The Second Amendment

by Michael Waldman

  The Radical Republicans, as they were known, did not want to see the rights of African Americans held hostage to the partisan balance in Washington. They wrote two new constitutional amendments, designed to ensure civic and political equality. The Fifteenth Amendment guaranteed former slaves the right to vote, radical enough. The Fourteenth Amendment promised a social revolution.

  It clarified that anyone born in the United States is a citizen, thus overturning Dred Scott. It declared that no state could “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.” And it declared that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These sweeping guarantees would appear to impose a transformative vision of equal rights. Much of the next century of constitutional law amounted to a debate over the meaning of its phrases, grand but general, and to whom they should be applied.

  At times the drafters held more expansive views than those of Congress as a whole, different still from the states that ratified it. Historian Eric Foner observes, “The problem of establishing the Amendment’s ‘original intent’ is complicated by the fact that its final wording resulted from a series of extremely narrow votes in the Joint [drafting] Committee and subsequent alteration of the floor of Congress.” Still, Foner notes, despite its very specific goals, “In language that transcended race and region, it challenged legal discrimination throughout the nation and changed and broadened the meaning of freedom for all Americans.”

  There is some evidence in these debates that some supporters of the Fourteenth Amendment intended to assure black citizens the right to protect themselves with guns. At the very least it was designed to make sure the Civil Rights Act of 1866 could be enforced, said one lawmaker, and white and black citizens should have equal rights, including “a right to bear arms.” Senator Jacob Howard, introducing the Fourteenth Amendment on the floor, explained that it sought to protect “the personal rights guaranteed and secured by the first eight amendments of the Constitution.” He ran through the Bill of Rights, including the right to keep and bear arms.

  Sometimes that goal was described as to assure black families the ability to ward off abusive white militias. “In Mississippi,” reported Senator Henry Wilson, “rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” Other times, proponents said the purpose was to empower black men to join state militias. Certainly that was the fear expressed by some opponents of the amendment. On the House floor, after the amendment passed, one lawmaker warned that Alabama’s Republican government was trying to establish a volunteer militia. “Of whom will that militia consist? Mr. Speaker, it will consist only of the black men of Alabama,” he warned. “The white men will not degrade themselves by going into the ranks and becoming a part of the militia of the State with negroes.” He predicted a “war of races.”

  But the intentions of some of the Radical Republicans in Congress and the understanding of the broader public seem at odds. The amendment’s supporters did not sell the controversial measure to voters by claiming it would guarantee to freedmen the right to own guns.

  Some scholars, notably Akhil Reed Amar of Yale, insist the Fourteenth Amendment turned the civic right of militia participation into an individual right of defense. “Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman,” he writes. Others disagree. “Whatever its appeal might be, Professor Amar’s thesis suffers from a fatal flaw,” one critique noted. “It confuses what should have been done with what was done.” In fact, there is little evidence from the amendment’s text or the statements of its framers that it meant to prohibit state governments from passing all gun regulations so long as they applied equally to white and black citizens.

  In any case, just as during the period of the Constitutional Convention, the world of the framers of the Fourteenth Amendment seems palpably different from our own (or at least, from any world we would want to inhabit). It was a time of low-grade war between the races, when pressing arms into the hands of African American families was one of the only ways to protect them.

  The Fourteenth Amendment became the central issue in the 1866 congressional midterm election. Radical Republicans who endorsed it were elected in huge numbers. Now they took control of Reconstruction policy. The South was divided into military districts. Southern states were barred from reentering the United States until they ratified the Fourteenth Amendment. African Americans began to flourish, electing officials throughout the South. Whites responded with terrorism, through the Ku Klux Klan. The new Republican governments of the Southern states did not see the Fourteenth Amendment as precluding their ability to protect public safety. In Texas, armed conflict raged between white Democratic Party clubs and largely black state militia and police. General Philip Sheridan, military commander of the southwest United States, commented that if he owned Texas and hell, he would rent out Texas and move to hell. The governor persuaded the legislature to pass a law “prescribing severe penalties for keeping and bearing deadly arms.” In Mississippi the governor persuaded legislators to pass a law prohibiting the “barbarous practice” of carrying concealed weapons, which he said “was almost universal among both races in the South.”

  Eventually the North pulled back. Reconstruction formally ended in a deal to decide the tight 1876 presidential election. To keep the White House, Republicans agreed to withdraw the U.S. Army from the South. (The disputed electoral votes came from Florida and three other states. The deciding vote was cast by a Supreme Court justice. No hanging chads were involved.) The white-dominated caste system reasserted itself. It would take nearly a century to undo the consequences of Reconstruction’s ignominious end.

  And the Supreme Court led the judiciary in a shameful series of cases that denied to African American citizens the protection specifically designed to be given to them by the new constitutional provisions. The Slaughter-House Cases were first: they gutted the “privileges and immunities” clause of the Fourteenth Amendment. Those rights described only national rights, the Court ruled, but not those given within state laws or constitutions. An even more troubling case would follow.

  In 1872, as racist Democrats surged back into power across the South, Louisiana citizens went to the polls. Fraud and violence marred the election. Republicans and Democrats each swore in a governor. A federal court ruled the Republican the victor, whose writ ran about as far as the New Orleans city limits. Around the state, the two sides organized militias and dug in for a fight. In the corner of a former slave plantation sat the tiny town of Colfax (named after the Republican vice president, Schuyler Colfax) within Grant Parish (named after the Republican president). The black militia took over the local courthouse and installed Republican officeholders. On Easter Sunday, the paramilitary White League stormed the town. The league massacred one hundred freedmen, losing two white men. Most victims were murdered after they surrendered, marched to their death two by two. The New Orleans Times exulted the next morning on its front page: “WAR AT LAST!!” Federal prosecutors charged white defendants with violating the civil rights of the freedmen, including the right to bear arms. Only three men were convicted. They appealed.

  The U.S. Supreme Court heard the case in 1876. In U.S. v. Cruikshank, the justices ruled flatly that the Second Amendment—like the rest of the Bill of Rights—only applied to Congress. “The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” It found that the convictions of the men were unconstitutional. The majority opinion neglected to mention that the case involved a massacre. Journalist Charles Lane called his book on the case The Day Freedom Died.

  Cruikshank stands as an ugly episode in a
morally debased time. Just a few years after it was enacted, the Fourteenth Amendment had been paralyzed. The ruling hindered federal enforcement of civil rights law until the 1960s. It would not be another fifty years before the Supreme Court started to “incorporate” the Bill of Rights, applying its provisions to states. (Most of the provisions were not “incorporated” until the 1960s.) As a constitutional matter, the ruling had an unambiguous impact on the jurisprudence of guns: the Second Amendment did not apply to the states. And it was the states, not the federal government, that made criminal justice policy. The Court did not opine on whether it conferred a personal or a collective or a civic right. It didn’t matter: it only bound Congress. States were free to do as they wished.

  STRIKING THE BALANCE: GUNS AND GUN CONTROL

  Over the next hundred years, several trends were evident.

  Many Americans owned guns. A scholar writing in 1890 credited the Civil War. “The increase of crimes of blood has been beyond all comparison to that of the years pervious to it. The war, in effect, demoralized and changed the habits and sentiments and conduct of thousands of the men who engaged in it on either side.”

  At the same time, gun control laws were ubiquitous. A photo shows the main street of Dodge City, Kansas, in 1879. The scene looks like nothing more than a movie set for a Western movie: dusty street, lined by saloons and stores, with hitching posts for wagons. One expects a gunfight to erupt at any moment. Yet in the middle of the street is a large sign: “The Carrying of Fire Arms Strictly Prohibited.” Visitors to Wichita, Kansas, in 1873 were told: “LEAVE YOUR REVOLVERS AT POLICE HEADQUARTERS, GET A CHECK.”

  And the militia system? It had vanished. In 1903 Congress passed the Dick Act. It created what we know as the National Guard, spending federal funds to train part-time soldiers (and requiring them to muster a certain number of days). “Well regulated,” yes, but a far cry from the militia as the Framers knew them: only a small number of men, who would muster for a short time every year. This is what the Founding generation would have known as a “select militia.” The “standing army” so widely feared is the United States Army, created in its modern form during World War I.

  Over time gun ownership and gun rights evolved with the country’s spread west. Frontiersmen had guns to protect themselves, to kill for food, to hunt (and on occasion to rob each other). The crowded cities of the East were less hospitable for an armed population. By the end of the nineteenth century, many state constitutions included language protecting the right to keep a gun at home, but authorizing other kinds of gun regulations.

  Modern gun laws were enacted in two great waves. The first came with the rise of cities. As the industrial revolution began to transform the country, especially in the East, farmhands and immigrants flooded into growing urban areas. Violence was a much discussed threat, though easily concealed knives and clubs were the weapons of choice. Municipal police departments, first created in the 1800s, sought to impose order. Class conflict, labor disputes, and tumultuous strikes convulsed politics. It was a time of political violence. One president was assassinated in 1881, another in 1901, and his successor, Theodore Roosevelt, was shot in 1912. He spoke for nearly an hour with a bullet lodged in his ribs. “I don’t know whether you fully understand that I have just been shot,” he told his flummoxed listeners. “But it takes more than that to kill a Bull Moose.”

  At the turn of the twentieth century, nearly as many people crammed into New York City as had lived in the thirteen states when the Constitution was ratified. Violence was commonplace. Tammany Hall, the corrupt Democratic Party machine, governed. In 1911, Tammany had chosen a surprisingly honest judge, William Jay Gaynor, to be mayor. On a cruise ship berthed in New Jersey, a dismissed city worker fired on the mayor point-blank. Gaynor survived. Firearms deaths leapt 50 percent that year in New York City. The next year, after the high-profile murder of a novelist, the city’s medical examiner launched a crusade for a new state gun law.

  The cause was taken up by an unlikely champion: William “Big Tim” Sullivan, a Tammany Hall politician from Manhattan’s Lower East Side. Sullivan was alleged to control, or at least to protect, much of the prostitution, gambling, and peep show industry south of 14th Street. He owned a string of vaudeville houses and penny arcades, and eventually formed an alliance with William Fox, the archetypal immigrant turned movie mogul. Sullivan also was evolving toward a stance as a social reformer, pushing protective legislation for women and workers. His immigrant constituents were most likely to have (and be menaced by) concealed handguns. Others suggested the high tax for guns might keep them in the hands of his own shady allies.

  In 1911, Sullivan pushed a major gun control law through the legislature. The measure required a license to own a handgun, which must be approved by the sheriff or police, and made it a felony to carry a concealed gun outside the home. Small arms factories—the first gun lobby—opposed. “In spite of opposition from manufacturers of firearms,” as The New York Times reported, the State Senate passed the handgun ban with only five dissents. Legislative debate rings familiar. “Your bill won’t stop murders. You can’t force a burglar to get a license to use a gun,” insisted one upstate lawmaker. “He’ll get one from another state.” He noted that Alabama had just repealed a similar law. “Alabama is too far away from the Bowery for me to talk about it,” Sullivan snorted.

  Sullivan never saw the result of his work. The next year he suffered a mental breakdown, probably due to syphilis, and was confined to a sanitarium. He escaped and was the subject of a widely publicized manhunt. His body was found at the city morgue, ready for a pauper’s burial. Seventy-five thousand residents of the Lower East Side thronged his funeral. The law did not seem to bring murders down, but did curb suicides by firearms.

  Other states followed New York. Within a decade a model “Revolver Act” similar to the Sullivan Law became law in West Virginia, New Jersey, Michigan, Indiana, Oregon, California, New Hampshire, North Dakota, and Connecticut.

  Through all this, the federal government stood at far remove. States and cities set crime policy—whether police forces, gun regulations, or everyday criminal laws. Recall that the Supreme Court already had ruled the Second Amendment did not apply to states. (At this time, courts had ruled that the Bill of Rights only limited actions by the federal government.) The Supreme Court ruled twice more that the Second Amendment did not create an individual right to gun ownership. One 1886 case, Presser v. Illinois, involved an armed parade of German immigrants affiliated with the Socialist Workers Party. The bund faced off against the newly created National Guard, which enforced the will of employers. The radicals insisted they, too, be regarded as a militia under the Second Amendment. The Supreme Court ruled that Illinois could decide who was, in fact, in its militia. More, it reaffirmed that the Second Amendment did not apply to states—but they could not pass laws that “prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” In other words, a state could not ban guns to the degree that it would interfere with the federal government’s military needs. In Miller v. Texas, a criminal defendant argued that the state’s law prohibiting the carrying of weapons violated his Second Amendment right. The court disagreed: “We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions.”

  Attitudes toward the Second Amendment continued to evolve with the country and its broader understanding of the Constitution and what it means. During the nation's first century and a half, most domestic policy was set by the states. Industrialization, followed by the Great Depression, rapidly changed that. For the first time Americans urgently wanted strong national laws to be issued from Washington. The “alphabet soup” of federal agencies—from securities law to electric power—thrust the national government far more deeply into every aspect of American life. The “constituti
onal revolution” of the New Deal was, in many ways, a moment of constitutional lawmaking as significant as the Civil War amendments. The modern, national American government finally took shape. The federal government began to take an active role in criminal justice, too, far beyond its earlier efforts.

  Social disruption proved the spur.

  Prohibition had sparked mayhem in the cities, as gangs battled to control the flow of illegal liquor. New weapons, first designed for use in World War I, made it easy for gangsters to spray bullets at their foes. Cars and paved highways let them speed across state lines. During the Depression, bank robbery replaced bootlegging as a profit center. Al Capone, George “Machine Gun” Kelly, and Bonnie and Clyde (who posed provocatively with their guns) became household names. Newly elected president Franklin Roosevelt had a two-part strategy to stem the carnage. First, he ended Prohibition, winning repeal of the Eighteenth Amendment. Then he waged a crackdown on gangsters and their guns, what his attorney general called a “New Deal for Crime.” And he won passage of the first federal gun legislation, the National Firearms Act of 1934. The law imposed a heavy tax on the weapons used most prominently by gangsters and familiar to any moviegoer of the time. Machine guns and sawed-off shotguns had to be registered, and could not be transported across state lines. Originally the bill included pistols, but opposition from gun owners forced amendment. In the end the National Rifle Association—then a sportsmen’s group—backed the plan. The act swept through Congress in Roosevelt’s first term. The federal crackdown on guns was hugely popular. When Federal Bureau of Investigation special agents captured Machine Gun Kelly, he blurted out, “Don’t shoot, G-Men; don’t shoot!” The nickname for federal agents stuck. FBI director J. Edgar Hoover used the crackdown on armed gangsters to build acclaim for an agency that began with controversial Palmer Raids on radicals in the 1920s. The year the gun law passed, Hollywood motion picture studios embraced a voluntary censorship code. Among the consequences: no more enormously popular gangster movies. Instead, producers got around the code by making movies focused on government agents pursuing gangsters. James Cagney got famous playing a criminal in The Public Enemy; in 1935, he starred in G Men, one of sixty-five movies that year glorifying FBI agents. The public that embraced the assertive national government embodied by Roosevelt’s New Deal social programs was untroubled by federal laws cracking down on unusually dangerous guns. Libertarian sentiments reached low ebb. By 1938, the administration sought another gun bill, extending it to all guns. This time gun owners and the NRA protested. The final bill, the second federal gun control law in four years, banned interstate trafficking in guns without a license.