Friday, January 8, 2010

How Was the 2nd Amendment Interpreted When the 14th Was Enacted?

An interesting article by Clayton et al provides a detailed analysis of the public meaning of the “right to keep and bear arms” during the period leading up to enactment of the Fourteenth Amendment. It analyzes 19th century scholarly commentary and case law; popular understandings of the Second Amendment as the militia declined in importance and the fight over abolition of slavery expanded; Civil War era claims about the meaning of the Second Amendment; the right to arms during the period of Reconstruction and the Black Codes; and the debate and enactment of the 14th Amendment, as it relates to the constitutional right to arms. The authors conclude that “the discussion and discord over the right to arms in this context reveals that people all along the political spectrum held a decidedly individual rights understanding. Those who supported the Fourteenth Amendment frequently articulated that the freedmen, now citizens, enjoyed the same right to keep and bear arms as others. Freedmen themselves claimed and embraced the individual right. Even those who were committed to stripping blacks of their new status considered the individual right to arms an attribute of citizenship.”

The description of the right from an 1872 school textbook illustrates the point:

15. What are the rights which are secured to every individual by the Constitutions and laws of the United States? . . .

K. The right to keep and bear arms.

Every individual throughout the nation has the Constitutional right to keep and bear arms. ... (This right is not allowed by governments that are afraid of the people.)

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