THE  FOUNDING  FATHERS  AND  THE  ORIGIN  OF  GUN  CONTROL IN  AMERICA

Chapter 6  continued

INDIVIDUAL   OR   COLLECTIVE   RIGHT

THE SECOND AMENDMENT BEFORE THE COURTS

In response to heightened violence in the South, Congress enacted a series of Enforcement Acts beginning in 1870. The third act, dubbed the Ku Klux Klan Act, criminalized conspiracies against the civil rights of citizens and empowered the president to use military force to suppress violence. Under the act, the federal government was given broad new powers to arrest and detain suspects. The newly organized Department of Justice headed by Attorney General Amos Akerman was given the task of prosecuting the large number of cases the Enforcement Acts generated. South Carolina became a testing ground for Akermans aggressive strategy of civil rights enforcement. Akerman, a southerner who had fought for the Confederacy but then embraced the Republican cause after the war, toured South Carolina and consulted extensively with U.S. Attorney Daniel Corbin. To assist them, Major Lewis Merrill of the U.S. Army prepared a detailed report that documented the outrages that the Klan had committed in South Carolina. Based on the recommendations of Merrill and Akerman, President Ulysses S. Grant issued an executive order empowering federal officials to arrest and detain large numbers of Klansmen.22

In preparation for what became known as the Klan trials, Corbin deposed at least three hundred Klansmen and at least as many freedmen. After reviewing these statements, Corbin concluded they revealed "a state of things quite as bad, if not worse, than any of us then anticipated." Indeed, he noted plaintively, "these confessions and statements exhibit a catalogue of crimes probably never surpassed, if equaled, in the history of any country. No person can have an adequate idea of their enormity without carefully perusing these statements.

In consultation with Attorney General Akerman, Corbin recommended that the prosecution explore violations of Second Amendment rights when framing their case against the Klan. "It happens that in connection with all the whippings and murders, in this county nearly the arms of the negroes were seized and appropriated by" the Klan. Corbin intended to bring indictments "charging a conspiracy to injure, oppress, etc., a citizen of the United States, with intent to prevent and hinder his free exercise and enjoyment of a right and privilege secured to him by the Constitution of the United States," namely, "the right to keep and bear arms." Using the Second Amendment as the basis for a federal prosecution was a novel strategy and Corbin actively sought out Akerman s advice on how best to proceed. In his response to Corbin s query, Akerman pondered the constitutional questions that the Klan s campaigns of terror and attempts to disarm blacks posed. Akerman confessed doubts about the ability to sustain a claim about a general right of personal security under the Constitution: "I do not feel quite certain that the right to be secure in one's person et cet., as that language is used in the Constitution, is violated by an irregular and unofficial seizure." On the Second Amendment issue, Akerman was far more confident, declaring, "Upon the right to bear arms, I think you are impregnable." The Klan had seized guns given to the Negro militia by the state of South Carolina, and the two Republican lawyers concluded that this gave them an unassailable Second Amendment claim to take before the courts.24

Rather than seek indictments against all of those arrested under the Enforcement Act, .Corbin and Akerman resolved to prosecute a select number of leading Klan members. The first of these Second Amendment cases, U.S. v. Avery, became embroiled in technical questions about the authority of the federal courts to prosecute murder, a crime which the defense argued was only punishable under the laws of South Carolina and hence ought to be tried in state, not federal, court. Hugh Lennox Bond, a moderate Republican from Maryland, and George S. Bryan, a conservative Democrat, former slaveholder, and secessionist appointed by Andrew Johnson, heard the case. The judges divided over the complicated issues of federal jurisdiction. This disagreement triggered a review by the Supreme Court.25

With the disposition of the federalism issue in Avery awaiting resolution by the Supreme Court, Corbin and Akerman proceeded with their plan to use the Klan prosecutions to push their belief that the Fourteenth Amendment had incorporated the Second Amendment as a civic right. The next Klan case, 17.5. v. Mitchell, focused on the intimidation and brutal murder of Negro militia Captain Jim Williams. The government charged that the Klan had been engaged in a conspiracy to deprive Williams of his constitutional right to bear arms and to intimidate him and thereby prevent his exercise of his constitutional right to vote.26

During the trial, Corbin faithfully followed the strategy he had worked out with Akerman. A key element in the case was the Klan s violation of the right to bear arms. Corbin highlighted this issue in his opening address, when he declared that "if there is any right that is dear to the citizen, it is the right to keep and bear arms," a protection "secured to the citizen of the United States on the adoption of the Amendments to the Constitution." The issue of incorporation was dealt with explicitly by Corbin. He noted the U.S. Supreme Court had settled the issue of whether the federal Bill of Rights was binding on the states in the antebellum case of Barron v. Baltimore. Having conceded that Barron's ruling denied federal authority to protect the rights of citizens against state action, Corbin went on to assert that the Fourteenth Amendment "changes all that theory, and lays the same restrictions upon the States that before lay upon the Congress of the United States." Corbin then explained how members of the Klan had attempted to disarm members of the Negro militia. Imagine, if you like—but we have not to draw upon the imagination for the facts—a militia company, organized in York County, and a combination and conspiracy to rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State Government. Is not that a conspiracy to defeat the right of the citizens, secured by the Constitution of the United States, and guaranteed by the Fourteenth amendment?27

Corbin's opening address logically and succinctly stated the government's theory of the Second Amendment as a militia-based, civic right. The defense objected to Corbin's effort to make the Second Amendment central to the case. Henry Stanbery one of the distinguished team of constitutional lawyers Democrats procured to defend the Klan and champion the cause of states' rights, presented a different view of the meaning of the Fourteenth Amendment. Stanbery's resume was impressive; he had served as Andrew Johnsons attorney general and. defended the president during his impeachment trial. Stanbery denied that the right to bear arms was one of the privileges and immunities of citizenship protected by the Fourteenth Amendment. Echoing what had become a mantra among postwar Democrats, he argued that the Fourteenth Amendment had minimal impact on the legal meaning of the Second Amendment; he argued that the amendment was merely "a restriction upon Congress" and that "it is one of the rights of the State."28

Reverdy Johnson, cocounsel for the defense, had an equally impressive career before the bar and in politics. Johnson had been a U.S. senator and had argued the Dred Scott case before the Supreme Court. Johnson was even more aggressive in challenging the prosecution's Second Amendment claims. Not only was the right to bear arms subject to a wide variety of restraints by the state when public safety demanded such limitations, but he claimed that it was also entirely within the state's police power to determine 'whether any particular class should be permitted to bear arms, and every other class denied the privilege." In his view there was no universal right to bear arms as part of the militia.29

The Democrats defending the Klan took advantage of an earlier ruling by the two judges in Avery, the case pending before Supreme Court. In that earlier Klan case, the judges had ruled exactly as Akerman had predicted they 'would; the court concluded that "the right to be secure in one's house is not a right derived from the Constitution, but it existed long before the adoption of the Constitution,  at common law, and cannot be said to come within the meaning of the words of the act, right, privilege, or immunity." The judges' ruling did not directiy address the meaning of the right of individual self-defense, but it appeared to adopt the orthodox legal view of the matter, treating the common-law right of self-defense as legally distinct from the constitutional right to bear arms in a well-regulated militia. Building on the judges' ruling in Avery and his own cocounsel's argument that bearing arms was distinct from the right of self-defense, Johnson developed a bold argument. It was the Klansmen, not the Negro militia, who had acted in self-defense. The Negro militia were intent on visiting death and destruction on southern whites. The actions of the Klan, Johnson claimed, were not only rational, but also entirely legal. In essence, Johnson s strategy invoked the common-law right of self-defense to challenge Corbin's assertion of a Second Amendment claim. The Klan s right of self-defense trumped the constitutional right of citizens to bear arms as part of the militia.30

Asserting a self-defense argument on behalf of the Klan required Stanbery and Johnson to prove that it was the Negro militia who were the aggressors. Williams, the murder victim, was portrayed by the defense as "a dangerous character, and a violent man." Whites felt threatened by Williams, who "commanded this company, and had a formidable force under him, armed with the best arms of the day/' According to Stanbery's account of events, Williams "threatened again, and again, injuries to whites," including an ominous boast to kill "from the cradle to the grave." Rather than mount an aggressive campaign against the Negro militias, Stanbery claimed the Klan acted defensively. Until the arming of these militias, he argued, there had been no Klan in this region of South Carolina.31

Corbin's frustration with the judge's refusal to address his Second Amendment claims was palpable. The lack of a definitive judgment on this key point of law left him deeply irritated. He declared that the "conspiracy to deprive citizens of the right to have and bear arms" was key to the government's case, and he vowed, "We will never abandon it until we are obliged to." Corbin pressed the issue, reminding the court, "We are waiting the decision of the Court on the count as to the right of bearing arms; I might as well say here, that we regard it as one of the vital grounds of the prosecution." Judge Bond replied curtly: "The Court is not ready to give you an opinion on that subject now."32

The court's refusal to decide on the Second Amendment issue left the prosecution in a difficult situation. They would have to expend considerable time and energy laying out their theory of a clear Second Amendment violation knowing that the judges might declare this part of their case inadmissible. Although the status of the Second Amendment claim remained in constitutional limbo, pending the court's final determination, the issue of the right to bear arms figured as a major theme in both the defense's and prosecution's accounts of the events leading up to Williams's murder. Corbin did his best to portray Williams as a sober citizen and a fearless soldier, whose only mistake was his unwillingness to bow to the Klan's campaign of terror. The Klan's lawyers cast Williams as a ruthless desperado who had been well armed by corrupt Republican politicians who let him terrorize whites in the countryside.33

Corbin hoped that the details of the Klan's murderous rampage that evening would discredit the defense's strategy. The brutal murder of Williams was a ghastly .tale. The image of Williams' fate at the hand of the Klan clearly left a profound impression on Corbin's young assistant, Louis Post. More than fifty years later, Post had little trouble recalling this incident; the details remained vividly etched in his mind.34

A cavalcade of sixty cowardly white men, completely disguised with face masks and body gowns, rode up one night in March 1871, to the house of Captain Williams, roughly and coarsely awoke him and his wife from their sleep, marched him to a little wood near by, forced bis wife to remain behind when she had piteously but vainly pleaded for her husband's life and then begged to go with him, and in the wood hanged him to the limb of a tree and poureclx bullets from their rifles into his dying body. On the dangling corpse, those despicable savages then pinned a slip  of paper inscribed, as I remember it, with these grim words "Jim Williams gone to his last muster."35

The Klan s defense team dismissed the prosecution s novel theory of Second Amendment incorporation through the Fourteenth Amendment. The Second Amendment, they confidently asserted, was a states' right. Giving citizens the right to bear arms had been intended to prevent Congress from disarming the state militias. The notion that the Fourteenth Amendment had any relevance to the right to bear arms was absurd; there was absolutely nothing in its text to support such a view. The defense attacked Governor Scott's efforts to arm the militia, claiming that they were tools of a corrupt Republican regime so intoxicated with power that they posed a serious threat to whites. The defense was so confident that the prosecution s Second Amendment argument would fail that they engaged in a bold legal gamble, conceding that a conspiracy had existed to disarm the Negro militia but insisting that nothing had been done to interfere with blacks' right to vote. Such a strategy would have been foolhardy if they expected Corbin s incorporation argument to find a sympathetic audience among the judges in the case or in the Supreme Court.36

The results of the case were a partial victory for supporters of incorporation. Corbin obtained a conviction against Robert Hayes Mitchell (a Klansman who had participated in the murder) for engaging in a conspiracy to intimidate and obstruct Williams's right to exercise his right of suffrage. The federal government clearly could protect the right to vote. The Second Amendment incorporation argument, however, had utterly failed. The notion that one might incorporate the Second Amendment as a privilege and immunity of national citizenship had been rejected by the court in favor of the rival states' rights theory of the Democrats, which cast this principle in the narrowest possible terms. According to this view the Second Amendment did no more than restrain Congress from disasarrning the Militia.37

The one theory of the Second Amendment that did not have any discernible impact on the disposition of the case was the radical abolitionist theory of the Second Amendment that had inspired some of the amendment's framers in Congress. Neither the government nor the defense argued that the Second Amendment was an individual right of private citizens to bear arms for personal self-defense. Indeed, the defense argued that individual right of self-defense was in conflict with the Second Amendment.38

CONSTITUTIONAL   COMMENTARY   ON   THE

SECOND   AMENDMENT   DURING

RECONSTRUCTION

The meaning of the Second Amendment and the related questions about the possible impact of the Fourteenth Amendment on the scope of this constitutional right prompted a number of comments by judges and legal scholars during Reconstruction. Although mainstream Republicans defended the idea of incorporating the Second Amendment as a civic right, the rival states" rights theory espoused by Democrats continued to gain ground during this period. By the time the Supreme Court finally weighed in on the issue, the constitutional center of gravity had shifted away from the civic conception and toward the states' rights conception of the Second Amendment.39

The dean of the New York University Law School, John Norton Pomeroy captured mainstream Republican legal thinking about the interconnected meanings of the Second Amendment and the Fourteenth Amendment. He began his consideration of the issue by reiterating the view that the scope of the amendment's protections were shaped by the preamble. The "object of this clause is to secure a well-armed militia." Pomeroy reminded readers that "government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms." Conceding this point, however, did not mean that government could not extensively regulate firearms. As he explained, "This constitutional inhibition is certainly not violated by laws forbidding persons to carry dangerous or concealed weapons, or laws forbidding the accumulation of quantities of arms," which were entirely consistent with the notion of a well-regulated society.40

Pomeroy explicitly took up the issue that had troubled so many Republicans before the adoption of the Fourteenth Amendment, the absence of any constitutional mechanism to force states to respect the rights of their citizens. His example to illustrate this point could have been lifted from any of the notorious "southern black codes. "Let it be supposed," he mused, that a particular state had an explicit provision in its constitution affirming a right to bear arms and then passed "statutes by which certain classes of inhabitants—say negroes—are required to surrender their arms, and are forbidden to keep and bear them under certain penalties." While a person ought to be able to appeal such a manifestly unjust law to their own state's courts, in the event the court failed to act there would be no option for appeal. The Fourteenth Amendment, Pomeroy noted, provided just such a remedy and he urged the American people to adopt the Fourteenth Amendment to the Constitution, which he viewed as "more important than any which has been adopted since the organization of the government, except alone the one abolishing the institution of slavery."41

While there was some disagreement among Republicans over the nature of the Second Amendment incorporated by the Fourteenth, there was little disagreement that the states retained broad powers to regulate firearms, including a right to ban certain classes of weapons with little utility for the preservation of a well-regulated militia. Rather than mark a sharp break with antebellum case law, most legal commentators emphasized continuity with prewar jurisprudence. The most important postwar effort to synthesize all of the diverse strains of antebellum legal thinking about the right to bear arms under both state and federal constitutional law occurred in Joel Prentiss Bishop's influential Commentaries on the Law of Statutory Crimes (1873).

Although Bishop noted that a few courts had embraced a more expansive conception of bearing arms under state constitutional law, the dominant view was the more limited civic, militia-based right articulated in Buzzard, an interpretation Bishop characterized as the 'Arkansas doctrine." Only a small class of weapons suitable for the goal of preserving a well-regulated militia enjoyed full constitutional protection. Weapons "employed in quarrels, brawls, and fights between maddened individuals" were excluded from constitutional protection and fell entirely within the scope of individual states' police powers.42

One measure of Bishop's influence may be seen in the authority accorded his interpretation by one of the most influential jurists and legal scholars of the Reconstruction era, John Forrest Dillon. A former Iowa Supreme Court judge, Dillon was elevated to the U.S. Circuit for the Eighth District by President Grant. By the end of the 1870s, Dillon had assumed a prestigious professorship at Columbia Law School In a series of articles published in the Central Law Journal in 1874, Dillon explored the state of American legal thinking on the right to bear arms. Recognizing that the U.S. Supreme Court had not yet entered the fray and offered a definitive judgment, Dillon concluded that lawyers and judges ought to look to the small body of state case law for guidance. The spectrum of antebellum jurisprudence was wide, running from the expansive individual rights view enunciated in Bliss to the narrow civic conception elaborated in Buzzard. Dillon endorsed Bishop's view that Buzzard's 'Arkansas doctrine," not the libertarian views exhibited in Bliss,, captured the dominant strain of American legal thinking on this question.43

There was a strong judicial consensus, Dillon explained, that time, place, and manner restriction, including bans on carrying concealed weapons, "did not deprive citizens of his natural right of self-defense, or his constitutional right to bear arms." Although the line demarcating the constitutional right to bear arms and the common-law right of self-defense had become murkier over the course of the century in some places, Dillon continued to treat the two concepts as though they were legally distinct. According to the 'Arkansas doctrine" the only weapons entitled to constitutional protection were those associated with the goal of preserving a well-regulated militia.44

Dillon recognized that the thorniest legal issue was posed by the inevitable conflict between the common-law right of self-defense and the state's prerogatives to use police power to promote public safety. Rather than argue that the right of self-defense rendered robust regulation unconstitutional, as the Bliss court had done, Dillon turned £$T to the common law for guidance. There would always be unusual "circumstances under which to disarm a citizen "would be to leave his life at the mercy of treacherous and plotting enemy." When such circumstances arose, "such a case might clearly be said to fall within that class of cases in which the previously existing common law interpolates exceptions upon subsequently enacted statutes." Individuals who violated a statute under extraordinary circumstances were, he believed, entitled to leniency in court.45

Dillon ably encapsulated the larger problem courts faced when attempting to balance the right of individual self-defense against the right of public safety. Society could not "require the individual to surrender and lay aside the means of self-protection." Nonetheless, "the peace of society and the safety of peaceable citizens plead loudly for protection against the evils which result from permitting other citizens to go armed with dangerous weapons." The right to be protected and the right to protect oneself might come into conflict on occasion. Faced with such an intractable situation, the best the law could achieve was to "strike some sort of balance between these apparently conflicting rights."46

Rather than embrace Pomeroy and Akerman s incorporation theory, Dillon concluded that the Fourteenth Amendment had not radically transformed the meaning of arms bearing. According to Dillon, "there would seem to remain no doubt that if the question should ever arise in that court it would be held that the Second Amendment of the federal constitution is restrictive upon the general government merely and not upon the states." Furthermore, he argued, "every state has the power to regulate the bearing of arms in such a manner as it may see fit, or to restrain it altogether." In choosing to side with the limited states' rights view of the Fourteenth Amendment advanced by Democrats and opposing the strong incorporation doctrine championed by many Republicans, including theorists such as John Pomeroy Dillon anticipated the future direction of federal jurisprudence on this issue. Within a year of publishing these prescient words, the Supreme Court followed the same logic outlined by Dillon in the Central Law Journal.47

THE  END  OF  RECONSTRUCTION   AND THE

TRIUMPH  OF  STATES'  RIGHTS: U.S. V. CRUIKSHANK

In 1875, the meaning of the Second Amendment finally came before the Supreme Court in U.S. v. Cruikshank, a Louisiana case arising from one of the bloodiest and most brutal episodes in the Reconstruction era, the Colfax Massacre. In contrast to the South Carolina KKK trials, where the Second Amendment issue was raised but never actually resolved by the Supreme Court on appeal, Cruikshank considered this issue directly. The Court decisively rejected both the individual and civic interpretations of the right to bear arms. Instead, the Court placed its full weight behind the Democrats' more narrow states' rights view.

The Colfax Massacre was the culmination of a long and bitter conflict between Republicans and Democrats for control of Louisiana. The site of this heinous crime, Grant Parish, was about 245 miles north of New Orleans and had only recently been created by legislative gerrymandering, a partisan move designed to give blacks a numerical majority in this district. Republicans named this new district after President Grant and the seat of its government after Grant's vice president, Schuyler Colfax. The region had a troubled history and boasted a Klan-like paramilitary organization and a well-organized unit of the Negro militia.49

The immediate trigger for violence in Grant Parish was the contested election of 1872. Both sides claimed to have triumphed in the election, and the inconclusive outcome in the governor's "race meant that local offices, including that of the sheriff, were also in dispute. The Democratic choice for sheriff gave notice to the incumbent Republican sheriff that he would take possession of the courthouse in Colfax. Upon learning that a large posse sympathetic to the Democrats was gathering to seize the courthouse, the Republican sheriff summoned his own posse comitatus composed largely of men from the local Negro militia, who prepared to defend the building from attack. Fearing for their lives, additional members of the African-American community, many of whom had served in the Union Army, sought refuge in the courthouse. The men organized themselves in a military fashion: drawing up a muster roll, electing officers, and erecting an earthen works barrier around the courthouse. Armed with Enfield rifles and shotguns, the veterans had also cleverly fashioned a cannon out of a metal pipe to defend the courthouse.50

Efforts to negotiate a truce between the two sides failed. After allowing women and children to leave the building, the whites opened fire. A standoff continued until the better armed and more numerous white forces stormed the fortifications and forced the black defenders back into the courthouse. After they torched the building, whites gunned down those fleeing.the inferno. The carnage only ended when federal troops "arrived the next day. Although an exact death toll was never conservative reports estimated more than one hundred blacks had been murdered.51

The task of prosecuting the perpetrators of the Colfax Massacre fell to Attorney General Amos Akermans successor,  George H.Williams. Although much less zealous than Akerman in his support of Reconstruction, the magnitude of the Colfax incident forced Williams to push the local federal prosecutor, James R. Beckwith, to prosecute aggressively those responsible for the deaths in Grant Parish. In an indictment running to 150 pages, 98 defendants were brought before a grand jury. Although William Cruikshank lent his name to this case, achieving a dubious sort of legal notoriety, he was not a leading player in the massacre, but had been one of the white mob that brutally attacked the courthouse in Colfax. The 32 charges brought against the defendants alleged violations of the Enforcement Acts, including a conspiracy to deprive citizens of "the free exercise and enjoyment" of a "right or privilege granted or secured" by the Constitution, including the right to bear arms.52

Although the prosecution had named more than ninety coconspirators in its lengthy indictment, only nine were brought to trial. One of the nine was acquitted and a hung jury necessitated a retrial for the remaining eight. Three of the eight were found guilty. Lawyers for the defense appealed the verdict and challenged the constitutionality of Section 6 of the Enforcement Acts, which made it a felony to conspire to "injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States."53 The defense maintained that the crimes committed were not judicially enforceable under federal law, but were entirely within the legal sphere of the states. The case was heard by Judge William Woods and Associate Supreme Court Justice Joseph Bradley. While Woods believed the charges were indictable under federal law, Bradley disagreed, arguing that the Fourteenth Amendment prohibited state action, not the actions of private citizens. To concede that the federal government could prosecute private individuals would in effect create a general federal police power, something Bradley believed was not warranted by the Fourteenth Amendment. This division between the two judges on the constitutionality of the Enforcement Act ultimately brought the case before the Supreme Court. U.S. v. Cruikshank would become a test case, not only for rival theories of the Second Amendment, but also for the theory of incorporation itself.54

Judge Woods not only believed that the federal government had the authority to prosecute the case, but he also embraced a fairly broad individual rights reading of the Second Amendment. Woods framed the right to bear arms in a distinctly individualist idiom, observing "a man who carries arms openly, and for his own protection, or for any other lawful purpose, has as clear a right to do so, as to carry his own watch or wear his own hat." The right to carry arms openly, Woods concluded, was clearly one enjoyed by all citizens. Curiously the government's Supreme Court brief abandoned the Second Amendment issue entirely. It abjured the civic line of argument that had been developed by the previous attorney general, Amos Akerman, and also rejected the individual rights argument that Judge Woods developed in his circuit court ruling. The briefs filed for the defense took up the meaning of the right to bear arms explicitly and both affirmed the states' rights view and attacked the individual rights view endorsed by Woods. Against this more expansive individual rights conception, the defense countered, "The right to bear arms, if it be a right, is a matter to be regulated and controlled by the State, as each State may deem best for itself." In the view of one of the briefs filed on behalf of the perpetrators of the massacre, the power to regulate and control the bearing of arms on the part of the people, and their assembling together in great numbers, belongs to the police authority of the State, and it is a necessary power to be exercised by the State for peace of society and the safety of life and property. Another brief filed on behalf of Cruikshank and his coconspirators reminded the Court that the Second Amendment's preamble, which declared the necessity of a well-regulated militia, established the clear military focus of the right, which had nothing to do with individual self-defense.

The right which the people intended to have secured beyond the power of infringement by Congress, is the right to keep and bear arms for the purposes of maintaining, in the States, a well regulated militia, acknowledged in the article to be necessary for the security of a free State.

One of the defense briefs acknowledged that there had been some slippage in ordinary usage of the term bear arms between the eighteenth century and the nineteenth century. Having conceded this linguistic point, the defense vigorously disputed the notion that shifts in colloquial usage since the adoption of the amendment could transform the original understanding of the text's meaning. The right protected by the Second Amendment was not, as Woods's opinion had suggested, intended to protect an individual right of self-defense, but had been exclusively concerned with the problem of arming the militia.55

Regarding the Fourteenth Amendment incorporation of the Second Amendment, the defense maintained that states retained exclusive authority over the right to bear arms, "with the single qualification that these must not dismminate between different races of men." Rather than incorporate an individual right to bear arms, the defense argued, the Fourteenth Amendment only required the states to apply their laws about arms bearing in "a non-discrirninatory fashion. "56

The Supreme Court dismissed Woods's expansive reading of the right to bear arms as an individual right of private self-defense. While the Court appeared to implicitly acknowledge that the meaning of the term bear arms had evolved to encompass more than arms used for military purposes, this linguistic observation did not alter the meaning of the original constitutional text. Indeed, the Court went on to assert in unambiguous terms that "bearing arms for lawful purposes"was not identical to the right protected by the Second Amendment that linked bearing arms to participation in a well-regulated militia. In essence, the Court argued that the common-law right to keep and carry arms and the right to bear. arms protected by the Second Amendment were legally distinct. The Second Amendment in their view was "one of the amendments that has no other effect than to restrict the powers of the national government." The purpose of the amendment was to guard the state militias against the danger of federal disarmament. According to this view, states were free to enact whatever measures they deemed appropriate regarding the militia or firearms, as long as these laws were nondiscriminatory. The ruling not only consigned the individual rights view of the right to bear arms to the margins of federal jurisprudence for more than a hundred years, but also effectively displaced the original civic conception of the amendment with this narrow states' rights conception of the Second Amendment.57

Cruikshank was a decisive moment in the history of an evolving Second Amendment jurisprudence. The government's decision to abandon its Second Amendment argument marked a retreat from the more aggressive policy of enforcing civil rights through the Fourteenth Amendment. Cruikshank hastened the demise of incorporation theory. The government also rejected the opportunity to make an individual rights claim, but chewing the arguments articulated by Judge Woods in his circuit court opinion. The Supreme Court's ruling endorsed a limited states' rights conception of the Second Amendment and pushed aside the civic conception of the Second Amendment that had dominated mainstream constitutional theory since the adoption of the Bill of Rights. Cruikshank not only marked the end of a hundred years of constitutional thinking about the right to bear arms, but it also inaugurated a new phase in the history of this provision of the Bill of Rights. After Cruikshank, the Second Amendment would be understood to be a limit on federal power to disarm the state J militias.58

Crutkshank recast the Second Amendment's scope, reframing it in narrow states' rights terms. This legal narrowing of the ambit of the right to bear arms by the courts was followed by an equally profound change in the definition of the militia under federal law. As the century drew to a close, the issue of how to reform the militia and make it an effective fighting force for the modern age was vigorously debated. At the dawn of the new century, Congress took up the task of militia reform with renewed energy. Dissatisfied with the organization and effectiveness of the militia, Congress set about to reshape the nature of this venerable institution. The two key pieces of federal legislation were the Dick Act of 1903 and the National Defense Act of 1916. The Dick Act created an organized Militia, the National Guard, and the Reserve Militia. This new system was subsequently redefined by the National Defense Act as the National Guard and the Unorganized Militia. Taken together these two statutes effectively nationalized the function and control of the militia. By wresting control of the militia from the states, these acts had the practical effect of draining the Second Amendment of much of its remaining force. Although the Second Amendment was understood to be a restraint on the power of Congress to disarm the militia, the new National Guard was clearly a creature of the federal government.

The changes in the militia were part of a broader shift in American attitudes toward the ideal of an armed citizenry. In colonial America the law required that most white male citizens bear arms in the militia. The reorganization of militia into the modern National Guard prompted a more wide-ranging debate over the value of military training for civilians. One critic not only proclaimed his opposition to "making military training compulsory" but also went on to argue that "it is entirely adverse to the spirit and principles of the Constitution." This view seemed to turn the traditional conception of the militia on its head. The idea of the citizen solider was no longer the minuteman, but the National Guardsman. Mandatory military training for the civilian population was no longer cast as the necessary means of instilling virtue in the citizenry, but a means of corrupting individuals. Requiring citizens to obtain military training was deemed too Prussian and militaristic. This was nearly the opposite of the view championed during the Founding era. The most astute observers of this profound shift in American attitudes recognized that it represented a break with the past but accepted that times had simply changed. As one legal scholar noted, "The day is past when a group of hardy pioneer citizens could defend their rights by a few muskets or homemade pikes."59

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TO  BE  CONTINUED