The Klan's Favorite Law

Gun control in the postwar South

David B. Kopel | February 15, 2005

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The Radical Republican Congress observed the South with dismay. The Republicans intended to use federal power to force freedom on the South. One of the Radical Republicans' most important tools was the 14th Amendment to the Constitution, which required states to respect basic human rights. While the vague language of the amendment has produced disagreement about exactly what is covered, the Congressional backers of the amendment seem to have intended, at the least, protecting the core freedoms listed in the national Bill of Rights. Announced Representative Clarke of Kansas: "I find in the Constitution an article which declared 'the right of the people to keep and bear arms shall not be infringed.' For myself, I shall insist that the reconstructed rebels of Mississippi respect the Constitution in their local laws."

The earlier Freedman's Bureau Bill had also been squarely aimed at protecting the right to bear arms. The bill guaranteed federal protection of "the full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms."

The Amendment was quickly emasculated by the United States Supreme Court in The Slaughter-House Cases and United States v. Cruikshank, The Supreme Court understood the social realities of the South. The Cruikshank decision gave the green light to the Klan, unofficial white militias, and other racist groups to forcibly disarm the freedmen and impose white supremacy.

One state at a time, white racists took control of government by using armed violence and the threat of violence to control balloting on election day. Freedmen and their white allies also resorted to arms. But white Republican governors were usually afraid that employing the black militias fully would set off an even broader race war.

The white South, while defeated on the battlefield in 1865, had continued armed resistance to Northern control for over a decade. When the North, an occupying power, grew weary of the struggle and abandoned its black and Republican allies in the South, the white South was again the master of its destiny.

In deference to the Fourteenth Amendment, some states did cloak their laws in neutral, non-racial terms. For example, the Tennessee legislature barred the sale of any handguns except the "Army and Navy model." The ex-Confederate soldiers already had their high quality "Army and Navy" guns. But cash-poor freedmen could barely afford lower-cost, simpler firearms not of the "Army and Navy" quality. Arkansas enacted a nearly identical law in 1881, and other Southern states followed suit, including Alabama (1893), Texas (1907), and Virginia (1925).

As Jim Crow intensified, other Southern states enacted gun registration and handgun permit laws. Registration came to Mississippi (1906), Georgia (1913), and North Carolina (1917). Handgun permits were passed in North Carolina (1917), Missouri (1919), and Arkansas (1923).

As one Florida judge explained, the licensing laws were "passed for the purpose of disarming the negro laborers... [and] never intended to be applied to the white population."

That gun control has a very unsavory past does not, in itself, prove that all modern gun control proposals are a bad idea. But it does offer reasons to be especially cautious about the dangers of disarming people who cannot necessarily count on their local government to protect them.