Firearms and the Fourteenth Amendment

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:

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.

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 Congress shall have the 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."

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:

"I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration [of Independence] or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies the defect, and allows Congress to correct the unjust legislation of the States..."

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:

So, in reporting the Fourteenth Amendment to the Senate on behalf of the Joint Committee on Reconstruction in 1866, Senator Jacob Meritt Howard of Michigan began by detailing the ‘first section’ of that amendment, i.e., the section that ‘relates the privileges and immunities of citizens.’ He explained that the first clause of the amendment (the ‘first section’), once approved and ratified, would ‘restrain the power of the States’ even as Congress was already restrained (by the Bill of Rights) from abridging―

"...the personal rights quarantined and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for redress of grievances, a right appertaining to each and all the people; the right to keep and bear arms... [etc., through the Eighth Amendment]." [Emphasis added]

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:

"I ask the attention of the House to the first section of that amendment, as to its scope and meaning. I hope gentlemen will bear in mind that this debate, in which so many have taken part, will become historical, as the earliest legislative construction given to this clause of the amendment. Not only the words which we put into the law, but what shall be said here in the way of defining and interpreting the meaning of the clause, may go far to settle its interpretation and its value to the country hereafter."

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.”

The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III’s troops fresh in their minds, many of the ‘anti-federalists’ feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written 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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