Cruikshank, Colfax and how the Court left freedmen disarmed in 1876

On Easter Sunday, April 13, 1873, in the small Louisiana town of Colfax, dozens of Black men who had surrendered or been cornered were killed by an armed white mob. A federal prosecution followed. Three years later, the Supreme Court threw out the convictions, and in doing so wrote a sentence about the Second Amendment that would shelter the next century's disarmament of Black Americans in the South.

This is not a pleasant story, and I will not tell it lightly. But it is one of the most important stories in the history of the right to arms, because it shows who loses when the courts say a constitutional right protects no one against anyone but Congress.

The setting: Louisiana after the war

The Civil War ended in 1865, and the Thirteenth Amendment abolished slavery that year. The Fourteenth Amendment, ratified in 1868, made the freedmen citizens and forbade any state to abridge the privileges or immunities of citizens, to deprive any person of life, liberty or property without due process, or to deny equal protection of the laws. The Fifteenth, in 1870, protected the right to vote. Congress then passed the Enforcement Act of May 31, 1870, to make the amendments real: it made it a federal crime for two or more persons to conspire to injure, oppress, threaten or intimidate any citizen in the free exercise of a right secured by the Constitution or laws.

The reason was plain. Across the former Confederacy, white supremacist groups, the Ku Klux Klan chief among them, used terror to deprive Black citizens of the vote and, as the Black Codes had earlier done by statute, of the means of defending themselves. The story of those codes and what the Fourteenth Amendment's framers said about arms is told in Black Codes, the freedmen and the Fourteenth Amendment's right to bear arms. The framers of the amendment knew that a freedman who could not keep a firearm was a freedman who could not protect his family, his vote or his life.

The Colfax massacre

Louisiana's 1872 election for governor was bitterly disputed. Both Republican and Democratic candidates claimed victory, and rival governments were set up. The fight reached the local level in Grant Parish, where the parish seat was a village called Colfax. Control of the courthouse at Colfax was at stake. Black Republican officials and their supporters, many of them Black militiamen and freedmen, took up a defensive position at the courthouse in early April 1873, after reports that armed white men were gathering.

On Easter Sunday, April 13, a force of armed white men, many of them organized as a paramilitary posse, attacked. The defenders were overwhelmed. Many were killed in the fighting, and a number were shot after they had surrendered. Estimates of the dead run from about sixty to more than a hundred and fifty, almost all of them Black. The exact number is disputed because bodies were thrown into the river or buried in unmarked graves, and the records are incomplete. Historians regard it as one of the bloodiest single incidents of the Reconstruction era.

The prosecution

The federal government responded. Federal prosecutors charged a number of the white attackers in the federal court in New Orleans under the Enforcement Act of 1870, using its conspiracy provision. The indictment ran to thirty-two counts, repeating a set of sixteen charges in two forms, and the counts charged the defendants with conspiring to deprive Black citizens of rights secured by the Constitution and laws: the right to peaceably assemble, the right to bear arms for a lawful purpose, the right not to be deprived of life or liberty without due process, equal protection, and the right to vote.

Notice that "right to bear arms" was one of the counts. The prosecutors thought the Second Amendment, as incorporated through the Fourteenth, protected the freedmen against this kind of attack. At trial, three of the defendants were convicted under some of the counts, and the question of the statute's constitutionality went up to the Supreme Court as United States v. Cruikshank, named for one of the defendants, William Cruikshank.

The Court's decision came on March 27, 1876, in an opinion by Chief Justice Morrison Waite.

What Cruikshank held

The opinion was complicated and, in large part, technical. Waite held that the indictment was legally deficient. But the sentences that echoed were about the Bill of Rights.

On the right to assemble, Waite wrote that the right was not a creation of the Constitution, and that the First Amendment restrained only Congress. Then, on arms:

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Look at the logic. The Second Amendment protects a pre-existing right, which exists apart from the Constitution. That part is a statement a Founding scholar would nod at. But the second half is the knife: the Amendment restrains only Congress. A private mob, or a state, or a county sheriff, was not restrained by it. The federal government, under the Enforcement Act, could not protect the freedmen's right to arms against such people, because the right was not a federal right in that sense. Protection for the right, the Court said, belonged to the states, and the states were the ones failing to provide it.

The Court also held that the indictment did not allege that the defendants acted because of the victims' race, and that the Fourteenth Amendment guaranteed only against state action, not against the actions of private persons. Taken with the Slaughter-House Cases, decided on April 14, 1873, the day after Colfax, which sharply narrowed the Fourteenth Amendment's Privileges or Immunities Clause, the decision left federal power to protect the freedmen thin.

The results were swift. The convictions were set aside. The men who had been charged went free. And the federal government's effort to use the Enforcement Act against organized racial violence in the South lost its strongest legal basis.

Presser and Miller v. Texas

Two later cases applied the reasoning.

Presser v. Illinois (1886) involved a man indicted under an Illinois law that forbade bodies of men, other than the organized militia, to associate as military companies or to drill or parade with arms in cities and towns without the governor's license. The Court rejected his Second Amendment defense, holding that the Amendment was a limit on the national government and that the state could regulate private military companies. The Court did add, in the same opinion, that the states could not prohibit the people from keeping and bearing arms in a way that would deprive the United States of their services for the public defence. But the main holding, that the Amendment did not bind the states, was applied again.

Miller v. Texas (1894) followed the same path. A man convicted of murder in Texas argued that a state law on the carrying of weapons, and the arrest procedure under it, conflicted with the Second and Fourth Amendments. The Court held that the Amendments did not apply to the states and, because the argument had not been raised below, declined to consider whether the Fourteenth Amendment changed the answer.

Together, the three cases built a wall: the Second Amendment, in the Court's view, did not constrain state governments. In the Reconstruction South, where state governments and local sheriffs were often the source of the danger, that wall had grim practical effects. Black citizens who tried to keep arms for protection met state and local laws designed to prevent it, enforced by officials who were often the very people they needed protection from. The Court had said the federal courts could not help.

The strongest objection, stated fairly

Here is the best defense of the Cruikshank Court. The Justices, the argument goes, were applying the law as it stood. In 1876, the Bill of Rights had been understood since Barron v. Baltimore (1833) to bind only the federal government. The Fourteenth Amendment was less than eight years old, and the question of whether it extended the Bill of Rights to the states had not been decided. The Court was cautious about federal power over local crime, and there were serious federalism concerns about letting the national government prosecute every assault under a conspiracy statute. The indictment was, as a matter of pleading, defective. It is easy to condemn the result in hindsight, but a judge in 1876 who read the Constitution as a document of limited federal powers was doing his duty.

That is a respectable argument in part, and I want to give it its due. Federalism is a real principle and I would defend it. The indictment problems were real. And the Court did not say that Black citizens had no right to arms; it said the right existed independently and was not a federal matter in that case.

But the argument fails for three reasons.

One. The Fourteenth Amendment was written to change the answer. The men who drafted and passed it in the 39th Congress said, repeatedly, that it was meant to secure the rights of the Bill of Rights against state infringement, with the freedmen's right to keep arms specifically in view. Senator Jacob Howard, introducing the amendment in 1866, listed the personal rights guaranteed by the first eight amendments, including the right to keep and bear arms, among the privileges or immunities of citizens that the amendment would protect. A Court that read the Fourteenth Amendment as leaving Barron in place was refusing to hear what its authors had said.

Two. The Court narrowed the very clause that mattered. Slaughter-House (1873) had gutted the Privileges or Immunities Clause, the natural home for the incorporation of the Bill of Rights, and the Court then left that clause shut up like a spare room for well over a century. By holding next that the Second Amendment did not apply to the states, Cruikshank completed the work.

Three. The consequences were not accidental. The Court said that protecting the freedmen was a state matter and the states in question were the ones refusing. A principle of federalism that leaves a citizen at the mercy of the government that will not protect him is not federalism at its best. It is abdication wearing a robe.

I want to say one more thing as a conservative. Nobody on our side should be tempted to treat this case as a problem for the left only. The states'-rights argument, which I defend where it belongs, was used in this case to cover for a failure to protect the weakest. A principle must be tested against its worst application, and this was one of them.

The long road to McDonald

The wall built in the 1870s and 1890s stood for a very long time, though it did not stand untouched. In the twentieth century, the Supreme Court gradually "incorporated" most of the Bill of Rights against the states through the Due Process Clause of the Fourteenth Amendment: freedom of speech, freedom of the press, the free exercise of religion, protection against unreasonable searches, the right to counsel, and many more. The Second Amendment was left behind, partly because of Cruikshank and Presser, partly because the Court had not squarely addressed the amendment for years and was uncertain what to make of it.

That changed in two steps. In District of Columbia v. Heller (2008), the Court held that the Second Amendment protects an individual right, in a case involving the federal enclave of the District of Columbia, so the incorporation question did not arise. Then came McDonald v. City of Chicago (2010). Chicago had a handgun ban much like the one struck down in Heller, and the question was whether the Second Amendment bound the states.

The Court said yes. Justice Alito's opinion, parts of it for a majority of five and parts for a plurality of four, held that the right to keep and bear arms for self-defense is fundamental to the American scheme of ordered liberty and deeply rooted in the nation's history and tradition, and so is incorporated through the Due Process Clause. The opinion discussed the history of Reconstruction at length, the Black Codes, the disarming of freedmen and the framers of the Fourteenth Amendment's concern with the right to arms. Justice Thomas, concurring in part and in the judgment, reached the same result by another route: he would have used the Privileges or Immunities Clause, the clause that the Slaughter-House Cases had nearly erased, and which Congress had intended for exactly this purpose.

In other words, in 2010 the Court finally did what the framers of the Fourteenth Amendment had meant it to do in 1868. It took 142 years. And the McDonald opinions went back to Colfax and the Black Codes to explain why the original reading of Cruikshank had been a mistake. That is an honorable bit of constitutional repair, though it came far too late for the people of Grant Parish.

What this means for a family

The lesson is not that the Court should always side with federal power. The lesson is that a right which binds only the distant national government is a right that ordinary people cannot rely on, and that the rights of the vulnerable depend on who is bound by the Constitution. The freedmen of Louisiana did not fear Congress. They feared the people in their own county.

That is why the incorporation of the Second Amendment matters. A person in Chicago or New York or New Orleans today has a constitutional claim against state and local arms restrictions because of the Fourteenth Amendment. It is worth remembering what that claim cost, and who first needed it. For more on the original-meaning argument from the other direction, Justice Stevens's Heller dissent, stated fairly and answered point by point gives the best case for a narrower reading, and ninety years of federal gun law in the dates that changed the rules follows the statutes that came later. The site's courts page explains how cases like these reach the Supreme Court.

The case in brief

1. On April 13, 1873, at Colfax, Louisiana, an armed white mob killed a large number of Black men in a dispute over local control, and federal prosecutors charged the attackers under the Enforcement Act of 1870.
2. In United States v. Cruikshank (March 27, 1876), Chief Justice Waite held that the right to bear arms did not depend on the Constitution and that the Second Amendment restrained only Congress, so the convictions failed.
3. Presser v. Illinois (1886) and Miller v. Texas (1894) kept the wall in place against the states.
4. The Fourteenth Amendment's framers had meant to protect the freedmen's arms against the states, and Slaughter-House and Cruikshank together denied them that.
5. McDonald v. City of Chicago (2010) held the Second Amendment incorporated against the states, and its opinions explained why the Reconstruction record had been ignored.

What you can do: read the Second Amendment and Section 1 of the Fourteenth Amendment side by side, then ask whether your state or city's gun rules would pass the test McDonald set.