Second-Class Citizenship and the Second Amendment in the District of Columbia

[Copyright © 1995 George Mason University Civil Rights Law Journal. Originally published as 5 GMU Civ. Rts. L.J. 105-178 (1995). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. Dr. Halbrook is the author of That Every Man Be Armed: The Evolution of a Constitutional Right which may be obtained from www.amazon.com.]

Second-Class Citizenship and the Second Amendment
in the District of Columbia

I. Introduction

The District of Columbia, always a leading contender for the ominous title of "the murder capital of the United States,"[1] makes it difficult, if not impossible, for a law-abiding citizen to keep a firearm in the home and, by policy, absolutely refuses to license the carrying of a firearm for self protection. No handgun may be possessed unless it was registered by 1977. Many ordinary rifles and pistols are, contrary to reality, defined as machine guns and are prohibited. Firearms kept at a business may be kept operable, but firearms kept at home must be disassembled and thus are unusable for self protection.(p.106)

The D.C. Court of Appeals has held that the Second Amendment to the U.S. Constitution does not apply in the District, meaning that peaceable persons who wish to keep firearms have no rights for which the District is bound to vindicate. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."[2] It is the thesis of this analysis that the Second Amendment does apply to the District of Columbia, and that the law-abiding citizens of the District are treated by the District's firearms prohibitions as second-class citizens.

Challenges to the District's gun control laws in both the U.S. Court of Appeals for the D.C. Circuit and the D.C. Court of Appeals have been singularly unsuccessful. The latter court in Sandidge v. United States[3] held that the Second Amendment only guarantees a state militia right, and the concurring opinion argues that the "free State" clause of the Second Amendment restricts the amendment to the states. Modern scholarship has overwhelmingly established that the Second Amendment was intended to guarantee an individual right to keep and bear private arms, and that this guarantee would promote a well-regulated militia, seen by the Framers as necessary to guard a free society from a standing army.[4] However, Sandidge introduces a unique argument into the debate that, if valid, applies exclusively to the District: the District is not a state, and thus the "free State" language of the Second Amendment precludes its applicability to the District.

This Article begins with an analysis of provisions of the D.C. Code concerning firearms ownership. It then reviews Sandidge and other decisions which, while not involving the Second Amendment, uphold or otherwise concern the District's firearms laws.

This analysis delves into the intent of the Framers of the Second Amendment, beginning with the linguistic usage of the constitutional text, and then reviewing James Madison's draft of the Second Amendment, which used the term "free country" instead of "free State." It explains why the Framers considered the right to keep and bear arms (p.107)to be essential in any free society--that being, to limit governmental action: a purpose equally desirable both in the states and in the seat of government.

In antebellum times, the District was governed by the Maryland Code as of the date of cession. This included Maryland's slave code, which prohibited slaves from possessing firearms. Slavery and the slave code were abolished in the District in 1862 by statute, and the Thirteenth Amendment to the Constitution abolished slavery nationwide. The debates on this statute and the Amendment are analyzed herein. In particular, a prohibition on firearm ownership by non-criminals appears to be the kind of incident or badge of slavery that would have been recognized as contrary to both the statutory and the constitutional abolition of slavery.

Scott v. Sandford taught that, if African Americans were citizens, they should enjoy all Bill of Rights freedoms, including the right "to keep and carry arms wherever they went."[5] The Reconstruction Congress took measures under the enforcement clause of the Thirteenth Amendment to guarantee this concept of citizenship. First, it passed the Civil Rights Act of 1866,[6] which survives today as 42 U.S.C. § 1981(a), providing: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory ... to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens ...."[7]

Second, Congress also passed the Freedmen's Bureau Act of 1866, which similarly protected "the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and ... estate, ... including the constitutional right to bear arms ...."[8] Representative John Bingham, draftsman of the Fourteenth Amendment, explained that this provision "enumerate[s] the same rights and all the rights and privileges that are enumerated in" the Civil Rights Act.[9] Thus, today's section 1981(a) guarantees the substantive "constitutional right to bear arms." The Act is applicable both in the states and in the District.

Congress also passed, and the States ratified, the Fourteenth Amendment. While the "no State shall" clause of section 1 does not (p.108)apply to the District, the first sentence does: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."[10] To the Framers of the Fourteenth Amendment, citizenship carried with it a bundle of rights, not the least of which was the individual right to keep and bear arms. Indeed, 120 years later, in the Firearms Owners' Protection Act of 1986, Congress recognized "the rights of citizens ... to keep and bear arms under the [S]econd [A]mendment to the United States Constitution ...."[11] In effect, Congress has declared, pursuant to the enforcement clause of the Fourteenth Amendment, that the right to keep and bear arms is a right of citizenship. The District's prohibition of possession of firearms by law-abiding citizens violates the rights of citizenship guaranteed by the Fourteenth Amendment.

The D.C. Code currently authorizes the District to "exercise all ... powers of a municipal corporation not inconsistent with the Constitution and laws of the United States ...."[12] This language derives from the Organic Act of 1871.[13] Accordingly, it would be appropriate to consider Congress' view in l871 as to what was inconsistent with the Constitution. Debates on the Civil Rights Act of 1871 make clear that the general view in Congress was that an individual's right to keep and bear arms could not be infringed consistently with the Constitution.

In the Sandidge case, the D.C. Court of Appeals argues that the militia act applicable to the District provides only that the National Guard may keep arms in armories. A historical review of militia legislation applicable to the District demonstrates that view to contain a narrow focus. Every able-bodied white male citizen of the District was required by early federal militia acts to provide himself with a musket, rifle, or pistol.[14] After the word "white" was stricken,[15] Congress passed a militia act for the District that recognized "every able-bodied male citizen within the District" as a member of the militia, but made provision only for the "organized militia," i.e., the National (p.109)Guard.[16] This act remains a part of the D.C. Code.[17] However, in separate legislation "to promote the efficiency of the reserve militia," Congress provided for the issuance of service-magazine arms to rifle clubs.[18] This statute survives today, providing for the promotion of rifle and pistol practice and for the sale of M-1 rifles to citizens of the United States.[19] Accordingly, the District's citizens are members of the reserve militia and are entitled to possess arms.

This Article concludes with an analysis of two lines of judicial decisions. The first involves decisions on the applicability of the Second Amendment to the federal government, and on the applicability of the Bill of Rights to the District. The second line of decisions concerns the Civil Rights Act of 1866, which restrains District as well as state action.

When it comes to the right to keep and bear arms, the District's residents are second-class citizens. As the following demonstrates, this individual right was intended to be protected by the Second, Thirteenth, and Fourteenth Amendments, as well as by several statutes related to those amendments.

II. Gun Control Legislation in the District

A. From Congressional Regulation to Prohibition by the D.C.
Council

Once the slave codes were abrogated, no gun control laws of any kind would exist in the District for thirty years. A drafting commission proposed in 1872 that persons be prohibited from carrying concealed weapons, but Congress never adopted the recommendation.[20] In the revision of the D.C. Code passed by Congress in 1874, mostly traditional crimes against person and property were punished, but the keeping and carrying of arms was not regulated in any manner.[21]

Finally, in 1892, Congress made it an offense to have concealed about one's person a deadly or dangerous weapon, including a pistol, (p.110)dagger, and brass knuckles.[22] It was also unlawful to carry such weapons openly with the intent to use them unlawfully. One's place of business and dwelling house were exempted, and a concealed carry permit was available on showing the necessity therefor.[23]

The House Committee on the District of Columbia recommended passage of the act based on the following: "This community is possessed of a class of population who constantly arm themselves with concealed weapons. There is very little, if any, law which can reach these parties unless they actually use the weapon which they carry concealed upon their person."[24]

The bill passed the Senate easily because the prohibition on the open carrying of a weapon required proof of an unlawful purpose.[25] Two concerns were expressed when that body passed the final version. First, Senator White of Louisiana noted that the prohibition on carrying a concealed weapon "appears to leave it a matter of favoritism with a certain officer to issue a permit to carry them."[26] Senator Wolcott of Colorado responded that a permit would be warranted in event of "threatened assault" or "danger of attack."[27] He did not object to an amendment providing that the magistrate would issue a permit where a person had "well-grounded apprehension ... that his life or his property or the lives of his family are in danger ...."[28]

A second concern with the bill was expressed by Senator Mills of Texas as follows:

Senator Wolcott did not dispute that the Second Amendment guaranteed an individual right, but argued that a prohibition on carrying concealed weapons did not violate that right.

Thus, no one doubted that the Second Amendment guaranteed an individual right to keep a pistol in the home, or that the Second Amendment applied to the District. By enacting the law, Congress simply found that such a right was not violated by a prohibition on carrying concealed weapons in public without a permit.

The 1892 provision was reenacted in 1901. The criterion for a carry permit was changed to "necessary self-defense."[31]

In 1906, Congress passed an act to prohibit the killing of wild birds and wild animals in the District of Columbia.[32] Committee reports[33] and floor remarks on the 1906 bill were restricted to the topic of hunting and animal conservation.[34] Representative Campbell of Kansas, the chief exponent, stated that "the object of this bill is to prohibit hunting in the District of Columbia, in the interests of public safety and bird protection and to make the suburbs of Washington practically a refuge for native birds and mammals."[35] No one suggested that the authority to regulate firearms would extend beyond (p.112)the prevention of hunting.[36] For that purpose, the statute empowered the District commissioners "to make and enforce all such usual and reasonable police regulations ... as they may deem necessary for the regulation of firearms ...."[37]

Congress passed a comprehensive firearms act in 1932 that remains largely in place today.[38] It continued the prohibition on carrying a concealed pistol on or about one's person without a license, which would be issued to a person with good reason to fear injury to his person or property or other proper justification.[39] A person who was convicted of a crime of violence could not possess a pistol, and committing a crime while armed would result in enhanced punishment.[40] "Pistol" was defined as any firearm with a barrel less than twelve inches in length.[41]

The act also made it unlawful to possess a machine gun, shotgun with a barrel less than twenty inches, or silencer.[42] However, "machine gun" was defined broadly to include "any firearm which shoots automatically or semiautomatically more than twelve shots without reloading."[43]

The House committee report on the 1932 bill stated that the measure would "meet the legitimate needs of all who are charged with the duty of protecting and defending life and property as well as those citizens who require firearms for protection or for sport ...."[44] In House floor debates, concern was expressed about a prohibition on mere possession of a sawed-off shotgun. Representative Blanton of Texas stated that they were "used by farmer boys everywhere.... In your effort to reach the thugs you are liable to reach innocent and honest boys who hunt ...."[45] Representative Stafford responded that the law would only apply to the District, and "otherwise I would accept the criticism of the gentleman from Texas as a proper one, but this law does not extend to a farming community."[46](p.113)

While no reference was made specifically to the Second Amendment, both the Senate report and Senator Capper supported the bill with the caveat that "the right of an individual to possess a pistol in his home or on land belonging to him would not be disturbed by the bill."[47] Of course, the open carrying of a pistol was not proscribed.

The 1932 act has remained in place with various amendments from time to time. It remained legal to carry a pistol openly until 1943, when Congress made it unlawful for a person to "carry either openly or concealed on or about his person" a pistol, with the previous exceptions for home and business or with a permit.[48]

The House Committee on the District of Columbia explained the need for the bill as follows: "In several recent cases ... it has been held that a weapon is not 'concealed' within the meaning of the act unless it was actually concealed at the time it was proved to be in the possession of the defendant. Consequently, a person may escape conviction under this act merely by exhibiting his pistol or weapon when the law enforcement officer appears."[49]

On the House floor, Representative W. Sterling Cole of New York asked: "What effect will this bill have upon a person's carrying a shotgun or any kind of weapon that is not concealed?"[50] Representative Everett Dirksen of Illinois replied that the issue was discussed in committee, and that the law would not apply "to a person carrying a shotgun in a car ...."[51] Nothing in the bill prohibited the carrying or transportation of a rifle or shotgun without a permit.

A 1947 amendment is of interest from a Fourth Amendment perspective: it authorized a warrantless search and arrest in the event of probable cause to believe a person is carrying a concealed weapon, but made inadmissible any evidence discovered if the person was not carrying a pistol or other weapon at the time of the arrest.[52] To further reach the armed criminal element, in 1953 Congress extended the prohibition on possession of pistols to all felons (not just violent ones) and also to drug addicts and persons convicted of vagrancy.[53](p.114)

The gun control provisions passed by Congress, currently Chapter 32 of the D.C. Code, are contained in the Criminal Code. Pertinent provisions include section 22-3204(a), which provides: "No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed."[54] Among the exceptions to this general prohibition are "regularly enrolled members of any organization duly authorized to purchase or receive such weapons from the United States" and who are at or going to or from places of assembly or target practice, i.e., participants in the Civilian Marksmanship Program; persons transporting pistols between their home or business and places of purchase or repair; and persons who are moving goods from one place or abode or business to another.[55]

Another provision requires a 48-hour waiting period and notice to the police before a person transfers a pistol to another.[56] In addition, dealers must be licensed and must keep records.[57]

Additional penalties are imposed for committing a crime while armed and for possessing a firearm while committing a crime of violence.[58] Also, drug addicts, felons, and certain others may not own, keep, or possess a pistol.[59]

The prohibition on machine guns and certain other weapons continues in section 22-3214(a),[60] and "machine gun" is still unusually defined to include a firearm that shoots automatically or semiautomatically over twelve shots without reloading.[61] This definition is both overly narrow because it excludes a true machine gun which shoots twelve or fewer shots automatically, and overbroad because it includes a mere semiautomatic firearm.

As is clear, Congress has enacted a comprehensive regulatory scheme governing possession, use, and commerce in firearms. Any provision that may be invalid would be so on constitutionality (p.115)grounds. A provision that is simply inconsistent with another statute passed by Congress, such as the Civil Rights Act of 1866, would not be thereby invalid.

Unable to persuade Congress to enact more draconian firearms prohibitions, the D.C. Council enacted the Firearms Control Regulations Act of 1975, which is codified as Chapter 23 of the Health and Safety Code. That provision currently provides in operative part that "no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm."[62] However, section 6-2312(a) provides:

The D.C. Council sought to buttress the above by adoption of the following statement of findings and purpose:

Even for registered firearms, the Act eschews their use for lawful self-protection in the home.

Almost twenty years after enactment of the above, in response to the District becoming known as the murder capital of the United States, the D.C. Council in 1993 legalized "self-defense spray."[66] Subject to being registered with the police, "a person 18 years of age or older may possess and use a self-defense spray in the exercise of reasonable force in defense of the person or the person's property ...."[67] While thus recognizing self-defense as a legitimate interest in society, the provision only allows use of a chemical that may be as likely to anger as to subdue an assailant.

B. District Firearms Legislation in the Courts

Until recently, the District of Columbia Court of Appeals had not considered the validity of the D.C. firearms prohibitions under the Second Amendment.[68] In addition to sustaining the denial of licenses to carry concealed handguns,[69] that court held that the Firearms Control Regulations Act is authorized under D.C.'s home rule powers,[70] and rejected, inter alia, equal protection challenges to the law.[71](p.117)

While upholding the disarming of the District's citizenry, the D.C. Court of Appeals also held that "official police personnel and the government employing them are not generally liable to victims of criminal acts for failure to provide adequate police protection ...."[72] The Court dismissed a civil lawsuit by women who were raped, robbed, and assaulted over several days and who repeatedly called the D.C. police to rescue them, to no avail.

District gun control legislation was originally challenged in the U.S. Court of Appeals for the District of Columbia. The requirement that all firearms be registered was upheld in Maryland & District of Columbia Rifle and Pistol Ass'n v. Washington.[73] The sole issue was whether the D.C. Council was authorized to require the registration of all rifles, pistols, and shotguns.[74] The court held such authority to be conferred by D.C. Code § 1-227, which empowered the Council "to make and enforce all such usual and reasonable police regulations ... as they may deem necessary for the regulation of firearms ...."[75] Congress originally passed that provision as part of a statute authorizing the District to regulate hunting.[76] The court found the provision to be sufficiently general to allow the registration requirement.[77] The Association also argued that in 1932 Congress enacted a gun control law for the District requiring licenses to carry pistols and prohibiting certain persons from possessing pistols, thereby demonstrating an intent to occupy the field. The court found the federal and District of Columbia provisions to be consistent and rejected the argument that Congress preempted the field.[78]

The D.C. Circuit also touched on the District's firearms laws in litigation stemming from the shooting of President Reagan and others by John Hinckley. In Delahanty v. Hinckley,[79] the court was asked to apply to the District the legal theory created in Kelley v. R.G. Industries, Inc.[80] In Kelley, the Maryland Court of Appeals created a cause of action against manufacturers and marketers of "Saturday Night Specials" on behalf of victims of criminal acts. According to the (p.118)Maryland court, "[t]he chief 'value' a Saturday Night Special handgun has is in criminal activity, because of its easy concealability and low price."[81] The court continued:

Strongly rejecting Kelly, the U.S. District Court for the District of Columbia stated in Delahanty v. Hinckley:

On appeal, the D.C. Circuit certified the issue to the D.C. Court of Appeals.[84] The opinion by Circuit Judge Mikva suggested that the theory in Kelley may apply because it was based on public policy considerations derived from statutes, and the District had strict handgun (p.119)control laws.[85] Judge Mikva suggested that the District might well recognize an action against manufacturers of "Saturday Night Specials" for crimes committed by third parties.[86] However, on remand, the D.C. Court of Appeals rejected the theory that a manufacturer could be liable for criminal acts under the above circumstances, pointing to the anomaly that liability would be imposed only for misuse of inexpensive handguns and not of more expensive handguns.[87]

Meanwhile, in Sandidge v. United States,[88] the D.C. Court of Appeals affirmed a conviction for carrying a pistol without a license and possession of an unregistered firearm. The court held that "the Second Amendment guarantees a collective rather than an individual right.... [I]t protects a state's right to raise and regulate a militia by prohibiting Congress from enacting legislation that will interfere with that right."[89] The Second Amendment does not prohibit a state or the District of Columbia from restricting weapons "in derogation of the government's own right to enroll a body of militiamen 'bearing arms supplied by themselves' ...."[90]

No local legislation grants a right to bear unregistered firearms, the court stated, noting that D.C. Code §§ 39-101 through 39-105 provide for an "enrolled militia" but do not refer to arms, and sections 39-105, -106, and -201 provide for a National Guard armed by the government.[91] "[A]ssuming the [S]econd [A]mendment applies to the District of Columbia, ... the congressionally approved criminal law does not interfere with any government-created right to keep and bear arms."[92]

The court rejected the argument that, under Supreme Court precedent, the government can only regulate weapons with no militia use.[93] The court also rejected the test that the Amendment protects (p.120)only arms that one person can operate, noting that such a test would protect "high powered rifles, machine guns and even some antitank weapons ...."[94] Individual handgun possession, stated the court, bears no relation to a well-regulated militia in the District.[95]

It is the concurring opinion of Judge Nebeker that introduces an unique and novel argument in the debate over the meaning of the Second Amendment:

Sandidge[97] was approved in Brown v. United States[98] and again in Duval v. United States.[99] Duval rejected as irrelevant U.S. Supreme Court dictum that "the people" means the same in the First, Second, Fourth, Ninth, and Tenth Amendments.[100](p.121)

III. The Right to Keep Arms and the Security of "A Free
State": The Framers' Intent

The meaning of the Second Amendment may be gleaned from the intent of its Framers and the linguistic usage of the epoch of its adoption. It would be superficial to speculate that because the term "State" is capitalized in the constitutional text and in the Second Amendment, that the latter refers only to State governments and protects only State powers. "Militia" and "Arms" are also capitalized in the Second Amendment, as are other nonproper nouns in many eighteenth century political documents, without any substantive significance.

The text of the Constitution makes several references to the states as political entities in the federal system. Using state-federal military powers as an example, Congress has "power" to provide for organizing and arming the militia, "reserving to the States respectively, the appointment of the officers, and the Authority of training the Militia according to the discipline prescribed by Congress ...."[101] Just as Congress has power "to raise and support Armies," "to provide and maintain a Navy," and "to provide for calling forth the Militia,"[102] the text of the Constitution also provides that "No State shall, without the Consent of Congress, ... keep Troops, or Ships of War in time of Peace, ... or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."[103] Thus, the text of the Constitution uses terms such as "the States respectively" and "no State" i.e., nouns without adjectives, when referring to the State governments.

The original Constitution also authorizes Congress to provide for a national capital. Article 1, section 8, ends with the following clauses:

In the state ratification conventions, most objections to the seat-of-government clause asserted that the capital would become a center of despotism to oppress the people of the states. However, in the Virginia convention, Patrick Henry suggested that the inhabitants of the capital would also suffer a loss of rights. Attacking both the seat-of-government and the necessary-and-proper clauses, Henry argued:

The greatest objection of the antifederalists to the Constitution, of course, was that it contained no bill of rights. No distinction in this regard was made between the residents of the states and those of the seat of government. The suggestion was never made that the people who lived in the capital should or would not have the same rights that would be declared in the Bill of Rights as the people who resided in the states.

On June 8, 1789, Representative James Madison introduced in the House of Representatives what would become the Bill of Rights. The bill, he declared, would "expressly declare the great rights of mankind secured under this [C]onstitution."[106] A declaration about "the great rights of mankind" is not exactly synonymous with a mere provision about the powers of a state government.

In a draft of his speech, Madison referred to the rights concerning "freedom of press--Conscience ... arms" as "private rights."[107] (p.123)What became the Second Amendment was drafted as follows: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."[108]

Ten days after the Bill of Rights was proposed in the House, Tench Coxe explained the right in question as an individual guarantee to have private arms: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms."[109] Obviously, the need to prevent tyranny would exist in the seat of government, not just in the states. Madison endorsed Coxe's analysis.[110]

Madison's amendments were referred to a House Select Committee, which reported back the following: "A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms."[111]

While Madison's term "a free country" was changed to "a free state," the committee retained the adjective "free," thus differentiating other uses of "State" throughout the constitutional text to denote the State governments. "A free state" and "a free country" meant, in eighteenth century usage, a free society. Citizens of the whole country must be free, not just those in the states.

Moreover, the intent was to declare that "a well regulated militia" is necessary for "the security of a free State." The federal government and its potential standing army was perceived as the danger. Securing a free country from the potential tyranny of the federal government was a primary purpose of the Second Amendment.

Like the Second Amendment's explicit "free State" clause, the First Amendment has implicit "free State" aims. The Framers were (p.124)well familiar with Blackstone's statement: "The liberty of the press is indeed essential to the nature of a free state ...."[112] Had this language appeared in the First Amendment, it would not mean that only citizens of a state have a "right" to freedom of the press. Both the liberty of the press and a well regulated militia--which is promoted by the keeping and bearing of arms by the people--are necessary for the existence of a free state. These are rights of the people in a free state, not merely prerogatives of citizens of a state.

The First Amendment's prohibition on the establishment of a religion was also seen as necessary for a free state. In Memorial and Remonstrance Against Religious Assessments, Madison stated:

The above linguistic usage is confirmed in An American Dictionary of the English Language by Noah Webster, who had been a prominent federalist in the ratification debates of 1787-88.[114] Webster defined "free" in part as follows:

Thus, "the States of America" refers to the political units known as States. "A free state" is far broader, encompassing as it does the entire body politic, including "the whole body of people."

In sum, the Second Amendment was intended to protect from infringement the right of "the people," which included the people residing in the seat of government, to keep and bear arms. Its political objective was to promote a well regulated militia, seen as necessary to secure "a free State," which also was intended to include the people who resided in the seat of government.

IV. The Abolition of Slavery and the Slave Codes in the
District, Including the Prohibition on Possession
of Arms by Blacks

Washington, D.C. was originally carved out of ten square miles of Virginia and Maryland. The Act of Congress of February 27, 1801, provided that the laws in force in Virginia and Maryland, as they then existed, would be in force in the parts of the District ceded by each of (p.126)those states respectively.[117] The portion ceded by Virginia was retroceded back to that state in 1846.[118]

Since slavery existed in those states, the slave codes of Maryland and, for a time, of Virginia, applied in the District. The codes, of course, of all of the Southern states prohibited slaves from keeping or bearing any weapon.

In A Dissertation on Slavery, acclaimed jurist and early abolitionist St. George Tucker summarized the badges of slavery: "To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offenses punishable by whipping."[119]

Virginia law which at that time applied to a portion of the District included a 1748 statute:

By the same token, antebellum Maryland law included the following provision first enacted in 1715:

Slavery would be abolished in the District by statute in 1862, three years before its abolition nationally by ratification of the Thirteenth Amendment in 1865. The debates on both the antislavery statute and the constitutional amendment demonstrate the Framers' intent to abolish the slave codes, including all of the deprivations of true citizenship contained therein. One such deprivation was the criminalization of possession of firearms.

A. Congress Abolishes Slavery in the District

Abolition of slavery in the District in 1862 began with consideration by Congress of Senate Bill No. 108, a bill for the release of persons held to service in the District.[122] The bill provided that "neither slavery nor involuntary servitude, except for crime, whereof the party shall have been duly convicted, shall hereafter exist in the District ...."[123]

Senator John P. Hale of New Hampshire asserted that Congress had the power to abolish slavery in the District, and nothing in the Dred Scott decision questioned that power.[124] Scott v. Sanford had held that if African Americans were citizens, they would have the rights to free speech, to "keep and carry arms wherever they went," and to enjoy other rights that were illegal under the slave codes.[125] Hale averred that "by our laws, this system of human slavery exists, and we are called upon today to abolish it, to repeal the laws upon which it rests ...."[126]

Referring to the 1801 statute creating the District, Senator Henry Wilson, a Massachusetts Republican, stated: "By this act the inhuman and barbarous, the indecent and vulgar colonial slave codes of Maryland and Virginia became the laws of republican America for the government of its chosen capital."[127] Provisions included a prohibition on (p.128)Negro testimony and cropping the ear of a slave who strikes a white person.[128]

Wilson continued that in 1820, Congress gave to the corporation of Washington power to "prohibit the nightly and other disorderly meetings of slaves, free negroes, and mulattoes," punishable by whipping with forty stripes.[129] The corporation could "prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city ...."[130] The corporation, Wilson argued, passed ordinances "more oppressive, more inhuman, more degrading than the colonial black code of Maryland, which Congress reaffirmed in 1801." For instance, an 1827 ordinance punished any free person of color who went at large after 10:00 p.m. without a pass from a "respectable citizen".[131] An 1836 ordinance required a free person of color to exhibit evidence of his title to freedom and to give bond for good conduct.[132] The same ordinance prohibited secret meetings or assemblings, and authorized the police constable to enter homes and break up such meetings.[133] Senator Wilson noted the fate of these slave provisions once the bill passed:

Wilson concluded about the bill: "If it shall become the law of the land, it will blot out slavery forever from the national capital, transform three thousand personal chattels into freemen, obliterate (p.129)oppressive, odious, and hateful laws and ordinances, which press with merciless force upon persons, bond or free, of African descent ...."[135]

In perhaps the most powerful speech in support of the bill, Senator Charles Sumner, a Massachusetts Republican, outlined how Maryland's slave code came to be the law of the District:

The same slave code chapter quoted by Senator Sumner punished by whipping a "negro or other slave" who carried a gun or other weapon off the master's land without a license from the master.[137] Originally adopted in 1715, that provision became the law of the District in that part ceded by Maryland in 1801.[138](p.130)

Sumner observed that slavery "now continues only by virtue of this slave code borrowed from early colonial days ...."[139] He argued that Congress, being bound by the Fifth Amendment prohibition on depriving any "person" of "liberty" without due process, had acted unconstitutionally in sanctioning slavery in the District.[140] "But Congress can exercise no power except in conformity with the Constitution. Its exclusive jurisdiction in all cases whatsoever is controlled and limited by the Constitution, from which it is derived."[141]

The Seat of Government clause was seen as empowering Congress to abolish slavery in the District. The limits of Congressional power over the people of the District, Senator John Sherman, an Ohio Republican, noted, is that "they have their personal rights secured to them by the [B]ill of [R]ights ...."[142](p.131)

Opening debate in the House on the bill to abolish slavery in the District, Representative Benjamin F. Thomas, a Unionist from Massachusetts, implied by the following remarks that the end of slavery would result in the guarantee of Bill of Rights freedoms for every person:

Representative John Bingham of Ohio, a Republican and future author of the Fourteenth Amendment, gave a major speech comparing the Magna Carta of England and the American Constitution.

However, in part because it was "without State limitations," Bingham argued that "this sacred guarantee of life and liberty and property to all has been wantonly ignored and disregarded as to a large class of our natural-born citizens."[145] Referring to the federal Constitution, Bingham continued:

At this point, Bingham was surely opining that the Bill of Rights applied to the District, and that the Maryland slave code was repugnant to the Bill of Rights. Bingham explained that "no American citizen nor human being shall, within the limits of this District, 'be deprived of life or liberty or property without due process of law.' ... (p.132)These persons who are the subject-matter of this legislation were natural-born citizens of the Republic."[147] The implication is clear--Dred Scott taught, and the abolitionists concurred, that true citizens have Bill of Rights freedoms, including the right to keep and carry arms. For Bingham, the abolition of slavery meant making slaves into citizens. In fact, he "would have preferred if the bill had declared that 'all American citizens held to service or labor within the District of Columbia by reason of African descent are hereby discharged and forever freed from such servitude.'"[148]

Referring to article 2, section 1 of the Constitution, which provides that only "a natural born citizen" may be President, Bingham added: "who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth--natural-born citizens."[149]

In language which presaged the Fourteenth Amendment, Bingham noted the connection between the Fifth Amendment and article 4, section 2 as follows:

Referring to the slave codes as "inhuman and unjust statutes," Bingham called for the amelioration of "the condition of men who, in flagrant violation of your Constitution, are deprived of the right to enjoy the freedom of their own person ...."[151] Passage of the bill would give slaves "a sense of personal security" and would guarantee "that no man ... be deprived of his life, of his liberty, or of his property (p.133)without due process of law; and that slavery or involuntary servitude shall never be tolerated here ...."[152]

Representative Samuel C. Fessenden, a Maine Republican, agreed that the abolition of slavery would mean full citizenship rights for the freedmen: "these men and women and children will ... be translated from the condition in which they had no rights for which this nation has had any respect into that condition in which they are invested with the rights of freemen, upon which none can trespass with impunity ...."[153]

As passed by Congress and signed by President Lincoln on April 16, 1862, the act abolishing slavery provided:

The act also repealed the provisions of the Maryland slave code that applied in the District, including the prohibition on the right of a slave to own or carry arms, by providing: "That all acts of Congress and all laws of the State of Maryland in force in said District, and all ordinances of the cities of Washington and Georgetown, inconsistent with the provisions of this act, are hereby repealed."[155]

B. The Adoption of the Thirteenth Amendment

By 1864, Congress was almost ready to propose a constitutional amendment abolishing slavery throughout the United States. The result would be the Thirteenth Amendment, which was ratified in 1865 and which provides:

As with the act to abolish slavery in the District, the framers of the Thirteenth Amendment expressed a clear intent to abrogate the slave codes as incidents of slavery. The slave codes, of course, uniformly prohibited the possession of firearms by slaves.

Heavily filled with wartime rhetoric, the debates on the Thirteenth Amendment do not include the more extensive legal and political comments as did the 1862 debate on the abolition of slavery in the District. Still, the intent was clear that the slave codes would be abrogated and that blacks would have the rights of citizens.

The anti-slavery amendment was proposed as Senate Bill No. 16. Senator Henry B. Anthony, a Republican from Rhode Island, noted: "This proposition comes most appropriately from a [S]enator [Sumner] from that State [Massachusetts] which declared that slavery was inconsistent with the Declaration of Independence and the Bill of Rights ...."[157]

Senator Henry Wilson, a Massachusetts Republican, made clear the intent to repeal the badges of slavery.

Wilson argued that the Privileges and Immunities Clause protected every citizen from state deprivation of Bill of Rights freedoms. Quoting that clause and the First Amendment, Wilson continued:(p.135)

These rights were abrogated in the slave states. "An aristocracy enjoyed unlimited power, while the people were pressed to the earth and denied the inestimable privileges which by right they should have enjoyed in all the fullness designed by the Constitution."[160] The slave states infringed on other Bill of Rights freedoms as well. "I might enumerate many other constitutional rights of the citizen which slavery has disregarded and practically destroyed ... slavery disregards the supremacy of the Constitution and denies to the citizens of each State the privileges and immunities of citizens in the several States."[161] Senator Wilson suggested that "the people of the free States should insist on ample protection to their rights, privileges, and immunities, which are none other than those which the Constitution was designed to secure to all citizens alike ...."[162]

In another speech, Senator Wilson again alluded to Dred Scott: "The Attorney General pronounces the black man, who was said to have no rights that white men were bound to respect, a citizen of the United States."[163] "If this amendment shall be incorporated by the will of the nation into the Constitution of the United States, it will obliterate the last lingering vestiges of the slave system: its chattelizing, degrading, and bloody codes ...."[164](p.136)

Repeatedly referring to the violation of Bill of Rights guarantees and to Dred Scott's statement that "the negro had no 'rights which the white man was bound to respect,'"[165] Senator Clark averred that "the arming of the slaves will make the future enslaving of these men and their kindred well nigh impossible; but slavery will still exist ... in the root and principle. This amendment will dig out the root and repudiate the principle."[166] The Senate would overwhelmingly pass the Thirteenth Amendment.[167]

In the House, Representative Ebon C. Ingersoll, an Illinois Republican, interpreted the anti-slavery amendment to enforce Bill of Rights guarantees for every person.

The proposed constitutional amendment was defeated in the House that session.[169] Supporters would be more successful in the next session with the same arguments. Representative James M. Ashley, an Ohio Republican, derided the Dred Scott dictum that "black men had no rights which white men were bound to respect."[170] Representative John A. Kasson, an Iowa Republican, complained of (p.137)the violation in the Southern states of the Privileges and Immunities Clause and the Bill of Rights.[171]

Arguing for speedy adoption of the Thirteenth Amendment, Representative William D. Kelley, Republican of Pennsylvania, expressed shock at the words of an antisecessionist planter in Mississippi who expected the Union to restore slavery. Kelley cited a letter from a U.S. brigadier general, who wrote: "'What,' said I, 'these men who have had arms in their hands?' 'Yes,' he said; 'we should take the arms away from them, of course.'"[172]

The proposed constitutional amendment finally passed the House.[173] It would be ratified by the states as of December 6, 1865.

V. The Intent of the Civil Rights Act of 1866 and the
Citizenship Clause of the Fourteenth Amendment
to Protect the Right to Keep and Bear Arms

The Civil Rights Act of 1866, currently 42 U.S.C. § 1981(a), as amended, provides in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory ... to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens ...."[174] Moreover, section 1 of the Fourteenth Amendment, which Congress passed in 1866 and the states ratified in 1868, provides in part: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."[175] The statutory protection of "the security of person and property" and constitutional recognition of citizenship were both intended by Congress to protect the individual right to keep and bear arms against any governmental infringement, including by the District of Columbia.

After the Civil War, the Southern states reenacted the slave codes in the form of the black codes, which prohibited freedmen from possession of firearms. By adopting the Civil Rights Act and the Fourteenth (p.138)Amendment, Congress intended to prevent this and other infringements on the rights of the citizen.[176]

Congress' awareness of the attempts to reenslave the freedmen was sparked by the presidentially transmitted report of Major General Carl Schurz. The widely publicized report, on which Congress placed great credence,[177] reviewed in detail abuses committed against freedmen. In addition to other methods to restore slavery, planters advocated that "the possession of arms or other dangerous weapons without authority should be punished by fine or imprisonment and the arms forfeited."[178] The report brought to the attention of Congress an ordinance enacted in Opelousas and in other Louisiana towns: "No freedman who is not in the military service shall be allowed to carry firearms, or any kind of weapon, without the special permission of his employer, in writing, and approved by the mayor or president of the board of police."[179] "This ordinance, if enforced, would be slavery in substance," and violated the Emancipation Proclamation, held the Freedmen's Bureau.[180]

On January 5, 1866, Senator Lyman Trumbull introduced S. 60, a bill to enlarge the powers of the Freedmen's Bureau, and S. 61, the civil rights bill.[181] S. 60 provided for jurisdiction of the Freedmen's Bureau in areas where the war had interrupted the ordinary course of judicial proceedings and:

S. 61 contained virtually identical language as the above, including the right "to full and equal benefit of all laws and proceedings for the security of person and property...."[183]

In debate on a bill to allow black suffrage in the District of Columbia, Representative Chandler of New York quoted from a speech by Hon. Michael Hahn of Louisiana to the National Equal Suffrage Association, where Hahn had stated:

Thus, proponents saw suffrage and the right to keep and bear arms as dual protections in a free society.

Senator Charles Sumner of Massachusetts expressed demands by freedmen for protection of their rights as follows:

Senator Lyman Trumbull opened debate on S. 61, the civil rights bill, by arguing that it enforced the Thirteenth Amendment. He stated:

Trumbull went on to quote section 7 of the bill, which referred to "full and equal benefit of all laws and proceedings for the security of person and property."[187] As is clear, Trumbull made two pertinent assumptions: first, that both positive rights and equal protection were to be guaranteed, not just equality; and second, that a prohibition on having firearms was a badge of slavery.

In the House, Nathaniel P. Banks, a former governor of Massachusetts and Union general, stated of the Freedmen's Bureau bill, S. 60: "I shall move ... to amend the seventh section of this bill by inserting after the word 'including' the words 'the constitutional right to bear arms;' so that it will read, 'including the constitutional right to bear arms, the right to make and enforce contracts, to sue, &c.'"[188] The section would thus have recognized "the civil rights belonging to white persons, including the constitutional right to bear arms ...."[189]

Senator Henry Wilson of Massachusetts argued the necessity of the civil rights bill, noting that military decrees were still necessary to (p.141)overturn the black codes. "General Sickles has just issued an order in South Carolina of twenty-three sections, more full, perfect, and complete in their provisions than have ever been issued by an official in the country, for the security of the rights of the freedmen."[190] That order, which was quoted in full in later floor debates, recognized "the constitutional rights of all loyal and well disposed inhabitants to bear arms," and the same right for ex-Confederates who had taken the amnesty oath.[191]

In House debate on S. 60 (the Freedmen's Bureau bill), Representative Josiah B. Grinnell of Iowa complained: "A white man in Kentucky may keep a gun: if a black man buys a gun he forfeits it and pays a fine of five dollars, if presuming to keep in his possession a musket which he has carried through the war."[192] In Kentucky, according to the Report of the Commissioner of the Freedmen's Bureau, "the civil law prohibits the colored man from bearing arms," and "their arms are taken from them by the civil authorities .... Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed ...."[193]

Representative Samuel McKee of Kentucky noted that 27,000 black soldiers from Kentucky

Congressman Eliot, by instruction of the Select Committee on the Freedmens' Bureau, offered a substitute for S. 60, including the following:

After the above passed the House, the Senate Committee on the Judiciary recommended that the Senate concur.[196] Explaining the amendments, Senator Trumbull noted:

Thus, the author of the Freedmen's Bureau bill and of the civil rights bill believed that the common language of both bills protected the constitutional right to bear arms.

As passed, the Freedmen's Bureau bill provided in section 7 that, in areas where ordinary judicial proceedings were interrupted by the rebellion, the President shall extend military protection to persons whose rights are violated. The contours of rights violations were described by the bill in part, as follows:

The President vetoed the bill, but Congress would soon override the veto in an improved version of the above.(p.143)

Meanwhile, the Fourteenth Amendment was working its way through Congress. Senator Samuel Pomeroy of Kansas, a supporter of the proposed amendment, stated:

Pomeroy did not know whether the proposed Fourteenth Amendment would pass, but relied on the enforcement clause of the Thirteenth Amendment.

By request of each House, President Johnson communicated to the Congress all reports made since December 1, 1865 by the assistant commissioners of the Freedmen's Bureau.[201] Filled with descriptions of infringements of the right to keep and bear arms, the reports (p.144)included a circular promulgated by Assistant Commissioner for the State of Georgia, Davis Tillson, on December 22, 1865.

Representative Henry J. Raymond of New York proposed an amendment to the civil rights bill declaring that all person born in the United States are "citizens of the United States, and entitled to all rights and privileges as such."[203] Raymond explained:

Thus, the right of citizenship, in and of itself, would protect a person from deprivation in his or her right to self defense and of keeping and bearing arms.

Representative John Bingham explained that "the seventh and eighth sections of the Freedmen's Bureau bill enumerate the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill ...."[205] Bingham then quoted the seventh section of the Freedmen's Bureau bill, which provided that all persons, including negroes, shall "have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms ...."[206] Bingham "would arm Congress with the power to ... punish all violations by State officers (p.145)of the bill of rights ...."[207] In drafting the first section of the Fourteenth Amendment, Bingham thus sought to protect the same rights, privileges, and immunities.

Echoing the above concerns, Representative Leonard Myers of Pennsylvania referred to "Alabama, ... whose aristocratic and anti-republican laws, almost reenacting slavery, among other harsh inflictions impose an imprisonment of three months and a fine of $100 upon any one owning fire-arms ...."[208] To overturn such conditions, Myers recommended the following imperatives:

Likewise, Representative Roswell Hart of New York stated: "The Constitution clearly describes that to be a republican form of government for which it was expressly framed. A government ... where 'the right of the people to keep and bear arms shall not be infringed' ...."[210] In further debate on the civil rights bill, Representative Sidney Clarke of Kansas angrily referred to an 1866 Alabama law providing "[t]hat it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own fire-arms, or carry about his person a pistol or other deadly weapon."[211] Clarke attacked Mississippi, whose militia seized arms of black soldiers, and continued:

The President vetoed the civil rights bill, but Congress overrode the veto. As enacted, section 1 of the Civil Rights Act of 1866 provided:(p.146)

Meanwhile in the Senate, Jacob M. Howard introduced the Fourteenth Amendment on behalf of the Joint Committee on Reconstruction promising to present "the views and the motives which influenced that committee ...."[214] Howard examined section 1 of the proposed constitutional amendment, referring to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; ... [and] the right to keep and bear arms...."[215] Because state legislation infringed these rights, adoption of the Fourteenth Amendment was imperative. "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."[216]

The same day, the House debated the newly-introduced second Freedmen's Bureau bill,[217] section 8 of which protected "the constitutional right to bear arms."[218] In a section-by-section explanation, Representative Eliot explained: "The eighth section simply embodies the provisions of the civil rights bill, and gives to the President authority, through the Secretary of War, to extend military protection to secure those rights until the civil courts are in operation."[219] The constitutional basis of the bill, Eliot noted, was the Thirteenth Amendment.[220]

Eliot argued the need for the bill based on Freedmen's Bureau reports of abuses, such as that of General Fisk, who wrote of freedmen returning to their homes after discharge from the Union army.(p.147)

After section 1 of the proposed Fourteenth Amendment was amended to include the citizenship clause,[222] Senator John B. Henderson of Missouri expounded the concept of citizenship by reference to Dred Scott. Senator Henderson quoted from the opinion of the Supreme Court as follows:

In Dred Scott, according to Henderson, Chief Justice Taney had conceded to members of the state communities "all the personal rights, privileges, and immunities guarantied [sic] to citizens of this 'new Government.' In fact, the opinion distinctly asserts that the words 'people of the United States' and 'citizens' are 'synonymous terms.'"[224] However, Taney had disregarded the plain meaning of the term "the people" to exclude blacks.[225]

Taney's opinion also declares explicitly that citizens are entitled to Bill of Rights guarantees, including those of the Second Amendment. The following passage from the opinion particularizes the rights discussed in the passages to which Henderson referred, and illustrates the objectives sought by the Republicans in Congress:(p.148)

Henderson noted that one objective of the second Freedmen's Bureau bill and the Civil Rights Act was to recognize the right "to enjoy in the respective States those fundamental rights of person and property which cannot be denied without disgracing the Government itself."[227] Henderson characterized them as "civil rights" and as "the muniments of freedom."[228]

Senator Richard Yates of Illinois then argued that the abolition of slavery by the Thirteenth Amendment itself overruled Dred Scott and conferred citizenship on the Negro, who was thereby "entitled to be protected in all his rights and privileges as one of the citizens of the United States."[229]

Representative Godlove S. Orth of Indiana characterized section 1 of the Fourteenth Amendment as: "[s]ecur[ing] to all persons born or naturalized in the United States the rights of American citizenship."[230] Representative George W. Julian of Indiana noted that

This again shows the common objective of the Civil Rights Act and the Freedmen's Bureau bill to protect the right to keep and bear arms, and the need for the Fourteenth Amendment to provide a constitutional foundation and mandate for protecting this right and others.

In the Senate, section 8 of the second Freedmen's Bureau bill, which recited "the constitutional right to bear arms," was renumbered as section 14.[232] Senator Thomas Hendricks of Indiana moved to strike the entire section:

Overriding the President's second veto, over two-thirds of Congress passed the Freedmen's Bureau Act.[234] Section 14 of the Act provided, in relevant part:

In sum, the Freedmen's Bureau Act declared that "the constitutional right to bear arms" is included among the "laws and proceedings concerning personal liberty, personal security," and property, and that "the free enjoyment of such immunities and rights" is to be protected. The Civil Rights Act of 1866 also protected the right "to the full and equal benefit of all laws and proceedings for the security of person and property," and its Framers explained that clause to be identical in meaning with that of the Freedmen's Bureau Act. To top that off, the Fourteenth Amendment would recognize all persons born in the United States as citizens, who would thereby gain every right of citizenship, including, in the words of Dred Scott, the right "to keep and carry arms wherever they went."

VI. The Organic Act and The Civil Rights Act of 1871

Current D.C. Code § 1-102(a) provides: "The District is created a government by the name of the 'District of Columbia,' by which name it is constituted a body corporate for municipal purposes, and may ... exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States ...."[236] This language originated in the Organic Act of February 21, 1871.[237] Thus, Congress' perception of the Constitution in 1871 would be pertinent to interpretation of the current statute prohibiting District action inconsistent with the Constitution.

Debate on the Organic Act itself generated few disquisitions on the general nature of constitutional rights. However, in discussions of constitutional provisions pertaining to the District, such as the seat-of-government (p.151)clause, members of Congress relied on what they believed to be correct expositions of the Constitution. Representative Poland, who was active in the debate on the Civil Rights Act, relied on James Madison in The Federalist and Joseph Story in Commentaries on the Constitution. Representative Hoar referred to "one of the highest legal authorities in this country, St. George Tucker, editor of Blackstone's Commentaries ...."[238] Madison, Story, and Tucker all viewed the Second Amendment as guaranteeing a fundamental, personal right to keep and bear private arms.[239] Bingham, Poland, and the members of the Congress who passed the Civil Rights Act of 1871 agreed, and intended that the Act, based on the Fourteenth Amendment, would protect this right from state infringement.

Representative John Bingham, Chairman of the House Judiciary Committee, took an active role in the debate on the District bill.[240] In debate on the civil rights bill, Bingham characterized "the right of the people to keep and bear arms" as one of the "limitations upon the power of the States ... made so by the Fourteenth Amendment."[241]

Representative Benjamin Butler argued for protection of "rights, immunities, and privileges" guaranteed in the Constitution.[243] In a report introducing the civil rights bill, Butler described Klan attacks on blacks who had been disarmed by sheriffs, and advocated protection (p.152)for "the well-known constitutional provision guaranteeing the right in the citizen to 'keep and bear arms' ...."[244] Representative John Coburn, an Indiana Republican, supported the bill to prevent the following state infringement: "How much more oppressive is the passage of a law that they shall not bear arms than the practical seizure of all arms from the hands of the colored men?"[245]

Opponents of the bill also recognized this purpose. Representative Washington Whitthorne, Democrat of Tennessee, noted that the bill would allow suits by any person deprived by state action "of any right, privilege, or immunity secured to him by the Constitution of the United States." If a police officer seized a pistol from a "drunken negro," Whitthorne stated, "the officer may be sued, because the right to bear arms is secured by the Constitution...."[246]

Senator Allen G. Thurman, Democrat of Ohio, included among Fourteenth Amendment protections: "Here is another right of a citizen of the United States, expressly declared to be his right--the right to bear arms; and this right, says the Constitution, shall not be infringed."[247]

It is little wonder that the Reconstruction Congress never passed any regulation of the right to peaceably keep and bear arms. Congress never acted on a proposed revision of the statutes in force in the District submitted to Congress in 1872, which contained only one provision concerning the possession of firearms:

In sum, D.C. Code § 1-102(a) provides that the District may not exercise any power "inconsistent with the Constitution." The same Congress that originally passed this provision also adopted the Civil Rights Act of 1871, and in debate concerning the latter expressed the view that any infringement of the individual right to keep and bear arms would be inconsistent with the Constitution.

VII. The Militia Law of the District

The federal Militia Act of 1792 required "every able-bodied white male citizen of the respective states," ages 18-44, to provide himself with a musket, rifle, or pair of pistols.[249] Each state, including Virginia and Maryland, required the same.[250] The Act concerning the District of Columbia provided that the laws of Virginia and Maryland respectively shall be the laws of the District in the areas ceded by those two states.[251]

The following year, an amendatory Act provided: "That the President of the United States be authorized to cause the militia, of the respective counties of Washington and Alexandria to be formed into regiments and other corps, conformably, as nearly as may be, to the laws of Maryland and Virginia ...."[252] An Act more effectually to provide for the organization of the militia of the District of Columbia further empowered the President to organize the militia in the District. This act recognized that the 1792 Act also applied.[253] Accordingly, every militia member was required to appear armed and equipped on muster days.[254]

In Wise v. Withers, Chief Justice Marshall wrote that "the militia law of the district refers to the general law of the United States...."[255] A justice of the peace was held exempt from militia duty.

A report of the House Committee on the Militia in 1829 asserted that "a well organized and efficient national militia is ... the most appropriate and legitimate defence of a free, high-minded, and enlightened people ...."[256] The committee recommended that the (p.154)militia include all able-bodied white males between the ages of twenty-one and forty years old.[257] The states and territories should have a uniform organization.

The committee recommended that the United States furnish the arms, a suggestion Congress would not approve. The report illustrates that common notion that a well regulated militia is necessary for the "defence of a free ... people," including the District, and that the populace should be armed.

[ed: per errata, blocks of text from pgs.158-162 moved to this point on pg.154. Pagination now out of sequence.] In 1867, a controversy took place involving volunteer black militia companies in the District of Columbia. The existence of these independent black militias contributed to the already divisive relationship between supporters of civil rights and President Johnson. In the fall of 1867, Johnson ordered the disbandment of these militias, which Radicals saw as protected by the Constitution.

The controversy was mentioned by George W. Pascal, a prominent jurist and law professor,[280] in his explanation of the Second Amendment in The Constitution of the United States (1868) as follows:(p.159)

Pascal wrote that "the people" meant the citizens, not the States,[282] and that the term "embraces all the inhabitants--citizens and aliens--who are entitled to the protection of the law."[283] Referring to the militia clause of the Constitution, he noted: "Militia here means the body of arms-bearing citizens, as contradistinguished from the regular army."[284] Regarding the Fourteenth Amendment, Pascal wrote:

Two independent black militias had drilled in the District of Columbia since the end of the Civil War, when their members purchased their muskets from the government.[286] Commented Washington's Daily Chronicle: "The time may come when they may be essential in preserving the peace of the District as they were essential in preserving their liberties."[287] However, the Daily National Intelligencer replied that the "negro companies were drilling ... for the avowed purpose of supporting Congress in the enforcement of the laws to be enacted for the purpose of deposing the President during his impeachment."[288](p.160)

President Johnson ordered General Grant to suppress all such organizations in the District of Columbia, which the Chronicle saw as an order "to disarm or disband the freedman before he commences his campaign against them."[289] The President's constitutional and statutory power to order the militias disbanded were debated in the press.[290] The military commander for the District reported to General Grant that, in the absence of martial law, he had no authority to execute the President's order.[291] The President asked the Attorney General for an opinion as to his power.[292]

District Mayor Wallach stated that "the negroes had as much right as white men to raise companies in conformity with the militia laws of the District."[293] The scope of the President's order encompassed all militia-type organizations, not just black ones, leading the New York Times to comment that "in attempting to snub the African [the President] has literally 'put his foot into it' with his white friends to an embarrassing degree."[294] However, the Baltimore Sun noted:(p.161)

Charles Fischer, major of one of the black militia companies, wrote to General Grant that the "armed portion of the organization is made up of those members who purchased arms from the Government." Denying that "we are hostile bands of armed negroes," Fischer asserted: "Our object is to show to the world that we are worthy of the freedom obtained by the late war."[296] The freedmen militias stopped parading in the streets, but did not disband, and promised a challenge to the President's order in the courts.[297]

While the outcome of any such challenge is unknown, the Daily Chronicle attacked the President's order as a violation of the First Amendment right to assemble and the Second Amendment right to bear arms:

The New York Tribune accused the President of infringing on the Second Amendment and acting beyond his power under Article I, § 8, (p.162)clause 17, which entrusts to Congress authority to exercise exclusive jurisdiction over the District.[299] It commented:

The militia controversy came right on the eve of, and was overshadowed by, the beginning of President Johnson's impeachment trial. In any event, the issue gave rise to the expression of opinion during a critical period of Reconstruction concerning the rights to associate and to bear arms as a militia in the District of Columbia.

[ed: per errata, blocks of text from pg.158-162 moved before this point on pg.154. Pagination resumes pg.154.] The 1803 militia act for the District was repealed by the 1889 Act to provide for the organization of the militia of the District of Columbia.[259] That act, with minor amendments not pertinent here, is retained in the current D.C. Code, which provides: "Every able-bodied male citizen within the District of Columbia, of the age of 18 years and under the age of 45 years, ... shall be enrolled in the militia."[260] In addition, "[t]he enrolled militia shall not be subject to any duty except when called into the service of the United States, or to aid the civil authorities in the execution of the laws or suppression of riots."[261] This militia "shall be composed of volunteers, and shall be designated the National Guard of the District of Columbia."[262]

The arms of the National Guard are to be the same as those furnished to the regular Army, and are to be issued from the Army.[263] Armories are to be provided for the "safekeeping of the arms ... and other militia property in their [the National Guard's] possession."[264]

The requirement of the 1792 federal Militia Act, that every able-bodied white male must provide himself with a firearm, remained on (p.155)the books when the 1889 D.C. Militia Act passed, except that the term "white" was stricken by the Reconstruction Congress in 1867, thereby broadening the militia to include adult non-white males.[265] However, in 1903 an Act to promote the efficiency of the militia repealed the 1792 Act, which required every man to keep a firearm.[266] The 1903 Act defined the militia as "every able-bodied male citizen of the respective States ... and the District of Columbia," dividing it between the "organized militia" (National Guard) and the "Reserve Militia."[267] The Secretary of War was authorized to issue service magazine arms for arming all of the organized militia in the states and the District.[268]

Shortly thereafter, Congress passed "[a]n Act to promote the efficiency of the reserve militia and to encourage rifle practice among the members thereof."[269] It provided for the sale of "magazine rifles belonging to the United States as are not necessary for the equipment of the Army and the organized militia, for the use of rifle clubs formed under regulations prepared by the national board for the promotion of rifle practice and approved by the Secretary of War."[270]

The 1905 reserve militia act was then expanded by a military appropriations act in 1924 providing, in part, for the

After being amended over the years, what began as the 1905 reserve militia act is now codified as 10 U.S.C. §§ 4307-4313.[272] Those provisions provide for the federal Civilian Marksmanship Program (CMP), which sponsors rifle and pistol competitions at the state, regional, and national level. Under section 4308, the Secretary of the Army is required to provide for "the instruction of able bodied citizens (p.156)of the United States in marksmanship," "the promotion of practice in the use of rifled arms," and the loan or sale of rifles and ammunition to citizens over 18 years old who are members of a gun club under the direction of the National Board for the Promotion of Rifle Practice.

Congress passed the above under its powers over the army and the militia. Regulations have been issued providing that,

Competitors are generally required to provide their own arms. For competitions, the following armaments are required: "US pistol, caliber .45M1911 or M1911A1. Competitors may use the Caliber .45M1911 or M1911A1 as issued by the US Armed Forces or a commercial pistol of the same type and caliber."[274]

The District pistol prohibition interferes with the national defense particularly because no person who is presently young would have registered a pistol by 1976. Young citizens are the most likely to be called by the Armed Forces in event of a national emergency. Of course, older citizens are also used to train others in marksmanship. Thus, the District law is inconsistent with and preempted by federal law.

In sum, pursuant to the 1889 Act, which is still in effect, the organized militia of the District is its National Guard, while the reserve militia includes every able-bodied male citizen aged eighteen to forty-four. The District's National Guard is not the well-regulated militia anticipated by the Second Amendment, for the latter provides that "the right of the people to keep ... arms, shall not be infringed." Moreover, the "free State" that the Second Amendment seeks to secure includes the District. The District was subject to the 1792 Militia Act requirement that every free white male keep a firearm, and to the 1867 requirement that every male, without regard to race, keep a firearm. Today, pursuant to an act designed to promote the reserve (p.157)militia, all qualified male or female citizens of the United States, including District residents, are eligible to participate in rifle and pistol matches promoted by the Civilian Marksmanship Program. Since it interferes with this Program devised by Congress for the national defense, the District's handgun ban is preempted.

VIII. Supreme Court Jurisprudence

A. The Applicability of the Bill of Rights, Including the Second
Amendment, to Congress and the District

It is well established that the Bill of Rights, including the Second Amendment, limits Congress. Previous controversies concerned the applicability of Bill of Rights provisions to the states, either directly or through the Fourteenth Amendment.[275] Does the Second Amendment limit Congress or the District government (which acts only pursuant to delegation of power from Congress) regarding firearms prohibitions in the District? The anomalous suggestion that it does not, at least superficially, has the effect of turning established jurisprudence on its head.

In three nineteenth century cases, the Supreme Court held that the First, Second, and Fourth Amendments do not limit state action, but failed to consider whether the Fourteenth Amendment incorporates these provisions so as to limit state action. These cases do, however, address whether the Second Amendment limits action by Congress and the nature of the right protected by the Second Amendment.

United States v. Cruikshank[276] involved indictments under the Enforcement Act of 1870, today's 18 U.S.C. §§ 241 and 242, for murder and a conspiracy to deprive freedmen of the rights to assemble and to keep and bear arms. The Court decided that the right to assemble is fundamental, but that private persons cannot violate this right:

The Court concluded that the First Amendment "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone."[278]

The Court then subjected the Second Amendment to the same analysis as the First:

The Court did not question that the freedmen had an individual right to assemble and to bear arms for a lawful purpose. Had the Court interpreted the Second Amendment to protect only a state power to maintain a militia, it could have disposed of the Second Amendment claim on that basis. Instead, it held that Congress, but not private individuals, was precluded from infringing on the freedmen's right to bear arms.

[ed. per errata, preceeding blocks of text from pg.158-162 moved to pg.154. Pagination resumes here at pg.162 and remains in sequence.] Unlike Cruikshank, state action was involved in Presser v. Illinois.[301] Presser was indicted under an Illinois act for parading four hundred armed men in Chicago without a license from the governor.[302] The Court rejected defendant's claim that the Second Amendment protects a right to form a private military unit:

In short, the Court held that the armed paraders went beyond the individual right of keeping and bearing of arms, adding in dictum that the Second Amendment does not apply directly to the states.[304] Similarly, the Court rejected the application of the right of assembly to Presser's band, because the First Amendment does not protect "[t]he right voluntarily to associate together as a military company ...."[305] Once again, the Court questioned neither Presser's individual right to keep and bear arms nor Congress' inability to infringe on that right.

In Miller v. Texas,[306] the defendant claimed, for the first time on appeal, that a state statute concerning the carrying of pistols violated the Second, Fourth, and Fourteenth Amendments. The Court found that the Second and Fourth Amendments, in and of themselves, "operate only upon the Federal power ...."[307] Once again, the Court was emphatic that Congress could not infringe on the Second and Fourth Amendments, and assumed that Miller had an individual right to keep and bear arms. Otherwise, the Court could have disposed of the case on the basis that only states have this right.

Indeed, just after the above decision, the Court reiterated that the right to keep and bear arms is an ancient, fundamental right, not a (p.164)creature of Constitution makers who were defining the federal-state balance. Robertson v. Baldwin[308] states:

The Court thus depicted the right as fundamental, noting that it may be regulated but not prohibited. Nothing in the above language is consistent with the argument that District residents do not have this right.

In United States v. Miller,[310] the Court avoided determining whether a short barrel shotgun may be taxed under the National Firearms Act consistent with the Second Amendment. The district court had declared the Act unconstitutional in violation of the Second Amendment,[311] and thus no evidence was in the record that such a shotgun was an ordinary military arm.[312] The Supreme Court remanded the case for fact-finding based upon the following:

The Miller court did not suggest that the possessor must be a member of the militia or National Guard, asking only whether the arm could have militia use. The private, individual character of the right protected by the Second Amendment went unquestioned.

The Aymette opinion was a Tennessee case which stated on the page cited above by the U.S. Supreme Court: "If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights ...."[314]

Referring to the militia clause of the Constitution, the Miller Court stated that "to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made."[315] The Court then surveyed colonial and state militia laws to demonstrate that "the Militia comprised all males physically capable of acting in concert for the common defense" and that "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."[316] Despite these references to state militia laws, from the time of the District's creation its citizens were also required to provide arms for themselves.

Miller cites approvingly the commentaries of Joseph Story and Thomas M. Cooley.[317] Justice Story stated: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."[318] Miller's reference to Judge Cooley finds him stating:

The above language makes clear that the objective of the Second Amendment is to preserve freedom and prevent tyranny, an interest which the District's inhabitants share with those of the states.

Perpich v. Department of Defense[320] recognized that the National Guard is part of the Armed Forces of the United States and that the Reserve Militia includes all able-bodied citizens.[321] The issue was whether the militia clause allows the President to order members of the National Guard to train outside the United States without the consent of a state governor or the declaration of a national emergency.[322] Perhaps the most noteworthy fact about the opinion is its failure to mention the Second Amendment at all, that amendment being irrelevant to the issue of the state power to maintain a militia. In fact, the Court refers to the state power over the militia as being recognized only in "the text of the Constitution," not in any amendment.[323]

Although it involved the Fourth Amendment, United States v. Verdugo-Urquidez makes clear that the Second Amendment protects the rights of the citizenry at large.[324] The Court stated:

Certainly the residents of the District belong to the "class of persons who are part of a national community." The Court did not suggest that the "free State" language of the Second Amendment precludes District citizens from being part of "the people."

The 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey[326] discussed the broad parameters of the Fourteenth Amendment's due process clause, noting:

Everything the Court stated about the Fourteenth Amendment, regarding protection from state action, would apply equally to the Bill of Rights acting as a protection from federal action. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."[328] The Court stated:

Thus, Planned Parenthood recognizes "the right to keep and bear arms" as one of the "specific guarantees" provided in the Constitution. This right is protected from congressional (and hence District) infringement by the Second Amendment.

The Supreme Court has uniformly rejected the argument that Bill of Rights' provisions do not apply in the District. In Callan v. Wilson,[330] government counsel argued that the jury guarantees of Article 3, the Sixth Amendment, and the Due Process Clause of the Fifth Amendment did not apply in the District, and thus that crimes could be tried without juries. The Court responded that each constitutional guarantee

Under the Seat of Government clause, held the Court in 1899, Congress "may exercise within the District all legislative powers that the legislature of a state might exercise within the state, ... so long as (p.169)it does not contravene any provision of the Constitution of the United States."[332]

Again, in Wright v. Davidson,[333] while holding the Fourteenth Amendment inapplicable to the District, the Court also held:

Quoting from the above cases, the U.S. Court of Appeals for the District of Columbia Circuit in Wilson v. McDonnell considered

More recent Supreme Court precedents have been unwavering. Said the Court in 1974: "Like other provisions of the Bill of Rights, it [the Seventh Amendment] is fully applicable to courts established by Congress in the District of Columbia."[335] Being solely a creature of Congress, the District is without question a place where the Bill of Rights fully applies.(p.170)

B. The Civil Rights Acts and the Reconstruction Amendments

The declaration of the Freedmen's Bureau Act concerning "the [C]onstitutional right to bear arms" has never been mentioned in any reported decision concerning the Fourteenth Amendment or the Civil Rights Act of 1866. The same Congress, of course, passed both Acts and the Amendment by over two-thirds vote. The 1866 Act is currently codified at 42 U.S.C. §§ 1981, 1982. The portion codified at section 1981 protects, inter alia, the "full and equal benefit of all laws and proceedings for the security of person and property ...."[336]

While the Supreme Court has never considered whether the Civil Rights Act of 1866 protects the right to have arms, in 1872 Justice Bradley stated that section 1 of the Act "is in direct conflict with those state laws which forbade a free colored person ... from having firearms."[337]

In civil rights cases decided in the 1960s and 70s, the Supreme Court recognized the common origins and purposes of the Freedmen's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment. More broadly, the Court has recognized the fundamental character of the rights to personal security and personal liberty, which the Framers of those acts and the Fourteenth Amendment declared as including the constitutional right to bear arms.

Hurd v. Hodge[338] held that, for purposes of the Civil Rights Act of 1866, today's 42 U.S.C. §§ 1981, 1982, the District is included in the term "State and Territory." In determining the scope of the Act, "reference must be made to the scope and purpose of the Fourteenth Amendment; for that statute and the Amendment were closely related both in inception and in the objectives which Congress sought to achieve."[339] "In many significant respects the statute and the Amendment were expressions of the same general [C]ongressional policy."[340] A purpose of the Fourteenth Amendment "was to incorporate (p.171)the guaranties [sic] of the Civil Rights Act of 1866 in the organic law of the land."[341]

While the Fourteenth Amendment does not apply to the District, the Fifth Amendment's Due Process Clause incorporates Fourteenth Amendment ideals of fairness. Bolling v. Sharpe[342] stated:

District of Columbia v. Carter[344] held that the District is not a "State or Territory" in the meaning of the Civil Rights Act of 1871, 42 U.S.C. § 1983. The Civil Rights Act of 1866, however, does restrain the District, because it was enacted to enforce the Thirteenth Amendment, which applies nationally.[345] However, section 1983 was passed to enforce the Fourteenth Amendment, which only pertains to the states.[346] For section 1983 to apply to the District, Congress would have to exercise its power under article 1, section 8, clause 17 of the Constitution.[347] Indeed, following the Carter decision, Congress did just that by amending section 1983 to include the District.[348]

In Goodman v. Lukens Steel Co.,[349] Justice Brennan, joined by Justices Marshall and Blackmun, concurring in part and dissenting in part, noted of section 1981: "Clearly, the 'full and equal benefit' and 'punishment' clauses guarantee numerous rights other than equal (p.172)treatment in the execution, administration, and the enforcement of contracts."[350] Justice Brennan noted:

In Bell v. Maryland, Justice Douglas noted that the Fourteenth Amendment was intended to eradicate the black codes, under which "Negroes were not allowed to bear arms or to appear in all public places ...."[352] Justice Goldberg, joined by the Chief Justice and Justice Douglas, traced the Fourteenth Amendment to the Civil Rights Act and Freedmen's Bureau bill, quoting the latter's reference to "full and equal benefit of all laws and proceedings for the security of person and estate ...."[353] Justice Goldberg wrote:

Concurring in Duncan v. Louisiana, Justice Black recalled the following words of Senator Jacob M. Howard when introducing the Fourteenth Amendment to the Senate in 1866:

Section 14 of the Freedmen's Bureau Act, which expressly recognized the right to bear arms, was discussed in Georgia v. Rachel in reference to "the enforcement of the numerous statutory rights created under the Civil War Amendments:"[356]

In City of Greenwood, Mississippi. v. Peacock,[358] the Court again referred to section 14 of the Freedmen's Bureau Act, which recognized the right to bear arms:

In Jones v. Alfred H. Mayer Co., the Court held that section 1982 barred both public and private racial discrimination in the sale or rental of property, and that the Act "is a valid exercise of the power of Congress to enforce the Thirteenth Amendment."[360] In its opinion, the Court explained the common meaning of the Civil Rights Act and the Freedmen's Bureau bill, as well as the origins of the Fourteenth Amendment in this legislation.

The first Freedmen's Bureau bill, S. 60, would have protected the right of every person "to have full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right to bear arms."[361] While not contained in the original version, the explicit reference to the arms guarantee was inserted by the House on the recommendation of the Select Committee on the Freedmen's Bureau.[362] Senator Lyman Trumbull, author of the bill and Chairman of the Senate Judiciary Committee, explained that the above addition did not alter the meaning.[363] Similarly, John Bingham, author of section 1 of the Fourteenth Amendment, explained that the above section of the Freedmen's Bureau bill "enumerate[s] the same rights and all the rights and privileges that are enumerated in the first section of this [the Civil Rights] bill ...."[364]

Outlining some of the same legislative history, Jones v. Mayer noted the origin of the Civil Rights Act in S. 60, the first Freedmen's Bureau bill.[365] Even though Congress could not override the President's veto, "the bill [S. 60] was significant for its recognition"[366] of certain rights. The Court further noted:

Similarly, no member of Congress disputed the explanation by both Bingham and Trumbull that the Civil Rights Act would protect the rights explicitly listed in the Freedmen's Bureau bill, which included the right to bear arms. The Court further remarked: "[T]he congressional discussion proceeded upon the understanding that all discriminatory conduct reached by the Freedmen's Bureau bill would be reached as well by the Civil Rights Act."[368]

The Jones Court also noted the link between the above understanding and the Fourteenth Amendment:

The Court further observed that "Senator Trumbull's bill would, as he pointed out, 'destroy all [the] discriminations' embodied in the Black Codes, but it would do more: It would affirmatively secure for all men, whatever their race or color, what the Senator called the 'great fundamental rights' ...."[370] The black code provisions that would be eradicated, explained Trumbull on the same page of the Congressional Globe cited by the Court, included the "provisions of (p.176)the [Mississippi] statute [which] prohibit any negro or mulatto from having firearms ...."[371]

The right to keep and bear arms could be found to be protected both by 42 U.S.C. § 1981 and by the Thirteenth and Fourteenth Amendments, according to the standards set forth in Jones v. Mayer. The Court remarked: "We think that history leaves no doubt that, if we are to give [the law] the scope that its origins dictate, we must accord it a sweep as broad as its language."[372] Further, the Thirteenth Amendment "clothed Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States."[373] The Black Code prohibitions on possession of firearms were a badge of slavery.[374]

The significance of the rights declared in the Freedmen's Bureau bill and the Civil Rights Act to the Fourteenth Amendment has also been articulated in several other cases. In Oregon v. Mitchell,[375] Justice Harlan traced the legislative history, noting that protection for the "full and equal benefit of all laws and proceedings for the security of person and property" appeared in section 1 of the Civil Rights Act, and that:

Similarly, the Civil Rights Act of 1871, 42 U.S.C. § 1983, which protects "any rights" that are "secured" by the Constitution, and which enforces the Fourteenth Amendment, has been traced in part to the Freedmen's Bureau bill.[377]

Justice Marshall's opinion in Regents of the University of California v. Bakke states: "The Congress that passed the Fourteenth (p.177)Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act.... Rejecting the concerns of the President and the bill's opponents, Congress overrode the President's second veto."[378] Justice Marshall concluded that the rights set forth in the Freedmen's Bureau Act were dispositive of Congress' intent in the Fourteenth Amendment.[379]

The Court does not always seem to be aware that the Freedmen's Bureau Act actually passed. Four references to the bill by the Supreme Court state only that it was vetoed and that the override vote failed;[380] three cases mention that the bill actually passed in a second override vote.[381] Only a few appellate courts have recognized the passage of the Freedmen's Bureau Act of 1866.[382]

The Freedmen's Bureau Act has never been mentioned by any court in a case concerning whether the Civil Rights Act or the Fourteenth Amendment protects the right to keep and bear arms. The only exception is the Ninth Circuit, which did not acknowledge the recognition in the Act of "the constitutional right to bear arms."[383]

However, noting that today's "section 1981 rests on the [T]hirteenth and [F]ourteenth amendments," the Third Circuit explains:

Concerning the Freedmen's Bureau bill, the Civil Rights Act, and the Fourteenth Amendment, the dissent noted: "Both temporally and politically the ... measures were related."[385]

IX. Conclusion

When it comes to the right of the people to keep and bear arms, District residents are considered by the D.C. Court of Appeals not to be any more among "the people" than the Supreme Court considered Mr. Dred Scott. However, the Framers of the Second Amendment intended to secure "a free State," meaning a free country, and never hinted that residents of the seat of government had fewer civil rights than residents of the states. Moreover, the full and equal rights of all "citizens" were forever settled in the 1860s--slavery was abolished in the District and then nationally, the Freedmen's Bureau Act and the Civil Rights Act were passed in 1866, and the Fourteenth Amendment became part of the Constitution.

Making it a criminal act for a law-abiding citizen to keep and bear arms is tantamount to a badge of slavery. It is unlawful in the District to keep a pistol in the home, many semiautomatic firearms are unlawful to possess, a registered firearm must be kept unloaded and disassembled or trigger-locked and thus worthless for self-defense, and by policy no person may be issued a permit to carry a concealed weapon, no matter how dire the threat. The honest, law-abiding citizens of the nation's capital, popularly known as the murder capital of the United States, are no more than second-class citizens.

[*] Ph.D., Florida State University (1972); J.D., Georgetown University (1978); Attorney at Law, Fairfax, Virginia, 1978 to present; Assistant Professor of Philosophy, Tuskegee Institute, Howard University, George Mason University, 1972-1981. Author of A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press 1989) and That Every Man Be Armed: The Evolution of a Constitutional Right (University of New Mexico Press 1984) (reprinted by the Independent Institute 1994).

[1] For 1994, figures compiled by the Federal Bureau of Investigation award the title of U.S. murder capital to New Orleans, Louisiana; the District of Columbia ranked third behind Richmond, Virginia. City 3rd Nationally in Rate of Murders, Wash. Times, May 22, 1995, at C4 (figures are computed as the rate of murders per 100,000 persons). While this represented an eleven percent drop in the District's murder rate in the preceding year; put in the context of the historical trend, the decrease is insignificant. The murder rate for the first five years of the 1990s is more than two times the rate prevailing during the first five years of the 1980s. Murder in the Capital, Wash. Times, Jan. 5, 1995, at A18. In 1993, Gary, Indiana won top honors with the District again in the running. "Murder Capital's" Slayings Decrease, Balt. Sun, Jan. 3, 1995, at 3A. However, before being knocked off by Gary, the District was the nation's murder capital for the preceding five years. Margaret Rankin, Nation's Capital Happy to Shed Nom de Guerre, Wash. Times, Jan. 6,1993, at A3. With one caveat, in 1992 East Palo Alto, California, actually had the highest rate of murders per 100,000; however, that city boasted a population of merely 24,000, making it somewhat of a statistical anomaly. In that same year, the District, with a population of 589,000, posted the highest per capita homicide rate among cities with populations of more than 250,000. Id.

[2] U.S. Const. amend. II.

[3] 520 A.2d 1057 (1987).

[4] E.g., Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1162-68 (1991); Stephen P. Halbrook, The Right of the People or the Power of the State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U. L. Rev. 131 (1991); Sanford Levinson The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).

[5] 60 U.S. (19 How.) 393, 417 (1857).

[6] 14 Stat. 27 (1866).

[7] 42 U.S.C. § 1981(a) (1994).

[8] 14 Stat. 173, 176-77 (1866).

[9] Cong. Globe, 39th Cong., 1st Sess. 1292 (1866).

[10] U.S. Const. amend. XIV, § 1.

[11] 100 Stat. 449 (1986) (emphasis added).

[12] D.C. Code Ann. § 1-102(a) (1992).

[13] 16 Stat. 419 (1871).

[14] 1 Stat. 271, 272 (1792); 2 Stat. 103, 104 (1801).

[15] 14 Stat. 422, 423 (1867).

[16] 25 Stat. 772 (1889).

[17] D.C. Code Ann. § 39-101 (1992).

[18] 33 Stat. 986, 987 (1905).

[19] 10 U.S.C. § 4308 (1994).

[20] Tit. 2, ch. 2, § 31, in H.R. Misc. Doc. No. 25, 42d Cong., 3d Sess. 610 (1872).

[21] Revised Statutes of the United States Relating to the District of Columbia Passed at the First Session of the Forty-Third Congress, 1873-1874, 18 Stat., pt. 2, ch. 36 (Crimes and Offenses).

[22] 27 Stat. 116 (1892).

[23] Id.

[24] H.R. Rep. No. 1148, 52d Cong., 1st Sess. 1 (1892).

[25] Cong. Rec. 1051 (Feb. 11, 1892).

[26] Id. at 5788 (July 6, 1892).

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 5789.

[31] 31 Stat. 1328 (1901).

[32] 34 Stat. 808 (1906).

[33] S. Rep. No. 4338, 59th Cong., 1st Sess. (1906); H.R. Rep. No. 4207, 59th Cong., 1st Sess. (1906).

[34] Cong. Rec. 7569-70 (May 28, 1906).

[35] Id. at 7569.

[36] Id.

[37] Id. at 809.

[38] 47 Stat. 650 (1932).

[39] Id. at 651.

[40] Id. at 650-51.

[41] Id. at 650.

[42] Id. at 654.

[43] Id. at 650 (emphasis added).

[44] H.R. Rep. No. 767, 72d Cong., 1st Sess. 2 (1932).

[45] Cong. Rec. 7982 (Apr. 11, 1932).

[46] Id.

[47] S. Rep. No. 575, 72d Cong., 1st Sess. 3 (1932); Cong. Rec. 12754 (June 13, 1934) (emphasis added).

[48] 57 Stat. 586 (1943).

[49] H.R. Rep. No. 762, 78th Cong., 1st Sess. 1 (1943).

[50] 88 Cong. Rec. 8695 (Oct. 25, 1943).

[51] Id.

[52] 61 Stat. 743 (1947).

[53] 67 Stat. 93, 94 (1953).

[54] D.C. Code Ann. § 22-3204(a) (1992).

[55] D.C. Code Ann. § 22-3205.

[56] D.C. Code Ann. § 22-3208.

[57] D.C. Code Ann. §§ 22-3209-3210.

[58] D.C. Code Ann. §§ 22-3202-3204(b).

[59] D.C. Code Ann. § 22-3203.

[60] D.C. Code Ann. § 22-3214(a).

[61] D.C. Code Ann. § 22-3201(c).

[62] D.C. Code Ann. § 6-2311(a) (1992). In addition to the standard governmental entities, section 6-2311(a) exempts "any nonresident of the District participating in any lawful recreational firearm-related activity in the District, or on his way to or from such activity in another jurisdiction .... Provided further, that such weapon shall be unloaded, securely wrapped, and carried in open view." Id. To carry the firearm in open view, apparently the wrapping would have to be clear. Registration qualifications, requirements, and procedures are set forth in D.C. Code Ann. § 6-2313.

The registration requirement was originally enacted in 1969, and was upheld in Maryland & D.C. Rifle and Pistol Ass'n v. Washington, 442 F.2d 123 (D.C. Cir. 1971).

[63] D.C. Code Ann. § 6-2312(a) (1992). "'Pistol' means any firearm originally designed to be fired by use of a single hand." Id. § 6-2302. The handgun ban was upheld in McIntosh v. Washington, 395 A.2d 744 (D.C. 1978).

[64] D.C. Code Ann. § 6-2301 (1992).

[65] D.C. Code Ann. § 6-2372.

[66] In addition, in 1991 a referendum approved the Assault Weapons Manufacturing Strict Liability Act. D.C. Code Ann. §§ 6-2391. This provision creates absolute liability for named manufacturers of certain rifles and other firearms for criminal acts of third parties.

[67] D.C. Code Ann. § 6-2323.

[68] See Williams v. United States, 237 A.2d 359, 360 (D.C. 1968) (refusing to consider Second Amendment when raised for first time on appeal).

[69] Jordan v. District of Columbia Board of Appeals and Review, 315 A.2d 153 (D.C. 1974); Jordan v. District of Columbia, 362 A.2d 114 (D.C. 1976).

[70] McIntosh v. Washington, 395 A.2d 744, 749-54 (1978).

[71] Id. at 755-56 (requiring disassembly of firearm at home, but not at business, not an equal protection violation); Fesjian v. Jefferson, 399 A.2d 861, 864 (D.C. 1979) (grandfather clause allowing some to register handguns and not others, not an equal protection violation).

[72] Warren v. District of Columbia, 444 A.2d 1, 8 (D.C. Cir. 1981).

[73] 442 F.2d 123 (D.C. Cir. 1971), aff'g 294 F. Supp. 1166 (D.D.C. 1969).

[74] Id. at 125.

[75] D.C. Code Ann. § 1-227 (1992).

[76] 442 F.2d at 125-28.

[77] Id. at 128.

[78] Id. at 129-31.

[79] 845 F.2d 1069 (D.C. Cir. 1988).

[80] 497 A.2d 1143 (Md. 1985).

[81] Id. at 1158 (quoting Harper's magazine as evidence).

[82] Id.

[83] 686 F. Supp. 920, 929 (D.D.C. 1986).

[84] Delahanty v. Hinckley, 845 F.2d 1069 (D.C. Cir. 1988).

[85] Id. at 1071.

[86] Id. at 1071-72.

[87] Delahanty v. Hinckley, 564 A.2d 758, 762 (D.C. 1989).

[88] 520 A.2d 1057 (D.C.), cert. denied, 484 U.S. 868 (1987).

[89] Sandidge, 520 A.2d at 1058.

[90] Id. (citing United States v. Miller, 307 U.S. 174, 179 (1939)).

[91] Id.

[92] Id.

[93] Id. at 1058-59. However, United States v. Miller, 307 U.S. 174, 178 (1939), avoided determining whether a short barrel shotgun may be taxed under the National Firearms Act consistent with the Second Amendment and remanded the case for fact-finding to determine whether that type of arm was "any part of the ordinary military equipment or that its use could contribute to the common defense."

[94] 520 A.2d at 1059 n.2.

[95] Id. at 1059.

[96] Id.

[97] The same year Sandidge was decided, the D.C. Court of Appeals held that procedural due process required that the District give notice and an opportunity to be heard before forfeiting seized firearms, even if the firearms were unregistered. Ford v. Turner, 531 A.2d 233 (D.C. 1987).

[98] 546 A.2d 390, 399 n.8 (D.C. 1988).

[99] No. 92-CM-69 (Feb. 11,1993), at 2.

[100] Id. at 2-3 n.4 (citing United States v. Verdugo-Urquidez, 110 S. Ct. 1056, 1060-61 [ed. 494 U.S. 259, 265] (1990)).

[101] U.S. Const. art. I, § 8, cl. 16.

[102] Id. cls. 12, 13 & 15.

[103] U.S. Const. art. I, § 10, cl. 3.

[104] Id. art. 1, § 8.

[105] 3 Debates in the Several State Conventions 436 (Jonathon Elliot ed., 1836) (photo. reprint 1987).

[106] 11 Documentary History of the First Federal Congress: Debates in the House of Representatives 820 (Charlene B. Bickford et al. eds., 1992).

[107] 12 The Papers of James Madison 193-94 (Robert A. Rutland & Charles F. Hobson eds., 1979).

[108] 4 Documentary History of the First Federal Congress 10 (Charlene B. Bickford et al. eds., 1986) (emphasis added). In The Federalist No. 35, Alexander Hamilton wrote that "a well regulated militia [is] the most natural defence of a free country ...." 15 Documentary History of the Ratification of the Constitution 318 (1984) (emphasis added).

[109] Federal Gazette, June 18, 1789, at 2, col. 1.

[110] 12 The Papers of James Madison 239-40, 257 (Robert A. Rutland & Charles F. Hobson eds., 1979).

[111] 4 Documentary History, supra note 108, at 28.

[112] 4 William Blackstone, Commentaries *151-52. Justice Kennedy, joined by Justices Blackmun and Stevens, dissenting in Alexander v. United States, 113 S. Ct. 2766, 2780 (1993), referred to the above as "early in our legal tradition ... the oft cited passage from William Blackstone's 18 century Commentaries ...." See Near v. Minnesota, 283 U.S. 697, 713 (1931) (quoting Blackstone as stating "the liberty deemed to be established" by the first Amendment).

[113] 2 Writings of James Madison 183-91 (Gaillard Hunt ed., 1901), quoted in Walz v. Tax Commission, 397 U.S. 664, 719 (1970) (Appendix to dissenting opinion of Justice Douglas).

[114] Indeed, Noah Webster, in An Examination of the Leading Principles of the Federal Constitution, commented directly on the right to keep and bear arms:

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

Noah Webster, An Examination of the Leading Principles of the Federal Constitution 43 (Phil. 1787).

[115] Noah Webster, An American Dictionary of the English Language (N.Y. 1828) (emphasis added).

[116] Id.

[117] Act of Feb. 27, 1801, ch. 15, 2 Stat. 103, 104.

[118] Act of July 9, 1846, ch. 35, 9 Stat. 35.

[119] St. George Tucker, A Dissertation on Slavery 65 (1796).

[120] Va. Code, ch. 3, §§ 7, 8 (1819).

[121] The General Public Statutory Law and Public Local Law of the State of Maryland, From the Year 1692-1839 Inclusive 31 (John D. Toy ed., 1840).

[122] Cong. Globe, 37th Cong., 2d Sess. 1191 (1862).

[123] Id.

[124] Id. at 1267.

[125] 60 U.S. 393, 417 (1857).

[126] Cong. Globe, 37th Cong., 2d Sess. 1267 (1862).

[127] Id. at 1350.

[128] Id. at 1351.

[129] Id.

[130] Id.

[131] Cong. Globe, 37th Cong., 2d Sess. 1351 (1862).

[132] Id.

[133] Id.

[134] Id.

[135] Id. at 1353.

[136] Id. at 1448.

[137] Supra note 121 and accompanying text (quoting section 32, chapter 44 of the Laws of Maryland).

[138] As of 1860, the Maryland Code had no restriction of any kind on the peaceable keeping and bearing of arms by whites. Carrying concealed weapons was not regulated; the only marginally relevant prohibitions were on duelling and "gunning," i.e., hunting on another's land without permission. Maryland Code 216, 220-21 (Balt. 1860).

The 1860 Code contained the following slave code provision which derived from the 1715 statute:

No slave shall carry any gun, or any other offensive weapon, from off his master's land, without a license from his said master, and any slave so offending shall be whipped, and the gun or other weapon (unless stolen by such slave) shall be forfeited to whoever will seize the same, and carry such slave before a justice of the peace.

Id. at 454. In 1864, slavery would be abolished in Maryland, and the following year the above and most other slave code provisions were repealed. 3 Supplement to the Code of Maryland 52 (Balt. 1865).

[139] Cong. Globe, 37th Cong., 2d Sess. 1448 (1862).

[140] Id. at 1449.

[141] Id. at 1448.

[142] Id. at 1491.

[143] Id. at 1614.

[144] Cong. Globe, 37th Cong., 2d Sess. 1448, 1638 (1862).

[145] Id.

[146] Id.

[147] Id. at 1639.

[148] Cong. Globe, 37th Cong., 2d Sess. 1448, 1639 (1862).

[149] Id.

[150] Id.

[151] Id. at 1640.

[152] Id.

[153] Id. at 1642.

[154] 12 Stat. 376 (1862).

[155] Id. at 378.

[156] U.S. Const. amend. XIII.

[157] Cong. Globe, 38th Cong., 1st Sess. 522 (1864).

[158] Id. at 1200.

[159] Id. at 1202.

[160] Id.

[161] Cong. Globe, 38th Cong., 1st Sess. 522, 1202 (1864).

[162] Id. at 1203.

[163] Id. at 1323.

[164] Id. at 1324.

[165] Cong. Globe, 38th Cong., 1st Sess. 522, 1368-69 (1864).

[166] Id. at 1370.

[167] Id. at 1490.

[168] Id. at 2990.

[169] Id. at 2995.

[170] Cong. Globe, 38th Cong., 2d Sess. 138 (1865).

[171] Id. at 193.

[172] Id. at 289.

[173] Id. at 531.

[174] 42 U.S.C. § 1981(a) (1994).

[175] U.S. Const. amend. XIV, § 1.

[176] See Stephen Halbrook, Personal Security, Personal Liberty, and 'the Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment, Seton Hall Const. L.J. 341-434 (Spring 1995).

[177] John W. Burgess, Reconstruction and the Constitution, 1866-1876, 64 (1902).

[178] S. Exec. Doc. No. 2, 39th Cong., 1st Sess., pt. 1, at 85 (1865).

[179] Id. at 93-95.

[180] Id. at 96.

[181] Cong. Globe, 39th Cong., 1st Sess. 129 (1866).

[182] Id. at 209 (emphasis added).

[183] Id. at 211.

[184] Id. at 217.

[185] Id. at 337 (emphasis added).

[186] Id. at 474 (emphasis added).

[187] Id.

[188] Id. at 585.

[189] See Stephen Halbrook, Personal Security, Personal Liberty, and 'the Constitutional Right to Bear Arms': Visions of the Framers of the Fourteenth Amendment, 5 Seton Hall Const. L.J. 341-434 (Spring 1995).

[190] Id. at 603.

[191] Id. at 908-09.

[192] Id. at 651.

[193] S. Exec. Doc. No. 70, 39th Cong., 1st Sess. 233, 236 (1866).

[194] Cong. Globe, 39th Cong., 1st Sess. 654 (1866).

[195] Id.

[196] Id. at 742.

[197] Id. at 743.

[198] Id. at 1292 (emphasis added).

[199] Cong. Globe, 39th Cong., 1st Sess. 654, 1182 (1866).

[200] Id. at 1183.

[201] S. Exec. Doc. No. 27, 39th Cong., 1st Sess. 1 (1866); H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess. (1866).

[202] H.R. Exec. Doc. No. 70, 39th Cong., 1st Sess. 65 (1866).

[203] Cong. Globe, 39th Cong., 1st Sess. 1266 (1866).

[204] Id.

[205] Id. at 1292.

[206] Id.

[207] Id.

[208] Cong. Globe, 39th Cong., 1st Sess. 1266, 1621 (1866).

[209] Id. at 1622.

[210] Id. at 1629.

[211] Id. at 1838.

[212] Id.

[213] Act of April 9, 1866, ch. 31, 14 Stat. 27 (emphasis added).

[214] Cong. Globe, 39th Cong., 1st Sess. 2765 (1866).

[215] Id. (emphasis added).

[216] Id. at 2766.

[217] Id. at 2773.

[218] Id. at 3412.

[219] Cong. Globe, 39th Cong., 1st Sess. 2765, 2773 (1866).

[220] Id.

[221] Id. at 2774.

[222] Id. at 2890.

[223] Cong. Globe, 39th Cong., 1st Sess. 2765, 3032 (1866).

[224] Id.

[225] Id.

[226] Scott v. Sanford, 60 U.S. 393, 416-17 (1857) (emphasis added).

[227] Cong. Globe, 39th Cong., 1st Sess. 3034-35 (1866).

[228] Id. at 3035.

[229] Id. at 3037.

[230] Id. at 3201.

[231] Cong. Globe, 39th Cong., 1st Sess. 3034, 3210 (1866).

[232] Id. at 3412.

[233] Id.

[234] Ch. 184, 14 Stat. 173 (1866).

[235] Id. at 176-77 (emphasis added).

[236] D.C. Code Ann. § 1-102(a) (1992).

[237] Ch. 62, 16 Stat. 419 (1871). See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104-05 (1953).

[238] Cong. Globe, 41st Cong., 3d Sess. 646 (1871).

[239] The Federalist No. 46 (James Madison), in 15 Documentary History of the Ratification of the Constitution 492 (1984); 3 Joseph Story, Commentaries on the Constitution 746 (1833); 1 William Blackstone, Commentaries, app. 300 (St. George Tucker ed., 1803).

[240] Cong. Globe, 41st Cong., 3d Sess. 643 (1871).

[241] Cong. Globe, 42d Cong., 1st Sess., app. 84 (1871).

[242] Id. at 475-76.

[243] Id. at 448-49.

[244] H.R. Rep. No. 37, 41st Cong., 3d Sess. 3 (1871).

[245] Cong. Globe, 42d Cong., 1st Sess. 459 (1871).

[246] Id. at 337.

[247] Cong. Globe, 42d Cong., 2d Sess., app. 25-26 (1872).

[248] Tit. 2, ch. 2, § 31, in H.R. Misc. Doc. No. 25, 42d Cong., 3d Sess. 610 (1872).

This compilation was prepared under the direction of the Legislative Assembly of the District of Columbia. While purporting to be a compilation only, it includes many innovations. It was transmitted by the Governor of the District of Columbia to the House of Representatives, but was never adopted.

History of the D.C. Code, 1 D.C. Code 3 (repl. vol. 1991).

[249] Act of May 8, 1792, ch. 33, 1 Stat. 271, 272 (repealed 1903).

[250] 9 Hening, Statutes 267-69 (Virginia); Md. Laws Ch. 182, §§ 1, 4, 11.

[251] Act of Feb. 27, 1801, ch. 15, 2 Stat. 103, 104.

[252] Act of May 3, 1802, ch. 52, 2 Stat. 193, 195.

[253] Act of March 3, 1803, ch. 20, 2 Stat. 215, 225 (repealed 1889).

[254] Id. at 219.

[255] 7 U.S. 331, 335 (1806).

[256] H.R. Rep. No. 68, 20th Cong., 2d Sess. 1 (1829).

[257] Id. at 2.

[258] Id.

[280] Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L.J. 57, 85-89 (1993).

[281] George W. Paschal, The Constitution of the United States: Defined and Carefully Annotated 256 (Washington, D.C.: W.H. & O.H. Morrison, Law Booksellers, 1868).

[282] Id. at 54.

[283] Id. at 257.

[284] Id. at 135.

[285] Id. at 86.

[286] Daily Chronicle (Washington, D.C.), Oct. 22, 1867, at 2.

[287] Id.

[288] Unauthorized Negro Military Organizations, Daily National Intelligencer (Washington, D.C.), Nov. 5, 1867, at 2.

[289] A Panic in the White House, Daily Chronicle (Washington, D.C.), Nov. 6, 1867, at 2. President Johnson's order to General Grant, printed in Unauthorized Negro Military Organizations, Daily National Intelligencer, Nov. 8, 1867, at 2, stated:

I am reliably advised that there are within the District of Columbia a number of armed organizations, formed without authority of law, and for purposes which have not yet been communicated to the Government. Being at the present time unnecessary for the preservation of order or the protection of the civil authority, they have excited serious apprehensions as to their real design. You will, therefore, take official steps for promptly disbanding and suppressing all such illegal organizations.

[290] The Militia and Regular Forces in Washington, New York Herald, Nov. 8, 1867, at 3 noted: "A very old act of Congress, passed late in the last century, provided that all military volunteer organizations in the District of Columbia shall be under control of the President." However, Affairs at the National Capital, The New York Times, Nov. 7, 1867, at 5, observed:

It remains to be seen whether the President will decide that he has any more authority over the militia of the District of Columbia that he would have over that of a State. Military organizations have always existed here with the sanction of the local authorities, and have never been prohibited, even if not specially authorized by act of Congress. With regard to disbanding the colored militia organizations at the South, ... the President has called the attention of the Secretary of War to what he deems their dangerous character, but has not yet issued any order to suppress them, possibly for the reason that he regards the States as States, and that he has no right to interfere, as he has no constitutional power over the militia except in time of war.

[291] President Johnson Asks Advice of Binckley in the Colored Militia Case, The Press (Philadelphia), Nov. 8, 1867, at 1.

[292] The Colored Militia of the District of Columbia, The New York Times, Nov. 9, 1867, at 1.

[293] Unauthorized Military Organizations, The Sun (Baltimore), Nov. 9, 1867, at 1.

[294] Affairs at the National Capital, The New York Times, Nov. 8, 1867, at 5.

[295] Letter from Washington, The Sun (Baltimore), Nov. 9, 1867, at 4.

[296] Our Colored Militia, Daily Chronicle (Washington, D.C.), Nov. 9, 1867, at 1.

[297] Concerning the Disbandment of the Freedmen's Military Organizations, The Press (Philadelphia), Nov. 7, 1867, at 1.

[298] Volunteer Military Organizations, Daily Chronicle (District of Columbia), Nov. 12, 1867, at 2. The editorial added: "The rapid strides which the President is making toward absolute despotism already presents us with the spectacle of a lawless Government, in which one man, by virtue of official position, defies the Constitution, usurps power, and overrules law."

[299] The Militia Disbandment, New York Tribune, Nov. 13, 1867, at 4.

[300] Id.

[259] Act of March 1, 1889, Ch. 328, 25 Stat. 772, 781.

[260] D.C. Code Ann. § 39-101 (1992).

[261] D.C. Code Ann. § 39-104.

[262] D.C. Code Ann. § 39-106.

[263] D.C. Code Ann. § 39-201.

[264] D.C. Code Ann. § 39-214.

[265] Act of March 2, 1867, ch. 144, 14 Stat. 422, 423.

[266] Act of Jan. 21, 1903, ch. 196, 32 Stat. 775, 780.

[267] Id. at 775.

[268] Id. at 777.

[269] Act of March 3, 1905, ch. 1416, 33 Stat. 986.

[270] Id. at 987.

[271] Act of June 7, 1924, ch. 291, 43 Stat. 509, 510.

[272] 10 U.S.C. §§ 4307 to 4313 (1994).

[273] 32 C.F.R. § 544.4(b) (1992).

[274] Id. § 544.52(d).

[275] See Michael K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986).

[276] 92 U.S. 542 (1876).

[277] Id. at 551.

[278] Id. at 552.

[279] Id. at 553.

[301] 116 U.S. 252 (1886).

[302] Id. at 254.

[303] Id. at 264-65.

[304] Id. at 265. Presser did, however, recognize that the states may not infringe on the right to keep and bear arms:

All citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government ... the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But ... the sections under consideration do not have this effect.

116 U.S. at 265 (emphasis added). By this reasoning, neither may the District, whose citizens are also in the reserve militia.

[305] Id. at 267.

[306] 153 U.S. 535 (1894).

[307] Id. at 538. Since the issue had not been raised at trial, the Court refused to consider the claim that the statute violated the rights to bear arms and against warrantless searches as incorporated in the Fourteenth Amendment. Id. at 538-39.

[308] 165 U.S. 275 (1897).

[309] Id. at 281-82 (emphasis added).

[310] 307 U.S. 174 (1939).

[311] United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark. 1939).

[312] Miller, 307 U.S. at 178.

[313] Id. (emphasis added).

[314] Aymette v. State, 2 Tenn. (21 Hum.) 154, 158 (1840).

[315] 307 U.S. at 178.

[316] Id. at 179.

[317] 307 U.S. at 182, n.3.

[318] 2 Joseph Story, Commentaries on the Constitution 646 (5th ed. 1891). "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms ...." Joseph Story, A Familiar Exposition of the Constitution of the United States 264 (1893).

[319] Thomas M. Cooley, Constitutional Limitations 729 (8th ed. 1927). Thomas M. Cooley, General Principles of Constitutional Law 281-82 (2d ed. 1891) states further:

The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

The right is General--It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.... But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

[320] 496 U.S. 334 (1990).

[321] Id. at 340-46.

[322] Id. at 336.

[323] Id. at 339-42.

[324] United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

[325] Id. at 265 (emphasis added in part).

[326] 112 S. Ct. 2791 (1992).

[327] Id. at 2804 (citation omitted).

[328] Id. at 2805.

[329] Id. (citation omitted) (emphasis added).

[330] 127 U.S. 540, 550-51 (1888).

[331] Id.

[332] Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).

[333] 181 U.S. 371, 384 (1901).

[334] 265 F. 432, 434 (D.C. Cir. 1919).

[335] Pernell v. Southall Realty, 416 U.S. 363, 370-71 (1974).

[336] 42 U.S.C. § 1981 (1994) provides in full:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

[337] Blyew v. United States, 80 U.S. 581, 596 (1872) (Bradley, J., dissenting).

[338] 334 U.S. 24, 30-31 (1948).

[339] Id. at 32.

[340] Id.

[341] Id.

[342] 347 U.S. 497 (1954).

[343] Id. at 499.

[344] 409 U.S. 418, 419 (1973).

[345] Id. at 421-22.

[346] Id. at 423.

[347] Id. at 424 n.9.

[348] Pub. L. 96-170, 93 Stat. 1284 (1979); see H.R. Rep. No. 548, reprinted in 1979 U.S.C.C.A.N. 2609, 2610.

[349] 482 U.S. 656 (1987).

[350] Id. at 671.

[351] Id. at 672-73 (emphasis added) (quoting H. Hyman & W. Wiecek, Equal Justice Under Law 319 (1982)).

[352] Bell v. Maryland, 378 U.S. 226, 247-48, 248 n.3 (1964) (Douglas, J., concurring).

[353] Id. at 292-93 (Goldberg, J., concurring).

[354] Id. at 300-01. As noted in United States v. Wong Kim Ark, 169 U.S. 649, 675-76 (1898):

The first section of the Fourteenth Amendment of the Constitution begins with the words, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." ... It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Scott v. Sandford, (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.

[355] 391 U.S. 145, 166-67 (1968) (Black, J., concurring). Duncan involved incorporation of the right to jury trial.

[356] 384 U.S. 780, 796 (1966).

[357] Id. at 797 n.26.

[358] 384 U.S. 808 (1966) (holding that certain criminal defendants were not entitled to removal of their case to federal court under the 1866 Civil Rights Act).

[359] Id. at 817 n.11.

[360] 392 U.S. 409, 413 (1968).

[361] Cong. Globe, 39th Cong., 1st Sess. 654 (1866).

[362] Id.

[363] Id. at 743.

[364] Id. at 1292.

[365] 392 U.S. 409, 423 n.30 (1968).

[366] Id.

[367] Id. at 424 n.31 (citations omitted).

[368] Id. at 428 n.39.

[369] Jones v. Mayer, 392 U.S. 409, 436 (1968).

[370] Id. at 432 (footnote omitted).

[371] Cong. Globe, 39th Cong., 1st Sess. 474 (1866).

[372] 392 U.S. at 437 (brackets in original and citation omitted).

[373] Id. at 439.

[374] Id. at 436.

[375] 400 U.S. 112, 160-61 (1970) (Harlan, J., concurring and dissenting).

[376] Id. at 162 n.13, 163.

[377] Adickes v. Kress & Co., 398 U.S. 144, 215 n.25, 225 n.30 (1970) (Brennan, J., concurring and dissenting).

[378] 438 U.S. 265, 397 (1978) (citations omitted).

[379] "Since the Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures." Id. at 398.

[380] Oregon v. Mitchell, 400 U.S. 112, 159 (1970) (Harlan, J., concurring and dissenting); Loving v. Virginia, 388 U.S. 1, 9 (1967); Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (Brennan, J., concurring and dissenting); Jones v. Mayer Co., 392 U.S. 409, 423 n.30 (1968).

[381] Georgia v. Rachel, 384 U.S. 780, 797 n.26 (1966); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 397 (1978) (Marshall, J.); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 817 n.11 (1966).

[382] United States v. Timmons, 672 F.2d 1373, 1375 (11th Cir. 1982) (land title claims); Baines v. City of Danville, 357 F.2d 756, 768 (4th Cir. 1966) (post-judgment removal procedures); see Croker v. Boeing Co., 662 F.2d 975, 1004, 1006 (3d Cir. 1981) (dissenting opinion) (Congress unable to pass bill over veto).

[383] Fresno Rifle & Pistol Club v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992).

[384] Croker v. Boeing Co., 662 F.2d 975, 987 (3d Cir. 1981) (en banc) (citations omitted).

[385] Id. at 1004 (dissenting opinion).

Second-Class Citizenship and the Second Amendmentin the District of Columbia

I. Introduction

II. Gun Control Legislation in the District

A. From Congressional Regulation to Prohibition by the D.C. Council

B. District Firearms Legislation in the Courts

III. The Right to Keep Arms and the Security of "A Free State": The Framers' Intent

IV. The Abolition of Slavery and the Slave Codes in the District, Including the Prohibition on Possession of Arms by Blacks

A. Congress Abolishes Slavery in the District

B. The Adoption of the Thirteenth Amendment

V. The Intent of the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment to Protect the Right to Keep and Bear Arms