Intent of the Fourteenth Amendment was to Protect All Rights
Jon Roland
2000 Sep. 24
The main clauses of the Fourteenth Amendment are:
Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
...Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
This seemingly simple language has given rise to endless controversy over its interpretation. Beginning with the Slaughterhouse Cases, the Supreme Court has decided cases involving the Fourteenth by selectively invoking only the most minimal and restrictive rights needed to decide each case, and never finding or declaring in dictum that the Fourteenth protects all rights recognized by the Constitution. This has led to the doctrine of selective incorporation of the Bill of rights, most of which have eventually been included in the protection, but a few of which have not.
Two of the Bill of Rights that have not been "incorporated" are the Second Amendment and the Fifth. The Supreme Court has avoided taking any cases that would require it to rule on the right to keep and bear arms or assemble as an independent militia. It has, however, ruled that several provisions of the Fifth Amendment do not apply to the states. The first major case was Hurtado v. California, 110 U.S. 516 (1884), in which it held that a state was not required to indict by grand jury. The issues were set forth well by Justice Harlan in Hurtado, whose dissenting opinion is correct. Unfortunately, the majority did not agree with him. The state was California, and although grand juries in California still have the power of indictment, most crimes are prosecuted upon an information, which is only a finding by a lower magistrate. On the basis of this decision, a few states have even eliminated the grand jury system altogether.
Subsequent important cases were Twining v. New Jersey, 211 U.S. 78 (1908), which held a state is not required to protect the right against self-incrimination; Palko v. Connecticut, 302 U.S. 319 (1937), which held a state is not required to protect the right against double jeopardy; and Adamson v. California, 332 U.S. 46 (1947), which held that the decision of an accused not to testify may be used against him in a state criminal trial. The dissent of Justice Black in Adamson is especially interesting because he set forth in an Appendix much of the material presented below.
The framers of the 14th could have expressed themselves more clearly. The record below indicates what happened. They became a inner circle of debaters who developed their own understanding of the formulations they drafted without testing the language on outsiders to see how it might be misunderstood. When Bingham and the others spoke to the public, they expressed their intent for the amendments, but seldom actually presented the draft language for public comment. It was available, of course, but one had to seek it out, and in the heat of the times, most people weren't focused on how the language might be misconstrued by outsiders or later generations.
This statements of the Fourteenth were adopted for a reason. They were not without force and effect. They were intended by the framers of the Fourteenth to extend the jurisdiction and protection of federal courts to all rights recognized by the Constitution and Bill of Rights against actions by state government.
First, "any law" includes the state constitution, which is its supreme law, subject to the U.S. Constitution.
Second, for the framers of the 14th Amendment the term of art, "immunities", meant all those rights recognized and protected by the Constitution and Bill of Rights, including those of the Ninth and Tenth Amendments. The framers of the Fourteenth used the word "immunities" because the rights recognized and protected by the Constitution and Bill of Rights are rights against action by government, which are "immunities", as distinct from contractual or tort rights.
If there is any doubt as to what the framers of the Fourteenth meant by their words, here are some more of their words, taken from debates in Congress and the press during the drafting and ratification debates on the amendment. What follows has been heavily based on Halbrook, Stephen P., Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, Westport, CT: Praeger, 1998.
On Jan 12., 1866, Rep. John Bingham of Ohio began the drafting of the Fourteenth by a proposed amendment to the Joint Senate-House Committee of 15:
The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property.[1]
Rep. Thaddeus Stevens of Pennsylvania proposed a similar guarantee:
All laws, state or national, shall operate impartially and equally on all persons without regard to race or color.[2]
On Jan. 19 Connecticut Representative Henry Deming introduced a constitutional amendment similar to Bingham's that declared:
That Congress shall have power to make all laws necessary and proper to secure to all persons in every State equal protection in their rights of life, liberty, and property.[3]
On January 20 the Joint Committee's subcommittee considering drafts of constitutional amendments reported to the full Joint Committee an expanded form of the Bingham proposal that read as follows:
Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty and property."[4]
A wholly separate proposed amendment would have stated, in addition to the above:
All provisions in the Constitution or laws of any State, whereby any distinction is made in political or civil rights or privileges, on account of race, creed or color, shall be inoperative and void."[5]
The word "creed" was deleted by the full committee, perhaps to exclude atheists or Confederate sympathizers.[6] Stevens proposed and subsequently withdrew a constitutional amendment that defined United States citizens as "all persons born in the United States, or naturalized, excepting Indians."[7]
On January 27 the Joint Committee considered a draft of the constitutional amendment reported by the subcommittee of Bingham, Boutwell, and Rogers. It now read:
Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges.[8]
Johnson lost his motion to strike the privileges and immunities clause.[9] Further consideration was postponed until the next meeting.[10]
On February 1, 1866, Senator Benjamin G. Brown of Missouri introduced, and the Senate adopted, a resolution that the Joint Committee consider an amendment to the Constitution
so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument[11] (emphasis added).
This resolution thus anticipated the intent of the Fourteenth Amendment to incorporate the Bill of Rights.
In debate on S. 61, the Civil Rights Bill, some Western senators wished to exclude Indians and Chinese from citizenship. Williams of Oregon argued that if Indians were citizens, then state laws that prohibited whites from selling arms and ammunition to Indians would be void.[12] At a time when the suppression of Indians and the seizure of their lands was proceeding in earnest, it was considered unacceptable to recognize a right of Indians to keep and bear arms. Thus, the Senate voted to define all persons born in the United States, without distinction of color, as citizens, "excluding Indians not taxed."[13]
In the House, debate on the Freedmen's Bureau Bill, S. 60, began with a procedural ruling that delayed the offering of amendments. Nathaniel P. Banks, a former governor of Massachusetts and Union general, stated: "I shall move, if I am permitted to do so, to amend the seventh section of this bill by inserting after the word 'including' the words 'the constitutional right to bear arms'; so that it will read, 'including the constitutional right to bear arms, the right to make and enforce contracts, to sue, &c.'"[14] The section would thus have recognized "the civil rights belonging to white persons, including the constitutional right to bear arms."
The House then returned to debate on the bill. Supporting its passage, Representative Ignatius Donnelly noted that "there is an amendment offered by the distinguished gentleman from Ohio [Mr. Bingham] which provides in effect that Congress shall have power to enforce by appropriate legislation all the guarantees of the Constitution."[15] Once again, Bingham's draft of the Fourteenth Amendment was seen as protecting Bill of Rights guarantees.
On February 2, Davis introduced a substitute for S. 61, the Civil Rights Bill. It declared that any person "who shall subject or cause to be subjected a citizen of the United States to the deprivation of any privilege or immunity in any State to which such citizen is entitled under the Constitution and laws of the United States" shall have an action for damages, and that such conduct would be a misdemeanor[16] (emphasis added). Davis' substitute suggests that even opponents of the Civil Rights Bill were willing to concede that the explicit guarantees of the Bill of Rights should be protected. Davis grounded his compromise bill in the privileges and immunities clause of article IV.[17]
On February 3 Representative L. H. Rousseau of Kentucky quoted § 7 of S. 60, including the terms "all laws and proceedings for the security of person and estate," and then referred in part to "the security to person and property from unreasonable search."[18] This suggested that the Fourth Amendment and other Bill of Rights provisions were encompassed in the "laws and proceedings for the security of person and estate," and indeed the Freedmen's Bureau Bill would later pass stating that "the constitutional right to bear arms" was encompassed within this language.[19]
The Joint Committee met in secret that day to consider the proposed constitutional amendment. Bingham offered the following substitute for the subcommittee draft: "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states (Art. 4, Sec. 2); and to all persons in the several States equal protection in the rights of life, liberty and property (5th Amendment)."[20] Bingham's substitute was agreed to on a nonpartisan vote of 7 to 6, with Democrat Rogers joining with Howard in voting in the affirmative.[21] Ironically, Rogers then cast the deciding vote against the amendment as such.[22]
On February 13, 1866, it was reported in both houses of Congress that the Joint Committee had recommended adoption of a constitutional amendment to read as follows:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.[23]
This appears to be the first reported draft of what would become § 1 of the Fourteenth Amendment. Note that it substituted the legal term of art "immunities" for "rights", in a context that makes it clear the meaning is equivalent, but chosen to emphasize that it is rights against the actions of government that is intended, and that it included all such rights, not only those mentioned in Amendments 1-8, but those in the original Constitution, the unenumerated rights of the Ninth Amendment, and the right recognized in the Tenth Amendment not to have government exercise undelegated powers.
In the Senate on February 19, Wilson introduced S.R. 32, a joint resolution to disband the militia forces in most Southern states.[24] Wilson quoted detailed accounts of militia abuses, including the report of General Howard that had been submitted to the Joint Committee that Southern militias "were engaged in disarming the negroes. This created great discontent among the latter."[25]
In opposition to referring the joint resolution to committee, Senator Saulsbury argued that the power of Congress under Article I, § 8 to organize, arm, and discipline the militia
Does not give power to Congress to disarm the militia of a State, or to destroy the militia of a State, because in another provision of the Constitution, the second amendment, we have these words:
"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."
The proposition here ... is an application to Congress to do that which Congress has no right to do under the second amendment of the Constitution.[26]
Although just three weeks earlier Saulsbury had opposed the Civil Rights Bill because it would prohibit states from disarming free negroes,[27] he now invoked the Second Amendment to protect the right of "the whole white population" not only to be armed but also to organize and operate as militia. This is a clear indication that the rights to be protected included the right to keep and bear arms.
The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866. Bingham, its author, argued on its behalf that previously "this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States."[28]
Representative Robert Hale of New York saw no need for the amendment, because he interpreted the existing Bill of Rights to bind not just Congress but also the States: "Now, what are these amendments to the Constitution, numbered from one to ten, one of which is the fifth article in question? . . . They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation."[29]
Bingham responded that the proposed amendment would "arm the Congress ... with the power to enforce this bill of rights as it stands in the Constitution today."[30] Representative Frederick E. Woodbridge of Vermont characterized the sweep of the proposed Fourteenth Amendment as empowering Congress to protect "the natural rights which necessarily pertain to citizenship."[31]
In debate on February 28 on the representation of the Southern States in Congress, Senator James Nye of Nevada opined that the Bill of Rights already applied to the States, and that Congress has power to enforce it against the States. He stated:
In the enumeration of natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of — "life," "liberty," "property," "freedom of speech," "freedom of the press," "freedom in the exercise of religion," "security of person," &c.; and then, lest something essential in the specifications should have been overlooked, it was provided in the ninth amendment that "the enumeration in the Constitution of certain rights should not be construed to deny or disparage other rights not enumerated." ... All these rights are established by the fundamental law.
Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?
Referring to blacks, Senator Nye continued: "As citizens of the United States they have equal right to protection, and to keep and bear arms for self-defense."[32]
Similarly, Senator Stewart repeated that the federal Constitution is "the vital, sovereign, and controlling part of the fundamental law of every State," and although the states may repeat parts of it in their own bills of rights, "no State can adopt anything in a State constitution in conflict."[33]
A significant debate in the House on S. 61, the civil rights bill, took place on March 1. Representative Wilson, chairman of the Judiciary Committee, explained the background to the bill's phraseology "civil rights and immunities" and "full and equal benefit of all laws and proceedings for the security of person and property."[34] Quoting Kent's Commentaries, Wilson explained: "I understand civil rights to be simply the absolute rights of individuals, such as — 'The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.'"[35] Wilson added that "we are reducing to statute from the spirit of the Constitution,"[36] a clear reference to the Bill of Rights. Referring to "the great fundamental civil rights," Wilson pointed out:
[Sir William] Blackstone classifies them under three articles, as follows:
1. The right of personal security; which, he says, "Consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."
2. The right of personal liberty; and this, he says, "Consists in the power of locomotion, of changing situation, or moving one's person to whatever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law."
3. The right of personal property; which he defines to be, "The free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the law of the land."[37]
To protect "the principal absolute rights which appertain to every Englishman," Blackstone explained that there are "auxiliary" rights to "maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property."[38] Blackstone included among these rights "that of having arms for their defence suitable to their condition and degree, and such as are allowed by law," that made possible "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."[39] Together with justice in the courts and the right of petition, "the right of having and using arms for self-preservation and defense" were available to preserve the rights to life, liberty, and property.[40]
The Freedmen's Bureau Bill likewise declared that the rights of personal security and personal liberty included what Blackstone referred to as "the right of having and using arms for self-preservation and defense."[41] Senator Wilson had the Second Amendment partly in mind when he stated that every right enumerated in the federal Constitution is "embodied in one of the rights I have mentioned, or results as an incident necessary to complete defense and enjoyment of the specific right."[42]
Opponents agreed. Representative Rogers declared that S. 61, the Civil Rights Bill, "is nothing but a relic of the Freedmen's Bureau bill,"[43] which declared explicitly that the rights of personal security and personal liberty included "the constitutional right of bearing arms." Even Rogers held that "the rights of nature" included "the right of self-defense, the right to protect our lives from invasion by others."[44]
Another Democrat, Representative Anthony Thornton of Illinois, argued in a speech on Reconstruction on March 3 that the South had no monopoly on violation of rights. In the North during the Civil War "freedom of speech was denied; the freedom of the press was abridged; the right to bear arms was infringed," yet these "inherent" rights were once again respected under the Constitution.[45]
On March 5 the Senate debated the basis of representation, which became § 2 of the Fourteenth Amendment. Senator Samuel Pomeroy of Kansas, a supporter of the proposed amendment, stated:
And what are the safeguards of liberty under our form of Government? There are at least, under our Constitution, three which are indispensable —
1. Every man should have a homestead, that is, the right to acquire and hold one, and the right to be safe and protected in that citadel of his love.
2. He 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 to send the polluted wretch to another world, where his wretchedness will forever remain complete; and
3. He should have the ballot.[46]
Pomeroy was uncertain whether the proposed Fourteenth Amendment would pass, but argued that the right to bear arms could be secured through the Enforcement Clause of the Thirteenth Amendment: "Sir, what is 'appropriate legislation' on the subject, namely, securing the freedom of all men? It can be nothing less than throwing about all men the essential safeguards of the Constitution. The 'right to bear arms' is not plainer taught or more efficient than the right to carry ballots. And if appropriate legislation will secure the one so can it also the other. And if both are necessary, and provided for in the Constitution as now amended, why then let us close the question by congressional legislation."[47]
On March 7 Eliot reintroduced the Freedmen's Bureau Bill, which was referred to the Select Committee on Freedmen.[48] This bill had a more refined formulation of the rights of personal security and personal liberty than the Civil Rights Bill as well as explicit recognition of "the constitutional right to bear arms."[49] The debates on the Civil Rights Bill, which quoted Blackstone in detail, apparently contributed to the more advanced draftsmanship in the Freedmen's Bureau Bill.
The Civil Rights Bill was debated on March 8 and 9. Representative John Broomall of Pennsylvania identified "the rights and immunities of citizens" as including the writ of habeas corpus and the right of petition.[50] Representative Henry Raymond of New York, the editor of the New York Times and a member of the Joint Committee, proposed an amendment to the bill declaring that all persons born in the United States are "citizens of the United States, and entitled to all rights and privileges as such."[51] This formulation is similar to what would become the Citizenship Clause of the Fourteenth Amendment. Raymond explained:
"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 defined status; he has a country and a home; a right to defend himself and his wife and children; a right to bear arms"[52] (emphasis added).
Quoting Barron v. Baltimore (1833),[53] Representative Michael Kerr of Indiana argued that the Bill of Rights limited only Congress.[54] Martin Thayer of Pennsylvania responded: "Of what value are those guarantees if you deny all power on the part of the Congress of the United States to execute and enforce them?"[55] Thayer's argument exhibited the intent of what would become the Fourteenth Amendment.
House members then discussed the meaning in the Civil Rights Bill of "all laws and proceedings for the security of person and property." Representative Wilson referred to "the fundamental rights of the citizen commonly called civil rights" and the rights, such as the right to testify in court, "necessary to protect his personal liberty, his personal security, his right to property."[56] As the language of the Freedmen's Bureau Bill attests, the right to keep and bear arms was also necessary to guarantee personal liberty and personal security.
The next day Bingham explained that the Civil Rights Bill would "enforce in its letter and its spirit the bill of rights as embodied in that Constitution."[57] Citing Aristotle, Bingham argued that, by virtue of being a citizen, one is guaranteed every right in the Constitution.[58] In The Politics and other writings familiar to nineteenth-century Americans, Aristotle postulated that true citizenship included the right to possess arms, and that those who are deprived of arms are oppressed by armed tyrants.[59]
Bingham quoted § 1 of the Civil Rights Bill, including the terms "full and equal benefit of all laws and proceedings for the security of person and property,"[60] and reiterated his support for "amending the Constitution of the United States, expressly prohibiting the States from any such abuse of power in the future."[61] He explained that "the seventh and eighth sections of the Freedmen's Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill."[62] Bingham then quoted the seventh section of the Freedmen's Bureau Bill, which provided that all persons shall "have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms."[63]
Bingham wished to "arm Congress with the power to ... punish all violations by State Officers of the bill of rights."[64] In drafting the first section of the Fourteenth Amendment, Bingham clearly sought to protect the same rights.
In House debate on March 24, Representative Leonard Myers of Pennsylvania referred to Alabama, "whose aristocratic and anti-republican laws, almost reenacting slavery, . . . impose an imprisonment of three months and a fine of $100.00 upon any one owning fire-arms."[65] To nullify such laws, Myers recommended the following imperatives:
1. That no law of any State lately in insurrection shall impose by indirection a servitude which the Constitution now forbids....
2. That each State shall provide for equality before the law, equal protection to life, liberty, and property, equal right to sue and be sued, to inherit, make contracts, and give testimony.[66]
Representative Roswell Hart of New York asserted that the United States had a duty to secure to the people of the Southern States a republican form of government, adding: "The Constitution clearly describes that to be a republican form of government for which it was expressly framed. A government . . . where 'the right of the people to keep and bear arms shall not be infringed.'"[67] Hart also mentioned rights under the First, Fourth, and Fifth Amendments.[68]
The Civil Rights Bill passed both houses,[69] but on March 27 President Johnson surprised everyone by vetoing it.[70] In the override debate in the Senate on April 4, Trumbull argued that every citizen has "inherent, fundamental rights which belong to free citizens or free men in all countries, such as the rights enumerated in this bill."[71] Trumbull quoted from Kent's Commentaries as follows: "The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country to be natural, inherent, and inalienable."[72]
These were the same rights generally recited in the Civil Rights Bill and explicitly expounded both by Blackstone and the Freedmen's Bureau Bill as including the right to bear arms. Trumbull's further quotation from Kent specifically states that the existence of these rights means that one may protect them: "The privileges and immunities conceded by the Constitution of the United States to citizens of the several States were to be confined to those which were, in their nature, fundamental, and belonged of right to the citizens of all free Governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property."[73]
On April 6, 1866, the Senate voted to override Johnson's veto of the Civil Rights Bill.[74] An editorial in the New York Evening Post on the override vote referred to "the mischiefs for which the Civil Rights bill seeks to provide a remedy . . . that there will be no obstruction to the acquirement of real estate by colored men, no attempts to prevent their holding public assemblies, freely discussing the question of their own disabilities, keeping fire-arms."[75]
While the Senate was voting to override Johnson's veto, in the Joint Committee Senator Howard examined Brevet Lieutenant Colonel W.H.H. Beadle, superintendent of the Freedmen's Bureau in North Carolina. Beadle testified about police brutality in Wilmington. In one instance, two policemen repeatedly struck a petite black woman with baseball bats. The police claimed self-defense.[76] In another incident, a black man was beaten by police based on a bogus weapons charge, and the policeman's word was enough to exonerate him.[77] Beadle also testified: "Some of the local police have been guilty of great abuses by pretending to have authority to disarm the colored people. They go in squads and search houses and seize arms. . . . Houses of colored men have been broken open, beds torn apart and thrown about the floor, and even trunks opened and money taken. A great variety of such offenses have been committed by the local police."[78]
Representative Lawrence made the same arguments in the House override debate on April 7 as Trumbull had made in the Senate. Quoting the same passage from Kent on the rights of personal security and personal liberty, Lawrence explained:
It has never been deemed necessary to enact in any constitution or law that citizens should have the right to life or liberty or the right to acquire property. These rights are recognized by the Constitution as existing anterior to and independently of all laws and all constitutions.
Without further authority I may assume, then, that there are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him. But not only are these rights inherent and indestructible, but the means whereby they may be possessed and enjoyed are equally so.[79]
This expresses the postulate that the rights to life and liberty, and the right to have arms to protect these rights, are inherent and cannot be infringed by a state.[80] Lawrence recalled the testimony before the Joint Committee that General Terry had refused demands by Virginia state officials "to take the arms of the blacks away from them."[81]
Representative Sidney Clarke of Kansas denounced Alabama for prohibiting blacks from owning firearms, and Mississippi for seizing arms of blacks.[82] He continued: "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."[83]
On April 9, after both houses had mustered the requisite two-thirds vote to override Johnson's veto, the Civil Rights Act of 1866 became law.[84] As enacted, § 1 provided: "Citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens"[85] (emphasis added).
In a secret meeting of the Joint Committee on April 21, 1866, Stevens proposed a plan of reconstruction.[86] Section one of the proposal stated:
"No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude."[87] That language had been submitted to Stevens by Robert Dale Owen, an ex-Representative and civil rights reformer,[88] who was a leading advocate of the right to keep and bear arms.[89]
Equality was necessary but insufficient for Bingham, who moved to add the following language: "nor shall any state deny to any person within its jurisdiction the equal protection of the laws, nor take private property for public use without just compensation."[90] The first phrase would become the Equal Protection Clause of the Fourteenth Amendment. Because Stevens' proposal had already prohibited discrimination, Bingham's "equal protection" was more than mere equality — it was equal protection of rights, not equal deprivation of rights. Indeed, equal protection of "the laws" might well have included, in Bingham's mind, the Bill of Rights. The second phrase in Bingham's proposal, the "takings" clause of the Fifth Amendment, might have been intended to state explicitly only one of the Bill of Rights guarantees to be protected. This was similar to the recitation in the Freedmen's Bureau bill of the constitutional right to bear arms, mention of which was not intended to preclude protection of other guarantees.
Bingham's amendment failed, but the 5 to 7 vote was nonpartisan, with Democrats Johnson and Rogers voting with Bingham and Stevens in favor.[91] Stevens' original proposal was then adopted.[92] Bingham next introduced a proposal for a separate section, which ten members of the committee, including Johnson, approved: "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."[93] The committee also approved the Enforcement Clause.[94]
A week later on April 28 Bingham moved, and the Joint Committee voted, to delete Stevens' draft prohibiting race discrimination as to civil rights and to insert Bingham's draft guaranteeing privileges and immunities, due process, and equal protection. This language became § 1 of the proposed constitutional amendment.[95] Stevens himself voted affirmatively, but Howard wanted to keep both.[96] The committee voted to require the Southern States to ratify the amendment as a condition of read-mission into the Union.[97] Finally, the committee decided to report the proposal of the constitutional amendment to Congress and to lift the veil of secrecy by notifying the newspapers.[98] The work of the Joint Committee was now over for all practical purposes.
Attention in Congress focused on the proposed Fourteenth Amendment and the second Freedmen's Bureau Bill. Three months had passed since the House considered a first draft of the constitutional amendment. On April 30 Stevens, the leader of the House delegation to the Joint Committee, reported to the House a joint resolution proposing the constitutional amendment.[99] Stevens also introduced a bill from the Joint Committee that would require the Southern States to ratify the amendment and conform their constitutions and laws thereto as a condition of readmittance to the Union.[100]
On May 8 a report from the president written by Benjamin C. Truman on the condition of the Southern people was ordered to be printed by the Senate. Truman recalled the fear of a black insurrection in late 1865 and early 1866, commenting:
In consequence of this there were extensive seizures of arms and ammunition, which the negroes had foolishly collected, and strict precautions were taken to avoid any outbreak. Pistols, old muskets, and shotguns were taken away from them as such weapons would be wrested from the hands of lunatics. Since the holidays, however, there has been a great improvement in this matter; many of the whites appear to be ashamed of their former distrust, and the negroes are seldom molested now in carrying the fire-arms of which they make such a vain display. In one way or another they have procured great numbers of old army muskets and revolvers, particularly in Texas, and I have, in a few instances, been amused at the vigor and audacity with which they have employed them to protect themselves against the robbers and murderers that infest that State.[101]
This suggests that blacks exhibited their perceived entitlement to the right to keep and bear arms to the dismay of whites uncomfortable with allowing this liberty to ex-slaves.
What would become the Fourteenth Amendment was debated in the House on May 8 through 10. Stevens remarked that its provisions "are all asserted, in some form or another, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This Amendment supplies that defect, and allows Congress to correct the unjust legislation of the States."[102] Representative Thayer stated that the proposed amendment "simply brings into the Constitution what is found in the bill of rights of every State," and that "it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law."[103]
Bingham averred that the amendment would protect "the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction."[104] He added that it would furnish a remedy against state injustices, such as infliction of cruel and unusual punishment.[105] By stating that Eighth Amendment violations would be prohibited, Bingham implied that the Fourteenth Amendment would prohibit deprivations of any rights recognized in the Bill of Rights.[106]
The proposed Fourteenth Amendment passed the House on May 10.[107] The New York Evening Post remarked: "The first section merely reasserts the Civil Rights Act."[108] That act had been perceived by the Post as protecting "public assemblies" and "keeping firearms,"[109] that is, First and Second Amendment rights.
On May 22, Representative Eliot, on behalf of the Select Committee on Freedmen's Affairs, reported the second Freedmen's Bureau Bill,[110] which would become H.R. 613. As before the new bill recognized "the constitutional right to bear arms."[111] Bingham, author of § 1 of the Fourteenth Amendment, was a member of the select committee that had drafted this bill.
The need to protect the right to bear arms persisted. That same day (May 22) the president transmitted a report on Southern state laws concerning freedmen to the House. The report included black code provisions that prohibited the possession of firearms by freedmen. South Carolina made it unlawful for "persons of color to keep a firearm, sword, or other military weapon," without a license, except a farm owner could keep a shotgun or rifle "ordinarily used in hunting."[112] Florida made it unlawful for a black to enter a white railroad car and to possess "any bowie-knife, dirk, sword, fire-arms, or ammunition of any kind" without a license.[113] Although these state laws were well known, it is significant that they were received again in Congress on May 23, the first day that the Senate considered H.R. 127, which would become the Fourteenth Amendment.
Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining "the views and motives which influenced that Committee."[114] After acknowledging the important role of the testimony before the Joint Committee, Howard 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"[115] (emphasis added). Howard averred: "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 guarantees"[116] (emphasis added).
In the ensuing debate, no one questioned Howard's premise that the Amendment made the first eight amendments applicable to the states.[117] Howard explained that Congress could enforce the Bill of Rights through the Enforcement Clause, "a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees."[118] Howard added: "It [the amendment] will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction."[119]
Howard's explanation that the Fourteenth Amendment would protect "the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms" appeared on the front page of the New York Times[120] and New York Herald[121] and were printed in the National Intelligencer[122] and Philadelphia Inquirer.[123] The New York Times found his speech "clear and cogent,"[124] while the Chicago Tribune found that it was "very forcible and well put, and commanded the close attention of the Senate."[125] "It will be observed," summarized the Baltimore Gazette, "that the first section is a general prohibition upon all of the States of abridging the privileges and immunities of the citizens of the United States, and secures for all the equal advantages and protection of the laws."[126] Other newspapers were impressed with the length or detail of Howard's explanation.[127]
While Howard was explaining in the Senate that the Fourteenth Amendment would protect the right to keep and bear arms from state infringement, the House was debating the second Freedmen's Bureau Bill,[128] § 8 of which protected "the constitutional right to bear arms."[129] Eliot observed that § 8 "simply embodies the provisions of the civil rights bill, and gives to the President authority, through the Secretary of War, to extend military protection to secure those rights until the civil courts are in operation."[130] The constitutional basis of the bill was the Thirteenth Amendment.[131]
Eliot cited Freedmen's Bureau reports, such as that of General Fisk, who wrote of 25,000 discharged Union soldiers who were freedmen returning to their homes: "Their arms are taken from them by the civil authorities and confiscated for the benefit of the Commonwealth. The Union soldier is fined for bearing arms. Thus the right of the people to keep and bear arms as provided in the Constitution is infringed, and the Government for whose protection and preservation these soldiers have fought is denounced as meddlesome and despotic when through its agents it undertakes to protect its citizens in a constitutional right"[132] (emphasis added). Fisk added that the freedmen "are defenseless, for the civil-law officers disarm the colored man and hand him over to armed marauders."[133]
The Fourteenth Amendment and the second Freedmen's Bureau Bill, H.R. 613, continued to be debated in the Senate and House respectively for several days. On May 29, the House passed H.R. 613 by a vote of 96 to 32, with 55 abstaining.[134] The House immediately proceeded to consideration of the proposed constitutional amendment.[135]
Noting the House's passage of the Freedmen's Bureau Bill, the New York Evening Post reprinted some of the black code provisions, which had been communicated to Congress by the president, including those punishing freedmen with flogging for keeping arms.[136] An editorial sarcastically stated:
In South Carolina and Florida the freedmen are forbidden to wear or keep arms.
We feel certain the President, who is, as he says, the peculiar friend and protector of the freedmen, was not aware of the code of South Carolina, or Florida, or Mississippi, when he vetoed that [Civil Rights] act. The necessity for such a measure, to secure impartial justice, will not be denied by any one who reads the extracts we have made.[137]
May 30 began with Senator Howard proposing to add the citizenship clause to § 1 of the Fourteenth Amendment as follows: "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside."[138] This language was designed to settle the issue raised in Dred Scott — that is, who are citizens and thus have the bundle of rights appertaining to citizenship. After a raucous debate over making Indians, coolies, and gypsies citizens, the Senate passed Howard's language.[139]
Supporters of what became known as the Howard Amendment repeatedly asserted the broad character of the rights it protected. Senator Luke Poland of Vermont analyzed § 1 on June 5 as follows:
It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.[140] (emphasis added)
The references to "all the provisions of the Constitution" and to recently enacted state laws again show the intent to protect Bill of Rights freedoms from state violation.
On June 8, Senator John B. Henderson of Missouri expounded the concept of citizenship by reference to Dred Scott.[141] In Dred Scott, according to Henderson, Chief Justice Roger Taney had conceded to members of the state communities "all the personal rights, privileges, and immunities guarantied to citizens of this 'new Government.' In fact, the opinion distinctly asserts that the words 'people of the United States' and 'citizens' are 'synonymous terms.'"[142] However, Taney had disregarded the plain meaning of the term "the people" by excluding blacks.[143]
Taney's opinion also explicitly declared that citizens are entitled to Bill of Rights guarantees, including those of the Second Amendment. The following passage from Dred Scott particularizes the rights discussed in the passages to which Henderson referred and illustrates the objectives sought by the Republicans in Congress: "For if they [blacks] were . . . entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race ... 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"[144] (emphasis added). Taney's logic was clear: if blacks were citizens, they would have a right to bear arms, and state laws prohibiting their possession of firearms would be void.
Senator Johnson favored the citizenship and due process clauses but opposed the privileges and immunities clause "because I do not understand what will be the effect of that."[145] However, as counsel for the slaveholder in Dred Scott, Johnson was fully aware of Taney's characterization of "the right to keep and carry arms" as a privilege and immunity of citizenship.[146] Johnson also conceded in Senate debate that reports of firearms seizures from blacks and other outrages were accurate.[147]
After further debate, the Fourteenth Amendment passed the Senate by a vote of 33 to 11,[148] or 75 percent of the votes, far more than the necessary two-thirds for a constitutional amendment. On June 13, the House passed the proposed Fourteenth Amendment as amended by the Senate by a vote of 120 to 32,[149] a margin of 79 percent, again far more than the necessary two-thirds.
From all of the above it should be clear that all of the rights recognized by the U.S. Constitution are not only rights against state action, but that the Fourteenth Amendment authorizes Congress to legislate protection of such rights against state action, and grants jurisdiction of the federal judiciary over cases between citizens and their states involving them. Among those rights are the right to keep and bear arms and the right to a grand jury indictment. While the Supreme Court might reasonably have confirmed this in any given case by only declaring such rights as are minimally needed to render a decision, it is important that they not fail to do so for all the rights that are issues before the court.
Rep. John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the federal courts did not have jurisdiction to apply the Bill of Rights in cases between a citizen and his state.[150]
[1] B. Kendrick, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION 46 (1914). Hereafter cited JOURNAL OF THE JOINT COMMITTEE.
[2] Id.
[3] CONG. GLOBE, 39th Cong., 1st Sess., 320 (Jan. 19, 1866), at 331.
[4] JOURNAL OF THE JOINT COMMITTEE at 51.
[5] Id. at 50.
[6] Id. at 53.
[7] Id. at 52-53.
[8] Id. at 56-57.
[9] Id. at 57.
[10] Id. at 58.
[11] CONG. GLOBE, 39th Cong., 1st Sess. 566 (Feb. 1, 1866).
[12] Id. at 573.
[13] Id. at 574-75.
[14] Id. at 585.
[15] Id. at 586.
[16] Id. at 595 (Feb. 2, 1866).
[17] Id.
[18] Id., App., at 69 (Feb. 3, 1866).
[19] Act of July 16, 1866, 14 STATUTES AT LARGE 173, 176.
[20] JOURNAL OF THE JOINT COMMITTEE at 61.
[21] Id.
[22] Id.
[23] CONG. GLOBE, 39th Cong., 1st Sess. 806, 813 (Feb. 13, 1866).
[24] CONG. GLOBE, 39th Cong., 1st Sess. 914 (Feb. 19, 1866).
[25] Id.
[26] Id. at 914-15.
[27] Id. at 478 (Jan. 29, 1866).
[28] CONG. GLOBE 1033-34 (Feb. 26, 1866).
[29] Id. at 1064 (Feb. 27, 1866).
[30] Id. at 1088 (Feb. 28, 1866). And see further comments of Bingham at 1089 ("the existing Amendments") and 1094 ("the law in its highest sense").
[31] Id. at 1088.
[32] Id. at 1072 (Feb. 28, 1866).
[33] Id. at 1077.
[34] Id. at 1117 (Mar. 1, 1866).
[35] Id.
[36] Id.
[37] Id. at 1118.
[38] 1 Blackstone, COMMENTARIES 140-41 (St. Geo. Tucker ed. 1803).
[39] Id. at 143-44.
[40] Id.
[41] Id.
[42] CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (Mar. 1, 1866).
[43] Id. at 1121.
[44] Id. at 1122.
[45] Id. at 1168 (Mar. 3, 1866).
[46] Id. at 1182 (Mar. 5, 1866). Pomeroy made several more interesting comments. For example, he referred to "the rights of an individual under the common law when his life is attacked. If I am assaulted by a highwayman, by a man armed and determined, my first duty is to resist him, and if necessary, use my arms also." Id. at 1183.
[47] Id.
[48] CONG. GLOBE, 39th Cong., 1st Sess. 1238 (Mar. 7, 1866).
[49] Id. at 3412 (June 26, 1866).
[50] Id. at 1263 (Mar. 8, 1866).
[51] Id. at 1266 (Mar. 8, 1866).
[52] Id.
[53] 32 U.S. (7 Pet.) 243, 250-51.
[54] CONG. GLOBE, 39th Cong., 1st Sess. 1270 (Mar. 8, 1866).
[55] Id.
[56] Id., App., at 157 (Mar. 8, 1866).
[57] Id. at 1291 (Mar. 9, 1866).
[58] Id.
[59] Aristotle, THE POLITICS 68, 71, 79, 136, 142, 218 (transl. T. A. Sinclair, 1962); Aristotle, ATHENIAN CONSTITUTION 43-47 (transl. H. Rackman, 1935).
[60] CONG. GLOBE, 39th Cong., 1st Sess. 1291 (Mar. 9, 1866).
[61] Id.
[62] Id. at 1292.
[63] Id.
[64] Id.
[65] CONG. GLOBE, 39th Cong., 1st Sess., 1621 (Mar. 24, 1866).
[66] Id. at 1622.
[67] Id. at 1629.
[68] Id.
[69] Id. at 606 (Feb. 2, 1866) (Senate); 1367 (Mar. 13, 1866) (House).
[70] Id. at 1679 (Mar. 27, 1866).
[71] Id. at 1757 (Apr. 4, 1866).
[72] Id.
[73] Id.
[74] Id. at 1809 (Apr. 6, 1866).
[75] "The Civil Rights Bill in the Senate," New York Evening Post, Apr. 7, 1866, at 2, col. 1. The page facing the editorial supporting enforcement of First and Second Amendment rights against the states included a prominent advertisement for Remington rifles, muskets, "pocket and belt revolvers," and other arms, with the admonition: "In these days of housebreaking and robbery every house, store, bank and office should have one of Remington's revolvers." Id. at 3, col. 10. The New York police were seen as being "employed in the service of the wealthy and prosperous corporations" while crime was rampant. Id., Apr. 16, 1866, at 2, col. 2, and May 10, 1866, at 2, col. 4.
[76] REPORT OF THE JOINT COMMITTEE, pt. 2, at 271-72.
[77] Id.
[78] Id. at 272.
[79] CONG. GLOBE, 39th Cong., 1st Sess. 1833 (Apr. 7, 1866).
[80] See also id. (remarks of Representative Lawrence) (arguing that one cannot enjoy the rights to life, liberty, and property without "the benefit of laws for the security of person and property.")
[81] Id. at 1834.
[82] Id. at 1838.
[83] Id.
[84] Id. at 1861 (Apr. 9, 1866).
[85] 14 Stat. 27.
[86] JOURNAL OF THE JOINT COMMITTEE at 83. For a study of voting patterns in the committee, see E. Maltz, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869, at 82-92 (1990).
[87] JOURNAL OF THE JOINT COMMITTEE at 83.
[88] Id. at 295-303.
[89] Owen was the most prominent advocate of civil rights for blacks and women at the Indiana constitutional convention of 1850. Supporting the right of "carrying of weapons," he added: "For if it were declared by Constitutional provision that the people should have the right to bear arms, no law of the Legislature could take away that right." REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION OF THE REVISION OF THE CONSTITUTION OF THE STATE OF INDIANA 1385 (1850). In a U.S. Senate-commissioned report, Owen had written: "The most prized of personal rights is the right of self-defense." R. Owen, THE WRONG OF SLAVERY 111-12 (1864).
[90] JOURNAL OF THE JOINT COMMITTEE at 85.
[91] Id.
[92] Id.
[93] Id. at 87.
[94] Id. at 88.
[95] Id. at 106.
[96] Id.
[97] Id. at 106, 110.
[98] Id. at 114-15.
[99] CONG. GLOBE, 39th Cong., 1st Sess. 2286 (Apr. 30, 1866).
[100] Id.
[101] Ex. Doc. No. 43, U.S. Senate, 39th Cong., 1st Sess., at 8 (1866).
[102] CONG. GLOBE, 39th Cong., 1st Sess. 2459 (May 8, 1866).
[103] Id. at 2465 (May 8, 1866).
[104] Id. at 2542.
[105] Id. at 2542-43.
[106] H. Flack, THE ADOPTION OF THE FOURTEENTH AMENDMENT 80 (1908).
[107] CONG. GLOBE, 39th Cong., 1st Sess. 2545 (May 10, 1866).
[108] New York Evening Post, May 11, 1866, at 2, col. 1.
[109] Id., Apr. 7, 1866, at 2, col. 1.
[110] CONG. GLOBE, 39th Cong., 1st Sess. 2743 (May 22, 1866).
[111] Id. at 3412 (June 26, 1866).
[112] Ex. Doc. No. 118, House of Representatives, 39th Cong., 1st Sess. 7 (1866).
[113] Id. at 20.
[114] CONG. GLOBE, 39th Cong., 1st Sess. 2765 (May 23, 1866).
[115] Id.
[116] Id. at 2766.
[117] I. Brant, THE BILL OF RIGHTS 337 (1965).
[118] CONG. GLOBE, 39th Cong., 1st Sess. 2766 (May 23, 1866).
[119] Id.
[120] New York Times, May 24, 1866, at 1, col. 6.
[121] New York Herald, May 24, 1866, at 1, col 3.
[122] National Intelligencer, May 24, 1866, at 3, col. 2.
[123] Philadelphia Inquirer, May 24, 1866, at 8, col. 2.
[124] New York Times, May 25, 1866, at 2, col. 4.
[125] Chicago Tribune, May 29, 1866, at 2, col. 3.
[126] Baltimore Gazette, May 24, 1866, at 4, col. 2.
[127] See, for example, Boston Daily Journal, May 24, 1866, at 4, col. 4; Boston Daily Advertiser, May 24, 1866, at 1, col. 6; Springfield Daily Republican, May 24, 1866, at 3, col. 1. The Southern Democratic newspapers generally did not publish any speeches by Republicans, but their reactions to the Howard Amendment are insightful. The amendment's supporters, complained the Daily Richmond Examiner, "are first to make citizens and voters of the negroes." Yet the Examiner praised Senator Howard for objecting to the clause that disenfranchised ex-Confederates. The Southern newspapers never claimed that the amendment was unclear, but they objected to its breadth in guaranteeing to blacks the rights guaranteed in the first eight amendments as well as the right to vote. See Daily Richmond Examiner, May 25, 1866, at 2, col. 3; id.. May 26, 1866, at 1, col. 6; Charleston Daily Courier, May 28, 1866, at 1, col. 2, and at 4, col. 2; id., May 29, 1866, at 1, cols. 1-2 (comment on Howard's speech).
[128] CONG. GLOBE, 39th Cong., 1st Sess. 2773 (May 23, 1866).
[129] Id. at 3412 (June 26, 1866).
[130] Id. at 2773 (May 23, 1866).
[131] Id.
[132] Id. at 2774.
[133] Id. at 2775.
[134] Id. at 2878.
[135] Id.
[136] New York Evening Post, May 30, 1866, at 2, Col. 3.
[137] "The Freedmen's Bureau Bill," id. at 2, col. 1.
[138] CONG. GLOBE, 39th Cong., 1st Sess. 2890 (May 30, 1866).
[139] Id. at 2897.
[140] Id. at 2961 (June 5, 1866).
[141] Id. at 3032 (June 8, 1866).
[142] Id.
[143] Id.
[144] Scott v. Sanford, 60 U.S. 393, 416-17 (1857).
[145] CONG. GLOBE, 39th Cong., 1st Sess. 3041 (June 8, 1866).
[146] Scott v. Sandford, 60 U.S. 393, 416-17 (1857). Johnson's oral argument in Dred Scott has not been preserved. See 3 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES (1978).
[147] CONG. GLOBE, 39th Cong., 1st Sess. 40 (Dec. 13, 1865).
[148] Id. at 3042 (June 8, 1866).
[149] Id. at 3149 (June 13, 1866).
[150] Congressional Globe, 39th Congress, 1st Session. pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment.
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