The Spectre of the Second Amendment: Re-reading the Slaughterhouse Cases (1873) and US v. Cruikshank (1876) in light of the KKK Cases (1871-2) (original) (raw)

In 1866 Members of the Joint Committee on Reconstruction introduced the Fourteenth Amendment into the House of Representatives and the Senate, respectively. Several speakers indicated that the force of the new amendment would be to protect basic or fundamental citizen rights against adverse action by state governments and would allow Congress for the first time to protect such rights against such state action. One speaker in the House, John Bingham, who had written Section One of the amendment, indicated that among the protected "privileges or immunities of citizens" were those rights listed in the first eight amendments to the Constitution, rights that previously had been enforceable only against Congress, not against state governments. He specifically cited the Eighth Amendment's prohibition on cruel and unusual punishments by way of example. 1 In the U.S. Senate it was Sen. Jacob Howard 1 CONG.GLOBE, 39 th Cong., 1 st Sess 1088-1095 (Feb.3, 1866); 2542-3 (May 8, 1866). Rep. Bingham makes clear his understanding that the Fourteenth Amendment would apply the privileges listed in the Bill of Rights against state governments by stating that the amendment would overturn Barron v. Baltimore, 32 U.S. 243 (1833), the case that had established the contrary rule. Four years later, Bingham had occasion to discuss the Amendment again 65 Thomas M. Cooley, ed. Joseph Story's Commentaries on the