Major Win for the Second Amendment: A Lesson From History

First off, I’m pleased…damn pleased, to be honest, that the SCOTUS ruled in favor of the Second Amendment.  This reaffirms that the Second is an individual right, spoiling the chief attack against it, and us.  Many blogs have covered this, and  what I gather is that most everyone on our side is happy with the win, but worried about the margin.  The thought that four members of the SCOTUS apparently goes against history, as well as the founders, is very alarming.  This is a reminder of how very important SCOTUS nominations are.

Beyond that, I got curious, and decided to look up the actual decision.  I had never done that before, and I was very surprised by what I saw.  This wasn’t a “legalese” tome that is unreadable outside of a law school.  Instead, it was a history lesson.  Here is a long excerpt, but rest assured, it is well worth the read.

Note: In the interest in accuracy, I have preserved the formatting  of the original document, including the footnotes.  Every time you see “Opinion of the Court,” that is the top of another page.  I left the footnotes as they appear in the original, as they expand on the understanding of the text.

The most explicit evidence of Congress’ aim appears in§14 of the Freedmen’s Bureau Act of 1866, which provided that “the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery.” 14 Stat. 176–177 (emphasis added).²² Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitutional right to bear arms.”

The Civil Rights Act of 1866, 14 Stat. 27, which was considered at the same time as the Freedmen’s Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.²³ Section 1 of the Civil Rights Act

—————— cally interfered with.” Joint Committee on Reconstruction, H. R. Rep.No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866). ²²The Freedmen’s Bureau bill was amended to include an express reference to the right to keep and bear arms, see 39th Cong. Globe 654(Rep. Thomas Eliot), even though at least some Members believed thatthe unamended version alone would have protected the right, see id., at 743 (Sen. Lyman Trumbull). ²³There can be do doubt that the principal proponents of the Civil Rights Act of 1866 meant to end the disarmament of African Americans in the South. In introducing the bill, Senator Trumbull described itspurpose as securing to blacks the “privileges which are essential tofreemen.” Id., at 474. He then pointed to the previously described Mississippi law that “prohibit[ed] any negro or mulatto from having fire-arms” and explained that the bill would “destroy” such laws. Ibid. Similarly, Representative Sidney Clarke cited disarmament of freedmen in Alabama and Mississippi as a reason to support the Civil RightsAct and to continue to deny Alabama and Mississippi representation inCongress: “I regret, sir, that justice compels me to say, to the disgrace 27 Cite as: 561 U. S. ____ (2010)

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guaranteed the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ibid. This language was virtually identical to language in §14 of the Freedmen’s Bureau Act, 14 Stat. 176–177 (“the right . . . to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal”). And as noted, the latter provision went on to explain that one of the “laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was “the constitutional right to bear arms.” Ibid. Representative Bingham believed that the Civil Rights Act protected the same rights as enumerated in the Freedmen’s Bureau bill, which of course explicitly mentioned the right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the Civil Rights Act, like the Freedmen’s Bureau Act, aimed to protect “the constitutional right to bear arms” and not simply to prohibit discrimination. See also Amar, Bill of Rights 264–265 (noting that one of the “core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances” of freedmen who had been stripped of their arms and to “affirm the full and equal right of every citizen to selfdefense”).

Congress, however, ultimately deemed these legislative

—————— of the Federal Government, that the ‘reconstructed’ State authorities of Mississippi were allowed to rob and disarm our veteran soldiers and arm the rebels fresh from the field of treasonable strife. Sir, the disarmed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of thoseStates. They appeal to the American Congress for protection. In response to this appeal I shall vote for every just measure of protection, for I do not intend to be among the treacherous violators of the solemn pledge of the nation.” Id., at 1838–1839. 28 MCDONALD v. CHICAGO

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remedies insufficient. Southern resistance, Presidential vetoes, and this Court’s pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks.²⁴ Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 (1982); see also Amar, Bill of Rights 187; Calabresi, Two Cheers for Professor Balkin’s Originalism, 103 Nw. U. L. Rev. 663, 669–670 (2009).

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong.Globe 1182. One of these, he said, was the right to keep and bear arms:

“Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid.

Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal

—————— ²⁴For example, at least one southern court had held the Civil Rights Act to be unconstitutional. That court did so, moreover, in the course of upholding the conviction of an African-American man for violating Mississippi’s law against firearm possession by freedmen. See Decision of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitutional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3. 29 Cite as: 561 U. S. ____ (2010)

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right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (Sen. James Nye); see also Foner258–259.²⁵

Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.”Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120–131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See, e.g., T. Farrar, Manual of the Constitution of the United States of America §118, p. 145 (1867) (reprint1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States §239, pp. 152–153 (3d ed. 1875).

It’s a great win, to be sure.  But, the court also provided us with a valuable resource in decision itself.  This is the legal history of this nation, and you’ll never see any of it on the MSM, or in the schools.  I recall that at the Constitutional Convention, some wanted the Second to be the First.  They argued that without the ability to defend the other rights, they would be rendered irrelevant.  The founders knew that some level of government would eventually attempt to control and dominate the individual.  If the people are unable to defend them, all will be lost.  Thankfully, this court (at least a thin majority of them) understand this.

Image H/T: Vision Forum