FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876 by Stephen P. Halbrook. Westport: Praeger, 1998. 201 pp. Cloth $55. ISBN 0-275-96331-4.

Reviewed by Daniel Hoffman, Department of Political Science, Johnson C. Smith University. E-mail: web6002@charweb.org.

  In this brief but well-researched volume, Stephen Halbrook, a practicing attorney with a special interest in Second Amendment jurisprudence, renews his battle for the right to bear arms. Although many people already have strong views on this subject, Halbrook goes well beyond preaching to the choir. His tightly focused argument is novel and powerful enough to impress even a highly skeptical reader, such as the present reviewer. One need not be an originalist to be impressed by Halbrook's treatment of little-known historical materials.

By situating his inquiry in the political thought of the Reconstruction era, Halbrook departs from the common practice of expounding Bill of Rights issues by looking first at the intent of the Founders and then jumping to the rulings of modern Justices. In so doing, he is able to reframe the practical meaning of the right to bear arms, having us place ourselves in the positions of a freedman deprived of his weapons by the Ku Klux Klan, or of the freedman's Radical Republican defenders.

Halbrook makes a persuasive case that the leaders of the Thirty-Ninth Congress regarded bearing arms as a fundamental privilege and immunity of all citizens, essential for defense of all of their other personal rights. Yet the Supreme Court had ruled in BARRON V. BALTIMORE (1831)--contrary, Halbrook suggests, to the then prevailing understanding--that the Bill of Rights limited only the federal government's powers and not those of the States. Southern laws either forbade the freed slaves to bear arms, or their nominal right to do so was not enforced. Many freedmen fell victim to increasing Klan activity.

To the Radicals, the plight of freedmen called for new federal legislation and/or constitutional amendments to enable them to protect themselves. The 1866 Freedmen's Bureau and Civil Rights Bills were viewed by both proponents and opponents as aimed at ensuring, among other things, the right of freedmen to bear arms. The former Bill made this utterly explicit; the latter implied it by reference to "security of person and property." President Johnson vetoed both Bills, but his veto of the second was overridden.

The framing of the Fourteenth Amendment began shortly after these proceedings, and was widely seen as designed to entrench the guarantees of the 1866 Civil Rights Act in the Constitution. Halbrook argues that the Civil Rights Act was aimed, in large part, at circumventing the BARRON doctrine, while the Fourteenth Amendment was meant to override BARRON entirely and make the states directly subject to the entire Bill of Rights. The rights thus incorporated would most certainly include the right to bear arms--a right frequently referred to in the Amendment debate and also reinscribed in the second Freedmen's Bureau Bill, approved by Congress shortly afterward and enacted over presidential veto.

"The arms ... protected included the latest firearms of all kinds....The right ... meant the right of an individual to possess arms in the home and elsewhere .... for protection ... against criminals and terrorist groups of all kinds ... [including] lawless law enforcement. Far from being restricted to official militia activity, the right ... could be exercised ... against the state's official militia when it plundered and killed the innocent." (43)

Having brought us this far, Halbrook does not pause to philosophize over the binding force of Framers' intent. Instead, he goes on to relate how, despite these enactments, the freedmen were before long stripped of their arms, and therewith of nearly all their other rights as well. In this context, the Second Amendment is readily grasped as a keystone of the Bill of Rights-- not an anomaly, an embarrassment or a puzzle.

The remainder of Halbrook's study deals with the battles over enforcement of Reconstruction policies and over ratification of the Fourteenth Amendment--battles in which the Radical program frequently met determined resistance from every conceivable direction. The Radicals, in turn, resorted to measures including criminal legislation (enforcement acts), denial of representation in Congress, attempted presidential impeachment, and creative (to say the least) methods of counting/discounting state acts of ratification or attempted nonratification. While presidential resistance was overcome and ratification secured, by 1875 Reconstruction was effectively over.

Halbrook's focus throughout is on discussions of the right to bear arms, its scope and the location of the power to enforce or regulate it. These occurred in Congress, in state ratifying conventions and eventually, to Halbrook's dismay, in the courts.

The stuggle's intensity makes it unsurprising that the congressional debates contain conflicting viewpoints regarding militia-centered versus individualist readings of the right to bear arms, the precise extent of state powers to regulate that right, and Congress's power to enforce the Fourteenth Amendment by punishing private as well as state action. Interpreting the political thrust of various statements calls for careful attention to contextual factors, such as the fact that both black and white militias--or "militias"--were active in different locales. Overall, though, Halbrook makes a strong case that individualism was the dominant view of the right to bear arms, that the Fourteenth Amendment was intended to prohibit state infringement of that right, and that Congress understood the Amendment as empowering it to protect fundamental rights against injury by private as well as state misconduct. (Many, indeed, believed Congress had already possessed that power beforehand.)

Halbrook also shows that ratifying conventions in Southern States generally took an expansive and favorable view of the right to bear arms. "Supporters of the Fourteenth Amendment considered the right to keep and bear arms so fundamental that they were ready to abolish the state militias to protect freedmen from deprivation of this right." (115) Opponents had similar views on the meaning and value of the right, which is why they were loath to see it extended to the freedmen.

As the Republican party lost heart for the Reconstruction struggle, enforcement of the Fourteenth Amendment and the Civil Rights Acts was largely relinquished to the judiciary, with disastrous results. In UNITED STATES V. CRUIKSHANK (1876), the Supreme Court declared that Congress had no power to prohibit private interference with the bearing of arms; only the states could do so. Amazingly, the briefs filed by the United States had simply failed to address the constitutional issues involved. The Court, for its part, first reiterated that, under BARRON, the Second Amendment did not apply to the states. Then, without directly addressing the incorporation issue, it simply asserted that the Fourteenth Amendment "adds nothing to the rights of one citizen as against another." (175) Thus, contrary to many judges and scholars, CRUIKSHANK did not even address the question whether the Fourteenth Amendment protects an individual right to bear arms against state infringement.

Halbrook's final chapter reviews the eventual triumph of the incorporation doctrine as to nearly all substantive rights--with the conspicuous, tacit omission of the right to bear arms. In a case he himself argued, the Ninth Circuit has held that binding precedents clearly reject the incorporation of the Second Amendment. That court's reading of the precedents, however, seems less persuasive than Halbrook's.

Overall, Halbrook's critique of the judicial performance is biting and strong. Yet it is important to notice what he does not assert and cannot prove: that the right to bear arms is absolute. The Radical Framers, for example, clearly acknowledged that states could forbid the carrying of concealed weapons, or of weapons that were not ordinary militia equipment.

Thus, the bottom-line proposition that "the right to keep and bear arms should be protected from state infringement by the Fourteenth Amendment" (192) leaves open many difficult questions about the proper application of a balancing test to a specific arms control measure enacted or applied in a specific context. Only one who sees the FBI or ATF as equivalent to the KKK can think himself similarly situated to a freedman in Reconstruction South Carolina, Mississippi or Texas. Others can still argue that bans on assault rifles, for example, are supported by a compelling governmental interest (or whatever other standard is deemed suitable). If so, Halbrook's contributions to history and jurisprudence may be weightier than their likely political impact. That is probably a good thing.

BARRON V. BALTIMORE, 32 U.S. 243 (1831)

UNITED STATES V. CRUIKSHANK, 92 U.S. 542 (1876)

Copyright 1995