McDonald v. Chicago (Alito)

17 Oct

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pp. 46, 140, pt. 4, pp. 49–-50 (1866); see also S. Exec. Doc.
No. 2, 39th Cong., 1st Sess., 23-–24, 26, 36 (1865). In one
town, the “”marshal [took] all arms from returned colored
soldiers, and [was] very prompt in shooting the blacks
whenever an opportunity occur[red].”” H. R. Exec. Doc.
No. 70, at 238 (internal quotation marks omitted). As
Senator Wilson put it during the debate on a failed pro-
posal to disband Southern militias: “”There is one unbroken
chain of testimony from all people that are loyal to this
country, that the greatest outrages are perpetrated by
armed men who go up and down the country searching
houses, disarming people, committing outrages of every
kind and description.”” 39th Cong. Globe 915 (1866).20

Union Army commanders took steps to secure the right
of all citizens to keep and bear arms,21 but the 39th Con-
—————— ——————-
20 Disarmament by bands of former Confederate soldiers eventually
gave way to attacks by the Ku Klux Klan. In debates over the later
enacted Enforcement Act of 1870, Senator John Pool observed that the
Klan would “”order the colored men to give up their arms; saying that
everybody would be Kukluxed in whose house fire-arms were found.”” 
Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc.
No. 268, 42d Cong., 2d Sess., 2 (1872).
21 For example, the occupying Union commander in South Carolina
issued an order stating that “”[t]he constitutional rights of all loyal and
well disposed inhabitants to bear arms, will not be infringed.”” General
Order No. 1, Department of South Carolina, January 1, 1866, in 1
Documentary History of Reconstruction 208 (W. Fleming ed. 1950).
Union officials in Georgia issued a similar order, declaring that “ “‘‘[a]ll
men, without the distinction of color, have the right to keep arms to
defend their homes, families or themselves.’'” ” Cramer, ““This Right is
Not Allowed by Governments That Are Afraid of The People””: The
Public Meaning of the Second Amendment When the Fourteenth
Amendment was Ratified, 17 Geo. Mason L. Rev. 823, 854 (2010)
(hereinafter Cramer) (quoting Right to Bear Arms, Christian Recorder,
Feb. 24, 1866, pp. 1-–2). In addition, when made aware of attempts by
armed parties to disarm blacks, the head of the Freedmen’’s Bureau in
Alabama “”made public [his] determination to maintain the right of the
negro to keep and to bear arms, and [his] disposition to send an armed
force into any neighborhood in which that right should be systemati-

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gress concluded that legislative action was necessary. Its
efforts to safeguard the right to keep and bear arms
demonstrate that the right was still recognized to be
fundamental.

The most explicit evidence of Congress’’ aim appears in
§14 of the Freedmen’’s Bureau Act of 1866, which provided
that ““the right . . . to have full and equal benefit of all laws
and proceedings concerning personal liberty, personal
security, and the acquisition, enjoyment, and disposition of
estate, real and personal, including the constitutional
right to bear arms, shall be secured to and enjoyed by all
the citizens . . . without respect to race or color, or previ-
ous condition of slavery.”” 14 Stat. 176-–177 (emphasis
added).22 Section 14 thus explicitly guaranteed that ““all
the citizens,”” black and white, would have “”the constitu-
tional right to bear arms.””

The Civil Rights Act of 1866, 14 Stat. 27, which was
considered at the same time as the Freedmen’’s Bureau
Act, similarly sought to protect the right of all citizens to
keep and bear arms.23 Section 1 of the Civil Rights Act
—————— —————-
cally interfered with.”” Joint Committee on Reconstruction, H. R. Rep.
No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866).
22 The Freedmen’’s Bureau bill was amended to include an express
reference to the right to keep and bear arms, see 39th Cong. Globe 654
(Rep. Thomas Eliot), even though at least some Members believed that
the unamended version alone would have protected the right, see id., at
743 (Sen. Lyman Trumbull).
23 There can be do doubt that the principal proponents of the Civil
Rights Act of 1866 meant to end the disarmament of African Americans
in the South. In introducing the bill, Senator Trumbull described its
purpose as securing to blacks the “”privileges which are essential to
freemen.”” Id., at 474. He then pointed to the previously described
Mississippi law that “”prohibit[ed] any negro or mulatto from having
fire-arms”” and explained that the bill would “”destroy”” such laws. Ibid.
Similarly, Representative Sidney Clarke cited disarmament of freed-
men in Alabama and Mississippi as a reason to support the Civil Rights
Act and to continue to deny Alabama and Mississippi representation in
Congress: “”I regret, sir, that justice compels me to say, to the disgrace

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