With the Constitution ratified by the necessary states in 1788, it officially became the supreme law of the land in the states so ratifying. Up until this point in the story, there wasn’t a single piece of direct, or even indirect evidence, of a concerted effort to protect the right to keep and bear arms to the Constitution in order to maintain local militias for the purpose of enforcing slavery.
All that can be proven is that there were general concerns by some Southerners about a ban on the slave trade and potential meddling in slavery. But those apprehensions were generally within the context of a debate over whether there should be a stronger central government compared to the Articles of Confederation, not the regulation of the militia.
It’s also important to note that by this point, there was no need for federalists to adopt a Second Amendment in order to assure any Southern slave states and secure their approval of the Constitution since they had already ratified it. In fact, some Southern states, including South Carolina and Georgia, hadn’t even proposed such an amendment. Additionally, many states that had recommended an amendment to protect the “right to keep and bear arms” or to protect the local militia were either free states or states that didn’t rely on the militia to enforce slave laws.
Nevertheless, in The Hidden History of the Second Amendment, 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 examines Madison’s initial draft of the Second Amendment, which was more descriptive than the final version and included a religious exemption clause for military service. Here, his analysis of the draft within the context of federalist and antifederalist debates and the new Constitution’s role at least uses proper context. At the same time, none of it had to do with slavery or affected Southern militia.
Bogus argues that Madison wasn’t trying to articulate an individual right to keep and bear arms, but “to set limits on congressional power. In a sense…Madison’s draft of the Second Amendment made the power to arm the militia concurrent rather than exclusive to the federal government.”
Several points need to be made on this.
The first is that this was a draft, not the final version. It’s doubtful Bogus would put much stock into it if the draft instead had said “the individual right to keep and bear private arms shall not be infringed.”
But since Bogus takes a close look at Madison’s draft language, it’s worth pointing out that the actual adopted language recognizes a “right of the people to keep and bear arms.” If you eliminate the prepositional phrase “a well-regulated militia, being necessary to the security of a free state,” the sentence is still complete due to the predicate (shall not be infringed). The prepositional phrase explains the purpose for the right, but is dependent on the other half of the sentence to make be complete. This means it is not the focus of the sentence.
If the Second Amendment meant what Bogus purports it to mean, it would read more like this:
No militia in peacetime shall be called to put down domestic revolts, rebellions, or insurrections outside their respective states. The right of the militias to keep and bear arms to maintain domestic tranquility within their respective states shall not be infringed.
The second point is that Tench Coxe of Connecticut wrote a newspaper article days after the Bill of Rights was introduced describing the right to keep and bear arms as an individual right. Commenting on the Second Amendment, he wrote (bold emphasis added):
“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.”
For Bogus’s claim of a collective right interpretation to be true, one would have to assume Madison ignored Coxe’s claim or was being cynical and would praise any interpretation if it supported ratifying the amendments. Regardless, we’d have to once again not take him at his word.
Bogus’s thesis also conflicts with the historical record of the Congressional debates around the Second Amendment. In his paper, “Revisiting the Original Congressional Debates About the Second Amendment,” research professor Dru Stevenson found the debates primarily concerned an exemption for conscientious objectors (especially Quakers) from military service.
Additionally, one person to object to the Bill of Rights during those debates was pro-slavery congressman William Loughton Smith of South Carolina, who according to Stevenson, “feared that allowing any amendments would eventually lead to federal interference with slavery.” If the impetus behind the Second Amendment was to assure the slave states that militias would retain their autonomy and arms, apparently he wasn’t among those pushing it nor aware of Madison’s intent.
Lastly, anti-federalists like Patrick Henry fretted continually over ambiguous wording found in the Constitution, which they warned would give way to a broader interpretation of federal power. One such example was the “Necessary and Proper” Clause; what constituted necessary and proper? There was also a clause that gave Congress the authority to regulate interstate commerce; what did “regulate” mean?
With that in mind, one would think that for the amendment to preserve local militia, men like Henry would have demanded greater clarity and preciseness in the language. As noted before, nothing in the final language altered federal authority on putting down insurrections or abolishing local militia.
Stevenson argues for a much more nuanced interpretation of the amendment than an either/or, stating that they do not fit into modern political debates over its meaning because neither viewpoint fits within the context of the time (bold emphasis added):
“Most of the academic debate about the historical meaning of the Second Amendment has focused on the militia-or-individual right dichotomy, but I will argue that this dichotomy is misleading, because both personal gun ownership and militias overlapped with complicated, pressing policy questions related to the public fiscal, taxation, federalism, Indian affairs, westward expansion, and slavery.”
However, Stephen P. Halbrook and David B. Kopel point out in their paper “Tench Coxe And The Right To Keep And Bear Arms” that no founder ever opposed private firearm ownership. Considering the distinction, one would think that at least one founder would have thought it good to clarify.
The irony of Bogus’s dual claims that the Second Amendment was adopted to protect slavery and did not recognize an individual right to bear arms is that the U.S. Supreme Court concluded the opposite in its infamous 1859 Dred Scott decision. The court held that the Constitution’s authors never intended for blacks to become U.S. citizens because, in part, they would have been allowed to keep private firearms.
“It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.” [bold emphasis added]
One could argue that the court was wrong or arguing in bad faith, but are we really going to entertain the idea that SCOTUS was outright fabricating a right to private firearm ownership in order to demonstrate the need to keep blacks from ever becoming citizens?
Bogus’s paper also goes into depth on the Bill of Rights of 1689, which declared the right of Protestants to “have arms for their defence suitable to their conditions and as allowed by law.”
Whatever the history behind that document and this particular right, its relevance is almost entirely moot regarding American constitutional history or that of the Second Amendment’s proposal and final adoption.
As made evident by his introductory statements, Bogus’s premise is that the Second Amendment does not confer an individual right to keep and bear arms. Therefore, the federal can and should regulate firearms, as there is no right to private firearm ownership.
This attitude goes contrary to the whole notion of the Constitution, which according to Madison himself in Federalist #45 would have “few and defined” powers. Restrictions on its power didn’t need to be enumerated; rather, it was its authority that mandated specificity.
In contrast with fears over the loss of local militia to enforce slave laws, this is where antifederalists of all stripes were in complete agreement and made it unmistakably clear that greater clarity was warranted. One of the consistent arguments they made for a bill of rights was to explicitly declare that the only powers the new central government would have would be those expressly delegated.
There was disagreement over the inclusion of specific protection of certain rights, such as freedom of speech and the right to trial by jury because some believed that including some and not others would undermine their primary objective in limiting the federal government’s authority to only what it had been given.
This led to the birth of the Ninth Amendment, which states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This amendment alone undermines the entire basis of Bogus’s paper. Even if the Second Amendment had been written to preserve the ability of Southern states to use the local militia to enforce slavery and did not confer an individual right to keep and bear arms, that did not mean the right was nonexistent.
But the final nail in the coffin for Bogus’s secondary assertion is the Tenth Amendment itself, which states:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Whatever the meaning of the Second Amendment, where in the Constitution is any branch given the expressed authority to regulate or restrict private ownership of firearms?
As a final thought, if the right to keep and bear private arms needs to be deliberate in both meaning and written word, contained within a government document in order for the right to exist, then the right of people held in bondage in slave states did not truly exist until either the state itself freed them or the Thirteenth Amendment was ratified much later.