Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms

Here is a sentence you will not hear at many seminars on gun policy: the first modern gun control laws in the American South were written to keep freed slaves defenseless. That is not a slogan. It is the record, it sits in the statute books of 1865, and the Congress that answered those laws wrote the answer down in plain English.

The history matters because it settles an argument that people on the other side like to treat as open. They say the Second Amendment is an eighteenth-century leftover about militias. The men who framed the Fourteenth Amendment in 1866 did not think so. They thought the right to bear arms was a civil right, so important that its denial to Black Americans was proof the old order had not really ended. Let's walk through it in order.

The terms, and the claim

Two definitions first. A Black Code was one of the bodies of state law passed by the former Confederate states in 1865 and 1866 to control the lives, labor and movement of the freed slaves after the Thirteenth Amendment ended slavery. A freedman was a person freed from slavery. The right to bear arms here means what the Second Amendment says it means, an individual right that existed before the Constitution and is protected by it.

My claim is simple, and I will argue it in steps. When the South tried to disarm Black citizens, Congress treated the disarmament as a deprivation of a constitutional right, and it passed two measures, the Freedmen's Bureau Act of 1866 and the Fourteenth Amendment, that were understood to protect that right against the states. The history is not a footnote to the Second Amendment. It is one of the strongest pieces of evidence for what that right is.

What the Black Codes were

The Civil War ended in the spring of 1865. The Thirteenth Amendment, abolishing slavery "except as a punishment for crime whereof the party shall have been duly convicted," was ratified in December of that year. Most of the Southern states had by then reorganized their governments under President Andrew Johnson's lenient terms, and the first thing several of those governments did was legislate on the status of the people they had just been forced to free.

The result was a patchwork of laws with a common design. Vagrancy statutes allowed a man without proof of a labor contract to be arrested and hired out. Apprenticeship laws let courts bind Black children to former masters. Rules on contracts, testimony, land ownership and travel were written to keep the freedman a laborer and nothing else. The word "freedom" survived on paper while its content was hollowed out.

Mississippi's code of November 1865 is the clearest example. One of its statutes provided that a freedman, a free Black man or a person of mixed race who was not in the military service of the United States could not keep or carry firearms of any kind, or ammunition, or a dirk or bowie knife. The penalty was forfeiture of the weapons for the benefit of the informer, plus a fine, and a failure to pay meant the offender could be hired out to pay it. Read that last clause twice. A man was disarmed, fined for being disarmed, and then put to work for whoever paid the fine.

Other states used other devices. Some required Black residents to obtain a license or permission from a local authority before they could keep a gun, a system that in practice meant a white official could say no. Some local ordinances simply forbade it. The details varied by state, and I would send you to the session laws of each state to read the specific words. The pattern did not vary. Where whites could own and carry weapons freely, Black residents could do so only by leave, or not at all.

Why they did it

The reason is not mysterious, and the people who wrote the codes did not hide it from their own constituents. A population that cannot defend itself cannot resist a labor system, a vagrancy arrest or a night visit. An armed freedman was a citizen who could say no. In a region where the old plantation order wanted to survive under new names, that was the one thing the law could not allow.

The Black Codes also had a history behind them. Slave codes before the war had forbidden slaves to carry arms, and the arms restrictions of 1865 carried that tradition forward. In Dred Scott v. Sandford (1857), Chief Justice Roger Taney argued that if Black Americans were citizens, they would have the right to hold public meetings, to speak freely and "to keep and carry arms wherever they went." Taney meant the observation as a reductio, a proof that Black people could not be citizens, because the consequences were unthinkable to him. Notice what the worst Chief Justice in the Court's history took for granted: that citizenship carried the right to keep and carry arms. The framers of the Fourteenth Amendment took him at his word and made the citizenship real.

The Northern reaction

Northerners watched the codes arrive and drew the obvious conclusion. The Joint Committee on Reconstruction, which Congress created in December 1865, took testimony on conditions in the South, and the Republican majority came to see the codes as an attempt to reverse the verdict of the war by other means. Federal officers in the South, including agents of the Freedmen's Bureau, sent reports on conditions there.

The Freedmen's Bureau Act of 1866

The Freedmen's Bureau had been created in March 1865 to assist the former slaves. In 1866 Congress passed a bill to extend and expand it. President Johnson vetoed the first version in February. Congress passed a second bill, and Johnson vetoed that too. On July 16, 1866, Congress overrode the veto and the Freedmen's Bureau Act became law.

Section 14 of that act is the passage that concerns us. It protected the "full and equal benefit of all laws and proceedings concerning personal liberty, personal security" and the rest of the rights it listed, "including the constitutional right to bear arms." Three words in that sentence deserve attention: constitutional right. Congress did not describe the right to bear arms as a privilege it was granting. It described it as something already in the Constitution, which the Black Codes were violating. The section's purpose was federal protection for those rights where state law withheld them from freedmen.

That is the first piece of evidence: the Congress of 1866 regarded the right to bear arms as an existing constitutional right, held by every citizen, and legislated against its denial.

The Civil Rights Act of 1866

Earlier that spring, on April 9, 1866, Congress had passed the Civil Rights Act of 1866 over Johnson's veto, the first major federal statute to define citizenship and to protect its rights. It declared that all persons born in the United States and not subject to a foreign power were citizens, and it guaranteed all citizens the same right "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens."

The phrase "full and equal benefit of all laws and proceedings for the security of person and property" is the hinge. A law that lets whites keep a gun for their security and denies the same to Black citizens fails that test on its face. Supporters of the act said as much in debate. The point of the act was equality under law, and equality under law is empty if the law's most basic protection, the means of defending one's own life, is available to one race only.

There was a worry, though, and it explains what came next. Opponents, and some friends of the act, doubted that Congress had the constitutional power to pass it. The Thirteenth Amendment authorized Congress to enforce the abolition of slavery. Was a federal law on contracts and property within that power? And could a later Congress, with different politics, repeal it? Republicans wanted to put the matter beyond doubt by writing it into the Constitution itself.

The Fourteenth Amendment

The Fourteenth Amendment was proposed by Congress in June 1866 and ratified on July 9, 1868. Section 1 reads in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When Senator Jacob Howard of Michigan introduced the amendment in the Senate on May 23, 1866, on behalf of the Joint Committee on Reconstruction, he explained what the Privileges or Immunities Clause would protect. He pointed to the rights listed in Article IV and then said that to these should be added the personal rights guaranteed by the first eight amendments to the Constitution. He named several, among them freedom of speech and of the press, and he included "the right to keep and to bear arms."

Then he said what the clause was for. Those first eight amendments, in 1866, restrained only the federal government. As Chief Justice John Marshall had held in Barron v. Baltimore (1833), the Bill of Rights did not bind the states. Howard said that the amendment would change that: it would impose a restraint on the states that the first eight amendments had imposed on the federal government. In his words, the first section's object was "to restrain the power of the states and compel them at all times to respect these great fundamental guarantees."

I would encourage you to read the speech itself in the Congressional Globe rather than rely on my summary. The important points are not in doubt. A Republican senator told the Senate that the amendment would protect the right to keep and bear arms against the states, and the amendment was ratified.

The strongest objection, stated fairly

An honest case needs an honest opponent. Here is the best form of the objection.

The Fourteenth Amendment says nothing explicit about arms. The Freedmen's Bureau Act is a statute, not a constitutional text, and it expired with the Bureau. One senator's speech is not the amendment. The debates show many other concerns: citizenship, equal protection, representation, the Confederate debt. And the Supreme Court in the Slaughter-House Cases (1873) read the Privileges or Immunities Clause so narrowly that it never did what Howard described. If the clause did not incorporate the Second Amendment then, it should not now.

There is some truth in every sentence of that. Let me answer it in numbered points.

1. The statute and the amendment came from the same Congress in the same summer. The Freedmen's Bureau Act became law over Johnson's veto on July 16, 1866, about a month after the Fourteenth Amendment was sent to the states. When the people who wrote the amendment told the country at the same moment that the right to bear arms was a constitutional right belonging to every citizen, one can reasonably read the amendment in that light.
2. The speech was not idiosyncratic. Howard was presenting the amendment on behalf of the committee that wrote it, and the list he read came from the first eight amendments, not from his own invention.
3. The ratifying public knew the context. The people of the loyal states had watched the Black Codes arrive. Congress presented the amendment as a remedy for those codes. A remedy that left the codes' gun restrictions in place would have been no remedy.
4. The Supreme Court's later narrowing of the clause is a separate matter. Slaughter-House (1873) and United States v. Cruikshank (1876) are the decisions that gutted the clause in practice, and I have written elsewhere about Cruikshank, Colfax and how the Court left freedmen disarmed in 1876. The failure of those cases to honor the text tells us something about the courts of that era. It does not tell us what the framers meant.
5. The Court did eventually incorporate the right. In McDonald v. City of Chicago (2010), the Supreme Court held that the Fourteenth Amendment makes the Second Amendment right applicable against the states. The plurality, written by Justice Alito, relied on the Due Process Clause, and its account of the history discussed the Black Codes, the efforts to disarm freedmen and Section 14 of the Freedmen's Bureau Act. Justice Thomas, concurring, argued that the better home for the right is the Privileges or Immunities Clause, where Howard put it.

You do not have to agree with every doctrinal step to see the point. The generation that wrote the Fourteenth Amendment regarded the right to bear arms as fundamental, and it regarded its denial to freedmen as a central evil the amendment was meant to cure.

What the codes teach about gun control

Now the moral argument, which is the one I care about most.

It is fashionable to say that the right to bear arms is for people who want to play soldier, and that the people who most need protection can rely on the police. The Reconstruction South is the case study that destroys this idea. The freedmen could not rely on the police, because in many places the police, the sheriff and the local militia were the people from whom they needed protection. In the years after the war, as the Enforcement Acts of 1870 and 1871 and the Ku Klux Klan Act acknowledged, terror groups operated across the South to suppress Black voting and Black independence. Federal law was passed to meet that terror because local law would not.

Think of what that means for a Black family in a rural county in 1866. The nearest federal officer might be a day away. The local officers might be sympathetic to the night riders or might be among them. The law that disarmed the family was a law the family had no vote on making. The family's best chance was to be able to protect itself, and the Black Codes were designed to take that chance away. This was not a side effect. It was the point.

The same logic reappeared in the twentieth century. During the civil rights era, groups such as the Deacons for Defense and Justice, formed in Louisiana in 1964, armed themselves to protect civil rights workers and Black communities from Klan violence when local authorities would not. And discretionary carry-permit regimes, in which an official decides who may have a gun, were applied for decades with predictable results. I have no need to indict every modern gun law as racist, and I will not. The point is narrower and harder to dodge: gun control has often been aimed at the people who most needed protection, and the burden always falls on the weakest and most threatened.

That is a moral argument, not a legal one, and I will stand on it. A government that takes the means of self-defense from a person while failing to protect that person has done a wrong, and the wrong is greatest when the person is vulnerable and the threat is real. Reconstruction Americans understood this. They did not need a seminar.

None of this means every modern gun law is a Black Code. A background-check statute is not a vagrancy law, and it is lazy to pretend otherwise. The Second Amendment case does not require anyone to say so. It requires only that the right be treated as the Reconstruction Congress treated it, as a right of the people and a right of every citizen, which governments may regulate within limits but may not make the privilege of the favored. Whether a given modern rule respects that principle is a question for the courts and the voters, case by case. I have tried in other posts to give the other side its due, including on Justice Stevens's Heller dissent, stated fairly and answered point by point and on what The right of the people means the same thing in the First, Second and Fourth means by the words "the people."

What the Founders and the Reconstruction framers shared

The founders thought an armed citizenry was a check on tyranny, and Madison said so in Madison's Federalist 46 and the advantage of being armed that tyrants fear. The Reconstruction framers applied that idea to the people the founders had left out, and the antebellum judges had already read the right as personal, as Bliss, Nunn and the antebellum judges who first read the right to bear arms shows. The Fourteenth Amendment was the Republic's attempt to keep its own promise.

The case in brief

1. The Black Codes of 1865, Mississippi's among them, barred freedmen from keeping firearms, and they did so to keep a freed people subordinate.
2. Congress answered with the Civil Rights Act of April 1866 and the Freedmen's Bureau Act of July 1866, whose Section 14 named "the constitutional right to bear arms" among the rights every citizen must enjoy equally.
3. The Fourteenth Amendment, ratified on July 9, 1868, was introduced in the Senate by Jacob Howard as a guard on the personal rights in the first eight amendments, the right to keep and bear arms among them, against the states.
4. The Court's later narrowing of the amendment, in Slaughter-House and Cruikshank, was a retreat from the text, and McDonald (2010) took the right seriously again.
5. The moral lesson is that gun control has too often fallen on the vulnerable, and a right that matters most to those who are least protected is not a privilege to be rationed.

What you can do: read Section 1 of the Fourteenth Amendment and Section 14 of the Freedmen's Bureau Act of 1866 side by side on Congress.gov or in the Statutes at Large, then check how your own state's carry-permit rules are administered.