"Those who would limit the right to keep and bear arms to members of state militias have never come to grips with the intentions of the framers of the Fourteenth Amendment to protect blacks and unionists from southern militias (and others) by enforcing their personal right to arms. Stephen Halbrook presents a brief on behalf of this forgotten history -- a history that no serious student of the Constitution can ignore."
Randy E. Barnett, Austin B. Fletcher Professor
Boston University School of Law
Author of The Structure of Liberty:
Justice and the Rule of Law
Whether newly-freed slaves could be trusted to own firearms was in great dispute in 1866, and the ramifications of this issue reverberate in today's "gun-control" debate. This is the only comprehensive study ever published about the intent of the Fourteenth Amendment and of Reconstruction-era civil rights legislation to protect the right to keep and bear arms. Indeed, this is the most detailed study ever published about the intent of the Fourteenth Amendment to incorporate and to protect from State violation any of the rights guaranteed by the Bill of Rights, even including free speech. Paradoxically, the Second Amendment is virtually the only Bill of Rights guarantee not recognized by the federal courts as protected by the Fourteenth Amendment.
Thesis of book
After the Civil War, the Southern States reenacted slave code provisions in the form of the black codes, including incidents of slavery such as the prohibition on possession of a weapon by a black person. A major purpose of the civil rights legislation during Reconstruction and of the Fourteenth Amendment to the U.S. Constitution was to protect the right of freedmen to keep and bear arms from State infringement. This right proved of great utility to protect other liberties, and even life itself, from racist violence.
Purpose
The purpose of this study is to show, through legislative and historical records generated during the Reconstruction epoch (1866-1876), the intent of the Fourteenth Amendment and of civil rights legislation to guarantee full and equal rights to blacks, including the right to keep and bear arms.
Major points
- The Fourteenth Amendment to the U.S. Constitution was intended to protect the guarantees of the Bill of Rights, particularly the individual right to keep and bear arms, from State infringement.
- Far from being limited to protection of the State militias, the right to keep and bear arms in Reconstruction encompassed the right of freedmen to armed self- protection from violence and oppression committed by State militias and, later, the Ku Klux Klan.
- Firearms ownership by blacks, previously prohibited by the slave codes and then by the black codes, was perceived as an instrument of liberation during the civil rights revolution which began in 1866 and ended in 1876.
Conclusions that challenge current thinking in the field
The book includes massive documentation from Reconstruction sources demonstrating that the Fourteenth Amendment was intended to incorporate, more than all other Bill of Rights guarantees, the Second Amendment right to keep and bear arms. This directly challenges current judicial decisions by certain federal courts (excluding the Supreme Court, which has been silent), which have held that the Fourteenth Amendment does not protect individuals from State infringement of this right. Respected Fourteenth Amendment scholars such as Michael Curtis and Akhil Amar have demonstrated that the framers of the Fourteenth Amendment intended to protect the right to have arms, but this is the first comprehensive study on the subject. This book challenges twentieth-century revisionism which denigrates the right to keep and bear arms: if the architects of Reconstruction's civil rights revolution intended to guarantee the individual right of blacks to have and use arms for protection from Klan violence and even State-sanctioned violence, the Second Amendment is surely not limited to State militias (one of the very entities which oppressed freedmen). Further, the intent of the framers of the Fourteenth Amendment to protect the right to keep and bear arms as a fundamental right suggests that contemporary State and local firearms prohibitions are subject to strict scrutiny by the courts.
What is unique about this book?
Whether newly-freed slaves could be trusted to own firearms was in great dispute in 1866, and the ramifications of this issue reverberate in today's "gun-control" debate. This is the only comprehensive study ever published on the intent of the framers of the Fourteenth Amendment and of Reconstruction-era civil rights legislation to protect the right to keep and bear arms. Indeed, this is the most detailed study ever published about the intent of the Fourteenth Amendment to incorporate and to protect from State violation any of the rights guaranteed by the Bill of Rights, even including free speech. Paradoxically, the Second Amendment is virtually the only Bill of Rights guarantee not recognized by the federal courts as protected by the Fourteenth Amendment.
Description of the book
This work concerns the intent to protect the right to keep and bear arms and other Bill of Rights guarantees from state infringement under the Fourteenth Amendment and civil rights legislation passed during Reconstruction. In 1866, Congress reacted to the passage of the black codes, which sanctioned raids by Southern state militia on freedman cabins to search for and seize firearms, with the passage of the Freedmen's Bureau and Civil Rights Acts, as well as the proposal of the Fourteenth Amendment to the Constitution.
The proceedings in the constitutional conventions of the Southern states held during 1867-68 further revealed the tenuous nature of protection of civil rights for blacks. The violence of the Ku Klux Klan prompted passage of the Enforcement Act of 1870 and the Civil Rights Act of 1871, resulting in federal prosecutions of Klansmen for seizing the arms of freedmen, disrupting their political assemblies, and, in some cases, murdering the freedmen. The leading prosecutions were the Klan trials in South Carolina and the Grant Parish Massacre trials in Louisiana, leading to the Supreme Court decision in United States v. Cruikshank (1876).
This book details the history of the black codes and Klan violence directed against freedmen who possessed firearms in the Reconstruction South. It concludes with an analysis of the Supreme Court's unfinished and incomplete jurisprudence concerning the extent to which the Fourteenth Amendment protects the guarantees of the Bill of Rights, particularly the Second Amendment right of the people to keep and bear arms.
Audience this book addresses
Professional and lay persons interested in the right to keep and bear arms; persons interested in firearms and the "gun control" debate; scholars in law and history interested in the Bill of Rights, the Fourteenth Amendment, civil rights law, and the Reconstruction era; scholars in black studies; federal and state legislators and judges, law journals, law libraries (law school and appellate courts); students in American history and in black studies; civil libertarians.
Contents of the Book:
- The Civil Rights and Freedmen's Bureau Acts and the Proposal of the Fourteenth Amendment
- Congress Reacts to Southern Rejection of the Fourteenth Amendment
- The Southern State Constitutional Conventions
- The Freedman's Bureau Act Reenacted and the Fourteenth Amendment Ratified
- Toward Adoption of the Civil Rights Act of 1871
- From the Klan Trials and Hearings Through the End of the Civil Rights Revolution
- The Cruikshank Case, From Trial to the Supreme Court
- Unfinished Jurisprudence
Freedmen, the Fourteenth Amendment, and the Right to Bear Arms was cited as authority by the Office of Legal Counsel, U.S. Department of Justice, "Whether the Second Amendment Secures an Individual Right" (2004), http://www.usdoj.gov/olc/secondamendment2.htm.
