An Unequal Right to Bear ArmsState Weapons Laws and White Supremacy in Texas, 1836–1900
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n association between Texas and guns runs deep. From the famous "Come and Take It" flag raised at the Battle of Gonzales and Davy Crockett wielding "Old Betsy" at the Alamo to the pistol-toting cowboy and the storied Texas Ranger, firearms have long been an integral part of Texas history and the Texas mystique. In the modern era, when guns and the rights of gun owners have become hot-button issues nationally, the Lone Star State has occupied a prominent place in the debate. Texans have been particularly adamant about protecting their Second Amendment rights, legalizing licensed concealed carry in 1995 and open carry in 2015. Modern gun-rights advocates have not been shy about invoking Texas's history as a gun-friendly state; indeed, the "Come and Take It" flag, often with its original cannon image changed to a modern military-style assault rifle, has become a ubiquitous symbol at pro-gun events. The clear suggestion from such imagery is that any state effort to restrict the ownership or bearing of arms is a recent phenomenon foisted upon the citizenry by an overreaching government.
History tells a more complicated story. As this article demonstrates, although guns have certainly played a prominent role in defining Texas culture, for much of its history the Lone Star State has had relatively stringent gun regulations. Indeed, the state's first gun-control measures date back to the Republic of Texas, and in 1871 Texas became a pioneer in the field of arms-control when lawmakers banned the carrying of deadly weapons outside the home. Perhaps most surprisingly, this legislation, for reasons that are explored below, garnered support from both Republicans [End Page 285] and Democrats and remained on the books into the modern era. The stereotype of nineteenth-century Texas as a gun-lover's paradise, then, clearly mistakes the past for the present.
Since the founding of the Republic of Texas in 1836, Texans have endorsed the Second Amendment by enshrining the right to bear arms within every version of the state constitution. Each one contains a clause in its bill of rights guaranteeing the citizen's "right to bear arms in defense of himself and the state."1 Invoking the term "citizen" meant that, until the passage of the Fourteenth Amendment, this protection excluded significant portions of the population.2 In antebellum Texas, citizenship was a white male prerogative and citizens bore arms to defend themselves, their dependents (an extension of self), or the state.3 And they did just that in the Texas Revolution, the U.S. war with Mexico, and countless wars and skirmishes against the region's many Indian tribes. Their sense of civic duty demanded this organized and politically justifiable bearing of arms, but the construction of masculinity in the antebellum South embraced both the controlled violence of war and the disorderly violence of the duel and the brawl.4 The white men of Texas enjoyed a virtually unrestricted right to use all manner of weapons, including guns, to exercise their masculinity.5
Although antebellum Texans did not accept infringements upon the citizen's right to bear arms, they did assent to the state's right to legislate on the subject of weapons. Unsurprisingly, in the first three decades following independence regulations targeted the non-white persons of Texas, particularly the male slaves and Indians who posed a threat to the [End Page 286] safety and social order of white communities. Thus, antebellum gun laws were primarily about race, and the state legislature had the power to make laws limiting the wearing, bearing, and carrying of weapons as long as they did not undermine the absolute right of white men to own and use them.6
From the first legislative session of the Republic of Texas, lawmakers tried to keep weapons out of the hands of nearby Indian tribes. They feared not only the scalping knife, but also the high-quality firearms wielded by well-trained raiding parties. The powerful Comanches obtained British-made rifles and ammunition through direct and indirect trade with Americans along the Red River.7 In addition, the westward migration of Americans created a new and lucrative market for horses that the Comanches and others sought to fill by stealing horses from Texas residents and trading them in exchange for guns and ammunition.8 This raiding and trading led Texas lawmakers to prohibit the trading of guns and other weapons to Indians and focus on breaking up the illegal trading posts along the Red River.9 Texans supplemented this strategy by raising and even arming mounted cavalry units, like the Texas Rangers, to make war upon hostile Indian tribes.10
As they did with Indians, Texans also tried to keep weapons away from slaves unless absolutely necessary. Fear of slave rebellion plagued slave owners across the South, and Texans were no exception. Many of them had migrated from the Lower South and harbored deep fears of a slave revolt akin to Nat Turner's rebellion in Virginia in 1831.11 The Texas Slave Code, created in 1840, included a provision forbidding slaves from carrying weapons without "written consent of his master, mistress or overseer." A weapon carried illegally by a slave was subject to confiscation by any white person and the slave owner would have to pay a bounty of ten dollars to the neighbor who caught his mistake.12 As the slave population of Texas grew throughout the 1840s and 1850s, state representatives from the plantation areas of East and Central Texas tried to ban the arming of [End Page 287] slaves altogether.13 They were unsuccessful in this attempt, but they were able to amend the Slave Code to require armed slaves to be in the presence of a master or overseer.14 Representatives from the western counties opposed a total ban on slaves carrying weapons because West Texans who owned slaves depended upon them to assist in protecting their crops, livestock, and homes from Indian raids. Texans might have been enamored with the idea of a slave-holder's republic, but they could not avoid the fact that their state was also a frontier area subject to threats that had long since passed for most of the South.15
State policies toward slaves and Indians became more difficult to enforce during the Civil War, when tens of thousands of Texan men took up arms to defend their state and their new nation. State legislators from the western counties, in the name of frontier security, continued to block efforts to ban the arming of slaves.16 When the few U.S. military troops guarding the Texan frontier in 1861 left after passage of the state secession ordinance, state lawmakers tried to fill the gap by raising new mounted volunteer units under the authority of the governor. These rangers became a source of tension between state officials and a Confederate government desperate for more soldiers; ultimately, the Confederate government was no more attentive to Texans' Indian problem than the Union had been. To make matters worse, the Confederate government's draft policies prompted a flood of deserters and draft dodgers into the frontier counties of North and West Texas. The result was an explosion of violence and depredations by these brigands and Indians, which frontier units could not control.17 Confederate policies toward slaves also generated conflict in Texas. Military authorities had the right to impress slave labor for fortifications and other wartime needs, and the Confederate government famously considered drafting slaves into full military service in exchange for freedom. [End Page 288] Both policies threatened masters' control over their slaves, something all the more precious in Texas, where invading Union armies had not yet begun to enforce the Emancipation Proclamation.
The Civil War ended in the spring of 1865 with surrender ceremonies that entailed Confederate soldiers laying their arms at the feet of the Union victors.18 But the close of the war came late to Texas, and by June disillusioned Texas soldiers had taken matters into their own hands rather than submit to the humiliation of ceremonial surrender. After abandoning Galveston to Union forces, the bulk of General Edmund Kirby Smith's troops retreated to Houston, where they disobeyed their orders, emptied government storehouses, and headed for home or the Rio Grande. Groups of soldiers and disaffected Confederates raided armories and munitions factories across the state, intimidating local residents along the way. This "break up" of Confederate power left communities in chaos as the war drew to a close and created an environment in which violence and vigilantism could be perpetrated with impunity.19
Violence characterized the early years of Reconstruction throughout Texas. The kind of lawlessness that had afflicted the northern and western frontier during the war invaded the remainder of the state following the "break up." The power vacuum created by soldiers and officials fleeing from Union occupation combined with economic uncertainty, white racial animosity toward the newly emancipated freedmen, and bitter feelings over losing the war. An early reaction to the rise in crime in the larger towns was to disarm the citizenry by prohibiting concealed weapons or outlawing weapons altogether within the city limits.20
In 1866, Texas lawmakers had an opportunity to address the rampant lawlessness when delegates convened to write a new constitution and organize a new civil government. Some officials, like James W. Throckmorton, also reacted favorably to disarmament. Throckmorton had opposed secession, but he demonstrated his loyalty to Texas by taking a commission in [End Page 289] the Confederate army. His moderate background made him an appealing candidate for the governorship, which he handily won in 1866. Having spent most of his time in the Confederate armed forces fighting Comanches and deserters along Texas's Indian frontier, Throckmorton returned to politics with firsthand knowledge of the rampant lawlessness plaguing the state.21
In his address to the state legislature, which had convened under the newly written state constitution, Throckmorton recommended passage of a law taxing weapons carried in public in order to discourage "thoughtless youths and others who bear them for show or other purposes." He conceded that an outright prohibition against the public carrying of weapons was unconstitutional but that the right to bear arms was "wretchedly abused" and ought to be subject to a tax.22 Such a law most certainly would have disarmed the vast majority of black Texans (and even many whites) in possession of weapons because few of them had sufficient cash to pay even the lowest of taxes. Only elite white men would be able to carry guns. Like many of Throckmorton's other policies during his brief gubernatorial tenure, he assumed the best of local elites and discounted the potential threat posed to Texas Unionists and freedmen.23 The Texas House of Representatives responded to Throckmorton's recommendation by considering a tax on carrying weapons, but disagreements arose over the amount of the tax and whether it should vary in accordance with the particular type of weapon carried.24 Unable to agree, lawmakers settled instead for a law that prohibited discharging firearms in urban areas.25
Part and parcel of Texas lawmakers' efforts to curb lawlessness was the restoration of proper authority throughout the state. Much of the violence in the countryside arose from racial animosity and wounded pride, two problems that white Texans chose to resolve by imposing control over the former slaves. Texans sought to keep a powerless labor force for the cotton economy and maintain a social order based on white supremacy. In order to achieve this control, Texas lawmakers followed the example of other states within the former Confederacy by drafting a black code. They ran into a problem, though, because the black codes passed in 1865 by states like Mississippi had inspired a strong reaction from Republicans in Congress. The result was the federal Civil Rights Act of 1866, which guaranteed equal protection of the law to all citizens, regardless of race; [End Page 290] Conservatives in the Texas legislature had to tiptoe around this law by using race-neutral language in the construction of their state's black code. Laws regulating labor contracts, apprenticeships, and penalizing vagrancy formed the core of this code, but several other measures passed by the Eleventh Legislature in 1866 were designed to supplement it.26 One such accompanying law was an "act to prohibit the carrying of fire-arms upon the premises of any citizen without consent."27 Because virtually no black Texans owned their own land in 1866 and thus had to live and work on land owned by whites, the law effectively prevented freedmen from carrying—or even owning—a gun without their landlords' or employers' permission. This solution, which enabled Texas to avoid Mississippi's mistake of explicitly targeting African Americans, essentially re-inscribed the antebellum statute that had given whites strict control over blacks bearing arms, and thus it constituted a point of continuity between antebellum and early Reconstruction Texas rather than the opening of a new era of gun regulation.28
The first postbellum Texas legislature did more than try to reduce the newly liberated freedmen to second-class status; its members also found ways of elevating white Texans, especially white men. They refused to adopt the Fourteenth Amendment, rejecting the idea that black men fit the standards of citizenship. In their statements against the Fourteenth Amendment, members of the House asserted that capitulation to federal demands would demonstrate a "poverty of manly spirit."29 They also sought ways to keep the weapons of war in trustworthy white hands. Responding to the sack of state weapons caches in the chaos following surrender, the Eleventh Legislature commissioned the governor to appoint someone "to collect all the arms and munitions belonging to the State of Texas, which may be in the hands of individuals, without authority to retain the [End Page 291] same."30 This measure, not carried out until the following decade, had the potential to dramatically reshape the gun-owning population of Texas by confiscating weapons in the name of the state and redistributing them to white militia units or selling them to the highest bidder.
The half year following the meeting of the Eleventh Legislature revealed just how wrong that body's members were to presume that they could be readmitted to statehood in spite of their clear unwillingness to recognize the legal rights of freedmen. Intransigence from the former Confederacy prompted Republicans in Congress to take over the Reconstruction process, declare all southern state governments to be provisional, and divide the South into military districts. Major General Philip Sheridan became commander of the Fifth Military District (Texas and Louisiana) in 1867, a fitting task for the man who had been in command of Union troops in those states for two years. Ever since his arrival he recognized that "Texas has not yet suffered from the war and will require some intimidation."31
Two years of occupation did little to alter his impression of Texas and its political leaders. During that time he and his staff repeatedly butted heads with Throckmorton and lost confidence in the governor's capability to lead Texas back into the Union. When he finally received permission to do so, Sheridan removed Throckmorton from office in July 1867. The path for Congressional Reconstruction in Texas stood clear.
Military intervention angered many white Texans and intensified their frustration throughout 1867 and 1868. The looming threat of a poor cotton crop led planters to blame the predominantly black agricultural labor force. Freedmens' efforts to create stable nuclear families, obtain schooling for their children, and mothers' desire to stay out of the fields contributed to a severe labor shortage. Finally, the formation of the Union League to strengthen the Republican Party in Texas offended white Texans who could not stomach the idea of black political organization. These factors turned Texas, already noted for its reputation as an unruly place, into one of the most violent states in the country in the latter 1860s. Voter registration added blacks to the rolls throughout the state, while loyalty tests administered by registrars removed many, though by no means all, former Confederates. Sheridan's overseers of Texas, General Charles Griffin and his successor, General Joseph J. Reynolds, pursued a policy of removing local- and state-level officeholders of dubious loyalty, and insisted that all jurors take an oath that barred former Confederates from service.32 [End Page 292]
Congressional Reconstruction played out differently in the many counties of Texas, but at the state level the policies of Sheridan and the Republican Party resulted in former Confederates' worst nightmare: a Republican government committed to black political participation. Local offices left vacant by Griffin's and Reynolds's removals tended to be filled by Republicans, some of whom were black. Elections in 1868 and 1869 significantly overrepresented black Texans and gave Union League chapters the opportunity to demonstrate their power to protect black voters from white intimidation.33 Conservatives responded by resuscitating the Democratic Party in the state, appealing to the moderate wing of the Republican Party to join them, and initiating a campaign of racial violence. Sporadic local violence became better organized and carried stronger political overtones when groups like the Ku Klux Klan and the Knights of the White Camellia appeared in 1867 and 1868 and formed the paramilitary arm of the Democratic Party. These organizations engaged in guerrilla warfare against Republican lawmen as well as the black militia companies that formed after emancipation. Their emergence in areas with low black populations reinforces the claim that the goal of their members was the formation of a unified white Democratic front against the reigning Republican government.34 This environment of lawlessness, intimidation, and fear likely prompted Texans, white and black, to seek personal security and power by carrying weapons.
With Klan violence on the rise in Texas and throughout the South, Radical Republican officials took action to protect freedmen and enforce the racial equality at the heart of their Reconstruction policies. In 1870, the federal government convened a committee to investigate the Klan and tried to eliminate Klan-type organizations. That same year, Texas Republican governor Edmund J. Davis, leader of the state party's radical faction, said that the subject "of primary importance in the minds of the great mass of our people" was crime; it also happened that ending lawlessness was the only subject upon which the dueling Republican factions could agree.35 [End Page 293]
Davis proposed three controversial measures to restore peace: reorganization of the state militia, creation of a state police force, and a weapons-control law. The state's latest constitution, ratified in 1869, continued the tradition of including an arms guarantee in the bill of rights, but for the first time gave the legislature the authority to regulate that right.36 Davis asked lawmakers to take advantage of this new power and restrict the carrying of weapons. He drew a connection between an armed populace and "the frequency of homicides in this State."37 Davis supplemented this proposal with a recommendation for "a police system embracing the whole State under one head and to be subject to the orders of the chief."38
When the Texas legislature met in 1870, it was the first time that the body had convened in four years. Though they faced a backlog of state business, legislators immediately began implementing the Republican program. Throughout the four legislative sessions that met during 1870 and 1871, lawmakers responded to Davis's anti-crime proposals. In the summer of 1870, the House introduced four separate weapons-control bills and sent one to the Senate for approval, but the Texas Senate had already passed "An Act Regulating the Right to Keep and Bear Arms." The senate bill, probably a milder version of a bill introduced by Cherokee County's Radical Republican Mijamin Priest, sat on the table in the House for about a month before hurriedly passing the chamber just a few days before the close of the session.39 The law did not entirely prohibit carrying weapons outside the home, instead banning them only at certain locations and functions. For instance, weapons could not be carried to polling places on election days, inside churches, or at any "social gathering composed of ladies and gentlemen."40 The summer session also established a State Police force under the control of the governor's administration. The State Police answered to the executive-appointed adjutant general and could be called upon when local officials either could not or would not enforce the law. State policemen also had the mobility and authority [End Page 294] to capture criminals who had escaped prison, fled arrest, or skipped bail. Local judges could call upon this force in times of emergency, but the governor had the power to declare martial law and use the State Police as an occupying force in areas overcome by lawlessness.41
When the next session met in the winter and spring of 1871, lawmakers amended the weapons-control and State Police force acts. The State Police law received minimal changes, mostly adjustments of funding and approval for county Special Police to be called into service during events like elections.42 But lawmakers completely overhauled the "Act Regulating the Right to Keep and Bear Arms." The new law prohibited carrying weapons in public with few exceptions. Travelers could carry arms while on the road, officers could carry weapons "while engaged in the discharge of their official duties," and residents of counties designated "frontier counties" by gubernatorial proclamation could carry arms at all times. Because legal theory of the day considered arms necessary and legitimate for self-defense, the Radical-dominated Twelfth Legislature allowed an exemption for anyone "fearing an unlawful attack on his person" that was both "immediate and pressing" enough "to alarm a person of ordinary courage."43 This 1871 weapons-ban dramatically and tremendously altered Texans' relationships to their weapons. They could no longer openly carry or conceal "any pistol, dirk, dagger, slung-shot [sic], sword-cane, spear, brass knuckles, bowie knife, or any other kind of knife" beyond the confines of their property. These weapons have several important characteristics and commonalities: all are small, hand-held, portable, concealable, and were used frequently in the commission of homicides, assaults, and other crimes. The ban was particularly striking given white Texans' long history of freely bearing arms, a history that had made even the moderate proposal of Throckmorton unacceptable. As we have seen, however, larger towns had already passed ordinances against concealed weapons and pistols, so perhaps the Republicans thought that this urban measure simply made sense for the entire state. Officers who neglected their duty to enforce the arms ban were themselves subject to dismissal, indictment, and a hefty fine—a savvy way to continue replacing Democratic officials with Republicans loyal to Davis.44
Texas Republicans reveled in their victory over Democrats in 1871. A [End Page 295] writer for the Houston Daily Union urged Republican leaders to stay the course and refuse to capitulate to their Democratic enemies:
The Democrats are furiously opposed to the State Police, and all the measures necessary to put down violence and crime, and to assure peace and quiet to each community; let us still arrest and drive out thieves and murderers, and continue to oppose Democracy. The Democrats are sullen and angry because the firearm bill has robbed rowdies of their six-shooters, their bowie knives and their sword canes; let us continue to disarm rowdies and murderers, to stop bloody affrays, and to thus oppose the Democracy."45
Supporters of the new weapons law touted it as a beneficial measure that would curb violence and eliminate dueling. In San Antonio two well-respected men attempted to settle a quarrel "at the muzzle of a six-shooter," and a reporter opined that "no commentary is needed, to convince good men, not only of the wisdom of the law prohibiting the carrying of firearms, and other deadly weapons, but also of the necessity of its rigid enforcement."46 In 1873, Governor Davis praised the weapons law for its "most happy effect" throughout the state over the past two years.47 Detractors focused on the law's difficulty for travelers, who had no trouble outside of town, but could be dragged to court upon arrival in a city.48 But such editorializing by both Republicans and Democrats masked the widespread disregard for the weapons law and the authorities who enforced it (particularly the State Police).
The rate at which Texans violated the weapons ban is unknown and indeed unknowable. However, Davis and his Republican allies saw a connection between the proliferation of crime (especially homicide) and a citizenry armed with small, portable weapons. Of course, there were additional factors contributing to the rampant lawlessness in Texas, like endemic racism, distrust of local government, and a lack of communal ties binding Texans together.49 But all of these animosities and differences that inspired crime relied upon some physical tool in order to be carried out. While homicides in Texas ran the gamut of weapons, from hands and ropes to shotguns, anecdotal evidence suggests that firearms were the preferred weapons of Texan killers and criminals. The catalog of murders laid out by Texas Republicans in 1868 tells of freedmen being "fired upon," "shot," and "armed whites forcibly robbing freedmen of their [End Page 296] arms."50 A nineteenth-century commentator discussed homicides committed a decade later, many of which involved victims being "shot and killed," "shot dead," or having "shots put into him."51 Though it is unclear what type of firearm was more likely to be used in the commission of a murder, Republican concern over small arms suggests that they considered pistols to be the primary threat to the peace and security of Texas communities. Pistols were involved in crimes other than murder, too; lesser offenses like assault, theft, disrupting the peace, gambling, illegal shooting, and unlawfully carrying weapons composed the majority of all crimes in Texas and often entailed the use of pistols. Thus the weapons ban was likely broken in association with thousands of crimes committed in the years after its passage.
Widespread violation of the weapons ban demonstrates not so much a lack of resolve among Texan law enforcement officials but rather the impossibility of disarming the entire state. Enforcing the ban would have been difficult for Republican sheriffs in Democratic-majority counties, lacking as they did the acceptance and respect of the local white population. In spite of this handicap, sheriffs went toe-to-toe with criminals, outlaws, and desperadoes and risked their lives in the process. The situation was no better for the State Police, a favorite target among Democrats in their condemnations of the Davis administration. Critics accused the State Police of being "the vanguard of a black insurrection," the portent of an impending race war. Recent scholarship has shown that by far most state policemen were white, and the force was more effective at bringing criminals to justice than its detractors were willing to admit. In fact, members of the State Police arrested thousands of criminals between 1870 and 1873, including violators of the weapons ban. But they faced a distinct difficulty in carrying out their duties as a result of Texans associating them with freedmen and Reconstruction. One black state policeman's attempt to enforce the weapons ban highlights the convergence of racism, political violence, and gun-toting in the "redemption" of Texas.52
Throughout the spring and summer of 1871, Republicans and Democrats vied for the vacant seat for Texas's third congressional district. Winning this election represented a significant milestone for Texas Democrats, who hoped to return the state's presidential electors to the Democratic [End Page 297] fold in the upcoming election of 1872. Three days prior to the election black state policemen in Groesbeck (Limestone County, east of Waco) encountered a white man named D. C. Applewhite, who was drunk and armed with a pistol. When black officer Mitch Cotton and his fellow policemen tried to enforce the weapons ban, Applewhite became confrontational and headed for a saloon. The officers followed him and the ensuing gunfight left Applewhite dead in the street. Affidavits from witnesses told radically different stories depending upon the political affiliation of the person testifying. Republicans claimed that Applewhite shot first while Democrats claimed the opposite. Black residents took up arms and fled with Mitch Cotton and his fellows in an effort to avoid retribution from whites. But the white townspeople of Groesbeck also armed themselves, claiming that "the colored people were under arms and had threatened to attack and burn the town." Descriptions of the movements of both white and black men indicate that the parties involved were paramilitary, militia, or rifle companies that had drilled in anticipation of such an event. Black residents of Limestone County "barricaded" themselves in the Groesbeck mayor's office before "retreating" to the woods; a unit of State Guards (part of the reorganized militia) "went on duty at once" to "keep the peace and order at the election." The State Guards acted in the interests of local Democrats by apprehending the black policemen and controlling the town through election day. Law and order broke down in the aftermath of Applewhite's death, and white residents refused to respect black officers. Republican officials of Groesbeck determined that "the people will not permit negro police to enforce the laws, and that the mere sight of the negro police would surely lead to bloodshed." Though the Limestone County conflict began over the weapons ban, it escalated to become a battle over polling places and political power that the former Confederates won.53
Radical Republicans in Texas struggled to hold on to power against the wishes of a majority willing to accept and perpetrate the kind of violence that took place in Groesbeck. Democrats and many moderate Republicans joined forces to oppose Davis's administration, calling him a tyrant and criticizing new taxes for improvements and education. Images of a brutal, freedman-infested police force loyal to a corrupt governor did not help Davis's cause. Whites who had declined to register or vote in previous elections began turning out in much higher numbers following 1870, and the state witnessed an influx of immigrants from other parts of the South. [End Page 298] The Democratic Party drew strength from both of these developments and ate away at the Republican Party's power over state government. In 1872 Democrats succeeded in casting the state's electoral votes for Horace Greeley, and by that time even the national Republican Party had abandoned the Texas Radicals to their fate.54 Though the Davis-appointed state supreme court invalidated the election of 1873, in which Democrat Richard Coke defeated Davis for the governorship, the anti-Davis coalition had the popular mandate and the arms to remove him from the statehouse by force.55 In the previous gubernatorial election (1869), armed Republicans guarded the polls, protecting black voters and preventing Democratic shenanigans at polling places. By 1873, Democrats had the strength of numbers and control of enough polling places to win the election by a two-to-one margin. Many local special elections in the years leading up to 1873 overwhelmingly favored Democrats because armed, white, paramilitary groups took over polling places and intimidated black Republican voters, as had happened in Limestone County.
Once Democrats had control of the state legislature and the governor's office in 1874, legislators began dismantling the Radical Republican program that had been implemented in Texas. They focused their ire on the State Police, education programs, new taxes, and a number of other Republican measures, but they left the weapons ban untouched until 1887. In fact, the Texas Supreme Court upheld the law on two separate occasions in the 1870s. In English v. State, a Radical Republican court sustained the constitutionality of the law, and in State v. Duke a Democratic court headed by former secessionist leader Oran M. Roberts agreed that legislative regulation was acceptable.56 The Democrats at the next state constitutional convention (in 1875) knew about the English decision and still decided to retain legislative regulation of the right to keep and bear arms. The provision in the final constitution affirmed the right to bear arms, but allowed the legislature to "regulate the wearing of arms with a view to prevent crime."57 This about-face on the subject of the weapons [End Page 299] law suggests that Texas Democrats did not oppose regulation per se, just regulation by the "Black Republican" party. Moreover, Texans who had felt oppressed by the State Police's enforcement of the weapons ban no longer had to fear gubernatorial power behind local black or Republican officials. A few Republicans continued to hold elective office into the 1890s, but the power of the state government stood behind their opponents, giving Democrats the opportunity to push these men out of office by means fair or foul whenever the opportune moment arrived.
Evidence suggests that "redemption" in Texas and throughout the South involved the physical disarming of freedmen, and white Democrats gloried in the symbolic significance of this disarmament. For instance, the Democratic legislature, beginning in 1874, allocated money for the state adjutant general to "recover state arms" in the possession of those without proper authority to have them.58 This was certainly a continuation of the 1866 Eleventh Legislature's failed attempt to reclaim arms that Confederate soldiers and brigands had stolen from local arsenals in the chaos following surrender. The Republicans who controlled local and state offices between 1867 and 1873 confiscated the arms belonging to criminals, and Davis's adjutant general distributed state arms to Texas militiamen—a group that, for the first time, included black Texans. The recovery of state arms after 1874 likely served as a cover for taking weapons away from freedmen and putting them in the hands of the Democratic militia companies that sprang up during this time.59 Rearming white Democrats and reinvesting them with state authority signified their recovery of political power from blacks and Republicans, and their "redemption" of the state in the name of white supremacy.
Literature about the fall of Reconstruction in the South glorified this disarmament of freedmen. Manly white Democrats intimidating black Southerners into surrendering their weapons played an important role in the memory of "redemption" that became the dominant narrative. This view, enshrined in Lost Cause literature, was clearly articulated by Thomas Dixon Jr. in The Clansman. In the novel, the Ku Klux Klan of fictional Ulster County restores true men to power and protected white women by disarming a black militia company loyal to the Republican government. The political resurgence of the antebellum white elite took place when "the negroes laid down their arms and surrendered," and "in quick succession every county followed the example of Ulster, and the arms furnished the negroes by the State and National governments were in the hands of the Klan."60 Dixon quickly adapted the story for the stage, and productions [End Page 300]
[End Page 301] toured across the country. The Clansman resonated with Texans, who flocked by the thousands to performances across the state between 1906 and 1908.61 The romanticized memory of black disarmament suggests not only its literal truth (to some degree), but its force as a symbol of "redemption" and the restoration of white supremacy in the South.
Although Southerners reinterpreted the rise and fall of Reconstruction to fit an emerging Lost Cause ideology that denigrated blacks and Republicans, Democrats in power throughout the South quietly retained some Radical measures. One such law in Texas was the 1871 weapons ban, which remained on the books in the state until the 1990s. The provision of the law that underwent substantial change during the late nineteenth century was the penalty for violation. Lawmakers adjusted the fine, experimented with requiring jail time, and finally allowed jailed offenders to be sentenced to labor on county projects or even leased as laborers to county residents. Late-century Democrats walked a line between disliking the weapons ban and repeatedly amending it rather than repealing it. Governor John Ireland, voicing a common opinion among Texas Democrats, claimed that the light penalty for carrying deadly weapons only disarmed law-abiding residents. Opponents of gun regulation today echo this refrain, but where they now see deregulation as the solution, Ireland in 1887 called for stiffer penalties. Only a firm conviction of the ban's importance and effectiveness could have convinced Ireland to keep it when his own argument would otherwise have concluded in a call for repeal.62
Texas Democrats likely kept the weapons ban because they knew firsthand just how effective it could be; enforcement of the law by State Police and local sheriffs successfully reduced crime in Texas, giving Democrats a model to follow when they returned to power.63 If state policemen and sheriffs could use the ban to curb the white-on-black racial violence that Republican lawmakers and U.S. Army officers cataloged during Reconstruction, then Democratic sheriffs, marshals, and constables could use it to recreate the antebellum order and impose white supremacy throughout Texas by enforcing it selectively at the local level. Though clear-cut evidence of selective enforcement is largely absent from legislative and newspaper records, an argument can be made that late-century white [End Page 302] Texans recognized the power of the weapons ban to affect local socioeconomic conditions throughout the state. For instance, in 1889, an El Paso writer commented that lackadaisical enforcement of the arms ban limited the appeal of West Texas to prospective settlers and cost the region much-needed financial investment.64 If West Texans identified the power of the 1871 law to indirectly promote settlement, there is reason to believe that white Texans in counties with a substantial black population could and would use the very same law to achieve their own local goals—one of which was the restoration and protection of Democratic rule and white supremacy.
By the end of the nineteenth century, Texas had changed from a rough and rowdy frontier that gave white men an absolute right to carry weapons into a state that theoretically prohibited all ordinary citizens from carrying weapons in public. Examination of the state's weapons laws indicates that issues of race were inextricably intertwined with arms policies in Texas from the time of the Republic of Texas through the Jim Crow era. Though Indian men owned weapons and used them to harass Texan settlements, state lawmakers consistently tried to cut off neighboring Indian tribes' access to arms and ammunition and frequently funded armed volunteers to make war upon them. Black men, the vast majority of whom were enslaved prior to 1865, had limited access to weapons prior to emancipation and faced disarmament and intimidation both when Democrats controlled the legislature in 1866 and after "redemption" in 1874. The passage and retention of the weapons ban of 1871 demonstrates the centrality of bearing arms to the process of Reconstruction in Texas. Without disarming the population, Republicans could not hope to protect their voters and their minority rule in Texas; only by using their weapons could Democrats create an environment of fear sufficient to restore white supremacy after years of black political participation. Rethinking state weapons-control laws in light of the racial violence that characterized Reconstruction in Texas and throughout the South moves the historiographical conversation about the legality and effectiveness of arms regulation out of the late eighteenth century and into the late nineteenth—the era when the modern gun control measures currently being dismantled across the South first took shape. [End Page 303]
Brennan Gardner Rivas is a doctoral candidate in history at Texas Christian University. The author wishes to express her gratitude to Gregg Cantrell for his vital role in the development of this project. She also thanks Randolph B. Campbell and Ryan Schumacher for their editorial expertise.
1. In later constitutions, notably 1869 and 1876, this language changed slightly to assure the right to "keep and bear arms" subject to some level of legislative regulation. See "Declaration of Rights" in Texas Constitution of 1836, Texas Constitution of 1845, Texas Constitution of 1861, Texas Constitution of 1866, Texas Constitution of 1869, and Texas Constitution of 1876.
2. For an opposing perspective, see Stephen P. Halbrook, "The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights," Baylor Law Review 629 (1989): 645.
3. The racial parameters of citizenship changed over time throughout Texas history. Following independence, anyone within the new category of "free black" lost citizenship enjoyed under Mexican rule but residents of both European and African ancestry became "white" and remained citizens. See Harold R. Schoen, "Legal Status," in Bruce A. Glasrud and Milton S. Jordan (eds.), Free Blacks in Antebellum Texas (Denton: University of North Texas Press, 2015), 98.
4. Significant works on this subject include but are not limited to, Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th-Century American South (New York: Oxford University Press, 1984); Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (New York: Oxford University Press, 1982); and Dickson D. Bruce Jr., Violence and Culture in the Antebellum South (Austin: University of Texas Press, 1979).
5. The only gun restrictions that mostly affected white Texans were prohibitions against dueling, which often went unenforced. Clayton Cramer has made a persuasive case that the rigid enforcement of anti-dueling laws in the 1830s and 1840s actually created higher rates of violence in frontier areas and ultimately prompted several states to outlaw the wearing of concealed weapons in public. See Clayton E. Cramer, Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Westport, Conn.: Praeger, 1999). Texas lawmakers moved in this direction during the 1850s but did not pass a prohibition against concealed weapons.
6. The phrase "absolute right to bear arms" originated from an 1859 Texas Supreme Court decision, but aptly expresses the spirit of all antebellum weapons laws insofar as they pertained to white men. See Cockrum v. State of Texas, 24 Tex. 394, 401 (1859).
7. Pekka Hämäläinen, The Comanche Empire (New Haven: Yale University Press, 2008), 151–152, 162, 167.
8. In addition to Hämäläinen, Comanche Empire, see Brian DeLay, War of a Thousand Deserts: Indian Raids and the U.S.-Mexican War (New Haven: Yale University Press, 2008), 86–105.
9. Journal of the House of Representatives of the Republic of Texas, 1st Leg., Reg. sess. (1836), 242.
10. See Joseph Milton Nance, After San Jacinto: The Texas–Mexican Frontier, 1836–1841 (Austin: University of Texas Press, 1963), 87–88.
11. Alwyn Barr, Black Texans: A History of African Americans in Texas, 1528–1995 (2nd ed.; Norman: University of Oklahoma Press, 1996), 32–33.
12. H. P. N. Gammel (comp.), Gammel's Laws of Texas, 1822–1897 (10 vols.; Austin: Gammel Book Company, 1898), II, 345–346.
13. The bills can be found Journal of the House of Representatives of the Republic of Texas, 8th Leg., Reg. sess. (1843), 113; Journal of the House of Representatives of the State of Texas, 1st Leg., Reg. sess. (1846), 396; Journal of the House of Representatives of the State of Texas, 2nd Leg., Reg. sess. (1847–1848), 149. One bill did not call for unequivocal disarming of slaves, instead requiring authorization for the arming of all non-white persons, including free blacks. See Journal of the House of Representatives of the State of Texas, 3rd Leg., Reg. sess., (1849–1850), 371. (Hereafter, all subsequent citations of this and other editions of Journal of the House of Representatives of the State of Texas will be cited as "House Journal" with the year following in parentheses.)
14. This new law was passed in 1856. See, Gammel (comp.), Gammel's Laws of Texas, IV, 499–500.
15. There are some important exceptions to the state's policy of trying to keep weapons in white hands. The small free-black population of Texas was entitled to own weapons, though they were generally prohibited from serving in militias. Also, urban areas housed "nominal slaves" who operated fairly independently of their masters and outside the oversight of local law enforcement. Many of them were likely able to carry weapons, gamble, and otherwise behave similarly to single white men. See Barr, Black Texans, 25; Nicholas Johnson, Negroes and the Gun: The Black Tradition of Arms (Amherst, N.Y.: Prometheus Books, 2014), 41.
16. House Journal, 2nd Called sess. (1864), 30.
17. David Paul Smith, Frontier Defense in the Civil War: Texas Rangers and Rebels (College Station: Texas A&M University Press, 1992), 74–75, 171. For more detailed accounts of lawlessness in northern frontier counties, see Donaly E. Brice and Barry A. Crouch, Cullen Montgomery Baker: Reconstruction Desperado (Baton Rouge: Louisiana State University Press, 1997); Barry A. Crouch, Larry Peacock, and James M. Smallwood, Murder and Mayhem: The War of Reconstruction in Texas (College Station: Texas A&M University Press, 2003).
18. The terms of surrender offered by Ulysses S. Grant permitted officers to keep their sidearms, but no such provision was made for enlisted soldiers. See General Ulysses S. Grant to General Robert E. Lee, in U.S. War Department, The War of the Rebellion: Official Records of Union and Confederate Armies (128 vols.; Washington, D.C.: U.S. Government Printing Office, 1880–91), Series 1, Vol. 46, 57–58.
19. On the "break up" see Charles W. Ramsdell, Reconstruction in Texas (New York: Columbia University Press, 1910), 27–51; William L. Richter, The Army in Texas during Reconstruction, 1865–1870 (College Station: Texas A&M University Press, 1987), 13; Crouch, Peacock, and Smallwood, Murder and Mayhem, 10–11; and Brad R. Clampitt, "The Breakup: the Collapse of the Confederate Trans-Mississippi Army in Texas, 1865," Southwestern Historical Quarterly 108 (April 2005): 498–534.
20. "Proceedings of the City Council," Flake's Bulletin (Galveston), Dec. 28, 1865; "The Deadly Weapon Order," San Antonio Daily Express, Nov. 21, 1867. See also Donald Curtis Brown, "The Great Gun-Toting Controversy, 1865–1910: The Old West Gun Culture and Public Shootings" (Ph.D. diss., Tulane University, 1983), 21.
21. Smith, Frontier Defense in the Civil War, 75–77. See also Kenneth Wayne Howell, Texas Confederate, Reconstruction Governor: James Webb Throckmorton (College Station: Texas A&M University Press, 2008).
22. House Journal, 11th Leg., Reg. sess. (1866), 199–200.
23. Carl H. Moneyhon, Texas after the Civil War: The Struggle of Reconstruction (College Station: Texas A&M University Press, 2004), 63.
24. House Journal (1866), 879–881.
25. Gammel (comp.), Gammel's Laws of Texas, V, 1128.
26. For discussion of the Mississippi Black Code and its overt disarming of freedmen, see Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (Westport, Conn.: Praeger, 1998), 2–3; On the Texas Black Code, Barry A. Crouch, "'All the Vile Passions': The Texas Black Code of 1866," Southwestern Historical Quarterly 97 (July 1993): 12–34; Moneyhon, Texas after the Civil War, 60–61; Ramsdell, Reconstruction in Texas, 122–125.
27. Crouch, "'All the Vile Passions,'" 22–23, 28–29. See also Carl H. Moneyhon, "Black Codes," Handbook of Texas Online, <http://www.tshaonline.org/handbook/online/articles/jsb01>[Accessed Mar. 10, 2016]; Richter, The Army in Texas during Reconstruction, 61. Violators of the new law could be fined up to ten dollars and imprisoned for up to thirty days for carrying a fire-arm unless they had written consent from the property owner. Gammel (comp.), Gammel's Laws of Texas, V, 1008.
28. Stephen Halbrook has written that "on November 26, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen" in Halbrook, "The Right to Bear Arms in Texas," 653–654. This was the first measure that, on its face, looks like modern gun regulation, but only a narrow reading of legislative history could allow it to be considered the state's first gun control law. As Halbrook recognizes, the law targeted freedmen and thus applied to a segment of the population whose access to firearms had long been regulated by the state legislature.
29. House Journal (1866), 582.
30. Gammel (comp.), Gammel's Laws of Texas, V, 1106–1107.
31. Gen. Philip Sheridan to Gen. Ulysses S. Grant, quoted in Richter, The Army in Texas during Reconstruction, 13.
32. Moneyhon, Texas after the Civil War, 70–82; Donaly Brice, "Finding a Solution to Reconstruction Violence: The Texas State Police," in Still in the Arena of the Civil War: Violence and Turmoil in Reconstruction Texas, 1865–1874, ed. Kenneth W. Howell (Denton: University of North Texas Press, 2012), 187–189; James M. Smallwood, "When the Klan Rode: Terrorism in Reconstruction Texas," in Howell, Still in the Arena of the Civil War: Violence and Turmoil in Reconstruction Texas, 1865–1874, 215.
33. Though black Texans comprised approximately 30 percent of the state's population according to 1867 rolls, they accounted for 45 percent of all Texas voters. This disparity indicates that many white Texans eligible to vote declined to register; the causes of this trend are still unclear. See Randolph B. Campbell, Gone to Texas (2nd ed., New York: Oxford University Press, 2012), 274. For an example of Union League protection in the election of 1869, see Randolph B. Campbell, Grass-roots Reconstruction in Texas (Baton Rouge: Louisiana State University Press), 121–122.
34. Gregg Cantrell, "Racial Violence and Reconstruction Politics in Texas, 1867–1868," Southwestern Historical Quarterly 93 (January 1990): 350; Barry A. Crouch, "A Spirit of Lawlessness: White Violence; Texas Blacks, 1865–1868," Journal of Social History 18 (Winter 1984): 217–232; Dale Baum, "Chicanery and Intimidation in the 1869 Texas Gubernatorial Race," Southwestern Historical Quarterly 97 (July 1993): 37–54; Carl Moneyhon, "The Democratic Party, the Ku Klux Klan, and the Politics of Fear," in Howell, Still in the Arena of the Civil War, 252–253, 260–261; Moneyhon, Texas after the Civil War, 110.
35. Campbell, Gone to Texas, 276.
36. The 1869 guarantee states "Every person shall have the right to keep and bear arms, in the lawful defence [sic] of himself or the State, under such regulations as the Legislature may prescribe." Texas Constitution of 1869 (superseded 1876).
37. House Journal, 1st called sess. (1870), 19.
38. House Journal 1st called sess. (1870), 17–18. The office of the chief of state police would be filled by the adjutant general, a position filled by gubernatorial appointment.
39. I suggest this theory of a milder version for three reasons: first, the legislature passed a much more strict law in its next session in 1871, suggesting Radical displeasure with the original; second, Dallas Democrat John W. Lane moved to suspend the rules so that the bill could progress to its third reading and get through the House quickly, suggesting that Democrats preferred it to the alternative; third, Radical George H. Slaughter fought doggedly to return to an earlier version of H. B. No. 257. He was conveniently absent from the House during the afternoon session of August 10, 1870. See House Journal (1870), 482–483, 960, 964.
40. Gammel (comp.), Gammel's Laws of Texas, VI, 237.
41. Gammel (comp.), Gammel's Laws of Texas, VI, 193–195.
42. On the subtle difference between Special Police and State Police, see Donaly E. Brice and Barry A. Crouch, The Governor's Hounds: The Texas State Police, 1870–1873 (Austin: University of Texas Press, 2011), 3.
43. Significantly, the language of the law did not consider threats against one's property to be substantial enough to warrant an exemption. See debates over proposed amendments House Journal (1871), 523–524; House Journal (1871), 434.
44. The law can be found in Gammel (comp.), Gammel's Laws of Texas, VI, 927–929.
45. "A Good Lesson," Houston Daily Union, June 30, 1871.
46. "The District Court," San Antonio Daily Express, Apr. 2, 1871.
47. House Journal (1873), 33–34.
48. See "The Weapon Law," San Antonio Daily Express, June 21, 1871.
49. Randolph Roth, American Homicide (Cambridge, Mass.: Belknap Press of Harvard University Press, 2010), 341.
50. Report of Special Committee on Lawlessness and Violence in Texas (Austin: Printed at the Office of the Daily Republican, 1868), 7–9. The only weapons specifically mentioned in the report are pistol, revolver, and whip.
51. Horace V. Redfield, Homicide North and South: Being a Comparative View of Crime against the Person in Several Parts of the United States (Philadelphia: J. B. Lippincott and Co., 1880), 64–65, 68. Redfield describes some murders by pistol and others by rifle or shotgun, but he makes sure to tell the story of a pistol-toter getting the better of a rifleman on page 67.
52. Quotation from Crouch and Brice, The Governor's Hounds, 2. On the success of the State Police, see Crouch and Brice, The Governor's Hounds, 170; Moneyhon, Texas After the Civil War, 140.
53. See affidavits, statements, and testimony concerning Limestone and Freestone Counties in House Journal, adj. sess. (1871), 191–240. Quotations from House Journal, adj. sess. (1871), 220, 219, 225, 198. Several historians have addressed the Groesbeck rebellion with varying degrees of specificity; for detailed accounts, see Crouch, Governor's Hounds, 93–116; and Reginald G. Jayne, "Martial Law in Reconstruction Texas" (M.A. thesis, Sam Houston State University, 2005), 59–82. For high-level analysis and contextualization of the riot, see Moneyhon, Texas after the Civil War, 142–143; and Campbell, Gone to Texas, 281.
54. Moneyhon, Texas after the Civil War, 183–186.
55. Carl H. Moneyhon, Edmund J. Davis of Texas: Civil War General, Republican Leader, and Reconstruction Governor (Fort Worth: TCU Press, 2010), 221–223.
56. See English v. State of Texas, 35 Tex. 473, 478 (1871); State of Texas v. Duke, 42 Tex. 455 (1875). Though both courts sustained the 1871 weapons ban, they differed tremendously in other respects. Most significantly, English introduced a precedent that declared constitutional protection only for weapons associated with militia service, excluding pistols, sword-canes, and several other popular weapons used at the time. Though Duke, decided prior to the ratification of the Texas Constitution of 1876, concurred on the subject of legislative regulation, the Roberts-led court overturned the narrow interpretation of protected weapons defined by English. For more information on these cases, see Halbrook, "The Right to Bear Arms in Texas," 659–665; and Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Westport, Conn.: Praeger, 1994), 113–119.
57. Texas Constitution of 1876. For an insightful and informative discussion of the differences between owning and wearing arms, see Halbrook, "The Right to Bear Arms in Texas," 667–668.
58. Gammel (comp.), Gammel's Laws of Texas, VIII, 142, 222.
59. Gammel (comp.), Gammel's Laws of Texas, VIII, 717.
60. Thomas Dixon, The Clansman: An Historical Romance of the Ku Klux Klan (New York: Grosset & Dunlap, 1905), 340–341.
61. For example, see Orange Daily Tribune, Dec. 22, 1908; Abilene Daily Reporter, Nov. 9, 1907; El Paso Daily Times, Dec. 8, 1908; Cuero Daily Record, Dec. 22, 1908.
62. See John Ireland's message House Journal (1889), 21. At the 1875 constitutional convention, former Confederate officer Jacob Waelder expressed a similar opinion. See Seth Shepard McKay, Debates in the Texas Constitutional Convention of 1875 (Austin: University of Texas Press, 1930), 294. Prior to 1887, the penalty for violation entailed a fine ranging from twenty-five to one hundred dollars, forfeiture of the weapon, and no more than sixty days in county jail. After 1887, the penalty entailed a fine ranging from twenty-five to two hundred dollars and jail time between twenty and sixty days. See Gammel (comp.), Gammel's Laws of Texas, VI, 927–929; Gammel (comp.), Gammel's Laws of Texas, IX, 804–805.
63. The law also proved to be popular in some areas, like the crime-ridden frontier counties of North and West Texas. See Brown, "The Great Gun-toting Controversy," 36–40.
64. "An Unwanted Assault," Sunday Herald (El Paso, Tex.), May 18, 1889.