If there’s one thing that our politicians could really use more of, it’s a sense of historical context. Remember that congressman who blamed President Roosevelt for the Great Depression, which preceded his presidency? Time to hit the books, politicians.
So maybe it seemed refreshing when Sen. Tom Coburn, R-Okla., started talking about the history of the 14th Amendment during the confirmation hearings for Judge Sonia Sotomayor. Well, maybe it would've been refreshing, if he hadn't found a way to twist the amendment's meaning. To the rest of us, the 14th Amendment is notable for its guarantee of equal protection under the law. For Coburn, it's all about guns.
Coburn first brought the subject up on Wednesday, when he pointed out to Sotomayor that there is a historical connection between equal protection under the law, as guaranteed by the 14th Amendment, and the right to bear arms, as guaranteed by the Second. Here’s an excerpt from the transcript:
Southern states were taking away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution. So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.
You know those Civil War buff, amateur historians? Lacking the proper background, they think they can boil down a complicated time into a simple story to fit their argument. Like that guy who’s always bending your ear about how the Civil War wasn’t about slavery. “It was all about agriculture versus industry!” Turns out Oklahoma’s junior senator is one of these. Thursday, he brought the subject back up:
Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?
Here's what's happening: A panel on which Sotomayor served ruled in favor of a New York weapons ban, saying the Second Amendment doesn't apply to the states. That ruling conformed with precedent: The courts have thus far said that, because of the 14th Amendment, much of the Bill of Rights now binds the states as well as the federal government -- but they haven't said that about the Second Amendment. Despite the fact that the decision in which Sotomayor participated was just following precedent, Republicans have used it to argue that she's anti-gun, and in this case Coburn was arguing his own version of history to say that she and the courts are wrong.
Salon checked in with two preeminent historians of Reconstruction, Professor Eric Foner at Columbia, and Professor Garrett Epps at the University of Baltimore Law School. Both said the same thing: Coburn is misinterpreting the history. He didn't make this idea up outright, but he’s exaggerated its significance, and confused its details.
Epps wrote in an email, “I've read the entire Congressional debate on this issue and it is an exaggeration to say that the right to bear [arms] ‘generated much of the 14th Amendment,’ or that ‘much of the discussion in Congress" concerned the right to bear arms.’” Foner makes the same point, saying guns were “hardly mentioned” in Congressional proceedings.
In fact, says Epps, the debate over the amendment revolved around the things you mainly already thought it did: Citizenship as birthright, the right to vote and the guarantee of First Amendment rights.
So that’s the first error. On top of that, though, Coburn seems confused about what the 14th Amendment actually does. What the 14th Amendment did do, which has confused Coburn, is forbid racially discriminatory legislation, including the "black codes" that kept guns out of the hands of black people, but not white people. It had nothing to do with keeping guns in the hands of everybody.
There are two different points being mixed up here. 1- If state law allows whites to own guns, can blacks be barred from owning guns? The 14th Amendment clearly prohibits such discrimination. That is a question of equality before the law. 2- Is there a constitutional bar to states regulating gun ownership on a nonracial basis? The Court has never said such a bar exists, although it may in the future.
Also, you have to love how "ironic" Coburn thinks this is. The only apparent reason for the irony the senator sees is that Sotomayor -- who is clearly an enemy of guns in his imagination -- is also a member of a racial minority.