To Keep and Bear Arms

Nearly 135 years ago, the United States experienced what may have been the worst one-day slaughter of blacks by whites in its history. On April 13, 1873, in the tiny village of Colfax, La., white paramilitaries attacked a lightly armed force of freedmen assembled in a local courthouse. By the time the Colfax Massacre was over, more than 60 African American men lay shot, burned or stabbed to death. Most were killed after they had surrendered.

Though it caused a national sensation in post-Civil War America, this horrible incident has been largely overlooked by historians. It deserves fresh study today not only to illuminate the human cost of Reconstruction's defeat but also to enrich our understanding of constitutional history. Some of the most relevant lessons relate to the issue at the heart of District of Columbia v. Heller, the case on the D.C. gun control law currently before the Supreme Court: whether the Constitution guarantees an individual right to keep and bear arms.

During oral arguments on Tuesday, the justices debated what the framers of the Second Amendment intended. The members of the court did not mention Reconstruction. Yet during this period, we the people gave the Union a second "founding" through constitutional amendments abolishing slavery, granting blacks citizenship and enabling them...

Firearms pose threats to modern-day urban dwellers -- crime, suicide, accidents -- that may outweigh any self-defense they provide. Unlike 19th-century rural Americans, we can call on professional police.

In the D.C. gun case, the Supreme Court should find that local governments may enact reasonable and necessary restrictions on dangerous weapons. To be sure, if the justices also back an individual right to keep and bear arms, that will be harder for legislators to do. But as a matter of historical interpretation, the court would be correct.

If I understand Charles Lane's article about the Colfax Massacre correctly, that event is another example of a post-14th A. gun-related incident where the USSC noted that the 2nd A. was a prohibition only upon the federal Congress.

"Waite's objection was that the Second Amendment protected that right against violation by Congress, not by private parties such as the paramilitaries at Colfax. Thus, only a state, not the federal government, could criminalize the conspiracy that Beckwith charged." --Charles Lane, washingtonpost.com March 22, 2008

The other example is Presser v. Illinois.

"The provision in the Second Amendment to the Constitution, that "the right of the people to keep and bear arms shall not be infringed," is a limitation only on the power of Congress and the national government, and not of the States." --Presser v. Illinois, 1886

In my opinion, these examples reflect that the USSC was unaware of John Bingham's inclusion of the 2nd A. in examples of constitutional statutes containing privileges and immunities that the 14th A. applied to the states, John Bingham having been the main author of Sec. 1 of the 14th Amendment.

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those first eight amendments are as follows:
[first eight amendments listed]
These eight articles I have shown never were limitations upon the power of the states, until made so by the fourteenth amendment." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/y3ne4n

Regarding things that the USSC takes into consideration to decide a case, I have noticed that Court opinions often reference the opinions of previous cases as opposed to the Congressional Record or its precursors, such as the Congressional Globe from which the above Bingham excerpt was taken. Although it appears like the USSC was "uninterested" in congressional discussions concerning amendments to the Constitution, I suspect the following.

My guess is that since computer-assisted archive searches were non-existent in the 19th century that it was too inconvenient for justices to "walk across the street" to review congressional archives as a help to deciding cases. If this is the case, and hopefully some FReepers can provide some insight, then the USSC's "ignoring" of the Congressional Record is disturbing for the following reason.

"The true key for the construction of everything doubtful in a law is the intention of the law-makers. This is most safely gathered from the words, but may be sought also in extraneous circumstances provided they do not contradict the express words of the law." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:59

Note my first exposure to all the materials that I reference came from a computer screen.

Nowhere was the need for black access to weapons more clearly demonstrated than at Colfax, where freedmen rallied -- shotguns in hand -- to defend their local elected officials from heavily armed whites led by ex-Confederate officers. They were also reacting to the murder of an unarmed black farmer. The black men, supporters of Abraham Lincoln's Republican Party, acted as a posse sworn in by a (white) Republican sheriff.

Wait, I thought the Supreme Court said shotguns were not "militia" weapons. But that posse is just the militia wearing a different hat. (Of course the Supreme Court did not actually say that, they just said they couldn't say they were militia weapons without some evidence being heard or presented. Since the respondent, Miller, was not represented, it's not surprising no such facts were presented.)

I'm under the impression that all fact finding has to be decided at the district court level, and that appeals to the Circuit Court or SCOTUS are limited to violations of due process, stare decisis and violations of the Constitution, conflicts between Circuit Courts excepted for the SCOTUS. All corrections are appreciated.

I think theoretically yes, but practically, as in this case, no. The facts of Miller's violation of the law were not in dispute. So the "fact finding" is not really that, but rather a matter how the law or Constitution is to be applied in the case at hand. That may take "evidence" of previous applications or of the intent of the framers, or some other fact that bears on the application of the law/Constitution to the facts in evidence.

Thus, I believe that if Miller and Layton had been represented, their attorney or attorney's could have introduced "evidence" that sort shotguns had been used for military/militia purposes.

But I'm not a lawyer, nor do I play one. I do have a daughter and son-in-law who *are* lawyers, but I've not asked them about it. I'll try to do so when next I see them, which will be in just under two weeks I think, although next weekend is a possibility as well, since the daughter often needs "relief" from caring for the 4 month old identical twins and the almost 3 year old daughter. :)

Your quick description of the jurisdiction of the Supreme Court to take cases is generally correct, plus it has a rare set of cases on Original Jurisdiction (per the text of the Constitution).

The Heller case is one of "conflict among the Circuits" since other Circuits than D.C. have held that the 2nd Amendment protects only a collective ("militia") right, whereas the D.C. Circuit ruled it was an individual right.

The Court should have taken the Emerson case from Texas, two years ago, on the same basis, because that was an "individual" rights ruling. But since there's no appeal above the Supreme Court, it can duck any case it is scared of, and no one can say otherwise. I think the change of Justice Alito for Justice O'Connor is why the Court took this case, and why it will decide in favor of an individual right.

Congressman Billybob

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