WAY BACK WHEN....SECOND AMENDMENT BEFORE THE COURTS

FROM  THE  BOOK  "A  WELL  REGULATED  MILITIA"  by  Saul  Cornell.  A  book  I  highly  recommend  if  you  want  the  whole  truth  about  the  issue  of  guns  in  the  USA.

INDIVIDUAL   OR   COLLECTIVE   RIGHT

THE SECOND AMENDMENT BEFORE THE COURTS

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

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

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

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

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

During the trial, Corbin faithfully followed the strategy he had worked out with Akerman. A key element in the case was the Klan's violation of the right to bear arms. Corbin highlighted this issue in his opening address, when he declared that "if there is any right that is dear to the citizen, it is the right to keep and bear arms," a protection "secured to the citizen of the United States on the adoption of the Amendments to the Constitution." The issue of incorporation was dealt with explicitly by Corbin. He noted the U.S. Supreme Court had settled the issue of whether the federal Bill of Rights was binding on the states in the antebellum case of Barron v. Baltimore. Having conceded that Barron's ruling denied federal authority to protect the rights of citizens against state action, Corbin went on to assert that the Fourteenth Amendment "changes all that theory, and lays the same restrictions upon the States that before lay upon the Congress of the United States." Corbin then explained how members of the Klan had attempted to disarm members of the Negro militia.

Imagine, if you like-—but we have not to draw upon the imagination for the facts—a militia company, organized in York County, and a combination and conspiracy to rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State Government. Is not that a conspiracy to defeat the right of the citizens, secured by the Constitution of the United States, and guaranteed by the Fourteenth amendment?²⁷

Corbin's opening address logically and succinctly stated the government's theory of the Second Amendment as a militia-based, civic right.

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

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

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

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

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

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

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

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

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

The results of the case were a partial victory for supporters of incorporation. Corbin obtained a conviction against Robert Hayes Mitchell (a Klansman who had participated in the murder) for engaging in a conspiracy to intimidate and obstruct Williams's right to exercise his right of suffrage. The federal government clearly could protect the right to vote. The Second Amendment incorporation argument, however, had utterly failed. The notion that one might incorporate the Second Amendment as a privilege and immunity of national citizenship had been rejected by the court in favor of the rival states' rights theory of the Democrats, which cast this principle in the narrowest possible terms.

According to this view the Second Amendment did no more than restrain Congress from disarming the militia.³⁷

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

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