If one were to ask a lawyer or judge from Licking County the question, "Who was William Burnham Woods?" the question would most often be met with a blank stare. Most Licking County lawyers and judges do not know who he was or, if they know anything about him, they do not know very much. His image adorns the courtroom's south wall without being noticed. Common ignorance of his accomplishments stems from the fact that not much has ever been written about him. And yet, he had a very notable career as a highly skilled trial lawyer, mayor of Newark, brevet major general in the Union Army, state chancellor of Alabama, judge of the United States Court of Appeals for the Fifth Circuit, and United States Supreme Court justice, in which capacity he personally authored two hundred and eighteen opinions of the Court between 1881 and 1886.

It was his service on the high court that most affects our lives today. Two decisions in which he participated as a justice bear special relevance to present events. One case became leading precedent underpinning state laws and municipal ordinances regulating the right to bear arms, a case that is presently before the United States Supreme Court for reconsideration in the pending case of McDonald v. City of Chicago. The other case determined the fate of Arlington National Cemetery.

Woods' Early Career:

Woods was born in Newark in 1824. He began his college career at Western Reserve College, now Case Western Reserve University, where he graduated in 1841. He also graduated from Yale College in 1845. He then returned to Newark to study law under S.D. King, a local lawyer of great repute, and two years later was admitted to the bar.

Soon thereafter he entered politics by joining the Democratic party. He succeeded in politics through his oratorical skills and was elected mayor of Newark in 1855. He was then elected to the Ohio House of Representatives in 1857 and served as speaker of the house from 1858 to 1859. As the leader on the Democratic side he succeeded in mustering Ohio's support for the war loan in April of 1861.

However, this period marked the prelude to the Civil War, a period in which the Democratic party was torn between two wings, the anti-slavery northern Democrats and the pro-slavery southern Democrats. In the election of 1860, in fact, each wing of the Democratic Party fielded its own presidential candidate. Because of his firm belief in the sanctity of the Constitution and the Union, he later abandoned the Democratic Party and joined the Republican Party.

The Civil War:

At the onset of the Civil War, Woods enlisted in the Union Army as a lieutenant-colonel in the Seventy-sixth Ohio regiment. He served with the western branch of the Union Army as did most soldiers from Ohio. He saw combat in such momentous battles as: Fort Donelson, Shiloh, Chickasaw Bayou, Arkansas Post, and Jackson and Vicksburg, Mississippi. His service was marked by distinction and he was promoted through the ranks, first to colonel in 1863, to brigadier general in 1865, and, ultimately, to brevet major general, the rank at which he mustered out in 1866.

Woods' Post Civil War Career:

Because he was mustered out in the south he relocated there. He was chosen as a state chancellor of Alabama for six years, but only served two years. Because President Ulysses S. Grant appointed Woods to be an appellate federal judge on the United States Court of Appeals for the Fifth Circuit in 1869, he resigned his state chancellor's position.

United States v. Hall:

In this case from the Southern District of Alabama, the defendants were indicted under the federal Civil Rights Act of 1870. They were charged with two counts of violating the First Amendment rights of black citizens to peacefully assemble. Writing for the court, Woods' authored one of the very first opinions that interpreted the Privileges and Immunities Clause of the Fourteenth Amendment, which had been enacted in 1866 following the end of the Civil War.

Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the law.

The defendants argued that the Bill of Rights, which was composed of the first eight amendments to the Constitution, applied only to Congress and not the states and that it prohibited Congress from abridging those individual rights. Therefore, it followed that the indictments were legally invalid since Congress had no express power to protect those rights as against infringement by the states.

Woods', writing for the Fifth Circuit Court of Appeals in 1871, stated that the defendants' arguments, while valid for the period preceding the Civil War, had ignored the impact of the Privileges and Immunities Clause of the Fourteenth Amendment, which had been enacted afterwards. The court found that the Amendment created two types of citizenship, one national and one state, and that a person was automatically a national citizen if born in the United States or naturalized here and that a national citizen was automatically a citizen of the state in which he resided. The court further determined that the Privileges and Immunities Clause had empowered Congress to enact laws to protect the privileges and immunities of national citizenship, including First Amendment rights, which the states either through inaction or action had failed to protect. Thus, the court upheld the indictment.

When Woods' was later appointed to the Supreme Court he would take a very different approach to the Privileges and Immunities Clause because of the intervening decision by the Supreme Court in the Slaughterhouse Cases.

The Slaughterhouse Cases:

In 1872, the year following the decision in United States v. Hall, the Supreme Court decided the Slaughterhouse Cases. The issue before the Court was whether the City of New Orleans could create a monopoly in which it controlled who would be licensed to butcher animals within the city and where they could perform their trade. The plaintiffs were butchers who were excluded from the monopoly established by the city and they sued New Orleans claiming that the city ordinance establishing the monopoly violated their rights to practice their trade and infringed upon their privileges and immunities as citizens of the United States in violation of the Fourteenth Amendment. The Court held that the right at issue was not a privilege and immunity of national citizenship and that the Fourteenth Amendment only protected the privileges and immunities of national citizenship against infringement by the states. It did not protect the privileges and immunities of state citizenship from infringement by the states.

This decision was highly criticized at the time and has been since as being directly contrary to the intent of the framer of the Fourteenth Amendment, Representative John Bingham of Ohio. Bingham had intended the Privileges and Immunities Clause to reverse the Black Codes enacted by southern legislatures following the passage of the Thirteenth Amendment that abolished slavery. The Black Codes deprived black citizens of fundamental freedoms such as the freedoms to move, to contract, to own property, to assemble, and to bear arms.

As the dissent in the case warned, the decision would usher in over nearly one hundred years of racial conflict until the Civil Rights Act of 1964 was enacted.

Presser v. Illinois and the Right to Bear Arms:

Woods wrote the majority opinion in Presser. Following the holding in the Slaughterhouse Cases and United States v. Cruikshank, decided by the Court in 1875, Woods took a diametrically opposite position regarding the Privileges and Immunities Clause than he had taken in United States v. Hall.

The Second Amendment provides:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In Presser, the question before the Court was whether the defendant had the right to organize and participate in a private militia in violation of a state statute enacted by Illinois to regulate the formation and operation of militias. Presser claimed that the statute violated his Second Amendment right to bear arms as part of a militia as applied to the states through the Privileges and Immunities Clause of the Fourteenth Amendment. Citing Slaughterhouse and Cruikshank, Woods wrote for the Court that the right of an unauthorized military association to parade or drill with arms is not a privilege and immunity of citizens of the United States. And the Court held that the Second Amendment did not apply to the states through the Fourteenth Amendment.

McDonald v. City of Chicago:

McDonald challenged Chicago's ordinance that prohibits the possession of handguns in a personal residence. The Court of Appeals for the Seventh Circuit, citing Presser, Cruikshank, and Miller v. Texas, decided by the Supreme Court in 1894, upheld the ordinance by holding that the Second Amendment right to bear arms does not apply to the states through the Fourteenth Amendment.

The United States Supreme Court granted certiorari to McDonald on September 30, 2009, and the case is set for oral argument on March 2, 2010. Before the Seventh Circuit, briefs that were filed by interested parties, including the National Rifle Association and the Congress of Racial Equality, advocated that the Privileges and Immunities Clause that was gutted by the Slaughterhouse Cases, be resurrected, so that the Second Amendment could be applied to the states through that clause of the Fourteenth Amendment. In a previous case, Justice Clarence Thomas has indicated a willingness to revisit the Slaughterhouse Cases and the Privileges and Immunities Clause.

In 2008, the Supreme Court decided the case of District of Columbia v. Heller. In that case, a 5-4 majority of the Court decided that the Second Amendment not only provided a right to bear arms in conjunction with service in a militia, but it also provided an individual right to bears arms for any sort of confrontation. The dissent in Heller argued, among other things, that Presser had established the principle that the right to bear arms is only a collective right, not an individual right, and one strictly associated with service in a militia.

The right to bear arms has become such a controversial issue that the outcome of the McDonald case will be all important in determining whether the individual right to bear arms for any sort of confrontation will apply to the states through the Fourteenth Amendment. If it does, and that is a likely outcome, then it will be interesting to see if the Court overturns its prior decisions in the Slaughterhouse Cases and in Presser and, in the process, resurrects the Privileges and Immunities Clause so that provision regains the constitutional stature that its framer intended. This is the result that the National Rifle Association, the Congress of Racial Equality, and many liberal constitutional legal experts are seeking.

If that result occurs, then the ramifications of the McDonald case will impact not only how the Second Amendment applies to the states, but how all of the remaining amendments of the Bill of Rights do as well. And the other constitutional theories that the Court has developed since the 1930's and, in particular, the selective incorporation theory for applying certain of the first eight amendments to the states through the Due Process Clause of the Fourteenth Amendment will be rendered moot. The differences in theories is very important because under the selective incorporation theory not all of the rights guaranteed by the Bill of Rights have, to date, been applied by the Supreme Court to the states through the Fourteenth Amendment. And if Slaugherhouse and Presser are reversed by McDonald, the reach of the Fourteenth Amendment will be greatly expanded.

The Fate of Arlington Cemetery:

United States v. Lee

Kaufman v. Lee

Martha Washington was a wealthy widow when she married George Washington. Her former married name was Custis. Her former deceased husband and she had had one son, George Custis. After George and Martha Washington married, he became very fond of her son by her prior marriage. Ultimately, George Custis took the name of George Washington Custis.

When George Washington Custis died he owned several very large tracts of land in Virginia. One of those was the Arlington Estate.

After he married, George Washington Custis and his wife had a daughter named Mary Custis. When George Washington Custis died, he willed Arlington to his daughter for her life with the remainder, after her death, to his grandson, Custis Lee. Mary Custis had married Robert E. Lee who later became the commanding general of the Army of Northern Virginia during the Civil War and who waged a brilliant military campaign against the Union forces until his surrender to Ulysses S. Grant at Appomattox Courthouse on April 9, 1865.

After Abraham Lincoln was elected President in November of 1860, South Carolina seceded from the Union. She was followed shortly thereafter by many of the other southern states. However, Virginia did not secede until April of 1861. In the meantime, the Union Army made plans to occupy Arlington in the event that Virginia seceded. A Union soldier who was a friend of Mary Custis Lee came across the Potomac River from Washington to warn her of the Union Army's plans and urged her to flee to Richmond, Virginia. She packed up all of the family's personal belongings, including numerous items inherited from George and Martha Washington, and fled to Richmond.

Virginia then seceded from the Union and President Lincoln issued an executive order for the Union Army to occupy Arlington in order to prevent the Confederates from using its high bluffs as a vantage point from which to lob artillery shells upon Washington. As the war commenced, the Union Army began to quarter troops there and, as dead soldiers were transported there, Arlington became a place of burial for them. It was not long before Arlington became sacred ground to the Union.

After Virginia seceded, Congress passed a statute that levied a real estate tax on all real property lying in the southern states that were in a state of rebellion. The statute provided that if the owner did not pay the tax, the property could be sold at tax sale and the property forfeited. When the tax was levied against Arlington, Mary Custis Lee sent an agent to Washington to pay the tax because she was too fearful of leaving Richmond. The Treasury Department refused to accept the tax because she had not appeared in person to pay the tax and had sent an agent instead. The property was sold at tax sale and the government purchased it. The Civil War continued and thousands and thousands of soldiers were buried at Arlington both before and after the war ended in 1865.

After the war, Robert E. Lee tried quietly to regain possession of Arlington. But he was not looked upon with kindness by the United States government since he had led the Confederate forces at great expense to the Union. Indeed, in many quarters he was looked upon as a traitor. During the war he had had his citizenship revoked. And it was never restored afterwards. In 1870 he died without ever regaining possession of Arlington. Then in 1873 Mary Custis Lee died leaving Custis Lee, her son, to inherit Arlington under her father's will. Arlington was Custis Lee's only inheritance.

Custis Lee then sued the general who was in charge of Arlington for trespass and ejectment, a legal action that asks the court to order removal of the trespasser. The case reached the United States Supreme Court. Justice William Burnham Woods was serving on the Court at that time.

Lee argued that the property had been taken by the government in violation of his family's Fifth Amendment rights to due process of law and without just compensation. Furthermore, he argued that the government had waived its claim to the tax by refusing to accept the payment that had been tendered by Mary Custis Lee's agent.

The government argued that the Court simply did not have jurisdiction to hear the case. It argued that the property was possessed by the government in a time of war pursuant to an executive order issued by President Lincoln under the War Powers granted to him by the Constitution and that, because the government was a sovereign, it enjoyed sovereign immunity and could not be sued. Thus, the Court had no jurisdiction.

In a 5-4 decision the Court ruled in Custis Lee's favor. Justice Woods was in the minority and, as such, was of the opinion that the Court did not have jurisdiction to hear the case because of the executive order issued by President Lincoln.

The decision was rendered during the administration of President Rutherford B. Hayes. Hayes had appointed Justice Woods to the Supreme Court. He had also appointed Robert Todd Lincoln to be his Secretary of War. Because Arlington had become sacred ground and because so many soldiers were buried there by that time, Robert Todd Lincoln, the son of Abraham Lincoln, issued payment on behalf of the United States to Custis Lee, the son of Robert E. Lee, in the amount of $150,000, the fair market value for the property.

Return to the virtual tour

1. http://www.ohiojudicialcenter.gov/w_b_woods.asp as visited on May 1, 2009.

2. Henry Howe, Historical Collections of Ohio, 1902, Vol. II, p. 88

3. United States v. Hall, 26 F. Cas. 79 (Cir. C. S.D. Ala. 1871).

4. Slaughterhouse Cases, 83 U.S. 36 (1872).

5. Michael Anthony Lawrence, Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, 72 Mo. L. Rev. 1 (2007).

6. Presser v. State of Illinois, 116 U.S. 252, 6 S. Ct. 580 (1886).

7. United States v. Cruikshank, 92 U.S. 542 (1875).

8. McDonald v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), cert. granted, 78 U.S. L.W. 3169.

9. Robert M. Poole, "The Battle of Arlington," Smithonian, November, 2009, pp. 50- 57.

10. United States v. Lee; Kaufman v. Lee, 106 U.S. 196, 1 S.Ct. 240 (1882).