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All the Goodwin Procter lawyers contributed their services pro bono, meaning that they worked free of charge as public service volunteer work in a major civil rights case. Poss and his Goodwin Procter colleagues previously did pro bono work in writing the amicus briefs for the NRA Firearms Civil Rights Defense Fund in Heller, and in New York v. Beretta, Mayor Bloomberg's abusive lawsuit against firearm manufacturers.

Of course, NRA lawyers also participated in the McDonald brief. Poss explained NRA General Counsel Robert Dowlut and NRA-ILA Deputy Executive Director and General Counsel David Lehman "... played key roles assisting the briefing team with edits and ideas. David Lehman's first child was born while we were working on the brief and he e-mailed us from the hospital!"

Indispensable to the brief was Stephen Halbrook, who led the NRA case in the federal district court and court of appeals, and who is the world's leading scholar on congressional protection of the right to arms during Reconstruction.

Poss recounted, "one of the special pleasures" of working on the brief "was the opportunity to collaborate with Steve Halbrook." Much of the brief summarizes what Poss calls Halbrook's "extensive research and writings on the primary importance of the Second Amendment to the framers of the 14th Amendment, who were concerned about stopping the disarming and terrorizing of newly freed slaves in the Reconstruction South following the Civil War."

Part I of the NRA brief begins, accurately: "More evidence exists that the Right to Keep and Bear Arms referenced in the Second Amendment was intended and commonly understood to be protected by the Fourteenth Amendment than exists for any other element of the Bill of Rights."

Providing all this evidence would fill a book—and has already. Namely, Stephen Halbrook's Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (Praeger, 1998). The brief, with a 15,000-word limit, cannot recapitulate all of this evidence, but it does present the key facts.

Shortly after the Civil War, Southern states enacted the infamous "black codes," designed to keep the former slaves in a condition of subjugation. For example, a Mississippi law stated: "That no freedman, free negro or mulatto ... not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind."

In response, the same Congress that passed the 14th Amendment passed the Freedmen's Bureau Bill. That bill provided that in all states that had not been re-admitted to the Union, the "right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security and the acquisition, enjoyment and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery."

Congress was aware of the continuing abuses of civil rights, thanks to reports such as the one written by General Ulysses Grant, who reported to Congress the Mississippi law prohibiting blacks "from bearing arms, without a special license, is unjust, oppressive and unconstitutional."

Grant, of course, would be elected president of the United States in 1868, and re-elected in 1872. In his two terms, he used federal power to enforce civil rights more vigorously than any president before, or any president for nearly a century afterward. After serving as U.S. president, Grant then served as president of the National Rifle Association, our nation's leading civil rights organization.

As Poss and Halbrook show, the 14th Amendment was understood by the Congress that passed it, and the states that ratified it, as protecting the Bill of Rights, especially the Second Amendment.

After the 14th Amendment became the law of the land, Congress used its enforcement powers, granted by section 5 of the amendment, to further protect the right to arms.

The Enforcement Act of 1870 made it a federal felony for persons to conspire to injure someone in order to prevent him from exercising "any right or privilege granted or secured to him by the Constitution or laws of the United States."

When the Enforcement Act was being passed, Sen. John Pool, R-N.C., pointed out how the Ku Klux Klan would "order the colored men to give up their arms; saying that everybody would be Kukluxed [murdered] in whose house fire-arms were found." Likewise, Sen. John Thayer, R-Neb., stated: "The rights of citizenship, of self-defense, of life itself were denied to the colored race. ..."

Soon after, Congress enacted the Civil Rights Act of 1871, which provided civil liability for anyone who, acting under color of law (that is, with government authority), deprived anyone of "any rights, privileges or immunities secured by the Constitution of the United States."

Again, congressional intent to protect Second Amendment rights was clear. Rep. Henry Dawes, R-Mass., said every citizen "has secured to him the Right to Keep and Bear Arms in his defense," and the purpose of the Civil Rights Act was to "secure to him in these rights, privileges and immunities."

Part II of the NRA brief addresses the Supreme Court's precedents for selective incorporation of the Bill of Rights via the Due Process clause. As Poss and Halbrook summarize, the Supreme Court's incorporation cases have used terms such as "liberty," "a free society," "free government," the "liberty ... at the base of all our civil and political institutions" and "ordered liberty." Repeatedly the Supreme Court has asked whether a particular right is an essential part of "our" American system of liberty.



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