Intent of the Fourteenth Amendment was to
Protect All Rights
2000 Sep. 24
The main clauses of the Fourteenth Amendment are:
Section. 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. 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.
Section. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
This seemingly simple language has given rise to endless controversy over
its interpretation. Beginning with the Slaughterhouse Cases, the Supreme
Court has decided cases involving the Fourteenth by selectively invoking only
the most minimal and restrictive rights needed to decide each case, and never
finding or declaring in dictum that the Fourteenth protects all rights
recognized by the Constitution. This has led to the doctrine of selective
incorporation of the Bill of rights, most of which have eventually been
included in the protection, but a few of which have not.
Two of the Bill of Rights that have not been "incorporated" are
the Second Amendment and the Fifth. The Supreme Court has avoided taking any
cases that would require it to rule on the right to keep and bear arms or
assemble as an independent militia. It has, however, ruled that several
provisions of the Fifth Amendment do not apply to the states. The first major
case was Hurtado v. California, 110
U.S. 516 (1884), in which it held that a state was not required to indict by
grand jury. The issues were set forth well by Justice Harlan in Hurtado,
whose dissenting opinion is correct. Unfortunately, the majority did not agree
with him. The state was California, and although grand juries in California
still have the power of indictment, most crimes are prosecuted upon an
information, which is only a finding by a lower magistrate. On the basis
of this decision, a few states have even eliminated the grand jury system
Subsequent important cases were Twining v.
New Jersey, 211 U.S. 78 (1908), which held a state is not required to
protect the right against self-incrimination; Palko v. Connecticut, 302 U.S. 319
(1937), which held a state is not required to protect the right against double
jeopardy; and Adamson v. California,
332 U.S. 46 (1947), which held that the decision of an accused not to testify
may be used against him in a state criminal trial. The dissent of Justice Black
in Adamson is especially interesting because he set forth in an
Appendix much of the material presented
The framers of the 14th could have expressed themselves more clearly. The
record below indicates what happened. They became a inner circle of debaters
who developed their own understanding of the formulations they drafted without
testing the language on outsiders to see how it might be misunderstood. When
Bingham and the others spoke to the public, they expressed their intent for the
amendments, but seldom actually presented the draft language for public
comment. It was available, of course, but one had to seek it out, and in the
heat of the times, most people weren't focused on how the language might be
misconstrued by outsiders or later generations.
This statements of the Fourteenth were adopted for a reason. They were not
without force and effect. They were intended by the framers of the Fourteenth
to extend the jurisdiction and protection of federal courts to all rights
recognized by the Constitution and Bill of Rights against actions by state
First, "any law" includes the state constitution, which is its
supreme law, subject to the U.S. Constitution.
Second, for the framers of the 14th Amendment the term of art,
"immunities", meant all those rights recognized and protected by the
Constitution and Bill of Rights, including those of the Ninth and Tenth
Amendments. The framers of the Fourteenth used the word "immunities"
because the rights recognized and protected by the Constitution and Bill of
Rights are rights against action by government, which are
"immunities", as distinct from contractual or tort rights.
If there is any doubt as to what the framers of the Fourteenth meant by their
words, here are some more of their words, taken from debates in Congress and
the press during the drafting and ratification debates on the amendment. What
follows has been heavily based on Halbrook, Stephen P., Freedmen, the
Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, Westport, CT:
On Jan 12., 1866, Rep. John Bingham of Ohio began the drafting of the
Fourteenth by a proposed amendment to the Joint Senate-House Committee of 15:
The Congress shall have 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.
Rep. Thaddeus Stevens of Pennsylvania proposed a similar guarantee:
All laws, state or national, shall operate impartially and
equally on all persons without regard to race or color.
On Jan. 19 Connecticut Representative Henry Deming introduced a
constitutional amendment similar to Bingham's that declared:
That Congress shall have power to make all laws necessary and
proper to secure to all persons in every State equal protection in their rights
of life, liberty, and property.
On January 20 the Joint Committee's subcommittee considering drafts of
constitutional amendments reported to the full Joint Committee an expanded form
of the Bingham proposal that read as follows:
Congress shall have power to make all laws necessary and proper
to secure to all citizens of the United States, in every State, the same
political rights and privileges; and to all persons in every State equal
protection in the enjoyment of life, liberty and property."
A wholly separate proposed amendment would have stated, in addition to the
All provisions in the Constitution or laws of any State, whereby
any distinction is made in political or civil rights or privileges, on account
of race, creed or color, shall be inoperative and void."
The word "creed" was deleted by the full committee, perhaps to
exclude atheists or Confederate sympathizers.
Stevens proposed and subsequently withdrew a constitutional amendment that
defined United States citizens as "all persons born in the United States,
or naturalized, excepting Indians."
On January 27 the Joint Committee considered a draft of the constitutional
amendment reported by the subcommittee of Bingham, Boutwell, and Rogers. It now
Congress shall have power to make laws which shall be necessary
and proper to secure all persons in every state full protection in the
enjoyment of life, liberty and property; and to all citizens of the United
States in every State the same immunities and also equal political rights and
Johnson lost his motion to strike the privileges and immunities
clause. Further consideration was postponed
until the next meeting.
On February 1, 1866, Senator Benjamin G. Brown of Missouri introduced, and
the Senate adopted, a resolution that the Joint Committee consider an amendment
to the Constitution
so as to declare with greater certainty the power of Congress to
enforce and determine by appropriate legislation all the guarantees
contained in that instrument (emphasis
This resolution thus anticipated the intent of the Fourteenth Amendment to
incorporate the Bill of Rights.
In debate on S. 61, the Civil Rights Bill, some Western senators wished to
exclude Indians and Chinese from citizenship. Williams of Oregon argued that if
Indians were citizens, then state laws that prohibited whites from selling arms
and ammunition to Indians would be void. At a
time when the suppression of Indians and the seizure of their lands was
proceeding in earnest, it was considered unacceptable to recognize a right of
Indians to keep and bear arms. Thus, the Senate voted to define all persons
born in the United States, without distinction of color, as citizens,
"excluding Indians not taxed."
In the House, debate on the Freedmen's Bureau Bill, S. 60, began with a
procedural ruling that delayed the offering of amendments. Nathaniel P. Banks,
a former governor of Massachusetts and Union general, stated: "I shall
move, if I am permitted to do so, to amend the seventh section of this bill by
inserting after the word 'including' the words 'the constitutional right to
bear arms'; so that it will read, 'including the constitutional right to bear
arms, the right to make and enforce contracts, to sue, &c.'" The section would thus have recognized "the
civil rights belonging to white persons, including the constitutional right to
The House then returned to debate on the bill. Supporting its passage,
Representative Ignatius Donnelly noted that "there is an amendment offered
by the distinguished gentleman from Ohio [Mr. Bingham] which provides in effect
that Congress shall have power to enforce by appropriate legislation all the
guarantees of the Constitution."
Once again, Bingham's draft of the Fourteenth Amendment was seen as protecting
Bill of Rights guarantees.
On February 2, Davis introduced a substitute for S. 61, the Civil Rights
Bill. It declared that any person "who shall subject or cause to be
subjected a citizen of the United States to the deprivation of any privilege
or immunity in any State to which such citizen is entitled under the
Constitution and laws of the United States" shall have an action for
damages, and that such conduct would be a misdemeanor (emphasis added). Davis' substitute suggests that
even opponents of the Civil Rights Bill were willing to concede that the
explicit guarantees of the Bill of Rights should be protected. Davis grounded
his compromise bill in the privileges and immunities clause of article
On February 3 Representative L. H. Rousseau of Kentucky quoted § 7 of
S. 60, including the terms "all laws and proceedings for the security of
person and estate," and then referred in part to "the security to
person and property from unreasonable search." This suggested that the Fourth Amendment and other
Bill of Rights provisions were encompassed in the "laws and proceedings
for the security of person and estate," and indeed the Freedmen's Bureau
Bill would later pass stating that "the constitutional right to bear
arms" was encompassed within this language.
The Joint Committee met in secret that day to consider the proposed
constitutional amendment. Bingham offered the following substitute for the
subcommittee draft: "The Congress shall have power to make all laws which
shall be necessary and proper to secure to the citizens of each state all
privileges and immunities of citizens in the several states (Art. 4, Sec. 2);
and to all persons in the several States equal protection in the rights of
life, liberty and property (5th Amendment)." Bingham's substitute was agreed to on a nonpartisan
vote of 7 to 6, with Democrat Rogers joining with Howard in voting in the
affirmative. Ironically, Rogers then cast the
deciding vote against the amendment as such.
On February 13, 1866, it was reported in both houses of Congress that the
Joint Committee had recommended adoption of a constitutional amendment to read
The Congress shall have power to make all laws which shall be
necessary and proper to secure to the citizens of each State all privileges and
immunities of citizens in the several States; and to all persons in the several
States equal protection in the rights of life, liberty, and property.
This appears to be the first reported draft of what would become § 1 of
the Fourteenth Amendment. Note that it substituted the legal term of art
"immunities" for "rights", in a context that makes it clear
the meaning is equivalent, but chosen to emphasize that it is rights against
the actions of government that is intended, and that it included all such
rights, not only those mentioned in Amendments 1-8, but those in the original
Constitution, the unenumerated rights of the Ninth Amendment, and the right
recognized in the Tenth Amendment not to have government exercise undelegated
In the Senate on February 19, Wilson introduced S.R. 32, a joint resolution
to disband the militia forces in most Southern states. Wilson quoted detailed accounts of militia abuses,
including the report of General Howard that had been submitted to the Joint
Committee that Southern militias "were engaged in disarming the negroes.
This created great discontent among the latter."
In opposition to referring the joint resolution to committee, Senator
Saulsbury argued that the power of Congress under Article I, § 8 to
organize, arm, and discipline the militia
Does not give power to Congress to disarm the militia of a
State, or to destroy the militia of a State, because in another provision of
the Constitution, the second amendment, we have these words:
"A well-regulated militia being necessary to the security
of a free State, the right of the people to keep and bear arms shall not be
The proposition here ... is an application to Congress to do that which
Congress has no right to do under the second amendment of the
Although just three weeks earlier Saulsbury had opposed the Civil Rights
Bill because it would prohibit states from disarming free negroes, he now invoked the Second Amendment to protect the
right of "the whole white population" not only to be armed but also
to organize and operate as militia. This is a clear indication that the rights
to be protected included the right to keep and bear arms.
The first draft of the proposed Fourteenth Amendment was debated in the
House for three days, beginning on February 27, 1866. Bingham, its author,
argued on its behalf that previously "this immortal bill of rights
embodied in the Constitution, rested for its execution and enforcement hitherto
upon the fidelity of the States."
Representative Robert Hale of New York saw no need for the amendment,
because he interpreted the existing Bill of Rights to bind not just Congress
but also the States: "Now, what are these amendments to the Constitution,
numbered from one to ten, one of which is the fifth article in question? . . .
They constitute the bill of rights, a bill of rights for the protection of the
citizen, and defining and limiting the power of Federal and State
Bingham responded that the proposed amendment would "arm the Congress
... with the power to enforce this bill of rights as it stands in the
Constitution today." Representative
Frederick E. Woodbridge of Vermont characterized the sweep of the proposed
Fourteenth Amendment as empowering Congress to protect "the natural rights
which necessarily pertain to citizenship."
In debate on February 28 on the representation of the Southern States in
Congress, Senator James Nye of Nevada opined that the Bill of Rights already
applied to the States, and that Congress has power to enforce it against the
States. He stated:
In the enumeration of natural and personal rights to be
protected, the framers of the Constitution apparently specified everything they
could think of — "life," "liberty,"
"property," "freedom of speech," "freedom of the
press," "freedom in the exercise of religion," "security of
person," &c.; and then, lest something essential in the specifications
should have been overlooked, it was provided in the ninth amendment that
"the enumeration in the Constitution of certain rights should not be
construed to deny or disparage other rights not enumerated." ... All these
rights are established by the fundamental law.
Will it be contended, sir, at this day, that any State has the power to
subvert or impair the natural and personal rights of the citizen?
Referring to blacks, Senator Nye continued: "As citizens of the United
States they have equal right to protection, and to keep and bear arms for
Similarly, Senator Stewart repeated that the federal Constitution is
"the vital, sovereign, and controlling part of the fundamental law of
every State," and although the states may repeat parts of it in their own
bills of rights, "no State can adopt anything in a State constitution in
A significant debate in the House on S. 61, the civil rights bill, took
place on March 1. Representative Wilson, chairman of the Judiciary Committee,
explained the background to the bill's phraseology "civil rights and
immunities" and "full and equal benefit of all laws and proceedings
for the security of person and property." Quoting Kent's Commentaries, Wilson
explained: "I understand civil rights to be simply the absolute rights of
individuals, such as — 'The right of personal security, the right of
personal liberty, and the right to acquire and enjoy property.'" Wilson added that "we are reducing to statute
from the spirit of the Constitution," a
clear reference to the Bill of Rights. Referring to "the great fundamental
civil rights," Wilson pointed out:
[Sir William] Blackstone classifies them under three articles,
1. The right of personal security; which, he says, "Consists in a
person's legal and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation."
2. The right of personal liberty; and this, he says, "Consists in the
power of locomotion, of changing situation, or moving one's person to whatever
place one's own inclination may direct, without imprisonment or restraint,
unless by due course of law."
3. The right of personal property; which he defines to be, "The free
use, enjoyment, and disposal of all his acquisitions, without any control or
diminution, save only by the law of the land."
To protect "the principal absolute rights which appertain to every
Englishman," Blackstone explained that there are "auxiliary"
rights to "maintain inviolate the three great and primary rights, of
personal security, personal liberty, and private property." Blackstone included among these rights "that of
having arms for their defence suitable to their condition and degree, and such
as are allowed by law," that made possible "the natural right of
resistance and self-preservation, when the sanctions of society and laws are
found insufficient to restrain the violence of oppression." Together with justice in the courts and the right of
petition, "the right of having and using arms for self-preservation and
defense" were available to preserve the rights to life, liberty, and
The Freedmen's Bureau Bill likewise declared that the rights of personal
security and personal liberty included what Blackstone referred to as "the
right of having and using arms for self-preservation and defense." Senator Wilson had the Second Amendment partly in
mind when he stated that every right enumerated in the federal Constitution is
"embodied in one of the rights I have mentioned, or results as an incident
necessary to complete defense and enjoyment of the specific right."
Opponents agreed. Representative Rogers declared that S. 61, the Civil
Rights Bill, "is nothing but a relic of the Freedmen's Bureau
bill," which declared explicitly that
the rights of personal security and personal liberty included "the
constitutional right of bearing arms." Even Rogers held that "the
rights of nature" included "the right of self-defense, the right to
protect our lives from invasion by others."
Another Democrat, Representative Anthony Thornton of Illinois, argued in a
speech on Reconstruction on March 3 that the South had no monopoly on violation
of rights. In the North during the Civil War "freedom of speech was
denied; the freedom of the press was abridged; the right to bear arms was
infringed," yet these "inherent" rights were once again
respected under the Constitution.
On March 5 the Senate debated the basis of representation, which became
§ 2 of the Fourteenth Amendment. Senator Samuel Pomeroy of Kansas, a
supporter of the proposed amendment, stated:
And what are the safeguards of liberty under our form of
Government? There are at least, under our Constitution, three which are
1. Every man should have a homestead, that is, the right to acquire and hold
one, and the right to be safe and protected in that citadel of his love.
2. He should have the right to bear arms for the defense of himself and
family and his homestead. And if the cabin door of the freedman is broken open
and the intruder enters for purposes as vile as were known to slavery, then
should a well-loaded musket be in the hand of the occupant to send the polluted
wretch to another world, where his wretchedness will forever remain complete;
3. He should have the ballot.
Pomeroy was uncertain whether the proposed Fourteenth Amendment would pass,
but argued that the right to bear arms could be secured through the Enforcement
Clause of the Thirteenth Amendment: "Sir, what is 'appropriate
legislation' on the subject, namely, securing the freedom of all men? It can be
nothing less than throwing about all men the essential safeguards of the
Constitution. The 'right to bear arms' is not plainer taught or more efficient
than the right to carry ballots. And if appropriate legislation will secure the
one so can it also the other. And if both are necessary, and provided for in
the Constitution as now amended, why then let us close the question by
On March 7 Eliot reintroduced the Freedmen's Bureau Bill, which was referred
to the Select Committee on Freedmen. This
bill had a more refined formulation of the rights of personal security and
personal liberty than the Civil Rights Bill as well as explicit recognition of
"the constitutional right to bear arms." The debates on the Civil Rights Bill, which quoted
Blackstone in detail, apparently contributed to the more advanced draftsmanship
in the Freedmen's Bureau Bill.
The Civil Rights Bill was debated on March 8 and 9. Representative John
Broomall of Pennsylvania identified "the rights and immunities of
citizens" as including the writ of habeas corpus and the right of
petition. Representative Henry Raymond of New
York, the editor of the New York Times and a member of the Joint
Committee, proposed an amendment to the bill declaring that all persons born in
the United States are "citizens of the United States, and entitled to all
rights and privileges as such." This
formulation is similar to what would become the Citizenship Clause of the
Fourteenth Amendment. Raymond explained:
"Make the colored man a citizen of the United States and he
has every right which you or I have as citizens of the United States under the
laws and constitution of the United States. ... He has defined status;
he has a country and a home; a right to defend himself and his wife and
children; a right to bear arms"
Quoting Barron v. Baltimore (1833), Representative Michael Kerr of Indiana argued that
the Bill of Rights limited only Congress.
Martin Thayer of Pennsylvania responded: "Of what value are those
guarantees if you deny all power on the part of the Congress of the United
States to execute and enforce them?"
Thayer's argument exhibited the intent of what would become the Fourteenth
House members then discussed the meaning in the Civil Rights Bill of
"all laws and proceedings for the security of person and property."
Representative Wilson referred to "the fundamental rights of the citizen
commonly called civil rights" and the rights, such as the right to testify
in court, "necessary to protect his personal liberty, his personal
security, his right to property." As the
language of the Freedmen's Bureau Bill attests, the right to keep and bear arms
was also necessary to guarantee personal liberty and personal security.
The next day Bingham explained that the Civil Rights Bill would
"enforce in its letter and its spirit the bill of rights as embodied in
that Constitution." Citing Aristotle,
Bingham argued that, by virtue of being a citizen, one is guaranteed every
right in the Constitution. In The
Politics and other writings familiar to nineteenth-century Americans,
Aristotle postulated that true citizenship included the right to possess arms,
and that those who are deprived of arms are oppressed by armed tyrants.
Bingham quoted § 1 of the Civil Rights Bill, including the terms
"full and equal benefit of all laws and proceedings for the security of
person and property," and reiterated his
support for "amending the Constitution of the United States, expressly
prohibiting the States from any such abuse of power in the future." He explained that "the seventh and eighth
sections of the Freedmen's Bureau bill enumerate the same rights and all the
rights and privileges that are enumerated in the first section of this [the
Civil Rights] bill." Bingham then quoted
the seventh section of the Freedmen's Bureau Bill, which provided that all
persons shall "have full and equal benefit of all laws and proceedings for
the security of person and estate, including the constitutional right of
Bingham wished to "arm Congress with the power to ... punish all
violations by State Officers of the bill of rights." In drafting the first section of the Fourteenth
Amendment, Bingham clearly sought to protect the same rights.
In House debate on March 24, Representative Leonard Myers of Pennsylvania
referred to Alabama, "whose aristocratic and anti-republican laws, almost
reenacting slavery, . . . impose an imprisonment of three months and a fine of
$100.00 upon any one owning fire-arms."
To nullify such laws, Myers recommended the following imperatives:
1. That no law of any State lately in insurrection shall impose
by indirection a servitude which the Constitution now forbids....
2. That each State shall provide for equality before the law, equal
protection to life, liberty, and property, equal right to sue and be sued, to
inherit, make contracts, and give testimony.
Representative Roswell Hart of New York asserted that the United States had
a duty to secure to the people of the Southern States a republican form of
government, adding: "The Constitution clearly describes that to be a
republican form of government for which it was expressly framed. A government .
. . where 'the right of the people to keep and bear arms shall not be
infringed.'" Hart also mentioned rights
under the First, Fourth, and Fifth Amendments.
The Civil Rights Bill passed both houses,
but on March 27 President Johnson surprised everyone by vetoing it.
In the override debate in the Senate on April 4, Trumbull argued that every
citizen has "inherent, fundamental rights which belong to free citizens or
free men in all countries, such as the rights enumerated in this
bill." Trumbull quoted from Kent's
Commentaries as follows: "The absolute rights of individuals may be
resolved into the right of personal security, the right of personal liberty,
and the right to acquire and enjoy property. These rights have been justly
considered, and frequently declared, by the people of this country to be
natural, inherent, and inalienable."
These were the same rights generally recited in the Civil Rights Bill and
explicitly expounded both by Blackstone and the Freedmen's Bureau Bill as
including the right to bear arms. Trumbull's further quotation from Kent
specifically states that the existence of these rights means that one may
protect them: "The privileges and immunities conceded by the Constitution
of the United States to citizens of the several States were to be confined to
those which were, in their nature, fundamental, and belonged of right to the
citizens of all free Governments. Such are the rights of protection of life and
liberty, and to acquire and enjoy property."
On April 6, 1866, the Senate voted to override Johnson's veto of the Civil
Rights Bill. An editorial in the New York
Evening Post on the override vote referred to "the mischiefs for which
the Civil Rights bill seeks to provide a remedy . . . that there will be no
obstruction to the acquirement of real estate by colored men, no attempts to
prevent their holding public assemblies, freely discussing the question of
their own disabilities, keeping fire-arms."
While the Senate was voting to override Johnson's veto, in the Joint
Committee Senator Howard examined Brevet Lieutenant Colonel W.H.H. Beadle,
superintendent of the Freedmen's Bureau in North Carolina. Beadle testified
about police brutality in Wilmington. In one instance, two policemen repeatedly
struck a petite black woman with baseball bats. The police claimed
self-defense. In another incident, a black
man was beaten by police based on a bogus weapons charge, and the policeman's
word was enough to exonerate him. Beadle also
testified: "Some of the local police have been guilty of great abuses by
pretending to have authority to disarm the colored people. They go in squads
and search houses and seize arms. . . . Houses of colored men have been broken
open, beds torn apart and thrown about the floor, and even trunks opened and
money taken. A great variety of such offenses have been committed by the local
Representative Lawrence made the same arguments in the House override debate
on April 7 as Trumbull had made in the Senate. Quoting the same passage from
Kent on the rights of personal security and personal liberty, Lawrence
It has never been deemed necessary to enact in any constitution
or law that citizens should have the right to life or liberty or the right to
acquire property. These rights are recognized by the Constitution as existing
anterior to and independently of all laws and all constitutions.
Without further authority I may assume, then, that there are certain
absolute rights which pertain to every citizen, which are inherent, and of
which a State cannot constitutionally deprive him. But not only are these
rights inherent and indestructible, but the means whereby they may be possessed
and enjoyed are equally so.
This expresses the postulate that the rights to life and liberty, and the
right to have arms to protect these rights, are inherent and cannot be
infringed by a state. Lawrence recalled the
testimony before the Joint Committee that General Terry had refused demands by
Virginia state officials "to take the arms of the blacks away from
Representative Sidney Clarke of Kansas denounced Alabama for prohibiting
blacks from owning firearms, and Mississippi for seizing arms of blacks. He continued: "Sir, I find in the Constitution
of the United States an article which declares that 'the right of the people to
keep and bear arms shall not be infringed.' For myself, I shall insist that the
reconstructed rebels of Mississippi respect the Constitution in their local
On April 9, after both houses had mustered the requisite two-thirds vote to
override Johnson's veto, the Civil Rights Act of 1866 became law. As enacted, § 1 provided: "Citizens, of
every race and color, without regard to any previous condition of slavery or
involuntary servitude, . . . shall have the same right, in every State and
Territory in the United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey
real and personal property, and to full and equal benefit of all laws and
proceedings for the security of person and property, as is enjoyed by white
citizens" (emphasis added).
In a secret meeting of the Joint Committee on April 21, 1866, Stevens
proposed a plan of reconstruction. Section
one of the proposal stated:
"No discrimination shall be made by any state, nor by the
United States, as to the civil rights of persons because of race, color, or
previous condition of servitude." That
language had been submitted to Stevens by Robert Dale Owen, an
ex-Representative and civil rights reformer,
who was a leading advocate of the right to keep and bear arms.
Equality was necessary but insufficient for Bingham, who moved to add the
following language: "nor shall any state deny to any person within its
jurisdiction the equal protection of the laws, nor take private property for
public use without just compensation."
The first phrase would become the Equal Protection Clause of the Fourteenth
Amendment. Because Stevens' proposal had already prohibited discrimination,
Bingham's "equal protection" was more than mere equality — it
was equal protection of rights, not equal deprivation of rights. Indeed, equal
protection of "the laws" might well have included, in Bingham's mind,
the Bill of Rights. The second phrase in Bingham's proposal, the
"takings" clause of the Fifth Amendment, might have been intended to
state explicitly only one of the Bill of Rights guarantees to be protected.
This was similar to the recitation in the Freedmen's Bureau bill of the
constitutional right to bear arms, mention of which was not intended to
preclude protection of other guarantees.
Bingham's amendment failed, but the 5 to 7 vote was nonpartisan, with
Democrats Johnson and Rogers voting with Bingham and Stevens in favor. Stevens' original proposal was then adopted. Bingham next introduced a proposal for a separate
section, which ten members of the committee, including Johnson, approved:
"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 committee also approved the Enforcement
A week later on April 28 Bingham moved, and the Joint Committee voted, to
delete Stevens' draft prohibiting race discrimination as to civil rights and to
insert Bingham's draft guaranteeing privileges and immunities, due process, and
equal protection. This language became § 1 of the proposed constitutional
amendment. Stevens himself voted
affirmatively, but Howard wanted to keep both. The committee voted to require the Southern States
to ratify the amendment as a condition of read-mission into the Union. Finally, the committee decided to report the
proposal of the constitutional amendment to Congress and to lift the veil of
secrecy by notifying the newspapers. The work
of the Joint Committee was now over for all practical purposes.
Attention in Congress focused on the proposed Fourteenth Amendment and the
second Freedmen's Bureau Bill. Three months had passed since the House
considered a first draft of the constitutional amendment. On April 30 Stevens,
the leader of the House delegation to the Joint Committee, reported to the
House a joint resolution proposing the constitutional amendment. Stevens also introduced a bill from the Joint
Committee that would require the Southern States to ratify the amendment and
conform their constitutions and laws thereto as a condition of readmittance to
On May 8 a report from the president written by Benjamin C. Truman on the
condition of the Southern people was ordered to be printed by the Senate.
Truman recalled the fear of a black insurrection in late 1865 and early 1866,
In consequence of this there were extensive seizures of arms and
ammunition, which the negroes had foolishly collected, and strict precautions
were taken to avoid any outbreak. Pistols, old muskets, and shotguns were taken
away from them as such weapons would be wrested from the hands of lunatics.
Since the holidays, however, there has been a great improvement in this matter;
many of the whites appear to be ashamed of their former distrust, and the
negroes are seldom molested now in carrying the fire-arms of which they make
such a vain display. In one way or another they have procured great numbers of
old army muskets and revolvers, particularly in Texas, and I have, in a few
instances, been amused at the vigor and audacity with which they have employed
them to protect themselves against the robbers and murderers that infest that
This suggests that blacks exhibited their perceived entitlement to the right
to keep and bear arms to the dismay of whites uncomfortable with allowing this
liberty to ex-slaves.
What would become the Fourteenth Amendment was debated in the House on May 8
through 10. Stevens remarked that its provisions "are all asserted, in
some form or another, in our DECLARATION or organic law. But the Constitution
limits only the action of Congress, and is not a limitation on the States. This
Amendment supplies that defect, and allows Congress to correct the unjust
legislation of the States."
Representative Thayer stated that the proposed amendment "simply brings
into the Constitution what is found in the bill of rights of every State,"
and that "it is but incorporating in the Constitution of the United States
the principle of the civil rights bill which has lately become a
Bingham averred that the amendment would protect "the privileges and
immunities of all the citizens of the Republic and the inborn rights of every
person within its jurisdiction." He
added that it would furnish a remedy against state injustices, such as
infliction of cruel and unusual punishment.
By stating that Eighth Amendment violations would be prohibited, Bingham
implied that the Fourteenth Amendment would prohibit deprivations of any rights
recognized in the Bill of Rights.
The proposed Fourteenth Amendment passed the House on May 10. The New York Evening Post remarked:
"The first section merely reasserts the Civil Rights Act." That act had been perceived by the Post as
protecting "public assemblies" and "keeping
firearms," that is, First and Second
On May 22, Representative Eliot, on behalf of the Select Committee on
Freedmen's Affairs, reported the second Freedmen's Bureau Bill, which would become H.R. 613. As before the new bill
recognized "the constitutional right to bear arms." Bingham, author of § 1 of the Fourteenth
Amendment, was a member of the select committee that had drafted this bill.
The need to protect the right to bear arms persisted. That same day (May 22)
the president transmitted a report on Southern state laws concerning freedmen
to the House. The report included black code provisions that prohibited the
possession of firearms by freedmen. South Carolina made it unlawful for
"persons of color to keep a firearm, sword, or other military
weapon," without a license, except a farm owner could keep a shotgun or
rifle "ordinarily used in hunting." Florida made it unlawful for a black to enter a
white railroad car and to possess "any bowie-knife, dirk, sword,
fire-arms, or ammunition of any kind" without a license. Although these state laws were well known, it is
significant that they were received again in Congress on May 23, the first day
that the Senate considered H.R. 127, which would become the Fourteenth
Howard introduced the proposed amendment in the Senate on behalf of the
Joint Committee, explaining "the views and motives which influenced that
Committee." After acknowledging the
important role of the testimony before the Joint Committee, Howard referred to
"the personal rights guaranteed and secured by the first eight amendments
of the Constitution; such as freedom of speech and of the press;. .. the
right to keep and bear arms"
(emphasis added). Howard averred: "The great object of the 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" (emphasis added).
In the ensuing debate, no one questioned Howard's premise that the Amendment
made the first eight amendments applicable to the states. Howard explained that Congress could enforce the
Bill of Rights through the Enforcement Clause, "a direct affirmative
delegation of power to Congress to carry out all the principles of all these
guarantees." Howard added: "It
[the amendment] will, if adopted by the States, forever disable every one of
them from passing laws trenching upon those fundamental rights and privileges
which pertain to citizens of the United States, and to all persons who happen
to be within their jurisdiction."
Howard's explanation that the Fourteenth Amendment would protect "the
personal rights guaranteed by the first eight amendments of the United States
Constitution such as ... the right to keep and bear arms" appeared on the
front page of the New York Times and
New York Herald and were printed in
the National Intelligencer and
Philadelphia Inquirer. The New
York Times found his speech "clear and cogent," while the Chicago Tribune found that it was
"very forcible and well put, and commanded the close attention of the
Senate." "It will be
observed," summarized the Baltimore Gazette, "that the first
section is a general prohibition upon all of the States of abridging the
privileges and immunities of the citizens of the United States, and secures for
all the equal advantages and protection of the laws." Other newspapers were impressed with the length or
detail of Howard's explanation.
While Howard was explaining in the Senate that the Fourteenth Amendment
would protect the right to keep and bear arms from state infringement, the
House was debating the second Freedmen's Bureau Bill, § 8 of which protected "the
constitutional right to bear arms."
Eliot observed that § 8 "simply embodies the provisions of the civil
rights bill, and gives to the President authority, through the Secretary of
War, to extend military protection to secure those rights until the civil
courts are in operation." The
constitutional basis of the bill was the Thirteenth Amendment.
Eliot cited Freedmen's Bureau reports, such as that of General Fisk, who
wrote of 25,000 discharged Union soldiers who were freedmen returning to their
homes: "Their arms are taken from them by the civil authorities and
confiscated for the benefit of the Commonwealth. The Union soldier is fined for
bearing arms. Thus the right of the people to keep and bear arms as provided
in the Constitution is infringed, and the Government for whose protection
and preservation these soldiers have fought is denounced as meddlesome and
despotic when through its agents it undertakes to protect its citizens in a
constitutional right" (emphasis added).
Fisk added that the freedmen "are defenseless, for the civil-law officers
disarm the colored man and hand him over to armed marauders."
The Fourteenth Amendment and the second Freedmen's Bureau Bill, H.R. 613,
continued to be debated in the Senate and House respectively for several days.
On May 29, the House passed H.R. 613 by a vote of 96 to 32, with 55
abstaining. The House immediately proceeded
to consideration of the proposed constitutional amendment.
Noting the House's passage of the Freedmen's Bureau Bill, the New York
Evening Post reprinted some of the black code provisions, which had been
communicated to Congress by the president, including those punishing freedmen
with flogging for keeping arms. An editorial
In South Carolina and Florida the freedmen are forbidden to wear
or keep arms.
We feel certain the President, who is, as he says, the peculiar friend and
protector of the freedmen, was not aware of the code of South Carolina, or
Florida, or Mississippi, when he vetoed that [Civil Rights] act. The necessity
for such a measure, to secure impartial justice, will not be denied by any one
who reads the extracts we have made.
May 30 began with Senator Howard proposing to add the citizenship clause to
§ 1 of the Fourteenth Amendment as follows: "All persons born in the
United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the States wherein they reside." This language was designed to settle the issue
raised in Dred Scott — that is, who are citizens and thus have the
bundle of rights appertaining to citizenship. After a raucous debate over
making Indians, coolies, and gypsies citizens, the Senate passed Howard's
Supporters of what became known as the Howard Amendment repeatedly asserted
the broad character of the rights it protected. Senator Luke Poland of Vermont
analyzed § 1 on June 5 as follows:
It is essentially declared in the Declaration of Independence
and in all the provisions of the Constitution. Notwithstanding this we
know that State laws exist, and some of them of very recent enactment, in
direct violation of these principles. Congress has already shown its desire and
intention to uproot and destroy all such partial State legislation in the
passage of what is called the civil rights bill.... It certainly seems
desirable that no doubt should be left existing as to the power of Congress to
enforce principles lying at the foundation of all republican government if they
be denied or violated by the States.
The references to "all the provisions of the Constitution" and to
recently enacted state laws again show the intent to protect Bill of Rights
freedoms from state violation.
On June 8, Senator John B. Henderson of Missouri expounded the concept of
citizenship by reference to Dred Scott. In Dred Scott, according to Henderson, Chief
Justice Roger Taney had conceded to members of the state communities "all
the personal rights, privileges, and immunities guarantied to citizens of this
'new Government.' In fact, the opinion distinctly asserts that the words
'people of the United States' and 'citizens' are 'synonymous
terms.'" However, Taney had disregarded
the plain meaning of the term "the people" by excluding
Taney's opinion also explicitly declared that citizens are entitled to Bill
of Rights guarantees, including those of the Second Amendment. The following
passage from Dred Scott particularizes the rights discussed in the
passages to which Henderson referred and illustrates the objectives sought by
the Republicans in Congress: "For if they [blacks] were . . . entitled to
the privileges and immunities of citizens, it would exempt them from the
operation of the special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to persons of
the negro race ... the full liberty of speech in public and in private upon all
subjects upon which its own citizens might speak; to hold public meetings upon
political affairs, and to keep and carry arms wherever they
went" (emphasis added). Taney's
logic was clear: if blacks were citizens, they would have a right to bear arms,
and state laws prohibiting their possession of firearms would be void.
Senator Johnson favored the citizenship and due process clauses but opposed
the privileges and immunities clause "because I do not understand what
will be the effect of that." However,
as counsel for the slaveholder in Dred Scott, Johnson was fully aware of
Taney's characterization of "the right to keep and carry arms" as a
privilege and immunity of citizenship.
Johnson also conceded in Senate debate that reports of firearms seizures from
blacks and other outrages were accurate.
After further debate, the Fourteenth Amendment passed the Senate by a vote
of 33 to 11, or 75 percent of the votes, far
more than the necessary two-thirds for a constitutional amendment. On June 13,
the House passed the proposed Fourteenth Amendment as amended by the Senate by
a vote of 120 to 32, a margin of 79 percent,
again far more than the necessary two-thirds.
From all of the above it should be clear that all of the rights recognized
by the U.S. Constitution are not only rights against state action, but that the
Fourteenth Amendment authorizes Congress to legislate protection of such rights
against state action, and grants jurisdiction of the federal judiciary over
cases between citizens and their states involving them. Among those rights are
the right to keep and bear arms and the right to a grand jury indictment. While
the Supreme Court might reasonably have confirmed this in any given case by
only declaring such rights as are minimally needed to render a decision, it is
important that they not fail to do so for all the rights that are issues before
Rep. John Bingham (R-Ohio), who was called by Justice Hugo Black "the Madison of the Fourteenth Amendment," stated that the amendment was intended to overturn Barron v. Baltimore (1833), in which the Supreme Court had held that the federal courts did not have jurisdiction to apply the Bill of Rights in cases between a citizen and his state.
 B. Kendrick, THE JOURNAL OF THE JOINT COMMITTEE OF
FIFTEEN ON RECONSTRUCTION 46 (1914). Hereafter cited JOURNAL OF THE JOINT
 CONG. GLOBE, 39th Cong., 1st Sess., 320 (Jan. 19,
1866), at 331.
 JOURNAL OF THE JOINT COMMITTEE at 51.
 Id. at 50.
 Id. at 53.
 Id. at 52-53.
 Id. at 56-57.
 Id. at 57.
 Id. at 58.
 CONG. GLOBE, 39th Cong., 1st Sess. 566 (Feb. 1,
 Id. at 573.
 Id. at 574-75.
 Id. at 585.
 Id. at 586.
 Id. at 595 (Feb. 2, 1866).
 Id., App., at 69 (Feb. 3, 1866).
 Act of July 16, 1866, 14 STATUTES AT LARGE 173, 176.
 JOURNAL OF THE JOINT COMMITTEE at 61.
 CONG. GLOBE, 39th Cong., 1st Sess. 806, 813 (Feb. 13,
 CONG. GLOBE, 39th Cong., 1st Sess. 914 (Feb. 19,
 Id. at 914-15.
 Id. at 478 (Jan. 29, 1866).
 CONG. GLOBE 1033-34 (Feb. 26, 1866).
 Id. at 1064 (Feb. 27, 1866).
 Id. at 1088 (Feb. 28, 1866). And see further comments
of Bingham at 1089 ("the existing Amendments") and 1094 ("the
law in its highest sense").
 Id. at 1088.
 Id. at 1072 (Feb. 28, 1866).
 Id. at 1077.
 Id. at 1117 (Mar. 1, 1866).
 Id. at 1118.
 1 Blackstone, COMMENTARIES 140-41 (St. Geo. Tucker
 Id. at 143-44.
 CONG. GLOBE, 39th Cong., 1st Sess. 1118-19 (Mar. 1,
 Id. at 1121.
 Id. at 1122.
 Id. at 1168 (Mar. 3, 1866).
 Id. at 1182 (Mar. 5, 1866). Pomeroy made several more
interesting comments. For example, he referred to "the rights of an
individual under the common law when his life is attacked. If I am assaulted by
a highwayman, by a man armed and determined, my first duty is to resist him,
and if necessary, use my arms also." Id. at 1183.
 CONG. GLOBE, 39th Cong., 1st Sess. 1238 (Mar. 7,
 Id. at 3412 (June 26, 1866).
 Id. at 1263 (Mar. 8, 1866).
 Id. at 1266 (Mar. 8, 1866).
 32 U.S. (7 Pet.) 243, 250-51.
 CONG. GLOBE, 39th Cong., 1st Sess. 1270 (Mar. 8,
 Id., App., at 157 (Mar. 8, 1866).
 Id. at 1291 (Mar. 9, 1866).
 Aristotle, THE POLITICS 68, 71, 79, 136, 142, 218
(transl. T. A. Sinclair, 1962); Aristotle, ATHENIAN CONSTITUTION 43-47 (transl.
H. Rackman, 1935).
 CONG. GLOBE, 39th Cong., 1st Sess. 1291 (Mar. 9,
 Id. at 1292.
 CONG. GLOBE, 39th Cong., 1st Sess., 1621 (Mar. 24,
 Id. at 1622.
 Id. at 1629.
 Id. at 606 (Feb. 2, 1866) (Senate); 1367 (Mar. 13,
 Id. at 1679 (Mar. 27, 1866).
 Id. at 1757 (Apr. 4, 1866).
 Id. at 1809 (Apr. 6, 1866).
 "The Civil Rights Bill in the Senate,"
New York Evening Post, Apr. 7, 1866, at 2, col. 1. The page facing the
editorial supporting enforcement of First and Second Amendment rights against
the states included a prominent advertisement for Remington rifles, muskets,
"pocket and belt revolvers," and other arms, with the admonition:
"In these days of housebreaking and robbery every house, store, bank and
office should have one of Remington's revolvers." Id. at 3, col. 10. The
New York police were seen as being "employed in the service of the wealthy
and prosperous corporations" while crime was rampant. Id., Apr. 16, 1866,
at 2, col. 2, and May 10, 1866, at 2, col. 4.
 REPORT OF THE JOINT COMMITTEE, pt. 2, at 271-72.
 Id. at 272.
 CONG. GLOBE, 39th Cong., 1st Sess. 1833 (Apr. 7,
 See also id. (remarks of Representative Lawrence)
(arguing that one cannot enjoy the rights to life, liberty, and property
without "the benefit of laws for the security of person and
 Id. at 1834.
 Id. at 1838.
 Id. at 1861 (Apr. 9, 1866).
 14 Stat. 27.
 JOURNAL OF THE JOINT COMMITTEE at 83. For a study of
voting patterns in the committee, see E. Maltz, CIVIL RIGHTS, THE CONSTITUTION,
AND CONGRESS, 1863-1869, at 82-92 (1990).
 JOURNAL OF THE JOINT COMMITTEE at 83.
 Id. at 295-303.
 Owen was the most prominent advocate of civil rights
for blacks and women at the Indiana constitutional convention of 1850.
Supporting the right of "carrying of weapons," he added: "For if
it were declared by Constitutional provision that the people should have the
right to bear arms, no law of the Legislature could take away that right."
REPORT OF THE DEBATES AND PROCEEDINGS OF THE CONVENTION OF THE REVISION OF THE
CONSTITUTION OF THE STATE OF INDIANA 1385 (1850). In a U.S. Senate-commissioned
report, Owen had written: "The most prized of personal rights is the right
of self-defense." R. Owen, THE WRONG OF SLAVERY 111-12 (1864).
 JOURNAL OF THE JOINT COMMITTEE at 85.
 Id. at 87.
 Id. at 88.
 Id. at 106.
 Id. at 106, 110.
 Id. at 114-15.
 CONG. GLOBE, 39th Cong., 1st Sess. 2286 (Apr. 30,
 Ex. Doc. No. 43, U.S. Senate, 39th Cong., 1st Sess.,
at 8 (1866).
 CONG. GLOBE, 39th Cong., 1st Sess. 2459 (May 8,
 Id. at 2465 (May 8, 1866).
 Id. at 2542.
 Id. at 2542-43.
 H. Flack, THE ADOPTION OF THE FOURTEENTH AMENDMENT
 CONG. GLOBE, 39th Cong., 1st Sess. 2545 (May 10,
 New York Evening Post, May 11, 1866, at 2,
 Id., Apr. 7, 1866, at 2, col. 1.
 CONG. GLOBE, 39th Cong., 1st Sess. 2743 (May 22,
 Id. at 3412 (June 26, 1866).
 Ex. Doc. No. 118, House of Representatives, 39th
Cong., 1st Sess. 7 (1866).
 Id. at 20.
 CONG. GLOBE, 39th Cong., 1st Sess. 2765 (May 23,
 Id. at 2766.
 I. Brant, THE BILL OF RIGHTS 337 (1965).
 CONG. GLOBE, 39th Cong., 1st Sess. 2766 (May 23,
 New York Times, May 24, 1866, at 1, col. 6.
 New York Herald, May 24, 1866, at 1, col 3.
 National Intelligencer, May 24, 1866, at 3,
 Philadelphia Inquirer, May 24, 1866, at 8,
 New York Times, May 25, 1866, at 2, col. 4.
 Chicago Tribune, May 29, 1866, at 2, col. 3.
 Baltimore Gazette, May 24, 1866, at 4, col.
 See, for example, Boston Daily Journal, May
24, 1866, at 4, col. 4; Boston Daily Advertiser, May 24, 1866, at 1,
col. 6; Springfield Daily Republican, May 24, 1866, at 3, col. 1. The
Southern Democratic newspapers generally did not publish any speeches by
Republicans, but their reactions to the Howard Amendment are insightful. The
amendment's supporters, complained the Daily Richmond Examiner,
"are first to make citizens and voters of the negroes." Yet the
Examiner praised Senator Howard for objecting to the clause that
disenfranchised ex-Confederates. The Southern newspapers never claimed that the
amendment was unclear, but they objected to its breadth in guaranteeing to
blacks the rights guaranteed in the first eight amendments as well as the right
to vote. See Daily Richmond Examiner, May 25, 1866, at 2, col. 3; id..
May 26, 1866, at 1, col. 6; Charleston Daily Courier, May 28, 1866, at
1, col. 2, and at 4, col. 2; id., May 29, 1866, at 1, cols. 1-2 (comment on
 CONG. GLOBE, 39th Cong., 1st Sess. 2773 (May 23,
 Id. at 3412 (June 26, 1866).
 Id. at 2773 (May 23, 1866).
 Id. at 2774.
 Id. at 2775.
 Id. at 2878.
 New York Evening Post, May 30, 1866, at 2,
 "The Freedmen's Bureau Bill," id. at 2,
 CONG. GLOBE, 39th Cong., 1st Sess. 2890 (May 30,
 Id. at 2897.
 Id. at 2961 (June 5, 1866).
 Id. at 3032 (June 8, 1866).
 Scott v. Sanford, 60 U.S. 393, 416-17 (1857).
 CONG. GLOBE, 39th Cong., 1st Sess. 3041 (June 8,
 Scott v. Sandford, 60 U.S. 393, 416-17 (1857).
Johnson's oral argument in Dred Scott has not been preserved. See 3
LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES (1978).
 CONG. GLOBE, 39th Cong., 1st Sess. 40 (Dec. 13,
 Id. at 3042 (June 8, 1866).
 Id. at 3149 (June 13, 1866).
 Congressional Globe, 39th Congress, 1st Session. pp 1088-90. See also Congressional Globe, 42nd Congress, 1st Session, Appendix, p. 150, where Bingham restated his intention in drafting the 14th Amendment.
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