McDonald v. Chicago (Alito)

29

 

right to protection, and to keep and bear arms for self-
defense.” Id., at 1073 (Sen. James Nye); see also Foner
258–-259.25

Evidence from the period immediately following the
ratification of the Fourteenth Amendment only confirms
that the right to keep and bear arms was considered fun-
damental. In an 1868 speech addressing the disarmament
of freedmen, Representative Stevens emphasized the
necessity of the right: ““Disarm a community and you rob
them of the means of defending life. Take away their
weapons of defense and you take away the inalienable
right of defending liberty.”” “”The fourteenth amendment,
now so happily adopted, settles the whole question.””
Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating
the Civil Rights Act of 1871, Congress routinely referred to
the right to keep and bear arms and decried the continued
disarmament of blacks in the South. See Halbrook,
Freedmen 120-–131. Finally, legal commentators from the
period emphasized the fundamental nature of the right.
See, e.g., T. Farrar, Manual of the Constitution of the
United States of America §118, p. 145 (1867) (reprint
1993); J. Pomeroy, An Introduction to the Constitutional
Law of the United States §239, pp. 152–-153 (3d ed. 1875).
The right to keep and bear arms was also widely pro-
tected by state constitutions at the time when the Four-
teenth Amendment was ratified. In 1868, 22 of the 37
States in the Union had state constitutional provisions
—————— ——————–
25 Other Members of the 39th Congress stressed the importance of the
right to keep and bear arms in discussing other measures. In speaking
generally on reconstruction, Representative Roswell Hart listed the
“‘‘right of the people to keep and bear arms'” ” as among those rights
necessary to a ““republican form of government.”” 39th Cong. Globe
1629. Similarly, in objecting to a bill designed to disarm southern
militias, Senator Willard Saulsbury argued that such a measure would
violate the Second Amendment. Id., at 914-–915. Indeed, the bill
““ultimately passed in a form that disbanded militias but maintained
the right of individuals to their private firearms.”” Cramer 858.

30 

explicitly protecting the right to keep and bear arms. See
Calabresi & Agudo, Individual Rights Under State Consti-
tutions when the Fourteenth Amendment was Ratified in
1868: What Rights Are Deeply Rooted in American His-
tory and Tradition? 87 Texas L. Rev. 7, 50 (2008).
26 Quite a few of these state constitutional guarantees, moreover,
explicitly protected the right to keep and bear arms as an
individual right to self-defense. See Ala. Const., Art. I,
§28 (1868); Conn. Const., Art. I, §17 (1818); Ky. Const.,
Art. XIII, §25 (1850); Mich. Const., Art. XVIII, §7 (1850);
Miss. Const., Art. I, §15 (1868); Mo. Const., Art. I, §8
(1865); Tex. Const., Art. I, §13 (1869); see also Mont.
Const., Art. III, §13 (1889); Wash. Const., Art. I, §24
(1889); Wyo. Const., Art. I, §24 (1889); see also State v.
McAdams, 714 P. 2d 1236, 1238 (Wyo. 1986). What is
more, state constitutions adopted during the Reconstruc-
tion era by former Confederate States included a right to
keep and bear arms. See, e.g., Ark. Const., Art. I, §5
(1868); Miss. Const., Art. I, §15 (1868); Tex. Const., Art. I,
§13 (1869). A clear majority of the States in 1868, there-
fore, recognized the right to keep and bear arms as being
among the foundational rights necessary to our system of
Government.27
—————— ———————–
26 More generally worded provisions in the constitutions of seven
other States may also have encompassed a right to bear arms. See
Calabresi & Agudo, 87 Texas L. Rev., at 52.
27 These state constitutional protections often reflected a lack of law
enforcement in many sections of the country. In the frontier towns that
did not have an effective police force, law enforcement often could not
pursue criminals beyond the town borders. See Brief for Rocky Moun-
tain Gun Owners et al. as Amici Curiae 15. Settlers in the West and
elsewhere, therefore, were left to ““repe[l] force by force when the
intervention of society . . . [was] too late to prevent an injury.”” District
of Columbia v. Heller, 554 U. S. ___ , ___ (2008) (slip op., at 21) (inter-
nal quotation marks omitted). The settlers’’ dependence on game for
food and economic livelihood, moreover, undoubtedly undergirded these
state constitutional guarantees. See id., at ___, ___, ___ (slip. op, at 26,

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