Why the Second Amendment was Incorporated by the Supreme Court in McDonald & Heller Cases

The Supreme Court made rulings in 2010 and in 2008 addressing the intent of the framers of the 14th Amendment.  In those cases the Court held that the framers of the 14th Amendment intended the Second Amendment's right to bear arms specifically as a civil right that should be incorporated by the 14th Amendment, because it was a civil right appurtaining to African Americans:

"The most explicit evidence of Congress' aim appears in § 14 of the Freedmen's Bureau Act of 1866, which provided that "the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens... without respect to race or color, or previous condition of slavery." 14 Stat. 176-177 (emphasis added).[22] Section 14 thus explicitly guaranteed that "all the citizens," black and white, would have "the constitutional right to bear arms."

The Civil Rights Act of 1866, 14 Stat. 27, which was considered at the same time as the Freedmen's Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.[23] Section 1 of the Civil Rights Act guaranteed the "full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." Ibid. This language was virtually identical to language in § 14 of the Freedmen's Bureau Act, 14 Stat. 176-177 ("the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal"). And as noted, the latter provision went on to explain that one of the "laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal" was "the constitutional right to bear arms." Ibid. Representative Bingham believed that the Civil Rights Act protected the same rights as enumerated in the Freedmen's Bureau bill, which of course explicitly mentioned the right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the Civil Rights Act, like the Freedmen's Bureau Act, aimed to protect "the constitutional 3041*3041 right to bear arms" and not simply to prohibit discrimination. See also Amar, Bill of Rights 264-265 (noting that one of the "core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances" of freedmen who had been stripped of their arms and to "affirm the full and equal right of every citizen to self-defense")." 

McDonald v. City of Chicago 130 S Ct at 3041 (2010).

THE FREEDMEN'S BUREAU JUST AFTER THE CIVIL WAR - WITHOUT ARMS, THE FREED FORMER SLAVES (AFRICAN AMERICANS) WOULD HAVE BEEN HELPLESS V. THE SOUTHERNERS

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. - Pennsylvania Constitution of 1776, which is widely considered the source of the 2d amendment to the US Constitution.

After 1876, in addition to disenfranchising the African Americans in the South, one of the keys to Jim Crow was DISARMING the African Americans of the South, and taking away their weapons.  Laws were enacted in ever Southern State prohibiting African Americans from possession of firearms, laws that would have been illegal had the 2d Amendment been applied to the states.  

A properly armed african american population in the south would never have been subjected to jim crow and lynchings as it was.  Many argued this point at the time, including noted orators like Douglass and DuBois.  

Note that African Americans served with distinction in US Armed Services in ALL our wars, including Revolutionary and onwards.

http://en.wikipedia.org/wiki/Pennsylvania_Constitution_of_1776

http://en.wikipedia.org/wiki/McDonald_v._Chicago

http://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court 2010

District of Columbia et al. v. Heller, 128 S.Ct. 2783 (2008)

"in debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three "indispensable" "safeguards of liberty under our form of Government." 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:

"Every man . . . should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete." Ibid.

Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, "have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (Sen. James Nye); see also Foner 258-259.[25]

Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: "Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty." "The fourteenth amendment, now so happily adopted, settles the whole question." Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely 3042*3042 referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120-131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See,e.g., T. Farrar, Manual of the Constitution of the United States of America § 118, p. 145 (1867) (reprint 1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152-153 (3d ed. 1875).

The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L.Rev. 7, 50 (2008).[26] Quite a few of these state constitutional guarantees, moreover, explicitly protected the right to keep and bear arms as an individual right to self-defense. See Ala. Const., Art. I, § 28 (1868); Conn. Const., Art. I, § 17 (1818); Ky. Const., Art. XIII, § 25 (1850); Mich. Const., Art. XVIII, § 7 (1850); Miss. Const., Art. I, § 15 (1868); Mo. Const., Art. I, § 8 (1865); Tex. Const., Art. I, § 13 (1869); see also Mont. Const., Art. III, § 13 (1889); Wash. Const., Art. I, § 24 (1889); Wyo. Const., Art. I, § 24 (1889); see also State v. McAdams, 714 P.2d 1236, 1238 (Wyo.1986). What is more, state constitutions adopted during the Reconstruction era by former Confederate States included a right to keep and bear arms. See, e.g., Ark. Const., Art. I, § 5 (1868); Miss. Const., Art. I, § 15 (1868); Tex. Const., Art. I, § 13 (1869). A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.[27]

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty."

McDonald, cited supra at pp. 3041-3042.  Illustrating that it was the intent of the Framers of the 14th Amendment to incorporate the 2d Amendment and apply it to the states.

It should be noted parenthetically that the Gun Control Act of 1968 may have been enacted with good intentions with regards to the assassinations of President Kennedy, and Martin Luther King and Bobby Kennedy, but in practice it was used and targeted at vulnerable groups and politically marginal groups such as African Americans and the the Black Panthers.  

Reconstruction and the Radical Republicans who framed the 14th Amendment and the Ku Klux Klan Acts so specifically intended to arm freedmen and specifically African Americans.  This argument was echoed during the Civil Rights era of the 1960s when the Black Panthers and other radical movements demanded the right to arm themselves against a white supremacist majority.   

Some sociologists and legal commentators have argued that the intent of historical and modern gun control laws has been historically to to DISARM African Americans and marginal groups, notably urban African Americans, and also to subject them to warrantless stop and frisk searches by urban police, as in New York City.  C.f. Carl T. Bogus.  "Race, Riots and Guns."  66 Cal. L. Rev. 1365 (1992-93) (original intent of southern arms control laws after reconstruction was to disarm freedmen and african-americans).  See also Stefan B. Tahmassebi.  2 Geo Mason U. C.R.L.J. 67 (1991-92) "The history of gun control in America possesses an ugly component; discrimination and oppression of blacks, other racial and ethnic minorities, immigrants and other "unwanted elements,"including union organizers and agrarian reformers.  Firearms laws were often enacted to disarm and facilitate repressive action against these groups."  Id at 1365.

It has been further noted that stop and frisk policies, which were ushered in by the Mapp & Terry cases in 1968, practically contemporaneous with the first federal Gun Control Act, also may have had a racial component to them, insofar as warrantless searches utilizing "patdown", "stop and frisk" and the like, have been disproportionately applied to minorities and marginal groups in order to disarm them and render them powerless, particularly in urban settings.  See Adina Schwartz.  "Just Take Away Their Guns: The Hidden Racism of Terry v. Ohio."  23 Fordham Urb. L.J. 317 (1995-96).  (arguing in part that the policies advocated by the late James Q. Wilson to enhance and increase "stop and frisk" would even in Prof. Wilson's view have disproportionate impacts upon young black and hispanic males).  

This does not therefore seem to be a left v. right issue at all, rather a complex set of issues set against a rather more complex historical background.  

This perspective emerges from both a critical legal studies vantage point criticizing the neo-conservative stance of Wilson et al. arguing for stop and frisk, gun control and incapacitation theories as being disproportionately racist and impacting upon minorities, and on the other hand the conventional saw that gun control is the only way to control armed violence in the United States.

Thus it was odd to hear the racist critique of gun control, albeit the historical one, coming also from a conservative Supreme Court pair of holdings.  This well could have been penned by a member of the critical legal studies academic ouevre.

The Supreme Court, indeed its most conservative members, seem to agree with what plainly is a revisionist, critical legal studies sort of view of history.  

We are a nation of laws guided by a Constitution.  

Note that every revolution in the Arab Spring, the rebels were waving what?

AK-47s.  

Kaleshnikov rifles.  

They are the universal symbol of uprisings for democracy everywhere in the world.  

ARAB SPRING REBELS ARMED WITH AK-47 KALESHNIKOVS - THE UNIVERSAL SYMBOL OF REBELLION AND FREEDOM IN THE THIRD WORLD

Guns, at least in the Third World, represent freedom from repression and authority.  

This may be what the 2d Amendment means, and the Supreme Court has said so not once but twice.  And recently.  And strangely enough, there are critical legal studies and left wing revisionist historians who seem to agree with those viewpoints.