Saul Cornell is is Paul and Diane Guenther Chair in American History at
Fordham University. His most recent book is A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. In the post below he reflects upon the 2nd amendment. Read his other posts here.
Captain Jim Williams, a member of the newly created African-American militia in South Carolina, was lynched by the KKK in 1871. A placard was attached to his body: “gone to his last muster.” The newly created Department of Justice adopted a novel theory to prosecute Williams’ killers: the government argued that the Klan’s disarmament of Williams and other members of the so called “Negro militias” violated the Second Amendment which was now applicable to the states through the recently ratified Fourteenth Amendment. The two federal judges presiding over the KKK case could not agree over this new theory which modern courts have dubbed “incorporation.” The United States Supreme Court will soon hear another Second Amendment incorporation case, McDonald v. Chicago. The question now is not the disarmament of the militia, but the private right to have a handgun for self defense (Chicago’s citizens are free to own a variety of long guns, including shotguns.) History will figure prominently in this new case. The looming question for the Court is simple: will they get the history right, or will they be swayed by a potent gun rights mythology that has distorted the history of Reconstruction and effectively erased the memory and sacrifices of men such as Jim Williams?
Gun rights advocates have peddled three dubious claims to the Court. First, they argue that by the time of the Fourteenth Amendment the militia purpose of the Second Amendment had disappeared. Second, gun rights advocates claim that the Republican supporters of the Fourteenth Amendment were pro-gun zealots who opposed robust gun regulation. Finally, they claim that there was a general consensus on the idea of Second Amendment incorporation at the time, a notion which they claim is supported by modern scholarship. To resolve these issues the Supreme Court must choose between genuine history, supported by the best current scholarship, and a gun rights fantasy masquerading as history.
The tragic fate of Jim Williams belies the claim that the militia purpose of the Second Amendment had disappeared by the era of the Fourteenth Amendment. Although the southern dominated militias were disbanded by the Reconstruction era Congress, Republicans moved to reorganize them by the time the Fourteenth Amendment was being ratified. The division among the judges in the trial of Jim Williams reflected a continuing disagreement over the meaning of the Fourteenth Amendment that had existed from its inception. Current scholarship continues to be divided over how to interpret the Amendment.
There are some facts which are beyond dispute. Although there is ample evidence that the Fourteenth Amendment was widely understood to bar the selective disarmament of Blacks by southern governments, there is absolutely no evidence to suggest that anyone believed that the Fourteenth Amendment prevented the states from passing neutrally applicable gun regulations designed to promote public safety. Even John Bingham, the author of Section One of the Fourteenth Amendment, believed that the Amendment would not change state control over matters such as gun regulation. The Court needs to look closely at Bingham’s public speeches defending the Amendment in which he clearly stated that even after the adoption of the Fourteenth Amendment states would retain control over all matters of personal security. The Court also needs to pay attention to what Republicans did in the South, as much as what they said in Congress. Republicans enacted stringent gun regulations in the South, an absolute necessity given the pervasive violence in that region, much of it directed at Blacks and Republican sympathizers.
The Court also needs to recognize another indisputable historical fact. By the time of the Fourteenth Amendment gun regulation in America had intensified well beyond anything in place at the time the Second Amendment was adopted. The proliferation of cheap hand guns in the nineteenth century led to the enactment of the first modern style gun control laws by a number of states and localities. By the time of the Fourteenth Amendment courts recognized the unique dangers posed by hand guns and categorically excluded them from constitutional protection. Only privately owned weapons related to militia activity and used in some way plausibly connected to the preservation of the militia were constitutionally protected. (All other weapons were subject to the same constitutional protections and regulations extended to any piece of property.) Indeed, in the era of the Fourteenth Amendment judges ridiculed the notion that a pistol carried for private self defense had anything to do with the right to bear arms. It would be deeply ironic if the Supreme Court struck down Chicago’s law when there were more restrictive laws on the books at the time the Fourteenth Amendment was adopted. Whatever it decides to do in McDonald, the court must reckon with the ghost of Jim Williams.
*Please note the image is used with permission from the Early American Newspapers database published by the Readex division of Newsbank.