Was the Second Amendment Adopted for Slaveholders?

By Black, Eric | MinnPost.com, January 17, 2013 | Go to article overview

Was the Second Amendment Adopted for Slaveholders?


Black, Eric, MinnPost.com


"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."

I don't claim to know all the reasons that the United States is among the most gun-obsessed of modern societies. But, at least when it's time to defend gun rights, the Second Amendment to the U.S. Constitution, quoted in full above, is never far from being invoked.

Although the Supreme Court has said that reasonable restrictions can be placed on the right to own a gun, extremists tend to view the right as absolute. Until fairly recently, the courts had held that the maddeningly ambiguous introductory clause about the "well regulated militia" raises the possibility that the right to keep a gun is somehow tied to membership in a militia or something resembling a militia. The Supreme Court recently broke with centuries of precedent by deciding that the "militia" phrase was mere throat-clearing and that the right to keep and bear is an individual right.

Thanks to a long-time Black Ink reader and commenter, Paul Udstrand, my attention was recently called to a long, fascinating 1998 law review article by a law professor who specializes in gun issues which argues that the Second Amendment was added to the Constitution to reassure white slave-owning southerners that the federal government would not use its Constitutional power over state militias to disarm the southern states and leave them vulnerable to a slave revolt.

Although I have spent more time than has the average bear in trying to understand the history of the Constitution, this was a new one on me, and a jaw-dropper.

The author of the article is professor Carl Bogus of the Roger Williams University Law School in Rhode Island. The piece was published in the University of California at Davis Law Review. The full piece is here. It's long, scholarly in tone and heavily footnoted, but I absolutely encourage you to read the whole thing if you are so motivated. It's not hard to follow. Whether or not you buy Bogus' conclusion, you'll learn a lot.

Thom Hartmann, the lefty radio host and writer, relied on Bogus to make the same argument in a recent piece for Truthout, if you want a shorter version. For now, I'll just summarize the case.

The right to bear arms was not part of the original Constitution. The Constitution did, without mentioning the word "slavery," build in a number of protections for the institution in the South. Many of the northern framers were anti-slavery, but it was clear that there would be no union unless the slave states felt assured that the new, more powerful national government was not empowered to abolish slavery.

When the draft went to the states for ratification, one of the big battles was in Virginia, where men of towering reputations stood on both sides of the issue. The leader of the pro-ratification forces was James Madison, whose role in the story is so large that he is known as the Father of the Constitution. The noisiest opponent was the fading but famed orator Patrick Henry (whose famous line as a revolutionary was "give me liberty or give me death" and who had been the first post-colonial governor of Virginia). Henry made many, many arguments about the dangers to individual liberty and to the sovereignty of the Commonwealth of Virginia of this powerful new federal government.

Bogus emphasizes that many of the arguments dealt with "militia" issues. But Bogus adds a fact that wouldn't necessarily occur to you. In the slave states, the militias also served the function of slave patrols. The militia was available for military operations, but its biggest function was to police the slaves, intimidate the slaves and make clear to the slaves that any effort at a slave rebellion would be met with overwhelming deadly force -- armed force -- gun force.

Henry's plan was to defeat the Constitution by demanding amendments in advance of ratification, and then use the process of rewriting the draft to scuttle the whole project. …

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