The History the Majority and Dissent Both Get Wrong in District of Columbia v. Heller

The majority and dissenting opinions today in District of Columbia v. Heller illustrate perfectly why it is important to marry constitutional text with history rather than divorcing these inquiries.

The most powerful history cited by Justice Scalia’s majority opinion in favor of an individual’s right to bear arms comes from the period immediately after the Civil War when the 14th Amendment to the Constitution was being debated. Many Reconstruction Republicans believed deeply that the right to bear arms should be extended to the freemen so they could defend themselves, their families, and their property against the hostile state governments and roving bands of armed ex-Confederates.

This history is powerful stuff – strong enough perhaps to turn the heads of some who currently oppose gun rights – but it has no place in Scalia’s opinion, which is focused entirely on the original meaning of the Second Amendment. Justice Stevens is correct when he points out in this “post-enactment” history of the Second Amendment is “entitled to limited, if any, weight.”

The problem is that after challenging the relevance of Scalia’s history, Justice Stevens makes an effort to dispute Scalia’s account, and this is where the justices collectively do the nation a disservice.

Consider the bloodless discussion in Heller of the Court’s opinion in United States v. Cruikshank. Both Scalia and Stevens discuss Cruikshank at length and argue that the case supports their desired outcomes, without ever making the important point that Cruikshank ranks with Dred Scott and Plessy v. Ferguson as one of the most vile cases in Supreme Court history.

The Court in Cruikshank dismissed federal charges brought against the leaders of a white mob that murdered dozens of freedmen during the 1873 Colfax Massacre. First, the Court held that the protections of the Bill of Rights, such as the First Amendment’s right to assemble and the Second Amendment were “not intended to limit the powers of the State governments in respect to their own citizens.” In modern lingo, the Court rejected the argument that the 14th Amendment “incorporated” the Bill of Rights against the States.

Second, the Court limited the federal government’s power under the 14th Amendment to State action, meaning, effectively, that the federal government was powerless to combat the activities of the Ku Klux Klan and similar “private” organizations.

Cruikshank left the freedmen to the mercy of increasingly hostile governments in Southern states and ushered in Jim Crow. The Colfax Massacre stands, as the title of Charles Lane’s recent book indicates, as “The Day Freedom Died.”

This nation desperately needs a Supreme Court that is willing to revisit the text and history of the Reconstruction Amendments and fully expunge the grievous errors made by the Reconstruction Court in cases like Cruikshank, some of which remain uncorrected today. Unfortunately, Heller indicates that the current justices are more concerned with scoring points in smaller disputes.

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