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Gun Rights Are Civil Rights - The majority opinion in McDonald v. Chicago shines a light on a...
NATIONAL REVIEW ONLINE ^ | July 7, 2010 | Robert VerBruggen

Posted on 07/07/2010 2:23:33 PM PDT by neverdem

Gun Rights Are Civil Rights

The majority opinion in McDonald v. Chicago shines a light on a dark period in American history.

 

Reading the opinions in McDonald v. Chicago, you might think it was as much a civil-rights case as a gun case.

In the ruling, the Supreme Court decided 5–4 that the Second Amendment applies to states and localities, not just the federal government, and struck down Chicago’s handgun ban. The four conservative justices, along with Justice Anthony Kennedy, formed the majority. One of the conservatives, Clarence Thomas, also filed a concurring opinion.

The main disagreement betwee the two opinions concerned whether the Fourteenth Amendment’s “privileges or immunities” clause or its “due process” clause is the best way for the Court to apply constitutional protections to state and local governments. But in the process of making their arguments, both opinions emphasize the racial history of the Fourteenth Amendment — the story of the post–Civil War South and the federal government’s crusade to ensure fair treatment for blacks therein.

The heart of the problem was that, in an effort to stave off rebellion and maintain the racial caste structure that had developed under slavery, state and local governments refused to respect freedmen’s constitutional rights. Crucial to the South’s efforts were gun-control laws that applied to blacks and blacks alone.

This does not show that modern gun controllers are racist, or even that the modern gun-control movement has “racist roots,” as some have suggested — the concerns that motivate Sarah Brady are neither the same as nor descended from the concerns that motivated racist southern governments. But this does show that when a government has the ability to forbid gun ownership, it has the ability to render groups it dislikes helpless to defend themselves. Regardless of whether modern gun control accomplishes its purpose of reducing crime — and for the record, there is no evidence it does — a free society should fear a government with such power.

The South’s campaign against black gun ownership, not surprisingly, began long before the Civil War. Two slave rebellions in the 1820s stoked whites’ fears, and in response, “many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well,” Thomas notes. Georgia forbade blacks to “own, use, or carry fire arms of any description whatever.” Florida empowered “patrol[s]” of white citizens to “search negro houses or other suspected places, for fire arms”; blacks caught with guns — whether slave or free — were brought to the “nearest justice of the peace” for “whipping on the bare back, not exceeding thirty-nine lashes.” (They could escape punishment by providing a “plain and satisfactory” explanation.)

It wasn’t just blacks, but also anti-slavery whites, whom governments tried to disarm. For example, during the “Bleeding Kansas” period — a series of violent skirmishes in the 1850s between pro- and anti-slavery elements in that future border state — there were attempts to take guns from the “free-soilers.” As the majority opinion in McDonald notes, the 1856 Republican-party platform described this as a violation of the right to keep and bear arms.

When the war ended, fear of rebellion peaked, and southern governments ramped up their efforts. Some states passed laws banning black gun ownership or gun carrying, and there was a “systematic effort” to disarm the freedmen who had served in the Union army and then returned to their homes in the South. Roving bands of ex–Confederate soldiers, many affiliated with the Ku Klux Klan, took arms from blacks by force while official law enforcement looked the other way. In South Carolina, a group of black citizens wrote the following to Congress: “We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed . . . that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.”

The problem wasn’t just that the laws were discriminatory, forbidding blacks but not whites to own guns — it was that the government had the right to ban gun ownership by the law-abiding at all. Even if the South had banned all gun ownership, disarmed blacks would have had to deal with the armed and racist “state militia and state peace officers,” the justices note.

They might have added that, without technically discriminating by race, the South could have used the techniques it later employed to keep blacks from voting — grandfather clauses, literacy tests, etc. — to exempt whites from facially non-discriminatory gun bans. (We see a modern analogue to these policies in laws that prevent the poor from owning guns. It costs $340, nonrefundable, just to apply for a gun permit in New York City, and the rich and famous seem to have a lower likelihood of being rejected. Also, the gun-control movement periodically goes after “Saturday-night specials” — that is, handguns cheap enough that the poor can afford them.)

It was gun-control laws — along with other laws that violated virtually every right blacks had — that led to the Fourteenth Amendment, which authorized the federal government to ensure that state and local governments respected citizens’ rights.

The Freedmen’s Bureau Act of 1866, passed just two years before the amendment was approved, made it clear that the right to keep and bear arms was an important right for freed blacks to have: “The right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.” Advocates of the Civil Rights Act of 1866 cited the disarmament of freed blacks as a reason the law was necessary.

These laws, however, didn’t work. Southern governments refused to enforce them, and the Supreme Court — which was far less powerful then than it is today, anyhow — did not intervene. To drive the point home that the South had to respect blacks’ rights, including the right to bear arms, Republicans in Congress passed the Fourteenth Amendment (they had the numbers to do this because they had refused to seat the Democrats the South had elected, many of whom were former Confederate soldiers), sent it to the states for ratification, put the former Confederate states under martial law via the Reconstruction Acts, and made their ratifying the amendment a condition of ending military rule.

The Supreme Court’s decision gives Americans a lot to think about — from the “privileges or immunities” clause to the Court’s proper role in enforcing the Constitution. But whenever we discuss gun control, we need to remember that a government capable of gun control is capable of tyranny. Both the majority opinion and Thomas’s concurrence in McDonald — following in the steps of works such as Stephen P. Halbrook’s Securing Civil Rights — perform the crucial service of explaining how important that fact was in the wake of the Civil War.

— NR associate editor Robert VerBruggen runs the Phi Beta Cons blog.



TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: banglist; mcdonald

1 posted on 07/07/2010 2:23:42 PM PDT by neverdem
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To: neverdem
New York's Sullivan Act was aimed at the rival gangs and political opponents of Sen. (and gang leader) Timothy Sullivan.


2 posted on 07/07/2010 2:30:41 PM PDT by Tribune7 (The Democrat Party is not a political organization but a religious cult.)
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To: neverdem
Yes, Sarah Brady is a racist. Her primary motivation is to disarm "others" ~ and she would disarm everybody but the criminal class to accomplish that aim.

She also attracts racists whose primary motive is to disarm black males no matter what.

These people shouldn't be allowed on the street to say nothing of getting audience to write laws to restrict guns and gun ownership.

3 posted on 07/07/2010 2:33:13 PM PDT by muawiyah
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To: neverdem; cripplecreek
If it's a civil right, why not restore it to ex-felons on completion of the sentences? Consider:

1. Those who go straight get all their rights restored. As was once the case, some FReepers have noted in the past.

2. Those who are going to acquire a gun illegally and use it in a crime are completely undeterred by the current system.

3. You get rid of proven-useless measures including background checks, waiting periods, rate-of-purchase restrictions and more, that accomplish nothing except to harass and impede (currently legal) gun owners. See #2.

Of course, there are two measures that should accompany this:
A. Heavily punish the use of a gun in the commission of a crime.
B. Even more heavily punish re-offenses of same.

4 posted on 07/07/2010 2:42:31 PM PDT by Clint Williams ( America -- a great idea, didn't last.)
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To: Clint Williams
If it's a civil right, why not restore it to ex-felons on completion of the sentences?

I have no problem with restoring it to non-violent felons. Violent felons maybe on a case by case basis.

5 posted on 07/07/2010 3:05:53 PM PDT by neverdem (Xin loi minh oi)
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To: neverdem
I'm quite serious when I say that:

1. If you can't trust him out on the street with a gun, you can't trust him out on the street. Keep him in the prison until you can.

2. He'll find a gun. Just won't jump through legal hoops to get it.

3. To release a human being into society while denying him, under color of law, an otherwise lawful means of self -defense, ought to strike all of us as an act of almost unimaginably barbarous cruelty. Might as well chain him to a post in the African Lion exhibit of the nearest zoo with a raw steak around his neck.

6 posted on 07/07/2010 3:16:56 PM PDT by ExGeeEye (Palin/Undecided 2012...make that Palin/Whoever She Picks...)
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To: neverdem
I have no problem with restoring it to non-violent felons. Violent felons maybe on a case by case basis.

If a legislature, judge, and jury feel that a lifetime ban on firearm ownership would be an appropriate punishment (not cruel and unusual) given the particulars of a person's crime, it would legitimate to impose it as part of a sentence. It would also be legitimate to impose a ban on firearm ownership as a condition of parole, provided the person had the option of serving the original sentence, and provided that a jury deemed that original sentence to be appropriate given the particulars of the crime.

Of course, nobody in government wants to bother with such details.

7 posted on 07/07/2010 4:05:49 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: neverdem; Tribune7
This article is unsatisfactory on a number of levels, most of all the casting of gun-control laws as emanating from Southern politicians.

One of the most egregious cases was New York, as pointed out by Tribune 7 above, and another that became precedential was the case of Illinois' wholesale rejiggering of 2A rights through their Militia Law, the purpose of which was to disarm unionizing laborers who were being beaten up by goon-squads of Chicago police at the direction of politicians who, not to put too fine a point on it, were former close associates of Abraham Lincoln himself.

If the author wants to contextualize Southern gun-control laws and black codes, he needs to place it in the post-Civil War context of mass disenfranchisement and the despoliation and desolation of States of the Union in the name of, and for the advantage of, a Northern political faction that divided the nation and then destroyed half of it in order to impose a nationwide political machine. He would also be required to explain military government of the Southern States (and re-justify them: hint, he can't), "reorganization" of States' sovereign affairs, and other unconstitutional actions that were taken in the pursuit of political empire.

And as for "racism" and black codes -- that is another whole subject, full discussion of which does not redound to the moral splendor of the victorious Northern States and their politicians.

National Review, with this article, demonstrates again that it has fallen into the hands of neo-conservative South-bashers, and every time it produces another article like this, it plays into the hands of "cracker-bashing" Democratic politicians like Bill Clinton and Barack Obama.

8 posted on 07/07/2010 4:09:36 PM PDT by lentulusgracchus
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To: Tribune7

Thanks for the link.


9 posted on 07/07/2010 4:38:31 PM PDT by neverdem (Xin loi minh oi)
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To: neverdem

Free people can defend themselves with lethal force, if necessary. From whoever is trying to murder them. If you can’t be armed, you can’t defend yourself, and you really aren’t free, but at the mercy of whoever DOES have the weapons.

There will always be weapons. Free men can have weapons for self defense and defense of family and property. Slaves, subjects, etc, cannot.


10 posted on 07/07/2010 5:38:47 PM PDT by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
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