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[Copyright (c) 1991 Robert J. Cottrol &. Raymond T. Diamond.
Georgetown Law Journal, 1991, 80:309-361.
For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.
This article is available in RTF (Word 97) format.]

The Second Amendment: Toward an
Afro-Americanist Reconsideration [*]

Robert J. Cottrol [**]
and Raymond T. Diamond [***]

Table of Contents

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. [1]

Introduction

The often strident debate over the Second Amendment [2] is like few others in American constitutional discourse and historiography. It is a constitutional debate that has taken place largely in the absence of Supreme Court opinion. [3] It is a historical controversy where the framers' intentions have best been gleaned from indirect rather than direct evidence. [4] It is a scholarly debate that members of the academy have been until recently somewhat reluctant to join, [5] leaving the field to independent scholars primarily concerned with the modern gun control controversy. [6] In short, the Second Amendment is an arena of constitutional jurisprudence that still awaits its philosopher.

The debate over the Second Amendment is ultimately part of the larger debate over gun control, a debate about the extent to which the Amendment was either meant to be or should be interpreted as limiting the ability of government to prohibit or limit private ownership of firearms. Waged in the popular press, [7] in the halls of Congress, [8] and increasingly in historical and legal journals, [9] two dominant interpretations have emerged. Advocates of stricter gun controls have tended to stress the Amendment's Militia Clause, arguing that the purpose of the Amendment was to ensure that state militias would be maintained against potential federal encroachment. This argument, embodying the collective rights theory, sees the framers' primary, indeed sole, concern as one with the concentration of military power in the hands of the federal government, and the corresponding need to ensure a decentralized military establishment largely under state control. [10]

Opponents of stricter gun controls have tended to stress the Amendment's second clause, arguing that the framers intended a militia of the whole--or at least the entire able-bodied white male--population, expected to perform its duties with privately owned weapons. [11] Advocates of this view also frequently urge that the Militia Clause should be read as an amplifying, rather than a qualifying, clause. They argue that, while maintaining a "well-regulated militia" [12] was the predominate reason for including the Second Amendment in the Bill of Rights, it should not be viewed as the sole or limiting reason. They argue that the framers also contemplated a right to individual and community protection. [13] This view embodies the individual rights theory.

This debate has raised often profound questions, but questions generally treated hastily, if at all, by the community of constitutional scholars. [14] For example, if one accepts the collective rights view of the Amendment, serious questions arise concerning whether the federal government's integration of the National Guard into the Army and, later, the Air Force have not in all but name destroyed the very institutional independence of the militia that is at the heart of what the collective rights theorists see as the framers' intentions. [15] Even the gun control debate is not completely resolved by an acceptance of the collective rights theory. If the Second Amendment was designed to ensure the existence of somewhat independent state militias immune from federal encroachment, then the question arises to what extent states are free to define militia membership. Could a state include as members of its militia all adult citizens, thus permitting them an exemption from federal firearms restrictions? If, instead, the federal government has plenary power to define militia membership and chooses to confine such membership to the federally controlled National Guard, does the Second Amendment become a dead letter under the collective rights theory?

If the collective rights theory raises difficult questions, the individual rights theory raises perhaps even more difficult, and perhaps more interesting ones. Some of these questions are obvious and frequently asked, such as where to draw the line between an individual's right to possess arms and the corollary right to self-defense on the one hand, and the community's interest in public safety and crime control on the other. Other questions are more elusive, more difficult to pose as well as to answer. At the heart of the individual rights view is the contention that the framers of the Second Amendment intended to protect the right to bear arms for two related purposes. The first of these was to ensure popular participation in the security of the community, an outgrowth of the English and early American reliance on posses and militias made up of the general citizenry to provide police and military forces. [16] The second purpose was to ensure an armed citizenry in order to prevent potential tyranny by a government empowered and perhaps emboldened by a monopoly of force. [17]

The second argument, that an armed populace might serve as a basis for resistance to tyranny, raises questions of its own. The framers had firsthand experience with such a phenomenon, but they lived in an age when the weapon likely to be found in private hands, the single shot musket or pistol, did not differ considerably from its military counterpart. Although the armies of the day possessed heavier weapons rarely found in private hands, battles were fought predominately by infantry or cavalry with weapons not considerably different from those employed by private citizens for personal protection or hunting. [18] Battles in which privately armed citizens vanquished regular troops, or at least gave "a good account of themselves," were not only conceivable--they happened. [19]

Modern warfare has, of course, introduced an array of weapons that no government is likely to permit ownership by the public at large [20] and that few advocates of the individual rights view would claim as part of the public domain. [21] The balance of power has shifted considerably and largely to the side of governments and their standing armies. For individual rights theorists, this shift immediately raises the question of whether, given the tremendous changes that have occurred in weapons technology, the framers' presumed intention of enabling the population to resist tyranny remains viable in the modern world. [22] Although partly a question of military tactics, and thus beyond the scope of this discussion, [23] it is also a constitutional question. If private ownership of firearms is constitutionally protected, should this right be protected with the original military and political purposes in mind, or should the protection of firearms now be viewed as protecting only those weapons used for personal protection or recreation? [24] Or, given that all firearms are potentially multi-purpose, and that all firearms potentially may be used for military, recreational, or personal defense as well as for criminal purposes, what effect should legislatures and courts give to the framers' original military rationale? Where should the proper lines be drawn with respect to modern firearms, all of which employ technologies largely unimagined by the framers? [25]

Societal, as well as technological, changes raise questions for advocates of the individual rights view of the Second Amendment. In the eighteenth century, the chief vehicle for law enforcement was the posse comitatus, and the major American military force was the militia of the whole. While these institutions are still recognized by modern law, [26] they lie dormant in late twentieth-century America. Professional police forces and a standing military establishment assisted by semi-professional auxiliaries--the reserves and the National Guard--have largely assumed the roles of public protection and national security. It is possible that the concept of a militia of the armed citizenry has been largely mooted by social change.

Yet, the effect of social change on the question of the Second Amendment is a two-edged sword. If one of the motivating purposes behind the Second Amendment was to provide a popular check against potential governmental excess, then does the professionalization of national and community security make the right to keep and bear arms even more important in the modern context? Furthermore, the question remains whether the concept of a militia of the whole is worth re-examining: Did the framers, by adopting the Second Amendment, embrace a republican vision of the rights and responsibilities of free citizens that, despite the difficulties, should somehow be made to work today?

Finally, the Second Amendment debate raises important questions concerning constitutional interpretation, questions that need to be more fully addressed by legal historians and constitutional commentators. It poses important questions about notions of the living Constitution, and to what extent that doctrine can be used to limit as well as extend rights. It also poses important questions about social stratification, cultural bias, and constitutional interpretation. Do courts really protect rights explicit or implicit in the Constitution, or is the courts' interpretation of rights largely a dialogue with the elite, articulate sectors of society, with the courts enforcing those rights favored by dominant elites and ignoring those not so favored?

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. [27] The nation's most destructive conflict ended the "peculiar institution." [28] That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence [29] and abetted by Supreme Court sanction. [30] Jim Crow was sustained by private violence, often with public assistance. [31]

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. [32] 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.

This article explores Second Amendment issues in light of the Afro-American experience, concluding that the individual rights theory comports better with the history of the right to bear arms in England and Colonial and post-Revolutionary America. The article also suggests that Second Amendment issues need to be explored, not only with respect to how the right to keep and bear arms has affected American society as a whole, but also with an eye toward subcultures in American society who have been less able to rely on state protection.

The remainder of this article is divided into five parts. Part I examines the historical tension between the belief in the individual's right to bear arms and the desire to keep weapons out of the hands of "socially undesirable" groups. The English distrust of the lower classes, and then certain religious groups, was replaced in America by a distrust of two racial minorities: Native Americans and blacks. Part II examines antebellum regulations restricting black firearms ownership and participation in the militia. Part III examines the intentions of the framers of the Fourteenth Amendment with respect to the Second Amendment and how nineteenth-century Supreme Court cases limiting the scope of the Second Amendment were part of the general tendency of the courts to limit the scope of the Fourteenth Amendment. This Part also examines restrictions on firearms ownership aimed at blacks in the postbellum South and the role of private violence in reclaiming white domination in the South. Part IV examines black resistance to the violence that accompanied Jim Crow. In Part V, the article suggests directions of further inquiry regarding political access, the current specter of black-on-black crime, and the question of gun control today.

I. 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. [33] Instead, they believed that they were simply recognizing rights already part of their English constitutional heritage and implicit in natural law. [34] 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. [35]

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. [36] 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.

a. 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 1181 [37] required the arming of all free men, and required free men to possess armor suitable to their condition. [38] By the thirteenth century, villeins possessing sufficient property were also expected to be armed and contribute to the security of the community. [39] Lacking both professional police forces and a standing army, [40] 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. [41]

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. [42]

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. [43] Catholics were also often subject to being disarmed as potential subversives after the English reformation. [44]

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." [45]

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 Atlantic. Sir William Blackstone listed the right to possess arms as one of the five auxiliary rights of English subjects without which their primary rights could not be maintained. [46] He discussed the right in traditional English terms:

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. [47]

b. arms and race in colonial america

If 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 North America had a quasi-military character, an obvious response to harsh frontier conditions. Governors of settlements often also held the title of militia captain, reflecting both the civil and military nature of their office. Special effort was made to ensure that white men, capable of bearing arms, were imported into the colonies. [48] Far from the security of Britain, often bordering on the colonies of other frequently hostile European powers, colonial governments viewed the arming of able-bodied white men and the requirement that they perform militia service as essential to a colony's survival.

There was another reason for the renewed emphasis on the right and duty to be armed in America: race. Britain's American colonies were home to three often antagonistic races: red, white, and black. For the settlers of British North America, an armed and universally deputized white population was necessary not only to ward off dangers from the armies of other European powers, but also to ward off attacks from the indigenous population which feared the encroachment of English settlers on their lands. An armed white population was also essential to maintain social control over blacks and Indians who toiled unwillingly as slaves and servants in English settlements. [49]

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. [50] 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. [51] 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. [52] 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. [53] This broadening of the right to keep and bear arms reflected a more general lessening of class, religious, and ethnic distinctions among whites in colonial America. The right to possess arms was, therefore, extended to classes traditionally viewed with suspicion in England, including the class of indentured servants. [54]

If there were virtually universal agreement concerning the need to arm the white population, [55] the law was much more ambivalent with respect to blacks. The progress of slavery in colonial America reflected English lack of familiarity with the institution, in both law and custom. [56] In some colonies, kidnapped Africans initially were treated like other indentured servants, held for a term of years and then released from forced labor and allowed to live as free people. [57] In some colonies, the social control of slaves was one of the law's major concerns; in others, the issue was largely of private concern to the slave owner. [58]

These differences were reflected in statutes concerned with the right to possess arms and the duty to perform militia service. One colony--Virginia--provides a striking example of how social changes were reflected, over time, in restrictions concerning the right to be armed. A Virginia statute enacted in 1639 required the arming of white men at public expense. [59] The statute did not specify the arming of black men, but it also did not prohibit black men from arming themselves. [60] By 1680 a Virginia statute prohibited Negroes, slave and free, from carrying weapons, including clubs. [61] Yet, by the early eighteenth century, free Negroes who were house owners were permitted to keep one gun in their house, while blacks, slave and free, who lived on frontier plantations were able to keep guns. [62] Virginia's experience reflected three sets of concerns: the greater need to maintain social control over the black population as caste lines sharpened; [63] the need to use slaves and free blacks to help defend frontier plantations against attacks by hostile Indians; and the recognition on the part of Virginia authorities of the necessity for gun ownership for those living alone.

These concerns were mirrored in the legislation of other colonies. Massachusetts did not have general legislation prohibiting blacks from carrying arms, [64] but free Negroes in that colony were not permitted to participate in militia drills; instead they were required to perform substitute service on public works projects. [65] New Jersey exempted blacks and Indians from militia service, though the colony permitted free Negroes to possess firearms. [66] Ironically, South Carolina, which had the harshest slave codes of this period, may have been the colony most enthusiastic about extending the right to bear arms to free Negroes. With its majority black population, that state's need to control the slave population was especially acute. [67] To secure free black assistance in controlling the slave population, South Carolina in the early eighteenth century permitted free blacks the right of suffrage, the right to keep firearms, and the right to undertake militia service. [68] As the eighteenth century unfolded, those rights were curtailed. [69]

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 England. Their right to posses arms was highly dependent on white opinion of black loyalty and reliability. Their inclusion in the militia of freemen was frequently confined to times of crisis. Often, there were significant differences between the way northern and southern colonies approached this question, a reflection of the very different roles that slavery played in the two regions. These differences would become sharper after the Revolution, when the northern states began to move toward the abolition of slavery and the southern states, some of which had also considered abolition, [70] began to strengthen the institution.

Ironically, while the black presence in colonial America introduced a new set of restrictions concerning the English law of arms and the militia, it helped strengthen the view that the security of the state was best achieved through the arming of all free citizens. It was this new view that was part of the cultural heritage Americans brought to the framing of the Constitution.

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. [71]

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 [72] excited fears among those who believed that the new constitution could be used to destroy both state power and individual rights. [73]

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. [74] Others complained that the Militia Clause provided no exemptions for those with religious scruples against bearing arms. [75]

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. [76] Richard Henry Lee of Virginia argued that that select militia might be used to disarm the population and that, in any event, it would pose more of a danger to individual liberty than a militia composed of the whole population. He charged that a select militia "commits the many to the mercy and the prudence of the few." [77] A number of critics objected to giving Congress the power to arm the militia, fearing that such power would likewise give Congress the power to withhold arms from the militia. [78] At the constitutional convention, Massachusetts delegate Elbridge Gerry saw such potential danger in giving the new government power over the militia, that he declared:

This power in the United States as explained is making the states drill sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the states, and subject them to the General Legislature. It would be regarded as a system of Despotism. [79]

The fear that this new congressional authority could be used to both destroy state power over the militia and to disarm the people led delegates to state ratifying conventions to urge measures that would preserve the traditional right. The Virginia convention proposed language that would provide protection for the right to keep and bear arms in the federal constitution. [80]

In their efforts to defend the proposed constitution, Alexander Hamilton and James Madison addressed these charges. Hamilton's responses are interesting because he wrote as someone openly skeptical of the value of the militia of the whole. The former Revolutionary War artillery officer [81] expressed the view that, while the militia fought bravely during the Revolution, it had proven to be no match when pitted against regular troops. Hamilton, who Madison claimed initially wanted to forbid the states from controlling any land or naval forces, [82] called for uniformity in organizing and disciplining of the militia under national authority. He also urged the creation of a select militia that would be more amenable to the training and discipline he saw as necessary. [83] In what was perhaps a concession to sentiment favoring the militia of the whole, Hamilton stated: "Little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this not be neglected, it will be necessary to assemble them once or twice in the course of a year." [84]

If Hamilton gave only grudging support to the concept of the militia of the whole, Madison, author of the Second Amendment, was a much more vigorous defender of the concept. He answered critics of the Militia Clause provision allowing Congress to arm the militia by stating that the term "arming" meant only that Congress's authority to arm extended only to prescribing the type of arms the militia would use, not to furnishing them. [85] But Madison's views went further. He envisioned a militia consisting of virtually the entire white male population, writing that a militia of 500,000 citizens [86] could prevent any excesses that might be perpetrated by the national government and its regular army. Madison left little doubt that he envisioned the militia of the whole as a potential counterweight to tyrannical excess on the part of the government:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say, that the State governments with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the. . . governments are afraid to trust the people with arms. . . . [87]

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 [88] 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, [89] the Constitution had no racial definition of citizenship. [90] Free Negroes voted in a majority of states. [91] A number of states had militia provisions that allowed free Negroes to participate. [92] Particularly in the northern states, many were well aware that free Negroes and former slaves had served with their state forces during the Revolution. [93] 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. [94] The 1792 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 antebellum period enrolled free blacks as militia members. [95] Northern states at various times also enrolled free Negroes in the militia despite federal law and often strident prejudice. [96] States North and South employed free Negroes in state forces during times of invasion. [97] While southern states often prohibited slaves from carrying weapons and strictly regulated access to firearms by free Negroes, [98] northern states generally made no racial distinction with respect to the right to own firearms, [99] 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. [100] 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. [101] 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

If, as presaged by the Uniform Militia Act of 1792, [102] 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. [103] Flush with the precepts of egalitarian democracy, America had entered a time of recognition and expansion of rights. Eleven of the thirteen original states, as well as Vermont, passed new constitutions in the period between 1776 and 1777. [104] Five of these states rewrote their constitutions by the time of the ratification of the Bill of Rights in 1791. [105] A twelfth original state, Massachusetts, passed a new constitution in 1780. [106] Many of the new constitutions recognized the status of citizens as "free and equal" or "free and independent." [107] In Massachusetts and Vermont, these clauses were interpreted as outlawing the institution of slavery. [108] Many of the new constitutions guaranteed the right to vote regardless of race to all men who otherwise qualified, [109] and guaranteed many of the rights that would later be recognized in the Bill of Rights. [110] In no instance were any of these rights limited only to the white population; several states explicitly extended rights to the entire population irrespective of race. [111]

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. [112] Ironically, only in the nineteenth-century would black voting rights be curtailed, as Jacksonian democracy expanded voting rights for whites. [113] In its constitution of 1821, New York eliminated a one hundred dollar property requirement for white males, and concomitantly increased the requirement to two hundred fifty dollars for blacks. [114] Other states would eliminate black voting rights altogether. [115] Other than Maine, no state admitted to the union in the nineteenth century's antebellum period allowed blacks to vote. [116]

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. [117] 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. [118]

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, [119] 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. [120] States limited the number of free blacks who might congregate at one time; [121] they curtailed the ability of free blacks to choose their own employment, [122] and to trade and socialize with slaves. [123] 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. [124] 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. [125]

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 Texas, which, between 1842 and 1850, prohibited slaves from using firearms altogether. [126] Also at this extreme was Mississippi, which forbade firearms to both free blacks and slaves after 1852. [127] At the other extreme was Kentucky, which merely provided that, should slaves or free blacks "wilfully and maliciously" shoot at a white person, or otherwise wound a free white person while attempting to kill another person, the slave or free black would suffer the death penalty. [128]

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. [129] Thus, Louisiana provided that a slave was denied the use of firearms and all other offensive weapons, [130] unless the slave carried written permission to hunt within the boundaries of the owner's plantation. [131] South Carolina prohibited slaves outside the company of whites or without written permission from their master from using or carrying firearms unless they were hunting or guarding the master's plantation. [132] Georgia, Maryland, and Virginia did not statutorily address the question of slaves' access to firearms, perhaps because controls inherent to the system made such laws unnecessary in these states' eyes.

By contrast, free blacks, not under the close scrutiny of whites, were generally subject to tight regulation with respect to firearms. The State of Florida, which had in 1824 provided for a weekly renewable license for slaves to use firearms to hunt and for "any other necessary and lawful purpose," [133] turned its attention to the question of free blacks in 1825. Section 8 of "An Act to Govern Patrols" [134] provided that white citizen patrols "shall enter into all negro houses and suspected places, and search for arms and other offensive or improper weapons, and may lawfully seize and take away all such arms, weapons, and ammunition . . . ." By contrast, the following section of that same statute expanded the conditions under which a slave might carry a firearm, a slave might do so under this statute either by means of the weekly renewable license or if "in the presence of some white person." [135]

Florida went back and forth on the question of licenses for free blacks [136] but, in February 1831 repealed all provision for firearm licenses for free blacks. [137] This development predated by six months the Nat Turner slave revolt in Virginia, which was responsible for the deaths of at least fifty-seven white people [138] and which caused the legislatures of the Southern states to reinvigorate their repression of free blacks. [139] Among the measures that slave states took was to further restrict the right to carry and use firearms. In its December 1831 legislative session, Delaware for the first time required free blacks desiring to carry firearms to obtain a license from a justice of the peace. [140] In their December 1831 legislative sessions, both Maryland [141] and Virginia [142] entirely prohibited free blacks from carrying arms; Georgia followed suit in 1833, declaring that "it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever." [143]

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. [144] In 1846 and 1861, the Florida legislature provided once again that white citizen patrols might search the homes of blacks, both free and slave, and confiscate arms held therein. [145] Yet, searching out arms was not the only role of the white citizen patrols: these patrols were intended to enforce pass systems for both slaves and free blacks, to be sure that blacks did not possess liquor and other contraband items, and generally to terrorize blacks into accepting their subordination. [146] The patrols would meet no resistance from those who were simply unable to offer any.

b. the northern antebellum experience: use of firearms to
combat racially motivated deprivations of liberty

Even as northern racism defined itself in part by the curtailment of black voting rights, [147] it cumulatively amounted to what some have called a widespread "Negrophobia." [148] With notable exceptions, public schooling, if available to blacks at all, was segregated. [149] Statutory and constitutional limitations on the freedom of blacks to emigrate into northern states were a further measure of northern racism. [150] While the level of enforcement and the ultimate effect of these constitutional and statutory provisions may not have been great, [151] 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. [152] 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. [153]

Quite often, racial violence made for bloody, destructive confrontations. In July 1834, mobs in New York attacked churches, homes, and businesses of white abolitionists and blacks. These mobs were estimated at upwards of twenty thousand people and required the intervention of the militia to suppress. [154] In Boston in August of 1843, after a handful of white sailors verbally and physically assaulted four blacks who defended themselves, a mob of several hundred whites attacked and severely beat every black they could find, dispersed only by the combined efforts of police and fire personnel. [155]

The Providence Snowtown Riot of 1831 was precipitated by a fight between whites and blacks at "some houses of ill fame" [156] located in the black ghetto of Snowtown. After a mob of one hundred or so whites descended on Snowtown, and after warning shots had been fired, a black man fired into the crowd, killing a white. The mob then descended on Snowtown in earnest, destroying no fewer than seventeen black occupied dwellings across a period of four days. The mobs did not disperse until the militia fired into the crowd, killing four men and wounding fourteen others. [157]

Similarly, the militia in Philadelphia put down an October 1849 race riot that resulted in three deaths, injuries, and the destruction of property. [158] By contrast, in the Providence Hardscrabble Riot of October 1824, militia were not called out and the police did nothing to stop a crowd of fifty or so whites from destroying every house in the black Hardscrabble area and looting household goods. [159]

Awareness of racial hostility generally, and of incidents like these, made blacks desirous of forming militia units. The firing of the weapon in Providence in 1831 that sparked the mob to violence illustrated that blacks were willing to take up arms to protect themselves, but also illustrated the potentially counterproductive nature of individual action. The actions of the white militia in Providence and Philadelphia, as well as those of the police and fire units in Boston, proved the strength of collective armed action against mob violence. Moreover, the failure of police to take action in Providence in 1824 illustrated the vulnerability of the black community to mob violence, absent protection.

Though the Uniform Militia Act of 1792 had not specifically barred blacks from participation in the state organized militia, [160] the northern states had treated the act as such, and so the state organized militia was not an option. [161] Blacks could nonetheless form private militia groups that might serve to protect against racial violence, and did so. Free blacks in Providence formed the African Greys in 1821. [162] Oscar Handlin tells of an attempt by black Bostonians in the 1850s to form a private militia company. [163] Black members of the Pittsburgh community had no private militia but nonetheless took action against a mob expected to riot in April 1839. Instead of taking action on their own, they joined an interracial peacekeeping force proposed by the city's mayor, and were able to put a stop to the riot. [164]

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 1835 Philadelphia riot is illustrative. Precipitated when a young black man assaulted a white one, the two day riot ended without resort to military intervention when a rumor reached the streets that "fifty to sixty armed and determined black men had barricaded themselves in a building beyond the police lines." [165]

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 Cincinnati, in September 1841, racial hostility erupted in two nights of assaults by white mobs of up to 1500 people. On the first evening, after destroying property owned by blacks in the business district, mobs descended upon the black residential section, there to be repulsed by blacks who fired into the crowd, forcing it out of the area. The crowd returned, however, bringing with it a six-pound cannon, and the battle ensued. Two whites and two blacks were killed, and more than a dozen of both races were wounded. Eventually, the militia took control, but on the next day the blacks were disarmed at the insistence of whites, and all adult black males were taken into protective custody. On the second evening, white rioters again assaulted the black residential district, resulting in more personal injury and property damage. [166]

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 [167] entitled to those rights long deemed as natural rights in Anglo-American society. Their's 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 [168] 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. [169] Instead, while recognizing emancipation, southern states imposed on the freedmen the legal disabilities of the antebellum free Negro population. As one North Carolina statute indicated:

All persons of color who are now inhabitants of this state shall be entitled to the same privileges, and are subject to the same burdens and disabilities, as by the laws of the state were conferred on, or were attached to, free persons of color, prior to the ordinance of emancipation, except as the same may be changed by law. [170]

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," [171] 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.'" [172] The codes often required blacks to sign labor contracts that bound black agricultural workers to their employers for a year. [173] Blacks were forbidden from serving on juries, and could not testify or act as parties against whites. [174] Vagrancy laws were used to force blacks into labor contracts and to limit freedom of movement. [175]

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 Louisiana [176] and Mississippi [177] statutes were typical of the restrictions found in the codes. Alabama's [178] was even harsher.

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. [179] 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 recently reunited Union and a means of preventing virtual reenslavement of those formerly held in bondage. Faced with a hostile and recalcitrant white South determined to preserve the antebellum social order by legal and extra-legal means, [180] northern Republicans were particularly alarmed at provisions of the black codes that effectively preserved the right to keep and bear arms for former Confederates while disarming blacks, the one group in the South with clear unionist sympathies. [181] This fed the determination of northern Republicans to provide national enforcement of the Bill of Rights. [182]

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 [183] is beyond the scope of this article, it should be noted that Jonathan Bingham, author of the Fourteenth Amendment's Privileges or Immunities Clause, [184] clearly stated that it applied the Bill of Rights to the states. [185] Others shared that same understanding. [186]

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 Cases, [187] 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 United States v. Cruikshank, [188] federal officials brought charges against William Cruikshank and others under the Enforcement Act of 1870. [189] Cruikshank had been charged with violating the rights of two black men to peaceably assemble and to bear arms. The Supreme Court held that the federal government had no power to protect citizens against private action that deprived them of their constitutional rights. The Court held that the First and Second Amendments were limitations on Congress, not on private individuals and that, for protection against private criminal action, the individual was required to look to state governments. [190]

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. [191] While the Court in the late 1870s and 1880s was reasonably willing to strike down instances of state sponsored racial discrimination, [192] 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. Illinois, [193] the second case in which the Court examined the Second Amendment. Presser involved an Illinois statute which prohibited individuals who were not members of the militia from parading with arms. [194] Although Justice William Woods, author of the majority opinion, noted that the Illinois statute did not infringe upon the right to keep and bear arms, [195] he nonetheless went on to declare that the Second Amendment was a limitation on the federal and not the state governments. Curiously enough, Woods's opinion also contended that, despite the nonapplicability of the Second Amendment to state action, states were forbidden from disarming their populations because such action would interfere with the federal government's ability to maintain the sedentary militia. [196] With its view that the statute restricting armed parading did not interfere with the right to keep and bear arms, and its view that Congress's militia power prevented the states from disarming its citizens, the Presser Court had gone out of its way in dicta to reaffirm the old federalism and to reject the framers' view of the Fourteenth Amendment that the Bill of Rights applied to the states.

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. [197] It helped force many blacks into peonage, a virtual return to slavery, [198] and was used to force many blacks into a state of ritualized subservience. [199] 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, [200] and nurtured by economic competition between blacks and whites, particularly immigrant groups and those whites at the lower rungs of the economic scale, [201] racism in the North continued after the Civil War, abated but not eliminated in its effects. [202] 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. [203]

Immediately after the Civil War and the emancipation it brought, white Southerners adopted measures to keep the black population in its place. [204] Southerners saw how Northerners had utilized segregation as a means to avoid the black presence in their lives, [205] and they already had experience with segregation in southern cities before the war. [206] Southerners extended this experience of segregation to the whole of southern life through the mechanism of "Jim Crow." [207] 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 Cases [208] and Plessy v. Ferguson [209] gave the South freedom to pursue the task of separating black from white. The Civil Rights Cases went beyond Cruikshank, even more severely restricting congressional power to provide for the equality of blacks under Section 5 of the Fourteenth Amendment, [210] and Plessy v. Ferguson declared separate facilities for blacks and whites to be consonant with the Fourteenth Amendment's mandate of "equal protection of the laws." [211] In effect, states and individuals were given full freedom to effect their "social prejudices" [212] and "racial instincts" [213] to the detriment of blacks throughout the South and elsewhere. [214]

These laws and customs were given support and gruesome effect by violence. In northern cities, violence continued to threaten blacks after Reconstruction and after the turn of the century. For instance, in New York, hostility between blacks and immigrant whites ran high. [215] Negro strike-breakers were often used to break strikes of union workers. [216] Regular clashes occurred between blacks and the Irish throughout the nineteenth century, [217] until finally a major race riot broke in 1900 that lasted four days. [218]And in 1919, after a Chicago race riot, 38 deaths and 537 injuries were reported as a result of attacks on the black population. [219]

In the South, racism found expression, not only through the power of unorganized mobs, but also under the auspices of organized groups like the Ku Klux Klan. The Klan started in 1866 as a social organization of white Civil War veterans in Pulaski, Tennessee, [220] complete with pageantry, ritual, and opportunity for plain and innocent amusement. [221] But the group soon expanded and turned its attention to more sinister activities. The Klan's activities, primarily in the South, expanded to playing tricks on blacks and then to terroristic nightriding against them. [222] The Ku Klux Klan in this first incarnation was disbanded, possibly as early as January 1868, and no later than May 1870. [223] By that time, the Klan's activities had come to include assaults, murder, lynchings, and political repression against blacks, [224] and Klan-like activities would continue and contribute to the outcome of the federal election of 1876 that ended Reconstruction. [225] As one author has put it, "The Invisible Empire faded away, not because it had been defeated, but because it had won." [226]

The Ku Klux Klan would be revived in 1915 after the release of D.W. Griffith's film Birth of a Nation, [227] but, both pre- and post-dating the Klan's revival, Klan tactics would play a familiar role in the lives of black people in the South; for up to the time of the modern civil rights movement, lynching would be virtually an everyday occurrence. Between 1882 and 1968, 4,743 persons were lynched, the overwhelming number of these in the South; [228] 3,446 of these persons were black, [229] killed for the most part for being accused in one respect or another of not knowing their place. [230] These accusations were as widely disparate as arson, [231] theft, [232] sexual contact or even being too familiar with a white woman, [233] murdering or assaulting a white person, [234] hindering a lynch mob, [235] protecting one's legal rights, [236] not showing proper respect, [237] or simply being in the wrong place at the wrong time. [238]

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 lynched in Estell Springs, Tennessee, after having exchanged over one thousand rounds with his pursuers. [239] The attitude of individuals such as McIlherron is summed up by Ida B. Wells-Barnett, a black antilynching activist who wrote of her decision to carry a pistol:

I had been warned repeatedly by my own people that something would happen if I did not cease harping on the lynching of three months before . . . . I had bought a pistol the first thing after [the lynching], because I expected some cowardly retaliation from the lynchers. I felt that one had better die fighting against injustice than to die like a dog or a rat in a trap. I had already determined to sell my life as dearly as possible if attacked. I felt if I could take one lyncher with me, this would even up the score a little bit. [240]

When blacks used firearms to protect their rights, they were often partially successful but were ultimately doomed. In 1920, two black men in Texas fired on and killed two whites in self-defense. The black men were arrested and soon lynched. [241] When the sheriff of Aiken, South Carolina, came with three deputies to a black household to attempt a warrantless search and struck one female family member, three other family members used a hatchet and firearms in self-defense, killing the sheriff. The three wounded survivors were taken into custody, and after one was acquitted of murdering the sheriff, with indications of a similar verdict for the other two, all three were lynched. [242]

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 in Memphis in 1891 in which a black militia unit for two or three nights guarded approximately 100 jailed blacks who were deemed at risk of mob violence. When it seemed the crisis had passed, the militia unit ceased its work. It was only after the militia unit left that a white mob stormed the jail and lynched three black inmates. [243]

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, [244] 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." [245] After his father stood armed at a jail all night to ward off lynchers, [246] Randolph was left with a vision, not "of powerlessness, but of the 'possibilities of salvation,' which resided in unity and organization." [247]

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.

This purpose has been recognized by some state judges. The Florida Supreme Court in 1941 refused to extend a statute forbidding the carrying of a pistol on one's person to a situation in which the pistol was found in an automobile glove compartment. [248] In a concurrence, one judge spoke of the purpose of the 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 the 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 and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. [249]

The Ohio Supreme Court in 1920 construed the state's constitutional right of the people "to bear arms for their defense and security" not to forbid a statute outlawing the carrying of a concealed weapon. [250] In so doing, the court followed the lead of sister courts in Alabama, [251] Arkansas [252] Georgia, [253] and Kentucky, [254] over the objections of a dissenting judge who recognized that "the race issue [in Southern states] has intensified a decisive purpose to entirely disarm the negro, and this policy is evident upon reading the opinions." [255]

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. [256]

While the rate of lynchings in the South had slowed somewhat, [257] it was still clear by 1960 that Southerners were capable of murderous violence in pursuit of the Southern way of life. The 1955 murder of Emmett Till, a fourteen-year-old boy killed in Money, Mississippi for wolf-whistling at a white woman, sent shock waves throughout the nation. [258] Two years later, the nation again would be shocked, this time by a riotous crowd outside Little Rock's Central High School bent on preventing nine black children from integrating the school under federal court order; President Eisenhower ordered federal troops to effectuate the court order. [259] News of yet another prominent lynching in Mississippi reached the public in 1959. [260]

In the early 1960s, Freedom Riders and protesters at sit-ins were attacked, and some suffered permanent damage at the hands of white supremacists. [261] In 1963, Medgar Evers, Mississippi secretary of the NAACP was killed. [262] Three college students were killed in Mississippi during the 1964 "Freedom Summer"; this killing would render their names--Andrew Goodman, James Chaney, and Michael Schwerner--and their sacrifice part of the public domain. [263] A church bombing in Birmingham that killed four small black children, [264] the killing of a young white housewife helping with the march from Montgomery to Selma, [265] and the destructive riot in Oxford, Mississippi, [266] that left two dead when James Meredith entered the University of Mississippi helped make clear to the nation what blacks in the South had long known: white Southerners were willing to use weapons of violence, modern equivalents of rope and faggot, to keep blacks in their place.

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. [267]

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. [268] 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, [269] has told of black Mississippi citizens with firearms who followed civil rights workers in order to keep them safe. [270]

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 1964 in Jonesboro, Louisiana, but received prominence in Bogalousa, Louisiana. [271] The Deacons organized in Jonesboro after their founder saw the Ku Klux Klan marching in the street and realized that the "fight against racial injustice include[d] not one but two foes: White reactionaries and police." [272] Jonesboro's Deacons obtained a charter and weapons, and vowed to shoot back if fired upon. [273] The word spread throughout the South, but most significantly to Bogalousa, where the Klan was rumored to have its largest per capita membership. [274] There, a local chapter of the Deacons would grow to include "about a tenth of the Negro adult male population," or about 900 members, although the organization was deliberately secretive about exact numbers. [275] What is known, however, is that in 1965 there were fifty to sixty chapters across Louisiana, Mississippi, and Alabama. [276] In Bogalousa, as elsewhere, the Deacons' job was to protect black people from violence, and they did so by extending violence to anyone who attacked. [277] This capability and willingness to use force to protect blacks provided a deterrent to white terroristic activity.

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." [278]

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

There are interesting parallels between the history of African-Americans and discussion of the Second Amendment. For most of this century, the historiography of the black experience was at the periphery of the historical profession's consciousness, an area of scholarly endeavor populated by those who were either ignored or regarded with suspicion by the mainstream of the academy. [279] Not until after World War II did the insights that could be learned from the history of American race relations begin to have a major influence on the works of constitutional policy makers in courts, legislatures, and administrative bodies. Moreover, it should be stressed that, for a good portion of the twentieth century, the courts found ways to ignore the constitutional demands imposed by the reconstruction-amendments. [280]

While discussion of the Second Amendment has been relegated to the margin of academic and judicial constitutional discourse, the realization that there is a racial dimension to the question, and that the right may have had greater and different significance for blacks and others less able to rely on the government's protection, has been even further on the periphery. The history of blacks and the right to bear arms, and the failure of most constitutional scholars and policymakers to seriously examine that history, is in part another instance of the difficulty of integrating the study of the black experience into larger questions of legal and social policy. [281]

Throughout American history, black and white Americans have had radically different experiences with respect to violence and state protection. Perhaps another 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. [282]

Admittedly, the racial atmosphere in this nation today is better than at any time prior to the passage of the Voting Rights Act of 1965. [283] It must also be stressed, however, that many fear a decline in the quality of that atmosphere.

One cause for concern is the Supreme Court's assault in its 1989 Term on gains of the civil rights movement that had stood for decades. [284] Another is the prominence of former Ku Klux Klan leader David Duke, a member of the Louisiana state legislature and a defeated, but nonetheless major, candidate for the Senate in 1990. [285] In the last several years, two blacks who had entered the "wrong" neighborhood in New York City have been "lynched." [286] Is this a sign of more to come? The answer is not clear, but the question is.

Twice in this nation's history--once following the Revolution, and again after the Civil War--America has held out to blacks the promise of a nation that would live up to its ideology of equality and of freedom. Twice the nation has reneged on that promise. The ending of separate but equal under Brown v. Board in 1954, [287]--the civil rights movement of the 1960s, culminating in the Civil Rights Act of 1964, [288] the Voting Rights Act of 1965, [289] and the judicial triumphs of the 1960s and early 70s--all these have held out to blacks in this century that same promise. Yet, given this history, it is not unreasonable to fear that law, politics, and societal mores will swing the pendulum of social progress in a different direction, to the potential detriment of blacks and their rights, property, and safety.

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 [290] 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.

[*] (c) Copyright Robert J. Cottrol and Raymond T. Diamond, 1991. This article was delivered as a paper at the 1990 annual meeting of the American Society for Legal History, at the Harvard Legal History Forum, at a faculty seminar at Northwestern University Law School, at the 1991 joint annual meeting of the Law and Society Association and the International Law and Society Association, and at the 1991 annual meeting of the American Political Science Association. The authors would like to acknowledge the helpful comments made in those forums. The authors would like to acknowledge the research assistance of Jan McNitt, Boston College Law School, 1991; Richard J. Fraher, Rutgers (Camden) School of Law, 1993; Roderick C. Sanchez, Rutgers (Camden) School of Law, 1992; Adrienne I. Logan, Tulane University School of Law, 1992; and Willie E. Shepard, Tulane University School of Law, 1992. This paper has benefitted from the criticism and helpful comments of Akhil R. Amar, Michael Les Benedict, Barbara Black, Maxwell Bloomfield, Ruth Colker, Michael Curtis, Robert Dowlut, Kermit Hall, Natalie Hull, Don B. Kates, Jr., Barbara K. Kopytoff, Sanford Levinson, Joyce Lee Malcolm, John Stick, and Robert F. Williams. The authors would also like to acknowledge summer research grants from Boston College Law School, Rutgers (Camden) School of Law, and Tulane University School of Law which contributed to the writing of this paper.

[**] Associate Professor, Rutgers (Camden) School of Law. A.B. 1971, Ph.D. 1978, Yale University; J.D. 1984, Georgetown University Law Center.

[***] Associate Professor, Tulane University School of Law. A.B. 1973, Yale University; J.D. 1977, Yale Law School.

[1] Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857) (emphasis added).

[2] "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.

[3] The Supreme Court has directly ruled on Second Amendment claims in only four cases. See United States v. Miller, 307 U.S. 174 (1939); Miller v. Texas, 153 U.S. 535 (1894); Presser v. Illinois, 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1876). Proponents of the collective rights theory have frequently cited these cases as supportive of their views. It is more accurate to describe the first three cases as having recognized the individual right, but also as having construed the Second Amendment as a bar to federal, but not state or private, infringement of the right. See infra Part III. United States v. Miller limited the Second Amendment's protection to weapons useful for militia duty. See infra Part IV. Since then, a number of lower federal courts have heard Second Amendment claims, often dismissing them on grounds that the Amendment has not been incorporated into the Fourteenth Amendment, which would make it binding on the states. Other courts have dismissed the claims by employing the collective rights theory. Almost all of these cases involved persons involved in criminal activity who were also convicted of firearms charges and thus are not really a good test of the extent to which the Second Amendment protects the rights of the public at large. See, e.g., United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974) (statute prohibiting possession of firearms by previously convicted felon does not infringe upon Second Amendment). In a recent case in which a federal court sustained a general prohibition against handgun ownership, the Supreme Court refused to consider the case on appeal. See Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).

If the federal jurisprudence concerning the Second Amendment is somewhat thin, it should be noted that there is extensive case law concerning analogous provisions in state bills of rights. Indeed it is likely, should the Supreme Court ever seriously consider the question, that it might borrow Second Amendment doctrine from the state courts. For some recent constructions of state right to keep and bear arms provisions see, e.g., Hoskins v. State, 449 So.2d 1269 (Ala. Crim. App. 1984) (statute prohibiting a person convicted of committing a crime of violence from owning or possessing a pistol does not deny right to keep and bear arms); Rabbitt v. Leonard, 413 A.2d 489 (Conn. Super. Ct. 1979) (statute permitting revocation of pistol permit for cause and providing notice of revocation and opportunity for de novo postrevocation hearing does not violate citizen's right to bear arms); State v. Friel, 508 A.2d 123 (Me. 1986) (statue prohibiting possession of a firearm by a convicted felon does not violate constitutional right to keep and bear arms); People v. Smelter, 437 N.W.2d 341 (Mich. Ct. App. 1989) (statute prohibiting possession of stun guns does not impermissibly infringe upon right to keep and bear arms); State v. Vlacil, 645 P.2d 677 (Utah 1982) (statute making it a Class A misdemeanor for any noncitizen to own or possess a dangerous weapon is not unconstitutional). For a historical discussion of state right to keep and bear arms provisions, see generally Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (1989).

[4] The debates in the House of Representatives over what became the Second Amendment (it was originally proposed as the Fourth Amendment) centered on a clause excepting conscientious objectors from militia duty. The original text of the Amendment read: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms." The Founders' Constitution 210 (Phillip B. Kurland & Ralph Lerner eds., 1987). The House debate, focusing on the religious exemption, sheds little light on the individual versus collective rights debate, although the phrase "body of the people" used to describe the militia does suggest the idea of a militia of the whole. Still, the best evidence of the framers' intentions in this matter comes from the surrounding history and the comments of the constitutional framers generally with respect to the composition of the militia. See infra Part I.

[5] See Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 639-42 (1989) (discussing the reluctance of most constitutional scholars to treat the Second Amendment as a subject worthy of serious scholarly or pedagogical consideration). Recently, however, one scholar has examined the Second Amendment within the context of the Bill of Rights as a whole. See Akhil Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991). In Amar's view, the Bill of Rights was designed with both populist and collective concerns in mind. It was designed to protect both the right of the people and to prevent potential tyranny from an overreaching federal government. Amar sees the purpose of the Second Amendment as preventing Congress from disarming freemen, so that the populace could resist tyranny imposed by a standing army. Id. at 1162-73.

[6] See, e.g., David I. Caplan, Restoring the Balance: The Second Amendment Revisited, 5 Fordham Urb. L.J. 31 (1976) (current efforts to limit firearm possession undermine the Second Amendment's twin goals of individual and collective defense); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. Dayton L. Rev. 59 (1989) (laws seeking to disarm the people violate the Second Amendment); Robert Dowlut, The Right to Arms: Does the Constitution or the predilection of Judges Reign?, 36 Okla. L. Rev. 65 (1983) (interpretation of the Second Amendment is controlled by the framers' intent to guarantee the individual right to keep and bear arms rather than a more narrow judicial interpretation); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989) (Second Amendment's historical origins erect no real barrier to federal or state laws affecting handguns); Richard E. Gardiner, To Preserve LibertyA Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63 (1982) (advocates of gun control have twisted the original and plain meaning of the Second Amendment); Alan M. Gottlieb, Gun Ownership: A Constitutional Right, 10 N. Ky. L. Rev. 113 (1982) (modern antipathy to firearms has influenced interpretation of the Second Amendment as a collective right); David T. Hardy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & Pol. 1 (1987) (the Second Amendment has a dual purpose stemming from the merger of the militia and the right to bear arms provisions); Maynard H. Jackson, Jr., Handgun Control: Constitutional and Critically Needed, 8 N.C. Cent. L.J. 189 (1977) (Second Amendment is central to any discussion of the legal merits of gun control); Nelson Lund, The Second Amendment, Political Liberty and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987) (suggesting a Second Amendment jurisprudence consistent with modern treatment of the Bill of Rights such that handgun regulation be reasonably tailored to public safety); James A. McClure, Firearms and Federalism, 7 Idaho L. Rev. 197 (1970) (Second Amendment precludes federal interference but leaves to debate the issue of state regulation of handguns); Robert J. Riley, Shooting to Kill the Handgun: Time to Martyr Another American "Hero," 51 J. Urb. L. 491 (1974) (construing the Second Amendment as a surpassable barrier to handgun control by finding the handgun a weapon of marginal military utility); Jonathan A. Weiss, A Reply to Advocates of Gun Control Law, 52 J. Urb. L. 577 (1974) (placing the Second Amendment in context of the Bill of Rights, provides an inviolable right to bear arms and an absolute bar to government restriction).

Two advocates of the individual rights theory who are outside the academy, but have nonetheless been quite instrumental in influencing the constitutional debate among law teachers and historians, are Donald B. Kates, Jr. and Stephen P. Halbrook. See, e.g., Donald B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983) (Second Amendment right to bear arms, applicable against both federal and state government, does not foreclose, but limits, gun control options); Donald B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143 (1986) (Second Amendment substantially limits the arbitrariness of granting gun permits); Steven P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984) [hereinafter Halbrook, That Every Man Be Armed] (the right of citizens to keep and bear arms has deep historical roots and overly restrictive interpretations of the Second Amendment are associated with reactionary concepts including elitism, militarism, and racism); Steven P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981) (the fundamental character of the Second Amendment and the increasingly restrictive forms of gun control legislation necessitate Supreme Court precedent on the status of the Amendment's applicability to the states); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," 49 Law & Contemp. Probs. 151 (1986) (Second Amendment right to bear arms is incompatible with the suggestion of no right to bear arms without state or federal permission).

[7] See, e.g., Daniel Abrams, What 'Right to Bear Arms'?, N.Y. Times, July 20, 1989, at A23; Robert J. Cottrol, It's Time to Enforce the Second Amendment, Plain Dealer (Cleveland), Feb. 17, 1990, at 5B; Ervin N. Griswold, Phantom Second Amendment Rights, Wash. Post, Nov. 4, 1990, at C7; Sue Wimmershoff-Caplan, The Founders and the AK-47, Wash. Post, July 6, 1989, at A18. Even former Chief Justice Warren Burger has used this arena to opine on the subject. See Warren Burger, The Right to Keep and Bear Arms, Parade Mag., Jan. 14, 1990, at 4.

For one interesting example of a writer who (reluctantly) supports the individual rights interpretation of the Second Amendment and who, as a member of the gun control group Handgun Control, Inc., is also a strong advocate of stricter gun control, see columnist Michael Kinsley, Slicing Up the Second Amendment, Wash. Post, Feb. 8, 1990, at A25. More recently, conservative columnist George Will, also an advocate of stricter gun control, has stated that "The National Rifle Association is perhaps correct and certainly plausible in its 'strong' reading of the Second Amendment protection for private gun ownership." Will argues for repeal of the Second Amendment on the grounds that the right is not as important as it was 200 years ago.

Will also makes the interesting observation that "The subject of gun control reveals a role reversal between liberals and conservatives that makes both sides seem tendentious. Liberals who usually argue that constitutional rights (of criminal defendants, for example) must be respected regardless of inconvenient social consequences, say that the Second Amendment right is too costly to honor. Conservatives who frequently favor applying cost-benefit analysis to constitutional construction (of defendants' rights, for example) advocate an absolutist construction of the Second Amendment." See George Will, Oh That Annoying Second Amendment: It Shows No Signs of Going Away, Philadelphia Inquirer, March 22, 1991.

Although the Second Amendment and gun control debates involve far more than a simple Iiberal/conservative dichotomy, there are numerous exceptions on both sides; Will's point is well taken. If we accept the conventional view that the National Rifle Association is a predominantly conservative organization and that advocates of gun control tend to be politically liberal, we can see rather interesting role reversals. For example, the NRA has attacked firearms bans in public housing, bans which mainly affect people who are poor and black, while liberal groups have generally remained silent on the issue.

[8] See The Right to Keep and Bear Arms: Report of the Subcomm. on the Constitution of the Comm. on the Judiciary, S. Rep. No. 522, 97th Cong., 2d Sess. 3 (1982) [hereinafter Subcommittee Report].

[9] See id.; see also Lawrence Delbert Cress & Robert E. Shalhope, The Second Amendment and the Right to Bear Arms: An Exchange, 71 J. Am. Hist. 587 (1984) (debate whether correct interpretation of Second Amendment rests on rights to bear arms or communal prerogatives implied in Militia Clause); Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285 (1983), reprinted in Firearms and Violence: Issues of Public Policy 391-95 (Donald B. Kates, Jr. ed. 1984) (proper reading of Second Amendment extends to every citizen right to bear arms for personal defense); Robert E. Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982) (armed citizen and militia existed as distinct, yet interrelated, elements within American republican thought).

[10] See, e.g., Jackson, supra note 6, at 194 (the purpose of the Second Amendment was to maintain the militia, not to provide an individual right to bear arms); Roy G. Weatherup, Standing Armies and Armed Citizens: An Analysis of the Second Amendment, 2 Hastings Const. L.Q. 961, 963, 995, 1000 (1975) (Second Amendment was designed solely to protect the states against the federal government, using a historical analysis of the relationship between citizens and their sovereign as evidence).

[11] See, e.g., Halbrook, That Every Man Be Armed, supra note 6, at 55-87; Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 6, at 214-18, 273.

[12] U.S. Const. amend. II.

[13] See, e.g., Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 6.

[14] See supra note 5.

[15] See Perpich v. Department of Defense, 110 S. Ct. 2418, 2422-26 (1990) (discussing the history of legislation governing the militia and the National Guard, and Congress's plenary authority over the National Guard).

[16] See Malcolm, supra note 9, at 290-95.

[17] See Stephen Halbrook's exploration of that idea within the context of classical political philosophy in That Every Man Be Armed, supra note 6, at 7-35; see also Gardiner, supra note 6, at 73-82 (the history of the Second Amendment indicates that one of its purposes was to ensure the existence of an armed citizenry as a defense against domestic tyranny); Lund, supra note 6, at 111-16 (Second Amendment protects an individual's right to bear arms in order to secure his political freedom); Shalhope, supra note 9, at 610-13 (framers of the Second Amendment, motivated by their distrust of government, intended to protect the right of individuals to bear arms).

[18] The American civilian of the mid-18th century was typically armed with the "Pennsylvania" rifle, later to be known as the "Kentucky" rifle. See Daniel Boorstin's discussion of the relative merits of the Pennsylvania Rifle and the muskets that British soldiers were equipped with in Daniel J. Boorstin, The Americans: The Colonial Experience 350-51 (1958).

[19] For one account of the battles of Lexington and Concord, see David Hawke, The Colonial Experience 573-78 (1966).

[20] It should not be necessary to detail such obvious examples as stinger missiles and nuclear weapons, but even more ordinary military weapons are also unlikely to be permitted to the public at large. For example, the U.S. Army expects every soldier, regardless of military specialty, to be proficient with the M203 grenade launcher (a shoulder-fired light mortar capable of firing a 40 millimeter high explosive round 400 meters), the M72A2 light antitank weapon (LAW) (a handheld disposable antitank weapon capable of penetrating an armored vehicle at 300 meters), the M67 fragmentation grenade, and the M18A1 Claymore antipersonnel mine. See Department of the Army, Soldier's Manual of Common Tasks: Skill Level 1 (1985).

[21] For one of the better efforts to reconcile modern weaponry with the type of weapons the framers intended to protect, see Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 6, at 204, 261.

[22] We are putting aside for the moment the question of the utility or potential utility of an armed population as a useful auxiliary to national or local governments in maintaining either national or community security. It should be noted that during the Second World War, when the National Guard had been mobilized into the Army, impromptu home defense forces--some organized by state governments, some privately organized--patrolled beach areas and likely sabotage sights. The individuals who performed this service were usually equipped with their own weapons. And while this American version of "Dad's Army" encountered no significant enemy activity--doubtless to the relief of all concerned, particularly the participants--the utility of these patrols should be noted. If such patrols were necessary, and some undoubtedly were, from the military point of view, it was probably better to have civilian auxiliaries performing this function, freeing regular military units for more pressing duties. See id. at 272 n.284. It should also be noted that, immediately after the attack on Pearl Harbor, the Hawaiian territorial governor ordered citizens to report with their own firearms for defense of the Islands in anticipation of Japanese invasion. Ironically, given the later treatment of Japanese Americans on the mainland, a good percentage of the men who made up the citizens' home guard in Hawaii were of Japanese descent. See id.

In light of our later discussion of whether or not, given the racial restriction in the Uniform Militia Act of 1792, free Negroes were considered part of the militia, see infra Part I. c.2, it should be noted that many of the individuals who served in these home guard organizations probably did not meet the statutory definition of militia members. By statute, membership in the militia is defined as men from 18-45. Most men in that age group were in the armed forces during the Second World War so that those performing home guard duties were probably older and younger than the statutory age limits. See Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, supra note 6, at 272 n. 284 (research indicates that men between the ages of 16 and 65 served in home guard units). It is also probable that a fair number of women performed those tasks. For our purposes, what is interesting about this history is that it indicates that militia membership is even broader than the statutory definition. Perhaps the best way of viewing the issue is to regard statutory militia provisions as defining those who may be compelled to perform militia service, but to realize that the whole population might be permitted to volunteer for militia service.

[23] Despite modern technological advances, the impotence of privately-armed civilians against organized armies is by no means obvious. Afghan guerrillas, to cite a recent example, were quite successful in resisting the Soviet Army largely with small arms. Harry Summers, retired Army Colonel and Professor at the Army War College, indicated in a recent column that he believed an armed population could resist a tyrannical government or at least do so better than an unarmed one. See Harry Summers, Gun Collecting and Lithuania, Wash. Times, Mar. 29, 1990, at F4 (public should protect its right to bear arms as a protection against government).

There are at least three ways to approach the question of an armed population resisting the government. The first is to look at what happens when actual armed conflict breaks out between a nation's military forces and the population or a segment of the population. Although modern technology weights the odds heavily in the government's favor, other considerations, including whether or not military forces are overextended, the skill of the population in general with arms (which might be influenced by the number of military veterans in the population or the number of people who regularly practice with firearms), the terrain, and the morale of military forces called upon to suppress the population, might tend to redress the technological imbalance.

The second way of viewing this question is to look at it as a question of deterrence. From this perspective, one might argue that, even if a government would ultimately win a confrontation with an armed population, the cost to the government is higher. It will endure substantially larger casualties and may have to endure large scale destruction of economically valuable infrastructure in order to achieve its objectives. This higher cost might cause a government to seek compromise, or cause a reluctance on the part of many in the military to participate, even if ultimate victory was assured. In the Soviet Union, press reports indicated great resistance on the part of citizens to sending reservists to the Azerbaijan region, in part because the population was armed and willing to resist. See Bill Keller, Gorbachev Issues Emergency Decree Over Azerbaijan, N.Y. Times, Jan. 16, 1990, at A1 (Azerbaijani leader threatens armed resistance against military); Bill Keller, Moscow Dispatches 11,000 Troops to Azerbaijan, N.Y. Times, Jan. 17, 1990, at A1 (Gorbachev hesitated in sending troops partly from fear of wide-scale popular resistance); Bill Keller, Troops Seek to Calm Azerbaijan: Soviets Debate Cause of Violence, N.Y. Times, Jan. 18, 1990, at A1 (one reason for hesitation before sending troops was fear of popular disapproval of sending troops to dangerous area); Esther B. Fein, Gorbachev is Backed on Azerbaijan Combat, N.Y. Times, Jan. 18, 1990, at A8 (Gorbachev criticized in the past for sending troops to control civil unrest); Bill Keller, Soviet Troops Bogged Down by Azerbaijanis Blockades of Railroads and Airfields<