Every time there’s a mass shooting–like the one just a few miles from my New to Las Vegas home in October that claimed 58 lives, or the Valentine Day incident last month in a Parkland, Fla., school that killed 17–a national debate breaks out over gun rights and the Second Amendment to the U.S. Constitution. The powerful National Rifle Association claims folks have a largely unfettered right under that amendment to pack heat. Majority public opinion seems to be something else, but most politicians up to and including President Trump are too afraid of the NRA’s campaign contribution money to do anything substantive.
So allow me to throw another log onto this fire. As I read our country’s history, people who defend the Second Amendment are actually defending a provision attached to the U.S. Constitution that was worded to make it easier for Southern states to preserve slavery. That’s right, slavery. The “well-regulated militia” phrase so famously found in the amendment, just before the equally famous “right of the people to keep and bear arms,” was a reference to officially organized whites-only posses in the South created for the purpose of keeping in line black slaves, who in many places outnumbered the whites.
Southern politicians were afraid of the nascent Federal Government, soon to be dominated by Northern anti-slavery interests. They specifically were worried southern states would be prohibited by federal authorities from continuing to have militias that could rummage through slave quarters without warrants and, I suppose, shoot black folks who got out of line.
For background, I am relying on several sources and a certain amount of supposition. By far the most accessible material on this subject is a lengthy 1998 article by law professor Carl T. Bogus (yep, that’s his real last name) in the University of California, Davis, Law Review, entitled, “The Hidden History of the Second Amendment.” You can download a copy by clicking here. For a law review article, it’s pretty readable by non-lawyers.
As drafted in Philadelphia and sent to individual states for ratification in 1787, the Constitution contained no provision at all on the right to keep and bear arms. But it had plenty of provisions bearing on militias–state-created part-time armies–and slavery. Article 1 Section 8 gave Congress plenary power to set rules for governing militias and calling them up. Article 2 Section 1 put the President of the U.S. in charge of militias when in federal service. There actually wasn’t much authority given to the states beyond the right to choose militia officers and train its members according to federal standards.
The word “slave” or “slavery” deliberately did not appear in the Constitution. But assorted provisions permitted the practice. Article 1 Section 9 allowed the slave kidnapping trade from Africa (benignly called “importation of such persons as any of the states now existing shall think proper to admit”) to continue for at least another 20 years. The Federal Government could collect a tax on each new slave of up to $10 a head ($245 in today’s dollars).
Article 4 Section 2 prohibited Northern states from freeing an escaped slave (called a “person held to service or labor in one state”) while requiring return of such a fugitive to the slave’s owner. Article 1 Section 2 allowed Southern states to count 60% of slaves (euphemistically styled “other persons”) when determining representation in the House of Representatives, giving those state more seats–although, of course, those slaves couldn’t vote.
Remember, we’re talking about a document whose preface paradoxically proclaimed a goal of securing “the blessings of liberty.”
All these provisions were part of a compromise among the 13 states to get approval of the draft Constitution by nine, the minimum needed for ratification. But the ratification process was stalled at eight–not every state wanted to chuck the weak-central-government Articles of Confederation, under which the country had been operating since 1781–when Virginia chose 173 delegates who gathered in Richmond in 1788 to deliberate and vote.
Patrick Henry–the slave-owning ex-governor best known now for his stirring pre-Revolutionary War battle cry, “Give me liberty or give me death!”–warned the assembly that the proposed Constitution gave Congress all the real authority over militias. George Mason, another prominent delegate who owned slaves (but said he was against slavery), said the feds could order the Virginia militia into a far-away state and leave Virginia unprotected. Even worse, Mason said, the feds could order the disarming of the Virginia militia. Mason had refused to sign the draft Constitution.
Professor Bogus argued that this was all coded language for a fear that Virginia could be left defenseless against slave uprisings.
In Virginia and other Southern states, the duties of militias including operating slave patrols, armed groups of white males who made regular patrols. “The patrols made sure that blacks were not wandering where they did not belong, gathering in groups or engaging in other suspicious activity,” Bogus wrote. “Equally important, however, was the demonstration of constant vigilance and armed force. The basic strategy was to ensure and impress upon the slaves that white were armed, watchful and ready to respond to insurrectionist activity at all times.”
Against this backdrop, Henry became even blunter by suggesting that the Federal Government under its power to provide for the general defense could enlist slaves in a federal army and then emancipate them. “May they (the federal government) not pronounce all slaves free, and will they not be warranted by that power?” he asked.
James Madison, a Virginian and future U.S. President who was the principal author of the Constitution, a delegate to the Richmond Convention and, yes, a slave-owner, too, defended his work by saying Virginia certainly would have “concurrent” authority to arm a militia if the feds didn’t. But if Virginia ratified the Constitution, he agreed to propose amendments to the future Congress. With that proviso, the Richmond Convention narrowly ratified the Constitution 89-79, and it soon took effect.
The Richmond delegates formally suggested a long “Declaration of Rights” for the new constitution, including one holding “that the people have a right to keep and bear arms.” Such language was not revolutionary; the English Declaration of Rights of 1689 contained a similar provision. But a bill of rights Virginia had adopted in 1776 did not contain that wording. However, in the context of the looming Constitution and the perceived need to preserve slavery, it became an imperative.
In 1789, Madison was elected to the U.S. House of Representatives in the First Congress (defeating James Monroe, another future U.S. President), and resolved to make good on his promises to his fellow Richmond Convention delegates. In pertinent part he initially proposed this language as a constitutional amendment, “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country.” The wording seemed to meet Patrick Henry’s concerns about free whites being defenseless against agitated black slaves.
By the time what became the Second Amendment emerged from Congress and was sent to the states for ratification, “free country” had been changed to “free state.” The syntax had been reversed and boiled down to a single 27-word sentence: “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.”
There isn’t a lot of legislative history explaining the rationale behind the wording changes, especially how “free country” became “free state,” although that, too, might be evidence of that Southern state slave revolt fear. Overall, Professor Bogus said the final version squared with the spirit that allowed anti-slavery Northern states and pro-slavery Southern states to agree on a governing document that tolerated the odious practice. “In effect,” he wrote, “Madison proposed that the slavery compromise be supplemented by another constitutional provision prohibiting Congress from emasculation the South’s primary instrument of slave control, and Congress acceded to that request.” The Second Amendment took effect in 1791.
Now, the post-Civil War ratification of the 13th Amendment in 1865 ending slavery (except as a punishment for crime, the main reason convicted prisoners today can be forced to make license plates) served in effect to repeal a number of other slavery-linked constitutional provisions. These included the fugitive slave clause in Article 4 and the slaves-count-as-three-fifths provision for Congressional representation in Article 1.
So if the Second Amendment was intended to support slavery, how about someone arguing in an appropriate court case that it, too, was repealed sub silentio by the 13th Amendment, and no longer in force?
That’s yet another log on the fire from me.
In light of the recent ruling (6/3/21 ) by Federal judge Roger Benitez overturning a California firearms ban on assault weapons where he ruled it violates the Constitutional right to bear arms, his words, referring to the Second Amendment, I have a suggestion. In my thesis regarding the Second Amendment I think it will prove his ruling right to bear arms” has everything to do with a “militia” and nothing to do with a “person” or individual, which the following will suggest..
Justice Amy Coney Barrett Second Amendment dilemma
In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.
I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “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.”
Militia, a body of citizens organized for military service.
If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)
The 4th Amendment reminds us, “The right of the people to be secure in their persons….”
The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.
It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”
Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?
Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
Leaving Supreme Court Justice Barrett’s judgment in question.
In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.
Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..
And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”
“[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;
The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.”
Finally, clarifying “..the right of the people to keep and bear arms…
People. Human beings making up a group or assembly or linked by a common interest.
In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.
William Heino Sr.
It doesn’t appear to me that Northern politicians of the day were all that worried about federal control of militias or the lack of Constitutional language about a right to bear arms, but many in the South sure were.
Leaving aside the obvious question of whether supporting the Constitution itself is “supporting slavery” (I know, 13th Amendment and Civil War fixed that, but still…) you focus only on Southern support for militias. Hamilton, a New Yorker, also wrote in the Federalist Papers that a militia is “the most natural defense of a free country.” England had a strong history of both opposing standing armies and protecting the rights of (some male citizens) to bear arms, and those traditions were not transmitted solely to the southern colonies. I’d call this highly selective scholarship.