The Specter of the Second Amendment: RereadingSlaughterhouseandCruikshank

Abstract

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. The clause that would do this was the privileges or immunities clause: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Freedom of Religion in the United States and Around the World - The Bible, the School and the Constitution: The Clash that Shaped Modern Church-State Doctrine. By Steven K. Green. New York, NY: Oxford University Press, 2012. 294 pp. $29.95 - The Religion Clauses of the First Amendment: Guarantees of States' Rights? By Ellis M. West. Lanham, MD: Lexington Book, 2011. 202 pp. $70.00 - Equality, Freedom, and Religion. By Roger Trigg. Oxford, Oxford University Press, 2012. 184 pp. $ 45.00

“…1.I have argued in print that a possible unstated reason for the Supreme Court's rejection of incorporation doctrine in the 1870s was a desire to avoid untoward consequences of incorporating the Second Amendment at the state level (Goldstein 2007). This book's description of mid-century inter-religious violence and its sequel of the intense national controversy over Bible reading in the years 1869–1873, which culminated in the Blaine Amendment effort of 1875–1876, suggests to me that the Supreme Court's move toward rejection of incorporation in Slaughterhouse (1873) and explicit rejection of incorporation in Cruikshank (1875) may well have been motivated by the desire to avoid incorporating the First Amendment ban on laws respecting establishment of religion.…”

“…I have argued in print that a possible unstated reason for the Supreme Court's rejection of incorporation doctrine in the 1870s was a desire to avoid untoward consequences of incorporating the Second Amendment at the state level (Goldstein 2007). Had he limited himself more narrowly to presenting these thoughtful judicial arguments on both sides of the issues, he could have produced a far more engaging book.…”

Strengthening the Weak State

“…This became an issue during the Franklin Roosevelt administration, when new legislation addressing racial violence came to the forefront. But in fact, reconstituting the legal capacity was unnecessary (Benedict 1978; Brandwein 2007; Brandwein 2011; Goldstein 2007; Labbé and Lurie, 2003; Ross 2003). No new law was needed for the federal government to engage in stopping racial violence.…”