Again from Las Vegas: Second Amendment defenders are defending slavery

Second AmendmentEvery time there’s a mass shooting–like the school shooting this week in Uvalde, Texas, that murdered 21, the supermarket shooting earlier this month in Buffalo that killed 10 or the one just a few miles from the New to Las Vegas world headquarters in 2017 that claimed 60 lives–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, even assault rifles. Majority public opinion is clearly somewhere else, but many politicians are too afraid of the NRA’s campaign contribution money to do anything substantive. They hide behind language in the U.S. Constitution’s Second Amendment, which clearly gets in the way of meaningful reform.

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 tolerated 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 ($330 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 a lot more seats and electoral votes–although, of course, those slaves couldn’t vote.

Remember, we’re talking about a document whose preface outrageously 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, in the South, anyway, 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 equally repealed sub silentio by the 13th Amendment, and no longer in force? Win that case, and we really can get around to some decent gun-law reform.

That’s yet another log on the fire from me.

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Again from Las Vegas: Second Amendment defenders are defending slavery — 2 Comments

  1. This is the first time I’ve seen the Second Amendment bashed as a mere tool to support slavery. What is often called the “Henigan/Bogus Model” of interpreting what the amendment says and means is usually cited as a “collectivist” intent by the framers, meaning that the right is ONLY for the militia, which to them (and the ACLU and some others) means “only the National Guard.” It falls under what has been called “Talking Head Constitutionalism.”
    If one reads the list of briefs submitted for consideration by the Supreme Court in District of Columbia v. Heller (2008), the number of scholarly works in support of the “Standard Model” of interpretation of the Framers’ intent (an individual right of ;aw-abiding citizens) exceeds contrary works by at least 2:1. The “Henigan/Bogus Model” is, in plain English, BOGUS. The Heller decision was not the first time that the supreme Court ruled that a right to bear arms exists outside of membership in a militia. (despite any claims to the contrary about the 1939 decision in U.S. v. Miller.)
    I’d also like to point out that one reason for the ratification of the 14th Amendment was to counter the so-called “Black Codes” that replaced slave codes in southern states after the Civil War. Among the rights the 14th Amendment was intended to protect for Black Americans was the right to self-defense, i.e the right to “keep and bear arms.”
    Please skip the Bogus Model, and read some real scholarship on the right to keep and bear arms. I recommend any or all of the following: “For Defense of Themselves and the State” by Clayton E. Cramer, (1994); “That Every Man Be Armed,” by Stephen P. Halbrook [PhD, JD], (1989; revised and updated 2013); and “To Keep and Bear Arms: The Origins of an Anglo-American Right” (1994), by Joyce Lee Malcolm.

  2. I applaud your scholarship and writing; and I am always looking to learn.
    I do wonder if you intended to place blame on the inanimate object used in these horrific crimes; almost as if left unmonitored; guns will go out and commit these crimes. Which is, of course; nonsensical; much the same as would be outlawing SUVs after the Kenosha Christmas parade murders, or outlawing trucks after the horrific murders in Paris.
    I’m sure it is apparent that I do in fact own firearms, and I am of a mindset that because of this, I can be a resource for common sense discussion regarding the 2nd Amendment. One fact I will state, is that if there were by some miracle no firearms in this country, psychotic folks bent on murder will simply use another tool. They will not be ‘cured’ of their psychosis by removing their access to firearms. They will simply use SUVs, or trucks, or whatever their sick minds lead them too.
    I will close saying that the continued call for “gun control” in this country is a popular hue and cry from some folks after events such as in Uvalde or Buffalo, and people – including some members of my family – believe that somehow, sometime; there will be no firearms in this country.
    The number of firearms in America simply make this an impossibility. The numbers of good citizens who legally own firearms in this country make this an impossibility. I pray that we can indeed have common sense discussion in this country regarding all the issues we face. With regard to firearms, it must be an unemotional, informed, and realistic discussion.
    We as a nation are light years away from that discussion.

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