IV. How We Got Here: The Racially-Motivated History of Gun Laws and Crime Control
A. The Early History of Disarming Blacks
In the context of the social and legal history of the United States, it is not surprising that federal gun control laws are overbroad, criminalize even innocent behavior, and are disparately enforced against Black communities. Indeed, since the first colonists set foot on the New World, firearm and weapon control laws were enacted to suppress the enslaved and free Black populations.
The Second Amendment of the U.S. Constitution was interpreted to confer upon individuals the right to keep and bear arms, “arms” meaning weapons, including firearms. However, this amendment was never intended or construed--until the passing of the Fourteenth Amendment-to confer a right onto Blacks. U.S. Supreme Court Justice Roger B. Taney unequivocally stated in 1857 how the Court, the states, and the majority of people at the time understood the rights of people who were Black under the Constitution and summarized the common fear of the supposed chaos that would result were rights provided. Justice Taney wrote:
[Were the Constitution interpreted to include Blacks within the meaning of citizens or the people,] [i]t would give to persons of the negro race ... the full liberty of speech in public and in private ...; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
“A well regulated Militia,” for which people should have the right to “keep and bear Arms,” has always existed in this nation. Given the laws and political philosophy in England, which deemed the “natural right of resistance and self-preservation” a primary right, colonists formed militias as soon as they arrived in the New World. The colonists, specifically white male landowners, strongly believed that militia service was a duty within their civic responsibilities. As such, all free men were automatically enlisted at the age of sixteen and were thereafter required to own a suitable gun and report to military duty when called by the colonial governments. Initially, militias were viewed as necessary to protect against Native Americans. Native Americans frequently attacked the settlers for possessing and taking ownership over their land, and in some instances to free enslaved Native Americans. Only twenty African slaves were first brought to Virginia in 1619; therefore, this group was not perceived as a threat. However, this number rapidly increased within the next few decades and, with it, the perceived need to control people who were Black via militia force and law.
Both Northern and Southern colonial governments were greatly concerned with fighting off Native Americans, but they had a competing concern: an armed and trained Black population. For example, in Massachusetts, freed slaves were prohibited from participating in militia drills, and instead were required to perform alternative service on public works projects. In New Jersey, Blacks were excused from compulsory militia service. These colonies, however, did not expressly prohibit Blacks from being armed. In New York, a law passed in 1683 was even harsher; not only were Blacks and Native Americans prohibited from owning guns, but they were also prohibited from assembling in groups larger than four people. These laws were enforced by the militias that were organized by the colonial governments.
In the Southern colonies, there was an even greater concern regarding Blacks' access to arms. Because the Southern colonies had a larger Black population, the majority of which was enslaved, colonial governments and individual plantation owners feared slave rebellions. As such, the Southern colonies ensured by law that Blacks were disarmed. In Virginia, for example, a statute enacted in 1680 prohibited all Blacks, free or enslaved, from possessing any type of weapon. Moreover, militias not only performed traditional military duties, but were also required to serve as patrollers who “ke[pt] order” within the slave populations. By law, militia detachments would report to patrol the slave plantations and living quarters. The militia and the slave patrol system were one organization.
During the early 1700s, laws in both the Northern and Southern colonies were enacted to further neutralize the possible threat of armed Blacks. For example, in Boston, a city with a strong militia presence to protect against the “near neighborhood of [Native Americans] and French,” enacted an ordinance that prohibited all Blacks, people who were multiracial, and Native Americans from carrying any weapons, meeting in groups larger than two people, and “from being on the streets from one hour after sundown until one hour before sunrise.” In South Carolina, slave owners were mandated by law to search the living quarters of slaves every fourteen days for weapons.
After the Revolutionary War, Congress ratified the Constitution, but without the Bill of Rights, which included the Second Amendment. Article I, section 8 granted certain powers to Congress, including the power to regulate a federal army and the state militias. The Framers set forth a dual system of state and federal government to regulate armed forces. Each of the thirteen states would retain their right to maintain a militia, and their citizens would have the right to bear arms in the service of the militia. But, at the same time, the federal government could also call upon the militias for federal service and set the terms for how the militias were trained and armed.
Although the Constitution was ratified, many delegates were very concerned about the power that the federal government held over the state militias. Delegates feared that the federal government could use the Army as an oppressive force, and that the less equipped militias would be unable to protect the freedom of the states. Southern delegates feared what could result in a weaker militia system--indeed, the militias had prevented slave revolts and maintained the slavery institution. Delegate Patrick Henry of Virginia, the largest state at the time, warned against vesting too much power in Congress, speculating that it would contribute to the end of slavery. He drew on the other delegates' anxiety with the notion that Black men could be called to federal military service and thereafter made free. This apprehension that Blacks could be armed and trained rang true not only for the Southern delegates; at the time, the majority of states barred Black people, free or enslaved, from joining the militia, and some states prohibited Black people from owning any weapons. Out of this lingering concern for the fate of state militias grew the Second Amendment.
After the Civil War and the official abolition of slavery, Southern states enacted Black Codes as a means to continue to oppress and subdue the Black population. Black Codes controlled Blacks' employment by forcing them to enter labor contracts; Black people were unable to serve on juries or serve as witnesses against whites; vagrancy laws criminalized unemployment and idling. Of course, these Codes also prohibited Blacks from possessing firearms altogether or subjected them to licensing laws that whites did not need to follow. These Codes, which denied Blacks of their civil rights and “rendered [them] defenseless against assaults,” were what led to the Civil Rights Act of 1866 and the corresponding Constitutional amendments.
When the Fourteenth Amendment was enacted in 1868, states were required to amend their laws that prohibited Blacks from possessing firearms or weapons. Southern states replaced their facially discriminatory gun laws with those that were facially race-neutral. Essentially, many Southern states enacted laws that prohibited the sale and ownership of particular classes of firearms, specifically handguns that were categorically less expensive than other types of firearms--indeed, the only type of firearm poor Blacks would have the financial means to purchase. Similarly, some states made only costly firearms legal. For example, in 1879, Tennessee passed a law “bann[ing] the sale of any pistol[] other than the expensive army or navy model revolvers.” Alabama, Texas, and Virginia employed tax laws to disarm the Black population, by imposing “exorbitant business or transaction taxes” on all firearms to ensure that Blacks would be unable to purchase such goods. Moreover, extralegal systems were established in some Southern jurisdictions, in which firearm retailers were mandated to report any firearm purchase by a Black person to the local police department. The sheriff would then arrest the buyer and confiscate the weapon. In 1906, Mississippi established a similar state-wide system when it enacted a law “requiring retailers to maintain records of all pistol and pistol ammunition sales, and to make such available to authorities for inspection.” These authorities and police department sheriffs were often members of the Ku Klux Klan (“KKK”).
During this time, in the early 1900s, World War I erupted and ended several years later. After the war, two major changes in this country occurred. First, the Prohibition Era began and, with it, an increase in organized crime. Second, Black men returned from the war. Approximately 370,000 joined the Armed Forces during World War I. These men returned home both trained to use firearms and inspired to demand racial justice from the government that they had risked their lives to protect. Homecoming parades for the Black soldiers occurred in the North and South, with thousands of people present, creating a sense of racial pride. In February 1919, an all-Black army unit, the 369th Infantry Regiment, marched into Harlem before nearly a quarter million onlookers. This showing of self-dignity and defiance of the racial segregation and violence endured by the soldiers prior to and throughout the war sparked a new surge of violence against Blacks. From 1918 to 1919, the number of lynchings increased by 30%, and eleven of the victims in 1919 were Black veterans. During this time, the KKK reemerged as a “major force” in the South. KKK groups also became more forceful in some non-Southern states, such as New Jersey, Illinois, Indiana, Michigan, and Oregon. All five of these states enacted gun control laws between the years of 1913 and 1934. These new gun control laws, and those preexisting in Southern and some Northern states, ensured that Blacks had limited means of protection against this brutality. As discussed above, it was during this time in which the first federal “felon in possession” law was enacted--the Federal Firearms Act of 1938.
B. The Civil Rights Movement and the Increase in Gun Control Laws and Decrease of Protections Under the Fourth Amendment
On October 22, 1968, President Johnson signed the Gun Control Act, the first federal Act making it a crime for persons previously convicted of a nonviolent felony to possess a firearm and/or ammunition. This Act dramatically changed the federal laws that had existed before, as set out in the Federal Firearms Act of 1938. The timing of the enactment of the Gun Control Act is quite telling; the government needed to maintain law and order in an environment where Blacks armed themselves and demanded civil rights.
The Gun Control Act of 1968 was signed at the height of civil unrest and Black mobilization. In the South and other areas where the KKK terrorized Black communities, Black individuals had no protection from local authorities, and, in some instances, the local police departments aided the violence. Leaders, such as Martin Luther King, Jr., requested, to no avail, that President Kennedy send federal troops for security. Left with no alternative, Black communities began forming groups and arming themselves with guns for self-defense. In 1964, the Deacons for Defense and Justice established itself in Louisiana. One Deacons for Defense and Justice group “obtained a charter and weapons, and vowed to shoot back if fired upon.” In 1965, the Lowndes County Freedom Organization formed in Lowndes County, Alabama, which evolved into the Black Panther Party.
Using the political and organizational philosophies of the Lowndes County Freedom Organization, Huey Newton and Bobby Seale began the Black Panther Party in California in 1966. The Black Panthers opened up “survival programs” within Black communities, where members gave out free food and provided health services. Members would also monitor police interactions with Black community members, primarily in Oakland, California. Panthers would follow police cars and provide arrested Blacks with their Miranda rights. Panthers would usually carry unconcealed guns and law books during these interactions. Panthers would also hold protests and speak to crowds about police brutality. At the time, carrying an unconcealed weapon was not a crime in California and, in fact, was quite common. As such, to subdue the Panthers, police officers would frequently confiscate their weapons and charge them with disturbing the peace. Televisions and other mass-media outlets showed images of Black leaders shouting “Black Power!” Whites became frightened as the media suggested a Black violent revolution was on the horizon.
During the summer of 1967, there were over 100 riots across the country, including cities such as Boston, Chicago, Cincinnati, Detroit, Hartford, Minneapolis, Newark, New Haven, New York, Philadelphia, Pittsburgh, Tampa, and Washington D.C. The most violent riots occurred in Newark, N.J., July 12 to 17; it is estimated that seventy-two people were killed, 750 injured, and over 1,000 put in jail. In response to the Newark riots, over 3,000 National Guardsmen were dispatched. The National Guardsmen went into predominantly Black neighborhoods and conducted house-to-house searches for firearms.
After these riots, three states passed new gun control laws in 1967. New York already regulated handguns but enacted a law that required registration for additional classes of guns. Illinois, which had not previously regulated the ownership of any class of gun, enacted a law that all owners of firearms obtain a gun license from the state police. In direct response to the efforts of the Panthers, the California Senate passed a law in late July 1967, which criminalized the possession of a loaded firearm in a vehicle or on the person in public place--but only within the limits of an “incorporated city.” The statute also provided that a police officer could “examine” the firearm “to determine whether or not [the] firearm [wa]s loaded for the purpose of enforcing this section.” The statute did not specify that the firearm needed to be visible and no requisite suspicion was required for the officer to initiate such examination. Panthers known to local police officers were frequently stopped and arrested under this statute after its enactment.
Due to the social unrest, large protests in cities, and mass-media imagery of armed Black militants, police departments and governments perceived a need for greater crime control. Predominantly white police forces began heightening the patrolling of predominantly Black neighborhoods, further aggravating suffering race relations and leading to more riots--specifically in response to police brutality. In the summer of 1968, a riot began in Cleveland, Ohio, ending in a shootout between the police department and members of the Black Power movement. It was this same summer in which the U.S. Supreme Court held, for the first time, in Terry v. Ohio, that police officers could conduct a limited search of a person absent probable cause. Specifically, the Court held that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”
It was within this national social and legal context that the Gun Control Act of 1968 was enacted only several months after the Terry v. Ohio decision. Black communities demanded civil rights and protection from police brutality. White America and politicians feared an armed revolution. Police departments increased their patrol of Black communities to suppress riots and keep order. Several states passed gun control laws. Police officers could now legally search a person without probable cause-with a mere reason to believe that the suspect was armed. The Gun Control Act was just another part of the government's efforts to intensify “law and order,” disarm people who threatened this “order,” and in turn, further ensnare Blacks in the criminal justice system.
C. The “War on Drugs,” Current Crime Control, and the Shaping of E. Today's Federal Programs
Not long after the enactment of the Gun Control Act of 1968, a new federal initiative began which shaped today's reality of the disparate enforcement of federal firearm offenses, such as the federal “felon in possession” law. A defining feature of the 1980's was the “War on Drugs.” During this time, federal initiatives “significantly increased federal penalties for drug offenses and markedly increased federal funds for state anti-drug efforts.” Once the “War on Drugs” had commenced, the racial disparities between national and prison populations grew even greater. In 1985, Blacks made up 10% of the total national population but 46% of the national state and federal prison population. This same year, whites made up 52% of the national state and federal prison population and 86% of the population.
By 1994, after nine years of the “War on Drugs” raging on, the total state and federal prison population increased by over 100%, and the population of those imprisoned for drug offenses increased by approximately 300%. The national population, on the other hand, increased by only about 4% from 1990 to 1994. Over this time, the Black prison population had increased by 212% and that of white prisoners had gone up by 172%. In 1993-1994, Black individuals made up approximately 11% of the national population but almost 50% of the state and federal prison population. Whites, on the other hand, made up approximately 82% of the national population but a little over 50 % of the state and federal prison population.
Essentially, the “War on Drugs” shaped today's reality of the disparate enforcement of federal firearm offenses by significantly increasing the number of Black people with felony convictions. As such, more Blacks can now be prosecuted under “felon in possession” laws. These felony convictions were not only for drug offenses, which were the target of the war on drugs, but for other offenses as well. As reported in FBI nationwide crime reports in 1995, the weapons arrest rate was five times greater for blacks than whites. Indeed, given the holding in Terry v. Ohio, an officer's fear of a weapon may justify a search. This search thus can be a pretext to a search for other contraband and/or evidence of a crime.
These tactics continue today and Blacks continue to be disparately targeted by law enforcement. The Justice Department reported that in 2011, Black drivers were 31% more likely to be stopped by an officer than a white driver. Moreover, prior to 2013, once stopped, officers were twice as likely to search the driver's person and vehicle if the driver was Black. Beyond traffic stops, Blacks are also much more likely to be stopped-and-frisked by police officers. These stops and searches, occurring at widely different rates for Blacks and whites, contribute to the widely different and disproportionate rates of incarceration for Black and white populations.
