Info Brief: Second Amendment—Text and History: The Second Founding

Our second set of stories brings us to the Civil War, Reconstruction, and (what many scholars refer to as) our nation’s “Second Founding.”

So, how did the Civil War, Reconstruction, and the Second Founding transform debates over the Second Amendment and the right to keep and bear arms? And specifically, why were gun rights so important to African Americans in the South following the Civil War?

After the Civil War, white Southerners passed new laws—the Black Codes—which discriminated against African Americans and tried to impose the conditions of slavery on them again. As part of this move, these Black Codes tried to take away their arms.

In response to the Black Codes, Frederick Douglass argued that we needed national action to protect African American rights: “The black man has never had the right either to keep or bear arms; and the legislatures of the states will still have the power to forbid it.” For Douglass, the national government had to step in to protect this key right.

And here are the words of a convention of African Americans in South Carolina: “We, the people of the State of South Carolina, in Convention assembled, . . . ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed . . . that the late efforts of the Legislature of this state to pass an act to deprive us of arms be forbidden, as a plain violation of the Constitution.”

At the same time, the national army (victorious in the Civil War) became a symbol for many Americans—not of tyranny or repression—but of liberty. And private militias—associated with groups like the Ku Klux Klan, which were formed after the Civil War—became a symbol of violence against African Americans. Of course, this turned the Founding-era debate over standing armies on its head. White violence against African Americans led them to embrace gun rights as a means of protecting themselves, their homes, their families, their friends, and their neighbors. It’s no wonder that the Reconstruction Congress was especially concerned that the right to keep and bear arms be protected in order to enable African Americans to protect themselves from violence.

The Reconstruction Congress built new protections for African American gun rights into landmark laws like the Civil Rights Act of 1866.

Senator Lyman Trumbull specifically targeted a Mississippi law banning African Americans “from having fire-arms.”

Or look at the Freedman’s Bureau Act, which affirmed that “laws . . . concerning personal liberty [and] personal security . . . including the constitutional right to bear arms, shall be secured to and enjoyed by all citizens.”

Or consider the words of Senator Samuel Pomeroy: “If the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-leaded musket be in the hand of the occupant. . . . Every man . . . should have the right to bear arms for the defense of himself and his family and his homestead.”

Finally, when drafting and debating the Fourteenth Amendment, some Reconstruction leaders expressed concerns about protecting the rights of African Americans to keep and bear arms in order to defend themselves from Southern white violence.

In the end, the Fourteenth Amendment and these landmark laws pushed a vision of the Second Amendment as protecting an individual right to keep and bear arms—especially for African Americans in the South.

In 1892, Ida B. Wells captured the importance of this shift to the African American community: “[A] Winchester rifle should have a place of honor in every black home. . . . When the white man . . . knows he runs as great a risk of biting the dust every time his Afr[ican]-American victim does, he will have a greater respect for Afr[ican]-American life.”

The Fourteenth Amendment was ratified in 1868. In the ensuing decades, the Supreme Court would decide cases that limited its reach—including in cases like United States v. Cruikshank (1876).