Prior to the Civil War, the Supreme Court ruled that blacks were not citizens and had no rights that a white man was bound to respect. To buttress the point, the Supreme Court clearly stated that blacks could not carry guns. Citizenship, it was concluded, would bring about all sorts of perceived "evils."
"It would give to persons of the ***** race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased. . . .and it would give them full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs,
and to keep and carry arms wherever they went."
Most of you would recognize this as the infamous
Dred Scott decision.
Following the Civil War, Congress adopted three Amendments to the Constitution directly bearing on the rights of citizens, including newly freed slaves. The Fourteenth Amendment, in particular, was aimed at stopping the states from interfering with the rights of citizens by granting the power to Congress to prevent state action that interfered with rights of citizenship.
"Black codes" disarmed blacks throughout the south (among many other evils). Much of the disarming was direct, but some of the disarming was accomplished through indirect means. A
permitting system was one of the indirect means utilized.
The Fourteenth Amendment was adopted during debates in which Congress frequently referred to the Second Amendment as one of the rights which it intended to guarantee against state action.
From Stephen Halbrook,
The Right to Keep and Bear Arms under the Second and Fourteenth Amendments: The Framers' Intent and Supreme Court Jurisprudence, 5 J. on Firearms & Pub. Pol'y 7-28 (1993):
Senator Jacob M. Howard in introducing the amendment to the Senate in 1866: "The personal rights guaranteed and secured by the first eight amendments of the Constitution; such as ... the right to keep and bear arms .... 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."
. . .
The same two-thirds of Congress which proposed the Fourteenth Amendment also passed an enactment declaring that the fundamental rights of "personal liberty" and "personal (p.17)security" include "the constitutional right to bear arms." Freedmen's Bureau Act, §14, 14 Stat. 176 (July 16, 1866). This Act, and the companion Civil Rights Act of 1866, sought to guarantee the same rights that the Fourteenth Amendment was adopted to protect.
No court has ever considered Congress' declaration, contemporaneously with its adoption of the Fourteenth Amendment, that the rights to personal security and personal liberty include the "constitutional right"--i.e., the right based on the Second Amendment--"to bear arms." Until now, this declaration in the Freedmen's Bureau Act has been completely unknown both to scholars and the courts
. . .
Senator Henry Wilson introduced a bill to disband the Southern state militias because they abused freedmen and "were engaged in disarming the *******." Cong. Globe, 39th Cong., 1st Sess., 914 (Feb. 19, 1866). Because of such complaints, Congress disbanded the Southern state militias. 15 Stat. 487 (Mar. 2, 1867).
. . .
A lengthy analysis of the Civil Rights Act of 1871, 42 U.S.C. §1983, in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 665 (1978) relies on a speech by Representative John Bingham as follows: "Representative Bingham, for example, in discussing § 1 of the bill, explained that he had drafted § 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), especially in mind." 436 U.S. at 686-87. On the same page of the speech where he mentioned Barron, Bingham characterized "the right of the people to keep and bear arms" as one of the "limitations upon the power of the States ... made so by the Fourteenth Amendment." Cong. Globe, 42nd Cong., 1st Sess., pt. 2, Appendix 84 (Mar. 31, 1871). As the Court pointed out, "Representative Bingham, the author of § 1 of the Fourteenth Amendment, ... declared the bill's purpose to be 'the enforcement ... of the Constitution on behalf of every individual citizen of the Republic ... to the extent of the rights guaranteed to him by the Constitution." 436 U.S. at 685 n. 45.
Another authority cited in Monell (id.) was Representative Henry L. Dawes, who stated on the pages referenced by the Court that the Fourteenth Amendment "has secured to [the citizen] the right to keep and bear arms in his defense." Cong. Globe, 42nd Cong., 1st Sess., pt. 1, 475-76 (Apr. 5, 1871).
End of quotes. Should you wish to read the whole thing (which I suggest), it is here:
http://www.guncite.com/journals/gun_con ... html#fnb20
There is more, and much linking "privileges or immunities" to rights contained in the Bill of Rights, but the post is getting long . . .
Subsequent Supreme Court rulings, however, limited the scope of the Fourteenth Amendment in this regard more severely than its drafters could have contemplated.
Given the original thrust of the Amendment, as it was intended by its drafters and not as it has been twisted by the Supreme Court, I humbly submit that Congress has the power to prevent state action to violate the Second Amendment.
