Originally published as Report of the Subcommittee on
the Constitution of the Committee on the Judiciary, United States Senate, 97th
Cong., 2d Sess., The Right to Keep and Bear Arms, 68-82 (1982)
("Other Views"). Reproduced in the 1982 Senate
Report, pg. 68-82. Dr. Halbrook is the author of Freedmen,
the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 which
may be obtained from amazon.com]
The Fourteenth Amendment and the Right To Keep and
Bear Arms: The Intent of the Framers
By Stephen P. Halbrook[*]
A well regulated militia being necessary to
the security of a free state, the right of the people to keep and bear arms
shall not be infringed. --U.S. Const. amend. II.
... No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws. --U.S. Const.
amend. XIV, § 1.
If African Americans were citizens, observed
Chief Justice Taney in Dred Scott v. Sandford,
"it would give to persons of the negro race ... the full liberty of
speech ...; to hold public meetings upon political affairs, and to keep
and carry arms wherever they went."
If this interpretation ignores that Articles I and II of the Bill of Rights
designate the respective freedoms guaranteed therein to "the people"
and not simply the citizens (much less a select group of orators or militia),
contrariwise Dred Scott followed antebellum judicial thought in
recognizing keeping and bearing arms as an individual right
protected from both federal and state infringement.
The exception to this interpretation were cases holding that the Second
Amendment only protected citizens from
federal, not state, infringement of the
right to keep and bear arms, to provide judicial approval of laws disarming
black freemen and slaves.
Since the Fourteenth Amendment was meant to overrule Dred
Scott by extending individual constitutional rights to black Americans and
by providing protection thereof against state infringement,
the question arises whether the framers of Amendment XIV and related
enforcement legislation recognized keeping and bearing arms as an individual
right on which no state could infringe. The congressional intent in respect to
the Fourteenth Amendment is revealed in the debates over both Amendments XIII
and XIV as well as the Civil Rights Act of 1866, the Anti-KKK Act of 1871, and
the Civil Rights Act of 1875. Given the unanimity of opinion concerning state
regulation of privately held arms by the legislators who framed the Fourteenth
Amendment and its enforcement legislation, it is surprising that judicial
opinions and scholarly articles fail to analyze the Reconstruction debates.
a. arms and slavery
Having won their national independence from
England through armed struggle, post-Revolutionary War Americans were acutely (p.69)aware
that the sword and sovereignty go hand in hand, and that the firearms
technology ushered in a new epoch in the human struggle for freedom.
Furthermore, both proponents and opponents of slavery were cognizant that an
armed black population meant the abolition of slavery, although plantation
slaves were often trusted with arms for hunting.
This sociological fact explained not only the legal disarming of blacks but
also the advocacy of a weapons culture by abolitionists. Having employed the
instruments for self-defense against his pro-slavery attackers, abolitionist
and Republican Party founder Cassius Marcellus Clay wrote that "`the
pistol and the Bowie knife' are to us as sacred as the gown and the
pulpit." And it was John Brown who
argued that "the practice of carrying arms would be a good one for the
colored people to adopt, as it would give them a sense of their manhood."
The practical necessities of the long, bloody Civil War,
demanding every human resource, led to the arming of blacks as soldiers. While
originally they considered it a "white man's war," Northern
authorities by 1863 were organizing black regiments on a wide scale. At the
same time, black civilians were forced to arm themselves privately against mob
violence. During the anti-draft riots in New York, according to a Negro
newspaper of the time, "The colored men who had manhood in them armed
themselves, and threw out their pickets every day and night, determined to die
defending their homes.... Most of the colored men in Brooklyn who remained in
the city were armed daily for self-defense."
Toward the end of the war Southerners began to support the arming
and freeing of slaves willing to fight the invaders, and the Virginia
legislature, on passing a bill providing for the use of black soldiers,
repealed its laws against the bearing of arms by blacks.
One opponent of these measures declared: "What would be the character of
the returned negro soldiers, made familiar with the use of fire-arms, and
taught by us, that freedom was worth fighting for?"
Being evident that slaves plus guns equaled abolition, the rebels were divided
between those who valued nationhood to slavery and those who preferred a
restored union which might not destroy the servile condition of black labor.
As the movement began before the end of the war for the complete
abolition of slavery via the Thirteenth Amendment, members of the U.S.
Congress recognized the key role that the bearing of arms was already playing
in the freeing of the slaves. In debate over the proposed Amendment, Rep.
George A. Yeaman (Unionist, Ky.) contended that whoever won the war, the
abolition of slavery was inevitable due to the arming of blacks:
Let proclamations be withdrawn, let
statutes be repealed, let our armies be defeated, let the South achieve its
independence, yet come out of the war ... with an army of slaves made
freemen for their service, who have been contracted with, been armed and
drilled, and have seen the force of combination. Their personal status is
enhanced.... They will not be returned to slavery.
At the same time, members of the slavocracy
were planning to disarm the freedmen. Arguing for speedy adoption of the
Thirteenth Amendment, Rep. William D. Kelley (R., Penn.) expressed (p.70)shock
at the words of an anti-secessionist planter in Mississippi who expected the
union to restore slavery. Kelly cited a letter from a U.S. brigadier general
who wrote: "`What,' said I, `these men who have had arms in their hands?'
`Yes,' he said, `we should take the arms away from them, of course.'"
The northern government won the war only because of the arming of
the slaves, according to Sen. Charles Sumner (R., Mass.), who argued that
necessity demanded "first, that the slaves should be declared free; and
secondly, that muskets should be put into their hands for the common
defense.... Without emancipation, followed by the arming of the slaves, rebel
slavery would not have been overcome."
b. the civil rights act of 1866
After the war was concluded, the slave codes,
which limited access of blacks to land, to arms, and to the courts, began to
reappear in the form of the black codes,
and United States legislators turned their attention to the protection of the
freedmen. In support of Senate Bill No. 9, which declared as void all laws in
the rebel states which recognized inequality of rights based on race, Sen.
Henry Wilson (R., Mass.) explained in part: "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 on
When Congress took up Senate Bill No. 61, which became the Civil
Rights Act of 1866, Sen. Lyman Trumbull
(R., Ill.), Chairman of the Senate Judiciary Committee, indicated that the
bill was intended to prohibit inequalities embodied in the black codes,
including those provisions which "prohibit any negro or mulatto from
having fire-arms." In abolishing the
badges of slavery, the bill would enforce fundamental rights against racial
discrimination in respect to civil rights, the rights to contract, sue and
engage in commerce, and equal criminal penalties. Sen. William Saulsbury (D.,
Del.) added: "In my State for many years, and I presume there are similar
laws in most of the southern States, there has existed a law of the State
based upon and founded in its police power, which declares that free negroes
shall not have the possession of firearms or ammunition. This bill proposes to
take away from the States this police power...." The Delaware Democrat
opposed the bill on this basis, anticipating a time when "a numerous body
of dangerous persons belonging to any distinct race" endangered the
state, for "the State shall not have the power to disarm them without
disarming the whole population."
Thus, the bill would have prohibited legislative schemes which in effect
disarmed blacks but not whites. Still, supporters of the bill were soon to
contend that arms bearing was a basic right of citizenship or personhood.
In the meantime, the legislators turned their attention to the
Freedmen's Bureau Bill. Rep. Thomas D. Eloit (R., Mass.) attacked an
Opelousas, Louisiana ordinance which deprived blacks of various civil rights,
including the following provision: "No freedman who is not in the
military service shall be allowed to carry firearms, or any kind of weapons,
within the limits of the town of Opelousas without the special permission of
his employer ... and (p.71)approved by the
mayor or president of the board of police."
And Rep. Josiah B. Grinnell (R., Iowa) complained: "A white man in
Kentucky may keep a gun; if a black man buys a gun he forfeits it and pays a
fine of five dollars, if presuming to keep in his possession a musket which he
has carried through the war." Yet
the right of blacks to have arms existed partly as self-defense against the
state militia itself, which implied that militia needs were not the only
constitutional basis for the right to bear arms. Sen. Trumbull cited a report
from Vicksburg, Mississippi which stated: "Nearly all the dissatisfaction
that now exists among the freedmen is caused by the abusive conduct of this
militia." Rather than restore order,
the militia would typically "hand some freedman or search negro houses
for arms." As debate returned to the
Civil Rights Bill, Rep. Henry J. Raymond (R., N.Y.) explained of the rights of
citizenship: "Make the colored man a citizen of the United States and he
has every right which you or I have as citizens of the United States under the
laws and Constitution of the United States.... He has a defined status; he has
a country and a home; a right to defend himself and his wife and children; a
right to bear arms...." Rep. Roswell
Hart (R., N.Y.) further states: "The Constitution clearly describes that
to be a republican form of government for which it was expressly framed. A
government ... where 'no law shall be made prohibiting a free exercise of
religion;' where 'the right of the people to keep and bear arms shall not be
infringed;'...." He concluded that
it was the duty of the United States to guarantee that the states have such a
form of government.
Rep. Sidney Clarke (R., Kansas) referred to an 1866 Alabama law
providing: "That it shall not be lawful for any freedman, mulatto, or
free person of color in this State, to own firearms, or carry about his person
a pistol or other deadly weapon."
This same statute made it unlawful "to sell, give, or lend fire-arms or
ammunition of any description whatever, to any freedman, free negro, or
mulatto...." Clarke also attacked
Mississippi, "whose rebel militia, upon the seizure of the arms of black
Union Soldiers, appropriated the same to their own use."
Sir, I find in the Constitution of the
United States an article which declares that "the right of the people
to keep and bear arms shall not be infringed." For myself, I shall
insist that the reconstructed rebels of Mississippi respect the Constitution
in their local laws....
Emotionally referring to the disarming of
black soldiers, Clarke added:
Nearly every white man in that State that
could bear arms was in the rebel ranks. Nearly all of their able-bodied
colored men who could reach our lines enlisted under the old flag. Many of
these brave defenders of the nation paid for the arms with which they went
to battle.... The "reconstructed" State authorities of Mississippi
were allowed to rob and disarm our veteran soldiers....(p.72)
In sum, Clarke presupposed a constitutional
right to keep privately held arms for protection against oppressive state
c. the fourteenth amendment
The need for a more solid foundation for the
protection of freedmen as well as white citizens was recognized, and the
result was a significant new proposal--the Fourteenth Amendment. A chief
exponent of the amendment, Sen. Jacob M. Howard (R., Mich.), referred to
"the personal rights guaranteed and secured by the first eight amendments
of the Constitution; such as freedom of speech and of the press; ... the right
to keep and bear arms...." Adoption
of the Fourteenth Amendment was necessary because presently these rights were
not guaranteed against state legislation. "The great object of the first
section of this amendment is, therefore, to restrain the power of the States
and compel them at all times to respect these great fundamental
The Fourteenth Amendment was viewed as necessary to buttress the
objectives of the Civil Rights Act of 1866. Rep. George W. Julian (R., Ind.)
noted that the act
Is pronounced void by the jurists and
courts of the South. Florida makes it a misdemeanor for colored men to carry
weapons without a license to do so from a probate judge, and the punishment
of the offense is whipping and the pillory. South Carolina has the same
enactments... Cunning legislative devices are being invented in most of the
States to restore slavery in fact.
It is hardly surprising that the arms
question was viewed as part of a partisan struggle. "As you once needed
the muskets of the colored persons, so now you need their votes," Sen.
Sumner explained to his fellow Republicans in support of black suffrage in the
District of Columbia. At the opposite
extreme, Rep. Michael C. Kerr (D., Ind.) an opponent of black suffrage and of
the Fourteenth Amendment, attacked a military ordinance in Alabama that set up
a volunteer militia of all males between ages 18 and 45 "without regard
to race or color" on these grounds:
Of whom will that militia consist? Mr.
Speaker, it will consist only of the black men of Alabama. The white men
will not degrade themselves by going into the ranks and becoming a part of
the militia of the State with negroes.... Are the civil laws of Alabama to
be enforced by this negro militia? Are white men to be disarmed by them?
Kerr predicted that the disfranchisement of
white voters and the above military measures would result in a "war of
d. the anti-kkk act
Although the Fourteenth Amendment became law
in 1868, within three years the Congress was considering enforcement
legislation to suppress the Ku Klux Klan. The famous report by Rep. Benjamin
F. Butler (R., Mass.) on violence in the South assumed that the right to keep
arms was necessary for protection against the militia but also against local
law enforcement agencies. Noting (p.73)instances
of "armed confederates" terrorizing the negro, the report stated
that "in many counties they have preceded their outrages upon him by
disarming him, in violation of his right as a citizen to `keep and bear arms,'
which the Constitution expressly says shall never be infringed."
The congressional power based on the Fourteenth Amendment to legislate to
prevent states from depriving any U.S. citizen of life, liberty, or property
justified the following provision of the committee's anti-KKK bill:
That whoever shall, without due process of
law, by violence, intimidation, or threats, take away or deprive any citizen
of the United States of any arms or weapons he may have in his house or
possession for the defense of his person, family, or property, shall be
deemed guilty of a larceny thereof, and be punished as provided in this act
for a felony.
Rep. Butler explained the purpose of this
provision in these words:
Section eight is intended to enforce the
well-known constitutional provision guaranteeing the right in the citizen to
"keep and bear arms," and provides that whoever shall take 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. This provision seemed to your committee to be necessary,
because they had observed that, before these midnight marauders made attacks
upon peaceful citizens, there were very many instances in the South where
the sheriff of the county had preceded them and taken away the arms of their
victims. This was specially noticeable in Union County, where all the negro
population were disarmed by the sheriff only a few months ago under the
order of the judge...; and then, the sheriff having disarmed the citizens,
the five hundred masked men rode at night and murdered and otherwise
maltreated the ten persons who were in jail in that county.
The bill was referred to the Judiciary
Committee, and when later reported as H.R. No. 320 the above section was
deleted--probably because its proscription extended to simple individual
larceny over which Congress had no constitutional authority, and because state
or conspiratorial action involving the disarming of blacks would be covered by
more general provisions of the bill. Supporters of the rewritten anti-KKK bill
continued to show the same concern over the disarming of freedmen. Sen. John
Sherman (R., Ohio) stated the Republican position: "Wherever the negro
population preponderates, there they [the KKK] hold their sway, for a few
determined men ... can carry terror among ignorant negroes ... without arms,
equipment, or discipline."
Further comments clarified that the right to arms was a necessary
condition for the right of free speech. Sen. Adelbert Ames (R., Miss.)
averred: "In some counties it was impossible to advocate Republican
principles, those attempting it being hunted like wild beasts; in other, the
speakers had to be armed and supported by (p.74)not
a few friends." Rep. William L.
Stoughton (R., Mich.) exclaimed: "If political opponents can be marked
for slaughter by secret bands of cowardly assassins who ride forth with
impunity to execute the decrees upon the unarmed and defenseless, it will be
fatal alike to the Republican party and civil liberty."
Section 1 of the bill, which was taken partly from Section 2 of
the Civil Rights Act of 1866 and survives today as 42 U.S.C. § 1983, was
meant to enforce Section 1 of the Fourteenth Amendment by establishing a
remedy for deprivation under color of state law of federal constitutional
rights of all people, not only former slaves. This portion of the bill
That any person who, under color of any
law, statute, ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the jurisdiction of the
United States to the deprivation of any rights, privileges, or immunities to
which ... he is entitled under the Constitution or laws of the United
States, shall ... be liable to the party injured in an action at law, suit
in equity, or other proper proceeding for redress...."
Rep. Washington C. Whitthorne (D., Tenn.),
who complained that "in having organized a negro militia, in having
disarmed the white man," the Republicans had "plundered and
robbed" the whites of South Carolina through "unequal laws,"
objected to Section 1 of the anti-KKK bill on these grounds:
It will be noted that by the first section
suits may be instituted without regard to amount or character of claim by
any person within the limits of the United States who conceives that he has
been deprived of any right, privilege, or immunity secured him by the
Constitution of the United States, under color of any law, statute,
ordinance, regulation, custom, or usage of any State. This is to say, that
if a police officer of the city of Richmond or New York should find a
drunken negro or white man upon the streets with a loaded pistol flourishing
it, &c., and by virtue of any ordinance, law, or usage, either of city
or State, he takes it away, the officer may be sued, because the right to
bear arms is secured by the Constitution, and such suit brought in distant
and expensive tribunals.
The Tennessee Democrat assumed that the
right to bear arms was absolute, deprivation of which created a cause of
action against state agents under Section 1 of the anti-KKK bill. In the minds
of the bill's supporters, however, the Second Amendment as incorporated in the
Fourteenth Amendment recognized a right to keep and bear arms safe from state
infringement, not a right to commit assault or otherwise engage in criminal
conduct with arms by pointing them at people or wantonly brandishing them
about so as to endanger others. Contrary to the congressman's exaggerations,
the proponents of the bill had the justified fear that the opposite
development would occur, i.e., that a black or white man of the wrong
political party would legitimately have or possess arms and a police officer
of the city of Richmond or New York who was (p.75)drunken
with racial prejudice or partisan politics would take it away, perhaps to
ensure the success of an extremist group's attack. Significantly, none of the
representative's colleagues disputed his assumption that state agents could be
sued under the predecessor to § 1983 for deprivation of the right to keep
Rep. William D. Kelly (R., Penn.), speaking after and in reply
to Rep. Whitthorne, did not deny the argument that Section 1 allowed suit for
deprivation of the right to possess arms, but emphasized the arming of the KKK.
He referred to "great numbers of Winchester rifles, and a particular
species of revolving pistol" coming into Charleston's ports. "Poor
men, without visible means of support, whose clothes are ragged and whose
lives are almost or absolutely those of vagrants, are thus armed with new and
costly rifles, and wear in their belts a brace of expensive pistols."
These weapons were used against Southern Republicans, whose constitutional
rights must thereby be guaranteed by law and arms.
However, like Congressman Whitthorne, Rep. Barbour Lewis (R.,
Tenn.) also decried the loss of state agent's immunity should the bill pass:
"By the first section, in certain cases, the judge of a State court,
through acting under oath of office, is made liable to a suit in the Federal
Court and subject to damages for his decision against a suitor, however honest
and conscientious that decision may be; and a ministerial officer is subject
to the same pains and penalties...."Tennessee
Republicans and Democrats alike thus agreed that what is today § 1983
provided an action for damages against state agents in general for deprivation
of constitutional rights.
Debate over the anti-KKK bill naturally required exposition of
Section 1 of the Fourteenth Amendment, and none was better qualified to
explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):
Mr. Speaker, that the scope and meaning of
the limitations imposed by the first section, fourteenth amendment of the
Constitution may be more fully understood, permit me to say that the
privileges and immunities of citizens of a State, are chiefly defined in the
first eight amendments to the constitution of the United States. Those eight
amendments are as follows:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof, or
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress of
A well-regulated militia being necessary
to the security of a free State, the right of the people to keep and bear
arms shall not be infringed.... [Amendments III-VIII, also listed by
Bingham, are here omitted.](p.76)
These eight articles I have shown never
were limitations upon the power of the States, until made so by the
Fourteenth Amendment. The words of that amendment, "no State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States," are an express prohibition upon every
State of the Union....
This is a most explicit statement of the
incorporation thesis by the architect of the Fourteenth Amendment. Although he
based the incorporation on the privileges and immunities clause and not the
due process clause as did subsequent courts of selective incorporation, Rep.
Bingham could hardly have anticipated the judicial metaphysics of the
twentieth century in this respect. In any case, whether based on the due
process clause or on the privileges and immunities clause, the legislative
history supports the view that the incorporation of Amendments I-VII was clear
and unmistakable in the minds of the framers of Amendment XIV.
In contrast with the above legal analysis, some comments on the
enforcement of the Fourteenth Amendment returned to discussion of power
struggle between Republicans and unreconstructed Confederates. While
Republicans deplored the armed condition of white Southerners and the unarmed
state of black Southerners, Democrats argued that the South's whites were
disarmed and endangered by armed carpetbaggers and negro militia. Thus, Rep.
Ellis H. Roberts (R., N.Y.) lamented the partisan character of KKK violence:
"The victims whose property is destroyed, whose persons are mutilated,
whose lives are sacrificed, are always Republicans. They may be black or
white...." Of the still rebellious whites: "Their weapons are often
new and of improved patterns; and however poor may be the individual member he
never lacks for arms or ammunition.... In many respects the Ku Klux Klan is an
army, organized and officered, and armed for deadly strife."
Rep. Boyd Winchester (D., Ky.) set forth the contrary position,
favorably citing a letter from an ex-governor of South Carolina to the
reconstruction governor regretting the latter's "Winchester rifle
speech" which "fiendishly proclaimed that this instrument of death,
in the hands of the negroes of South Carolina, was the most effective means of
maintaining order and quiet in the State."
Calling on the governor to "disarm your militia," the letter
referred to the disaster which resulted "when you organized colored
troops throughout the State, and put arms into their hands, with powder and
ball, and denied the same to the white people."
The letter proceeded to cite numerous instances where the "colored
militia" murdered white people. According to Rep. Winchester, it was the
arming of blacks and disarming of whites which resulted in white resistance.
"It would seem that wherever military and carpetbagger domination in the
South has been marked by the greatest contempt for law and right, and
practiced the greatest cruelty toward the people, Ku Klux operations have
An instance of black Republican armed resistance to agents of
the state who were in the Klan was recounted in a letter cited by Rep.
Benjamin F. Butler:(p.77)
Then the Ku Klux fired on them through the
window, one of the bullets striking a colored woman ... and wounding her
through the knee badly. The colored men then fired on the Ku Klux, and
killed their leader or captain right there on the steps of the colored men's
house.... There he remained until morning when he was identified, and proved
to be "Pat Inman," a constable and deputy sheriff....
By contrast, Rep. Samuel S. Cox (D., Ohio)
assailed those who "arm negro militia and create a situation of
terror," exclaimed that South Carolinians actually clamored for United
States troops to save them from the rapacity and murder of the negro bands and
their white allies," and saw the Klan as their only defense: "Is not
repression the father of revolution?" The congressman compared the Klan
with the French Jacobians, Italian Carbonari, and Irish Fenians.
Rep. John Coburn (R., Ind.) saw the situation in an opposite empirical light,
deploring both state and private disarming of blacks. "How much more
oppressive is the passage of a law that they shall not bear arms than the
practical seizure of all arms from the hands of the colored men?"
The next day Rep. Henry L. Dawes (R., Mass.) returned to a legal
analysis which again asserted the incorporation thesis. Of the anti-Klan bill
The rights, privileges, and immunities of
the American citizen, secured to him under the Constitution of the United
States, are the subject-matter of this bill....
... In addition to the original rights
secured to him in the first article of amendments he had secured the free
exercise of his religious belief, and freedom of speech and of the press.
Then again he has secured to him the right to keep and bear arms in his
defense. [Dawes then summarizes the remainder of the first eight
... And still later, sir, after the bloody
sacrifice of our four years' war, we gave the most grand of all these
rights, privileges, and immunities, by one single amendment to the
Constitution, to four millions of American citizens....
... [I]t is to protect and secure to him
in these rights, privileges, and immunities this bill is before the House.
Rep. Horatio C. Burchard (R., Ill.), while
generally favoring the bill insofar as it provided against oppressive state
action, rejected the interpretation by Dawes and Bingham regarding the
definition of "privileges and immunities," which Burchard felt were
contained only in Articles IV, V, and VI rather than I-VIII. However, Burchard
still spoke in terms of "the application of their eight amendments to the
States," and in any case Dawes had
used the terms "rights, privileges and immunities." The
anti-Klan bill finally was passed along partisan lines as An Act to Enforce
the Provisions of the Fourteenth Amendment.
e. the civil rights act of 1875
After passage of the anti-Klan bill,
discussion concerning arms persisted as interest developed toward what became
the Civil (p.78)Rights Act of 1875, now 42
U.S.C. § 1984. A report on affairs in the South by Sen. John Scott (R.,
Penn.) indicated the need for further enforcement legislation: "negroes
who were whipped testified that those who beat them told them they did so
because they had voted the radical ticket, and in many cases made them promise
that they would not do so again, and wherever they had guns took them from
Following the introduction of the civil rights bill the debate
over the meaning of the privileges and immunities clause returned. Sen.
Matthew H. Carpenter (R., Wis.) cited Cummings v. Missouri,
a case contrasting the French legal system, which allowed deprivation of civil
rights, "and among these of the right of voting, ... of bearing
arms," with the American legal system, averring that the Fourteenth
Amendment prevented states from taking away the privileges of the American
Sen. Allen G. Thurman (D., Ohio) argued that the "rights,
privileges, and immunities of a citizen of the United States" were
included in Amendments I-VIII. Reading and commenting on each of these
amendments, he said of the Second: "Here is another right of a citizen of
the United States, expressly declared to be his right--the right to bear arms;
and this right, says the Constitution, shall not be infringed." After
prodding from John A. Sherman (R., Ohio), Thurman added the Ninth Amendment to
The incorporationist thesis was stated succinctly by Senator
Thomas M. Norwood (D., Ga.) in one of the final debates over the civil rights
bill. Referring to a U.S. citizen residing in a Territory, Senator Norwood
His right to bear arms, to freedom of
religious opinion, freedom of speech, and all others enumerated in the
Constitution would still remain indefeasibly his, whether he remained in the
Territory or removed to a State.
And those and certain others are the
privileges and immunities which belong to him in common with every citizen
of the United States, and which no State can take away or abridge, and they
are given and protected by the Constitution ...
The following are most, if not all, the
privileges and immunities of a citizen of the United States:
The right to writ of habeas corpus;
of peaceable assembly and of petition; ... to keep and bear arms;
... from being deprived of the right to vote on account of race, color or
previous condition of servitude.
Arguing that the Fourteenth Amendment created
no new rights but declared that "certain existing rights should not be
abridged by States," the Georgia Democrat explained:
Before its [Fourteenth Amendment] adoption
any State might have established a particular religion, or restricted
freedom of speech and of the press, or the right to bear arms ... A
State could have deprived its citizens of any of the privileges and
immunities contained in those eight articles, but the Federal Government
could not ...(p.79)
... And the instant the Fourteenth
amendment became a part of the Constitution, every State was at that moment
disabled from making or enforcing any law which would deprive any citizen of
a State of the benefits enjoyed by citizens of the United States under the
first eight amendments to the Federal Constitution.
In sum, in the understanding of Southern
Democrats and Radical Republicans alike, the right to keep and bear arms, like
other Bill of Rights freedoms, was made applicable to the states by the
The framers of the Fourteenth Amendment and of the civil rights
acts of Reconstruction, rather than predicating the right to keep and bear
arms on the needs of an organized state militia, based it on the right of the
people individually to possess arms for protection against any oppressive
force--including racist or political violence by the militia itself or by
other state agents such as sheriffs. At the same time, the militia was
understood to be the whole body of the people, including blacks. In discussion
concerning the Civil Rights Act of 1875, Sen. James A. Alcorn (R., Miss.)
defined the militia in these terms: "The citizens of the United States,
the Posse comitatus, or the militia if you please, and the colored man
composes part of these." Every
citizen, in short, was a militiaman. With the passage of the Fourteenth
Amendment, the right and privilege individually to keep and bear arms was
protected from both state and federal infringement.
[*] J.D. 1978 Georgetown University; Ph.D.
1972 Florida State University, Member, Virginia State Bar, various federal
court bars. The Author has taught legal and political philosophy at George
Mason University, Howard University and Tuskegee Institute.
This is a revision of a portion of the author's The
Jurisprudence of the Second and Fourteenth Amendments, IV GEORGE MASON
L. REV. (1981).
 Dred Scott
v. Sanford, 60 U.S. (19 How.) 393 15 L. Ed. 691 (1857).
 15 L. Ed. at
705 [Emphasis added]. And see id. at
 Protection of the
"absolute rights of individuals" to personal security, liberty,
and private property is secured in part by "the right of bearing
arms--which with us is ... practically enjoyed by every citizen, and is
among his most valuable privileges, since it furnishes the means of
resisting as a freeman ought, the inroads of usurpation." 1 Henry
St. Geo. Tucker, Commentaries on the Laws of Virginia 43 (1831)
(reference to U.S. Constitution). And see St. Geo. Tucker, 1
Blackstone, Commentaries *144 n.40 (1st ed. 1803); W. Rawle, A
View of the Constitution 125-26 (1829); 3 J. Story,
Commentaries on the Constitution 746 (1833); Bliss
vs. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec. 251 (1822); Simpson
vs. State, 13 Tenn. Reports (5 Yerg.) 356 (1833); Nunn
v. State, 1 Ga. 243 (1846). Cf. State v. Buzzard, 4
Ark, 18 (1843).
 W. Rawle, supra note 3,
at 125-26, stated: "The prohibition is general. No clause in the
Constitution could by any rule of construction be conceived to give to
congress a power to disarm the people. Such a flagitious attempt could only
be made under some general pretence by a state legislature. But if in any
blind pursuit of inordinate power, either should attempt it, this amendment
may be appealed to as a restraint on both."
Similarly, it was stated in Nunn v. State, 1
Ga. 243, 250-51 (1846):
"The language of the second amendment
is broad enough to embrace both Federal and state governments--nor is
there anything in its terms which restricts its meaning.... Is it not an
unalienable right, which lies at the bottom of every free
And see cases cited at 68 C.J. Weapons
§ 4 n.60 (1934).
According to II J. Bishop, Criminal Law § 124 (3rd ed.
1865): "Though most of the amendments are restrictions on the
general government alone, not on the States, this one seems to be of a
nature to bind both the State and National legislatures." Approved in English
v. State, 35 Tex. 473 (1872). For an analysis of U.S. Supreme Court
cases related to whether the Second and/or Fourteenth Amendments prohibit
state action which infringes on keeping and bearing arms, see S.
Jurisprudence of the Second and Fourteenth Amendments, IV George Mason
L. Rev. (1981).
 State v.
Newson, 27 N.C. 203, 204 (1844), Cooper v. Savannah,
4 Ga. 72 (1848).
 State v.
Newson, 27 N.C. 203, 207 (1844). Cf. cases cited at 68 C.J.
Weapons § 5, n.19,21,22; § 8, n.37,40 (1934).
 "What was the
fourteenth article designed to secure? ... [T]hat the privileges and
immunities of citizens of the United States shall not be abridged or denied
by the United States or by any State; defining also, what it was possible
was open to some question after the Dred Scott decision, who were citizens
of the United States." Sen. George F. Edmunds (R., Vt.), CONG.
GLOBE, 40th Cong., 3rd Sess., pt. 1, 1000 (Feb. 8, 1869).
 While it "cannot turn
the clock back to 1868 when the Amendment was adopted," Brown
v. Board of Education of Topeka, 347 U.S. 483, 492 (1954), the
Supreme Court is compelled to interpret Amendment XIV and Reconstruction
legislation in accord with the Congressional intent. Lynch
v. Household Finance Corp., 405 U.S. 538, 549 (1972); Monell
v. Dep't. of Social Servies of City of New York, 436 U.S. 658 (1978)
("fresh analysis of debate on the Civil Rights Act of 1871," id.
665, justified overruling Monroe v. Pape, 365
U.S. 167 ). Cf. Fairman, Does the Fourteenth
Amendment Incorporate the Bill of Rights? The Original Understanding, 2
Stanford L. Rev. 5, 44-45, 57-58, 119-20 (1949) (while contending
that the Bill of Rights in general was not intended to apply to the states,
cited references to the Second Amendment in congressional debates support
Though beyond the scope of this study, the history of the
prohibition of arms possession by native Americans or Indians presents a
parallel example of the use of gun control to suppress or exterminate
non-white ethnic groups. While legal discrimination against blacks in
respect to arms was abolished during Reconstruction, the sale of arms and
ammunition to "hostile" Indians remained a prohibition. E.g., 17
stat., 457, 42nd Cong., 3rd Sess., ch. 138 (1873). See also Sioux
Nation of Indians v. United States, 601 F.2d 1571, 1166 (Ct. Cl. 1979):
"Since the Army has taken from the Sioux their weapons and horses, the
alternative to capitulation to the government's demands was starvation
..." The federal government's special restrictions on selling firearms
to native Americans were abolished finally in 1979. Washington Post,
Jan. 6, 1979, § A, at 11, col. 1.
 See State
v. Hannibal, 51 N.C. 57 (1859); State v.
Harris, 51 N.C. 448 (1859); D. Hundley, Social Relations in
our Southern States 361 (1860). Blacks were experienced enough in the
use of arms to play a significant, though unofficial, role as Confederate
Soldiers, some even as sharpshooters. H. Blackerby, Blacks in Blue and
Gray 1-40 (Tusculoosa, Ala. 1979); J. Obatala, Black
Confederates, Players 13 ff. (April, 1979). In Louisiana, the only
state in the Union to include blacks in the militia, substantial numbers of
blacks joined the rebellion furnishing their own arms. M. Berry, Negro
Troops in Blue and Gray, 8 Louisiana History
 The Writings of
Cassius Marcellus Clay 257 (H. Greeley ed. 1848).
 DuBois, John Brown
 J. McPherson, The
Negro's Civil War 72-73 (1965). While all may be fair in love and
war, experiences during the conflict suggest that deprivation of one right
is coupled with deprivation of others. When the secession movement began,
Lincoln suspended habeas corpus and enstated the disarming of citizens and
military arrests in Maryland and Missouri. In the latter state, the death
penalty was enstated by union officers for those caught with arms, and after
an order was issued to arm the militia by random seizures of arms, the
searches provided the occasion for general looting. See 3 War of the
Rebellion 466-67 (Series 1) and 13 id. at 506; R.
Brownlee, Gray Ghosts of the Confederacy 37, 85, & 170 (L.S.U. 1958).
The situation became so harsh for Northerners themselves that the Northern
Democratic Platform of 1864 declared in its fourth resolution against the
suppression of free speech and press and the denial of the right of the
people to bear arms in their defense. E. Pollard, The Lost Cause 574
 61 The War of the
Rebellion, ser. 1, pt. 2, 1068 & 1315 (1880-1901); R.
Durden, The Gray & The Black 250 (1972).
 R. Durden, supra
note 13, at 169.
 Cong. Globe, 38th
Cong., 2nd Sess., pt. 1, 171 (Jan. 9, 1865).
 Id. 289
(Jan. 18, 1865).
 Id., 39th
Cong., 1st Sess., pt. 1, 674 (Feb. 6, 1866). But see id. at pt.
4, 3215 (June 16, 1866) (allegation by Rep. William E. Niblack (D.,
Ind.) that the majority of Southern blacks "either adhered from first
to last to the rebellion or aided and assisted by their labor or otherwise
those who did so adhere.").
 DuBois, Black
Reconstruction In America 167, 172, & 223 (New York 1962).
 Cong. Globe, 39th
Cong., 1st Sess., pt. 1, 40 (Dec. 13, 1865).
Rights Act, 14 Stat. 27 (1866). A portion of this act survives as 42
U.S.C. § 1982: "All citizens of the United States shall have
the same right in every State and Territory as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real and
 Cong. Globe, 39th
Cong., 1st Sess., pt. 1, 474 (Jan. 29, 1866).
 Id. 478.
 Id. 517
(Jan. 30, 1866).
 Id. 651
(Feb. 5, 1866).
 Id. 941
(Feb. 20, 1866).
 Id., pt. 2,
1266 (Mar. 8, 1866).
 Id. 1629
(Mar. 24, 1866).
 Id. 3.
 Id. 1838
(Apr. 7, 1866).
 Id. 1839.
Ironically, Clarke's home state, Kansas, adopted measures to prohibit former
Confederates from possessing arms. Kennett & Anderson at 154.
 Cong. Globe, 39th
Cong., 1st Sess., pt. 3, 2765 (May 23, 1866).
 Id. 2766.
 Id., pt. 4, 3210
(June 16, 1866).
 Id., 2nd Sess.,
pt. 1, 107 (Dec. 13, 1866).
 Id., 40th Cong.,
2nd Sess. pt. 3, 2198 (Mar. 28, 1868).
 1464 H.R. REP. No.
37, 41st Cong., 3rd Sess. 3 (Feb. 20, 1871).
 Cong. Globe, 42nd
Cong., 1st Sess., pt. 1, 174 (Mar. 20, 1871). Introduced as "an
act to protect loyal and peaceable citizens in the south ...", H.R.
 H.R. Rep. No. 37,
supra note 26, at 7-8.
 Cong. Globe, 42nd
Cong., 1st Sess., pt. 1, 154 (Mar. 18, 1871).
 Id. 196 (Mar. 21,
 Id. 321 (Mar. 28,
 Id., pt. 2,
Appendix, 68. Passed as the Enforcement Act, 17 Stat.
13 (1871), § 1 survives as 42 U.S.C. § 1983:
"Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper
proceedings for redress." The action for conspiracy to deprive persons
of rights or privileges under 42 U.S.C. § 1985
derives from the same act.
 Cong. Globe, 42nd
Cong., 1st Sess., pt. 1, 337 (Mar. 29, 1871).
 Id. 339.
 Id. 385 (Apr. 1,
 Id., pt. 2,
Appendix, 84 (Mar. 31, 1871).
 Id., pt. 1, 413
(Apr. 3, 1871).
 Id. 442 (Apr. 3,
 Id. Nathan Bedford
Forrest told Congressional investigators in 1871 that the Klan originated in
Tennessee for self defense against the militia of Governor William G.
Brownlow. N. Burger and J. Bettersworth, South of Appomattox 129, 132,
and 137 (1959). Still, two years before, Forrest denounced Klan
lawlessness because "the order was being used ... to disarm harmless
negroes having no thought of insurrectionary movements, and to whip both
whites and blacks." C. Bowers, THE TRAGIC ERA 311 (1929).
The outrages in turn allegedly furnished "a plausible pretext for the
organization of State militias to serve the purposes of Radical
politics." C. Bowers at 311. Carpetbagger controlled
militias were deeply involved in political violence to influence elections,
and were blamed for infringing on their opponents' constitutional rights to
free speech and to keep and bear arms, among numerous other abuses. E.g., C.
Bowers at 439 and passim; O. Singletary, Negro Militia and
Reconstruction 35-41, 74-75 (1963).
 Cong. Globe, 42nd
Cong., 1st Sess., pt. 1, 445 (Apr. 4, 1871).
 Id. 453.
 Id. 459.
 Id. 475-76
(Apr. 5, 1871). [Emphasis added].
 Id., 2, Appendix,
 17 Stat.
13, 42nd Cong., 1st Sess., ch. 22 (1871).
 1484 S. Rep. No.
41, 42nd Cong., 2nd Sess., pt. 1, 35 (Feb. 19, 1872).
v. Missouri, 71 U.S. 277, 321 (1866).
 Cong. Globe, 42nd
Cong., 2nd Sess., pt. 1, 762 (Feb. 1, 1872).
 Id., pt. 6,
Appendix, 25-26 (Feb. 6, 1872). On Amendment IX as a source of an
individual right to keep and bear arms, see Caplan, Restoring
the Balance: The Second Amendment Revisited, 5 Fordham Urban L.J. 31,
49-50 (1976). See also 2 Cong. Rec. 43rd Cong., 1st Sess., pt.
1, 384-385 (Jan. 5, 1874) (statement by Rep. Robert Q. Mills (D.,
Tex.) that Amendment XIV adopts Bill of Rights privileges).
 Cong. Rec., 43rd
Cong., 1st Sess., pt. 6, Appendix, 241-242 (May 4, 1874). Emphasis
 Id. 242.
 Id. (May
22, 1874). The antebellum exclusion of blacks from the armed people
as militia was commented on by Sen. George Vickers (D., Md.), who recalled a
1792 law passed by Congress: "That every free able-bodied white male
citizen shall be enrolled in the militia." Vickers added that as late
as 1855 New Hampshire "confined the enrollment of militia to free white
citizens." Cong. Globe, 41st Cong., 2nd Sess., pt. 2, 1558-59
(Feb. 25, 1870). Exclusion of a right to bear arms by blacks was
further evidence of their lack of status as citizens. See 1464 H.R.
Rep. No. 22, 41st Cong., 3rd Sess. 7 (Feb. 1, 1871), citing Cooper
v. Savannah, 4 Ga. 72 (1848) (not entitled to bear arms or vote).
 While unrelated to the
debates over the Fourteenth Amendment, congressional deliberation over
whether the federal government could abolish militias in the Southern states
also gave rise to exposition of the Second Amendment. In support of repeal
of a statute prohibiting the Southern militias, Sen. Charles R. Backalew
(D., Penn.) pointed out that the U.S. President favored repeal of the
statute because at all times, both when it was placed upon the statute-book
and every moment since, it was and is in his judgement a violation of the
Constitution of the United States. One of the amendments to our fundamental
law expressly provides that "the right of the people to keep and bear
arms shall not be infringed"--of course by this Government; and it
gives the reason that a well-regulated militia in the several divisions of
the country is necessary for the protection and for the interests of the
people. Cong. Globe, 40th Cong., 3rd Sess., pt. 1, 83-84.
George F. Edmunds (R., Vt.) worried that repeal of the statute
"will authorize anybody and everybody in the State of Texas, under what
they call its ancient militia laws ... to organize a militia hostile to the
Government," id. at 81, and thus advocated "a
selected militia" chosen by State and federal governments. Id. In
contrast, Garrett Davis (D. Ky.) stated: "Wherever a State organizes a
government it has of its own inherent right and power authority to organize
a militia for it. Congress ... has no right to prohibit that State from the
organization of its militia." Id. at 84. Willard
Warner (R., Ala.) stressed the first clause of the Second Amendment to form
militias independent of federal control: we have the right now, being
restored to our full relations to the Federal Government, to organize a
militia of our own, and that we could have done so at any time in the past,
this law to the contrary notwithstanding. Article two of the amendments of
the Constitution provides that--
"A well regulated militia being
necessary to the security of a free State, the right of the people to keep
and bear arms shall not be infringed." Id. at 85.
The prohibitionary statute was repealed, id.
at 86. Cf. Houston v. Moore, 18 U.S. 1, 16-17
Thus, while debates over the militia question suggested that
the Second Amendment precluded federal legislation which prohibited the
states or the people from forming militias, debates over the Fourteenth
Amendment demonstrate the intent of Congress to preclude state militias or
other state action from infringing on the individual right to keep and bear