The liberal activist jurist (i.e., Sotomayor) would argue that the Second Amendment applies only to the Federal Gov’t (and thus D.C.) and not the state governments since the Bill of Rights was passed and originally understood to limit the power of the central gov’t and not the States. Liberals have applied various amendments in the Bill of Rights (i.e., the ones they like, which they call “fundamental”) into the 14th Amendment via the incorporation doctrine. Thus, the First Amend. “Congress shall make no law . . .” has been applied against the States. Liberals will argue that the right to keep and bear arms is not a fundamental right even though the language clearly confers the right to the people as a whole (i.e., “the right of the people to keep and bear arms shall not be infringed”). “Selective incorporation” is the way out for the libs with regard to Heller
C. The Fourteenth Amendment
The need for a more solid foundation for the protection of freedmen as well as white citizens was recognized, and the result was a significant new proposal—the fourteenth amendment. A chief exponent of the amendment, Senator Jacob M. Howard (R., Mich.), in 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; ... the right to keep and to bear arms ...”[134] argued that the adoption of the fourteenth amendment was necessary to protect these rights against state legislation. “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.”[135]
The fourteenth amendment was viewed as necessary to buttress the objectives of the Civil Rights Act of 1866. Representative George W. Julian (R., Ind.) noted that the Act:
is pronounced void by the jurists and courts of the South. Florida makes it a misdemeanor for colored men to carry weapons without a license to do so from a probate judge, and the punishment of the offense is whipping and the pillory. South Carolina has the same enactments.... Cunning legislative devices are being invented in most of the States to restore slavery in fact.[136]
It is hardly surprising that the arms question was viewed as part of a partisan struggle: “As you once needed the muskets of the colored persons, so now you need their votes,” explained Senator Sumner to his fellow Republicans in support of black suffrage in the District of Columbia.[137] At the opposite extreme, Representative Michael C. Kerr (D., Ind.), an opponent of black suffrage and of the fourteenth amendment, attacked a military ordinance in Alabama that set up a volunteer militia of all males between ages 18 and 45 “without regard to race or color” on these grounds:(p.25)
Of whom will that militia consist? Mr. Speaker, it will consist only of the black men of Alabama. The white men will not degrade themselves by going into the ranks and becoming a part of the militia of the State with negroes.... Are the civil laws of Alabama to be enforced by this negro militia? Are white men to be disarmed by them?[138]
Kerr predicted that the disfranchisement of white voters and the above military measure would result in “a war of races.”[139]
C. The Fourteenth Amendment
The need for a more solid foundation for the protection of freedmen as well as white citizens was recognized, and the result was a significant new proposal—the fourteenth amendment. A chief exponent of the amendment, Senator Jacob M. Howard (R., Mich.), in 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; ... the right to keep and to bear arms ...”[134] argued that the adoption of the fourteenth amendment was necessary to protect these rights against state legislation. “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.”[135]
The fourteenth amendment was viewed as necessary to buttress the objectives of the Civil Rights Act of 1866. Representative George W. Julian (R., Ind.) noted that the Act:
is pronounced void by the jurists and courts of the South. Florida makes it a misdemeanor for colored men to carry weapons without a license to do so from a probate judge, and the punishment of the offense is whipping and the pillory. South Carolina has the same enactments.... Cunning legislative devices are being invented in most of the States to restore slavery in fact.[136]
It is hardly surprising that the arms question was viewed as part of a partisan struggle: “As you once needed the muskets of the colored persons, so now you need their votes,” explained Senator Sumner to his fellow Republicans in support of black suffrage in the District of Columbia.[137] At the opposite extreme, Representative Michael C. Kerr (D., Ind.), an opponent of black suffrage and of the fourteenth amendment, attacked a military ordinance in Alabama that set up a volunteer militia of all males between ages 18 and 45 “without regard to race or color” on these grounds:(p.25)
Of whom will that militia consist? Mr. Speaker, it will consist only of the black men of Alabama. The white men will not degrade themselves by going into the ranks and becoming a part of the militia of the State with negroes.... Are the civil laws of Alabama to be enforced by this negro militia? Are white men to be disarmed by them?[138]
Kerr predicted that the disfranchisement of white voters and the above military measure would result in “a war of races.”[139]