« 14th Amendment: "privileges and immunities" | Main | Joyce Foundation »
Akhil Amar and the right to arms
In a symposium hosted by the American Enterprise Institute, Prof. Akhil Amar of Yale (probably the top 14th Amendment expert in the world) outlined his view of the right to arms. I've got video of the event, and will be posting a page on it soon.
Amar's thesis:
1. The right to arms starts out as an individual but rather "communitarian" right. The focus of the framers is on the citizenry as a whole being armed, and their ability to topple any possibly tyranny. The community acting as a body, probably under the guidance of state governments.
2. The 14th Amendment framers had a somewhat different viewpoint. The former Confederacy was disarming blacks and union veterans to make them vulnerable to Klan terror. "When guns are outlawed, only the Klan will have guns." They wanted citizens armed so as to be individually able to defend against violence, to defend their homes, even if the criminal violence came from State governments. Thus the 14th converted a communitarian sort of right into the quintessential individual right.
Ah--here's Amar's great book. Best right to arms discussion is around p. 264. "But a gun was far more than a badge [of freedom]. Even free blacks (to say nothing of slaves) had suffered unspeakable violence ... and in the wake of Emancipation, many southern governments forbade gun ownership among blacks but not whites. Blacks immediately sensed the grave threat posed by this aspect of the slave codes and took quick action....One of the core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances of this and other petitions, outlaw the infamous Black Codes, and affirm the full and equal right of every citizen to self-defense. Thus in introducing the Civil Rights Bill ... Lyman Trumbull explicitly took aim at a Mississsippi law that prohibited 'any black or mulatto from having firearms.'"
In Q&A, one fellow asked--does this mean the right to arms is broader against states than against the fed, since the 14th says that no State may infringe these privileges and immunities of US citizenship?
Amar replied no -- the framers of the 14th had to say that States couldn't, because the Court had said back in Barron v. Baltimore that the Federal bill of rights didn't apply to the States. The framers had to overrule that. They didn't need to say the US government couldn't infringe the privileges and immunities of US citizens, because that was obvious by definition.