By: TJ Martinell
Second Amendment scholars and historians have almost completely skipped over a detailed analysis of the debates in the First Congress. What wasn’t discussed might be as important as what was.
In his dissenting view in the Second Amendment case Heller v. District of Columbia, Justice John Paul Stevens cited congressional debates surrounding the amendment’s adoption as proof that it related to the right of militias to keep firearms and did not convey a right to private persons.
In the original draft submitted by James Madison, the Second Amendment included a conscientious objector clause, meaning a person could not be compelled to bear arms or serve in the militia if they had religious or moral objections.
Although in his majority opinion, Justice Scalia argued “it is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process,” the proposed clause offers us a glimpse into the priorities surrounding discussions in 1789.
In his paper “Revisiting the Original Congressional Debates About the Second Amendment,” research professor Dru Stevenson concludes that the question of individual firearm ownership played virtually no role in the debates. Instead, it focused “mostly on whether to include an exemption for conscientious objectors (especially Quakers), and if so, how to phrase it.”
Quakers were a religious sect that founded Pennsylvania. It was the only colony where abled-bodied men were not required to join a local militia. Quakers were deeply distrusted by the people of other colonies, especially after refusing to fight in the War of Independence due to their pacifist beliefs. Everybody assumed they would refuse to participate in any future militia called up by the federal government.
While founders like Tench Coxe argued strenuously in favor of an individual right to keep and bear arms, Stevenson writes that during congressional debates prior to adopting the amendment “there was zero discussion of an individual right to own or carry weapons for self defense, but inferring a reason for this requires speculation – silence could indicate they thought the point was so obvious as to be trivially true, or it could mean that the idea never occurred to them. Either view is an argument from silence.”
He writes further:
“Looking at those discussions together can help our understanding of what the drafters of the Second Amendment hoped to accomplish and wanted to prevent, as well as how their constituents – who would ultimately ratify the Amendment, understood its terms.”
However, statements made by several congressmen at the time made it clear the Second Amendment was motivated by fears of a standing army and a strong central government overwhelming the states. The Virginia Ratifying Convention’s proposed “Second Amendment” specifically cites a permanent army as something to prevent.
“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.”
Congressmen Eldridge Gerry reiterated this view during the congressional debates about the amendment.
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution.” [Emphasis added]
Stevenson writes that “the debates reveal that three of the twelve Congressmen to speak during the debates over the Second Amendment…wanted to focus on the dangers of a standing federal army, to which they seemed to think state militias were the antidote.”
One of the possibilities for the lack of discussion about individual firearm ownership is that self-governance was far greater at the time than today. There were no law enforcement agencies at the time as we know them in the modern sense. An ordinary man was expected in all but one state to be ready and capable of bearing arms to maintain civil order, whether against Indian attacks, revolts, mobs, or invasion.
Put plainly, an overlapping identity existed between people as civilians and government as a ruling authority that does not exist in modern America. Today, there is an enormous legal separation between a civilian and an armed public agent.
This overlapping identity is reflected in a follow-up draft of the Second Amendment introduced on Aug 17, 1789:
“A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” [Emphasis added]
This is a point that the militia-only crowd continually misses. Their interpretation is based on the attitude that only members of government enforcement agencies have a right to keep and bear arms. In today’s world, this constitutes a relatively small group of people with clear legal distinctions and privileges. At the time of the Second Amendment’s adoption, militia participation among the male population was nearly universal. In fact, in most places it was mandated by law.
In other words, the militia-only people make their case on the unspoken assumption that only a select group of people have a right to access to firearms, and that government should be able to restrict firearms among private citizens. But if they are to be consistent then they would need to reintroduce laws mandating participation in militia and removing privileges such as qualified immunity and sovereign immunity from those entities.
Stevenson’s research also dispels the erroneous claim that the Second Amendment was enacted to uphold slavery, since in some southern states militias conducted slave patrols. Ardent pro-slavery congressmen such as William Loughton Smith claimed the precise opposite during the 1789 debates. To be fair, Smith “feared that allowing any amendments would eventually lead to federal interference with slavery.” But this also puts to rest the notion that slavery proponents were pushing for the amendment’s adoption.
No protection clause for Quakers or other conscientious objectors was included in the final amendment. Stevenson writes that “the debates provide strong historical clarification of the perceived need for militias. The debates also reveal the significance, for those in Congress, of the existence of groups that refused to participate in militias, the expediency of reassuring those groups that they would not be subject to conscription, and the problems of funding the militias and sourcing firearms.”
Stevenson argues that “considering the right to bear arms in isolation from other related issues is problematic if we are to be faithful to the original public meaning of the Amendment and its text. They did not treat an individual’s right to keep and bear arms in isolation – whatever that right may have entailed – but considered it alongside the need to provide legal protection for the unarmed as well. This is a lesson that courts could apply today.” [Emphasis added]
While Stevenson argues against reading into the lack of discussion around private ownership, we can turn to others like Coxe who wrote newspaper articles describing the amendment as a way to protect private firearms. He sent copies of the article to James Madison, who despite remaining quiet during the congressional debates about the Second Amendment, complimented Coxe in his description of it and the other amendments under consideration.
Stevenson’s research demonstrates that the Second Amendment was birthed amid a complex and complicated political environment far removed from the 21st Century, and that only by viewing it within context can we fully appreciate its true meaning, which goes well beyond modern debates about it.