di Laura Corti*

Even though the right to bear arms was probably a legacy of the English tradition imported to the New World, during the two centuries that separate the first settlements to the adoption of the Bill of Rights America developed its own sensibilities: the history of the right to bear arms in the US is “a history based on English tradition, modified by the American experience, and a history that was sharply influenced by the racial climate in the American colonies” (R. J. Cottrol, T. R. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration). American settlements were threatened by many dangers, and one of the biggest reasons that led them to put such emphasis on the importance of being armed was race: in fact, attacks from the indigenous population and the need to maintain social control over blacks were matters that led to the creation of an armed militia made up of white adult males.

One of the duties of the militia was to keep order among the slave population. In some colonies, the social control of slaves was one of the law’s main concerns; in others, that was a concern of the slave owners only; and in others again slaves were kept for some years only and then released as free people. These differences were reflected in the states’ statutes: for example, a Virginia Statute from 1639 required all white men to be armed, but said nothing about blacks; another statute from 1680 prohibited all blacks, even free ones, from carrying weapons, in order to maintain control over them; in early eighteenth century, blacks who were house owners and the ones at the frontier were allowed to keep guns, and this reflected Virginians’ need to use them to defend frontier plantations against Indians. Massachusetts didn’t allow blacks to participate in the militia, and neither did New Jersey, but the latter permitted free blacks to possess firearms. South Carolina had such a high number of blacks -and thus such a need to control the slave population- that in the early eighteenth century it allowed free blacks to both own arms and participate in the militia, in order to secure their assistance in controlling the slaves (these rights were, though, curtailed during that same century).

Furthermore, the different States developed a contrasting jurisprudence: on the one hand, some of them decided that the citizens could keep and bear arms only in the context of the militia, and on the other hand, other States safeguarded almost every type of weapons. It is interesting to notice that, while both northern and southern states were threatened by external enemies such as European forces and Native Americans, the threat from within, namely that posed by a large presence of slaves, was feared especially in the South. The South, because of its large population of slaves, was particularly interested in disarming the black population. It should also be noted that in many States’ antebellum constitutions there isn’t a recognized right to keep and bear arms, but there is a recognition of the importance of the militia. In particular, out of the original thirteen states, only one of them (that is Pennsylvania, since Vermont was not a state yet) decided to protect an individual rights to arms. But even though some states (for example North Carolina, Kentucky, Mississippi, Texas, Missouri) spoke in their Constitutions of a collective right to self-defence, only some of them stated that the right to bear arms was a right belonging to the people: others used the word “citizens”. And Southern states, throughout the antebellum period, did not consider blacks as citizens, as the case State v. Newsom (1844, North Carolina) proves: the Court stated that although citizens did have a right to arms, free blacks were not citizens, and were thus not entitled to this right.  It is clear how in the antebellum legislatures of the southern states, the latter were free to control blacks’ access to firearms, and elaborated a variety of measures meant to limit it. This great need to maintain white domination is thought to be the reason why guns became a part of the folkways of the South.

That distinction reflected the desire to maintain white supremacy and control over blacks: “their right to possess arms was highly dependent on white opinion of black loyalty and reliability. Their inclusion in the militia of freemen was frequently confined to times of crisis. Often, there were significant differences between the way northern and southern colonies approached this question, a reflection of the very different role that slavery played in the two regions” (R. J. Cottrol, T. R. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration). For example, in 1792, Congress passed a legislation called the Uniform Militia Act: it called for every free, able-bodied white men between the ages of eighteen and forty-five to be enrolled in the militia and to provide themself with arms. The fact that this legislation calls for white men only makes it one of the earliest federal statutes to include a racial distinction. Yet, although it is probable that the 1792 statute reflected an unrest that the revolutionary generation felt towards arming blacks and the fact that the militia was still often used to keep slaves under control, it could be interesting to note that it was common for both southern and northern states to employ free blacks in the militia, especially during times of invasion, and despite federal law. Plus, even though in the South the right to own and carry weapons was often denied to blacks, in the north usually no racial distinctions were made.

The period of the immediate post-revolutionary era was one driven by the ideal of egalitarian democracy, a time of recognition and expansion of rights. Almost all the States wrote new constitutions, and many of them defined every citizen as free and equal. Many of the constitutions also recognized a lot of rights that would later be included in the Bill of Rights, and in doing so, they made no discrimination or limitation regarding race. Yet in the South two things were especially feared: that the free blacks would set a “bad” example for the slave population, and that they might start rebellions. To face these threats, the South passed several legislatures that were meant to limit the freedom of the free blacks: limits to how many blacks could congregate, limits to the choice of employment, limits to social contacts among slaves, and finally, limits to the right to bear arms both for slaves and free blacks. Each state decided to limit (or prohibit altogether) the right to arms depending on how pressing they perceived the threat to safety to be. Usually, their statutes focused on restricting the rights of free blacks, maybe because the vigilant master was considered capable of denying arms to slaves. For example, the State of Florida in 1825 provided that white patrols could enter whenever they wanted in the houses of free blacks, search for arms, and take them away, but ironically in that same statute the right of slaves to carry weapons was expanded. Finally in 1831 Florida repealed all firearm licences’ provisions for free blacks, and six months later the Nat Turner slave revolt in Virginia made it so that the South decided to further reinvigorate repression. In the North, on the other hand, racism manifested itself mainly in the form of curtailment of blacks voting rights, segregation, and other types of limitations.

In the racially hostile environment of the nineteenth century race riots and mob violence against blacks were recurrent: that situation made blacks desirous of arming themselves and forming their own militia (especially because individual action was almost always counterproductive when fighting against big white mobs). Therefore, in the antebellum period, blacks started to create private militia groups to protect their communities from racial violence: in Providence in 1821, in Boston in the 1850s, in Pittsburgh in 1839, in Philadelphia in 1835, black militia groups were formed.

Finally, when the Civil War brought an end to slavery, America was sharply divided between a North that saw former slaves as citizens and a South that wanted to preserve the antebellum social order as much as possible. Because of the desire to maintain control over blacks and to preserve the traditional labour arrangements, the South started to impose a series of legal disabilities upon the freedmen, and in 1865 and 1866 the black codes passed. Among other limitations, it was decided that blacks could not carry arms without a license.

Unfortunately, this history of violence goes on well into the following century, with Jim Crow, the Civil Rights Cases and Plessy v. Ferguson, episodes of violence in Northern cities, and the Ku Klux Klan in the South. Several black men and women were lynched, especially in the South, accused of not knowing their place. Still, they oftentimes tried to use firearms to defend themselves, as the example of the black activist Ida B. Wells-Barnett shows. And although individual actions to fight back often ended in disgrace, when blacks acted collectively they sometimes succeeded in halting lynchings and other mob violence. Therefore, they began to strongly associate firearms with the purposes of resistance and protection.

Blacks were also oftentimes engaged in the protection, as armed volunteers, of the advocates of the civil rights movement who chose nonviolence. The Deacons for Defense and Justice is a prime example of that dynamic: it was a group born in 1964 which spread in a few states, and whose goal was to protect black people from violence by using violence themselves against the attackers. They were sending a message: if whites wanted to go on with the terroristic activities against them, they had to be prepared to face resistance (a do-it-yourself type of resistance, since they were often unable to rely on the police and on the government’s protection). While the black population started to see firearms as a hedge against oppression, some states tried to prevent them from having access to arms, but mostly not out of concern for security or morality: it was a kind of gun control aimed at keeping guns away from those who were considered untrustworthy.

And yet, somehow paradoxically, it was in the South that state courts first began to consider restrictions to the right to own arms because of concerns of public safety. Of course racial control was still one of the main reasons: in the Southerners’ view, the black population posed a threat to society, it was a suspect class whose access to firearms had to be limited. But that’s not the only factor that made it so that guns were such an important part of Southern culture. Even after the War of 1812, in a period when the population’s willingness to participate in militia duties was decreasing, in the South it was still vigorous. Also, arms were still heavily involved in the resolution of disputes, and the practice of duelling was widespread among the white population. For all these reasons, southern courts started to consider limits on the right to own arms.

Many limits were imposed on blacks, and this didn’t cause many controversies. But the same cannot be said regarding the attempts to regulate and limit arms for the white population. Still, many pioneering cases in this field such as Aymette v. State and Nunn v. State ended up restricting the sale and carrying of certain types of weapons and concealed carrying. For example, in Aymette, the court held that since to carry weapons for the defence of the State is to carry them openly, and that to carry them openly was to employ them in war, prohibiting concealed weapons was within the legislature’s powers. The court also drew a distinction between weapons suited for civilized warfare and those which were not. Hence it was in the South, the part of America with the strongest attachment towards the tradition of bearing arms, that legislators and jurists began to place limits.

This tendency continued after the Civil war, when union forces were occupying the South. There were mostly two types of constitutional changes regarding the right to bear arms: in some states there was an initial contraction of the right, followed by an expansion on a non-racial basis; in other states, instead, there was an initial expansion of the right on a non-racial basis, followed by many non-racial restrictions. Yet, many scholars have expressed their doubts regarding these events: given the South’s history of discrimination and resistance to racial equality, often expressed in racially oriented firearms restrictions, these contractions of the right to arms look suspicious to them. Southerners knew, after the Civil War, that obvious measures to maintain supremacy over blacks would violate the Fourteenth Amendment, and it is for this reason that they were not explicit in their constitutions regarding discriminations against blacks. For some scholars, cases such as Nunn v. State and Aymette v. State were part of a strategy: they determined that the right to arms was not absolute, and made it possible for a state to restrict certain weapons. Hence, whereas these cases where mostly implemented out of legitimate and genuine concerns for issues of safety, violence, crime, and inappropriate conduct, they might have had an ulterior motive, born out of concerns regarding the carrying of weapons by black citizens.

In any case, as previously stated, during the first half of the twentieth century -during which the Jim Crow laws were in place- more and more blacks were using firearms to defend themselves as a reaction to racial violence. The history of the Black Panthers shows once again how the issues of firearms’ possession and racial tensions have always been closely linked.

The Black Panther Party for Self Defense was founded in 1966, in California, by Huey Newton and Bobby Seale. By that year, many black people had grown frustrated with the civil rights movement led by Dr. Martin Luther King Jr. and his strategy of nonviolent resistance. White supremacists made sure to give them the hardest time possible, and their economic conditions were not improving, even after all the peaceful protests and the victories at the Supreme Court; hence, a series of riots began. On top of that, the police were oftentimes on the side of the Klan. Because of this, people such as Malcom X preached that, since the government seemed disinterested in their safety, black people should take matters into their own hands and defend themselves “by whatever means necessary”. The Black Panthers took upon themselves Malcom X’s legacy: they believed that black people had to defend themselves, no matter how, no matter through what means. And they began to quote the Second Amendment, like Malcom X used to do, to prove that they had a right to use guns in self-defence. Therefore Newton and Seale chose a panther -a fierce animal who will surely attack if backed into a corner- as a symbol, and they taught their recruits the importance of guns for black people: in a time when the world seemed to be their enemy, guns were their only allies. Newton made sure that his recruits knew how to use them, and the Panthers started to carry their guns in public, for everyone to see.

For instance, during the infamous incident of Oakland, in 1967, Newton and other Panthers were spotted by the police while they were carrying guns in a car. In front of a crowd, Newton refused to hand over his gun, explaining to the police that what he was doing was not illegal: in California, it was perfectly legal to go around with a firearm in display (it was only illegal to conceal carry it). He threatened to shoot back if the police shot at him, and the police let him go; meanwhile a large crowd had gathered around the group, and watched the less-than-a-year-old organization change the relationship between blacks and the police.

Even more infamous is the episode of the Capitol: the Panthers’ goal was to go inside the building, declare that blacks were no longer subjects, and demand for their rights -especially their right to keep and bear arms- to be respected. Actually, the very reason why they decided to go there in that specific moment was that Don Mulford, a conservative republican who was dedicated to fighting radicals, wanted to introduce a legislation to outlaw the open carrying of firearms in cities. Mulford wanted to put an end to the Panthers’ armed police patrols, and he was at the Capitol to try and make that law pass. Hence, the Panthers showed up, armed, to send a message to California lawmakers about their opposition to Mulford’s law, which they believed to be designed to keep black people disarmed. No shots were fired, but many camera crews captured the whole event. The consequences of this act were twofold: whites were horrified and called for the government to take action, while blacks were ecstatic and joined the Black Panthers en masse.

Many people at the time thought that the Panthers’ actions were only going to speed the enactment of Mulford’s bill: in fact, more and more people were starting to be scared of them. And Mulford wasn’t the only republican speaking in favour of strict gun control: Reagan strongly supported that law too, and he even commented the Capitol episode saying that guns were a “ridiculous way to solve problems that have to be solved among people of good will”. Less than three months later (1967), Governor Reagan signed the Mulford Act into law, which ended the Panthers’ armed police patrols. In that year the leadership of the Panthers fell to Eldridge Cleaver, who was in favour of using arms not only for self-defence, but to actively attack and hunt down police officers. At that point, the FBI itself started to use lawless tactics to fight and disarm the group at all costs.

However, it’s clear how the Black Panthers and other similar movements of that period changed the history of gun regulation: it was the very fear that they instilled in the white American population that inspired some of the strictest gun control laws in American history.


  • J. Cottrol, Hard Choices and Shifted Burdens: American Crime and American Justice at the End of the Century, The George Washington Law Review, Washington D.C., 1997
  • J. Cottrol, R. T. Diamond, “Never Intended to Be Applied to the White Population”: Firearms Regulation and Racial Disparity – the Redeemed South’s Legacy to a National Jurisprudence?, Chicago-Kent Law Review, Chicago, 1995
  • J. Cottrol, R. T. Diamond, In the Civic Republic: Crime, the Inner City, and the Democracy of Arms – Being a Disquisition on the Revival of the Militia at large, Connecticut Law Review, Hartford, 2013
  • J. Cottrol, R. T. Diamond, The Second Amendment: Toward an Afro-American Reconsideration, The Georgetown Law Journal, Washington, 1991
  • Winkler, Gunfight: The Battle Over the Right to Bear Arms in America, W. W. Norton & Company, New York, 2011

* Laureata in Relazioni internazionali presso il Dipartimento di Studi internazionali, giuridici e storico-politici, Università degli Studi di Milano.

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