14th Amendment incorporates 2nd in right to bear arms case

David Fredosso:

Within the text of the 214-page Supreme Court ruling on gun rights is a history lesson on how Americans’ right to keep and bear arms was a major issue in the struggle for black civil rights in the South after the Civil War. To wit, Southern resisters, black codes and lawless lawmen attempted to disarm freedmen (usually in order to make them more vulnerable to racist terrorism), and the federal government came to their rescue by protecting their 2nd Amendment rights.

The quotations and detailed references leave absolutely no question that Congress and the ratifiers of the 14th Amendment viewed it — and accompanying post-war civil rights legislation — as a safeguard against state infringement of the 2nd Amendment right of the people to keep and bear arms. It’s not a part of our history that the Left has much stomach for, but fewer people argue against the obvious now that the Democratic Party has all but conceded the gun issue.

I’ve removed the references and footnotes for clarity (you can get them all in the original PDF) and reproduced this section of Justice Alito’s opinion at length below:


Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” One of these, he said, was the right to keep and bear arms:

“Every man . . . should have the right to bear arms for the defense of himself and family and his home-stead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.”

Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self-defense.” Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.”

“The fourteenth amendment, now so happily adopted, settles the whole question.” And in debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. Finally, legal commentators from the period emphasized the fundamental nature of the right….In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.

(Also, here’s one of the important footnotes: There can be do doubt that the principal proponents of the Civil Rights Act of 1866 meant to end the disarmament of African Americans in the South. In introducing the bill, Senator Trumbull described its purpose as securing to blacks the “privileges which are essential to freemen.” He then pointed to the previously described Mississippi law that “prohibit[ed] any negro or mulatto from having fire-arms” and explained that the bill would “destroy” such laws. Ibid. Similarly, Representative Sidney Clarke cited disarmament of freed-men in Alabama and Mississippi as a reason to support the Civil Rights Act and to continue to deny Alabama and Mississippi representation inCongress:

“I regret, sir, that justice compels me to say, to the disgrace of the Federal Government, that the ‘reconstructed’ State authorities of Mississippi were allowed to rob and disarm our veteran soldiers and arm the rebels fresh from the field of treasonable strife. Sir, the dis-armed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of those States. They appeal to the American Congress for protection. In response to this appeal I shall vote for every just measure of protection, for I do not intend to be among the treacherous violators of the solemn pledge of the nation.”)

There is more between the ...'s.

This is certainly a part of our history that has not been included in the text books written by liberals. While the post civil war abuses are part of most texts, the part where Congress sought to protect these people by giving them the right to own and bear arms is generally omitted. Justice Alito has done a real service with this opinion.


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