Early American "Gun Control"

The following essay originally appeared in the April, 1997 issue of AMERICAN SURVIVAL GUIDE

By Howard J. Fezell, Esq.

          We approach the 21st Century saddled with a federal government that has evolved from an institution intended to protect its citizens' lives and property into one whose primary function is redistributing wealth via middle-class welfare programs. (To avoid embarrassing anyone they are called "entitlements".) Statist politicians in both major parties view the minority of people who actually produce wealth as nothing more than a source of tax revenue. Promises of more and better benefits for an increasingly dependent constituency is how statists win reelection. Making good on those promises requires the federal government, over time, to appropriate a greater percentage of whatever wealth is produced in the private sector.

          That the United States was born out of an armed rebellion fueled, in large part, by resentment over excessive taxation is a bit of history that makes statists extremely uncomfortable. It should, therefore, come as no surprise that congressmen and senators who dream of an ever-expanding welfare state consistently vote to restrict individual gun ownership or even ban the production of certain classes of firearms.

          Claims by extremist groups such as Handgun Control, Inc. (HCI) that "just one more" gun law is necessary to "fight crime" or "reduce the level of violence" are simply a smoke screen. HCI is run by statists whose objective is the total disarmament of ordinary people. They are savvy political professionals with enormous patience who are willing to disarm you in increments, if need be. However long it takes, to HCI the best "gun control" is gun prohibition.

          In the minds of people who promote the expansion of government power at the expense of individual liberty, gun prohibition makes perfect sense. In fact, it is essential. Middle class welfare programs (e.g., Medicare and Social Security) along with interest payments on the national debt currently consume more than half of all federal expenditures. It is only a matter of time, perhaps less than a decade, until "discretionary" spending on defense, law enforcement, parks, roads, etc. is relegated to less than one-third of the total. Sooner or later something has got to give. Either the federal welfare apparatus will have to shrink dramatically or taxes will have to go up. But what would happen if 50,000,000 Americans "just say no" to forking over more of their hard-earned money? Massive civil disobedience by ordinary people who, if necessary, could defend themselves is a statist's worst nightmare. On the other hand, the populace will be much easier to intimidate if it has already been disarmed.

          Disarmament of people kept (or to be kept) in servitude has historical precedent dating back to ancient times. The history of "gun control" in America shows that is has been used repeatedly as an authoritarian and elitist device to favor the powerful and politically well-connected and keep supposedly less worthy people "in their place."

Restrictions On Slaves, Freed Negroes & Roman Catholics

          The State of Maryland (where I practice law) offers a good example of how "gun control" has been used to keep people in their place. Maryland was first settled by English colonists in 1631. Within a few decades, numerous plantations had been established which required a substantial amount of manpower. Much of the labor was provided by African slaves who, doubtless, would have preferred to be free. A rebellion of armed slaves could have laid waste to the plantation system, jeopardizing the economic viability of the entire colony. This possibility was not lost upon wealthy planters. To help keep slaves "in their place" the colonial assembly (comprised largely of slave owners) passed Maryland's very first gun control law. Chapter XLIV, Section XXXII of the Acts of 1715 provided:

     That no negro or other slave within this province shall be permitted to carry any gun, or any other offensive weapon, from off their master's land, without license from their said master; and if any negro or other slave shall presume to do so, he shall be liable to be carried before a justice of the peace, and be whipped, and his gun or other offensive weapon shall be forfeited to him that shall seize the same and carry such negro so offending before a justice of the peace.

          During the French and Indian Wars, Roman Catholics (referred to disparagingly as "Papists") were suspected of having sympathies with the French. In 1756, the colonial government in Maryland ordered the surrender of all arms or ammunition in their possession. 52 Maryland Archives, 454. In 1806, Maryland passed a law making it unlawful for "any negro or mulatto within this state to keep any dog, bitch or gun, except he be a free negro or mulatto, and in that case he may be permitted to keep one dog, provided that such free negro or mulatto shall obtain a license from the justice of the peace for that purpose, . . ." Acts of 1806, Chap. LXXXI. Although a "free negro or mulatto" (as distinct from those held as slaves) could apparently possesses firearms, it became unlawful for them to "go at large with any gun, or other offensive weapon". Id., Section II. It is interesting to note that the keeping of dogs was also restricted. As any police K-9 unit can demonstrate, a properly trained dog can be a formidable weapon. Restrictions such as those imposed by the Acts of 1715 and 1806 were part of widespread efforts in the South to limit the availability of firearms to blacks, both slave and free. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward An Afro-Americanist Reconsideration, Vol. 80 Georgetown Law Journal, 309, 335-338 (1991).

Black Civil War Veterans

          Victory of Union forces in the War Between The States and ratification of the Thirteenth Amendment in 1865 brought an end to slavery in the United States. The Union's victory was due, in no small part, to the efforts of approximately 180,000 to 200,000 blacks who had served in the Union Army and comprised about 10 percent of the grand total. Parish, The American Civil War, 259. At least two-thirds of these troops had been slaves at the beginning of the war. Id. They were now free and trained in the use of arms. Needless to say, their former owners were not thrilled at this development. Black soldiers, once mustered out of the Union Army, were not well received by Southern whites, and were frequently the victims of assaults. Glatthaar, Forged In Battle, The Civil War Alliance of Black Soldiers and White Officers, 252-53. Many whites viewed these veterans as "runaways" who had been fighting against their old masters and now returned "full of the impudent notions of a freeman". Id. Southerners no longer had a need to disarm slaves who otherwise might use force to secure their freedom. However, the idea of former slaves bearing arms was cause for considerable dismay among whites. Cottrol & Diamond, supra, at 342-46. Southern whites also realized that it would be far easier to discourage blacks from acting upon the "notions of a freeman" if they were unarmed and had no effective means to resist intimidation by their former masters. Not long after the War Between The States , Maryland adopted a new constitution. During the constitutional convention of 1867 the right to keep and bear arms was debated in the form of an amendment to what is now Article 28 to Maryland Declaration of Rights. Many delegates to that convention, who were either former slave owners or had served as officers in the Confederate army, were not about to guarantee the right of freed blacks to own guns. According to Debates of the Maryland Constitutional Convention of 1867, 150-51:

     Article 28 was read as follows: "That a well regulated militia is the proper and natural defense of a free government."

     Mr. Giddings moved to amend by adding after the word "government" the words, "and every citizen has the right to bear arms in defense of himself and the state."

     Mr. Garey moved to amend the amendment by inserting the word "white" after the word "every".

          After some discussion, Mr. Giddings' amendment failed. White fear over free blacks owning guns was the critical factor in defeating the adoption of a right to keep and bear arms in Maryland's Constitution of 1867. Maryland was not alone in seeking to prohibit blacks from having access to firearms. During Reconstruction, "black codes" were enacted in the former Confederate states to make it difficult for newly freed slaves to possess firearms, vote, or own property. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right, 108. As but one example, within six months of the war's end the State of Mississippi passed an "Act to Regulate the relation of Master and Apprentice Relative to Freedmen, Free Negroes, and Mulattoes." This made it unlawful for any "freeman, free negro or mulatto" who was not in the U.S. military or licensed by the police to "keep or carry fire-arms of any kind, or any ammunition". Id. In 1865, however, police in Mississippi were not about to issue firearms licenses to anyone who was not white.


          African slaves, freed blacks, and 18th century Roman Catholics were by no means the only targets of "gun control", nor were such measures limited to Southern states. In 1911 New York State enacted the Sullivan Law, which required a license to possess a handgun. At the same time the New York Tribune complained about the carrying of handguns by "ignorant and quarrelsome immigrants of law-breaking propensities". Kopel, The Samarui, The Mountie, and The Cowboy: Should America Adopt The Gun Controls of Other Democracies?, 342-43. Many of these "quarrelsome" immigrants were nothing more than honest, hard-working, Italian shopkeepers who refused to be shaken down by the New York City Police, who were predominantly of Irish descent. Irish immigrants to the United States had been on the receiving end of terrible discrimination since their arrival in large numbers in the 1840 and 1850s. However, after 70 years in Americas they had become firmly entrenched as part of New York's political establishment. It was their turn. By denying handgun licenses to people from immigrant groups the police deemed "quarrelsome," the Irish political machine made it easier to impose its will on more recent arrivals, such as Italians and Eastern European Jews. In the early 20th Centruy other states, notably, Oregon, California, and Hawaii enacted restrictions on the purchase or possession of handguns by immigrants. Kopel, supra, at 343. "Gun control" in America has often meant gun prohibition for people who, because of their race, religion, ethnic origin, or condition of servitude, were considered a threat to those in power. As we enter the 21st Century, rates of taxation have reached oppressive levels. To statists (who seek only to expand government power), growing resentment on the part of people who work, produce wealth, and pay oppressive taxes presents a serious threat. Disarming ordinary Americans who will be called upon to pay ever higher taxes is seen by them as necessary to minimize that threat.

© 1997 Howard J. Fezell