Academic

Lane on Heller & the Second Amendment

By Lawrence Solum

Charles Lane has an op/ed in the Washington Post entitled To Keep and Bear Arms.  Here is a taste:

Before the Civil War, gun ownership was a prerequisite not only of militia service but also of participation in sheriffs' posses and for personal defense. But it was a right for whites only. Southern states forbade slaves to own guns, lest they revolt. (Free blacks, in the North and South, could sometimes have guns under tight restrictions.) After the Civil War, the same Congress that made African Americans citizens through the 14th Amendment considered the antebellum experience and concluded that equal access to arms was a necessary attribute of blacks' new status.

The Freedmen's Bureau Act of 1866 promised that "personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens." This was no theoretical concern. As senators noted during the debate on the bill, many Southern states sought to reimpose legal bans on gun ownership by blacks -- leaving them at the mercy of Klansmen and other white terrorists.

Nowhere was the need for black access to weapons more clearly demonstrated than at Colfax, where freedmen rallied -- shotguns in hand -- to defend their local elected officials from heavily armed whites led by ex-Confederate officers. They were also reacting to the murder of an unarmed black farmer. The black men, supporters of Abraham Lincoln's Republican Party, acted as a posse sworn in by a (white) Republican sheriff. But after a standoff of several days, they were overwhelmed by the white force, which had not only rifles but also a small cannon.

The Colfax massacre and the infamous Supreme Court decision in Cruikshank are the Subect of Lane's book, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction, which I highly recommend.

Full post as published by Legal Theory Blog on March 22, 2008 (boomark / email).