Incorporation of DC v. Heller

There are many that have said that the Supreme Court decision in DC v. Heller only affects Federal laws and did not address incporation—the application of the Federal law to the laws of the states. However, the decision cited the role of the Second Amendment in arguments for ratifying the Fourteenth Amendment on pages 43 and 44:

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill [the Freedman's Bureau Act], with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).
Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

If the Second Amendment was a impetus to pass the Fourteenth Amendment in order to incorporate the right into all of the states, clearly today's decision affects state laws as well.

Josh Poulson

Posted Thursday, Jun 26 2008 11:03 AM

Adjacent entries


« DC v. Heller Affirmed
Is Chicago Next? »





To track back to this entry, ping this URL:

There are no trackbacks on this entry.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)



Affiliate advertising

Basecamp project management and collaboration

Backpack: Get Organized and Collaborate