The Fourteenth Amendment
Ratified July 9, 1868
Historical Context
Post-Civil War Reconstruction
The Fourteenth Amendment emerged from the struggle to secure rights for newly freed slaves:
- Black Codes: Southern states enacted laws denying basic rights to freedmen
- Disarmament: Former slaves were being systematically disarmed
- Violence: Ku Klux Klan and similar groups terrorized black citizens
- State Defiance: Southern states resisted federal civil rights legislation
Connection to the Second Amendment
Congressional debates explicitly mentioned the right to bear arms:
"The personal rights guaranteed and secured by the first eight amendments of the Constitution; such as... the right to keep and bear arms... 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."
— Senator Jacob Howard, introducing the 14th Amendment (May 23, 1866)
Freedmen and Arms
The right of freedmen to bear arms for self-defense was a central concern. Representative Sidney Clarke stated that disarmament of freedmen was "the most palpable" violation requiring constitutional remedy.
Amendment Text
Section 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.
Key Clauses for Second Amendment Incorporation:
- Privileges or Immunities Clause: "No State shall... abridge the privileges or immunities of citizens"
- Original intent likely included Bill of Rights
- Gutted by Slaughter-House Cases (1873)
- Justice Thomas argues for revival
- Due Process Clause: "nor shall any State deprive any person of life, liberty, or property, without due process of law"
- Basis for modern incorporation doctrine
- Used in McDonald v. Chicago (2010)
- "Substantive due process" interpretation
- Equal Protection Clause: "nor deny to any person... equal protection of the laws"
- Ensures equal treatment under law
- Prevents discriminatory gun laws
Section 2
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Purpose: Addressed representation after abolition of three-fifths compromise
Section 3
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Purpose: Barred Confederate leaders from office unless pardoned by Congress
Section 4
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Purpose: Validated Union debt, invalidated Confederate debt and slave compensation claims
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Significance: Grants Congress power to pass civil rights legislation
Second Amendment Incorporation
The Path to McDonald v. Chicago
The Fourteenth Amendment's role in applying the Second Amendment to states:
1873 - Slaughter-House Cases
Supreme Court severely limited Privileges or Immunities Clause, forcing later courts to use Due Process
1876 - United States v. Cruikshank
Held Second Amendment only restricted federal government, not states
1886 - Presser v. Illinois
Reaffirmed Second Amendment didn't apply to states
2010 - McDonald v. Chicago
Finally incorporated Second Amendment through Due Process Clause
The McDonald Decision
"[I]t 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."
— Justice Alito, McDonald v. Chicago, 561 U.S. 742, 778 (2010)
Historical Evidence of Intent
Evidence that the 14th Amendment was intended to protect gun rights:
- Freedmen's Bureau Act (1866): Protected "the constitutional right to bear arms"
- Civil Rights Act (1866): Secured "full and equal benefit of all laws"
- Congressional Testimony: Documented systematic disarmament of freedmen
- State Ratification Debates: Discussed arms rights extensively
Modern Implications
What Incorporation Means
Through the Fourteenth Amendment, states must respect:
- Individual right to keep and bear arms (Heller/McDonald)
- Right to carry in public for self-defense (Bruen)
- Limits on gun regulations to those with historical tradition
- Same constitutional standards as federal government
Ongoing Debates
Privileges or Immunities Revival?
Some justices and scholars argue the Privileges or Immunities Clause should be revived as the proper vehicle for incorporation, providing stronger textual basis than substantive due process.
Equal Protection and Gun Rights
The Equal Protection Clause also affects gun rights:
- Prevents discriminatory permit issuance
- Prohibits racial discrimination in gun laws
- Ensures equal access to self-defense rights
- May protect against economic discrimination
How to Cite This Document
Primary Source: U.S. Constitution, amend. XIV (1868).
This Page: SecondAmendment.net. (2024). Fourteenth Amendment (1868) - Text and Analysis. Retrieved from https://secondamendment.net/primary-sources/14th-amendment/