Monthly Archives: January, 2020

A Brief History of the Second Amendment

Gun activists often claim that the original intent of the Second Amendment was to give them an absolute right to own any weapon they might choose. Historically, they couldn’t be further from the truth. A contextual reading of the Second Amendment suggests that its main purpose—if not sole purpose– was to protect the rights of states to maintain and arm militias. It’s pretty obvious if you read the plain English: “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.”

Chief Justice Scalia’s 2008 Heller decision is a departure from nearly 200 years of jurisprudence which suggested that the Second Amendment was written to allow states to build militias for themselves separate from Federal interference. Since state militias of the time were made up of individual citizens who often kept their weapons home with them, the language made perfect sense. Here’s another way to word the Second Amendment: “The State has the right to provide for its security, and therefore, you can’t disarm individuals who will make up the State’s militia.” It conveys exactly the same meaning, but the difference in emphasis is important. Frankly, the stretch that Scalia and other ‘gun rights’ activists have to make when arguing for an individuals’ right is surreal by comparison.

But let’s talk context a little bit. Remember that prior to the Constitution with its attendant Bill of Rights where we find our tiny, one sentence, Second Amendment, our country was organized around something called the Articles of Confederation. In the Articles, states were required to maintain their own “well regulated and disciplined militia, sufficiently armed and accoutered” with “a proper quantity of arms, ammunition and camp equipage.”

The echoes of the language of the Second Amendment “well regulated” are not by accident. The implication is that this is not a pack of hooligans, out for a Saturday night Trump rally, or a thousand white supremacists descending on a university town, but a serious, disciplined militia, trained, drilled and so forth.

Under the Articles, the states would appoint all officers under the rank of colonel. The confederation Congress was permitted to “requisition” these militias for the “common defence,” but only “in proportion to the number of white inhabitants in such State.” Note the color designation, “white”: this will become important later on.

The Articles were short lived. In the subsequent Constitution of 1787 the federalists made their move and asserted for themselves powers once allocated to the states. The newly designed Federal Congress could declare war, raise an army, or both, by a bare majority and without consulting the states; Congress was in charge of training and arming the state militias, and could call the militia into service without state permission or even state consultation.

Whoa! As you might imagine, there was some push back on this matter. Especially from the ever sensitive Southern states with their peculiar institution of slavery that needed the expertise of state militias to keep potential insurrections in check. There was also the small matter of arming the white “paddy rollers” or slave patrols, generally semi-deputized poor whites paid some meager amount to round up individuals fleeing the depravity of enforced slave labor. So language was inserted to appease the Virginia Governor. His name was Patrick Henry; that same ‘give me liberty or give me death’ Patrick Henry who, at the time of his death owned 67 slaves. The freedom he defended so eloquently was about his white money, not, apparently, his black slaves.

To be succinct, Patrick Henry feared that without some checks written into the Constitution, the Federal Congress could undermine the ability of militias in Virginia and elsewhere in the South to suppress slave uprisings and pursue runaway slaves. The militia issue was important enough for Patrick Henry to see it as grounds for opposing ratification of the Constitution. The power Congress had over militias, Henry reasoned, could easily be turned into restrictive power. “By this sir, you see that their control over our best defence is unlimited,” Henry warned his fellow Virginians.

Patrick Henry even argued that southerners’ “property” (slaves) would be lost under the new Constitution, and the resulting slave uprising would be a disaster for them: “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.”

I suspect James Madison thought Patrick Henry was a bit paranoid, but, as Thom Hartmann noted, Madison did go on to alter the Second Amendment’s final form to satisfy the slave holding states.

Madison’s  first draft for what became the Second Amendment read: “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.”

So Madison’s careful wording of the Second Amendment was deliberate. He drew a connection between militias and the right to bear arms rather than simply defending the individual right to bear arms. James Madison, it should also be noted, was a slave holder himself and, of course, was speaking for his state’s ruling powers. He also knew, as anyone did at that time, that, as Nicholaus Mills has noted, “only white men in the Virginia militia had the right to bear arms.”

Libertarians who so acerbically defend individual gun rights ought to take note of why that amendment was written as it was, and justified—to dispossess an entire class of people of their life, their liberty, and their labor. You don’t necessarily need guns to be free, but you absolutely do need them to prevent others from being free. That’s a bit of the historical rationale behind the Second Amendment we all should understand; and then, perhaps, we can begin an honest discussion about its modern practicality.

by Jack Johnson