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March 23, 2008

An interesting historical perspective on Second Amendment rights

Lane As we await a ruling from the Supreme Court in the Heller Second Amendment case, I hope to showcase articles and commentary that provide a distinct perspective on the issues surrounding individual gun rights.  A great example of such commentary is this Washington Post piece by Chuck Lane, headlined " To Keep and Bear Arms."   Here is how this strong piece starts and ends:

Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history.  On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse.  By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death.  Most were killed after they had surrendered.

Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history.  Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction.  Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote.  And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens.  One of these was the right to have guns.

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense.  But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.)  After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status....

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons.  To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.

Critically, Lane is a lot more than an armchair historian here: he has just completed this new book, titled "The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction."

March 23, 2008 at 10:28 AM | Permalink

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Quote from Mr. Lane’s article - “… Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.”

And, the states and local governments immediately began to gouge out loopholes in the law in order to see that certain members of the community were deprived of their right to keep and bear arms.

See: http://www.guncite.com/journals/gun_control_wtr8512.html for the following essay

Gun Control: White Man's Law; by William R. Tonso in which Mr. Tonso references - Don B. Kates, Jr. Restricting Handguns: The Liberal Skeptic Speak Out. "in 1870 Tennessee banned selling all but 'the Army and Navy model' handgun, i.e., the most expensive one, which was beyond the means of most blacks and laboring people." In 1881, Arkansas enacted an almost identical ban on the sale of cheap revolvers, while in 1902, South Carolina banned the sale of handguns to all but "sheriffs and their special deputies--i.e., company goons and the KKK." In 1893 and 1907, respectively, Alabama and Texas attempted to put handguns out of the reach of blacks and poor whites through "extremely heavy business and/or transactional taxes" on the sale of such weapons.

Another Lane quote - “[T]he Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons.” All of the laws mentioned by Kates that effectively banned the possession of handguns by blacks and poor whites as well as most immigrants were considered reasonable to the legislatures that enacted them.

The word “reasonable” when applied to the actions of the state scares me. History shows us that all draconian laws were reasonable to the drafters of the laws. “Tyranny of Good Intentions”

Posted by: W. W Woodward | Mar 28, 2008 6:18:27 PM

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