Thursday, March 7, 2013

The Second Amendment's Complex Details

The political debates surrounding the Second Amendment lead the reader into many obscure niches of legal history. As a part of the Bill of Rights, the Second Amendment was intended to do more than guarantee to the individual citizen "the right of the people to keep and bear arms." It is the prepositional phrase "of the people" which tells us that this right is for the individual private citizen. However, the same text also preserves for each of the states the right to maintain its own "well-ordered militia," separate from the army of the federal government.

America's military systems were once structured so that the bulk of the nation's military forces was maintained by the states in their own militias. The national government had sometimes a small army, but had also the ability to call the state militias into action. The nation's army consisted then primarily of the combination of state militias, and only secondarily of a standing federal army.

For this reason, then, the Second Amendment guards not only each citizen's right to "keep and bear," but also the right of each state to maintain its militia. Indeed, the federal government depended on each state not only having that right, but exercising it. As Adam Winkler writes in The Atlantic magazine,

For those men who were allowed to own guns, the Founders had their own version of the "individual mandate" that has proved so controversial in President Obama's health-care-reform law: they required the purchase of guns. A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters — where their guns would be inspected and, yes, registered on public rolls.

A few years prior to the Bill of Rights, Thomas Jefferson wrote, while drafting the constitution for the state of Virginia,

No freeman shall be debarred the use of arms.

Jefferson worked through three drafts of the state's constitution, and each draft contained this line (with slight variations in wording). It was apparently important to him.

Although the immediate context of the Second Amendment was the struggle against England for independence, the text came into play at the close of the Civil War. At that time, two things were clear: blacks had gained their freedom, and blacks would not have an easy time keeping that freedom. Adam Winkler continues:

Indisputably, for much of American history, gun-control measures, like many other laws, were used to oppress African Americans. The South had long prohibited blacks, both slave and free, from owning guns. In the North, however, at the end of the Civil War, the Union army allowed soldiers of any color to take home their rifles. Even blacks who hadn’t served could buy guns in the North, amid the glut of firearms produced for the war. President Lincoln had promised a “new birth of freedom,” but many blacks knew that white Southerners were not going to go along easily with such a vision. As one freedman in Louisiana recalled, “I would say to every colored soldier, ‘Bring your gun home.’”

The history of gun-control legislation, i.e., the history of attempts to undermine the freedoms given by the Second Amendment, is rooted in post-Civil War racism. Recall that the war ended in 1865 - Lee surrender to Grant on April 9, and President Johnson declared the war ended on May 9. Between the war's end and Congress's vigorous reconstruction - often titled "Radical Reconstruction" in history books - in 1867, there was little protection for the civil rights of the newly-freed African Americans. Ex-slaves were at the mercy of the same local government who had opposed Lincoln, declared secession, and maintained the war effort.

During this time, Democratic Party officials in the South developed "Black Codes" - laws aimed at reducing the civil rights of blacks. This injustice would not be rectified until the Republican Party enacted three constitutional amendments - the thirteenth, fourteenth, and fifteenth - and sent federal observers into the South to verify compliance. This "Radical Reconstruction" beginning in 1867 was the Republican Party's effort to continue Abraham Lincoln's vision.

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn't do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had "seized every gun and pistol found in the hands of the (so called) freedmen" in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

Attempting to address these injustices, before Congress organized the full-blown Radical Reconstruction, northern military officers occasionally intervened during the milder "presidential reconstructions" under Lincoln and during the first months of Johnson's presidency.

In response to the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen's constitutional rights, including their right to possess guns. General Daniel E. Sickles, the commanding Union officer enforcing Reconstruction in South Carolina, ordered in January 1866 that "the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed." When South Carolinians ignored Sickles's order and others like it, Congress passed the Freedmen's Bureau Act of July 1866, which assured ex-slaves the "full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms."

It became clear to Congress that Second Amendment rights among blacks in the South needed to be protected. Between the KKK's illegal activities and the blind eye which local Democratic Party officials in the South turned toward the Klan's activities, the African-Americans needed "the right to keep and bear" in order to defend their civil rights.

That same year, Congress passed the nation’s first Civil Rights Act, which defined the freedmen as United States citizens and made it a federal offense to deprive them of their rights on the basis of race. Senator James Nye, a supporter of both laws, told his colleagues that the freedmen now had an "equal right to protection, and to keep and bear arms for self-defense." President Andrew Johnson vetoed both laws. Congress overrode the vetoes and eventually made Johnson the first president to be impeached.

In December 1865, Republican Congressman John Bingham of Ohio proposed the text that would become the Fourteenth Amendment. His co-sponsor, Republican Senator Jacob Howard from Michigan, presented the text in the Senate by reminding his colleagues that in preserving for blacks the "privileges or immunities of citizens," the text of the amendment kept "the right to keep and bear arms" for the ex-slaves:

the men behind the Fourteenth Amendment — America’s most sacred and significant civil-rights law — clearly believed that the right of individuals to have guns for self-defense was an essential element of citizenship. As the Yale law professor Akhil Reed Amar has observed, "Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman."

As the amendment progressed through the ratification process, and Congress's more assertive vision of reconstruction began to replace President Johnson's milder version,

The aggressive Southern effort to disarm the freedmen prompted a constitutional amendment to better protect their rights.

A century of civil rights progress - from the 1860's to the 1950's - was marred by setbacks during the Progressive Era, when Woodrow Wilson re-segregated federal departments, like the Post Office, which had been already integrated. Wilson also took steps to reduce black enrollments in the nation's universities. Recovering from these blows, African-Americans benefitted from the return to "normlacy" and by 1921, Presidents Harding and Coolidge supported blacks by introducing anti-lynching legislation in Congress, aimed at the state of affairs in the South.

As partial desegregation in the military during WWII continued the positive momentum, the stage was set for the emergence of a vigorous civil rights movement in the 1950's.

Civil-rights activists, even those committed to nonviolent resistance, had long appreciated the value of guns for self-protection. Martin Luther King Jr. applied for a permit to carry a concealed firearm in 1956, after his house was bombed. His application was denied, but from then on, armed supporters guarded his home. One adviser, Glenn Smiley, described the King home as "an arsenal." William Worthy, a black reporter who covered the civil-rights movement, almost sat on a loaded gun in a living-room armchair during a visit to King’s parsonage.

Secretary of State Condoleezza Rice recalls that, as a child, she saw her father organize local black men to patrol the streets of their Birmingham neighborhood. The men were armed as they patrolled. They protected their families this way. Rice recalls:

The way I come out of my own personal experience, in which in Birmingham, Ala., my father and his friends defended our community in 1962 and 1963 against White Knight Riders by going to the head of the community, the head of the cul-de-sac, and sitting there, armed. And so I'm very concerned about any abridgement of the Second Amendment.

Rice continues:

I also don't think we get to pick and choose from the Constitution. The Second Amendment is as important as the First Amendment.

The New York Times confirms:

Ms. Rice's fondness for the Second Amendment began while watching her father sit on the porch with a gun, ready to defend his family against the Klan’s night riders.

For Martin Luther King, for Condoleezza Rice, and for the black civil rights movement as a whole, Second Amendment rights were seen as vital. Carrying that notion forward by several decades,

in 2008, in a landmark ruling, the U.S. Supreme Court declared that the government cannot ever completely disarm the citizenry. In District of Columbia v. Heller, the Supreme Court clearly held, for the first time, that the Second Amendment guarantees an individual's right to possess a gun. In an opinion by Justice Antonin Scalia, the Court declared unconstitutional several provisions of the District's unusually strict gun-control law, including its ban on handguns and its prohibition of the use of long guns for self-defense. Indeed, under D.C.'s law, you could own a shotgun, but you could not use it to defend yourself against a rapist climbing through your bedroom window.

The court's ruling in this case muddies the water somewhat, inasmuch as there is a distinction to be made between firearms for self-defense against criminals, and for defense against violation of one's civil rights. The history of the Second Amendment shows that the latter is the stronger current in the narrative of American history.