• First Supreme Court gun rights case grew out of 1873 KKK massacre in Louisiana
• Government charged that KKK mob had violated black citizens' rights to keep and bear arms

On 12 April 1873, an armed white gang, including many Ku Klux Klan members, converged on the county courthouse in Colfax, Louisiana. The sheriff, backed up by members of the local black militia, was barricaded inside. Tempers had been running hot since November, when state elections failed to produce a clear winner in the governor's race. In Colfax County, both the Democrats and the Republicans had claimed victory and subsequently had argued over which candidates' appointees should fill the county offices. The Klan-backed Democratic mob marched on the courthouse to force the incumbent Republican sheriff to turn over the office. When the sheriff refused, the Democrats assembled outside set fire to the building and gunned down the sheriff and his black posse as they attempted to flee. An estimated 100 people were killed.

The "Colfax County Massacre" provided the United States Supreme Court with its first gun rights case. Despite 80 years of controversy, and several previous attempts to lay the issue before the Court, the Court had managed to sidestep the issue until this case reached its docket in 1875. But which side, do you suppose, invoked the guarantees of the Second Amendment? Was it the white, heavily armed gang who fought to claim the county offices they felt they had won? Or was it the incumbent sheriff, and his posse, holed up inside the courthouse with rifles and shotguns?

If you guessed the sheriff and his posse, you would be correct. The federal government charged the gang storming the courthouse with violating the constitutional rights of the black citizens rallying to the sheriff's defense. Among the government's 32 charges related to the massacre was the allegation that 98 persons, including William Cruikshank, had conspired to deprive the citizens inside the courthouse of their constitutional right to bear arms.

The State of the Question in 1875

• Whether or not the Second Amendment guaranteed and individual right to bear arms had not yet been settled in 1875
• Violence of the Civil War led many to become more skeptical of states' rights theories
• Some northerners believed an individual right to bear arms would help black citizens defend themselves

By 1875 the meaning of the Second Amendment had still not been fully resolved. Prior to the Civil War, essentially four interpretations had circulated.

1. One claimed that the Second Amendment conveyed what one historian has labeled a "civic" right.¹¹ It granted to individuals the right to carry guns, but it linked this right to the amendment's "primary" purpose which was to guarantee the viability of the state militias. An individual right was necessary to ensure that state militias would be able to defend the states against internal and external threats. But this right also carried a set of civic obligations—most importantly, membership in the state militia. And the right was coupled with the further recognition that the states' had the authority to regulate the exercise of that right in order to ensure that their militias were "well regulated."
2. A second interpretation claimed that the Second Amendment protected only the states' rights to maintain militias. There was no individual right, not even a contingent one. The amendment was attached to the Constitution in order to reassure those worried that the federal government might encroach on the rights and powers of the states.
3. A third interpretation of the Second Amendment argued that the right to form militias against an encroaching government belonged not just to the states, but to towns, villages, and even smaller, more informal collections of citizens. For example, the whiskey rebels that formed themselves into militias to oppose the federal excise tax on whiskey in 1794 claimed this localized Second Amendment protection.
4. And finally, a fourth position argued that the Second Amendment guaranteed to individuals the right to keep and bear arms for self-defense, and for other personal uses such as hunting.

While all of these views had their supporters on the eve of the Civil War, the first (the civic interpretation) was less widely supported than it once had been, and the fourth (the individualized right) was finding more support in the courts and state legislatures. But the states' rights argument was probably the most widely held—especially in the South. And among militant abolitionists and other reformers impatient with the course of change, the belief that small communities of citizens had a right to arm themselves in pursuit of a cause was also popular.

But by the end of the Civil War, much had changed. The most radical notion that small groups had a constitutional right to arm themselves in pursuit of reform had been discredited by abolitionist radicals like John Brown, who tried to launch a slave uprising by raiding the government armory at Harper's Ferry, Virginia. And the loss of 600,000 lives during the Civil War revealed the catastrophic potential lying within states' rights theories.

Moreover, as northern reformers turned to the task of Reconstruction after the Civil War, an increasing number adopted an individualized interpretation of the Second Amendment. They recognized that while southern governments could not restore slavery, they could do much to limit the movement and the rights of recently freed slaves; the "black codes" passed by these governments in the immediate aftermath of the war imposed curfews, criminalized social gatherings, and forbade freedmen from carrying guns. In response, northerners argued that the Second Amendment, conveying an individual right to bear arms, was being violated by southern governments.

United States v. Cruikshank

• Lower court ruling in Cruikshank held that individuals possessed a right to bear arms
• But US Supreme Court reversed the decision, ruling that Second Amendment protected only state militias

In fact, as the government's case against William Cruikshank et al made its way through the courts, it was this individualized interpretation of the Second Amendment that one of the circuit judges found compelling. Judge William Woods held that "a man who carries arms openly, and for his own protection . . . has as clear a right to do so, as to carry his own watch or wear his own hat."¹² The federal government had a responsibility to protect individuals, like the African-American citizens who had turned out to support the sheriff, in exercising their Second Amendment rights, he argued, and a federal court was an appropriate venue to prosecute individuals charged with violating the rights of others.

But the Supreme Court disagreed. They rejected Judge Woods's logic, siding with the defense, which argued that the Second Amendment merely protected the rights of states to maintain militias. Whatever crime Cruikshank and the others may have committed, the Court said, they did not violate the black militiamen's Second Amendment rights—for as Cruikshank's lawyers argued, "the right which the people intended to have secured beyond the power of infringement by Congress, is the right to keep and bear arms for the purposes of maintaining, in the states, a well regulated militia." And as another brief added, "the power to regulate and control the bearing of arms on the part of the people, and their assembling together in great numbers, belongs to the police powers of the state, and it is a necessary power to be exercised for the peace of society and the safety of life and property."¹³

The Cruikshank case proved hugely important for the Second Amendment. It placed a states' rights reading of the amendment at the center of federal jurisprudence and denied that the amendment provided any sort of individual right to own guns. By the time the Court took up the issue again in 1939, in the case of United States v. Miller, the states' militias had been converted into the National Guard. The increased federal control over state militias, imposed by the passage of the Dick Act and the National Defense Act, left the states' rights understanding of the Second Amendment somewhat obsolete. But the Court retained Cruikshank emphatic denial that the amendment was written to protect an individual's right to keep and near arms, and the Court retained Cruikshank's conclusion that the states' could regulate guns in order to ensure public safety. And this interpretation would continue to guide the court through the end of the twentieth century.

But the Cruikshank case is also important for what it reveals about the curious evolution of the Second Amendment. In 1875, it was federal prosecutors and a federal circuit judge who argued for a more expansive individual right to bear arms under the Second Amendment, while the lawyers for a bunch of Ku Klux Klansmen argued that the Second Amendment provided no individual gun right at all. In 1875, it was federal government lawyers who insisted that the individual gun rights of citizens should be rigorously protected in the federal courts while lawyers for the gun-wielding, sheriff-attacking Democratic gang insisted that the states had a right to "regulate and control" its citizens' guns in order to protect "the peace of society and the safety of life and property."¹⁴ And in 1875, the United States Supreme Court embraced a states' rights interpretation of the Second Amendment just a decade after the end of a war in which the federal government had spent millions of dollars and hundreds of thousands of lives to deny the broader theory of states' rights.

Confused yet?