By: TJ Martinell
Note: This is the second in a three-part series examining a pro-slavery interpretation of the Second Amendment that persists to this day. You can read part 1 HERE.
The Hidden History of the Second Amendment by law professor Carl T. Bogus argued that James Madison’s motive for proposing the Second Amendment was to calm the fears of Southern slave states. He argued that they worried the Constitution would limit their use of militia for slave patrols and to quell revolts. The Second Amendment, he claims, was to ensure this role of the militia wouldn’t be infringed upon by the new federal government.
Bogus turns to the Virginia Ratifying Convention for the best historical evidence to press his case. Madison was a delegate to the convention, which is important since Bogus’s thesis revolves around his motives for proposing the Second Amendment.
But Bogus plays a game of “they said what they didn’t really mean and really meant what they didn’t actually say,” writing that “we need to keep both soapbox rhetoric designed to flatter an audience and the agenda of the anti-federalists in perspective” when examining the convention’s transcript.
One problem with this approach is the rhetoric around local militia and standing armies was incredibly similar to what northern free states said on the exact same topic and expressed in their proposed amendments.
Patrick Henry was also a delegate at the Virginia Ratifying Convention. He warned that the Constitution would allow the federal government to deploy Southern militia to put down insurrections in northern states. Bogus writes that Henry’s implication was it would leave a slave state vulnerable to revolts.
However, it’s equally possible Henry feared the president could use their militia to crush resistance to federal tyranny in other states. Based on the fact that Henry spoke more of the military usurping civilian rule than he did about slavery, that theory is just as plausible as Bogus’s.
The primary challenge for Bogus’ thesis is that there were no direct statements made during the convention by any antifederalist specifically connecting “the right of people to keep and bear arms” tied to the Southern militia’s role in enforcing slavery. He attempts to circumvent this by asserting the open defense of slavery was apparently an unforgivable faux pas, even in the 18th Century South. He cites Conor Cruise O’Brien’s claim that “even where the word slavery was not specifically mentioned, the fact of slavery must have been subliminally pervasive in the whole debate over ratification.”
Aside from the notion that slavery was a giant elephant in the room among slave owners in a slave state, where is the correspondence that shows what they said in public was at odds with what they believed in private?
If such evidence exists, the paper doesn’t cite them.
Bogus’s strongest piece of evidence is Henry’s statement at the convention that the states would not be authorized under the Constitution to suppress insurrections or invasions. If slaves revolted in a Southern state, “the country cannot be said to be invaded. They (the state) cannot, therefore, suppress it without the interposition of Congress.”
But what does this have to do with Congress consolidating, disarming, or dissolving local militia, or the creation of a standing army? How does the Second Amendment, as it was ultimately ratified, satisfy these concerns? It does not alter or amend federal authority to put down insurrections.
Bogus paints Henry’s rhetoric as growing increasingly inflammatory and desperate to the point where at the end of the ratifying convention he openly and explicitly calls out the potential power of the federal government to abolish slavery without the consent of Southern states by a simple majority vote of Congress.
The point once more hits the same snag as every piece of potential evidence presented in the paper. The ability of Congress to abolish slavery by a simple majority vote neither concerned the existence or ability of local militia to put down slave revolts or enforce slave laws nor was this fear satisfied by the inclusion of the Second Amendment.
Eventually, the Virginia Ratifying Convention voted in favor of the proposed Constitution without a bill of rights, but a 20-member committee consisting of Mason, Henry, James, Monroe, and John Marshall went on to write a recommended bill of rights to add to the Constitution by Congress. Much of it was inspired by the Virginia Declaration of Rights written by George Mason in 1776.
Among them was an early version of the Second Amendment (bold emphasis added):
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.
Bogus downplays the significance of the committee’s proposed bill of rights, arguing it was a “political opportunity” and a “cathartic exercise for the defeated anti-federalist,” since the Constitution was already ratified and the convention which had rejected stipulating amendments for ratification unanimously adopted the 20 proposed amendments.
Individual rights advocates attaching significance to the proposed Second Amendment, he writes, “is a mistake.”
This is another example of “they didn’t mean what they wrote and meant what they didn’t write.” The proposed amendment specifically says “the people have a right to keep and bear arms.” Although as Bogus notes this individual right wasn’t articulated specifically in Virginia’s 1776 Declaration of Rights, his assertion is that anti-federalists were concerned primarily about preventing the disarmament and loss of autonomy of militia, not individual firearm rights.
As this version of the amendment, as well as the actual language of the Second Amendment states, it is the “right of the people to keep and bear arms,” not local militia. A separate proposed amendment written by the committee concerned the autonomy of local militia – yet wasn’t ultimately included in the U.S. Constitution’s Bill of Rights. If militia was the primary concern, why wasn’t it included?
Bogus argues these amendments were written as a “catharsis,” but where is the mention of even the mildest reference to slavery, such as “domestic insurrections” as referenced in the Declaration of Independence? It stretches credulity to think that a core issue driving the adoption of a right “of the people” to keep and bear arms by antifederalists was to put down potential slave revolts and insurrections or to preserve a collective right of the militia to maintain arms, yet it goes completely unmentioned in a document meant as a political pressure release outlet.
What’s fascinating is that Bogus admits that the right to keep and bear arms didn’t originate in Virginia, as four state constitutions already had such a clause, yet argues in his footnotes that there is disagreement over the “purpose and nature of that right.”
This is effectively asking the reader to ignore the plain meaning of a text and instead believe speculations over the true motives, a plea that is made later in the paper.