EMBERTON 5/21/2006 10:14 PM THE LIMITS OF INCORPORATION: VIOLENCE, GUN RIGHTS, AND GUN REGULATION IN THE RECONSTRUCTION SOUTH CAROLE EMBERTON* On Monday morning, September 14, 1874, a group of several thousand of the New Orleans’s “best men” barricaded the streets of the French Quarter in preparation for a battle with the city’s racially integrated Metropolitan Police force. The men had answered the call of the Crescent City White League (CCWL), the paramilitary arm of the city’s Democratic establishment, to “defend their rights” against the depredations of the police whose primary transgression had been the seizure of the League’s guns in a raid the day before. The White League fashioned themselves as the city’s new militia bound to protect white citizens’ right to bear arms and defend civilians against the dangers of black policemen. The battle that ensued lasted only a few hours, but it left the government of Louisiana in doubt and the relationship of arms bearing to postwar citizenship at the center of Reconstruction politics. The Second Amendment, however, currently holds no solid place in the social and political history of Reconstruction, and as a result, we are left to wonder about the power of the White League’s call to arms.1 * Ph.D. candidate, History Department, Northwestern University. I would like to thank Saul Cornell, Paul Finkelman, and Carl Bogus for their help in developing my thinking on the Second Amendment. I would also like to thank the other participants at the Stanford Conference and the 2004 ASLH meeting, including David Konig, Sanford Levinson, and Robert Churchill for their thoughtful discussion of an early version of this essay. 1. The standard narratives of Reconstruction pay little, if any, attention to how Democrats and Republicans used the right to bear arms as part of their larger political ideologies; nor do they explore how the controversies over black arms bearing, specifically the enrolling of black militias in the South, brought the Second Amendment to the forefront of Reconstruction political debates. See, e.g., ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863-1877 (1988); MICHAEL PERMAN, THE ROAD TO REDEMPTION: SOUTHERN POLITICS, 1869-1879 (1984). Neither Foner, who argues for Reconstruction’s 611 EMBERTON 5/21/2006 10:14 PM 612 STANFORD LAW AND POLICY REVIEW [Vol. 17:609 While the legal scholarship is not nearly as silent on Reconstruction, the majority of work looking at the Second Amendment after the Civil War is limited in scope, focusing almost exclusively on the question of the Fourteenth Amendment’s incorporation of the right to bear arms as one of the “privileges and immunities” of individual citizenship. The incorporation obsession, which pervades much of the scholarship on the Fourteenth Amendment, hinders our ability to assess the controversies stemming from the arming of black men in the South and their impact on the emergence of a popular understanding of the Second Amendment. This obsession is epitomized in the work of Akhil Amar and others who claim that its framers intended the Fourteenth Amendment to consume or incorporate the Bill of Rights—including the Second Amendment—under its aegis, thereby making it a right of all individuals.2 This work obscures the complexity of congressional and judicial thought regarding the meaning of the Second Amendment after 1866. And more importantly from this essay’s perspective, Amar’s simplistic collective-right- turned-individual-right model completely ignores the important role popular protest played in the unfolding of the Southern militia debate during Reconstruction. Fortunately, recent scholarship is beginning to challenge the incorporation obsession. In his biography of Supreme Court Justice Samuel Miller, historian Michael Ross argues that although Miller restricted the Fourteenth Amendment’s privileges and immunities clause so that states could retain a more radical aspects, nor Perman, in taking the opposite view and criticizing Republicans for being too conservative, looks at the Second Amendment as one of the fundamental Constitutional principles up for grabs during the postwar period. One exception is Otis Singletary’s classic but often overlooked social history of the black militia, which traces the organization, activities, and other social characteristics of the militias but does not link them to a broader conversation about the Second Amendment, the emerging nation-state, or popular politics. OTIS SINGLETARY, NEGRO MILITIA AND RECONSTRUCTION (1957); see also STEVEN HAHN, A NATION UNDER OUR FEET: BLACK POLITICAL STRUGGLES IN THE RURAL SOUTH FROM SLAVERY TO THE GREAT MIGRATION 265 (2003) (expanding upon Singletary’s suggestion that militia organizing played a central role in Reconstruction politics). Saul Cornell has begun to link the Reconstruction militia controversy with the evolution of judicial opinion regarding the Second Amendment. SAUL CORNELL, A WELL REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA (forthcoming 2006). For the most part, however, the social history of Reconstruction and the legal history of the Second Amendment remain separate areas of inquiry. Historians who have considered the CCWL and what came to be known as “The Battle of Liberty Place” have overlooked the League’s call to arms, but their reconstruction of events are nonetheless important. See, e.g., ELLA LONN, RECONSTRUCTION IN LOUISIANA AFTER 1868 (P. Smith 1967) (1918); JOE GRAY TAYLOR, LOUISIANA RECONSTRUCTED, 1863- 1877 (1974). For a fascinating treatment on the memory of the White League’s attack on the city police, see Lawrence Powell, Reinventing Tradition: Liberty Place, Historical Memory, and Silk-Stocking Vigilantism in New Orleans Politics, SLAVERY & ABOLITION, Apr. 1999, at 127, and SANFORD LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES 45 (1998). 2.AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998). EMBERTON 5/21/2006 10:14 PM 2006] THE LIMITS OF INCORPORATION 613 hand in the regulation of business in the Slaughter-House Cases, 3 he did so out of a belief in fundamental agrarian Republican principles that included free labor and a distrust of the power of corporations.4 Although Ross’s explanation for Miller’s much decried abandonment of Reconstruction policy is debatable, the implications of his argument are clear: the conventional focus on formal legal opinion does not reveal the complexities of postwar political thought. More specifically to the case at hand, the incorporation narrative does not satisfy the question of how Republican lawmakers and their opponents envisioned the role arms bearing would play in the wake of unprecedented military mobilization during the Civil War and the inclusion of black men in the nation’s armed forces. As a remedy, I take a cue from Larry Kramer’s recent insights into what he terms “popular constitutionalism” to understand the widening cultural importance of arms bearing in the Reconstruction-era South and its role in the development of a nascent individual rights model of gun ownership.5 Kramer argues that contrary to the views of many legal historians, the processes of Constitutional interpretation “assigned ordinary citizens a central and pivotal role in implementing their Constitution.”6 Kramer identifies a variety of historical moments when ordinary Americans took the Declaration of Independence seriously and acted out their belief that as “the people” they deserved a role in the process of deciding the constitutionality of laws. Through protests, street theatre, and even mobbing, these ordinary people assumed an active role in the process of judicial review. These expressions of popular constitutionalism, Kramer believes, impacted the outcomes of the judicial review in profound ways. It maintained a balance between the branches of government and kept the judiciary from establishing complete supremacy over the process of lawmaking. In particular instances, such as the Dred Scot case, popular dissatisfaction with Chief Justice Roger Taney’s heavy-handed decision against the citizenship rights of African-Americans initiated a revolution in legal thought that was to favor a more liberal, activist view of government and state intervention on behalf of the burgeoning idea of civil rights. But popular constitutionalism did not always ensure an expansion of civil or political rights. Ordinary people acted out their vision of the Second Amendment by joining organizations such as the White League and struggled along with and sometimes against Congress and the courts in deciding how the 3. 83 U.S. 36 (1873). 4.MICHAEL A. ROSS, JUSTICE OF SHATTERED DREAMS: SAMUEL FREEMAN MILLER AND THE SUPREME COURT DURING THE CIVIL WAR ERA (2003). 5.LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004). Kramer’s work strikes a challenge at the heart of the legal history discipline, which has resulted in some strident criticism from its practitioners. See Laurence Tribe, The People’s Court, N.Y. TIMES BOOK REV., Oct. 24, 2004, at 32-35 (book review). 6.KRAMER, supra note 5, at 7-8. EMBERTON 5/21/2006 10:14 PM 614 STANFORD LAW AND POLICY REVIEW [Vol. 17:609 Second Amendment should apply to freedmen in a post-emancipation society. Intense federal legislation like the 1868 militia law, which allowed African- Americans to be included in Southern state forces, and later the Enforcement Acts, in addition to a variety of state-level action restricting the use of personal firearms and