The Fourteenth Amendment, which was allegedly ratified by several States on July 9, 1868, [EN-2] states in part:
The legislative origin of this part of the Fourteenth Amendment can be traced to the Joint Committee on Reconstruction. Following the War Between the States, Congress appointed a Committee to report "by bill or otherwise" whether the Confederate States "are entitled to be represented in either House of Congress." The Committee had a broad mission and began its work by drafting constitutional amendments that would outline the plan of reconstruction.
On January 12, 1866, a subcommittee submitted a "proposed amendment to the Constitution." Representative Bingham delivered the report of the Committee:
The Committee rejected this proposal, but it formed the basis for subsequent proposals. During the following months, additional proposals were considered but were also rejected.
The proposal that became Section 1 of the Fourteenth Amendment was submitted by Congressman Bingham and agreed to by the Committee on April 28, 1866.
Representative Stevens, speaking for the Committee, introduced the proposed amendment in the House of Representatives on May 8, 1866:
On May 23, 1866, Senator Howard of Michigan introduced the proposal in the Senate. In a 1994 Duke Law Journal article, William Van Alstyne and his associates wrote the following concerning Senator Howard's remarks:
Senator Howard referred to the right enumerated in the Second Amendment as a personal right of the people, not a collective right of the States. He concluded his remarks by stating:
His statement that the "great object of this first section of this amendment is...to restrain the power of the States and compel them at all times to respect these great fundamental guarantees" proves the Second Amendment cannot be a "collective right" of the States. Fundamental guarantees pertain to the rights of the people, not so-called "collective rights" of the States. It should be noted that during this debate, there was no objection to Senator Howard's description of this part of the Fourteenth Amendment.
In 1871, a bill was before the House of Representatives that contemplated enforcement of the Fourteenth Amendment. Mr. Garfield, who had participated in the debates on the Amendment in 1866, stated these debates would be historic because they would settle the meaning of Section 1 of the Fourteenth Amendment:
A few days earlier, in a debate on the same bill, Representative Bingham, still a member of House, gave a lengthy explanation of the purpose of the Fourteenth Amendment as he had originally conceived it:
He continued his remarks by stating that the first eight Amendments "never were limitations upon the power of the States, until made so by the fourteenth amendment."
It is a cardinal principle of statutory construction that the intent of the lawmaker constitutes the law. This principle also applies to constitutional law. In this case, we have a direct quote from the individual who framed the wording of the first section of the Fourteenth Amendment - "letter for letter syllable for syllable." The intent of Section 1 of the Fourteenth Amendment, as stated by its author, was to make the limitations enumerated in the first eight amendments of the Bill of Rights applicable to the States. Thus, from a constitutional standpoint, adoption of the Fourteenth Amendment made the restraint contained in the Second Amendment, concerning the individual right to keep and bear arms, enforceable against every State in the Union.
The intent of Section 1 of the Fourteenth Amendment disproves the "collective right" interpretation of the Second Amendment. The Brady Campaign contends the Second Amendment was adopted "to prevent the federal government from disarming the State militias."
If this was an accurate statement, then Congressman Bingham could not have included a "collective right" Second Amendment in the limitations of Section 1. He would have had to omit it because this provision prevents the States from infringing the rights of the people.
As stated by Congressman Bingham, the intent of Section 1 of the Fourteenth Amendment was to extend the limitations enumerated in the first 8 amendments to the individual State governments. [EN-3] If the Second Amendment was adopted "to prevent the federal government from disarming the State militias," as the Brady Campaign asserts, then Section 1 of the Fourteenth Amendment extended this prohibition to the individual States. In other words, this provision would bring into play the limitations of the Second Amendment to prevent the States from disarming themselves. In addition, it would give the federal government the power to prevent the States from disarming themselves. The absurdity of this can be seen by the following example. If a State like Nevada attempted to disarm its militia, this section would give Nevada standing to go to federal court and sue Nevada to prevent Nevada from disarming itself.
As shown above, the original intent of Section 1 of the Fourteenth Amendment was to grant the people a remedy against a State in the event it attempted to violate the prohibitions enumerated in the first 8 Amendments to the Bill of Rights. Thus, the right enumerated in the Second Amendment has to be an individual right because Section 1 of the Fourteenth Amendment does not grant a State a remedy against itself or the actions of the federal government.
EN-1. This article is a re-write of an article I wrote for another publication in 2003 entitled: Firearms and the Fourteenth Amendment.
EN-2. For an interesting article asserting that the Fourteenth Amendment was not properly ratified, see: "There is No "Fourteenth Amendment!" by David Lawrence, U.S. News & World Report, September 27, 1957.
reader will note that the authors of the Fourteenth Amendment stated the
first 8 Amendments in the Bill of Rights were restraints on the powers
of the federal government. It was never asserted that the Amendments granted
the people any rights. See paragraph 1 of the preamble to the Bill of
Rights to understand the original intent of the Amendments.
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Greenslade focuses his writing on issues surrounding the federal government
and the Constitution. He believes politicians at the federal level, through
ignorance or design, are systematically dismantling the Constitution in
an effort to expand their power and consolidate control over the American
people. He has dedicated himself to resurrecting the true intent of the
Constitution in the hope that the information will contribute, in some
small way, to restoring the system of limited government established by
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob
Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the constitution. Mr. Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.