OAKLAND, Calif., Feb. 22, 2010—In the wake of District of Columbia v. Heller, when the United States Supreme Court determined that individuals have a right to keep and bear arms, one question remained unanswered. Does the Second Amendment guard against infringements by state and local governments?
The Court will hear oral arguments in McDonald v. Chicago on March 2. At issue is whether the Fourteenth Amendment was intended to protect the Bill of Rights—especially the Second Amendment—from such violations.
In the forthcoming book Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (April 2010 / The Independent Institute), noted legal scholar and Research Fellow Stephen P. Halbrook examines the Reconstruction-era origins of the Fourteenth Amendment and related civil rights legislation. While gun ownership among emancipated slaves was in contention in 1866, Halbrook draws upon legislative debates, Congressional hearings on Ku Klux Klan violence, newspapers, and legal treatises of the time to demonstrate that both supporters and opponents of the Amendment understood it to protect such rights from violation by the states as well as from racist groups such as the Ku Klux Klan. The right to own firearms was commonly associated with freedom and was seen as an aid in the defense of life and liberty.
Cited by the Supreme Court in Heller as the leading account of the relationship between the Second Amendment and the states during Reconstruction, Securing Civil Rights illuminates why earlier generations of Americans viewed the right to bear arms as essential for securing civil rights. Halbrook, who represented more than 250 members of Congress with an amicus brief in Heller, co-authored the NRA brief in McDonald.
Indeed, Halbrook argues in the book, as the petitioners will in McDonald, that incorporation was the irrefutable intent and understanding, and that whether it is via the “due process” or the “privileges or immunities” clause, the Court will recognize this when it renders its decision by the end of June.
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