[The following paper was presented to the ICLU Board on behalf of the Commission on the 2nd Amendment and Gun Control which I chaired.]
"I would give the devil benefit of law for my own safety's sake." -- from A Man for All Seasons
The amendments we cherish as civil libertarians are not universally revered. We need a conceptual defense that is more than a mere affirmation that "these are the ones we like." If that defense derives from the Constitution, how do we legitimately exclude the Second Amendment? If we do so by emphasizing limiting language, we must logically use the same approach with all of the other amendments. It turns out that there are comparable or better arguments for minimizing other favorite amendments. For example, arguments for a limited reading of the establishment clause of the First Amendment -- limited to the Federal Government and not incorporated by the Fourteenth Amendment -- are stronger than the arguments for a limited, collective-right reading of the Second.
The Bill of Rights, as originally conceived, was an amalgam of citizens' rights and states' powers. This can be seen in the structure of the First Amendment. If we examine its text, we have the plain language, "Congress shall make no law respecting an establishment of religion ..." which can only be interpreted as prohibiting Congress -- the Federal Government -- from establishing religion. The events surrounding the drafting of what ultimately became the First Amendment support this interpretation. They further indicate that the intent of the Framers was to prohibit a single national establishment of religion, but not to interfere in any manner with state establishments nor to block non-preferential promotion of Christianity, in general, by the Federal Government.
In support of the view that the First Amendment and the establishment clause delineate states' rights in the manner of the Tenth Amendment, we have the following historical facts. At the outbreak of the Revolutionary War in 1775, there were established churches in 9 of 13 colonies. The Anglican Church was in Virginia, New York's lower counties, Maryland, South Carolina, North Carolina, and Georgia. The Congregational Church was established in Massachusetts, Connecticut, and New Hampshire. By the time of the Constitutional Convention in 1787, only Georgia, South Carolina, Connecticut, Massachusetts, and New Hampshire had retained their establishments. Elimination of established churches continued after ratification of the Constitution and Bill of Rights, culminating in the disestablishment of the Congregational Church in Connecticut in 1818, in New Hampshire in 1819, and in Massachusetts in 1833. If the purpose of the establishment clause had been universal disestablishment, how can this be squared with the continuance of state establishments for more than a generation past the ratification of the Bill of Rights?
A closer examination of the text of the establishment clause is in order. The word "respecting" means "concerning, regarding, about." In other words, the clause says only that Congress can make no law "concerning" or "about" an establishment. Because there was no national religious establishment in existence at the time of the First Amendment, it became unconstitutional for the Federal Government to provide one after ratification. In the August 15, 1789 debates surrounding what ultimately became the First Amendment, Roger Sherman of Connecticut is recorded as having argued that no amendment was required "inasmuch as Congress had no authority whatever delegated to them by the Constitution to make religious establishments ...." James Madison responded that the concern of those who argued for such an amendment was that the "necessary and proper" clause of Article I Sec. 8 might be used to "establish a national religion ...." Nowhere in the debates is it suggested that the Federal Government is pursuing disestablishment by the wording of the First Amendment, only that it is barred from establishing a national religion itself.
Notice also that the plain language says "an establishment" rather than "the establishment." This is an important distinction. Had the Framers chosen the latter wording, which would have emphasized the generic word "religion," it would be reasonable to conclude that they intended to prevent the promotion of religion over irreligion. The choice of the indefinite article, however, indicated that their intention was only to avoid promoting one sect, in particular, over all others. This, in fact, was explicitly stated by the Virginia Ratifying Convention when it proposed an amendment stating:
"[N]o particular religious sect or society ought to be favored or established, by law, in preference to others."
In the late eighteenth century, the inhabitants of the United States were overwhelmingly Christian. Sectarianism was not viewed the way it is today, as a conflict among differing religions (for example, Jews and Moslems). Rather, it was viewed in terms of the European experience where rival Christian sects engaged in warfare and genocides against their nominal co-religionists. Thus, the intent of the Framers, reflecting the thinking of the time, was to avoid promoting one Christian sect over all others but not to avoid promoting Christianity itself. For example, the same Congress that proposed the Bill of Rights also re-enacted the Northwest Ordinance of 1787 in 1789. One clause of the Ordinance explained why Congress set aside some of the Federal lands in the territory for schools.
"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged."At the time, church-run sectarian schools were the norm. The clause therefore implies that schools were expected to promote religion as well as morality.
Lest one conclude that the Northwest Ordinance was an anomaly, we have a long history of Federal support for Christian missionaries among the Native Americans. This continued for over a century, the last year being 1896 when Congress appropriated the then considerable sum of $500,000 for missionaries and sectarian schooling among Native American tribes. This support should come as no surprise. No less an authority on the Constitution than Supreme Court Justice Joseph Story, in his multi-volume Commentaries on the Constitution of the United States (2nd ed., 1851), had this to say about the First Amendment:
"The real difficulty lies in ascertaining the limits to which government may rightfully go in fostering and encouraging religion ....He also stated that the objective of the First Amendment was not to advance Islam, Judaism or "infidelity" by prostrating Christianity,
[T]he general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."
"but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government."
Lawrence Tribe, in his book, American Constitutional Law, attempts to address some of these problems. Tribe argues that the historical record is "ambiguous" and that it is "often futile" to seek the advice of the Framers in "too literal" a fashion. He then turns to the writings of Roger Williams, Thomas Jefferson, and James Madison, as exemplifying distinct schools of thought that influenced the drafters of the Bill of Rights2. Tribe's interpretive approach involves a very broad construction of the establishment clause and its accompanying free exercise clause. In his conclusion, Tribe acknowledges that the "actual history of the establishment clause may belie" the interpretation he offered:
"At least some evidence exists that, for the Framers, the establishment clause was intended largely to protect state religious establishments from national displacement."3In the accompanying footnote he goes on:
"Practice in the states seems to support this view. Until 1844, New Jersey limited full civil rights to Protestants. Pennsylvania and Maryland required belief in God of public office holders. Maryland until 1961. Connecticut taxed for the support of the Congregational establishment until 1818. The Massachusetts Constitution, until 1833, authorized towns to maintain ministers where voluntary contributions were inadequate; New Hampshire did so into the twentieth century...." 4
At this point, we are drawn to the ineluctable conclusion that interpreting the establishment clause as anything other than a states' right is extremely problematic so long as we construe it narrowly. And if it is a states' right, how then can it be incorporated by the Fourteenth Amendment and applied to the states?
While we have the legislative history and the statements of Senator Howard, Congressman Bingham, and other Framers of the Fourteenth Amendment to offer general guidance as to their intent (and as we shall see concerning the right to keep and bear arms clause of the Second, fairly specific guidance), we have nothing that reveals to us that this intent included incorporating the establishment clause. There is, in fact, evidence that contemporaries believed that the Fourteenth Amendment did not extend the establishment clause to the states. The Blaine Amendment of 1876 was proposed because its supporters believed just that. The Blaine Amendment would have added an amendment that, "[n]o state shall make any law respecting the establishment of religion ...."
In summary, historical evidence supports the view that the First Amendment is a federalism provision that limits Federal power but not states' power to establish religion. Establishment in the Federal context was viewed as not restricting the non-preferential promotion of Christianity, as exemplified by the actions of Congress, which continuously supported Christianity in territory under its jurisdiction, before, during, and after the ratification of the Fourteenth Amendment. Because the First Amendment's establishment clause is a states' right, it does not incorporate under the Fourteenth Amendment and this understanding led to the attempted remedy of the Blaine Amendment of 1876.
As civil libertarians, we should not lose sight of the central importance of the Fourteenth Amendment to our advocacy of civil rights under the U.S. Constitution. Consider, for a moment, what the role of the ICLU would be if the Fourteenth Amendment didn't exist. There would be no Civil Rights Law, and all of our litigation under that umbrella would disappear. We would have to rely totally upon the Indiana Constitution and a few slivers of the U.S. Constitution5. In matters related to establishment (school prayer, for example), we would find ourselves in a nearly equivalent position if the establishment clause weren't incorporated. And, as we have seen, the case that the establishment clause is a states' right and doesn't incorporate is quite strong.
We are faced with a serious dilemma. If we eschew the kind of narrow construal of constitutional provisions that is so problematic for the First Amendment, how then do we keep out the Second Amendment? Conversely, if we embrace a narrow construction in order to keep the Second Amendment out, how do we keep the First Amendment in? Yale law professor Akhil Amar summed the matter up thusly:
"Whatever the reasons for reading the Second Amendment as a states' right, analogous to the Tenth, there are more powerful reasons for so reading the establishment clause, which has already been incorporated."6
Unlike the establishment clause, the right to keep and bear arms clause was the subject of much discussion and legislation by the Framers of the Fourteenth Amendment. In the next section I will offer some of the evidence that they saw the Second Amendment as an individual right which was to be protected by the Federal Government under the powers granted by the Fourteenth Amendment.
As the Second Amendment Commission has pointed out, the history of the Fourteenth Amendment, the public statements of its sponsors, and the subsequent legislation pursuant to the Fourteenth, all indicate that one purpose was to protect the right to keep and bear arms of Unionists and freed Blacks under the Second Amendment so that they could defend their lives and their property. State courts demonstrably could not be counted on to protect the rights of U.S. citizens.
Abuses of the Southern state militias against freed Blacks and Union sympathizers led in 1866 to calls for Congress to act to disband the militias. These abuses included disarming Blacks and Unionists making them easy prey for mobs. In debates over the bills, concern was expressed that disarming the state militias would be unconstitutional because this, in principle, meant disarming everyone. This concern prevailed and thus, the law that ultimately passed (1867) disbanded certain state militia organizations but did not disarm individuals. This indicated that the Second Amendment was viewed by the same Congress that voted on the Fourteenth Amendment as primarily an individual right that even overrode the secondary right of a state to have a militia.
Subsequently the question of the constitutionality of disbanding the Southern militias arose and there was a call for repealing the earlier act. That argument took the view that the disbanding act actually operated to allow the Federal government under the control of Republicans to arm a select militia to further the political interests of its allies in the Southern states. However, the main arguments revolved around reserved state powers and significantly, not the Second Amendment.
What was revealing about this process was:
Other legislation from 1866 included the Freedman's Bureau Bill. Part of its legislative purpose -- written in the text -- was to give Blacks the, "full and equal benefit of all laws and proceedings for security of person and estate including the constitutional right of bearing arms."
Following the ratification of the Fourteenth Amendment on July 9, 1868, Congress had more to say about the right to keep and bear arms. The Civil Rights Act of 1871 (anti-Klan Act) was the lineal progenitor of 42 USC Sec. 1983. Extensive debate surrounding this law focused on the disarming and terrorizing of Blacks and Republicans. Counterclaims were made by Southern Democrats that Black militias disarmed whites in violation of the individual's right to keep and bear arms. The Congressional KKK Hearings report was issued in 1872 in 13 volumes. The index to volumes 8 & 9 refers to 20 pages under the topic, Arms, colored people deprived of. Subsequently, a number of defendants were indicted under the First Enforcement Act (1870)8 and charged with conspiring "to deprive citizens of the right to have and bear arms, and to deprive them of the possession of arms as well as to prevent them from voting."
The foregoing is a short recital of just some of the evidence that the Framers of the Fourteenth Amendment considered the right to keep and bear arms to be an individual right and that it was to be incorporated by the new amendment. So, in addition to the evidence already presented by the Second Amendment Commission that the Framers of the Second Amendment believed it to be an individual right, we can add that this view still prevailed after the Civil War.
At the beginning of this piece, I offered a quote from Robert Bolt's play, A Man for All Seasons. It has a certain sentimental resonance for me: I first used it thirteen years ago when, as the new president of the Bloomington ACLU chapter, I was asked by a TV interviewer to sum up what I thought the ACLU was all about. I think it is just as apposite today as it was then. A reductionist construction of amendments in which possible limiting language is maximized, may result in no individual right to keep and bear arms but it does result in no establishment clause with respect to the states. In other words, we have to give the Second Amendment the benefit of an expansive interpretation of constitutional protections for the sake of the other amendments, like the First, that are important to us.
The Second Amendment Commission reiterates its view that a progressive reading of the Second Amendment is to focus on the right of self-defense -- clearly the interpretation of the Second given by the Framers of the Fourteenth Amendment. We urge the ICLU board to acknowledge that the Second Amendment protects an individual right.
Regarding the matter of "reasonable" regulation, at least some scholars, including Don Kates and Akhil Amar9, see no constitutional problem with carry permits or registration. However, as the Alabama Supreme Court opined:
"A statute which, under the pretense of regulating, amounts to destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional."No consensus emerged from the Commission as to what specific regulations we would consider acceptable. However, if language similar to the foregoing were part of a final position, we would have no quarrel with it.