In my last post I discussed the Nineteenth Century Black Convention Movement and how the 1864 National Convention in Syracuse started a brief but important series of conventions. For this post I look at one of the more prominent of the state conventions, held in Charleston, South Carolina, in November of 1865.
The Charleston Convention is frequently cited both because it produced an interesting set of substantive documents and because it included several future political leaders in Reconstruction South Carolina, such as Richard H. Cain, Francis L. Cardozo, and Alonzo J. Ransier.
This convention has received some attention by originalists because it mentions the right to bear arms, and it is the one black convention from the period to have made its way into a Supreme Court footnote (in McDonald). The problem, however, as I discuss below the fold, is that extracting the right to bear arms from the document in this way does not do justice to either the richness of the document or the role and context of the right to bear arms for the members of the convention.
. . . we have been deprived of our natural rights, which are founded in the laws of our nature, which consist of personal liberty, the right to be free in our persons, and the right of personal security and protection against injuries to our bodies or good name.
These are a portion of our inalienable rights, because we cannot be justly deprived of them.
We have been deprived of the free exercise of political rights, of natural, civil, and political liberty.
The avenues of wealth and education have been closed to us.
The strong wall of prejudice, on the part of the dominant race, has obstructed our pursuit of happiness.
We have been subjugated to cruel proscription, and our bodies have been outraged with impunity.
We have been, and still are, deprived of the free choice of those who should govern us, and subjected unjustly to taxation without representation, and have bled and sweat for the elevation of those who have degraded us, and still continue to oppress us.
This passage is infused with language of the American Revolution (inalienable rights, pursuit of happiness, taxation without representation), reflecting how Reconstruction was seen as a realization of the lost ideals of the Revolution and as a second founding. More significantly, this is a reformulation of those principles. As in the National Convention, race prejudice is woven together with claims of basic rights as a substantial barrier to the implementation of basic rights in a post-slavery society. This re-creation of the rights of American citizenship is informed by the experiences of slavery. Liberty and rights here include a right to physical protection, suffrage, education, a right to be free of race prejudice, and a right to non-oppressive, remunerative labor.
The convention continued by stressing the importance of voting. As did the National Convention in Syracuse, the South Carolina Convention saw voting as a fundamental right. As they put it in a passage following the above list, suffrage and the right to testify were “the rights of every freeman . . . inherent and essential to every republican form of government.” Liberty meant little without basic political rights, rights that many white Republicans were not yet willing to grant.
The Convention also issued a statement to Congress, listing their claims on the federal government. First they asked that “the strong arm of law and order be placed alike over the entire people of this State; that life and property be secured, and the laborer as free to sell his labor as the merchant his goods.” They next asserted a claim to Sherman’s grant and other land claims (40 acres and a mule): “We ask that a fair and impartial construction be given to the pledges of government to us concerning the land question.” They continued with a demand for access to the “three great agents of civilized society—the school, the pulpit, and the press,” which was immediately followed with a demand for suffrage (“We ask for equal suffrage as a protection for the hostility evoked by our known faithfulness to our country’s flag under all circumstances”) and a claim to the right to fair trials and access to juries.
Only after these and other demands did the convention assert the right to bear arms and the right for black former soldiers to be able to keep the arms they purchased from the federal government: “We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringe . . . the late efforts of the Legislature of this State to pass an act to deprive us our arms be forbidden, as a plain violation of the Constitution, and unjust to many of us in in the highest degree, who have been soldiers, and purchased our muskets from the united States Government when mustered out of service.”
Notice here how the text situates the right to arms within and after the right to governmental protection, access to courts, and voting. Indeed, the Convention identified "the strong arm of law and order" and voting as the main forces needed to battle violence. The members of the convention were not advancing the right to arms as the primary means of resistance to white violence, and this was not an assertion merely of a right to self-defense. It was also a claim to a full and equal citizenship that included equal treatment (the Black Codes they objected to prohibited arms-bearing by blacks but not by whites in order to support violent white control), equal respect (earned by military service and by decades of brutal labor), and equal property right in one’s arms. It is certainly not wrong to see in this text that arms-bearing is an important citizenship right for post-war blacks in the South, but I think it is wrong to fail to see—and to fail to incorporate—the way in which this right was part of the integration of blacks into a fully democratic polity (a republican form of government), a polity in which government provided physical and legal protection of its members and in which those members voted for and ran the government. It is not at all clear that this Convention's opposition to white supremacist bans on firearm possession by blacks says much about how they would view gun control laws passed by local governments in which all citizens voted and participated. So, although the right itself is plainly important, it is also importantly contextual.
The point is not to condemn the use of the sources by the Court or Second Amendment originalists. To the contrary, I am thrilled to see these African-American historical sources used in constitutional discourse. Instead, I mean to encourage a greater engagement with the sources. The materials are rich in themselves, with more depth and internal context than has been developed so far. And the individual documents were created in a social and political context that has much to tell us about how the ideas and ideals of the Reconstructions Amendments were understood, developed, and worked with on the ground. I will save for my next post some preliminary thoughts on how that might play out.
Comments