Heller, the Second Amendment, and Reconstruction: Protecting All Freedmen or Only Militiamen?

Abstract

“In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves.” For this proposition, District of Columbia v. Heller, 128 S. Ct. 2783, 2809-10 (2008), cited this author’s Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998). Having taken place 75 years after the Second Amendment’s ratification, the Reconstruction debates were not seen by the Court as providing as much insight as the earlier sources, but were nonetheless instructive as showing the understanding of the Amendment in an era when the Southern States sought to disarm African Americans.

The majority opinion by Justice Scalia noted that the Black Codes, which prohibited African Americans from possessing firearms and otherwise deprived them of civil rights, were seen as violative of their Second Amendment rights. Congress passed civil rights legislation and proposed the Fourteenth Amendment in part to guarantee the right to keep and bear arms to all of the people. Perhaps nothing epitomizes this understanding more than the Freedmen’s Bureau Act of 1866, which guaranteed the right to “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and . . . estate, . . . including the constitutional right to bear arms.” Passed by more than two-thirds of the same Congress that proposed the Fourteenth Amendment, these words never appeared in a Supreme Court opinion until Heller.

The dissenting opinion by Justice Stevens in Heller suggests that violation of Second Amendment rights were perceived as taking place because black militias were disarmed, not because black persons were disarmed without regard to militia status. However, it was in 1866 that Congress addressed the general disarming of blacks, who were perceived as having a right to possess arms for self defense, hunting, and predator control on farms. It was only in the period 1869-72 that black militias were formed and some of them disarmed.

Under the Enforcement Act of 1870, Klansmen were prosecuted for depriving freedmen of the First Amendment right to assemble and the Second Amendment right to keep and bear arms “for a lawful purpose.” United States v. Cruikshank, 92 U.S. 542 (1876), held that these rights preexisted the Constitution, but could not be violated by private persons, who must be punished under State law. In Heller, Justice Scalia recalled that the Second Amendment issue was the right to have arms for any lawful purpose, again demonstrating the individual character of the right.

Justice Stevens, by contrast, suggested that the freedmen may have been thought to have had Second Amendment rights violated because they were serving as militiamen. However, no militia nexus was mentioned in the indictments, trial, jury instructions, or judicial decisions in Cruikshank or similar cases.

According to Justice Stevens, Cruikshank held that “the Second Amendment posed no obstacle to regulation by state governments.” Justice Scalia said that Cruikshank “did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” That very issue is now pending before the Court in National Rifle Ass’n v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted sub nom., McDonald v. Chicago, 2009 WL 1631802 (2009). Whether the Second Amendment – like most other Bill of Rights guarantees – applies to the States through the Fourteenth Amendment will be resolved in the context of whether Chicago may ban handguns.

Keywords: Heller, Second Amendment, Freedmen, Reconstruction, Fourteenth Amendment