The Civil Rights and Freedmen's Bureau Acts and the Proposal of the Fourteenth Amendment

That No Freedman Shall Keep or Carry Firearms: The Black Codes as Badges of Slavery

NUMEROUS ANTEBELLUM commentators interpreted the Second Amendment as guaranteeing an individual right to keep and bear arms free from both State and federal infringement. In his famous criminal law commentaries, Joel P. Bishop wrote in 1865:

The constitution of the United States provides, that, "a well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." This provision is found among the amendments; and, though most of the amendments are restrictions on the General Government alone, not on the States, this one seems to be of a nature to bind both the State and National legislatures.

Yet Bishop's references to State "statutes relating to the carrying of arms by negroes and slaves" and an "act to prevent free people of color from carrying firearms" exemplified the need for a constitutional guarantee to protect the rights of all persons, regardless of race, to keep and carry firearms. After the Civil War, these slave codes, which limited the access of blacks to land, firearms, and the courts, began to reappear as "black codes." Congress quickly turned its attention to these efforts to reenslave the freedmen.

E.G. Baker, a white Mississippi planter, wrote a letter to members of the State legislature on October 22, 1865, warning of a possible negro insurrection. He added: "It is well known here that our negroes through the country are well equipped with fire arms, muskets, double barrel shot guns & pistols, — & furthermore, it would be well if they are free to prohibit the use of fire arms until they had proved themselves to be good citizens in their altered state." Forwarding a copy of the letter to the Union commander in Northern Mississippi, Governor Benjamin G. Humphreys warned that "unless some measures are taken to disarm [the freedmen] a collision between the races may be speedily looked for."

White fears of armed ex-slaves led to the quick enactment of the 1865 Mississippi "Act to Regulate the Relation of Master and Apprentice Relative to Freedmen, Free Negroes, and Mulattoes." In addition to prohibiting seditious speeches and unlicensed preaching by freedmen, the statute contained a firearms prohibition that would serve as a model for the black codes of other Southern States:

Section 1. Be it enacted, ... That no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie-knife, and on conviction thereof in the county court shall be punished by fine, not exceeding ten dollars, and pay the costs of such proceedings, and all such arms or ammunition shall be forfeited to the informer; and it shall be the duty of every civil and military officer to arrest any freedman, free negro, or mulatto found with any such arms or ammunition, and cause him or her to be committed to trial in default of bail....

Section 3. ... If any white person shall sell, lend, or give to any freedman, free negro, or mulatto any fire-arms, dirk or bowie-knife, or ammunition, or any spirituous or intoxicating liquors, such person or persons ... shall be fined not exceeding fifty dollars, and may be imprisoned, at the discretion of the court, not exceeding thirty days....

Section 5. ... If any freedman, free negro, or mulatto, convicted of any of the misdemeanors provided against in this act, shall fail or refuse for the space of five days, after conviction, to pay the fine and costs imposed, such person shall be hired out by the sheriff or other officer, at public outcry, to any white person who will pay said fine and all costs, and take said convict for the shortest time.

Two weeks after the Mississippi prohibition passed, Calvin Holly, a black private assigned to the Freedmen's Bureau in Mississippi, wrote to Bureau Commissioner O.O. Howard, relating in his letter an article in the Vicksburg Journal about an incident involving blacks with a gun, and noting that "they was forbidden not to have any more but did not heed." "The Rebbles," Holly warned, "are going about in many places through the State and robbing the colored people of arms[,] money and all they have and in many places killing." Holly continued: "They talk of taking the arms away from (col[ored]) people and arresting them and put them on farms next month and if they go at that I think there will be trouble and in all probability a great many lives lost."

When the 39th Congress convened in December 1865, Republican leaders quickly sought to establish committees charged with the task of drafting protections for the freedmen. On December 6, the House resolved that the Speaker appoint a Select Committee on Freedmen. A few minutes later, Representative John A. Bingham, an Ohio Republican, introduced a joint resolution to amend the Constitution "to empower Congress to pass all necessary and proper laws to secure to all persons in their rights, life, liberty, and property. ..." Bingham's bill would become, of course, the Fourteenth Amendment.

The House Select Committee on Freedmen consisted of Thomas D. Eliot of Massachusetts, William D. Kelley of Pennsylvania, Godlove S. Orth of Indiana, John A. Bingham of Ohio, Nelson Taylor of New York, Benjamin F. Loan of Missouri, Josiah B. Grinnell of Iowa, Halbert E. Paine of Wisconsin, and Samuel S. Marshall of Illinois. John Bingham would author § 1 of the Fourteenth Amendment. Other significant committees were the Senate Judiciary Committee, chaired by Lyman Trumbull of Illinois, and the House Judiciary Committee, chaired by James F. Wilson of Iowa.

On December 12, the Senate concurred with a House resolution to appoint a Joint Committee of Fifteen to investigate the condition of the Southern States. This committee would later hear extensive testimony on the violations of freedmen's rights, and eventually drafted the Fourteenth Amendment.

The enactment of the black code provisions prompted initiation of civil rights legislation that culminated in the proposal of the Fourteenth Amendment. Among the first proposals was S. 9, which declared as void all laws or other actions by the rebel States "whereby or wherein any inequality of civil rights and immunities among the...