Wednesday, February 13, 2008

The Right to Bear Arms in Reconstruction

One of the more interesting briefs filed in the Heller case – the case pending in the Supreme Court concerning whether there is an individual right to bear arms – is one filed by the the Institute for Justice.

The brief is somewhat off the beaten track, because it does not concern the original meaning or understanding of the Second Amendment. Instead, it focuses on the understanding of the Second Amendment held by the members of the 39th Congress shortly after the end of the Civil War. As such, it should be of significant interest to students of the Civil War and particularly Reconstruction.

I believe that the better argument is that the original Second Amendment was intended and generally understood to convey an individual right. But whatever one's views on that question, the evidence is overwhelming that members of the 39th Congress understood the Second Amendment as doing so.

What the brief documents is the powerful evidence demonstrating that that Congress was irate that southern states and communities were disarming freedmen and Republican sympathizers, leaving them to the tender mercies of gangs of murderous thugs. Rightly or wrongly, Congressional Republicans believed that the Second Amendment embodied an individual right to personal security and regarded these actions of southern states as clear violations of this right. Reconstruction era Republicans did not view the Second Amendment as tied to membership in state militias -- to the contrary, state authorities and “militias” were the problem. It was the need for freedmen and southern Republican sympathizers to protect themselves, their homes and their families against state and state militia violence that was the concern.

As the brief explains, the Republicans responded by enacting legislation and by proposing a constitutional amendment. Both the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 contained provisions that were plainly premised on the belief that the freedmen were being deprived of their constitutional right to bear arms, and were designed to remedy that unconstitutional outrage as Congress saw it.

The belief that the southern states were violating the Second Amendment likewise contributed to the core of the Privileges or Immunities Clause of the Fourteenth Amendment, proposed by the same 39th Congress later in 1866. Among other things, members of Congress made clear during debate that that Section 1 of the Amendment was designed to insure that the Second Amendment – understood as the right of individuals to possess and use firearms for the protection of themselves, their homes and their families – was applicable against the states.

The brief falls down however, when it comes to explaining how the Reconstruction era understanding of the right to bear arms affects, or should affect, our interpretation of the Second Amendment itself. After all, as the brief concedes, what applies to the District is the Second Amendment itself, not the Fourteenth.

The brief seems to argue that the understanding of the right to bear arms that underlies the Fourteenth Amendment should somehow relate back to the meaning of the Second Amendment. This is, in effect, Professor Amar’s “doctrinal feedback effect” theory, which I discussed (and expressed confusion about) here, here and here.

The brief’s discussion of the issue strikes me as evasive at best. Here is the core of the argument:
The amendments to [the Constitution] are, of course, part of the essential intrinsic context of such a document. The Constitution following an amendment is, in many ways, a substantially different document than it was just prior to amendment, and the internal context even for provisions not expressly altered by the amendment nonetheless changes, and changes the interpretation of such provisions. Cf. United States v. La Franca, 282 U.S. 568, 576 (1931) (Statutes after amendment “are to be read, as to all subsequent occurrences, as if they had originally been in the amended form”). And insofar as an amendment was made with reference to earlier provisions, the amendment will control over such earlier provisions . . ..

The passage sounds very learned and sophisticated; the citations (I have omitted one) render it imposing. But when you cut through it, I’m not sure it says anything. If you understand it, by all means, tell me!

I readily admit that, if you assume that the Second Amendment did not originally convey an individual right of personal security, the alternative is awkward and unsatisfying. It is downright weird to posit that the Second Amendment itself grants no individual right against the federal government (including the District), but that the Second Amendment, as incorporated into the Fourteenth, does grant an individual right against the States. However, until someone points me to a comprehensible theory supporting the “doctrinal feedback effect," that is what I’m left with.

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