The Second Amendment Was Not Ratified to Preserve Slavery
By Anthony Gregory • Wednesday January 30, 2013 9:38 AM PDT • 26 Comments
An article at Truth Out by Thom Hartmann argues that the Second Amendment was ratified to preserve slavery, particularly to empower the state militia that used arms to enforce the institution through slave patrols. I wrote to Jeffrey Rogers Hummel, an historian who has written at some length about the history of American militia and whose working paper Deadweight Loss and the American Civil War: The Political Economy of Slavery, Secession, and Emancipation extensively discusses slave patrols as a key method by which slaveowners socialized the costs of slavery’s enforcement.
Hummel’s response to the Second Amendment slavery theory? Don’t buy it. Hartmann’s argument is overstated “to put it mildly.” In particular, the argument suffers from “presentism, back-dated from the Civil War, where everything that happened prior in U.S. history was driven by slavery.”
Hummel takes issue with some of the basic historical background in the Hartman piece, particularly “with the claim about ‘hundreds of substantial slave uprisings’ prior to the Constitution’s adoption. This would astonish most serious colonial historians.” Hummel explains the confusion:
Hartmann lifts this claim from the Carl T. Bogus article he cites, which in turn relies on Herbert Aptheker’s 1949 book, generally considered exaggerated even at the time it was published, before much additional research on slave revolts had made historians curious about their relative infrequency when compared with other slave societies in the New World. Nor were the few serious slave revolts during the colonial period confined to the South, with two in New York City (1712 and 1741).
Indeed, contrary to the reductionists, maintaining slavery was not the primary motivation lurking behind everyone’s actions at the Constitutional Convention.
The fact of the matter is that the Slave Power had not fully coalesced into a cohesive, dominant special interest by the time of the Constitution’s adoption. Opponents of the Constitution did of course sometimes use proslavery arguments, but this was hardly their primary concern, whether with respect to the Constitution generally or its militia clause specifically. And the change of the proposed Second Amendment’s wording from “free country” to “free State” is making a mountain of molehill. Hartmann doesn’t even get the story right, because as Bogus correctly reports, the change was made by the House committee, not by Madison.
(The House committee reviewing Madison’s proposed Bill of Rights had 11 members, one from each state. Madison was the representative from Virginia. There is no record of the committee’s deliberations. But since Madison had opposed creating the committee in the first place, preferring that the House consider the amendments directly, and since many of the members of the committee were initially opposed to a Bill of Rights, it is highly doubtful that Madison was responsible for the changed wording in ANY of the amendments as they were reported by the committee.)
The “more fundamental issue” here is the debate over the right to bear arms as an individual right, or a collective right. Hummel continues:
Bogus (Hartmann’s main source) is one of the prominent lawyers defending the collective-right theory of the Second Amendment. Constitutional lawyers generally write poor history, filled with special pleading (Leonard Levy being a notable exception), and especially when they write about the Second Amendment. Their biggest problem is that they know almost no genuine military history, and so their discussions of the militia are riddled with anachronistic errors.
At the time of the Constitution’s adoption every state had a compulsory militia for most able-bodied males, which performed military and police functions not just in the South but in the North as well. The voluntarization of the militia did not occur in the northern states until the Jacksonian era, with Delaware, actually a slave state, being the first in 1831. Moreover, while the Constitution authorized nationalization of the militia, this was a contentious political issue, and all serious attempts to implement it with legislation were defeated in Congress until the Spanish-American War inspired passage of the Dick Act of 1902. Thus, Bogus’s claim that the Constitution embodied an immutable definition of the militia is utter rubbish.
Hummel sent me an article by Roger I. Roots, “The Approaching Death of the Collective Right Theory of the Second Amendment,” in the Fall 2000 edition of the Duquesne Law Review (available here as a pdf). Roots specifically criticizes Bogus’s thesis that the Second Amendment was a stealth slavery provision (footnotes removed in quotation):
[A]ccording to Bogus, the. . . Second Amendment was an avenue for Southerners and Anti-Federalists, who had lost out in the overall design of the Constitution, to assert a buffer provision against the military power of the federal government. Unfortunately for this line of reasoning, a secret or “hidden” history is neither binding nor helpful in interpreting a constitutional provision. Nor is it nearly as clear, as Bogus suggests, that slavery supporters cowed at stating their support openly during the ratification debates. The Constitution does, after all, contain slavery provisions that were expressed (and thus “unhidden”) in the text — albeit in stifled wording. While these slavery provisions may contain “inscrutable language that the people could not readily understand,” they nonetheless were understood by people of the Founders’ era as slavery provisions. Bogus’s own writings yield scant primary evidence (which would be needed to take his argument on its face) of either any similar understanding regarding the Second Amendment or any secret correspondence among slavery supporters evidencing the notion that the Second Amendment was intended to enable slave states to obstruct the federal government should abolitionists ever gain control of it.
Roots also argues that the whole collective rights theory of the Second Amendment requires that we ignore a huge wealth of documentary evidence about what contemporaries thought the Amendment protected.
In order to operate to the exclusion of an individual right, the collective right doctrine seemingly requires the utter absence of documentary evidence that the Founders considered the Amendment as a protection of the right of individuals. Yet rarely is a collective right scholar brazen enough to assert that such evidence is nonexistent. The collective right argument instead depends upon the suppression, or at least the avoidance, of ratification era statements that described the right to keep and bear arms as a fundamental individual right. Increasingly dogged research has shown that the historical record is relatively rich with statements by both the primary Founders (those who served as delegates to the ratifying conventions) and the secondary Founders (those who contributed ideas, editorials, or writings about the Constitution in public forums) expressing the viewpoint that keeping arms was a fundamental individual right and that the Second Amendment was designed to protect that right.
Much of this evidence can be found in Stephen Halbrook’s The Founders’ Second Amendment: Origins of the Right to Bear Arms, the first book-length, extended rebuttal of the collective rights theory.
Tags: American History, Constitution, Gun Control, Law, Personal Liberty 
A pleasant fiction but short on substance.
Joe | Jan 30, 2013 | Reply
However, gun control measures *were* ratified to preserve slavery (http://takimag.com/article/disarming_the_slaves_brian_lasorsa).
Brian LaSorsa | Jan 30, 2013 | Reply
@ Joe “A pleasant fiction but short on substance”.
That statement is a more appropriate description of Thom Hartman’s piece. This article by Anthony Gregory has more substance in any one sentence than Hartman’s piece altogether. I’ve found that when folks are overwhelmed with an effective critique like Gregory’s people like Joe pretend they aren’t overpowered by it by saying absurd things like this piece was “short on substance”.
Javier R. | Jan 30, 2013 | Reply
Hartmann’s eagerness to give the gun lobby a wedgie blinds him to the fact that his essay offers some potent testimony against his own interest. He claims that the central purpose of the militia (acting as police) was to disarm slaves in order to prolong their oppression. Thus he underscores — inadvertently, no doubt — the fact that civilian disarmament is a prerequisite for slavery, just as the supposedly nutty and irresponsible “gun lobby” maintains.
This point was underscored in the properly notorious Dred Scott ruling, and it was certainly appreciated by the Black Panther Militia in the 1960s, which was organized for the precise purpose of defending oppressed black populations against police abuse.
William N. Grigg | Jan 30, 2013 | Reply
Either the Constitution has authorized such a government as we have, or it has been powerless to prevent it. In either case, it is unfit to exist. –Lysander Spooner.
PaulTheCabDriver | Feb 1, 2013 | Reply
You mean that Bogus’ hypothesis is a bogus hypothesis? Say it ain’t so!
Yes, I went there. (In fact I’m there right now.)
(Not for nothin’... if my name was Bogus, I would change it before embarking on a career as a Court Historian).
Kratoklastes | Feb 4, 2013 | Reply
Thomas Jefferson stated that if a law was unconstitutional it was not a law.the federal government passing a law calling for gun control falls under this premises since the 2nd amendment gives citizens the right to bear arms.
Bob Marshall | Feb 4, 2013 | Reply
The 2nd Amendment doesn’t give citizens their right to bear arms, it prevents the government from INFRINGING on the right of citizens to keep and bear arms. The citizens have those rights based on their humanity and the right to defend themselves.
Bob Bowen | Feb 5, 2013 | Reply
Hartmann has similarly started an ahistorical meme about corporate personhood that has no basis. He claims this 19th century doctrine that lost any importance in 1938 when the Court stopped overturning economic legislation it did not like, has some relevance to the contemporary interpretation of the First Amendment. Hartmann is untrustworthy, holding himself out as scholar without any credentials to do so. His motives are publicity for himself, not accuracy.
MOPstr | Feb 7, 2013 | Reply
Wonderful. Thank you ever so much for the site and all of your views.
Tom Mac NAmara | Feb 9, 2013 | Reply
Where can I read more information on “ratification era statements that described the right to keep and bear arms as a fundamental individual right”?
Millercraft | Feb 9, 2013 | Reply
millercraft; try The FederalistPapers.org
dave l | Feb 9, 2013 | Reply
Hear, Hear! The rights expounded in the Constitution are acknowledged as already being God given rights and that the federal government understands this.
Jay Peterson | Feb 19, 2013 | Reply
Interesting... God gave us the right to own guns??.... I’m sure you have a Bible verse to back that up?
Scalia says gun control is constitutional.
Roger from Ohio | Feb 19, 2013 | Reply
Roger, Each of us has a natural right to life and to peacefully acquire and own private property and then to protect this right from aggression. To own a gun or a knife or a hammer as private property for defensive purposes falls into this category of rights. To say instead that someone else has the right to take (i.e., steal) private property that has not been used to abridge the rights of others is to say that the original right is void and the second person holds the right instead. This moral relativism and confusion is at the root of the claims by those who support gun control, and indeed, the advocate of gun control is actually advocating the use of lethal force against innocent people who have committed no crime but allegedly should be subjected to violence by government agents. Hence and aside from the matter of crime rates going up as a result of gun control, the very act of gun control is itself a crime on a mass scale.
America’s Founders understood that the right to be armed was intrinsic in human rights and this is shown in detail in the following book:
The Founders’ Second Amendment: Origins of the Right to Bear Arms, by Stephen P. Halbrook
David J. Theroux | Feb 20, 2013 | Reply
Let he who has a cloak sell it and buy a sword.
J.Christ
Daniel Vogel | Feb 28, 2013 | Reply
Daniel, I believe that the full quote at the Last Supper from Luke 2:35-38 goes as follows (New International Version):
“He said to them, ‘When I sent you out without a purse, bag, or sandals, did you lack anything?’ They said, ‘No, not a thing.’ He said to them, ‘But now, the one who has a purse must take it, and likewise a bag. And the one who has no sword must sell his cloak and buy one. For I tell you, this scripture must be fulfilled in me, ‘And he was counted among the lawless’; and indeed what is written about me is being fulfilled.’ They said, ‘Lord, look, here are two swords.” He replied, ‘It is enough.’”
David J. Theroux | Feb 28, 2013 | Reply
However it is up to the Courts not the public to decide the constitutionality of a law and Even Justice Alito and Chief Justice Roberts have made comments from the bench of the power of the Government to ban or severely curtail the publics availability of certain types of arms, with such comments coming in the hearing of arguement of the Washington DC case a few years ago!In relation to Militia’s and their rights I suggest a look at http://en.wikipedia.org/wiki/Shays%27s_Rebellion the self same signors of the Constitution itself were involved in the putting down of that uprising, which many of today would argue that they had a Constitutional right to do in relation to an oppresive government, obviously the Founding fathers thought different!
the Lion | Mar 21, 2013 | Reply
Well the Bogus article maybe overstated but the debate notes from the Constitutional Convention are not. Suppression of slave revolts was the primary concern at the Convention, though not the only concern. States militia subject to nationalization were seen as a thrifty expedient to having a large standing army. Those that push the myth that the 2nd creates an individual right deny both history and the rules of English. The “conservative” rewriting of the 2nd makes no sense in light of its text, which at the start limits the scope of the 2nd to States militia, well regulated ones at that. First rule of Constitutional interpretation is that an interpretation omitting a single word is wrong, the fraud by traitor Scalia and company omits two whole phrases.
Larry Daigneault | Mar 21, 2013 | Reply
The 2nd doesn’t even speak of ownership. Any and all ownership rights fall under the 9th. Best argument is for a limited privilege to own a gun. Hell not much more than 4% (if that) owned a gun in the US in 1787.
Larry Daigneault | Mar 21, 2013 | Reply
Left unmentioned in all this is that gun owners who claim that the 2nd Amendment was drafted to enshrine their right to overthrow the U.S. Government when they deem it necessary have to pretend that Article III, Sec. 3 doesn’t exist. We only need to read about Shays’ Rebellion or the Whiskey Rebellion to know what the Founders thought about yelling “tyranny” and attacking the U.S. Government. [ironically, Shays' Rebellion occurred near the Springfield Armory, which is where military-grade weapons were kept back in the day. Gun rights absolutists have to pretend that early Americans kept the "militia" weapons under their beds in order for their beliefs that military equipment should be kept at home to make sense].
flounder | Apr 8, 2013 | Reply
He also declared in February that they will rule on gun control again “soon” and this time define once and for all what is reasonable to own. When that ruling comes down 5-4 (just like Heller and just like McDonald) then all state bans will be unenforceable. It will be as great a victory for gun rights as Roe v. Wade was/is for those who are pro-choice.
Andy from CT | Apr 9, 2013 | Reply
Larry Daigneault conveniently suffers from his own misreading of the 2nd Amendment.
The right is affirmed on “...the people”. Not “...the people in the militia” and not “...the militia”.
He also misses that the first phrase cannot stand on its own grammatically.
Scott Severin | May 5, 2013 | Reply
Exactly, which simply means the prefatory clause has an impact on the operative clause thus giving the operative clause a restrictive context. The restriction can only mean a restriction on the term people. The constitution also restricted the “we the people” to only mean “white men”, after all the Equal Rights Amendment was never constitutionally codified and Negros had no rights until the passage of the 13th, 14th and 15th amendments even though free blacks were not considered property. The Fifth Amendment was never envisioned by the framers to provide due process protection to women or blacks so in this context the term people, from the get go, was always a subset of the citizenry.
Bubba | May 11, 2013 | Reply
See the Militia act of 1792. The average citizen might not have owned a weapon (gun) but they were required by law to own one AND be a member of a well regulated militia.
The second amendment of the right to bear arms is part and parcel to being a member of the militia. I would argue that the law of the land was the requirement that each able bodied male citizen participate in the well regulated militia of their respective state and that the constitution protects those members of the well regulated militia with respect to keeping and bearing arms. There should be no doubt that the constitution codifies the right of each state to raise and maintain a well regulated militia (Article 1), this same article gives the Feds the right to regulate the militia and to use that militia to execute the laws of the Union, suppress insurrection and repel invasion.
The Dick act of 1903 recognized the various states national guard as the well regulated militia referred to in the constitution.
Given the prefatory clause of the second amendment “A well regulated Militia, being necessary to the security of a free State,” by definition refers to the necessity of a well regulated militia being essential to the security of a free state, therefore “the right of the people to keep and bear Arms, shall not be infringed.” naturally refers to the right of the people as members of a well regulated militia to keep and bear arms. To not infer this would be to render the prefatory clause useless and therefore meaningless to the right granted in the clause.
Surely, if the right to bear arms meant the right to bear semi-automatic small arms then the strict interpretation of the second amendment would provide the right to bear any and all small arms including automatic machineguns. Clearly the courts have spoken on this issue and the people do not have an individual right to bear automatic weapons. The court has long ago agreed that a constitutional right is not an absolute right, that each right has its limitations. Given this fact it would seem that the right to bear semi-automatic weapon versus fully-automatic weapons is arbitrary and capricious which in itself is illegal.
Bubba | May 11, 2013 | Reply