© 2003 SierraTimes.com
February 26, 2003
In their zeal to defend the individual right to keep and bear arms, most firearms owners limit their discussions to the Second Amendment. There is, however, another amendment that not only helps resolve the controversy surrounding the intent and wording of the Second Amendment, but also makes the prohibition enumerated in that Amendment enforceable against the States. In the author’s opinion, this is one of the reasons why opponents of the individual right to keep and bear arms, at the State level, are so opposed to this interpretation of the Second Amendment.
In order to understand the effect of the Fourteenth Amendment on the individual right to keep and bear arms, it is necessary to review some of the legislative history surrounding the Amendment. Ratified by the several States on July 9, 1868, section 1 of this Amendment states in part:
The legislative origin of this part of the Fourteenth Amendment can be traced to the Joint Committee on Reconstruction. Following the War Between the States, Congress appointed a Committee to report “by bill or otherwise” whether the Confederate States “are entitled to be represented in either House of Congress.” The Committee had a broad mission and began its work by drafting constitutional amendments that would outline the plan of reconstruction.
On January 12, 1866, a subcommittee submitted a “proposed amendment to the Constitution.” Representative Bingham delivered the report of the Committee:
The Committee rejected this proposal, but it formed the basis for subsequent proposals. During the following months, additional proposals were considered but were also rejected.
The proposal that became section 1 of the Fourteenth Amendment was submitted by Congressman Bingham and agreed to by the Committee on April 28, 1866.
Representative Stevens, speaking for the Committee, introduced the proposed amendment in the House of Representatives on May 8, 1866:
On May 23, 1866, Senator Howard of Michigan introduced the proposal in the Senate. In a 1994 Duke Law Journal article, William Van Alstyne and his associates wrote the following concerning Senator Howard’s remarks:
Senator Howard referred to the right enumerated in the Second Amendment as a personal right of the people, not a collective right of the States. He concluded his remarks by stating:
[T]here is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress... they stand simply as a bill of rights in the Constitution, without power on the part of Congress give them full effect; while at the same time the States are not restrained from violating the principles embraced in them… The great object of this 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.
If the Second Amendment pertained to a “collective right” of the States, as opposed to an individual right of the people, then his statement that the “great object of this first section of this amendment is...to restrain the power of the States and compel them at all times to respect these great fundamental guarantees” would be an absurdity. Fundamental guarantees pertain to the natural rights of the people, not so-called “collective rights” of the States. It should also be noted that there was no descent from Senator Howard’s description of this part of the Amendment.
In 1871, a bill was before the House of Representatives that contemplated enforcement of the Fourteenth Amendment. Mr. Garfield, who had participated in the debates on the Amendment in 1866, stated these debates would be historic because they would settle the meaning of section 1 of the Fourteenth Amendment:
A few days earlier, in a debate on the same bill, Representative Bingham, still a member of House, gave a lengthy explanation of the purpose of the Amendment as he had originally conceived it:
Mr. Speaker, the Honorable Gentlemen from Illinois [Mr. Farnsworth] did me unwittingly, great service, when he ventured to ask me why I changed the form of the first section of the fourteenth article of amendment from the form in which I reported it to the House of February, 1866, from the Committee on Reconstruction. …I had the honor to frame the amendment as reported in February, 1866, and the first section, as it now stands, letter for letter syllable for syllable, in the fourteenth article of amendment to the Constitution of the United States, save the introductory clause defining citizens.
He continued his remarks by stating that the first eight Amendments “never were limitations upon the power of the States, until made so by the fourteenth amendment.”
It is a cardinal principle of statutory construction that the intent of the lawmaker constitutes the law. This principle also applies to constitutional law. In this case, we have a direct quote from the individual who framed the wording of the first section of the Fourteenth Amendment ― “letter for letter syllable for syllable.” The intent of section 1 of the Fourteenth Amendment, as stated by its author, was to make the limitations enumerated in the first eight amendments of the Bill of Rights applicable to the States. Thus, from a constitutional standpoint, adoption of Fourteenth Amendment made the restraint contained in the Second Amendment, concerning the individual right to keep and bear arms, enforceable against every State in the Union.
The intent of section 1 of the Fourteenth Amendment also disproves the “collective right” interpretation of the Second Amendment. The Brady Campaign contends the Second Amendment was adopted “to prevent the federal government from disarming the State militias.”
If this was an accurate statement, then Congressman Bingham could not have included a “collective right” Second Amendment in the limitations of section 1. He would have had to omit it because this provision prevents the States from infringing the rights of the people. It has nothing to do with the so-called “collective rights” of the States. Thus, section 1 could have only made 7 of the first 8 Amendments applicable to the States.
This section, as stated above, did indeed extend the limitations enumerated in the first 8 amendments to the individual State governments. If the Second Amendment was adopted “to prevent the federal government from disarming the State militias,” as the Brady Campaign asserts, then section 1 of the Fourteenth Amendment extended this prohibition to the individual States. In other words, this provision would bring into play the limitations of the Second Amendment and prevent the States from disarming themselves. The absurdity of this can be seen in the following example. If a State like Nevada attempted to disarm its militia, this section would give Nevada standing to go to federal court and sue Nevada to prevent Nevada from disarming itself. Let’s see the Brady Campaign spin this one!
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2 mar 2003