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George Mason Law Review

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Second Amendment, District of Columbia v. Heller, Fourteenth Amendment, Civil War


The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in detail the public meaning of the "right to keep and bear arms" during the period leading up to enactment of the Fourteenth Amendment. It elaborates five broad categories of original public meaning. Part I examines nineteenth century scholarly commentary and case law. Part II examines popular understandings of the Second Amendment as the militia declined in importance and the struggle over abolition of slavery took center stage. Part III examines Civil War era claims about the meaning of the Second Amendment. Part IV details how Reconstruction and the Black Codes energized debate about the right to keep and bear arms. Part V reviews the debate and enactment of the Fourteenth Amendment, as it relates to the constitutional right to arms.