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Securing Civil Rights
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms
By Stephen P. Halbrook
The Independent Institute Copyright © 1998 Stephen P. Halbrook
All rights reserved.
The Civil Rights and Freedmen's Bureau Acts and the Proposal of the Fourteenth Amendment
That No Freedman Shall Keep or Carry Firearms: The Black Codes as Badges of Slavery
NUMEROUS ANTEBELLUM commentators interpreted the Second Amendment as guaranteeing an individual right to keep and bear arms free from both State and federal infringement. In his famous criminal law commentaries, Joel P. Bishop wrote in 1865:
The constitution of the United States provides, that, "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." This provision is found among the amendments; and, though most of the amendments are restrictions on the General Government alone, not on the States, this one seems to be of a nature to bind both the State and National legislatures.
Yet Bishop's references to State "statutes relating to the carrying of arms by negroes and slaves" and an "act to prevent free people of color from carrying firearms" exemplified the need for a constitutional guarantee to protect the rights of all persons, regardless of race, to keep and carry firearms. After the Civil War, these slave codes, which limited the access of blacks to land, firearms, and the courts, began to reappear as "black codes." Congress quickly turned its attention to these efforts to reenslave the freedmen.
E.G. Baker, a white Mississippi planter, wrote a letter to members of the State legislature on October 22, 1865, warning of a possible negro insurrection. He added: "It is well known here that our negroes through the country are well equipped with fire arms, muskets, double barrel shot guns & pistols, — & furthermore, it would be well if they are free to prohibit the use of fire arms until they had proved themselves to be good citizens in their altered state." Forwarding a copy of the letter to the Union commander in Northern Mississippi, Governor Benjamin G. Humphreys warned that "unless some measures are taken to disarm [the freedmen] a collision between the races may be speedily looked for."
White fears of armed ex-slaves led to the quick enactment of the 1865 Mississippi "Act to Regulate the Relation of Master and Apprentice Relative to Freedmen, Free Negroes, and Mulattoes." In addition to prohibiting seditious speeches and unlicensed preaching by freedmen, the statute contained a firearms prohibition that would serve as a model for the black codes of other Southern States:
Section 1. Be it enacted, ... That no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie-knife, and on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed to trial in default of bail....
Section 3. ... If any white person shall sell, lend, or give to any freedman, free negro, or mulatto any fire-arms, dirk or bowie-knife, or ammunition, or any spirituous or intoxicating liquors, such person or persons ... shall be fined not exceeding fifty dollars, and may be imprisoned, at the discretion of the court, not exceeding thirty days....
Section 5. ... If any freedman, free negro, or mulatto, convicted of any of the misdemeanors provided against in this act, shall fail or refuse for the space of five days, after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs, and take said convict for the shortest time.
Two weeks after the Mississippi prohibition passed, Calvin Holly, a black private assigned to the Freedmen's Bureau in Mississippi, wrote to Bureau Commissioner O.O. Howard, relating in his letter an article in the Vicksburg Journal about an incident involving blacks with a gun, and noting that "they was forbidden not to have any more but did not heed." "The Rebbles," Holly warned, "are going about in many places through the State and robbing the colored people of arms[,] money and all they have and in many places killing." Holly continued: "They talk of taking the arms away from (col[ored]) people and arresting them and put them on farms next month and if they go at that I think there will be trouble and in all probability a great many lives lost."
When the 39th Congress convened in December 1865, Republican leaders quickly sought to establish committees charged with the task of drafting protections for the freedmen. On December 6, the House resolved that the Speaker appoint a Select Committee on Freedmen. A few minutes later, Representative John A. Bingham, an Ohio Republican, introduced a joint resolution to amend the Constitution "to empower Congress to pass all necessary and proper laws to secure to all persons in their rights, life, liberty, and property. ..." Bingham's bill would become, of course, the Fourteenth Amendment.
The House Select Committee on Freedmen consisted of Thomas D. Eliot of Massachusetts, William D. Kelley of Pennsylvania, Godlove S. Orth of Indiana, John A. Bingham of Ohio, Nelson Taylor of New York, Benjamin F. Loan of Missouri, Josiah B. Grinnell of Iowa, Halbert E. Paine of Wisconsin, and Samuel S. Marshall of Illinois. John Bingham would author § 1 of the Fourteenth Amendment. Other significant committees were the Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, and the House Judiciary Committee, chaired by James F. Wilson of Iowa.
On December 12, the Senate concurred with a House resolution to appoint a Joint Committee of Fifteen to investigate the condition of the Southern States. This committee would later hear extensive testimony on the violations of freedmen's rights, and eventually drafted the Fourteenth Amendment.
The enactment of the black code provisions prompted initiation of civil rights legislation that culminated in the proposal of the Fourteenth Amendment. Among the first proposals was S. 9, which declared as void all laws or other actions by the rebel States "whereby or wherein any inequality of civil rights and immunities among the inhabitants of said States is recognized, authorized, established, or maintained, by reason or in consequence of any distinctions or differences of color, race or descent, or by reason or in consequence of a previous condition or status of slavery or involuntary servitude of such inhabitants...."
Senator Henry Wilson, the bill's sponsor, led the debate, which was the first substantive discussion of civil and constitutional rights in the 39th Congress. Wilson deplored enforcement of the black codes:
In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages on them; and the same things are done in other sections of the country. ... I am told by eminent gentlemen connected with the Freedmen's Bureau that where they have the power they arrest the execution of these laws, but as the laws exist they are enforced in the greater portions of those States. If we now declare those laws to be null and void, I have no idea that any attempt whatever will be made to enforce them, and the freedmen will be relieved from this intolerable oppression.
Senator Wilson grounded his bill in the federal military power rather than the Thirteenth Amendment, which abolished slavery. Senator Edgar Cowan of Pennsylvania wanted to secure "the natural rights of all people," but maintained that a constitutional amendment was necessary to provide Congress the power to enforce these rights. Senator John Sherman argued that legislation "should be in clear and precise language, naming and detailing precisely the rights that these men shall be secured in, so that in the southern States there shall be hereafter no dispute or controversy."
On December 13, the House took its first action on a civil rights issue. Representative Farnsworth moved to refer to the Joint Committee of Fifteen a resolution to protect freedmen in "their inalienable rights" and to "secure to the colored soldiers of the Union their equal rights and privileges as citizens of the United States." John W. Chandler, a New York Democrat, opposed the motion because "the people of the United States" as used in the Constitution referred to whites only. The resolution was referred to the committee.
The House members appointed to serve on the Joint Committee included John Bingham, Thaddeus Stevens of Pennsylvania, Elihu B. Washburne of Illinois, Justin S. Morrill of Vermont, Henry Grider of Kentucky, Roscoe Conkling of New York, George S. Boutwell of Massachusetts, Henry T. Blow of Missouri, and Andrew J. Rogers of New Jersey. Grider and Rogers were the only Democrat members. On December 18, the House resolved that the committee consider legislation securing to freedmen in the Southern States "the political and civil rights of other citizens of the United States."
The next day, Senator Trumbull announced that he would introduce a bill that would enable the Freedmen's Bureau "to secure freedom to all persons in the United States, and protect every individual in the full enjoyment of the rights of persons and property and furnish him with the means for their vindication." Trumbull justified his bill under the pending Thirteenth Amendment, which prohibited slavery and empowered Congress to enforce the prohibition.
Minutes later, President Andrew Johnson transmitted to the Senate the report of Major General Carl Schurz, whom the President had sent to tour the South. A heated debate ensued on the importance of that report. Schurz's widely publicized report, upon which Congress placed great credence, reviewed in detail abuses committed against freedmen, including deprivations of the right to keep and bear arms. To restore slavery in fact, planters advocated that "the possession of arms or other dangerous weapons [by the freedmen] without authority should be punished by fine or imprisonment and the arms forfeited." The report brought to Congress' attention an ordinance enacted in Opelousas and other Louisiana towns, which provided that: "No freedman who is not in the military service shall be allowed to carry firearms, or any kind of weapon, without the special permission of his employer, in writing, and approved by the mayor or president of the board of police." Punishment was forfeiture of the weapon and either five days' imprisonment or a fine of five dollars. A Freedmen's Bureau report denounced the ordinance as a violation of the Emancipation Proclamation and as "slavery in substance."
With the holiday adjournment nearing, the Senate appointments to the Joint Committee were finally made, and included William P. Fessenden of Maine, J.W. Grimes of Iowa, Ira Harris of New York, Jacob M. Howard of Michigan, Reverdy Johnson of Maryland, and George H. Williams of Oregon. Johnson was the sole Democrat. Meanwhile, S. 9, Senator Wilson's Civil Rights Bill, continued to be debated with great animosity.
Introduction of the Freedmen's Bureau and Civil Rights Bills
On January 5, 1866, Senator Trumbull introduced S. 60, a bill to enlarge the powers of the Freedmen's Bureau, and S. 61, the Civil Rights Bill, both of which were referred to the Judiciary Committee. These bills would become of unprecedented importance in regard both to the passage of the Fourteenth Amendment and to recognition of the right to keep and bear arms. In the House, Representative Eliot introduced a bill to amend the existing law that established the Freedmen's Bureau, and it was referred to the Select Committee on Freedmen.
On January 11, Senator Trumbull, Chairman of the Committee on the Judiciary, reported S. 60. and S. 61. The following day, at Trumbull's request, the Senate considered S. 60, the Freedmen's Bureau Bill. S. 60 provided the Bureau with jurisdiction in areas where the war had interrupted the ordinary course of judicial proceedings and,
wherein, in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice, any of the civil rights or immunities belonging to white persons (including the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings for the security of person and estate) are refused or denied to negroes, mulattoes, freedmen, refugees, or any other persons, on account of race, color, or any previous condition of slavery or involuntary servitude....
Trumbull then opened up consideration of S. 61, the Civil Rights Bill. It contained virtually identical language as S. 60, likewise protecting the right "to full and equal benefit of all laws and proceedings for the security of person and property...."
While the Senate was considering statutory protections, the Joint Committee, behind closed doors, began to examine constitutional amendments to protect the same rights. It is instructive to compare the Freedmen's Bureau Bill with the draft of a constitutional amendment proposed by John Bingham to the Joint Committee that same day: "The Congress shall have power to make all laws necessary and proper to secure to all persons in every State within this Union equal protection in their rights of life, liberty and property." Thaddeus Stevens proposed a similar guarantee: "All laws, State or national, shall operate impartially and equally on all persons without regard to race or color." These proposals resemble what became the Due Process and Equal Protection Clauses of the Fourteenth Amendment. A subcommittee consisting of Bingham, Stevens, William Fessenden, Jacob Howard, and Roscoe Conkling was appointed to consider proposed constitutional amendments.
That same day (January 12), the House continued consideration of H.R. 1, a bill to allow black suffrage in the District of Columbia. Representative Chandler quoted from a speech by the Honorable Michael Hahn of Louisiana to the National Equal Suffrage Association, in which Hahn stated:
It is necessary ... to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom....
"The right of the people to keep and bear arms" must be so understood as not to exclude the colored man from the term "people."
Proponents saw suffrage and the right to keep and bear arms as inextricably connected.
On January 13, Harper's Weekly informed its readers of Mississippi's prohibition on firearms possession by freedmen:
The militia of this country have seized every gun and pistol found in the hands of the (so called) freedmen of this section of the country. They claim that the statute laws of Mississippi do not recognize the negro as having any right to carry arms. They commenced seizing arms in town, and now the plantations are ransacked in the dead hours of night. ... The civil laws of this State do not, and will not protect, but insist upon infringing on their [the freedmen's] liberties.
Such reports generated demands that Congress take action to prevent the States from infringing on the freedmen's right to bear arms.
On January 18, Senator William M. Stewart of Nevada called S. 60 "a practical measure ... for the benefit of the freedmen, carrying out the constitutional provision to protect him in his civil rights." That bill and S. 61, Stewart averred, "will give full and ample protection under the constitutional amendment to the negro in his civil liberty, and guaranty to him civil rights. ..." The same day in the House, Chairman Eliot of the Select Committee on Freedmen reported H.R. 87, the House version of S. 60.
The following day (January 19) in the Senate, Thomas A. Hendricks, an Indiana Democrat, attacked S. 60. Hendricks feared that § 7 of the bill, which guaranteed civil rights to all, including "the full and equal benefit of all laws and proceedings for the security of person and estate," might apply in Indiana: "We do not allow to colored people there many civil rights and immunities which are enjoyed by the white people." Senator Hendricks was aware that the Indiana Constitution provided that "the people have a right to bear arms for the defence of themselves and the State," which protected the open carrying of firearms. Hendricks may have feared that, should S. 60 pass, blacks would have this right.
Excerpted from Securing Civil Rights by Stephen P. Halbrook. Copyright © 1998 Stephen P. Halbrook. Excerpted by permission of The Independent Institute.
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