2.3 "The Second Amendment doesn't apply to state and local governments, so state gun control laws, or local ordinances like the Morton Grove, IL ban on handguns, are constitutional."
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This article is from the talk.politics.guns Official Pro-Gun FAQ, by Ken Barnes (kebarnes@cc.memphis.edu) with numerous contributions by others.
2.3 "The Second Amendment doesn't apply to state and local governments, so state gun control laws, or local ordinances like the Morton Grove, IL ban on handguns, are constitutional."
See U.S.C. Amendment XIV, sec. 1:
"1. 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. No state shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws."
also Dowlut, Robert, "Federal and State Constitutional
Guarantees to Arms," U. Dayton Law Rev. v.15, pp. 84-89 (1989):
"Forty-three (43) states have constitutional guarantees
on the right to keep and bear arms.
ALABAMA: "That every citizen has a right to bear arms
in defense of himself and the state." Ala. Const. art. I,
S 26
ALASKA: "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." Alaska Const. art.
I, S 19
ARIZONA: "The right of the individual citizen to bear arms
in defense of himself or the State shall not be impaired,
but nothing in this section shall be construed as
authorizing individuals or corporations to organize,
maintain, or employ an armed body of men." Ariz. Const.
art. 2, S 26
ARKANSAS: "The citizens of this state shall have the right
to keep and bear arms for their common defense." Ark.
Const. art. II, S 5
COLORADO: "The right of no person to keep and bear arms in
defense of his home, person and property, or in aid of the
civil power when thereto legally summoned, shall be called
in question; but nothing herein contained shall be
construed to justify the practice of carrying concealed
weapons." Colo. Const. art. II, S 13
CONNECTICUT: "Every citizen has the right to bear arms in
defense of himself and the state." Conn. Const. art. I,
S 15
DELAWARE: "A person has the right to keep and bear arms
for the defense of self, family, home and State, and for
hunting and recreational use." Del. Const. art. I, S 20
FLORIDA: "The right of the people to keep and bear arms in
defense of themselves and of the lawful authority of the
state shall not be infringed, except that the manner of
bearing arms may be regulated by law." Fla. Const. art.
I, S 8
GEORGIA: "The right of the people to keep and bear arms
shall not be infringed, but the General Assembly shall
have the power to prescribe the manner in which arms may
be borne." Ga. Const. art. I, S I, para. VIII
HAWAII: "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." Haw. Const. art I,
S 15
IDAHO: "The people have the right to keep and bear arms,
which right shall not be abridged; but this provision
shall not prevent the passage of laws to govern the
carrying of weapons concealed on the person, nor prevent
passage of legislation providing minimum sentences for
crimes committed while in possession of a firearm, nor
prevent passage of legislation providing penalties for the
possession of firearms by a convicted felon, nor prevent
the passage of legislation punishing the use of a firearm.
No law shall impose licensure, registration or special
taxation on the ownership or possession of firearms or
ammunition. Nor shall any law permit the confiscation of
firearms, except those actually used in the commission of
a felony." Idaho Const. art. I, S 11
ILLINOIS: "Subject only to the police power, the right of
the individual citizen to keep and bear arms shall not be
infringed." Ill. Const. art. I, S 22
INDIANA: "The people shall have a right to bear arms, for
the defense of themselves and the State." Ind. Const.
art. I, S 32
KANSAS: "The people have the right to bear arms for their
defense and security; but standing armies, in time of
peace, are dangerous to liberty, and shall not be
tolerated, and the military shall be in strict
subordination to the civil power." Kansas Bill Of Rights,
S 4
KENTUCKY: "All men are, by nature, free and equal, and
have certain inherent and inalienable rights, among which
may be reckoned: .... Seventh: The right to bear arms in
defense of themselves and the state, subject to the power
of the general assembly to enact laws to prevent persons
from carrying concealed weapons." Ky. Bill Of Rights,
S 1, para. 7
LOUISIANA: "The right of each citizen to keep and bear
arms shall not be abridged, but this provision shall not
prevent the passage of laws to prohibit the carrying of
weapons concealed on the person." La. Const. art. I, S 11
MAINE: "Every citizen has a right to keep and bear arms
and this right shall never be questioned." Me. Const.
art. I, S16
MASSACHUSETTS: "The people have a right to keep and bear
arms for the common defence. And as, in time of peace,
armies are dangerous to liberty, they ought not to be
maintained without the consent of the legislature; and the
military power shall always be held in exact subordination
to the civil authority, and be governed by it." Mass.
Decl. Of Rights, pt. I, art. XVII
MICHIGAN: "Every person has a right to keep and bear arms
for the defense of himself and the state." Mich. Const.
art. I, S 6
MISSISSIPPI: "The right of every citizen to keep and bear
arms in defense of his home, person, or property, or in
aid of the civil power when thereto legally summoned,
shall not be called in question, but the legislature may
regulate or forbid carrying concealed weapons." Miss.
Const. art. 3, S 12
MISSOURI: "That the right of every citizen to keep and
bear arms in defense of his home, person and property, or
when lawfully summoned in aid of the civil power, shall
not be questioned; but this shall not justify the wearing
of concealed weapons." Mo. Const. art. I, S 23
MONTANA: "The right of any person to keep or bear arms in
defense of his own home, person, and property, or in aid
of the civil power when thereto legally summoned, shall
not be called in question, but nothing herein contained
shall be held to permit the carrying of concealed
weapons." Mont. Const. art. II, S 12
NEBRASKA: "All persons are by nature free and independent,
and have certain inherent and inalienable rights; among
these are ... the right to keep and bear arms for security
or defense of self, family, home, and others, and for
lawful common defense, hunting, recreational use, and all
other lawful purposes, and such rights shall not be denied
or infringed by the state or any subdivision thereof."
Neb. Const. art. I, S 1
NEVADA: "Every citizen has the right to keep and bear arms
for security and defense, for lawful hunting and
recreational use and for other lawful purposes." Nev.
Const. art. 1, S II, para. 1
NEW HAMPSHIRE: "All persons have the right to keep and
bear arms in defense of themselves, their families, their
property, and the state." N. H. Const. part 1, art. 2-a.
NEW MEXICO: "No law shall abridge the right of the citizen
to keep and bear arms for security and defense, for lawful
hunting and recreational use and for other lawful
purposes, but nothing herein shall be held to permit the
carrying of concealed weapons. No municipality or county
shall regulate, in any way, an incident of the right to
keep and bear arms." N. M. Const. art. II, S 6
NORTH CAROLINA: "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; and, as
standing armies in time of peace are dangerous to liberty,
they shall not be maintained, and the military shall be
kept under strict subordination to, and governed by, the
civil power. Nothing herein shall justify the carrying of
concealed weapons, or prevent the General Assembly from
enacting penal statutes against that practice." N. C.
Const. art. I, S 30
NORTH DAKOTA: "All individuals are by nature equally free
and independent and have certain inalienable rights, among
which are ... to keep and bear arms for the defense of
their person, family, property, and the state, and for
lawful hunting, recreational, and other lawful purposes,
which shall not be infringed." N. D. Const. art. I, S 1
OHIO: "The people have the right to bear arms for their
defense and security; but standing armies, in time of
peace, are dangerous to liberty, and shall not be kept up;
and the military shall be in strict subordination to the
civil power." Ohio Const. art. I, S 4
OKLAHOMA: "The right of a citizen to keep and bear arms in
defense of his home, person, or property, or in aid of the
civil power when thereunto legally summoned, shall never
be prohibited; but nothing herein contained shall prevent
the Legislature from regulating the carrying of weapons."
Okla. Const. art. 2, S 26
OREGON: "The people shall have the right to bear arms for
the defence of themselves, and the State, but the Military
shall be kept in strict subordination to the civil power."
Or. Const. art. I, S 27
PENNSYLVANIA: "The right of the citizens to bear arms in
defence of themselves and the State shall not be
questioned." Pa. Const. art. I, S 21
RHODE ISLAND: "The right of the people to keep and bear
arms shall not be infringed." R. I. Const. art. I, S 22
SOUTH CAROLINA: "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. As, in
times of peace, armies are dangerous to liberty, they
shall not be maintained without the consent of the General
Assembly. The military power of the State shall always be
held in subordination to the civil authority and be
governed by it. No soldier shall in time of peace be
quartered in any house without the consent of the owner
nor in time of war but in the manner prescribed by law."
S. C. Const. art. I, S 20
SOUTH DAKOTA: "The right of the citizens to bear arms in
defense of themselves and the state shall not be denied."
S. D. Const. art. VI, S 24
TENNESSEE: "That the citizens of this State have a right
to keep and to bear arms for their common defense; but the
Legislature shall have power, by law, to regulate the
wearing of arms with a view to prevent crime." Tenn.
Const. art. I, S 26
TEXAS: "Every citizen shall have the right to keep and
bear arms in lawful defense of himself or the State; but
the Legislature shall have power, by law, to regulate the
wearing of arms, with a view to prevent crime." Tex.
Const. art. I, S 23
UTAH: "The individual right of the people to keep and bear
arms for security and defense of self, family, others,
property, or the State, as well as for the other lawful
purposes shall not be infringed; but nothing herein shall
prevent the legislature from defining the lawful use of
arms." Utah Const. art. I, S 6
VERMONT: "That the people have a right to bear arms for
the defence of themselves and the State - and as standing
armies in 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 the civil power." Vt.
Const. Ch. I, art. 16
VIRGINIA: "That a well regulated militia, composed of the
body of the people, trained to arms, is the proper,
natural, and safe defense of a free state, therefore, the
right of the people to keep and bear arms shall not be
infringed; that standing armies, in time of peace, should
be avoided as dangerous to liberty; and that in all cases
the military should be under strict subordination to, and
governed by, the civil power." Va. Const. art I, S 13
WASHINGTON: "The right of the individual citizen to bear
arms in defense of himself, or the state, shall not be
impaired, but nothing in this section shall be construed
as authorizing individuals or corporations to organize,
maintain, or employ an armed body of men." Wash. Const.
art. I, S 24
WEST VIRGINIA: "A person has the right to keep and bear
arms for the defense of self, family, home and state, and
for lawful hunting and recreational use." W. Va. Const.
art. III, S 22
WYOMING: "The right of citizens to bear arms in defense of
themselves and of the state shall not be denied." Wyo.
Const. art. I, S 24
Seven (7) states do not have a constitutional provision
on arms: California, Iowa, Maryland, Minnesota, New
Jersey, New York, and Wisconsin."
[NOTE: On March 26, 1996, the State Assembly of Wisconsin approved
a RKBA amendment to that state's constitution by a vote of 79-19,
and the proposed amendment was approved again by an 83-13 vote on
January 28, 1997. The amendment, which still awaits approval by the
State Senate, as well as the voters of Wisconsin by referendum ballot,
reads: "The people have the right to keep and bear arms for security,
defense, hunting, recreation and for any other lawful purpose."]
also
Cottrol and Diamond, Georgetown Law J. [also Cottrol and Diamond,
"'Never Intended to be Applied to the White Population': Firearms
Regulation and Racial Disparity --The Redeemed South's Legacy to a
National Jurisprudence?," Chicago-Kent Law Rev. v.70 pp.1307-1335
(1995)]
Halbrook,"That Every Man Be Armed"(see above)
"No State Shall Abridge: The Fourteenth Amendment and the
Bill of Rights,"by Michael Kent Curtis, Duke University Press,
ISBN 0-8223-0599-2, (1986)
"Lost Rights: The Destruction of American Liberty,"by James Bovard,
St. Martin's Press, ISBN 0-312-10351-4, (1994) "Lost Rights_is now
available in trade paperback as ISBN 0-312-12333-7.
"Why the Solid South? or Reconstruction and its results,"by Hilary
A. Herbert, et al., R. H. Woodward and Co., Baltimore, no ISBN, (1890)
"The Reconstruction Period," by Peter J. Hamilton, Geo. Barrie and
Sons, Philadelphia, no ISBN, (1905)
"Negro Militia and Reconstruction,"by Otis Singletary, Univ. of
Texas Press, no ISBN, (1957)
"The Angry Scar,"by Hodding Carter, Doubleday, no ISBN, (1959)
"But There Was No Peace: The Role of Violence in the Politics of
Reconstruction,"by George C. Rable, Univ. of Georgia Press, ISBN
0-8203-0710-6 (1984)
and
Dred Scott v. Sandford (see above)
Butchers Benevolent Association v. Crescent City Live-Stock
Landing & Slaughter-House Co. [a.k.a."Slaughter-House_Cases"],
U.S. Reports v.83 (16 Wallace) p.36, Lawyer's Edition v.21
p.394 (1872)
U.S. v. Cruikshank, et al., U.S. Reports v.92 pp.542, Lawyer's
Edition v.23 p.588 (1875)
cited in
Presser v. Illinois, U.S. Reports v.116 p.252, Supreme Court
Reports v.6 p.580, Lawyer's Edition v.29 p.615 (1886)
cited in
Quilici v. Morton Grove, Federal Reporter 2nd series v.695 p.261
(7th Circuit, 1982)
In summary: Prior to the U.S. Civil War, "gun control" laws imposed
by state and local governments may well have been constitutional,
since the states had much greater legal powers to limit the rights
of individuals than they do today, after the ratification of the
Fourteenth Amendment. The history of "gun control" in the United
States is undeniably rooted in racism. The infamous Supreme Court
decision in the_Dred Scott_case mentions among the rights of a free
citizen "the right to keep and carry arms wherever they went" and
argues that to recognize negroes as citizens in any one state, with
all the "privileges and immunities" of citizenship, might compel every
state to do so, a prospect which the Court postponed with dread for
over a century. The earliest "gun control" laws were aimed at disarming
slaves, free blacks, and freedmen, and even provided that white citizen
patrols "shall enter into all negro houses and suspected places, and
search for arms and other offensive or improper weapons, and may
lawfully seize and take away all such arms, weapons, and ammunition..."
a situation not unlike today's warrantless sweeps of public housing
projects for weapons and other contraband. Penalties for selling or
providing arms to blacks were likewise steep, for instance, an 1811
Louisiana statute provided for a $500 fine and up to a year in prison
for selling arms to slaves.
Following the Civil War, these same types of provisions were included
in "Jim Crow" laws, with the disarmament of black Americans enforced by
the terror of the Ku Klux Klan. The U.S. Congress moved to deal with
this and other violations of the civil rights of black Americans through
the Fourteenth Amendment, which created a national citizenship, gave the
Congress the power to protect citizens of the United States from
abridgment of their Federally recognized rights under the Constitution
by the state governments, and guaranteed equal protection of the rights
of all citizens by the governments of the states and the Union. In the
case of_U.S. v. Cruikshank,"the Supreme Court continued the denial of
the plain meaning of the Fourteenth Amendment which it had begun in
the_Slaughter-House Cases_by ruling that the federal government had no
power to protect citizens against private actions which violated their
constitutional rights, despite the fact that failure to afford equal
protection of the law was clearly within the scope of the Amendment.
In this case, William Cruikshank and a mob of some one hundred others
were indicted under the Enforcement Act of 1870 with criminal conspiracy
to violate the civil rights of two black men, Levi Nelson and Alexander
Tillman, including their right to peaceably assemble, and their right
to keep and bear arms. Cruikshank and the rest of the white mob were
participants in what was perhaps the most violent racial incident of
the Reconstruction Era, the Colfax Massacre, in which over 100 black
Americans were killed. Nelson and Tillman were part of a militia of
freedmen occupying the courthouse in Colfax, the seat of government in
newly-created Grant Parish, LA. On April 13, 1873, the two sides
fought on a small but violent scale a battle that had taken shape first
in New Orleans.
Following the elections of 1872, the government of Louisiana was
in dispute. Both Democrat John D. McEnery, the handpicked successor
of corrupt Democrat-allied Republican governor Henry C. Warmoth; and
the Radical Republican gubernatorial challenger, carpetbagger William
P. Kellogg, claimed victory. Warmoth had attempted to pack the board
which counted the ballots, and the Kellogg faction managed to obtain
a federal court order to prevent the Warmoth-approved state legislature
from meeting. The result was that the Kellogg faction produced a board
which declared Kellogg the governor without having seen the ballots,
and for a time the state had two rival governments, complete with two
different state legislatures. Kellogg, however, had something Warmoth's
candidate lacked: the support of Republican President and former Union
General Ulysses S. Grant, as well as support from Warmoth's estranged
Lieutenant Governor, P.B.S. Pinchback, an influential and ambitious
Republican of mixed race, who served briefly as acting Governor in late
1872 following the impeachment of Governor Warmoth by the newly elected
Radical Republican legislature. But, as historian Peter Hamilton noted
in his 1905 book on the Reconstruction Era, "there was not a great deal
to choose between the two factions." President Grant, and a number of
the Radical Republican state governments themselves, were no strangers
to corruption.
Governor Kellogg, at the urging of two white citizens, had first
recognized a Warmoth man, C. C. Nash, as elected sheriff for Grant
Parish, but within four months reconsidered, and declared Daniel Shaw
the winner. Late one night, Sheriff Shaw and the Kellogg-backed parish
Judge R. C. Register climbed through the window of the courthouse in
Colfax, and assumed office. Captain William Ward, formerly an officer
in a Grant Parish negro militia company, and now a member of the Kellogg
legislature, soon arrived with three other Kellogg men and summoned
negro militia from Smithfield Quarters, a nearby all-black settlement,
and from the surrounding area to defend the courthouse and the Kellogg-
installed parish government. The use of black militia to support
Radical Republican governments in the South was understandably
controversial. Many defeated southern whites saw it as provocative,
and literally violently rejected the idea of an end to white political
supremacy. Such was the case in Grant Parish, the namesake of the
sitting President.
On Easter Sunday, April 13, 1873, Warmoth-backed Sheriff C. C. Nash
arrived with a posse of poor whites, including Cruikshank, to retake
the courthouse, and with it, the government of the parish. The negro
militia, perhaps as many as 400 men, were entrenched at the courthouse,
a brick building which had been converted from a plantation stablehouse,
and were armed with a few makeshift cannon fashioned from steam pipes,
and guarded by pickets with shotguns and Enfield rifles, who patrolled
the countryside for 25 miles around, some on horseback. The courthouse
was also ringed with a line of earthworks 2 1/2 to 4 feet high. The few
whites in Colfax, including white Republicans, had long since abandoned
the town, fleeing downriver to New Orleans; Kellogg's men, including
Sheriff Shaw and Captain Ward among them. Ironically, final attempts
at defusing the situation had broken down when word came that a local
negro farmer, Jesse McKinney, had been shot and killed by a gang of
white vigilantes as he was mending a fence. Governor Kellogg, ever
indecisive, considered sending state militia under the command of
reformed former Confederate General James Longstreet to take charge
of the worsening situation, but it was too late.
Nash's posse, numbering as many as 300, advanced, and the two sides
exchanged fire. One of the makeshift cannon exploded. The whites
launched a frontal assault, but at the same time a smaller contingent,
who had flanked the crescent-shaped earthworks, attacked from the rear.
The negro militia fled in all directions, some 150 taking up positions
inside the courthouse itself. Sheriff Nash's men brought up a cannon
and began firing on the building. In the ensuing violence, the shingled
roof of the courthouse was set ablaze, and the building gutted by fire.
No quarter was given by the whites, who shot at any who tried to flee
the flames, and chased down blacks who escaped into the woods. Even
the few dozen prisoners that were taken, were murdered during the night
by drunken young whites who had been left to guard them. Some whites,
and even some of Kellogg's black allies, suspected that Kellogg had
engineered the incident to further his political hold on the state,
and to justify greater numbers of Federal troops to support him.
Though the authors of the Reconstruction Amendments, of which the
Fourteenth was a part, clearly expressed their intent to extend the
"privileges and immunities" of the federal Bill of Rights to all men,
regardless of race, the Court in_Cruikshank_took it upon itself to
decide which parts of the Bill of Rights were binding upon the states,
through a doctrine of selective "incorporation," thus allowing the
injustice of statutory racism to persist until the civil rights
struggles of the 1950s and 1960s. "Gun control" advocates who rely
upon_Cruikshank"(or the later decision in_Presser v. Illinois") to
support the idea that the Second Amendment is not binding upon the
States via the Fourteenth are relying upon the same arguments used to
deny the civil rights of black Americans after the Civil War.
Further, the constitution of almost every state includes a provision
protecting the individual right to keep and bear arms, to various
degrees. This fact further undermines the contention that the Second
Amendment protects only the state's organized militia (see 2.0),
especially considering that some of the state constitutions, like
Virginia's, pre-date the federal constitution. (Such arms-right
provisions at the state level cannot reasonably be interpreted as
being intended to prevent the state from disarming an organized state
militia over which it presumably has complete command and control!)
The right to keep and bear arms is fundamental, because the right to
self defense is fundamental, not only against the actions of common
criminals, but against those uncommon criminals acting under the
auspices of government as well (see 3.3).
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