By: David Freddoso
Within the text of the 214-page Supreme Court ruling on gun rights is a history lesson on how Americans’ right to keep and bear arms was a major issue in the struggle for black civil rights in the South after the Civil War. To wit, Southern resisters, black codes and lawless lawmen attempted to disarm freedmen (usually in order to make them more vulnerable to racist terrorism), and the federal government came to their rescue by protecting their 2nd Amendment rights.
The quotations and detailed references leave absolutely no question that Congress and the ratifiers of the 14th Amendment viewed it — and accompanying post-war civil rights legislation — as a safeguard against state infringement of the 2nd Amendment right of the people to keep and bear arms. It’s not a part of our history that the Left has much stomach for, but fewer people argue against the obvious now that the Democratic Party has all but conceded the gun issue.
I’ve removed the references and footnotes for clarity (you can get them all in the original PDF) and reproduced this section of Justice Alito’s opinion at length below:
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By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights — the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense. Abolitionist authors wrote in support of the right. And when attempts were made to disarm “Free-Soilers” in “Bloody Kansas,” Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that “[n]ever was [the rifle] more needed in just self-defense than now in Kansas.”
Indeed, the 1856 Republican Party Platform protested that in Kansas the constitutional rights of the people had been “fraudulently and violently taken from them” and the “right of the people to keep and bear arms”had been “infringed.”After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed-man, free negro or mulatto, not in the military service ofthe United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.”
Abolitionists and Republicans were not alone in believing that the right to keep and bear arms was a fundamental right. The 1864 Democratic Party Platform complained that the confiscation of firearms by Union troops occupying parts of the South constituted “the interference with and denial of the right of the people to bear arms in their defense.”Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.”In South Carolina, prominent black citizens held a convention to address the State’s black code. They drafted a memorial to Congress, in which they included a plea for protection of their constitutional right to keep and bear arms:
“We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed . . . that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.”
Senator Charles Sumner relayed the memorial to the Senate and described the memorial as a request that black citizens “have the constitutional protection in keeping arms.” In one town, the “marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red].” As Senator Wilson put it during the debate on a failed pro-posal to disband Southern militias: “There is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated by armed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description.”
Union Army commanders took steps to secure the right of all citizens to keep and bear arms, but the 39th Congress concluded that legislative action was necessary. Its efforts to safeguard the right to keep and bear armsdemonstrate that the right was still recognized to be fundamental. 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.”
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, 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.
Section 1 of the Civil Rights Act guaranteed the “full and equal benefit of all laws and proceedings for the security of person and property, as isenjoyed by white citizens.” Ibid. This language was virtually identical to language in §14 of the Freedmen’s Bureau Act (“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.” 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. 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 self-defense”).Congress, however, ultimately deemed these legislative 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.
Today, it is generally accepted that the Four-teenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. SIn debating the Fourteenth Amendment, the 39th Con-gress 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.” 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 home-stead. 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.”
Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self-defense.” 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.” 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. Finally, legal commentators from the period emphasized the fundamental nature of the right….In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
(Also, here’s one of the important footnotes: There 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 its purpose as securing to blacks the “privileges which are essential to freemen.” 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 freed-men in Alabama and Mississippi as a reason to support the Civil Rights Act and to continue to deny Alabama and Mississippi representation inCongress:
“I regret, sir, that justice compels me to say, to the disgrace 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 dis-armed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of those States. 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.”)
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