Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876

By Stephen P. Halbrook | Go to book overview

4
The Freedmen’s Bureau Act
Reenacted and the Fourteenth
Amendment Ratified

POMEROY’S TREATISE ON CONSTITUTIONAL LAW

In 1868 John N. Pomeroy, dean of the Law School at the University of New York, published his treatise An Introduction to the Constitutional Law of the United States. In a review of the book, The Nation endorsed Pomeroy’s view that the Fourteenth Amendment would make the Bill of Rights applicable to the states.1 The work was favorably cited in Congressional debates and was used as a textbook at various law schools.2

Pomeroy discussed at length “the privileges and immunities” of citizenship, including the Second Amendment’s “right of the people to keep and bear arms.”3 He lamented that although the United States may not “deprive a person of any of the immunities and privileges guarded by the Bill of Rights,” the states may “infringe upon them all.”4 Although a state was bound by its own bill of rights, the U.S. Supreme Court, Pomeroy noted, could not decide whether a state statute violated the state bill of rights.5 Pomeroy illustrated this dilemma with an insightful hypothetical question:

Let it be supposed that the constitution of a certain state contains clauses securing
to the people the right of keeping and bearing arms; and declaring that no person
shall be deprived of life, liberty, and property without due process of law. Let it
also be supposed that the legislature of the same state passes statutes by which
certain classes of the inhabitants — say negroes — are required to surrender their

-107-

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