By Dave Kopel and Clayton Cramer.
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, by Stephen P. Halbrook (Praeger, 1998, 248 pp., $57.75)
NRO Weekend, January 13-14, 2001. More book reviews by Kopel. More articles by Kopel on civil rights and gun control are available here.
The big story in this year's scholarship of the Second Amendment has been the publication of Michael Bellesiles' highly-publicized Arming America, which claims that early Americans didn't like guns and rarely owned them. But as scholars study Arming America closely — by actually checking out the footnotes — they are finding that the book is one of the most audacious hoaxes since David Irving re-invented holocaust history. Many of Bellesiles' sources simply do not say what he claims, and a good number directly contradict his thesis, leaving one hungry for scholarly rebuttal.
For that, one can look back two years, when author Stephen Halbrook asked: Properly interpreted, should the Second Amendment be enforceable against the states? Halbrook posed this question in Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876. To be sure, when he writes that "X happened on July 15, 1867," you can read the source cited in the footnote, and find that X did indeed happen.
While most scholars, and an increasing number of courts, today recognize that the Second Amendment guarantees an individual's right to keep and bear arms, this does not necessarily guarantee the end of the gun-prohibition movement. According to most judicial interpretation, the Second Amendment is a limit only on the federal government, not the states. Forty-four states have a right to arms in their state constitution. But in the six that don't (including California, New York, Maryland, and Minnesota) plus Massachusetts (where the state supreme court has nullified the state constitution's right to arms), there is no explicit constitutional protection for the right to arms.
So scholars and citizens who want to know the real history of the Second Amendment would be well-advised to skip Bellesiles and instead read Halbrook's Freedmen. Halbrook is a meticulous scholar, and this book definitely answers the question of whether the Fourteenth Amendment was intended to make the Second Amendment into a limit on state and local government.
Regarding the application of the Bill of Rights to states, on one side stand the full incorporationists, such as the late U.S. Supreme Court Justice Hugo Black. They argue that the Fourteenth Amendment imposes all the guarantees of the Bill of Rights on the states. (Except for the Tenth Amendment, which is a protection of state government power against federal usurpation.) Full incorporationists argue that the authors of the "privileges and immunities" clause of the Fourteenth Amendment intended to reverse the Barron v. Baltimore(1833) decision of the U.S. Supreme Court — which had said that the Bill of Rights restricts only the federal government. (The Privileges and Immunities clause of section 1 of the Fourteenth Amendment mandates: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.")
The immediate goal of the Fourteenth Amendment's sponsors was to protect southern blacks, most of them recently emancipated slaves, in the aftermath of the Civil War. But in the first three decades after the Fourteenth Amendment was ratified, a divided Supreme Court refused to apply any of the Bill of Rights to the states. The Court majority essentially nullified the "Privileges and Immunities" clause of the Fourteenth Amendment.
Starting with Chicago B. & Q. R. Co. v. Chicago(1897), and dominant since the New Deal, is a doctrine called selective incorporation. Instead of using the "privileges and immunities" clause, this school of thought uses the "due process" clause as a basis for protecting what it calls "substantive" liberties from state infringement. (This clause from section 1 of the Fourteenth Amendment says: "nor shall any State deprive any person of life, liberty, or property, without due process of law.") Under this theory, the Supreme Court picks what parts of the Bill of Rights apply to the states.
Over time, and especially since Gitlow v. New York(1925), liberals have adopted this theory of selective incorporation based on due process, seeking to protect individuals from state and local governments. Selective incorporation is a convenient way for jurists to cherry-pick the Bill of Rights. As Halbrook observes, "The reasoning in these opinions is a priori, requiring only a sentence or two. No case refers to the intent of the Fourteenth Amendment's framers, even though that intent supported incorporation" (p. 185). As Justice Hugo Black pointed out, and as Halbrook details, there is an immense body of historical evidence that shows that the principal authors of the Fourteenth Amendment — Rep. John Bingham and Senator Jacob M. Howard — intended it to provide full incorporation.
Halbrook's book demonstrates that many proponents and opponents clearly understood that the Fourteenth Amendment would impose the first eight amendments as limitations on the states. Halbrook does an impressive job of gathering evidence not only from the speeches of Bingham and Howard before, during, and after ratification of the Fourteenth Amendment, but from a variety of other members of Congress, from newspaper coverage, and from law books of the day.
Even members of today's "selective incorporation school will have to admit after reading this book that Congress meant for the Fourteenth Amendment to include the Second Amendment's guarantee of an individual right. Senator Samuel Pomeroy of Kansas, one of the proponents of the Fourteenth Amendment, articulated what he called three "safeguards of liberty . . . which are indispensable":
1. Every man should have a homestead, that is, the right to acquire and hold one, and the right to be safe and protected in that citadel of his love.
2. He should have the right to bear arms for the defense of himself and family and his homestead. . . .
3. He should have the ballot. (p. 26)
Halbrook shows how Congress heard testimony concerning the disarming of freedmen and white Unionists, which enraged Republicans. Conversely, opponents of the Fourteenth Amendment criticized Republicans for hypocrisy in supporting the Fourteenth Amendment, since military authorities in a number of southern states had disarmed whites, while allowing blacks to form militias. Some western members of Congress, while supportive of guarantees of the right to keep and bear arms for freedmen, "wished to exclude Indians and Chinese from citizenship. Williams of Oregon argued that if Indians were citizens, then state laws that prohibited whites from selling arms and ammunition to Indians would be void" (p. 13).
The Fourteenth Amendment grew out of earlier congressional efforts to use statutes to protect civil rights in the South. The most notable of these was the Freedmen's Bureau Bill. The bill explained that the "full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms" was in need of protection against state and local governments (pp. 16-17). That "the constitutional right of bearing arms" needed to be protected against state government infringement is plainly incompatible with Handgun Control, Inc.'s theory that the Second Amendment guarantees a right of state governments, not a "right of the people."
Debate and reports associated with the Civil Rights Act of 1871 pointed out that the Fourteenth Amendment had given Congress the power to protect "the right in the citizen to 'keep and bear arms.'" The Civil Rights Act further provided that "whoever shall take them away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same. . . ." (p. 122).
The strongest part of the anti-incorporationist argument has been the southern state conventions which ratified the Fourteenth Amendment. These conventions tended to discuss the Fourteenth Amendment in only limited terms — that it would allow blacks to testify in court, to sign contracts, and so forth. Of course it's possible that since Congress refused to readmit the southern states to the Union until they ratified the Fourteenth Amendment, southern proponents of the Amendment may have tried to make the Amendment appear insignificant.
Halbrook advances the debate by pointing out that the southern states, as they adopted post-secession state constitutions, typically protected the right to arms, sometimes more expansively than in the ante-bellum years. Some states, for example, had limited the right to the free or white population.
If you'd like a preview of the book, check out Halbrook's 90-page law review article "Personal Security, Personal Liberty, and 'The Constitutional Right to Bear Arms'," which presents the book's main findings. (Also available in PDF.)