the armed and racist “state militia and state peace officers,” the justices note.
They might have added that, without technically discriminating by race, the South could have used the techniques it later employed to keep blacks from voting — grandfather clauses, literacy tests, etc. — to exempt whites from facially non-discriminatory gun bans. (We see a modern analogue to these policies in laws that prevent the poor from owning guns. It costs $340, nonrefundable, just to apply for a gun permit in New York City, and the rich and famous seem to have a lower likelihood of being rejected. Also, the gun-control movement periodically goes after “Saturday-night specials” — that is, handguns cheap enough that the poor can afford them.)
It was gun-control laws — along with other laws that violated virtually every right blacks had — that led to the Fourteenth Amendment, which authorized the federal government to ensure that state and local governments respected citizens’ rights.
The Freedmen’s Bureau Act of 1866, passed just two years before the amendment was approved, made it clear that the right to keep and bear arms was an important right for freed blacks to have: “The right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.” Advocates of the Civil Rights Act of 1866 cited the disarmament of freed blacks as a reason the law was necessary.
These laws, however, didn’t work. Southern governments refused to enforce them, and the Supreme Court — which was far less powerful then than it is today, anyhow — did not intervene. To drive the point home that the South had to respect blacks’ rights, including the right to bear arms, Republicans in Congress passed the Fourteenth Amendment (they had the numbers to do this because they had refused to seat the Democrats the South had elected, many of whom were former Confederate soldiers), sent it to the states for ratification, put the former Confederate states under martial law via the Reconstruction Acts, and made their ratifying the amendment a condition of ending military rule.
The Supreme Court’s decision gives Americans a lot to think about — from the “privileges or immunities” clause to the Court’s proper role in enforcing the Constitution. But whenever we discuss gun control, we need to remember that a government capable of gun control is capable of tyranny. Both the majority opinion and Thomas’s concurrence in McDonald — following in the steps of works such as Stephen P. Halbrook’s Securing Civil Rights — perform the crucial service of explaining how important that fact was in the wake of the Civil War.
— NR associate editor Robert VerBruggen runs the Phi Beta Cons blog.
Former Army Infantry Captain; 25 yrs as an NRA Certified Instructor; Avid practitioner of the martial art: KLIK-PAO.
July 9th, 2010 06:53 AM
Excellent post! If more people understood some of the background you've shared they might not be so flippant regarding the importance of the 2nd amendment. It's amazing to me when I hear people ask why does anyone need to own a gun. They seem to believe crime will never come knocking on their door and have no recognition of the potential for tyranny right here in the U.S.
July 9th, 2010 07:11 AM
Very good read and info!!!!
NOT LIVING IN FEAR, JUST READY!!!
I do not love the bright sword for its sharpness,
nor the arrow for its swiftness,
nor the warrior for his glory.
I love only that which they defend.
July 9th, 2010 12:17 PM
Thanks for the post! We need all the "ammo" we can get to keep defending our civil right.
It could be worse!
July 9th, 2010 01:57 PM
"Killers who are not deterred by laws against murder are not going to be deterred by laws against guns. " - Robert A. Levy
"A license to carry a concealed weapon does not make you a free-lance policeman." - Florida Div. of Licensing
July 9th, 2010 02:33 PM
"Confidence is food for the wise man but liquor for the fool"
July 9th, 2010 09:02 PM
Great post, and very much the truth.
July 9th, 2010 10:23 PM
It ***IS*** a Civil Rights issue, from the roots.
Please understand that I use "civil rights" in its broadest, purest meaning. As an ardent RKBA supporter and 2nd Amendment advocate, I consider myself a true "civil rights" activist. That description is generally useful as a conversation starter in many situations I encounter.
NRA Endowment Member
July 10th, 2010 09:33 AM
The problem is that in the same way some states did everything in their power to circumvent abiding by federal law with respect to the civil rights of minorities, states like NY will do everything it can to circumvent honoring the Heller and McDonald rulings, and the fact that the 2nd Amendment is a fundamental Constitutional right deserving the same esteem and protection as the 1st Amendment.
It could take many years for cases to work there way through the court system in order to force some states to abide by the spirit of the 2nd amendment. In the meantime during this current administration a conservative justice could be replaced by an Obama appointee with the potential to undo the gains that have been made over the last couple of years.
Unfortunately Heller and McDonald only directly dealt with the broad issue of our right to own a handgun for self-defense in the home and issues regarding storage. The issues related to the various licensing schemes and restrictions on those licenses was not deal with other then there could not be a total ban. So we wait while hoping and praying that an idealogical shift in the wrong direction on the SC doesn't occur while we wait for these issues to be addressed.
July 10th, 2010 10:06 AM
Excellent post. I have spoken of the individual right to keep and bear arms as a "civil right" for years, and this seems to penetrate the mental armor of some folks better than anything else.
July 10th, 2010 11:03 AM
Now that the 2A is recognized as a civil right, 2A activists are in the same boat as others that go to courts to enforce their civil rights. Barriers to civil rights enforcement can and do effect the 2A as much as negative substantive 2A decisions.
Originally Posted by 2edgesword
The right of the bench is often wrong on these issues. We need to get on board with the rest of the civil rights community and realize that the threat to the 2A now comes from the right as much, or more, than from the left.
July 11th, 2010 12:58 AM
The threats to individual liberties, including the Second Amendment rights to keep and bear arms, come from those who would be our rulers instead of the servants they promise to be.
Originally Posted by The Donkey
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