Supreme Court to Rule on Second, Fourteenth Amendments: News Releases: The Independent Institute

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News Release
April 5, 2010

Supreme Court to Rule on Second, Fourteenth Amendments
New Book Argues Right to Keep and Bear Arms Applies to States

OAKLAND, Calif., Apr. 5, 2010—After the Supreme Court affirmed an individual’s right to keep and bear arms in District of Columbia v. Heller, gun rights lawsuits erupted around the country. Inevitably, the question arose: from what exactly is this right protected? By June, the Court will determine in McDonald v. Chicago whether the Second Amendment limits only the reach of the federal government or if it applies to State and local governments as well.

In the updated edition of Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (April 19, 2010 / The Independent Institute), noted legal scholar and Research Fellow Stephen P. Halbrook argues for the latter. “The Fourteenth Amendment to the U.S. Constitution was intended and understood to protect basic rights—above all, the right to have arms to protect life itself—from infringement by the States and localities.”

Historically, the right to own firearms has been key “to the defense of African Americans from racist violence,” he says. In antebellum America, “the Southern slave codes were the only significant prohibition on firearms ownership” and “abolitionists sought to extend the ‘right of the people’ . . . to slaves” who needed to be liberated. “Trusting former slaves with firearms . . . was the cutting edge of what it meant to take civil rights seriously.”

Securing Civil Rights thus examines the Reconstruction-era origins of the Fourteenth Amendment, the Freedmen’s Bureau Act, and related legislation designed to protect emancipated slaves. As Halbrook recounts, such laws were implemented precisely because the exercise of newly won civil rights was under attack from both southern States and racist groups like the Ku Klux Klan. The author draws upon legislative debates, Congressional hearings, newspapers, and legal treatises of the time to demonstrate that both supporters and opponents of the Amendment understood this.

In the years since, the Supreme Court has held that the Fourteenth Amendment “protects free speech, assembly, trial by jury, and most other Bill of Rights guarantees from State and local violation,” says Halbrook, and yet it has never ruled on incorporation of the Second.

Will McDonald v. Chicago officially relegate the Second Amendment to “second-class” status? Or will the Court emphasize—as the Reconstruction Congress did—that the right to own firearms is a sign of freedom and an essential aid in the defense of life and liberty?

Cited by the Supreme Court in Heller as the leading account of the relationship between the Second Amendment and the States during Reconstruction, Securing Civil Rights reveals that incorporation was the irrefutable intent and understanding, and that whether it is via the “due process” or “privileges or immunities” clause, the Court seems likely to recognize such when it renders its decision.

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