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Was the Second Amendment adopted for slaveholders?

The case is made in a fascinating law review article by a professor who specializes in gun issues. This was a new one on me, and a jaw-dropper.

Civil War reenactors prepare to reenact the Battle of Manassas/Bull Run. In slave states, militias served not only as military forces, but also as slave patrols.
REUTERS/Kevin Lamarque

“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.”

I don’t claim to know all the reasons that the United States is among the most gun-obsessed of modern societies. But, at least when it’s time to defend gun rights, the Second Amendment to the U.S. Constitution, quoted in full above, is never far from being invoked.

Although the Supreme Court has said that reasonable restrictions can be placed on the right to own a gun, extremists tend to view the right as absolute. Until fairly recently, the courts had held that the maddeningly ambiguous introductory clause about the “well regulated militia” raises the possibility that the right to keep a gun is somehow tied to membership in a militia or something resembling a militia. The Supreme Court recently broke with centuries of precedent by deciding that the “militia” phrase was mere throat-clearing and that the right to keep and bear is an individual right.

Thanks to a long-time Black Ink reader and commenter, Paul Udstrand, my attention was recently called to a long, fascinating 1998 law review article by a law professor who specializes in gun issues which argues that the Second Amendment was added to the Constitution to reassure white slave-owning southerners that the federal government would not use its Constitutional power over state militias to disarm the southern states and leave them vulnerable to a slave revolt.

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Although I have spent more time than has the average bear in trying to understand the history of the Constitution, this was a new one on me, and a jaw-dropper.

The author of the article is professor Carl Bogus of the Roger Williams University Law School in Rhode Island. The piece was published in the University of California at Davis Law Review. The full piece is here. It’s long, scholarly in tone and heavily footnoted, but I absolutely encourage you to read the whole thing if you are so motivated. It’s not hard to follow. Whether or not you buy Bogus’ conclusion, you’ll learn a lot.

Thom Hartmann, the lefty radio host and writer, relied on Bogus to make the same argument in a recent piece for Truthout, if you want a shorter version. For now, I’ll just summarize the case.

The right to bear arms was not part of the original Constitution. The Constitution did, without mentioning the word “slavery,” build in a number of protections for the institution in the South. Many of the northern framers were anti-slavery, but it was clear that there would be no union unless the slave states felt assured that the new, more powerful national government was not empowered to abolish slavery.

Patrick Henry
CC/Wikimedia Commons
Patrick Henry

When the draft went to the states for ratification, one of the big battles was in Virginia, where men of towering reputations stood on both sides of the issue. The leader of the pro-ratification forces was James Madison, whose role in the story is so large that he is known as the Father of the Constitution. The noisiest opponent was the fading but famed orator Patrick Henry (whose famous line as a revolutionary was “give me liberty or give me death” and who had been the first post-colonial governor of Virginia). Henry made many, many arguments about the dangers to individual liberty and to the sovereignty of the Commonwealth of Virginia of this powerful new federal government.

Bogus emphasizes that many of the arguments dealt with “militia” issues. But Bogus adds a fact that wouldn’t necessarily occur to you. In the slave states, the militias also served the function of slave patrols. The militia was available for military operations, but its biggest function was to police the slaves, intimidate the slaves and make clear to the slaves that any effort at a slave rebellion would be met with overwhelming deadly force — armed force — gun force.

Henry’s plan was to defeat the Constitution by demanding amendments in advance of ratification, and then use the process of rewriting the draft to scuttle the whole project. Henry had a lot of objections on the issue of how the state militias would be treated.

The weird dependent-clause reference at the beginning of the Second Amendment is probably the most famous mention of militias in the Constitution, but that wasn’t written yet. Instead, the Constitution said that Congress was empowered “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;  to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…”

And, lastly, the Constitution declared that the powerful new president, who wouldn’t necessarily always be a Virginian, “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

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The national government could call forth the Virginia militia to execute laws, suppress insurrections and rebel invasions. To what degree would this interfere with Virginia’s ability to use its armed men for the purpose of intimidating the slaves? If Congress was in charge of “organizing” and “governing” the Virginia militia, might that not mean sending the Virginia militia out of state to fight battles and put down insurrections? Might that not mean that, when Virginia’s militia was in some other state, there would be no organized armed men in Virginia to keep the slaves in line? Bogus wrote:

Patrick Henry was even more direct. He drew the audience’s attention to the section of the Constitution that provides that no state may, without the consent of Congress, “engage in War, unless actually invaded,” and asked: “If you give this clause a fair construction, what is the true meaning of it? What does this relate to?” Henry answered this question as follows:

“Not domestic insurrections, but war. If the country be invaded, a state may go to war, but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only, can call forth the militia.”

 If members of the audience were previously uncertain about the meaning of [George] Mason and Henry’s warning, this had made it plain. Congress might want to leave the South defenseless against its slaves.

Henry lost the big argument. The Virginia Convention narrowly voted to ratify the Constitution without amending it in advance, but this was based in part on Madison’s promise that a Bill of Rights would be added to the document soon after it took effect.

The Virginia convention appointed a committee which recommended changes to the Constitution and items to make up a Bill of Rights. According to Bogus, four of the proposed amendments related to either the right to bear arms or to the militia. One of the proposals went thus:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

James Madison promised to take these matters up in the very first Congress. Madison was elected to the House of Representatives and was its leading member in the first Congress. And he kept the promise. He wrote the proposals that became the first 10 amendments to the Constitution, also known as the Bill of Rights.

As you can see from the language just above, drafted by the Virginia ratifying convention, what we now call the Second Amendment drew heavily from the language.

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Bogus’s long article was titled: The Hidden History of the Second Amendment. He concluded it with these two paragraphs:

What does the hidden history mean with respect to how the Second Amendment should be interpreted? I do not in this Article take any position with respect to “original intent.” Nevertheless, two items of significance ought to be mentioned. First, the Second Amendment was written to assure the South that the militia — the very same militia described in the main body of the Constitution — could be armed even if Congress elected not to arm them or otherwise attempted to ‘disarm’ them. From our perspective today, this may seem like a small matter since Congress retained exclusive authority to determine the composition of the militia, and, thus, who could enjoy the right to bear arms. However, in the context of the concern and circumstances of the time, it was significant. The Amendment deals with keeping and bearing arms in the militia, subject to federal and state regulation. Therefore, to the extent original intent matters, the hidden history of the Second Amendment strongly supports the collective rights position [as opposed to the idea that bearing arms is an individual right].

Second, the Second Amendment lives two lives: one in the law and the other in politics, public policy, and popular culture. The hidden history has ramifications in the second realm as well. The Second Amendment takes on an entirely different complexion when instead of being symbolized by a musket in the hands of the minuteman, it is associated with a musket in the hands of the slave holder.