American gun control laws were born in the South, created and enforced to keep black men and women disarmed and defenseless. Anyone who doubts this fact need only watch the video above. Or read the Supreme Court’s Heller decision. Throughout that landmark ruling, the Court exposes the racist roots of American gun control, including The Colfax Massacre. How, then, do Atlantic magazine writer Saul Cornell and Eric M. Ruben justify their anti-open carry and -shall-issue polemic The Slave-State Origins of Modern Gun Rights (a reworking of their Yale Law Journal article Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context)? Simple . . .
First, they cherry-pick a citation from Heller:
The opinion most enthusiastically embraced by public-carry advocates is Nunn v. State, a state-court decision written by Georgia Chief Justice Joseph Henry Lumpkin in 1846. As a jurist, Lumpkin was a champion both of slavery and of the Southern code of honor. Perhaps, not by coincidence, Nunn was the first case in which a court struck down a gun law on the basis of the Second Amendment. The U.S. Supreme Court cited Nunn in District of Columbia v. Heller, its landmark 2008 decision holding, for the first time in over 200 years, that the Second Amendment protects an individual right to possess a handgun in the home for self-defense. Why courts or gun-rights advocates think Lumpkin’s view of the right to bear arms provides a solid foundation for modern firearms jurisprudence is puzzling. Slavery, “honor,” and their associated violence spawned a unique weapons culture. One of its defining features was a permissive view of white citizens’ right to carry weapons in public.
As a gun rights advocate, I’ve never once heard anyone in the pro-gun community use Nunn vs. State as a talking point. While it’s certainly true that gun rights advocates embrace the decision – wherein the “Georgia Supreme Court construed the Second Amendment as protecting the ‘natural right of self-defence'” [Heller] – the idea that the pro-gun position depends predominantly on Nunn is a blatant, flagrant mischaracterization.
Personally disparaging the judge in the case is a perfect example of the ad hominem attacks favored by those who disfavor Americans’ natural, civil and Constitutionally protected right of self-defense. Does the fact that signatories to the Constitution owned slaves cancel the rights protected by the document? Equally, how does discrimination against blacks by racist white gun control advocates create an argument for gun control?
As early as 1840, antebellum historian Richard Hildreth observed that violence was frequently employed in the South both to subordinate slaves and to intimidate abolitionists. In the South, violence also was an approved way to avenge perceived insults to manhood and personal status. According to Hildreth, duels “appear but once an age” in the North, but “are of frequent and almost daily occurrence at the [S]outh.” Southern men thus carried weapons both “as a protection against the slaves” and also to be prepared for “quarrels between freemen.”
The argument here: if racists whites had been disarmed by gun control – as they were in the North – there would have been less racist violence. Not only is that idea ridiculous on its face and unconstitutional, it flies in the face of history. The Springfield race riots of 1908 are but one example of white violence against blacks by supposedly “disarmed” Northerners.
In 1836, the respected Massachusetts jurist Peter Oxenbridge Thacher instructed a jury that in Massachusetts “no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, family, or property.” Judge Thacher’s charge was celebrated in the contemporary press as “sensible,” “practical,” and “sage.” Massachusetts was not unusual in broadly restricting public carry. Wisconsin, Maine, Michigan, Virginia, Minnesota, Oregon, and Pennsylvania passed laws modeled on the public-carry restriction in Massachusetts.
Although Peter Oxenbridge Thacher’s ruling predates the Civil War, a charge to a grand jury does not a law make. That said, the authors are not wrong about the existence of Northern gun control laws. But they misrepresent both their prevalence and implementation. As William S. Harwood writes in Gun Control: State Versus Federal Regulation of Firearms [via Maine Policy Review] “The first significant state regulation of firearms was passed by the State of New York in 1911. Known as the Sullivan Law, the statute was passed in response to the large number of immigrants entering New York.”
By the authors’ own admission – set forth in the Yale Law Journal treatise but curiously absent from the Atlantic version – “After the Civil War, the Massachusetts model—generally restricting public carry with limited exceptions for people with reasonable cause to fear attack—gained traction in parts of the South.” In other words, gun control regulation took off in South – applied to blacks. Which is why the laws were adopted in the first place.
A fact that Gary Kleck highlights in his book Point Blank: Guns and Violence in America: “In the 19th and early 20th century, gun-control laws were often targeted at blacks in the south and the foreign-born in the north.” As washingtonsblog.com points out, the state of Tennessee altered its constitution from “the freemen of this state have a right to keep and to bear arms for their common defence” to “the free white men of this state have a right to keep and to bear arms for their common defence.”
Today, Americans disagree about the best way to enhance public safety and reduce crime, and that disagreement is voiced in legislatures across the nation. Throughout most of the country and over most of its history, the Second Amendment has not determined the outcome of this debate nor stood in the way of popular public-carry regulations. Then, as now, such regulations were evaluated based on the impact they would have on crime and public safety. At the end of this deadly summer, the debate rages on over how best to balance public safety against the interests of people who wish to “pack heat.” If elected officials decide to restrict the right to carry to those persons who can demonstrate a clear need for a gun, present-day judges should not intervene on the basis of opinions about the right to bear arms from the slave South and its unique culture of violence.
In short, gun rights are racist. Which is about as far from the truth as you can get. Once again, when you’re trying to degrade and destroy gun rights, the truth about guns has nothing to do with it.