STEPHEN P. HALBROOK: "SECURING CIVIL RIGHTS"

Stephen Halbrook's book "Securing Civil Rights" shows how the right to arms has played a crucial role in protecting the constitutional rights of all Americans.

Review by David B. Kopel

America's 1st Freedom. More articles by Kopel on civil rights and gun control are available here.

Stephen Halbrook's book "Securing Civil Rights"shows how the right to arms has played a crucial role in protecting the constitutional rights of all Americans.

As the subtitle explains, "Securing Civil Rights" is the story of "Freedmen, the Fourteenth Amendment, and the Right to Bear Arms." "Securing Civil Rights"details a crucial period in American history that was once obscure, but now, thanks to the U.S. Supreme Court's decision in McDonald v. Chicago,will be studied by every law student and will be taking its rightful place in the mainstream of American history.

After the Civil War, the ex-Confederate state governments accepted the formal abolition of slavery. But many of them attempted to keep the freedmen in de facto servitude. At the foundation of the effort to keep blacks from true freedom were laws banning blacks from possessing arms, or requiring them to obtain special licenses in order to keep arms.

These racist gun bans were augmented by America's oldest gun-control organization, the Ku Klux Klan, and by other terrorist groups, such as the Knights of the White Camelia. Roving, mounted gangs of Kluxers and similar evildoers would descend on isolated black farmhouses, far outnumbering their victims, and confiscate guns from one family at a time.

The white supremacist state governments and their terrorist allies understood why the right to arms is "America's First Freedom"--when that right is eliminated, it becomes easy to eliminate all other rights.

So the Congress of the United States fired back with law after law to protect the freedmen's personal right to arms. The first such law was the Freedmen's Bureau Bill, which specifically authorized the Union military governments in the South to take action against deprivations of "the constitutional right to bear arms."

The most important new law was the 14th Amendment to the Constitution of the United States. Passed by Congress in 1866 and ratified by the states in 1868, the 14th Amendment was enacted for the specific purpose of protecting the freedmen's right to armed self-defense, as well as other rights.

"Securing Civil Rights"tells this story in careful detail, based almost entirely on records of the time, such as newspaper articles and congressional debates. The book is buttressed by hundreds of endnotes, supporting every fact and conclusion.

Originally published in 1998 by the scholarly publisher Greenwood Press, and retailing for $107, the book was certainly influential among scholars. Yet under the title "Freedmen, the Fourteenth Amendment, and the Right to Bear Arms," the price limited the book's reach to the general public.

Now, the updated 2010 edition from the Independent Institute in California makes the book accessible to a much broader audience.

Of the many scholars whose work made the McDonald victorypossible, Halbrook was the most influential. When you read this book, you will understand why the Supreme Court finally decided that if the original meaning of the Constitution matters at all, the Supreme Court had the duty to stop local despots like Chicago Mayor Richard Daley from depriving good citizens of their Second Amendment rights.

Kopel: How did you get involved in Second Amendment research?

Halbrook: As a youth, I qualified in the junior NRA rifle program and enjoyed hunting. In college, I joined NRA and read about the bills in Congress that would result in the Gun Control Act of 1968. Studying the debates on the Constitution during 1787-89, I discovered what the founders said about the Right to Keep and Bear Arms. Virtually no scholarship existed on the Second Amendment. That's when I dedicated myself to fight for this Bill of Rights freedom that was being both neglected and denigrated.

Kopel: What do you think are the key reasons that the judiciary started taking the Second Amendment seriously again?

Halbrook: It's in the Bill of Rights--"... the right of the people to keep and bear arms, shall not be infringed." How long could those explicit words be relegated to the Orwellian "memory hole," while "rights" not remotely mentioned in the Constitution were being invented? Also, the standard model in the academic literature came to be that the Second Amendment guarantees individual rights. Finally, five justices on the Supreme Court took the Second Amendment seriously.

Kopel: Why did the Second Amendment fall into such disrespect among academics and judges in the 1970s?

Halbrook: The reason was not lack of scholarship in support of the amendment, because there was no reputable scholarship against it. Some tried to obliterate those clear words of the Bill of Rights--"the right of the people"--by superficial references to the states and their militia powers. They supported the criminalization of gun ownership and embraced the "collective rights" theory under which "the people" meant nobody.

Kopel: Among the persons you write about in "Securing Civil Rights," is there anyone you particularly admire? Why?

Halbrook: In introducing the 14th Amendment to the Senate in 1866, Jacob Howard of Michigan gave one of the great orations in American history, explaining that it would prevent the states from infringing on fundamental rights like keeping and bearing arms. In congressional hearings, he ferreted out how this right had been violated.

Kopel: Do you think that the win in McDonald would have been possible if NRA had never been created?

Halbrook: No. NRA was formed in 1871, the same year that President Ulysses S. Grant signed the Civil Rights Act--in part to protect the Second Amendment under which McDonaldwas decided. Grant later served as the president of NRA. In the 20th century, NRA prevented guns from being banned as they were in England. At a time when some academics with funding from tycoons were financing anti-Second Amendment publications, NRA formed the Civil Rights Defense Fund to support the Second Amendment scholarship that would win the day in McDonald.

Kopel: What writers, philosophers or other persons have most influenced your thinking--and your thinking on Second Amendment issues?

Halbrook: Jefferson wrote that the principles of the Declaration of Independence could be found in Aristotle, Cicero, Algernon Sidney and John Locke. As shown in my book"That Every Man Be Armed," they provided the philosophical basis for the right to bear arms. George Mason, Patrick Henry and James Madison prompted the adoption of these principles into the Second Amendment.

Kopel: Why do you think it took the courts and the nation more than 130 years to enforce the 14th Amendment's purpose of requiring state and local governments to obey the Second Amendment?

Halbrook: The 14th Amendment was proposed and adopted during 1866-68, a period of enthusiasm to extend the right to bear arms and other civil rights to African-Americans. But the pendulum then swung the other way as ruling elites, who mistrusted blacks, immigrants, workers and ordinary folks, enacted restrictions on the right to bear arms. But then and now, Americans have always thought that their Second Amendment rights were protected against any government. The Supreme Court finally caught up with the people.

Kopel: Do you see any parallels between the behavior of the opponents of Second Amendment rights today and their predecessors in the post-war South?

Halbrook: After the Civil War, the Southern states enacted the Black Codes, which prohibited possession of firearms by freedmen. After Hellerand McDonaldwere decided, D.C. and Chicago defiantly enacted ordinances more draconian than ever before. Reconstruction came to D.C. and Chicago, but they declared "massive resistance" and the fight continues.

Kopel: Why should persons who support states' rights not be upset about the result in McDonald?

Halbrook: The Right to Keep and Bear Arms is a fundamental human right. The 10th Amendment reservation of powers to the states or to the people guarantees against the federal government usurping powers, not protecting rights. The Second and 10th Amendments together have always been supported or opposed by the same people.

Kopel: What Supreme Court justice do you most respect, and why?

Halbrook: Justices Scalia and Thomas are tied for first place. They seek to adhere to the text and original meaning of the Constitution. They understand that the goal of the Supreme Court is to protect constitutional rights, not to delete some and invent others.

"Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms" by Stephen P. Halbrook

The Independent Institute

(Oakland, Calif., Mar. 25, 2010)

239 pages; $22.95