The former states of the Confederacy, many of which had recognized the right to carry arms openly before the Civil War, developed a greater willingness to qualify that right after the passage of the Fourteenth Amendment. One especially absurd example of how far a state was willing to go to qualify the right to bear arms, and one that includes strong evidence of the racist intentions behind gun control laws, is a decision made in Texas. In 1859 in Cockrum v. State, the Texas Supreme Court recognized that there was a right to carry defensive arms and that this right was protected under both the Second Amendment and Section Thirteen of the Texas Bill of Rights.
[SUP](46)[/SUP] The outer limit of the state's authority (in this case, attempting to discourage the carrying of bowie knives) was that it could provide an enhanced penalty for manslaughters committed with bowie knives, but could not prohibit their being carried.
[SUP](47)[/SUP] Yet, by 1872 in English v. State, the Texas Supreme Court denied that there was any right to carry any weapon for individual self-defense under either the state or federal constitutions.
[SUP](48)[/SUP] Rather than explaining or justifying why the
Cockrum decision was no longer valid, the court merely explained that the issue of the right to bear arms "was not fairly before the court" in
Cockrum.
[SUP](49)[/SUP]
What caused the dramatic change? The following excerpt from the
English decision reveals how racism permeated legal thinking:
We will not say to what extent the early customs and habits of the people of this state should be respected and accommodated, where they may come in conflict with the ideas of intelligent and well-meaning legislators.
A portion of our system of laws, as well as our public morality, is derived from a people the most peculiar{21** perhaps of any other in the history and derivation of its own system. Spain, at different periods of the world, was dominated over by the Carthagenians, the Romans, the Vandals, the Snovi, the Allani, the Visigoths, and Arabs; and to this day there are found in the Spanish codes traces of the laws and customs of each of these nations blended together in a system by no means to be compared with the sound philosophy and pure morality of the common law.
[SUP](50)[/SUP]
Throughout the South during the post-war period, the existing precedents that recognized a right to openly carry arms under state constitutional provisions and the Second Amendment were being narrowly construed or simply ignored.
[SUP](51)[/SUP] The apparent goal of the gun control and vagrancy laws was to intimidate the freedmen into an economically subservient position. By making the freedmen defenseless, employers could be more confident that intimidation would keep their hired hands "in line."
