Richard L. Aynes
• Firearms, Inc. •
2010 Cardozo L. Rev. de novo 170
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The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:
Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.
This case follows and seeks to build upon District of Columbia v. [Page171] Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct application to the states. Yet all knew, as surely as night follows day, that the question of applying Heller to the states would be the next inevitable step in the litigation.
At one level, Heller was a monumental decision. It was the first case in modern times where the Court squarely considered whether there was an individual right to bear arms under the Second Amendment and it was the first time in which the Court indicated there was a constitutional right to engage in self defense. On the other hand, this case could also be viewed as simply reigning in an “outlier.” Justice Scalia’s opinion, by recognizing a right to have arms but reassuring lower courts that this would not interfere with traditional regulation of those arms, displaced only “outlier” regulations and crafted an opinion which paralleled the views of the majority of people in the [Page172] nation.
Extending Heller to the states would have both a greater and a smaller impact than Heller itself. It would have a greater impact, because it would apply to all fifty states and encompass more people and a much larger geographical region than Heller which only applies to the District of Columbia and other federal enclaves. Yet it can be said to have a smaller impact because while it may conflict with laws of a city like Chicago, it would be largely congruent with the state laws and most city regulations across the country. Though it is easy to see how the rationale of Heller could be extended and enforced against the states by the Fourteenth Amendment, the purpose of this essay is to illustrate how the right to bear arms could be reasonably enforced against the states even without reference to Heller.
I. A CONGRESS OF LAWYERS
A majority of the members of the Thirty-Ninth Congress were lawyers and judges. As late as the 1830s, would-be lawyers were studying Blackstone’s Commentaries and a copy could be found in law [Page173] offices even in the west. The lawyers in the Thirty-Ninth Congress and the ratifying legislatures studied the long-standing common law as articulated by William Blackstone: “Self-Defense therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society.” In addition to the legal right to act in self defense, part of the reason for not holding such action to be a crime was the balance in culpability between one who seeks to take the life of another and one acting in self-defense. As summarized by the Ohio Supreme Court during the Civil War, one may “save his own life by sacrificing the life of one who persists in endangering it.”
Further, it would be futile to attempt to outlaw self-defense, because in most cases self-defense is not only a normal, rightful response, but also a reflexive one. As Justice Oliver Wendell Homes later indicated, “detached reflection cannot be demanded in the presence of an uplifted knife.” Indeed, actions in self-defense are often based on the “instinct” for self-preservation and arise “spontaneously.” Moreover, no one would accept a state’s command that they suffer current death because of fear of a penalty of future death.
One of the many attacks launched upon slavery by William Jay, the son of American’s first Chief Justice, John Jay, and an early leader of the [Page174] anti-slavery movement, was that it denied the right of self-defense to the person held in slavery:
No right is more sacred, or more universally admitted, than that of self-preservation; but the wretched slave . . . is denied the right to self-defense against the brutality of any person . . . .
In interpreting the Civil Rights of Act of 1866, Justice Noah Swayne on the Circuit noted:
Where crime is committed with impunity . . . those unprotected by other sanctions [are compelled] to rely upon physical force for the vindication of their . . . rights. There is no other remedy and no other security.
II. GENERAL PRINCIPLES: THE BILL OF RIGHTS APPLIED TO THE STATES
There is an old adage about not being able to see the forest for the trees. This is often the case in discussions about the Privileges or Immunities Clause of the Fourteenth Amendment or enforcing the concepts contained in the Bill of Rights against the States. There are some natural reasons for this. However, while I will use details to support general claims, in this portion of the essay I want to step back from the trees and look at the forest.
The Fourteenth Amendment did not just spring, full-form, from the head of the drafters of the Amendment. Rather, like the [Page175] Declaration of Independence, it was a product of many years of controversy and discussion. While Section 1 author John Bingham, may have crafted the specific language, he was, like Thomas Jefferson, also recording the consensus of the enlightened people of his generation.
The right of individuals to act in self-defense was considered so non-controversial that it was often used as a measuring stick for what the government could do. For example, in the 1836 Chancellor Kent wrote that:
The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self defense, in all those cases in which the law is either too slow, or too feeble to stay the hand of violence.
Then, without citation but in what seems to be a paraphrase of Blackstone, Kent wrote:
The right of self-defence in these cases is founded on the law of nature, and is not, and cannot be superseded by the law of society.
During the Civil War one of the most influential publications in the country and “the leading national magazine” was Harper’s Weekly, which had a national circulation of over 120,000. In June of 1861 it referred to the “natural rights of self-defense, belonging to society as to the individual.” Later, in August of 1861 Harper’s paraphrased Senator Orville H. Browning (R-Ill) as similarly referring to “the right of self-defense inherent in States as in persons.” The pervasiveness of this view is demonstrated by President Grant’s post-war memoirs:
[T]he right to resist or suppress rebellion is as inherent as the right of self-defense, and as natural as the right of an individual to preserve his life when in jeopardy.
Nevertheless, differences in approaches to gun possession did exist, as shown by the disbanding of the armies at the end of the war. The [Page176] rebel soldiers were required to surrender their muskets while Union soldiers were authorized to keep their arms after discharge from the army.
The Civil Rights Act of 1866, re-enacted by Congress after the adoption of the Fourteenth Amendment, was seen as applying the Bill of Rights against the States. It is well-known that the Civil Rights Act was designed to overcome the virulent Black Codes adopted by the white southern rebel ruling class. In the debates over the Civil Rights Act, Representative Josiah Grinnell (R-Iowa) “attacked a Kentucky Black Code that forbade [B]lacks to ‘keep’ or ‘buy’ a ‘gun’—even ‘a musket which he has carried through the war.’” Likewise, Representative Samuel C. Pomeroy (R-Kan.) indicated that every man
should . . . have the right to bear arms for the defense of himself and family and his homestead. 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 . . . .
Similarly, the two versions of the Freedman’s Bureau Act were intended to enforce the Bill of Rights, including the right to bear arms, against the states. It has been recognized that the Freedman’s Bureau [Page177] Act and, more frequently, the Civil Rights Act, were intended to be constitutionally protected from repeal by the Fourteenth Amendment. Some writers—such as Raoul Berger—have argued that there is an “identity” between the Civil Rights Act of 1866 and the Amendment. Though this is incorrect—there is an overlap, but not an identity—even if it were true, it would do such advocates no good because the Civil Rights Act itself was seen as enforcing the Bill of Rights against the States.
To address the monumental issues facing the nation, Congress formed the Joint Committee of Fifteen on Reconstruction, made up of leading members of the House and Senate, to consider possible [Page178] solutions. It was well balanced between the different factions of the Republican Party and three members of the Democratic Party. The Joint Committee was chaired by Senator William P. Fessenden (R-Maine), who has been described by a leading expert on Reconstruction as a “conservative.” But the Joint Committee was clearly controlled by moderates. In speaking of the composition of the Joint Committee in the Congressional Campaign of 1866, Congressman, General, and future President James Garfield indicated that the people on the Joint Committee were “the truest and best men in Congress.”
It is important to emphasize that, as they developed the terms of the Fourteenth Amendment, these Congressmen were not writing on a clean slate. They were writing based on 30 years of anti-slavery debates, litigation, struggles for free speech and freedom of the pulpit, countless platforms of a variety of political parties, and the collective, shared experiences of their generation.
As a prelude to their proposals, they held hearings and produced a lengthy report. Approximately 150,000 copies of this document were published, and it was not only summarized in newspapers, but distributed across the country. There were over 80 amendments proposed in Congress at various times to deal with Reconstruction, all of which were referred to the Joint Committee, and public discussions outside of Congress. As the Joint Committee worked to craft this constitutional amendment, it is clear they built on all the background, [Page179] thoughts, and ideas that had been discussed before and after the Civil War.
Harper’s Weekly, for example, wrote in 1861 that while Unionists were fighting a war they were already planning what was going to happen afterward. That is, “the North, after conquering this rebellion, means to have guarantees for its rights.” One of the items set forth was the constitutional right “of going freely every where in the country, and of freely expressing every where his opinion.” How these views would play out after the war was made clear in a column on August 6, 1864:
The people of the United States, therefore, in their Constitution have forbidden Congress to abridge either of these rights [freedom of press and freedom of speech]; and what they would not suffer their supreme legislature to do, they will not permit to to any local assembly.
Harpers also explained that such planning was important because application of the Bill of Rights to the States could have prevented the Civil War and could now prevent a future war:
It was the knowledge that, if the right of free speech, guaranteed by the Constitution, were tolerated in the South, slavery would be destroyed by the common-sense of the Southern people, which made Calhoun and all his school insist upon suppressing it. Consequently, in its most important provision, the Constitution has been a dead letter in every slave State for more than thirty years.
Similarly, Harpers editorialized that:
The slave-drivers and their political allies at the North knew equally well that if the constitutional right of discussion were allowed the horrors of the system would be known, and the outraged decency and humanity of the American people would sweep away the inquiry in a flood of wrath. [Page180]
The Republicans believed that had free speech been allowed to flourish, slavery would have been abolished and the war averted. Further, states could no longer punish people for expressing opinions that the state did not like, expel by threats of violence, or deny them access to the courts.
Building upon such prior discussions, Representative John A. Bingham (R-Ohio) (in the Joint Committee) and Senator Jacob M. Howard (R-Mich.) (by amendment in the Senate) together authored the whole of Section 1 of the Fourteenth Amendment. Bingham was the floor manager in the House and Senator Howard was the floor manger in the Senate.
Some claim that Bingham was not clear about his desire to use the Fourteenth Amendment against the states. But that claim is not credible. Even the Respondent City of Chicago uses—apparently without noticing the irony—the cases of Barron v. City of Baltimore and Livingston v. Moore for the proposition that the Bill of Rights does not apply to the states. Bingham cited both of those cases as the reason the Fourteenth Amendment was necessary: to overcome those decisions; saying that these cases made “plain the necessity of adopting this amendment.” His speech was summarized in The New York Times as “simply a proposition to arm Congress . . . with the power to enforce the Bill of Rights.” The speech was also published in pamphlet form with the subtitle indicating the speech was “in support of the proposed amendment to enforce the Bill of Rights.”
In a post-ratification explanation of the drafting process, Bingham [Page181] indicated that upon re-reading Barron v. City of Baltimore he noticed Chief Justice Marshall’s suggestion that if the Bill of Rights had been intended to apply to the states it would have used the same formulation as Article I, Section 10 and began with “No State shall . . . .” Bingham indicated that he followed Marshall’s formulation when he drafted Section 1 of the Fourteenth Amendment. In that same speech, Bingham further indicated that “the privileges and immunities of citizens of the United States . . . are chiefly defined in the first eight amendments to the Constitution of the United States.”
Of course, given the major political shifts that began in 1872 and the Panic of 1873, post-ratification explanations are not without their problems. However, even independent of Bingham’s explanation, we can do the analysis ourselves. We can read Marshall’s admonition in Barron and note the parallel between Article I and Section 1 and reach the same conclusion. This structural/textual analysis is fully consistent with the presentations of Bingham and Howard upon the floor of Congress in 1866.
It is sometimes claimed that Bingham’s views cannot be said to represent those of the House, because no one stood up to say “amen” or “me too.” This view, of course, misconceives the nature of the legislative process during the 1860s.
In a Congress with a majority of members who were serving their first or second term, Bingham was one of the veterans. He had served from 1855-1863 and was then re-elected to serve beginning in March 1865. Thus, by the time he was proposing the Fourteenth Amendment, he had served in Congress for almost ten years. He had formerly been Chair of the Judiciary Committee and in 1865-1866 was Chair of the House Committee on Reconstruction. Bingham is listed by Michael [Page182] Les Benedict as one of eleven “Representatives with pre-eminent influence” in the House of Representatives. Benedict also indicated that Bingham “braved Steven’s and Butler’s wrath, ultimately having a greater influence on the course of Reconstruction than the radical leaders themselves.” The overriding point is that Bingham was not just another Congressman, but rather a leader and important force of his own right.
The Committee was composed of the leaders of Congress and when Bingham spoke to the House, he was not speaking as an individual or rogue Congressman but rather as a representative of these “truest and best men.” Further, in spite of his difference with Thaddeus Stevens (R-Pa.), Stevens was one of Bingham’s most consistent supporters in the votes by the Joint Committee on Reconstruction. Of course, all of the Republican members of the Committee unanimously voted to report out the final draft of the Amendment, including Stevens. Once the matter was presented to Congress, though Stevens spoke on the merits, it was clearly Bingham who was what we would call the “floor leader.” However, Stevens was present and participated in the debates and could have “corrected” any misstatements of Bingham, had he made any. Indeed, throughout the 1866 debates on the Civil Rights Act and the Fourteenth Amendment Bingham specially indicated that he wanted to enforce the Bill of Rights against the states by an amendment no less than seven times.
Furthermore, one does not have to look far for corroboration of Bingham’s view. James F. Wilson (R-Iowa), Chair of the House Judiciary Committee, and Bingham agreed that the Bill of Rights should be enforced against the states. Their disagreement in the debate over the Civil Rights Bill was that Wilson—along with the majority of the House—thought this enforcement power already existed, while Bingham thought it required a Constitutional Amendment. In a discussion of the first version of the Fourteenth Amendment that was [Page183] brought to Congress, Representative Giles S. Hotchkiss (R-NY), having heard a speech in which Bingham declared he wanted to enforce the Bill of Rights against the states, said: “I have no doubt that I desire to secure every privilege and every right to every citizen in the United States that the gentlemen who reports this resolution desires to secure.” Similarly, in the same debate, Congressman Ignatius Donnelly (R-Minn.) stated:
There is an amendment offered by the distinguished gentlemen from Ohio [Mr. Bingham] which provides in effect that Congress shall have power to enforce by appropriate legislation all the guarantees of the Constitution. Why should this not pass? Are the promises of the Constitution mere verbiage? Are its sacred pledges of life, liberty, and property to fall to the ground through lack of power to enforce them?
Many of the points made about Bingham could also be made about Senator Howard (R-Mich.) who was the floor manager in the Senate. Howard was a founder of the Republican Party in Michigan, the former Attorney General of that state, and a “respected” Senator. Howard was personally chosen by Senator Fessenden to make the presentation on the floor of the Senate and, contrary to claims by some who would undermine Howard’s speech, Fessenden was actually in the Senate listening to Howard’s presentation.
Howard quoted long portions from Justice Washington’s Circuit opinion in Corfield v. Coryell on the meaning of the Privileges and Immunities Clause of Article IV and then stated:
To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their extent and precise [Page184] nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; . . . .
The Privileges or Immunities Clause provides a solid textual basis for many rights already recognized and some that have never been recognized. Though he did not mention it by name, Howard described the Court’s decision in Barron and indicated that one purpose of the Amendment was to overcome that decision.
Howard’s standing in the Senate is also shown by the alteration of the Amendment’s text in the Senate. Rather than moving into obscurity, one of the first things that happened after Howard’s speech was that the Republicans chose him for another leadership role on the Fourteenth Amendment. After various Republican caucuses in which the Amendment was discussed, Howard, Fessenden, and James W. Grimes (R-Iowa) were designated as a committee of three to prepare the proposals based upon the discussion in the caucus. It was caucus leader Benjamin Wade (R-Ohio) who made the initial motion to add a citizenship clause. But Howard (R-Mich.) had a different view and it was Howard’s view that prevailed over the leader of the Republican caucus. Fessenden also took an active role, obtaining the addition of the words “or naturalized” to the citizenship clause.
These post-caucus proceedings show Howard’s standing in the Senate and, equally as important, Fessenden’s willingness to intervene if he disagreed with Howard. Yet, there was no intervention by Fessenden on Howard’s description of the meaning of the Privileges or Immunities Clause. If this was a matter of discussion in the Republican caucus, it must have been satisfactory because there was no post-caucus [Page185] discussions, no clarification or disavowal of Howard’s speech and no proposed amendment with respect to the Privileges or Immunities Clause, like there was with other portions of the proposed amendment. Because the Amendment avoided all radical proposals and was the product of the moderates, it became the basis upon all members of the party could rally around. Except for the portions amended in the Senate, there was simply nothing controversial in the proposal and no reason for extended discussion.
For purposes of this essay, it is well worth mentioning the opposition of Democratic Senator Reverdy Johnson (D-Md.), who I will focus upon because he represented the slaveholder in Dred Scott and, in the Joint Committee, voted against reporting out the Amendment. In a June 8, 1866 speech Senator Johnson professed support for the Citizenship Clause and the Due Process Clause. He made no mention of the Equal Protection Clause, but he opposed the Privileges or Immunities Clause upon the claimed ground that “I do not [Page186] understand what will be the effect of that.” As Professor Wildenthal documents, Senator Johnson moved to strike the clause from the Amendment and his views were not even considered worthy of debate or a roll-call vote in rejecting the motion.
This is particularly interesting for multiple reasons. First, like President Johnson who helped to sponsor, along with some of his appointed Provisional Governors, a short-lived conservative counter-fourteenth amendment, whose primary changes were to the Privileges or Immunities Clause, Senator Johnson apparently had a real fear of that clause. Thus, we see a convergence between leading opponents (President Johnson, Senator Johnson, leading anti-war Democrat Vallandigham, as well as the Provisional Governors under President Johnson) of the Privileges and Immunities Clause and the proponents of the Clause in the Congress as all seeing it as an important portion of Section 1.
Second, we have to take Johnson’s claim of “not understand[ing]” the effects of the Privileges or Immunities Clause with a large amount of skepticism. In part, this is because he not only heard Howard’s speech but undoubtedly heard Bingham and others discuss the effect in the Joint Committee. Further, because Johnson argued Dred Scott he knew the Chief Justice’s conclusion was that if African Americans were U.S. Citizens their privileges and immunities under Article IV would give them “the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” This is confirmed by Senator Johnson’s post-ratification actions: when he frequently represented KKK terrorists and Democrats opposed to Republicans and republican governments, he conceded that the Privileges or Immunities Clause included the right to bear arms.
A look at the ratification process produces no different result. If we look at the plain language of Section 1 and ask what the rights of U.S. citizens are, the most natural meaning is the Bill of Rights and other provisions of the Constitution such as habeas corpus, the right to [Page187] access the courts, and related matters. If one asked the same question during the Nineteenth Century, the average person at the time would have answered: the Bill of Rights.
Beyond the language of the Amendment, in this pre-electronic age one of the major attractions of the times was politics. Many individuals had their own subscription to the Congressional Globe. Further, Congressmen were entitled to 25 copies of the Globe which they apparently gave to political allies. Thus, with a Congress of 235 members, there were 5,640 copies of the Globe that could be distributed to their political allies. This is more than enough copies for each member of Congress to distribute to the state legislative members whose districts overlapped with his own and thus have the entire legislature covered, if they so desired.
We also know that thousands of “reprints” of the speeches of Congressmen were sent to constituents and others, by the speaker, by other congressmen, and by political parties. During General William T. Sherman’s Atlanta campaign, as the Presidential election of 1864 approached, “[p]amphlets of political speeches flooded the camp.”
The use of pamphlets was a critical part of political communication during the Civil War and Reconstruction era. In speaking of Secretary of War Edwin Stanton, historian T. Harry Williams pointed out the importance of this form of communication and tied it to the ability of government officials, including Congressmen, to “frank” the documents to key political players:
Pamphlet writers formed an essential part of Stanton’s propaganda machine. He knew the efficiency of this medium of dissemination in an America which read avidly all the political documents franked out of Washington.
These pamphlets were often circulated in large numbers. For example, after President Johnson vetoed the Freedman’s Bureau bill, [Page188] Congressman John Lynch (R-Maine) indicated that 100,000 copies of Senator Trumbull’s (R-Ill.) reply would be “sent to the Country”. When the Report of the Joint Committee on Reconstruction was completed, 150,000 copies were distributed across the nation. One such pamphlet that received widespread circulation was Bingham’s Fourteenth Amendment speech of February 25, 1866 with the sub-title: “In support of the proposed amendment to enforce the Bill of Rights.”
Moreover, there were accounts of the speeches of both Bingham and Howard in The New York Times and other newspapers. In that era, when newspapers printed each other’s stories, the New York newspapers dominated the national press. Thus, the fact that these speeches were summarized or printed in New York inevitably means they were printed elsewhere as well.
While these various versions of print media probably were most effective for the members of the legislature who were called upon to ratify the Amendment, the common people probably received most of their information from public speeches. The Amendment was considered the “campaign platform” of the Republican Party in the Congressional Election of 1866. [Page189]
Unfortunately, we have more difficulty documenting what was said on the campaign trail. One problem is that candidates delivered a great many speeches. In one election, for example, future President Garfield was said to have given fifty speeches. But I have previously shown that speeches of Bingham’s published by the Cadiz Republican (at a time when Cadiz was a more important town than one might think), the Cincinnati Commercial, and the Cincinnati Gazette not only support the view that the Bill of Rights was to be enforced against the states, but were also entirely consistent with the speeches made on the floor of Congress. Not surprisingly, we can also find speeches of Judiciary Chairman Wilson and Congressman James Garfield which are identical to or consistent with their speeches in the Congress. Indeed, one would have to be a pretty poor political figure to say something in a public speech that could be contradicted by what one knew was printed in the Globe.
Further, though we do not have as much information on the ratification process as one might like, we do know from what we have that the enforcement of portions of the Bill of Rights by the Amendment was clearly known to the legislatures of, among others, Ohio, Pennsylvania, Massachusetts.
In addition, there were at least seven legal treatises published in the time between the proposal of the Amendment in 1866 and its ratification in 1868. Four of those treatises make no mention of the Fourteenth Amendment at all. The three treatises which did treat [Page190] the pending Amendment unanimously concluded that the end result would be to enforce the first eight amendments against the states. No contemporaneous treatise (1866-1868) presented any other interpretation of the Amendment.
Though they each arrive at their conclusion in a slightly different way, one of them, like Bingham and Howard, focused upon overruling Barron. This was a treatise published in 1868 while the Fourteenth Amendment was pending and obviously written when it had not yet been adopted, John Norton Pomeroy, Dean of the Law School and Chair of Political Science at New York University, illustrated this problem with a right of protection by the “due process” clause which existed in both the state constitutions and the federal Constitution. Because of Barron, Pomeroy noted:
[I]n a case arising under the clause in a state constitution . . . the Supreme Court of the United States cannot pass directly and independently upon the question whether a given state statute, or a given act done under the authority of the state, is opposed to this clause, but must defer to, and be controlled by, the judgments of the courts of the same commonwealth which have settled the construction given their own organic law.
Pomeroy concluded that:
Here is plainly a vast field open for injustice and oppression by individual states, which the nation has now no means of preventing.
Pomeroy found this “result” to be “dismaying,” and noted that a “remedy is needed.” He then observed that such a remedy is “easy and the question of its adoption is now pending before the people,” [Page191] thereafter referring to section one of the Fourteenth Amendment by name. Thus, like others who endorsed the Amendment, Pomeroy saw it was as a means of providing double security for the rights of citizens—once by the state and a second time by the nation.
The Amendment itself was the central issue of the Congressional elections of 1866 and the Republicans won by overwhelming majorities. In spite of the opposition of the most racist President in U.S. history and of the Democratic Party, which chose to campaign almost exclusively upon race, the Amendment was ratified, often with approval by overwhelming majorities in the individual state legislatures.
Though the full extent of the contours of the Privileges or Immunities Clause is subject to interpretation, there should be no controversy that at the core these provisions included the Bill of Rights. As summarized by Randy Barnett:
There is now a scholarly consensus that the original meaning of “privileges or immunities” included the Bill of Rights.
We might have a vibrant discussion about whether the privilege or immunities (rights of U.S. citizens) include a “right to family life” or the Jacksonian Democrats’ anti-monopoly views. But at the core, there should be no dispute that they include the Bill of Rights.
The same general principles that enforce the other provisions of the Bill of Rights against the states apply to the Second Amendment as well. There is absolutely no evidence that the framers or ratifiers of the [Page192] Fourteenth Amendment developed or supported a concept of “selective” incorporation (application) of the rights included in the Bill of Rights against the States. Indeed, as far as could be determined, the first use of that term did not occur until l949 in Justice Frankfurter’s concurring opinion in Adamson v. California. Frankfurter was hostile to the very term he coined and he had previously expressed the wish that the Fourteenth Amendment had never been adopted.
III. CONTEXT: ACTIONS OF INDIVIDUALS IN THE THIRTY-NINTH CONGRESS
The extent to which members of the Thirty-Ninth Congress put the principles they learned as aspiring lawyers and articulated on the floors of Congress into action can be seen by their response to the violence threatened by white, elitist slaveholders in the Congress.
It is perhaps generally known that violence and threats of violence were part of the life of the pre-Civil War Congress in disputed matters concerning slavery. But what may not be so well known is that northern men, particularly those from the west (what we now call the Midwest) were ready to act in self defense. As part of that context, one can consult incidents involving two members of Congress: Congressman Lewis D. Campbell and Senator Benjamin F. Wade. Wade came to the Western Reserve in the Ashtabula area at a time when it was still a frontier and Campbell was born in Warren, Ohio in 1811, when it too was still considered part of the frontier. We may surmise that in that situation they gained experience with firearms and we know from their subsequent actions that they believed in the right of self defense.
The story about Campbell is relatively brief. Campbell was said to have been “a militant antagonist of the slave power.” At the same time, he was a “social favorite” and “popular with the southern [Page193] members” of the House. One day after the caning of Charles Sumner (R-Mass.), which is discussed more fully below, Campbell was walking down Pennsylvania Avenue when one of his southern friends told him that that very day slaveholders were going to “challenge” him. Campbell made no reply, but after they passed a shooting gallery Campbell invited his friend to go there with him. Campbell asked the owner of the shooting gallery to replace the normal target with “a lighted candle.” Campbell proceeded to “snuff that candle with a rifle ball, ‘off-hand’ three times in succession.” No challenge or attack was ever made on Campbell and no mention of it was ever made again. This was attributed to the fact that “the certainty of death has a tendency to cool the ardor of the most persistent duelist.”
Benjamin Franklin Wade, was known as “Bluff” Ben Wade. In that era the word had an entirely different connotation than our own and referred to being plainspoken, forthright and bold. Wade had helped found the Ohio Republican Party and was himself a candidate for President in the Republican Convention in Chicago in 1860.
Wade had been a practicing lawyer and a judge who was elected as a Whig and then a Republican to the U.S. Senate (1851-1869). By the time of the consideration of the Fourteenth Amendment, Wade was the President Pro Tem of the Senate and the leader of the Senate Republican Caucus. While he played no role in the drafting of the Amendment, he did play a role in the alteration of the Amendment’s text in the Senate. Once Andrew Johnson was elevated to the position of President, there was no Vice President. Under the terms of succession at the time, had Johnson been impeached or otherwise unable to continue as President, Wade would have become President of the United States.
Early in his career in the Senate, Wade witnessed a slaveholder [Page194] making an attack upon a northern Senator who made no response to the “taunts and insults” of the slaveholder. Wade let it be known that if a slaveholder ever made such statements about him or his state, Wade “would brand him a liar.” A Senator from a southern state made such statements and, true to his word, Wade branded him a “liar.” When an intermediately tried to obtain an apology from Wade, Wade rejected the effort and insisted that the slaveholder owed an apology to Wade and to Ohio. “The matter [was] thus closed, and a fight was looked upon as certain.”
The next day a friend of the southern Senator met with Wade to discuss the possibility of a duel. Rather than being conciliatory, Wade responded:
“I now take this opportunity to say what I then thought, and you will, if you please, repeat it. Your friend is a foul-mouthed old blackguard.”
“Certainly, Senator Wade, you do not wish me to convey such a message as that?” [said the friend.]
“Most undoubtedly I do; and will tell you for your own benefit, this friend of yours will never notice it. I will not be asked for either retraction, explanation, or a fight,” [was the reply from Senator Wade.]
The next day Wade came to his seat in the Senate and, apparently with some flourish, drew from under his coat two large pistols which he laid inside his Senate desk, thereby announcing his intention to act in self-defense if necessary. Wade’s “plucky” action was of such surprised to the fire-eaters that his biographer indicates “[n]o further notice was taken of the affair of the day before. Wade was not challenged, but ever afterwards treated with the utmost politeness and consideration by the Senator who had so insultingly attacked him.”
One of the most famous acts of violence in Congress was the caning of Massachusetts Senator Charles Sumner (R-Mass.) by Representative Preston Brooks (D-S.C.) on the floor of the Senate while it was in recess. In his capacity as a Senator, Charles Sumner had [Page195] made a speech on the floor of the U.S. Senate in which he compared South Carolina Senator Andrew F. Butler (D-S.C.) to “Don Quixote who had chosen [the harlot Slavery] as a mistress to whom he has made his vows.” Two days later, while the Senate was in recess and Sumner was sitting at his desk writing, Butler’s younger cousin, Preston Brooks (D-S.C.), attacked Sumner from behind beating him over the head thirty-times or more with a gold-headed cane until Sumner lay unconscious on the floor covered in blood and unable to return to the Senate for three years.
It has been suggested that Brooks did not challenge Sumner to a duel, because duels were between “social equals” and that “someone as low as this Yankee Blackguard deserved a horsewhipping—or a caning.” However, the biographical backgrounds of Sumner and Brooks suggests that Sumner was Brooks’ social equal, if not his superior.
The real reason for the surprise assault upon an unarmed man is far more likely acknowledged by the appellation given Brooks by the North: “Bully Brooks.” We often associate a bully with cowardice and there is reason to think this may well have been the motive of Brooks in launching a surprise attack with a weapon against an unarmed and unsuspecting man. At the time of the assault, Brooks and Sumner were close in age, with Brooks being around forty-seven years [Page196] old and Sumner being approximately fifty-five. But Sumner, like Lincoln, was over six feet tall in an era when that was highly unusual and from his photographs, appears to have been of fuller proportions than the lanky Lincoln. In contrast, Brooks appears to have been a man of average height and weight.
Ultimately, we cannot clearly assess the ability of Brooks or Sumner to engage in a physical struggle. But it seems likely that if approached in the open, Sumner, whether Brooks was armed with the cane or not, would have been able to defend himself against Brooks. At the very least, it appears unlikely that Sumner would have sustained such severe injuries. Since it seems unlikely that Brooks could have bested Sumner in a fair fight (as admitted by Brooks’ secret attack), one can only conclude that Brooks chose the only way he thought he could prevail—by denying Sumner any opportunity for self-defense.
The lesson was not lost on those who valued free speech and democracy. William Cullen Bryant, editor of the New York Evening Post wrote:
Are we to be chastised as they chastise their slaves? Are we too, slaves, slaves for life, a target for their brutal blows, when we do not comport ourselves to please them?
The answer was not long in coming; Senator Wade took the floor to denounce the actions that had occurred:
Mr. President, if the hour has arrived in the history of this Republic when its Senators are to be sacrificed and pay the forfeit of their lives for opinions’ sake, I know of no fitter place to die than in this [Page197] chamber, with our Senate robes around us; and here, if necessary, I shall die at my post, and in my place, for the liberty of debate and free discussion.
Fire-eater Robert A. Toombs (D-Ga.) witnessed the assault without intervening and stated his approval of the actions by Brooks. In response, Wade, whose seat was near that of Toombs, gained the floor and “arose within arm’s length of the savage [Toombs], face livid, eyes flashing, hands clenched” and turning to Toombs, said, in part:
It is true that a brave man may not be able to defend himself against such an attack. A brave man may be overpowered by numbers on this floor, but sir, overborne or not, live or die, I will vindicate the right and liberty of debate and the freedom of discussion upon this floor, so long as I live. If the principle now here announced prevail, let us come armed for the contest, and although you are four to one I AM HERE TO MEET YOU.
It was thought that Toombs must respond to Wade, but Toombs remained silent. When Wade’s friends inquired as to what he would do if challenged by Toombs, Wade replied that though his constituents were unanimously opposed to dueling, these were exceptional times and he would make an exception if Toombs challenged him, choosing rifles at 30 paces. Of course we do not know what the result would have been. But Wade was known as a “dead shot” and Wade’s friends said: “Pin a paper to Toombs’ bosom the size of a quarter coin and Wade’s bullet would certainly cut it.” Toombs no doubt heard of Wade’s response, knew of his skills with a rifle, and found a way to act conciliatory to Wade and avoid any conflict.
Finally, in 1860, when tensions were high and violence was threatened by slaveholders, Wade was scheduled to make a public speech supporting the announcement of Lincoln’s election as President. When one of his companions noted that there was a possibility of mob action and he might not be able to make the speech, Wade revealed that he was carrying a pistol, saying: “I have six shots; . . . I shall make my speech.”
These events, largely lost to history, show northern anti-slavery [Page198] and abolitionist congressmen standing up to slaveholders and being willing to use both rifles and pistols to defend not only their lives but their constitutional rights. These events were well-known to members of the Thirty-Ninth Congress, including John Bingham with whom Wade helped found the Ohio Republican Party. They were played out on the national stage and were well-publicized. They were well known to anyone who followed contemporary events in the nation and part of the nation’s shared experience.
The views of the “right” of self defense continued throughout the era before war. In 1857 even moderate Republican and future Fourteenth Amendment author John A. Bingham (R-Ohio) took the position that:
[B]y the Constitution . . . MEN are not PROPERTY, and cannot be made property, and have the right to defend their personal liberty even to the inflection of death!
When President Lincoln issued his famous Emancipation Proclamation in its final version he “enjoined[ed] upon the people so declared to be free to abstain from all violence, unless in necessary self-defense.” Notice that that President Lincoln relied upon “self-defense” for these individuals all of whom were still behind enemy lines and under the control of at least de facto state governments that forbade self-defense by people held in slavery.
Fourteenth Amendment author Congressman John A. Bingham (R-Ohio) went even further than Lincoln. In 1862, before the Emancipation Proclamation, Bingham condemned laws by white slaveholders that made it a crime to “whisper” to a slave that “there is a God that . . . sometimes condescends to clothe with superhuman power the good right arm of an outraged man when he strikes for the liberty of himself, his wife, and children.”
On the campaign trail in 1866, General and future President Rutherford B. Hayes told the people that the terms of the Fourteenth [Page199] Amendment were “few in number [and] easily understood.” The conservative Republican Governor of Ohio, a former Major General in the Union Army, told the legislature that “[a] simple statement of [the effects of the Fourteenth Amendment] is their complete justification.” Professor Rosenthal notes that an editorial in The New York Times termed Howard’s speech regarding the Fourteenth Amendment “clear and cogent.” Further, Professor Thomas notes that “[q]uite a few newspapers” simply quoted the Amendment, acting as if the “meaning was clear enough.” On May 27, 1866, only two days after Senator Howard’s speech, the Chicago Tribune indicated that debate would be short because the subject was “already thoroughly discussed and understood.”
When contemporaries indicate that the meaning of the Amendment is clear, one would think that scholars should devote their time to trying to understand that clear meaning, rather than trying to find ways to claim the words or the meaning was confusing.
One of the ironies of the Court’s various decisions is that it recognizes as “fundamental” and protects rights that are not specifically mentioned in the U.S. Constitution. Yet in contrast, rights such as the right to bear arms, that are specifically mentioned in the Constitution have not been so recognized. [Page200]
IV. CONCLUSION
Given David Kyvig’s insight about the affect of combing multiple provisions into one amendment and the binary choice that such a combination imposed upon the ratifiers, good faith requires that we make efforts to harmonize the views of the framers and the ratifiers where we can reasonably do so. Fortunately, as this narrative demonstrates, this is not difficult to do.
The pre-war and war grievances of the Republicans were summarized by the claims that the white slaveholder elite had violated “every” right secured in the Constitution. If we look to the discussion of the abuses which the Amendment was to correct, we find claimed violations or calls for the protection of: “inalienable rights,” “personal rights,” “personal liberty,” “every right and privilege belonging to a freeman,” “rights of men,” “every constitutional right upon every inch of United States soil,” and “natural rights.” With the exception of “natural rights,” these terms are generally broad enough to encompass the rights protected by the Bill of Rights. Even when only one example—often free speech—is given, it is often made clear that this is only the chief right of the “rights of men” or other general rights that are under discussion. These general claims can all be harmonized with the framers’ actions in the Congress.
Examples can be found of claimed violations of almost every provision of the Bill of Rights and one can see that it would have been impossible to redress these grievances without some mechanism [Page201] for enforcing the Bill of Rights against the states. Further, the grievances were not limited to the Bill of Rights, but also included matters such as the right to interstate travel, the right to settle in an area and express one’s opinions even if contrary to the original residents, the right to access the courts, and a variety of similar rights. Thus, the entire history of the nation leading up to the action of the Joint Committee on Reconstruction is consistent with the adoption of some language that would allow enforcement of the Bill of Rights plus other rights of U.S. citizens.
Furthermore, Howard specifically stated that among the privileges or immunities are the rights contained in the “first eight amendments”; Bingham stated that they will protect the “Bill of Rights”; they both indicated that the purpose of the Amendment was to overcome the Supreme Court’s decision in Barron. The presentations by Bingham in the House and Howard in the Senate are consistent in indicating that the Amendment would enforce the Bill of Rights against the states. This reinforces what we would think: that they were both being faithful in reporting what the Committee thought the meaning of the Amendment was. The fact that no other Republican member of the Joint Committee disputed their presentation is powerful evidence of the consensus among the leadership of Congress. The Amendment was passed by significant majorities in both the House (120 to 32) and the Senate (33 to 11), and public statements made by the framers are certainly strong evidence of the public understanding of the terms used in the Amendment.
There are, in addition, many sources contemporary to the ratification of the Fourteenth Amendment that indicate the framers and ratifiers thought the Amendment supported an individual right to bear arms. As Professor Amar points out, ironically both abolitionists Joel Tiffany and pro-slavery activist Roger Taney reached the same conclusion: “if free blacks were citizens, it would necessarily follow that [Page202] they had a right of private arms bearing.” Judge Timothy Farrar, former law partner of Daniel Webster, specifically included the right to “keep and bear arms” as one of the rights protected under Article IV that could not be “infringed by individuals or States, or even by the government itself.”
As Professor Akhil Amar has noted:
[B]etween 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman. The Creation motto, in effect, was that if arms were outlawed, only the central government would have arms. In Reconstruction a new vision was aborning: when guns were outlawed, only the Klan would have guns.
According to Professor Amar, the result was:
Reconstruction Republicans recast arms bearing as a core civil right . . . . Arms were needed . . . to protect one’s individual homestead. Everyone—even nonvoting, nonmilitia-serving women—had a right to a gun for self-protection.
Thus understood, the analysis in support of recognizing the right to have arms for purposes of self-defense is far more compelling under the Fourteenth Amendment’s Privileges and Immunities Clause than under the Second Amendment itself.
Given the overlapping support between the grievances sought to be addressed, the plain meaning of the language, the legislative history, the history of the debates for ratification, McDonald v. City of Chicago should be an easy case for the Court to resolve. Whether that will actually be the case, only time will tell.
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