The Origin of the Second Amendment Explained
Like so much else in our history, the Second Amendment is an echo of slavery
We face yet another mass murder committed by a mentally ill man wielding a weapon designed to efficiently kill people. Republicans once again offer “thoughts and prayers” while stridently proclaiming that the Second Amendment is a sacred right that is foundational to our identity as Americans.
In school we are introduced to the idea of musket-toting Minutemen of Lexington and Concord throwing off the yoke of the tyrannical British crown. It is common to hear Second Amendment devotees preach that the right to own all manner of personal assault weaponry is necessary to discourage the rise of tyrannical government—as though the need for the Second Amendment grew directly out of the Revolution. However, the history and reasoning behind the 2nd Amendment is far more complicated and messy than that simple framing would suggest.
By the end of the Revolutionary War (1783) the thirteen former British colonies had joined together under the Articles of Confederation, a confederation that proved too weak to be useful. In 1787 the task facing the delegates from twelve of the thirteen former colonies was to produce a constitution that would give the federal government more power but, at the same time, not so much power as to threaten the manner in which the elites of each former colony had already gotten used to conducting their own business. After all, each former colony, now referred to as a state, had to be induced to ratify the new document.
A major tension at the time was between states whose economies and ways of life were dependent upon slave labor and those who increasingly considered slavery an abomination. The infamous 3/5ths compromise (in Article I of the Constitution) is a prime example. The first ten amendments to the Constitution, known collectively as the Bill of Rights, were offered primarily to convince existing state governments that their powers would not be subsumed by the federal government for which they were asked to sign up by ratifying the Constitution. The Bill of Rights was ratified right on the heels of the ratification of the Constitution itself. The Bill of Rights, including the 2nd Amendment we’re discussing here, was understood to be part of the overall package.
Understanding that history of the Bill of Rights offers context to the need for the Second Amendment as a limit to federal power over the states, particularly as perceived by the delegates from those states whose economies were directly dependent on slavery.
The full text of 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, shall not be infringed.
All my life that first clause, “A well regulated Militia, being necessary to the security of a free State,” has nagged me. Why is “the right of the people to keep and bear Arms, shall not be infringed” frequently quoted while the “well-regulated Militia”clause is nearly always left out?
The U.C. Davis Law Review in its Winter 1998 edition contains an answer to that question that finally connects the dots. The article sets the Second Amendment in the tumultuous politics swirling at the time the U.S. Constitution and, slightly later, the Bill of Rights were written and ratified. “The Hidden History of the Second Amendment”, written by Carl T. Bogus, is an engaging read (even without the many footnotes), but quite long. You can download it or read it as a pdf in your browser by clicking here.
Professor Bogus makes a convincing argument that the Second Amendment was written to counter anti-Federalist attempts to scuttle ratification of the Constitution. Anti-Federalists, particularly in Virginia, were pumping up slave state fears of federal government. The Constitution, as presented for ratification (and as eventually ratified), gave the U.S. President and U.S. Congress control over the “Militia.” Anti-federalist (i.e. anti-ratification), southern state slaveholders like Patrick Henry (of “Give me Liberty or Give Me Death” fame) fueled fear that federal control of the Militia could result in southerners losing control over the slave patrols that kept them safe from slave rebellion. James Madison, who wrote and assembled what we now recognize as the Bill of Rights, offered the Second Amendment as yet another compromise to induce those states economically dependent on slave labor to ratify the new Constitution. In this light the “State” in the 2nd Amendment refers to the several former colonies, not the federal government. The “Militia” refers to state sanctioned slave patrols—and the Second Amendment becomes one more of the twisted compromises necessary to bind states together as the United States under the just-drafted Constitution.
Professor Bogus’s detailed historical analysis offers a window on the messiness of the founding of our country that we are not taught in school. It torpedos the myth we are taught of the origins and necessity of the Second Amendment.
I became aware of Carl Bogus’s work by reading a provocative March 23, 2021 blog post by Thom Hartmann. Hartmann’s post owes much to Bogus’s article and lays out much of the professor’s argument in a shorter form. Hartmann’s post is copied below.
Carl Bogus’ work is cited and expanded in the 2021 publication of The 1619 Project: A New Origin Story, one of the followups to Nikole Hannah-Jones’ ground-breaking New York Time Magazine publication of the 1619 Project in 2019. It is no wonder that Republicans, especially those of the Christian nationalist variety, hurriedly assembled a Trump-commissioned, uber-patriotic, and widely-panned mythological counter-narrative, spearheaded by Hillsdale College. Hillsdale now offers a spin-off, The Hillsdale 1776 Curriculum, for “free” for K-12 education as the “patriotic” mythological pushback to the 1619 Project.
Keep to the high ground,
Thom Hartmann’s Blog Post:
Another mass gun murder just happened in America, the seventh in 7 days, and already “Second Amendment legislators” are offering the 2021 version of thoughts and prayers. Lauren Boebert just tweeted, “May God be with them.” Standing in front of her wall of assault weapons, most likely.
And, of course, today on rightwing talk radio and Fox News they’ve already begun lengthy bloviation about the Second Amendment. So, let’s just clear a few things up.
The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference - see the 10th Amendment), was to preserve the slave patrol militias in the southern states, an action necessary to get Virginia's vote to ratify the Constitution.
It had nothing whatsoever to do with making sure mass murderers could shoot up public venues and schools. Founders including Patrick Henry, George Mason, and James Madison were totally clear on that, and we all should be too.
In the beginning, there were the militias. In the South they were called "slave patrols," and were regulated by the states.
In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and required armed militia members to keep a keen eye out for slaves who may be planning uprisings.
As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."
It's the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, "Why don't they just rise up and kill the whites?" It was a largely rhetorical question, because every southerner of the era knew the answer: Well-regulated militias kept enslaved people in chains.
Sally E. Haden, in her brilliant and essential book Slave Patrols: Law and Violence in Virginia and the Carolinas, notes that, "Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller." There were exemptions so “men in critical professions” like judges, legislators and students could stay at their work. Generally, though, she documents how most southern men between ages 18 and 45 — including physicians and ministers — had to serve on slave patrol in the militia at one time or another in their lives.
And slave rebellions were keeping the slave patrols busy.
By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down uprisings by enslaved men and women. As I detail in my book The Hidden History of Guns and the Second Amendment, slavery can only exist in a police state, which the South had become by the early 1700s, and the enforcement of that police state was the explicit job of the militias.
Southerners worried that if the anti-slavery folks in the North could figure out a way to disband — or even move out of the state — those southern militias, the police state of the South would collapse. And, similarly, if the North were to invite into military service enslaved men from the South, then they could be emancipated, which would collapse the institution of slavery, along with the southern economic and social “ways of life.”
These two possibilities worried southerners like slaveholder James Monroe, George Mason (who owned over 300 enslaved humans) and the southern Christian evangelical, Patrick “Give Me Liberty Or Give Me Death” Henry (Virginia’s largest slaveholder).
Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise an army, could also allow that federal army to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free their enslaved men, women and children.
This was not an imagined threat. Famously, 12 years earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered freedom to slaves who could escape and join his forces. "Liberty to Slaves" was stitched onto their jacket pocket flaps. During the War, British General Henry Clinton extended the practice in 1779. And numerous freed slaves served in General Washington's army.
Thus, southern legislators and plantation owners lived not just in fear of their own slaves rebelling, but also in fear that their slaves could be emancipated through the newly-forming United States offering them military service.
At the ratifying convention in Virginia in 1788, Henry laid it out:
"Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress power 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. . . .
"By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither … this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory."
George Mason expressed a similar fear:
“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution]…”
Henry then bluntly laid it out:
“If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. 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 [under this new Constitution], can call forth the militia.”
And why was that such a concern for Patrick Henry?
“In this state,” he said, “there are 236,000 Blacks, and there are many in several other states. But there are few or none in the Northern States. … May Congress not say, that every Black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free.”
Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias. He knew the majority attitude in the North opposed slavery, and he worried they'd use the new Constitution they were then debating ratifying to free the South's slaves (a process then called “Manumission”).
The abolitionists would, he was certain, use that power (and, ironically, this is pretty much what Abraham Lincoln ended up doing):
“[T]hey will search that paper [the Constitution], and see if they have power of manumission," said Henry. "And have they not, sir? Have they not power to provide for the ‘general defence and welfare’? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?
“This is no ambiguous implication or logical deduction. The paper [the Constitution] speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it.”
He added: “This is a local [Southern] matter, and I can see no propriety in subjecting it to Congress.”
James Madison, the “Father of the Constitution” and a slaveholder himself, basically called Patrick Henry paranoid.
“I was struck with surprise,” Madison said, “when I heard him express himself alarmed with respect to the emancipation of slaves. . . . There is no power to warrant it, in that paper [the Constitution]. If there be, I know it not.”
But the southern slavemasters’ fears wouldn't go away.
Patrick Henry even argued that southerner's “property” (enslaved humans) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:
“In this situation,” Henry said to Madison, “I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone.”
So Madison, who had (at Jefferson's insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.
His first draft for what became the Second Amendment had said: “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 [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”
But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word “country” to the word “state,” and redrafted the Second Amendment into today's form:
“A well regulated Militia, being necessary to the security of a free State [emphasis mine], the right of the people to keep and bear Arms, shall not be infringed.”
Little did Madison realize that one day in the future weapons-manufacturing corporations would use his slave patrol militia amendment to protect their “right” to manufacture and sell assault weapons used to murder people in schools, theaters and stores, and use the profits to own their own political party.
In today’s America, you have the “right” to a gun, but no “right” to healthcare or education. In every other developed country in the world, the reality is the exact opposite.
Pointing out how ludicrous this has become, David Sirota (and colleagues) writes in his Daily Poster newsletter today: “Last week, the National Rifle Association publicly celebrated its success in striking down an assault weapons ban in Boulder, Colorado. Five days later, Boulder was the scene of a mass shooting, reportedly with the same kind of weapon that the city tried to ban.”
The Second Amendment was never meant to make it easier for mass shooters to get assault weapons, and America needs rational gun policy to join the other civilized nations of this planet who aren’t the victims of daily mass killings.
It’s long past time to overturn Heller, which Ruth Bader Ginsberg repeatedly argued the Court should do, and abolish today’s bizarre interpretation of the 2nd Amendment.