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Arms and the Several States

A Bureau agent stands between armed groups of Southern whites and Freedmen in this 1868 picture from Harper's Weekly.

A Bureau agent stands between armed groups of Southern whites and Freedmen in this 1868 picture from Harper’s Weekly.

My last post discussed how John Paul Stevens, late of the Supreme Court, and author Michael Waldman advance a stingy, substantively empty view of the Second Amendment by ignoring the Constitution’s framework of limited, enumerated powers. That critique, of course, only goes to federal authority. The right to arms enforceable against the states rests on the Fourteenth Amendment.

The Fourteenth Amendment is especially important to citizens of the eight states that do not have explicit right-to-arms provisions in their constitutions. And for our purposes here, it is important for the other glaring flaw that it reveals about the Stevens/Waldman methodology.

The evidence is overwhelming that the Fourteenth Amendment was intended to guarantee former slaves the rights of American citizenship, starting with the guarantees of the first eight amendments to the Constitution, including an individual right to keep and bear arms.

Almost as soon as the shooting war stopped, Southern governments attempted to establish de facto slavery through a variety of state and local laws. Racially targeted gun prohibition was a common theme of these Black Codes. The freedmen’s concern was having arms for private self-defense and decidedly not about propping up the militias of the states recently in rebellion. Indeed, those state militias were often the enforcers of the Black Codes, so they were among the hazards Blacks needed to arm against. Even before the war’s end, the dynamic was plain. Witness President Lincoln’s instruction in the Emancipation Proclamation: “I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense.”

In 1866, the Second Freedman’s Bureau Act explicitly guaranteed to freed slaves “the constitutional right to bear arms” as a block against the racist gun prohibitions in the Black Codes. The Freedman’s Bureau Act also charged the occupying army with protecting the freedmen’s individual rights, including the right to arms.

Union Army officers and Freedmen’s Bureau agents worked to protect Blacks’ right to arms for self-defense and testified before Congress about the importance of vindicating this right. Black newspapers widely distributed the orders of the occupying army guaranteeing Blacks the constitutional right to arms for self-defense. Newly formed Black political organizations and state conventions filed numerous petitions with Congress pleading for protection of their right to arms for individual self-defense. In a May 1865 speech in New York, the great Black abolitionist Frederick Douglass lamented that “the Legislatures of the South can take from [the freedmen] the right to keep and bear arms” and that the work of the abolitionists was not finished until that right was enforceable against state governments.

These and other infringements on the basic rights of citizenship fueled the adoption of the Fourteenth Amendment. Senator Jacob Howard (R-MI) introduced the amendment by explaining that its “great object” was to “restrain the power of the states and compel them in all times to respect these great fundamental guarantees secured by the first eight amendments of the constitution, [including] the right to keep and bear arms.”

Justice Clarence Thomas’s powerful concurrence in McDonald v. Chicago (2010) explains how the Fourteenth Amendment aimed to repair the damage of the Supreme Court’s 1857 Dred Scott decision, which denied Blacks the privileges and immunities of citizens. Dred Scott was candid about what was at stake, declaring that if Blacks were deemed citizens they would have “the right to keep and carry arms wherever they went.”

Concurrent with the Fourteenth Amendment debate, Congress also passed legislation abolishing the Southern state militias. This was necessary, said one of the sponsors, because the state militias had been used to disarm the freedmen. The Supreme Court underscored the point in District of Columbia v. Heller (2008), explaining: “Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia.”

This is just a sampling of a story so rich that it would fill a book. In fact, it has filled several, including my Negroes and the Gun: The Black Tradition of Arms (2014); Stephen P. Halbrook’s, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998); Charles E. Cobb Jr.’s This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible (2014); and Akinyele Omowale Umoja’s, We Will Shoot BackArmed Resistance in the Mississippi Freedom Movement (2013).

So what do militia-fixated critics of the right to arms have to say about all this? Well, not much. Because if you aim to neuter the right to arms with claims that the amendment is only about militias, you really do have to ignore the Civil War, Reconstruction, the postwar amendments, and indeed most of the 19th century (including antebellum state court decisions holding that the Second Amendment protects an individual right to arms enforceable against the states).

Ironies abound here. Most cutting is that people who lean heavily on the Fourteenth Amendment to support rights that they like, avoid it like kryptonite when it comes to the constitutional right to arms. Someone quipped that this is constitutional interpretation, buffet-style. Justice Stevens’ dissent in McDonald is a prime example of this. It extols privacy and reproductive rights grounded in the Fourteenth Amendment, but disparages the armed self-defense right that will keep you alive to enjoy all the others.

For many years, critics chided the academy, the government, and society at large for rendering Blacks invisible within the American story. That criticism invoked our strongest moral invectives. Recently, both Stevens and Waldman have actually used the word “fraud” to disparage the constitutional right to arms. So where is the outrage when supposed champions of civil rights blithely dismiss the struggles of the first generation of black citizens and the enduring lessons surrounding the Fourteenth Amendment’s protection of the individual right to keep and bear arms?

Reader Discussion

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on July 31, 2014 at 14:44:48 pm

"The evidence is overwhelming that the Fourteenth Amendment was intended to guarantee former slaves the rights of American citizenship, starting with the guarantees of the first eight amendments to the Constitution, including an individual right to keep and bear arms."
The rights of American citizenship guaranteed the freed slave the protection of the Bill of Rights from over-reach by the National government. It did not invoke those restrictions on the States.
On the contrary, even the Supreme Court has never endorsed Justic Black's theory of
incorporation (see Frankfurter-Bartkus v Illinois). The Court has used selective incorporation, adopting the flawed concept of ordered liberty to enable them to decide for themselves, without any constiututional authority, which amendments they deem desirable to be enforced against the states. There may be an argument that the privileges or immunity clause was meant to include the right to keep and bear arms but it would only apply to blacks if it were a right possessed by whites (a state right).

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James Cotter
on July 31, 2014 at 17:26:35 pm

My claim is indeed about the privileges or immunities clause, pre-slaughterhouse, and pre-substantive due process incorporation. It is a claim about original public meaning. See Cramer, Johnson and Mocsary, The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified. 17 George Mason L. Rev. 823. (2010) - cited in McDonald v. Chicago.

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nick johnson
on July 31, 2014 at 17:50:49 pm

The U.S.Constitution has been so twisted,misinterpreted,ignored and or changed over the last 220 plus years that,for all intents and purposes,it is a dead letter, At the head of the pack of the destruction of the Constitution has been the Progressives who have been trying to slam a square peg of collectivism into a round hole of Constitutional original intent. One of the last remaining stumbling blocks for control of America,by the elitists and Progressives,is the 2nd. Amendment. It is clear that the reason for the 2nd.Amendment's addition to the Bill of Rights, contained in the Constitution,was to protect the States,through militias and at the same time individual citizens from encroachments by the Government. Basically the 2nd.Amendment helps to guarantee the implementation of all the other rights that citizens may possess including the Bill of Rights and the right to protect the individual and his property from an over zealous government and government agents. In other words the 2nd.Amendment protects citizens from tyranny. There can be no other explanation for the 2nd.Amendments intent. Therefore any government agent that infringes on a citizen's 2nd.Amendment rights,any judge or court that backs up that infringement and any legislators that write laws that infringe on the Right to maintain and bare arms must be held accountable personally for the violation of their oath to uphold and defend the Constitution of the United States of America and should be held personally libel for the consequences. In essence when it comes to Rights there can be no rule making.

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Image of libertarian jerry
libertarian jerry
on August 01, 2014 at 12:05:49 pm

James / Prof. Johnson:

Some clarification, if you would.

"... was meant to include the right to keep and bear arms but it would only apply to blacks if it were a right possessed by whites (a state right)."

Is this a "state right" or something broader?
If one limits the guarantees of the 2nd amendment to members of a militia, however broadly inclusive that term is defined, then one can argue that perhaps this is strictly a "state right" and should the State so choose it could abolish its militia and thereby deprive all its citizens of the right to arms.
I think Prof. Johnson is arguing that this is a more basic right and that the "privileges and immunities" coverage may have more to do with the P&I of United States Citizenship as opposed to State citizenship. By freeing the right to arms from the limitation of the militia, one is left with a more fundamental guarantee, perhaps, if you will, a more natural right. To me that is the beauty of Prof. Johnson's argument.

Am I off base here?

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gabe
on August 01, 2014 at 21:46:38 pm

First of all the 2nd Amendment put restrictions on the National government, not the states. The states were free to deal with gun ownership any way they wished. In order to say that there is a costitutional right to bear arms you have to, as a first step, apply the Bill of Rights to the states. The framers of the 14th Amendment, mostly conservative and moderate Republicans, were avid state's rightists. There is no evidence that there was, either in the congressional record or the ratification conventions or in the media a significant debate about this alleged considerable transfer of power from The states to Washington. There would have been strong and public opposition. The 14th Amendment did not incorporate the Bill of Rights. The privileges or Immunity clause was a term of art and dealt with certain "fundamental" rights that were detailed in the contemporaneus Civil Rights Act of 1866 (All rights were not included, the right to vote was not considerd a fundamental right and the states retained the option of denying the vote to the blacks). The object of both the Act and the Amendment was to insure to the blacks the same "fundamental" rights that the white population enjoyed. An argument can be made that if the state allowed whites to have firearms then blacks had that right too. By the way, the Court has applied the Bill of Rights to the States on a selective basis but it has no Constitutional authority to do so.

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james w cotter
on August 02, 2014 at 10:07:19 am

And now for a somewhat different take on the issue and one that seems to recognize a "pre-existing" right to defense - here is link:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2426647

"Contemporary debates about the meaning of the Second Amendment—is it a collective right or an individual
right?—would have been incomprehensible to the Founders. Everyone at the time agreed that the federal government
had no power to infringe on the right of the people to keep and bear arms. Contemporary debates for the most
part also fail to address the essential question of why the right to bear arms was enshrined in the Constitution in
the first place. The right to self-defense and to the means of defending oneself is a basic natural right that grows
out of the right to life. The Second Amendment therefore does not grant the people a new right; it merely recognizes
the inalienable natural right to self-defense. Lawmakers may outlaw certain types of weapons, but they may
not disarm the citizenry."

Also, I think it is safe to say that given the overwhelming influence of the Repubs during this Congressional period, there was little need, or chance, for debate on whether the States would see their power devolve to the Federal Government - it was going to happen and thus congress was given power to enforce these amendments. Right or wrong - this appears to be what happened.

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gabe
on August 02, 2014 at 10:26:12 am

Oops, forgot this:

what this paper appears to show is that the right to arms is not a constitutional right - it pre-existed the Constitution - and thus, the recognition of the right to arms for all US Citizens, irrespective of their state domicile, really has nothing to do with "incorporation." As much as I dislike the Courts issuing pronouncements on all manner of things, I believe that in this case the Courts got it right - they simply recognized a pre-existing right and sought only to assure its maintenance.

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gabe
on August 02, 2014 at 11:22:19 am

You seem to be implying that the right to bear arms is a natural right and therefore unalienable. Actually, our system recognizes that the Constitution is the supreme law (there can be no other above it) and the Constitution, although it prevented the National government from interfering with a right to keep arms, put no restriction on the states. Therefore, there is no power (especially a Court that would ignore the Constitution and base its decision on some amorphous definition of natural rights) to prevent states from passing gun laws. However, as I have stated, the Court has perverted this understanding of the original intent of the 2nd Amendment and we now have the federal courts usurping a state function.

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james w cotter
on August 02, 2014 at 13:43:00 pm

Prof. Johnson ------> Excellent as always on this most important topic!!!

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Image of Joseph Haynes Davis, Esquire
Joseph Haynes Davis, Esquire
on August 02, 2014 at 14:34:45 pm

[…] Arms in the Several States. This is a great post by a law professor at Fordham (Nicholas Johnson) on the legal history behind the struggle of black Americans to arm themselves in the face of State oppression. […]

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Image of Around the Web | Notes On Liberty
Around the Web | Notes On Liberty
on August 03, 2014 at 12:38:39 pm

To fully comprehend the exact meaning of the Second Amendment an intellectual must be fully informed as
to the "DIALOGUE BETWEEN X,Y, and Z", written and introduced by Mr. Benjamin Franklin first in the Pennsylvania Gazette Dec. 18, 1755 and Gentlemen Magazine for Feb and Mar 1756. It was also distributed throughout the Colonies for consideration.

Also, the followup document, "AN ACT FOR THE BETTER ORDERING AND REGULATING SUCH AS ARE WILLING AND DESIROUS TO BE UNITED FOR MILITARY PURPOSES WITHIN THIS PROVINCE.", which was the first "Militia Act of the the Colonies. Enacted and passed Nov 25, 1755 and immediately repealed by the King in Council July 7, 1756.

It is important to note the date of Dec 18, 1755 and compare it to the ages of the founding fathers of Washington, Madison, Hamilton, Jefferson.

In other words it is worthy to note that the Second Amendment (Mar 1, 1792)) added to the present day United States Constitution merely places into law and authority what the "freemen of liberty", in engaging in Revolution, did ...without law, at Lexington and Concord on April 19, 1775.

The arguments of the matter that "there was very limited discussions, during the ratification debates, concerning the militia" on the Second Amendment, as we can surmise, was well discussed and understood by all in 1755. Mr. Thomas Jefferson was 12 years old; Madison was 4 years old; Washington was 23 years old; Adams was 20; Chief Justice John Marshall was born during the same year as the "Dialogue Between X,Y, and Z". In other words, there was very little need to discuss the who, what, where, when, and how...of the militia, of both the "organized" and the "unorganized" militia. The elders fully instructed the "young'ns" on the necessity of a "free" militia and the concept of the "Minute man".

It appears that the only people unable to comprehend the obvious ability of "freemen" and the limits of their need to keep and bear arms, are the liberals, democrats and "new-progressives" who initially wanted King George Washington. This particular group of people do not fully grasp the fact that human cruelty and depravity knows no bounds. Simply look towards the middle-east and to Africa to have examples of why America must always be vigilant and prepared ...with or without government.

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Ge3dorge K. Young, Jr.
on August 03, 2014 at 14:32:04 pm

...the Second Amendment (Mar 1, 1792)) added to the present day United States Constitution merely places into law and authority what the “freemen of liberty”, in engaging in Revolution, did …"
It is necessary to recognize that that the Bill of Rights were restrictions on the National government. The Court, in Barron v Baltimore (1833), affirmed this saying, as was well understood at the time, the Bill of Rights is "not applicable and does not bind the States." Therefore, the citzens had only the protection their state gave them for the right to keep and bear arms, irrespective of what might have occured in 1755. The Court has recently applied the 2nd Amendment to the states because it has determined that it, The Court, has the authority to decide, contrary to original intent, which rights are so fundamental that they must be recognized by the states. The majority in McDonald couldn't even agree which clause in the 14th Amendment gave them this power. It's obvious that there is no wording in the Amendment that does.

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James W Cotter
on August 04, 2014 at 14:08:31 pm

[…] From Nick Johnson: Arms and the Several States. […]

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Image of Monday News Links for 8-4-2014 | Shall Not Be Questioned
Monday News Links for 8-4-2014 | Shall Not Be Questioned
on August 05, 2014 at 13:21:48 pm

[…] From Nick Johnson: Arms and the Several States. […]

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Image of Monday News Links for 8-4-2014 | Xcuz Me
Monday News Links for 8-4-2014 | Xcuz Me
on August 12, 2014 at 13:27:15 pm

I have been away for a bit. Some quick points. The framers and the citizens of the states were quite clear that they possessed the rights of Englishmen, and rights enshrined in their state constitutions well prior to the ratification of the constitution. The worry was that the constitution would infringe those existing rights. Many very explicitly argued that the constitution would not so infringe because the powers of the government were limited and enumerated. In the first 30 or so entries of the Federalist, Hamilton (mainly) shows that the primary object of the national government was to ensure a basis for raising revenue and an army and regulating trade (commerce) to avoid protectionism and allow for pacts with foreign governments . The other national objects he discusses later and actually says they are secondary. In this sort of scheme, many argued that prexisiting rights were safe, because the national government objects were limited.

I understand that people today commonly talk about constitutional rights as if they were created by positive act of government, but that clearly was not the original understanding. There is a clear appreciation of this on the court. See my earlier post, quoting Brennan in Verdugo.

I will post something soon drawing in more detail on the plain statements in the Federalist that related to the comments here.

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nick johnson
on November 11, 2015 at 17:50:12 pm

[…] Read the entire column here. […]

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Image of Arms and the Several States
Arms and the Several States

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