To Keep and Bear Arms (Washington Post)

By Charles Lane
Saturday, March 22, 2008; A13

Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history. On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse. By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death. Most were killed after they had surrendered.

Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history. Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them to vote. And, to clarify blacks' newly secured freedom, Congress wrote laws identifying the specific rights of individual U.S. citizens. One of these was the right to have guns.

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.

New Orleans-based U.S. Attorney James R. Beckwith charged the perpetrators under an 1870 federal law that made it a crime to conspire "to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States." Among the rights that the white paramilitaries had conspired to violate, according to Beckwith's indictment, was the freedmen's "right to keep and bear arms for a lawful purpose." This indictment was similar to others filed by federal prosecutors across the South -- where forcibly disarming freedmen was a common Klan offense.

No one was ever punished for the Colfax Massacre. Beckwith secured only three convictions, and they were later overturned by the Supreme Court in one of the worst miscarriages of justice in American history. Yet Chief Justice Morrison R. Waite's opinion accepted Beckwith's invocation of the freedmen's individual right to be armed. Waite's objection was that the Second Amendment protected that right against violation by Congress, not by private parties such as the paramilitaries at Colfax. Thus, only a state, not the federal government, could criminalize the conspiracy that Beckwith charged.

Firearms pose threats to modern-day urban dwellers -- crime, suicide, accidents -- that may outweigh any self-defense they provide. Unlike 19th-century rural Americans, we can call on professional police.

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons. To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.
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Charles Lane, a member of the editorial page staff, is the author of "The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction." His e-mail address islanec@washpost.com.