Gun Control Laws in Florida – Reconstruction Style

In the 1860s, Florida had a very strict gun licensing law. Don’t be impressed: it only applied to black people.

In January 1866, the Florida legislature passed Section 12 of Chapter 1466 of the laws of Florida, providing that ownership, use or possession of “any Bowie-knife, dirk, sword, fire-arms or ammunition of any kind” required a license issued by a Judge of Probate from the county where the applicant resided. The Judge of Probate was authorized to issue the license “upon the recommendation of two respectable citizens of the county, certifying to the peaceful and orderly character of the applicant.” A violator of Section 12 was subject to losing his weapon and to standing at the pillory for one hour or a whipping not to exceed 39 stripes, or both, at the discretion of the jury. This law applied only to a “negro, mulatto, or other person of color.” Whites (at least adults) did not need any such license to possess guns.

Slaves, of course, had been barred from carrying arms. In addition, nineteenth century Florida, like many states, had gun laws that made carrying concealed weapons a misdemeanor or prohibited hunting or target shooting on Sundays. Freed blacks possessing weapons, and especially the return of US Colored Troops veterans with their arms, alarmed Southern whites. Emancipation caused white lawmakers to revisit the issue of guns.

In the view of Florida’s political leadership “the simple act of emancipation of itself” did not necessitate much improvement in the “social, legal or political status” of blacks. In the wake of emancipation, Florida’s provisional Governor William Marvin entrusted a committee, comprised of Florida Supreme Court Justice Charles H. DuPont, Leon County attorney and state assemblyman Anderson J. Peeler, and former state attorney general Mariano D. Papy, with amending or adding statutes that addressed “the altered condition of the colored race.” In other words, the committee was assigned the task of drafting “black codes” – a series of laws designed to ensure that emancipated blacks held a secondary status.

On Dec. 21, 1865, newly elected Gov. David Walker presented to the Florida legislature the black code committee’s recommendations, which took the form of an omnibus bill under the misleadingly banal title of “An Act prescribing additional penalties for the commission of offenses against the State, and for other purposes” (the “Act”). The committee’s report accompanying the Act is revealing. The drafters insisted on the right of the legislature to discriminate based on color. They invoked the Dred Scott case as precedent to contend that, even after emancipation, blacks were not citizens of the United States as that term was conceived in the Constitution. As far as the black codes themselves, the report was explicit that even ostensibly race-neutral provisions, such as allowing whipping or the pillory as an alternative punishment for all offenses otherwise punishable by fines or imprisonment, were intended to apply only to blacks and not to white perpetrators. It is surely no coincidence that the Act was introduced as a bill the same day that the legislature grudgingly passed the XIII Amendment as required by President Johnson for readmission to the Union (black code committee member A. J. Peeler voted against the emancipation Amendment).

The Act included the gun control “Section 12” mentioned above. Dupont and Peeler, who authored the majority report, realized that their gun control law was breaking new ground. To cast aside any doubt, they met the anticipated challenges head on, declaring that nothing in the Second Amendment to the U.S. Constitution barred Section 12. Bearing arms was a privilege, they wrote, not an absolute right. The black codes were built upon the belief that states had the right to discriminate among classes, such as race, regarding such privileges. The authors were not concerned with satisfying “fanatical theorists” on the gun-rights issue; they had more important concerns: the “protection of our wives and children from threatened danger, and the prevention of scenes which may cost the extinction of an entire race.” [Proceedings of Florida House of Reps., Dec. 22, 1865, pp. 60-64.].

The Act moved through the House, with a second reading on Jan. 2, 1866, and it passed by 43 to 2 on Jan. 4, 1866. Unfortunately, the House’s debate in the Committee of the Whole considering the Act are not recorded in the House Journal (maybe the debate is at the State Archives?). In any event, the vote count suggests that there could not have been much division among the exclusively white, male legislators, whose ranks included many former Confederate soldiers and government officials. In addition to the Act, the House passed a couple of more black codes at the same time, including a vagrancy statute that threatened to re-enslave offenders for the period of a year, and an enhanced larceny statute that allowed “suspended by the thumbs” as a punishment.

The Florida Senate took up the bill and their journal does include some revealing debate. Apparently not every state senator was thrilled by the gun control law. William C. Bird (12th Dist. – Jefferson Co.) seemingly stepped out of the distant future when he moved to strike out references to negro, mulatto & color, thereby making the gun control provisions applicable to whites too. Predictably, his amendment was rejected. James H. Roper (19th Dist.- Alachua Co.), on the other hand, took a libertarian approach and moved to delete the entire Section 12. He lost that motion by 21-4. Francis A. Hendry (28th Dist.- Polk & Brevard Cos., and namesake of Hendry County), didn’t trust even “orderly and peaceable” blacks with guns: he wanted to strike the licensing language, making Section 12 a blanket prohibition on blacks having weapons, just as under slavery. This failed too and Section 12 passed the Senate unamended by 20 to 5. Roper voted against it, but Bird and Hendry reconciled themselves to Section 12 despite their misgivings. The Senate then passed the entire Act by 17-5 (Roper voting against).

After some conference wrangling, the House agreed to the Senate amendments on other sections of the Act and Gov. Walker signed it into law on Jan. 15, 1866. Florida was not alone in passing gun control laws aimed exclusively at keeping weapons out of the hand of emancipated blacks. Other former Confederate states passed similar black codes. In The Atlantic, Adam Winkler relates the reaction of Republicans who responded by insisting that the 2nd Amendment indeed protected the right of citizens to bear arms, not limited just to the context of militias. [See: http://www.theatlantic.com/magazine/archive/2011/09/the-secret-history-of-guns/308608/2/# ] The XIV Amendment, passed by Congress in June 1866, asserted the “privileges and immunities” under the Bill of Rights as rights of citizenship. The drafters of the XIV Amendment, Winkler writes, saw owning guns for self defense as a fundamental right of citizenship. In fact, some Florida white Democrats also had qualms about constitutionality of the black codes’ gun licensing law. In his Nov. 1866 message to the state legislature, Gov. Walker commented that the fire-arms law did “not accord with the Constitution” and should be repealed. He also observed that the law was not being enforced. [FL House Journal, Nov. 16, 1866, p. 18].

Whether or not it was enforced, Section 12 didn’t last long. When Florida Republicans, supported almost exclusively by newly enfranchised black voters, convened to draft a new state Constitution in January 1868, they addressed the gun issue directly and clearly. Paragraph 22 of the 1868 Constitution’s declaration of rights simply stated that: “The people shall have the right to bear arms in defense of themselves and of the lawful authority of the state.” This declaration sheds the ambiguity that clouds 2nd Amendment to the U.S. Constitution with its confusing reference to militias. When white Democrats assembled in 1885 to rewrite the Reconstruction era constitution, they kept the basic principle but with a caveat paving the way for gun control legislation: [Paragraph 20] “The right of the people to bear arms in defence of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.”

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  1. Dale May 18, 2013