Anti-Gun States Adopt the Jim Crow Playbook

In its recent Wolford v. Lopez ruling, the Supreme Court expressed surprise that Hawaii would rely on an outlier “Black Code” implemented shortly after the Civil War by a defeated Confederate state that was trying to keep freed former slaves disarmed in public.

The majority opinion stated that “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.” Justice Barrett’s concurring opinion was even harsher: “It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction.”

While the ruling was correct, the Court’s surprise was misplaced and seems to indicate that the Justices not have been paying attention to the Jim Crow-style tactics several antigun states have embraced to undermine the Second Amendment.

The mainstream news media have been ineffective on these issues, failing to press political leaders in those states to explain their support of these tactics even as they hypocritically claim that voter ID proposals are racist or classist.

Fortunately, lawsuits by gun rights advocacy organizations, as well as the new Second Amendment Section within the United States Department of Justice, have begun to address some of these abuses. Still, several examples are worth further discussion, beginning with the SAVE Act hypocrisy.

Democrats Have Adopted SAVE Act-on-Steroids Requirements and ‘Jim Crow 2.0’ When It Comes to the Second Amendment

The Safeguard American Voter Eligibility Act — the SAVE Act — would amend federal voter registration law to require applicants to present documentary proof of U.S. citizenship before they can register to vote in federal elections. Such proof could be a passport, a birth certificate paired with photo ID, naturalization papers, or a REAL ID that indicates citizenship. It also pushes states to scrub non-citizens from their voter rolls using federal data, and requires that ID be presented when voting.

Democrats and allied groups have responded hysterically with fiery rhetoric in opposition to the bill, often directly linking it to the legacy of Jim Crow. Representative Jonathan Jackson called it “a direct descendant of the Jim Crow laws” and “a modern-day poll tax.” Representative James Clyburn derided it as “nothing but a throwback to those laws that were passed after Reconstruction that made it impossible for African Americans to get elected.”

Senator Chuck Schumer similarly said “[t]he SAVE Act is nothing more than Jim Crow 2.0.” He continued:

If you’re one of the tens of millions of U.S. citizens who does not have access to your birth certificate, or if you’re one of the 50% of Americans who do not have a passport, the SAVE Act could make it impossible for you to participate in elections … It comes out of some right-wing brain that thinks certain people really should not vote, that some citizens are more valuable than others.

Senator Schumer is exaggerating the difficulty of getting a compliant ID under the SAVE Act. But ironically, his hometown of New York City requires all of that and much more to exercise the Second Amendment right to carry a handgun for self-defense.

To get a carry permit in the city, the applicant must have all of the following documentation:

1. Valid state or federal photo ID.
2. Proof of Date of Birth, which may come from one of the following:
– Birth certificate
– U.S. Passport
– Military Record.
3. Social security card.
4. Proof of Citizenship or legal residence, through one of the following:
– Passport
– Naturalization documents
– Alien registration card
5. Proof of residence through a utility bill, or current lease and signed and filed income tax return with matching address.
6. DMV Lifetime Abstract
7. Notarized affidavit from every adult co-habitant.
8. Acknowledgement of person agreeing to safeguard firearms form, AND a copy of their photo ID.
9. Affirmation of Understanding of NYS Penal Law Article 35, Article 265, and Article 400.
10. FOUR notarized character reference letters.
11. List of social media accounts for the last three years. (NOTE: This one was enjoined by the courts as unconstitutional.)

Several additional documents are also required if they’re applicable, such as military discharge paperwork for those who served, and arrest documentation if you’ve ever been arrested.

And, of course, the applicant will also need to complete an 18-hour training course and provide proof of that as well. The application alone costs $340, plus about $90 for fingerprints. The cost of the training course is usually around $400.

By comparison, the SAVE Act’s requirements are trivial and, of course, there’s no fee to register to vote. If the SAVE Act is allegedly “Jim Crow 2.0,” what does that make the permit to carry application process in New York City?

As far as I can tell, no reporter has ever asked Schumer (or any other Democrat who’s critical of the SAVE Act) about this blatant hypocrisy. That’s a massive failure of journalism and should be immediately corrected. Democrats shouldn’t be allowed to continue to bash the SAVE Act as “Jim Crow 2.0” when they’ve implemented far worse measures to attack the right to carry.

The Second Amendment is not a second-class right. If it’s “racist” to require an ID to vote, then it’s obviously far more racist to impose this bureaucratic obstacle course to exercise the Second Amendment.

California Blocks Huntington Beach’s Voter ID Law, but Does Nothing to Stop Counties and Cities from Implementing Exorbitant Fees and Lengthy Wait Times to Undermine the Right to Carry

As the Smithsonian’s website explains of Jim Crow efforts to turn away black men from voting:

Denying black men the right to vote through legal maneuvering and violence was a first step in taking away their civil rights. Beginning in the 1890s, southern states enacted literacy tests, poll taxes, elaborate registration systems, and eventually whites-only Democratic Party primaries to exclude black voters.

The laws proved very effective. In Mississippi, fewer than 9,000 of the 147,000 voting-age African Americans were registered after 1890. In Louisiana, where more than 130,000 black voters had been registered in 1896, the number had plummeted to 1,342 by 1904.

California politicians say they take this shameful history seriously. So when the City of Huntington Beach tried to implement its own voter ID laws following a majority vote of its residents to adopt such a measure, Attorney General Rob Bonta sprang into action.

He sued the city, saying that “[i]mposing unnecessary obstacles to voter participation disproportionately burdens low-income voters, voters of color, young or elderly voters, and people with disabilities.” The legislature soon followed, passing S.B. 1174, which prohibited local governments from requiring voters to present identification when casting their ballots.

If Bonta is correct that a simple voter ID law does so much damage, though, then it’s stunning that he has taken no action to stop far worse local abuses when it comes to the Second Amendment.

For example, in Santa Clara County, applicants for a carry permit now pay a $488 initial fee, a $488 issuance fee, a Live Scan fee (about $100), the training course expense ($200 to $400), and a psychological examination fee (around $500). Applicants can thus expect to pay around $2,000 in Santa Clara to exercise their constitutional right to carry, so long as they remember to renew it every two years ($477 plus an eight-hour training course).

We at the Second Amendment Foundation sued to stop this unconstitutional abuse in Blank v. Santa Clara County. The U.S. DOJ’s new Second Amendment Section, under the leadership of AAG Harmeet Dhillon and Section Head Barry Arrington, has also filed suit against the City of San Jose’s even higher fees, which total around $2,500 when all expenses are included.

Finally, Bonta acted and moved to intervene in our lawsuit. Unfortunately, he did so to help defend the power of localities to charge these additional “local fees,” without acknowledging the irony of his position given his prior opposition to voter ID laws, which involve a tiny fraction of the expense. Clearly, to Bonta, the right to carry is a second-class right, if it even is a right at all.

It’s no secret that Bonta does not respect the Constitution except when it suits him, but he also does not even respect his duty to enforce California law. That is proven in the waiting times context. Remember, even if Bruen did not exist, exceedingly long wait times for a CCW permit really should not be an issue in California, because the state sets a time limit in its laws. Under Penal Code section 26205(a), licensing authorities in most circumstances must approve or deny an application within 120 days.

The problem is that the law is completely ignored. Several counties and cities take over a year to issue a permit. The Los Angeles County Sheriff’s Department was taking about two years, which is why SAF and other gun rights organizations sued them. But before we filed that lawsuit, we had sent Attorney General Bonta a letter demanding that he enforce the time limit of the Penal Code against Los Angeles and every other issuing authority taking more than 120 days.

He never even bothered to respond to the letter. Our lawsuit eventually succeeded, with an assist once again from the U.S. DOJ. Following our successful preliminary injunction on behalf of the individuals in our case, Los Angeles settled and now processes applications within the 120 days required by state law.
But that was no thanks to Attorney General Bonta. When it comes to the Second Amendment, he is firmly on the side of modern Jim Crow-style tactics, even as he acts quickly against far less burdensome voter ID requirements.

Modern Excise Taxes and Purchase Permit Schemes Echo Jim Crow Gun Taxes of the Nineteenth Century

For my third and final example, I will close with the recent efforts to place “sin taxes” on firearms. I recently released a working paper on this history.

While poll taxes and literacy tests were the most well-known tactics used by the Jim Crow South to prevent Blacks from voting, another major goal of those racist state governments was disarmament of the Black population. They were often helped by domestic terrorists like the Ku Klux Klan. President Ulysses S. Grant specifically criticized this disarmament goal when he wrote in a letter to Congress in 1872 that the Klan’s objectives were “by force and terror, to prevent all political action not in accord with the views of the members, to deprive colored citizens of the right to bear arms…and to reduce the colored people to a condition closely akin to that of slavery.”

But where direct disarmament failed, permitting systems and taxes were employed to finish the job through expense and burden.

For example, an 1893 Florida statute required owners of Winchesters and other repeating arms to apply for a license from the board of county commissioners. That sounds like a racially neutral licensing law, but the history reveals it is anything but. In 1941, an aging Florida state supreme court justice who had previously served in the legislature confirmed its racist intentions, concurring in Watson v. Stone that the law was never intended to be enforced against white people:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.

The same applied to many arms taxes of the era. An 1867 Mississippi law is the most blatant example. It assessed a tax of between five and fifteen dollars on “every gun and pistol” and required sheriffs to seize weapons from those who could not pay. But this law applied only in Washington County, Mississippi—a county that was 92% enslaved as of the 1860 census and remains over 70% African American today.

The modern taxes that copy these tactics, of course, are not so overt in their racism. But taxation and registration requirements still have the most detrimental effects on low income communities, which are often disproportionately made up of people of color.

Such is the case with California’s 11% excise tax on guns and ammunition, which Governor Newsom openly called a “sin tax.” And it is also the case with a bill he just signed which will now require a four-hour training course before Californians can buy a gun. That includes a live-fire component, and the bill does not clarify how that is supposed to work for people who do not yet own a gun to use in such a course. Judging by the cost of carry permit courses, the four-hour course is likely to cost at least $100, and likely more.

Colorado has implemented similar requirements, placing a 6.5% excise tax on firearms, and requiring a training course for the purchase of certain firearms. Other states such as Minnesota and Virginia have recently considered similar taxes, though they have not passed for now.

The US DOJ also recently sued Minnesota because its purchase permit process takes more than 30 days to complete, arbitrarily delaying the exercise of the right to keep and bear arms.

The shameful legacy of poll taxes and literacy tests lives on in antigun states, which are copying the same tactics to undermine the Second Amendment, just as southern states employed them to deny a variety of constitutional rights (including the Second Amendment) to Black Americans.

Conclusion

Hopefully this article has successfully drawn some attention to a disturbing trend. As noted, thus far our media has mostly failed to notice this. Politicians and local leaders embracing Jim Crow-style strategies to undermine the Second Amendment deserve to face constant scrutiny, particularly when they hypocritically condemn these methods in any other context.