27
guaranteed the ”full and equal benefit of all laws and
proceedings for the security of person and property, as is
enjoyed by white citizens.” Ibid. This language was vir-
tually identical to language in §14 of the Freedmen’s
Bureau Act, 14 Stat. 176-177 (“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”).
And as noted, the latter provision went on to explain that
one of the “laws and proceedings concerning personal
liberty, personal security, and the acquisition, enjoyment,
and disposition of estate, real and personal” was “the
constitutional right to bear arms.” Ibid. Representative
Bingham believed that the Civil Rights Act protected the
same rights as enumerated in the Freedmen’s Bureau bill,
which of course explicitly mentioned the right to keep and
bear arms. 39th Cong. Globe 1292. The unavoidable
conclusion is that the Civil Rights Act, like the Freedmen’s
Bureau Act, aimed to protect ”the constitutional right to
bear arms” and not simply to prohibit discrimination. See
also Amar, Bill of Rights 264-265 (noting that one of the
“core purposes of the Civil Rights Act of 1866 and of the
Fourteenth Amendment was to redress the grievances” of
freedmen who had been stripped of their arms and to
“affirm the full and equal right of every citizen to self-
defense”).
Congress, however, ultimately deemed these legislative
——————–
of the Federal Government, that the ‘reconstructed’ State authorities of
Mississippi were allowed to rob and disarm our veteran soldiers and
arm the rebels fresh from the field of treasonable strife. Sir, the dis-
armed loyalists of Alabama, Mississippi, and Louisiana are powerless
to-day, and oppressed by the pardoned and encouraged rebels of those
States. They appeal to the American Congress for protection. In
response to this appeal I shall vote for every just measure of protection,
for I do not intend to be among the treacherous violators of the solemn
pledge of the nation.” Id., at 1838-1839.
28
remedies insufficient. Southern resistance, Presidential
vetoes, and this Courts pre-Civil-War precedent per-
suaded Congress that a constitutional amendment was
necessary to provide full protection for the rights of
blacks.24 Today, it is generally accepted that the Four-
teenth Amendment was understood to provide a constitu-
tional basis for protecting the rights set out in the Civil
Rights Act of 1866. See General Building Contractors
Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389 (1982); see
also Amar, Bill of Rights 187; Calabresi, Two Cheers for
Professor Balkins Originalism, 103 Nw. U. L. Rev. 663,
669-670 (2009).
In debating the Fourteenth Amendment, the 39th Con-
gress referred to the right to keep and bear arms as a
fundamental right deserving of protection. Senator Sam-
uel Pomeroy described three “indispensable” “safeguards
of liberty under our form of Government.” 39th Cong.
Globe 1182. One of these, he said, was the right to keep
and bear arms:
Every man . . . should have the right to bear arms
for the defense of himself and family and his home-
stead. And if the cabin door of the freedman is broken
open and the intruder enters for purposes as vile as
were known to slavery, then should a well-loaded
musket be in the hand of the occupant to send the pol-
luted wretch to another world, where his wretched-
ness will forever remain complete.” Ibid.
Even those who thought the Fourteenth Amendment
unnecessary believed that blacks, as citizens, ”have equal
——————-
24 For example, at least one southern court had held the Civil Rights
Act to be unconstitutional. That court did so, moreover, in the course of
upholding the conviction of an African-American man for violating
Mississippi’s law against firearm possession by freedmen. See Decision
of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitu-
tional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3.