What do the Fourteenth Amendment Debates Reveal about the Historical Reference Point for Incorporated Second Amendment Challenges?
Imagine that, tomorrow, a historian unearths a trove of documents including written notes from congressional debates in 1788 and 1789 regarding the proposed Bill of Rights—debates that no one knew had occurred. The documents include detailed statements by James Madison describing the intent and meaning of the provisions in the Bill of Rights, including the Second Amendment. Presumably, this newly uncovered source would (if its authenticity were verified to a high degree of certainty) be a valuable interpretive aid for originalist scholars and judges: we would now have authoritative statements from the man who drafted the Second Amendment describing what he intended the amendment to protect and why, which laws he considered consistent with the amendment, and so on.
How much weight to accord these documents would depend primarily on the specific theory of originalism being employed. While some scholars continue to argue that the intentions of the drafters of a legal document should play a privileged role in modern interpretation, there is a growing consensus in favor of original public meaning. Under this theory, the actual drafters and signatories to the Constitution “are, for interpretive purposes, like the authors of a form lease or a will that is executed by others” (the people), and the drafters’ own understandings and intentions are relevant only as “evidence of the understandings of the broader grouping in whose name the Constitution purports to speak.” With that said, even pure public-meaning originalists would likely accept that records of debates at the Constitutional Convention can provide relevant interpretive guidance (especially given the lack of available evidence of public understanding at the time):
What James Madison might have recorded delegates as saying may not have pride of place in determining the public meaning of a textual provision, but when added to other sources of information it might well be informative of how those familiar and careful with language understood the content of the rule that was being debated and adopted. Even more specifically, the records of Founding debates may be informative of the significance of the particular choice of language incorporated into the text.
These primary-source records do exist from the time that the Fourteenth Amendment was debated and adopted, and they include statements by the drafter of section one regarding what that section was intended to accomplish and speeches by congressmen shedding light on the theoretical reasons for incorporating the Bill of Rights against the states. But, when considering the correct historical time period to consult for post-Bruen challenges to state laws under the incorporated Second Amendment, courts have generally shied away from examining these materials directly.
The majority opinion in Bruen expressly declined to decide whether, when evaluating challenges to state gun regulations brought under the Second Amendment as incorporated through the Fourteenth per McDonald v. City of Chicago, courts should rely primarily on Founding-era or Reconstruction-era historical sources to determine the scope and contours of the right:
We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.
In her concurrence, Justice Barrett referenced this decision to “avoid” the debate but also observed that, “if 1791 is the benchmark, then New York’s appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little).” Barrett also specifically cautioned against “freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights.” Taken as a whole, Justice Barrett’s concurrence seems to place her firmly in the camp of endorsing 1791 as the correct reference point.
Courts to apply Bruen have split over what history should matter most for incorporated-right challenges. The Eleventh Circuit’s recent decision in NRA v. Bondi found that historical evidence of “the understanding that prevailed at the time of the later ratification—that is, when the Fourteenth Amendment was ratified” is most important. Many district courts, however, have emphasized Founding-era history. The September decision in McGraw—striking down Texas’ ban on the public carry of handguns by those under 21 years old—largely rejected historical laws from the mid-to-late 1800s because the “analysis is void of any laws from the Founding Era” (we covered that decision here and here). And a March 31 opinion by a district judge in Minnesota in Worth v. Harrington, striking down that state’s public carry prohibition for 18-20-year-olds, expressly declined to follow the reasoning in Bondi due to “rather clear signs that the Supreme Court favors 1791 as the date for determining the historical snapshot of ‘the people’ whose understanding of the Second Amendment matters.” As I’ve written previously, I generally think Worth is correct that the majority opinion in Bruen (together with Justice Barrett’s concurrence) indicates a not-so-subtle preference for Founding-era history and focusing on 1791 even in incorporated Second Amendment cases.
As constitutional law scholar Akhil Reed Amar chronicles, Senator John Bingham—the primary drafter of section one, whom Justice Hugo Black dubbed “the Madison of the first section of the Fourteenth Amendment”—spoke freely about the section’s intent and purpose around the time he drafted those words:
In 1866, Bingham spoke to the issue at much greater length and made himself about as clear as one could ever hope for. Over and over he described the privileges or immunities clause as encompassing “the bill of rights”—a phrase he used in a key speech on February 28th no less than a dozen times.
Bingham never wavered from this fundamental belief that the words he had written should have the effect of “incorporating” (or applying) the protections of the Bill of Rights against state governments. During congressional debates in 1871, Bingham again explained:
[T]hat the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States. Those eight amendments are as follows [lists the first eight amendments, including the Second Amendment]. . . . These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment.
And Bingham was not alone. As Amar describes, other Congressional leaders who played major roles in the debate over the Fourteenth Amendment—including Thaddeus Stevens, Jacob Howard, and James Wilson—voiced similar opinions, and Bingham’s statements about the amendment’s intent were reprinted by major press outlets at the time. With that said, “the Bill of Rights was invoked in 1866 at a rather high level of generality [and] . . . [v]irtually no one in Congress or in the states carefully considered clause by clause exactly how the Bill could be sensibly incorporated.”
There is also an originalist case for the proposition that those who drafted, debated, and enacted the Fourteenth Amendment did not intend simply to apply the provisions in the first eight amendments of the Bill of Rights against state governments mechanically, with their pre-existing scope unaltered. The arguments here are more closely tied to original intentions, however, and it’s possible that this is where the public understanding of incorporation diverged from the beliefs of those who drafted and enacted the constitutional language.
As Amar explains:
The 1789 instantiation of [the right to keep and bear arms] was intimately connected with federalism concerns about a federally controlled standing army that might seek to overawe state-organized militias. By contrast, in 1866, John Bingham, Jacob Howard, Thaddeus Stevens, and company were hardly in the mood to rail against a federal standing army; these men, after all, wanted to use precisely such an army to reconstruct recalcitrant southern states.
Republican Senator Samuel Pomeroy, for example, argued that every man “should have the right to bear arms for the defense of himself and family and his homestead” and that, “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.” The first part of that quotation could easily be read to intend that a pre-existing right be grafted into the Fourteenth Amendment and applied against the states; but it’s much more difficult to accept that view after considering the second half. That the central component of the right was now the ability to use deadly force to resist private enslavers—rather than representatives of the federal government acting beyond the scope of their authority—illustrates how much had changed since 1791.
Scholars who argue that the Fourteenth Amendment incorporated the Bill of Rights against the states with the exact same scope and substance as in 1791 claim that the right “was understood the same way in 1868 as in 1791.” In other words, “in the discourse that led to the Fourteenth Amendment, the right to keep and bear arms was represented as its text dictates, consistent with the same meaning as at the Founding.” In support, they point to statements such as Democratic Kentucky Senator Garrett Davis’ assertion that he “derived [his] principles from the Constitution and from the interpretations of that instrument by Hamilton and Madison and Marshall and Webster and Clay”—and that those luminaries “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.”
To me, resolving the debate over the time period for incorporated Second Amendment challenges likely requires a judicial consensus about the theory (or theories) underlying the Second Amendment itself—and this broader theoretical question applies with equal force whether the modern interpreter privileges original intent of the drafters in some way, or adheres to a strict public-meaning approach.
Accepting an 1868 expansion-without-alteration approach seems incompatible with an anti-tyranny theory of the Second Amendment. The Fourteenth Amendment was not concerned with guarding against the risk of government tyranny—indeed, Democratic representatives railed against the Fourteenth Amendment as “an introduction to the time when despotism and tyranny will march forth undisturbed and unbroken,” and a primary Democratic charge against the Radical Republican version of Reconstruction was that its constitutional amendments and federal legislation were themselves a form of government tyranny that could be rightfully resisted. It’s safe to say that the Republicans who spearheaded the Fourteenth Amendment were not receptive to robust protections of arms-bearing to resist government actions that were considered tyrannical. That’s exactly the type of private violence they were seeking to stamp out in the South.
If the Reconstruction-era congressmen and their constituents were animated by a different theoretical foundation than the Founders, it’s unlikely that they would have simply extended the preexisting Second Amendment right verbatim to accomplish their new objective. And a right to keep and bear arms incorporated against the states to protect a private right to self-defense would have different contours than a right against the federal government to resist tyranny. As just one example, locational restrictions in certain public gathering places could be entirely consistent with the right to home self-defense referenced in the Fourteenth Amendment debates, yet in substantial tension with a right to bear arms to resist government tyranny (under that theory, it might be even more important to protect arms-carrying outside of the home). These two versions of the right could even be incompatible with one another if actions to resist government tyranny—due either to legitimate or pretextual concerns—threaten the personal safety of private citizens.
By contrast, a pure self-defense theory of the Second Amendment arguably finds much stronger support in the Reconstruction debates than in the Constitutional Convention or Founding-era texts. That could cut both ways as to the incorporated-right date question, but an approach too narrowly focused on 1791 seems to overlook the theoretical transformation that had occurred by the time the Fourteenth Amendment was debated, enacted, and ratified. The debate between 1791 and 1868 is, in large part, a result of the Court’s choice in Heller and McDonald to tie together the public understanding of the right at those two points in time by articulating a very broad foundation focused on self-defense. Yet, as courts increasingly address the issue Bruen found it unnecessary to resolve in the context of specific legal challenges, they are likely to find (as Bondi noted) that “Bruen is . . . an exception in its ability to assume away the differences” between time periods when legislators and the public were animated by different normative concerns. From an originalist perspective, it should matter what the historical legislators were trying to do, why they were trying to accomplish those objectives, and what the public at the time understood about their motivations.
 Of course, these statements must be carefully vetted and are subject to being mischaracterized by later interpreters (even those who were actually present during the debates). As just one example, Roscoe Conkling—a New York senator who later temporarily left politics to open his own law practice—produced a journal over a decade after the Fourteenth Amendment debates purporting to show that the drafters intended for the amendment to protect corporations as well as natural persons. Legal historians believe that Conkling’s descriptions of the journal and the debates themselves were either false or, at best, highly misleading.
 The Supreme Court had held in 1833 that the Bill of Rights acted as a limitation only on federal government action, and Bingham explained the Barron decision and its impact in detail during the debates.