The Black Panthers and the Right to Keep and Bear Arms in California

The status quo on the right to keep and bear arms in California was generally maintained from the 1923 “may issue” permit system for concealed carry (with open carriage of firearms being allowed as there was no law against it) until the 1967 passage of strict gun control called the Mulford Act under Governor Ronald Reagan, which prevented open carry.  The reason behind this system, where open carry was allowed but concealed carry was not, is not exactly linear.  The state, long after dueling culture was abandoned, effectively banned concealed carry though a permit system where permits were usually not handed out as a way to control Chinese and Mexican Hispanic access to arms, not to dampen honor culture, which was the original reason for the first wave of 19th Century concealed carry laws in the South.  California had even repealed a concealed carry ban that was in effect from 1863-1870.  However, because there was concern that a total ban on any kind of carriage of arms would be a violation of the Second Amendment, open carry was allowed in public places, even if it was perhaps socially unacceptable at times as the Black Panthers’ actions show.  What remained after the Mulford Act was a very restrictive concealed carry permit system and a very restrictive open carry system, effectively limiting the right to keep and bear arms to one’s property.

The Black Panther Party, formed in 1966 in Oakland California, and they explicitly took the idea of the Second Amendment, using arms against an oppressive government, to its logical conclusion, given their perception of the police as an occupying force.  Whether the Oakland police in 1966 were an oppressive government akin to the British in 1776 is a matter of subjective interpretation, let alone if the other methods and activities of the Black Panthers such as robbery, drug dealing, blackmail, torture (Pearson 1995, Coleman 2003) and murder (D. Horowitz 2017, D. Horowitz 1999) made them true revolutionaries.  But if we are to axiomatically assume they were true revolutionaries and the Oakland police at least as oppressive as the British redcoats, then the Black Panthers, in the context of Bull Conner on their television sets, had correctly applied the interpretation of the Second Amendment as Alexander Hamilton did in Federalist 28:

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.  In a single state, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense.  The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

The Black Panthers and their use of firearms were self admittedly inspired by Malcolm X, who had said that, “we must defend ourselves by any means necessary” and that “Article number two of the constitutional amendments, provides you and me the right to own a rifle or a shotgun” (Winkler 2013, 233).  The co-founders of the Black Panthers, Huey Newton and Bobby Seale were well aware of what they were doing, and they characterized their right to use guns in self-defense in the constitutional terms of Malcolm X and Alexander Hamilton.  Black Panther Seale said of the organization’s co-founder, “Huey was on a level where he was ready to organize the black brothers for a righteous revolutionary struggle with guns and force” (Winkler 2013, 233).  Huey Newton, having gone to law school and knowing where the legal limits lay, as part of that revolutionary struggle, had the Black Panthers openly carrying weapons, lawful under California code at the time.  To harken back to this book’s noting of the difference between subjects and citizens, a key distinction being whether they could carry arms or not, Huey Newton said that, “with weapons in our hands, we were no longer their subjects, but their equals” (Winkler 2013, 237). 

But the protests by the Black Panthers deserve to be more than glossed over, as they typically are, when they are used as a way to point out hypocrisy on the part of gun rights advocates such as Ronald Reagan.  It is a vital event in both the nation’s history on the right to keep and bear arms, but also the larger civil rights struggle.  In the course of this case study on California, an extensive examination of contemporary sources reveals that there is more to the narrative than just the charge of hypocrisy leveled by black power advocates against the white majority power structure for banning open carry as revenge against the Black Panther’s constitutional use of the right to keep and bear arms.  

The first thing to note is that even though there was controversy when 30 armed Black Panthers marched on the California capital in 1967, the passage of the Mulford Act was by no means a sure thing; moreover, an examination of the legislative history of the act through the California state archives reveals that the law was proposed on April 5, almost a full month before the Black Panther’s march, which was on May 2.  Therefore, the claim that the Mulford Act was passed solely in retaliation for the Black Panther march is flat out wrong, and this mistake is constantly being repeated in the popular press.  There is only limited anecdotal evidence that the Mulford Act was directly targeted at the Black Panthers, and furthermore, the actual passage of the Mulford Act only occurred after the Detroit Riots gave special impetus to urban issues. 

The Black Panthers formed in October 1966.  According to the group, they began “copwatching” (Simonson, 2016) in an armed state only between February 1967 and the passage of the Mulford Act on July 28 of 1967 (Winkler 2013), when the new law prevented it.  A search of the California Digital Newspaper Collection and the Newspaper Archive for California of October 1 through May 1, 1967, reveal a few small articles on the Black Panthers, mostly on back pages.  A February 1967 blurb mentions the formation of a black nationalist political party and another details an armed escort for the widow of Malcolm X at an airport; they were asked to stay out of the building except for three or four of them, “but they refused outright”; a deputy sheriff is quoted as saying, “None of the 14 concealed their weapons, so we allowed them to meet her and escort her away.”  The article concludes with “there is no law against carrying guns openly in California” (1967).   The San Francisco Examiner (Winkler 2013) has an article on April 30, 1967, about the Black Panthers carrying guns to protest what authorities were stating was a justifiable homicide by police officers of a black man during an armed robbery.  Yet this article is 25 days after the introduction of the bill that would become the Mulford Act on April 5. The bill to prevent armed cop watching by the Black Panthers is introduced almost a month after there is any evidence to show that it was newsworthy.  That the Panthers were shocking the public by openly carrying guns about is undoubtably true, that is, when it was actually reported on in the press for the wider public to know about.  With limited publicity, it’s not clear that these activities themselves prompted the Mulford Act.

Searches in the newspaper archives for the terms “armed negroes” and “armed negro,” which would encompass any media reports of the Black Panther’s armed activities reveals only two articles related to the Black Panthers.  The first article is from April 21 (again, after the introduction of the Mulford Act on April 5) and is a reiteration of the Black Panther’s protests related to the aforementioned justifiable homicide, in the Appeal Democrat (UPI 1967).  There is a short story about how eight “armed negroes attempted to enter the courthouse for a conference” on the case.  Black Panther co-founder Huey Newton is mentioned specifically by name, and the incident was de-escalated by a man that history surely deserves to give more credit to, a police chief named Dave Krystick, who persuaded the Black Panthers to put their guns in their cars before they went inside to talk.   

Simultaneous to the Black Panther activities, press articles state that the NAACP repudiated the term “black power.”  Roy Wilkins, the national executive director of the NAACP stated, “What we oppose is the doctrine that Negroes should stand in armed readiness to retaliate and deal out punishment on their own” (1966).  The article does not mention the Black Panthers by name.  There were also national reports of armed blacks confronting whites in Milwaukee, Wisconsin, and Bogalusa, Louisiana, related to school integration efforts during the aforementioned time period, but no incidents in California or in the California Press.  Indeed, as Professor Johnson in his book Negroes and the Gun: The Black Tradition of Arms (2014) notes, the use of arms by blacks to resist white mobs and in individual self-defense was widely reported on in the press and had been increasing steadily since the turn of the 20th Century.  Therefore, these cases are hardly something exemplary. 

None of the contemporaneous news articles about California actually talk about cop watching, but rather armed political protests or the Black Panthers acting as bodyguards.  As for the supposed extremis of the Mulford Act’s ban on open carry in California, an open carry ban was hardly unprecedented.  Just a few years previous to the Mulford Act, Illinois had instituted such a ban in 1962 after banning concealed carry back in 1949 (R. Long 2013).  So why do so many sources, even academic ones, say that the Mulford Act’s ban on open carry was proposed in response to the Black Panthers armed cop watching?  It is because two of the Black Panthers’ memoirs say it was about them, but with little to back those assertions up.

According to Bobby Seale’s memoir, Huey P. Newton of the Black Panthers felt that AB 1591 (the bill that would become the Mulford Act) was being introduced in the legislature due to their cop watching, so he organized their march, 

We’re going to the Capitol.  Mulford’s there [the sponsor of the bill], and they’re trying to pass a law against our guns, and we’re going to the Capitol steps.  We’re going to take the best Panthers we got and we’re going to the Capitol steps with our guns and forces, loaded down to the gills.  And we’re going to read a message to the world, because the press is always up there. They’ll listen to the message, and they’ll probably blast it all across this country.  I know, I know they’ll blast it all the way across California.  We’ve got to get a message over to the people. (1968, 148-149)

However, this personal recollection by Bobby Seale was written over a year after the passage of the law and smacks of backwash reasoning, especially as the proposed bill had been sitting around the legislature since April 5, only to have him spurred to sudden action on May 2, almost a month later.  Huey P. Newton, however, said he heard about it on the radio and read about it in the paper, but again this recollection was written six years later.  In his book Revolutionary Suicide (1973, 145), Newton says:

In April, 1967, we were invited to appear on a radio talk show in Oakland, the kind where people phone in questions and make comments….

One of the callers was Donald Mulford, a conservative Republican state assemblyman from Piedmont, one of the wealthy, white sections of Oakland.  Mulford was so close to Oakland’s power structure that his call could only mean he saw political profit in attacking the Black Panthers.  [Mulford] told us that he planned to introduce a bill into the state legislature to make it illegal for us to patrol with our weapons.  It was a bill, he said, that would “get” the Black Panthers.  Mulford’s call was a logical response of the system.  We knew how the system operated. If we used the laws in our own interest and against theirs, then the power structure would simply change the laws.  Mulford was more than willing to be the agent of change.  A few days later, the paper carried a story about Mulford’s “Panther bill.”  In its particulars it was what we had expected—a bill intended to suppress the people’s constitutional right to bear arms.  Until then, white men had owned and carried weapons with impunity.

While is possible that Representative Mulford did call into a radio show and say on air that he would introduce a bill to prevent the armed patrols and to “get” the Black Panthers on account of a request of the Oakland police, no transcript of this phone call exists.  While of historical worth, is also of circumstantial worth.  Many scholarly secondary sources circle cite each other on this memoir as a verified fact.  Even if Representative Mulford and his co-sponsors put the bill into action to put a stop to the armed patrols of the Black Panthers and if Huey Newton did actually follow the California legislative agenda, there was no California press about it.  There is only a blurb in the Pasadena Independent on May 19 stating that a “Panther bill” was being postponed by the committee to study the measure, which was “strengthened following the May 2 ‘invasion’ of the capital” (emphasis added) (1967). 

Logically, Huey Newton must have heard at some point about the proposed law change to end armed open carry, regardless of the reasons behind it, because he and Bobby Seale’s memoirs describe Newton’s snap decision to drive the 80 miles from Oakland to Sacramento on May 2 with very little planning ahead to try to create a media event.   The press was present that day only by dint of fate because they were covering a feel-good event with the governor and schoolchildren (Winkler 2013). 

When it came to the actual “Panther bill” legislation in the California legislature, the passage of the AB 1591, which would later become the Mulford Act, was by no means a sure thing, and again the timeline of the passage of the bill weakens significantly the theory that it was passed just because of the Black Panthers.  It took over a month to work its way through the state assembly, from the April 5 introduction until it was passed out of the lower house on June 8, which was over month after the Black Panther’s armed march on May 2.  On June 8, according to the legislative daily record available in the state archives online, a parliamentary procedure known as an “urgency clause” was adopted to make AB 1591 effective immediately should it pass, and it passed the lower house on a close vote.  That it came more than a month after the Black Panther’s march clearly showing it was not a priority among what the legislative record shows was a very busy schedule.  After passing out of the lower house, AB 1591 sat around in the Senate from June 8 until July 26 with no action whatsoever.  After a meeting between Representative Don Mulford and Governor Reagan on June 26, which is only captured in the legislative record as an explanation of why Representative Mulford had missed some roll call votes, Mulford reported back to the lower house to explain that the Senate had passed AB 1591.  Another “urgency clause” was adopted on June 26 by the Senate, final legislative votes were on June 27 in both houses and it was enrolled on June 28 and was sent to Governor Reagan at 9:00 a.m.; it was signed that same day. 

So why the rushed passage on June 26 through 28 after the bill had sat around for months?  Even after the May 2 armed march by the Black Panthers on the capital, it is likely that the law would not have passed restricting open carry, Bobby Seale and Huey Newton’s self-aggrandizement non-withstanding.  More likely, the rushed passage and signing of the Mulford Act, which only passed on narrow votes, was spurred on by the Detroit Riot of 1967, which went from July 23 through July 27 of 1967, an event that riveted the attention of the nation at the time, which resulted in tremendous property damage and 43 people dead.  While the riots were still going, Representative Mulford did not let a crisis go to waste and pushed his bill through. 

In a press conference the day of the Black Panther march, Governor Reagan said, “There’s no reason why on the street today a citizen should be carrying loaded weapons,” and that guns were a “ridiculous way to solve problems that have be to solved among people of good will” (Winkler 2013, 245).  But scholars smash this May 2 press conference (an impromptu one indeed) with Governor Reagan’s statements after passage of the Mulford Act, 85 days later, to make the case that the Black Panthers were the immediate proximate cause of the law.  After the act was rushed through and signed in the wake of the Detroit Riot, yet some 85 days after the armed protest march, Governor Reagan naturally defended a law he had just enacted, and he did so as a measure of moderation, saying, “I do not think any true sportsman or gun lover could be against this, I do not think there is anything restrictive in it.  I’d be the first to be against any restrictive gun law,” (UPI 1967).  Moreover, the main sponsor of the bill, Representative Mulford, at the same press conference said; “This may become a model for other states to adopt constitutional gun laws to prevent violence but protect the constitutional right to keep arms.”  The new report of the signing of the Mulford Act into law concludes that “armed members of the militant Black Panther Party for Self-Defense stormed into the Assembly chamber May 2 to protest the legislation. As a result of the demonstration, the bill was strengthened (UPI 1967, emphasis added).  The article, the remarks of the governor, and the bill’s primary sponsor frame the decision to pass the law as a response to urban violence and notes that the actions of the Black Panthers only strengthened the already proposed law rather than the Black Panther’s march instigating the law itself.

Although the armed cop watching and the march on Sacramento by the Black Panthers entered the larger hagiography of the Civil Rights movement as an important watershed, where the American white power structure was forced to confront the incongruousness of a constitutional amendment that provided for an armed public and simultaneously the lack of integration of its largest racial minority, a reasonable examination of primary and contemporaneous sources that are available (newspapers, legislative agendas, and speeches) reveals that the incidents that played out so explosively in Bobby Seale’s book Seize the Time: The Story of the Black Panther Party and Huey P. Newton (1968), Huey P. Newton’s Revolutionary Suicide (Newton 1973) and Spike Lee’s A Huey P. Newton Story (2001) merited small contemporaneous mention in the pages of California newspapers, and with no particular outrage about their actions until the use of the word “invasion” was used to describe the May 2 armed protest.  The timing of the introduction of the law, long before their protest, and the signing of the law the day after the Detroit Riot, along with the words of the sponsor and governor, show it was as much a response to urban rioting as the Black Panther’s militant agitation.  There is plenty of reason to conclude, in contrivance of popular history and other scholarly work that relied on secondary sources and after-the-fact memoirs written by the Black Panthers themselves who were to self-interested to be fully trusted without verification, that the Black Panthers march did not cause the Mulford Act; they merely caused an already proposed bill to be strengthened, ultimately in contrivance of their larger revolutionary struggle. 

Meanwhile, a debate within the black community was being played out on the role of guns within the Civil Rights Movement regarding where to draw the line between legitimate self-defense and how to handle provocateurs like the Black Panthers and their advocacy of armed political violence.  While armed patrols of residents protected black neighborhoods after the 1963 church bombing in Birmingham (amongst many other examples), within a few short years and with increasing radicalization, the black community moved away from its traditional use of arms, which was characterized by MLK in terms of self-defense only; “Violence exercised merely in self-defense, all societies, from the most primitive to the most cultured and civilized, accept as moral and legal (Johnson 2014, 27). 

As for the Black Panthers themselves, Bobby Seale served time in prison for contempt of court for his repeated outbursts during his trial for conspiracy and instigating a riot at the Chicago 1968 Democratic Convention (Osnos 1999), then went on trial for the murder of a fellow Black Panther in 1970.  In the case, the trigger pullers admitted their guilt and were convicted; the only question was whether Black Panther leaders Bobby Seale and Ericka Huggins were involved.  A mistrial was declared after the jury was unable to find a verdict (Oelsner 1971).  Seale ended his affiliation with the Black Panthers in 1974, after a confrontation with co-founder Huey Newton, reportedly where he was severely injured (D. Horowitz 1999).  The Black Panther organization withered after his departure.  At the time, the main activity of the Black Panthers, according to interviews with Seale himself given decades later, was the Oakland drug trade. 

Huey Newton, who instigated the May 2 Black Panther march, was freed after a third trial for the murder of a police officer after the government failed to get a conviction (Associated Press 1971).  After a time meandering, then jumping bail to Cuba to escape a 1974 murder charge for allegedly shooting an underage prostitute, he was eventually acquitted on his return in 1977; he eventually went on to earn a Ph.D. in philosophy in 1980 (Associated Press 1989).  However, his drug addiction got the better of him, and he was found shot dead outside of an Oakland crack house in 1989 (Crouch 1989).