The Law and Politics of Firearms Regulation in Reconstruction Texas

Abstract

In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to keep and bear arms should inform our present day understanding of the Second Amendment. This means an accurate accounting of the history of firearms regulation is essential for understanding the scope of the Second Amendment. The current state of scholarship on Second Amendment history paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence. This reading distorts the historical record by ignoring the actors responsible for numerous gun laws across the former Confederacy. This article is, in part, a response to such inaccurate accounts. More fundamentally, this article provides an in-depth account of the political views of the Republican Unionists, who followed their ratification of the Fourteenth Amendment with strict regulation on publicly carrying firearms to protect freedmen from racial violence. This article’s account of Texas history makes clear that the Republican Unionists who ratified the Fourteenth Amendment held a narrow view of the right to carry firearms in public, and believed public carry could be broadly regulated. By contrast, it was the Southern Democrats — who had fought relentlessly against the Fourteenth Amendment after losing the Civil War — who advocated an expansive view of the right to carry guns in public, a view which gun rights proponents continue to espouse today.